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The opinion of the court was delivered by
Porter, J.:
Numerous errors are complained of, but we shall consider only the claim that the damages allowed are excessive. The deceased was by occupation a farmer, interested as a partner with his nephews and their mother in the ownership of twenty-five hogs and ten head of cows, and in the operations of a farm, which was leased land. The farming was very limited, only thirty acres of the place being tillable. In addition, he had twenty head of horses of his own and some farming implements. He owned no land, and possessed no other property of any kind. There is nothing in the evidence showing the kind, quality or value of the live stock in which he was-interested, or the amount of sales of stock or produce, or the amount of earnings from his personal exertions in his business or occupation. One witness testified that the earnings of deceased from his business or occupation amounted to from $1500 to $2000 a year ; but this was a mere conclusion of the witness, which is disputed by the testimony in reference to the slight farming operations carried on, and the small possessions which the deceased had accumulated.
Where income is taken as a test or standard of the measure of damages, in a case of this kind, the income considered must be that which was derived from the personal exertions of the deceased in his business or occupation, as distinguished from income arising from property owned or investments of capital. (Railway Co. v. Posten, 59 Kan. 449, 453, 53 Pac. 465; Railway Co. v. Scheinkoenig, 62 Kan. 57, 61 Pac. 414.) The theory of the law is that those who inherit from the deceased acquire his property and investments, and are enabled to secure for themselves the ordinary income therefrom. (D. & R. G. R. R. Co. v. Spencer, 25 Colo. 9, 52 Pac. 211; 4 Suth. Dam., 3d ed., § 1267; Gulf, Col. and S. F. Ry. v. Younger, 90 Tex. 387, 38 S. W. 1121; Pym v. G. N. Railway Co., 2 B. & S. [Eng. Q. B.] 759.)
The loss which plaintiffs suffered by the death of their uncle was not the loss of something which they were legally entitled to receive; it was the loss of something which it was merely reasonably probable they would receive. It includes the loss by them of any pecuniary benefit which they might reasonably have expected to receive during the lifetime of the deceased by gift, and also the loss of any accumulations which it is probable that he would have added to his estate had he lived his natural life, and which they probably would have received by inheritance. The recovery is based upon evidence of pecuniary benefits conferred by deceased in his lifetime, the continuance of which might reasonably have been expected, together with evidence showing the probability that deceased would have accumulated property had he lived which would probably have gone by inheritance to plaintiffs. (Tiffany, Death by Wrongful Act, § 158.) The measure of damages, therefore, is what the deceased would probably have accumulated in his business or occupation for the probable period of his life. (Balt. & Ohio R. R. Co. v. Wightman’s Adm’r, 29 Gratt. [Va.] 431, 26 Am. Rep. 384; Pym v. G. N. Railway Co., 2 B. & S. [Eng. Q. B.] 759; Railroad Co. v. Barron, 72 U. S. 90, 18 L. Ed. 591; McAdory v. Louisville & Nashville Railroad Co., 94 Ala. 272, 10 South. 507.) The action is for pecuniary compensation only. (A. T. & S. F. Rld. Co. v. Weber, Adm’r, 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543; Railway Co. v. Ryan, 62 Kan. 682, 64 Pac. 603; Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837.) In Railroad Company v. Sweet, 60 Ark. 550, 31 S. W. 571, the proper way to estimate the damages was said to be:
“By taking into consideration the age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, and the probable increase or diminution of that ability with the lapse of time; deceased’s earning power, rate of wages, and the care and attention which one of his disposition and character may be expected to give his family — all these are proper elements for the consideration of the jury in determining the value of the life taken. From the amount thus ascertained the personal expenses of the deceased should be deducted, and the balance, reduced to its present value, should be the amount of the verdict. (4 Suth. Dam., 3d ed., § 1268; Central Railroad v. Rouse, 77 Ga. 393, 3 S. E. 307; Balt. & O. R. Co. v. Wightman, 29 Gratt. [Va.] 431, 26 Am. Rep. 384; Field, Dam. § 632; Mansfield &c. Co. v. McEnrey, 91 Pa. St. 185, 36 Am. Rep. 662.)”
To the same effect see Railway. Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837, and K. P. Rly. Co. v. Cutter, 19 Kan. 83.
Counsel for defendants in error justify the verdict by arguing that the expectancy of deceased was ten and one-half years, and that his gross income would amount to ten and one-half times $1500 to $2000, or from $16,000 to $21,000. The calculation leaves out all consideration of the probable diminution in the ability of the deceased, by reason of advancing age, to earn by' personal exertions. In four years deceased would have reached the usual limit of strenuous life. Granting that he had the income which one witness said he had, is it a reasonable presumption that he would have continued to earn as much in his seventy-sixth year? As before stated, the testimony of the witness who placed these earnings at these figures is a mere conclusion, unsupported by any evidence, and contradicted by all the facts and circumstances in the case. It, has been held error to refuse to instruct the jury in similar cases to consider the probable diminution by reason of advancing age in the power and ability to accumulate. (4 Suth. Dam., 3d ed., § 1268; The Central Railroad and Banking Co. v. Roach, 64 Ga. 635.)
There is one way to determine approximately what the accumulations of the deceased would probably have amounted to for the period of his expectancy, and that is by reference to what he had already accumulated. We know how long he had lived; we know his expectancy; we know what he had accumulated. The unknown quantity can best be determined by proportion. If in a lifetime of sixty-six years he had gathered together and possessed only the amount of property shown by the testimony, upon what theory can it be claimed that in the period of his expectancy and naturally declining powers he would probably have accumulated $7000? It must be apparent that the jury in arriving at this verdict went some distance into the realm of imagination, and were not controlled by the evidence. It has often been said by the courts that in determining the measure of damages in this class of cases much must, of necessity, be left to the discretion of the jury. No fixed and certain rules for the measurement of such damages can be laid down, but the jury must find a substantial basis in the'evidence for any allowance they make. They must not guess at it.- They must use a' reasonable discretion. Damages out of reasonable proportion to the expectation of pecuniary profit to be justly anticipated cannot be upheld. (A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kan. 443; Coal Co. v. Limb, 47 Kan. 469, 28 Pac. 181; Walker v. Railway Co., 104 Mich. 606, 62 N. W. 1032.) In an action for the benefit of a brother and sister, where the deceased had accumulated nothing, it was held that only nominal damages should be awarded. (Howard v. Delaware & H. Canal Co., 40 Fed. 195, 6 L. R. A. 75.)
It is seriously urged that plaintiffs suffered damages by being deprived of the counsel, advice and fatherly care of their uncle. In cases where the facts warrant a recovery for the loss of a parent’s counsel and services it is held that the damages must be limited to such as would be of pecuniary value. (Demarest v. Little, 47 N. J. Law, 28; 13 Cyc. 371.) When we consider the ages of these women, from twenty-three to forty, each married, in comfortable circumstances, and living at some distance from the uncle, and the ages of the men, one twenty-one, the other twenty-nine, living with their mother, and the circumstances in which they were at the time of the death of this bachelor uncle, it is obvious that the probability of any of them suffering pecuniary loss by being deprived of the physical care and intellectual and moral training of the deceased is quite far-fetched.
The deceased was sixty-six years old, with but a small amount of property, the net accumulations of almost a lifetime. He was without wife or child, or any person legally dependent upon him. As was said in A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kan. 443, 458, “where one dies without wife or child, with no one legally dependent upon him, and with only remote relatives as his next of kin, there is only a remote probability that his earnings, whatever they may be, would inure to such next of kin.”
Taking the view of the testimony most favorable to plaintiffs with reference to his earnings and the casual benefactions he made to them, and conceding that they would have inherited from him whatever accumulations he would have made during the period of his expectancy, if he had lived, we are of the opinion that the amount of the verdict is unwarranted by the evidence and the facts in the case, and that the trial court should have set it aside.
The judgment is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
George Avery was run over and killed on a public crossing by one of the Union Pacific Railroad Company’s trains. A. J. Avery, as his administrator, sued to recover damages therefor. The court overruled a demurrer to the plaintiff’s evidence. The defendant introduced its evidence, and then upon its request the court directed the jury to find a verdict for the defendant, upon which a judgment was rendered.
The error assigned is that the court directed a verdict for the defendant and rendered judgment thereon. Numerous acts of negligence were charged in the petition, among which was the failure of the engineer of the train which ran over Avery to sound the whistle eighty rods from the crossing. Plaintiff introduced some evidence tending to show that the whistle was not sounded at a point eighty rods from the crossing, while the testimony on the part of the defendant very strongly tended to show that it was so sounded. Whether it was or not was a material fact, upon which the evidence, when all in, was conflicting. The rule controlling where a demurrer is interposed to evidence applies in directing a verdict. If there is any substantial testimony tending to sustain the material facts contended for by either party, as against such party the .trial court should overrule a demurrer; and where all of the evidence has been submitted on both sides,-and there is a conflict upon any material question of fact, the cause must be submitted to the jury.
As suggested, there was evidence introduced by the plaintiff tending to show that the railroad company did not sound the whistle at a point eighty rods from the crossing upon which Avery was killed, and presumably it was because of this that the court overruled the demurrer to the plaintiff's evidence. This evidence still- remained in the case. Notwithstanding the defendant had offered testimony to the contrary, and notwithstanding that evidence might have been sufficient to satisfy a jury and did satisfy the court that the defendant’s engineer had complied with the law in this respect, and notwithstanding the court felt that it would be compelled under the evidence, in case a verdict should bé returned for the plaintiff, to set it aside and gránt a new trial, it was nevertheless the duty of the court to submit the cause to the triers of the facts. It is only where it can be said that the plaintiff has wholly failed to introduce any substantial evidence in support of some material point in his case that a court is authorized either to sustain a demurrer to his evidence'or direct a verdict for the defendant. The jury are the triers of the facts, and whenever the testimony has reached such a point that it must be weighed and conclusions deduced therefrom the jury alone must make the deductions in the first instance, and not the court. (Sullivan v. Phenix Ins. Co., 34 Kan. 170, 8 Pac. 112; K. P. Rly. Co. v. Couse, 17 Kan. 571; Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. 1, 1 Pac. 605; Jansen v. City of Atchison, 16 Kan. 358; St. Jos. & D. C. Rld. Co. v. Dryden, 17 Kan. 278.)
The judgment is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
F. T. Appleton was convicted of murder in the first degree. A motion for a new trial was denied, judgment was rendered, and an appeal was taken to this court, where the judgment was affirmed. (The State v. Appleton, 70 Kan. 217, 78 Pac. 445.) Afterward, and just within a year from conviction, he filed a petition asking for a new trial on the grounds that two jurors who tried him were prejudiced against him, although upon an examination of their qualifications they answered, that they were free from bias or prejudice, and that since the trial some important testimony had been discovered which could not have been sooner discovered by him. On this petition a summons commanding the sheriff to notify the state and county attorney was issued, and a copy of it was delivered to the county attorney. He appeared specially and moved the court to quash the summons for the reason that the court had no jurisdiction of the defendant, or of the subject of the proceeding; that the state, being a sovereign power, could not be sued or brought into court by service of summons,, and that Appleton had no legal capacity to sue. The court granted the motion and dismissed the proceeding, and of this ruling Appleton complains.
Although his motion for a new trial, filed immediately after verdict, in pursuance of section 275 of the criminal code (Gen. Stat. 1901, §5713), was denied, he insists that he was entitled to avail himself of the provisions of section 310 of the civil code (Gen. Stat. 1901, § 4758), which authorize a proceeding to obtain a new trial after the term at which the trial was had and within a year after final judgment. The claim is based on section 210 of the criminal code (Gen. Stat. 1901, § 5652), which provides that “verdicts may be set aside and new trials awarded on the application of the defendant; and continuances may be granted to either party in criminal cases for like causes and under the like circumstances as in civil cases.” It is argued that this provision does not apply to new trials of criminal cases fordwo reasons: One is that the clause, “for like causes and under the like circumstances as in civil cases,” applies only to continuances, and has no application to the setting aside of verdicts or • the awarding of new trials. The punctuation of the section, as it is printed in the General Statutes of 1901, where there is a separating^ semicolon after the word “defendant,” is said to support this view. The section was enacted in 1855 (Stat. of Kan. Ter., ch. 129, art. 6, § 17), and as then printed a comma, instead of a semicolon, was used after the word “defendant,” and it appears that the same section was so punctuated in the revisions of 1859 (Kan. Stat. 1859, ch. 27, § 189), 1862 (Comp. Laws 1862, ch. 32, § 189) and 1868 (Gen. Stat. 1868, ch. 82,- §210). Punctuation of a statute is not controlling, and certainly the changed punctuation made by the printer or compiler in the recent revision would hardly be a safe guide for the interpretation of this statute. Taking the section as it was punctuated when it was enacted, or laying aside the matter of the punctuation and taking the structure of the sentence, the natural import is that the last clause of the section applies to verdicts and new trials as well as continuances. Unless the first clause of the section is modified by the last the first would seem to be superfluous, and under the general rule a construction which gives effect to statutory language is preferred over one which would make it nugatory and useless. The purpose of the legislature appears to have been to carry into the criminal code the provisions of the civil code relating-to the causes and circumstances for and under which verdicts might be set aside, new trials awarded, and continuances granted, so far as they may be applicable in criminal cases.
It is further contended that section 210 of the criminal code (Gen. Stat. 1901, §5652), which purports to' borrow some of the provisions of the civil code, should not' apply because section 275 of the criminal code (Gen. Stat. 1901, §’5713) specifies the causes for which a new trial may be given. It appears that section 210 is the earlier provision, it having been enacted in 1855 (Stat. of Kan. Ter., ch. 129, art. 6, § 17), while section 275 was not passed until 1859. (Kan. Stat. 1859, ch. 27, § 258.) In 1859 section 210 was reenacted and placed in the criminal code with section 275, and has been in every revision of the statutes and treated as an effective provision since 1859. The causes for a new trial specified in section 275 are limited, and hardly meet the exigencies of an ordinary case. One illustration of its incompleteness will suffice. It provides that a new trial may be awarded for receiving unauthorized or illegal testimony, but does not authorize a new trial for the exclusion of competent testimony offered in behalf of the defendant. It has been the uniform practice from the beginning to allow new trials in criminal cases upon this ground, and in fact for every cause for which a new trial may be granted in civil cases. So it was said, in The State v. Bogue, 52 Kan. 79, 84, 34 Pac. 411: “We also think section 210 of the criminal code authorizes the granting of new trials for like causes as in civil cases, and that section 275 in no way prejudices the defendant’s right in that particular.”
It is true that some language was used by Chief Justice Doster, in Asbell v. The State, 60 Kan. 51, 55 Pac. 338, suggesting a contrary view, but as will be observed it was found unnecessary to determine whether new trials could be awarded in criminal cases upon the same grounds as in civil cases, and therefore no decision of the question was made, and the accepted rule was not disturbed.
While section 210 of the criminal code enlarges the grounds upon which a new trial may be awarded, neither that section nor section 310 of the civil code, singly or taken together, have the effect to authorize the institution of a proceeding against the state. The last-named section provides that where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after, the term at which a trial was had a proceeding may be brought to obtain another trial.
The proceeding contemplated by that section is in a sense a new one, brought after judgment is rendered and the parties are no longer in court. To institute the proceeding a petition must be filed and a summons issued, as is done in the commencement of a civil action. There may be actual or constructive service of the sum mons, the same as in ordinary cases, and unless a party is brought into court in the proper manner no jurisdiction is obtained. The case is placed on the trial docket, witnesses are examined in open court, and depositions may be taken as in other cases, and it proceeds throughout as a new proceeding. While it brings up -for reconsideration the questions involved in the former case, it is distinct from that case, and the parties must be brought into court again on original process before jurisdiction to grant the relief asked is acquired.
A prerogative of. sovereignty which belongs to a state is that it cannot be brought into court to answer claims made against it unless express consent to that end has been given, The power to give consent rests in the legislature, and plaintiff has not called our attention to any statute authorizing a suit against the state. It is contended here, as it was in Asbell v. The State, 60 Kan. 51, 55 Pac. 338, that section 210 of the criminal code, in connection with section 310 of the civil code, furnishes sufficient authority for bringing the state into court upon a summons issued at the instance of one who has been convicted of an offense.' There is nothing in these sections indicating a legislative purpose of abrogating the prerogative of sovereignty and the giving of consent that the state may be sued in either civil or criminal cases. Courts cannot resort to forced constructions or questionable implications to find such consent. The rule is that as statutes giving the power to sue the state are in derogation of a sovereign power they should be construed strictly. As was said in Asbell v. The State, supra:
“To compel a state, upon theories of doubtful statutory interpretation, to appear as defendant suitor in its own courts, and to litigate with private parties as to whether it had abnegated its sovereignty or its right of exemption from suit, would be intolerable. . . . In its grace and favor it may waive its sovereign right of exemption, but the waiver must be made in express terms, or at least in terms so clear and unambiguous as necessarily to force upon the mind the implication of waiver.” (Page 55.)
Whether the proceeding brought by plaintiff is regarded as a common-law writ of coram nobis, or a statutory proceeding to obtain a new trial, the result must be the same, as the legislature has never in clear terms authorized the institution of such a proceeding against the state.
The judgment of the district court is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
This suit was brought to foreclose certain mortgage ■ liens upon land which, at the time the liens were created, was government land occupied by the defendants under a homestead entry, and before final proof thereon. Defendant Morgan and his wife executed two written agreements, dated February 1, 1892, and November 28, 1892, respectively, which were promises to pay for certain fruit-trees to be planted upon the land in question, and were in effect mortgages upon the land. The agreements were acknowledged and recorded. The answer of the defendants raised the following defense:
“And for a second defense defendants aver and say that said debt is not a lien upon the southeast quarter of section 2, township 8 south, range 25 west, Graham county, Kansas, because they say that at the time of the execution and delivery of the written contract declared upon and the creating of the debt the title of said land was in the United States of America, defendants having made homestead entry upon it and were occupying it under the United States homestead law, and at the time of the execution and delivery of said contract and the creating of the debt they had not made final proof under the United States homestead law, and did not do so until on or about September, 1894.”
A demurrer to this defense was overruled, a trial was had, and the court gave judgment against the defendants for $1600, the amount of the indebtedness, but denied the lien and ordered plaintiffs’ mortgages canceled. Of that part of the judgment denying plaintiffs’ lien and directing the cancelation of the mortgages plaintiffs complain.
From the statement it appears that but one question is raised: Are the mortgages valid liens upon defendants’ land? The provisions of the homestead act require the applicant at the time the original entry is made to make affidavit “that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person.” (Rev. Stat. U. S. § 2290.) On final proof he is required to make affidavit “that no part of such land has been alienated, except as provided” therein. (Rev. Stat. U. S. § 2291.) The exception mentioned relates to transfers for church, cemetery, school or railroad' purposes. Section 2296 provides that no lands acquired under the homestead act “shall in any event become liable to the satisfaction of any debt contracted -prior to the issuing of the patent therefor.”
Defendants in error rely upon Brewster v. Madden, 15 Kan. 249, and Mellison v. Allen, 30 Kan. 382, 2 Pac. 97. In the former case the question considered was whether a mortgage given by a preemptor prior to the entry of the lands was void. The preemption act of September 4, 1841, required the claimant prior to his entry to make oath that he had not, “directly or indirectly, made any agreement or contract, in any way or manner, with any person whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself.” (Rev. Stat. U. S. § 2262.) It also provided that “any grant or conveyance which he may have made, except in the hands of bona fide purchasers, for a valuable consideration, shall be null and void.” The court, speaking by Mr. Justice Brewer, construed the preemption act to mean that congress intended by this section that when title passed to the preemptor it should pass perfect and unencumbered, and the mortgage was held to be void. This is recognized as the leading case in support of the doctrine announced. We believe it has never been followed except by this court in Mellison v. Allen, supra. The reasoning of Brewster v. Madden has been denied and the case overruled by most of the other courts. That case relied upon the case of McCue v. Smith et al., 9 Minn. 252, 86 Am. Dec. 100, which was decided in 1864, and which was expressly overruled in Jones et al. v. Tainter et al., 15 Minn. 512, decided in 1870, five years before Brewster v. Madden. In overruling McCue v. Smith et al. the Minnesota court said:
“It is true that in McCue v. Smith et al., 9 Minn. 252, 86 Am. Dec. 100, and in Woodbury v. Dorman, 15 Minn. 338, it was held that a mortgage made in pursuance of an agreement such as appears in this case was void in the hands of the original mortgagee, and as against persons claiming under the mortgagee not being bona fide purchasers, and unquestionably the court below was justified by those cases in holding the mortgage here void in the hands of Tainter. In .the case of Woodbury v. Dorman (in which one member of the court dissented), an application was made immediately after the filing of the opinion for a reargument by the. appellant, who claimed that this court had fallen into error in holding a mortgage, given under circumstances similar to those presented by this case, void; and although a reargument was denied for reasons peculiar to that case, the majority of the court in denying the same took occasion to express their dissent from the holding in that case, and .to announce that they should feel at liberty in future to reexamine the question there determined. The majority of the court think that the question ought not to be passed over in the case at bar, regarding it as one which affects interests of too much importance and extent to permit them to sanction by silence or acquiescence what they deem a mistaken view of the law. In McCue v. Smith et al., which was followed in Woodbury v. Dorman, it was held that such mortgage was void under the thirteenth section of the preemption act of September 4, 1841. . . . In the opinion of the majority of this court, a simple agreement, by a person proposing to apply for and enter land under the act of September 4, 1841, to execute a mortgage to secure the payment of money furnished him with which to pay for such land, is not such an agreement as is referred to in the provision just quoted from the preemption act. It is not an agreement by which the title to be acquired — that is to say, the fee — should inure, in whole or in part, to the benefit of any person other than the preemptor; on the contrary, the presumption is that a mortgagor in tends to pay the mortgage debt, and discharge his land from the encumbrance of the mortgage, so that his title shall not inure to the benefit of the mortgagee. . . . But the result is not important. The question is, Was there any contract or agreement by which the preemptor fixed this result? Did the preemptor contract or agree that the title to be acquired — that is to say, the fee — should inure to the benefit of another? In other words, Did the preemptor contract or agree to do anything which, when done, would pass the title, in whole or in part, to another, so that the preemption would, as to such whole or part, be a mere conduit of the title ? We are clear that no such contract or agreement is fairly to be inferred from a simple agreement, made before preemption, to secure the whole or a part of the purchase-money by a mortgage upon the premises to be preempted. The mortgage contemplated by such contract, or agreement, is but a security (as this court has often held), and its execution does not have the effect of making the title acquired by the preemptor, to wit, the fee, inure, in whole or in part, to the benefit of another.” (Pages 514-516.)
The only other case cited and relied upon in Brewster v. Madden is Warren v. Van Brunt, 86 U. S. 646, 22 L. Ed. 219. There the question of the validity of a mortgage was not in any way involved. The contract held illegal was one by which the preemptor contracted before final proof to sell an interest in the land, which contract was, of course, in violation' of the spirit and letter of the law. The court held that “an entry of the-public land by one person in trust for another being forbidden by statute, equity will not, on a bill to enforce such a trust, decree that any entry in trust was made.” (Syllabus.)
The case of Mellison v. Allen, 30 Kan. 382, 2 Pac. 97, was decided in 1883. The opinion in that case is also by Mr. Justice Brewer, and follows and approves Brewster v. Madden, supra. The land involved was a homestead, and the court refused to decree the specific performance of a contract for the conveyance of an undivided interest in the land made before final proof. The distinction between the provisions of the homestead act and those respecting preemption is pointed out, but the decision is placed squarely upon the policy of the government expressed in the requirement that the occupant shall make oath at the time of final proof that no part of the land has been alienated. “It is true,” the court said, “these sections contain no express prohibition on alienation, and no declaration of forfeiture or penalty in case of alienation; and yet the homestead right cannot be perfected, in case of alienation, without perjury by the homesteader.” (Page 883.) It was held that the contract, whether absolutely void or not, “is clearly against the will and policy of the government, and so necessarily resting upon perjury that a court of equity will have nothing to do with it.” (Page 385.) The case of McCue v. Smith et al., supra, was cited again, and relied on.
The supreme court of California, in Orr v. Stewart„ 67 Cal. 275, 7 Pac. 693, had the same question before it in a case involving both the homestead and preemption laws. Stewart occupied the land under the homestead act, and executed a mortgage to Orr for money to pay for the land. After the foreclosure and sale to Orr, and after Orr had taken possession of the land under the sheriff’s deed, Stewart commuted the entry under the preemption act and received a certificate of purchase. Orr brought the suit to quiet his title against Stewart. The mortgage was held valid, and plaintiff’s title was quieted as against any title defendant had acquired subsequently from the government.
In a later case, decided in 1893 (Stewart v. Powers, 98 Cal. 514, 33 Pac. 486), the same court held that a mortgage executed by a preemption claimant before final proof was not a “grant or conveyance” within the preemption statute and was therefore valid. It was held that the mortgagor was estopped from defeating by his own act the lien attempted to be created, and that the mortgage was not void under the homestead act, “unless . . . intended as a mode of transferring the title in evasion of the statute.” (Page 521.) The authorities were reviewed, and McCue v. Smith et al. referred to as supporting the other view; and it was noted that the Minnesota court had expressly overruled the latter case in Jones et al. v. Tainter et al., 15 Minn. 512; and Brewster v. Madden was mentioned as in line with the earlier overruled cases in Minnesota.
When Brewster v. Madden was decided it was in accord with the rulings of the commissioner of the genefal land-office, as well as those of the department of the interior; but in 1882 this department of the government faced about, and Mr. Teller, secretary of the interior, reviewed the former decisions in a careful opinion, and showed their unsoundness. In Larson v. Weisbecker, 1 Land Dec. Dept. Int. 409, he used this language:
“I am aware that the former rulings of your office and of this department — following the precedent of an early decision — have held that an outstanding mortgage given by a preemptor upon the lands embraced in his filing defeats his right of entry upon the ground that such mortgage is a contract or agreement by which title to the lands might inure to some other person than himself. A careful consideration of this section leads me to a different' conclusion, and to the opinion that, unless it shall appear under the rules of law applicable to the construction of contracts or otherwise that the title shall inure to another person, it does not debar the right of entry; and that the mere possibility that the title may so result — as in the case of an ordinary mortgage — is not sufficient to forfeit the claim. . . . The statute under consideration requires from a preemptor, in my opinion, in order to the defeat of his right of entry, a contract by force of which title to the land must vest in some other person than himself; and it must appear that such was his intention at the time of making it. If, on the contrary, the mortgage was a mere security for money loaned, and the contract does not necessarily divert the title from him, it' was not a contract or agreement within the meaning of section 2262.”
The secretary held that the purpose of the law was to prevent speculative entries. The effect of this decision was limited to the case under consideration and to future cases. Since that time the rulings of the department have uniformly been that a mortgage given in good faith, executed prior to final proof, in no manner violates the provisions of either the preemption or homestead laws. This change in the rulings of the interior department is referred to and commented on by the court in Wilcox v. John, 21 Colo. 367, 40 Pac. 880, 52 Am. St. Rep. 246, in the following language:
' “The rule then announced has, we think, been uniformly followed by the department since. It is founded upon sound reasons, and in practice it has not infrequently been of benefit to settlers in negotiating loans to carry them over periods of drought, or of business depression, and should be maintained if not inconsistent with the terms of the statute, as it is of the highest importance that the decisions of the courts in these matters should be in harmony with the rulings of the land department.
“The rule contended for by appellants, whereby a mortgage is held to be interdicted, is founded upon a somewhat forced construction of the words ‘grant’ and ‘conveyance’ as used in the statute. By the later, and, as we think, the better-considered cases, it is held that neither a mortgage nor a deed of trust is a grant or a conveyance within the prohibitory clause of the statute.” (Page 370.)
In this case the Colorado court referred to Brewster v. Madden, 15 Kan. 249, as one of the few cases holding to the contrary view. The supreme court of Montana in a well-considered case has held that a mortgage of a preemption prior to final proof is not a grant or conveyance within the provisions of the preemption act, expressly overruling the former decision of that court in Bass v. Buker, 6 Mont. 442, 12 Pac. 922. In the later case (Norris v. Heald, 12 Mont. 282, 29 Pac. 1121, 33 Am. St. Rep. 581) the two lines of cases were exhaustively reviewed, and the change in the rulings of the interior department since Brewster v. Madden was noted, and the reasoning of Secretary Teller in Larson v. Weisbecker, 1 Land Dec. Dept. Int. 409, approved. It was held, however, that “the purpose for which a sum of money may be borrowed becomes material to show that the mortgagor is acting in good faith, and not in collusion with the mortgagee to convey the title, and evade the provisions of the law.” (Page 291.)
The case of Stark et al. v. Duvall et al., 7 Okla. 213, 54 Pac. 453, is squarely in point. Plaintiffs in error in that case and in the case at bar are the same persons, the lien being for fruit-trees, and having been created in the same way. The land there was a homestead entry. The opinion’reviewed the changes in the rulings of the interior department, and referred to Brewster v. Madden and the other cases from this court, but refused to follow them, preferring to adopt the reasoning of the later cases as in accordance with the rulings of the general land department of the government. (See, also, the following cases: Spiess v. Neuberg and wife, 71 Wis. 279, 37 N. W. 417, 5 Am. St. Rep. 211; Celia Lang v. William H. Morey, 40 Minn. 396, 42 N. W. 88, 12 Am. St. Rep. 748; Fuller & Co. v. Hunt, 48 Iowa, 163; Howard v. Reckling, 31 Ore. 161, 49 Pac. 961; Dickerson v. Bridges, 147 Mo. 235, 48 S. W. 825; Weber v. Laidler, 26 Wash. 144, 66 Pac. 400, 90 Am. St. Rep. 726; Orr v. Ulyatt, 23 Nev. 134, 43 Pac. 916; Mudgett v. Dubuque and Sioux City R. R. Co., by Secretary Vilas, 8 Land Dec. Dept. Int. 243, 247; 26 A. & E. Encycl. of L. 411, 412.)
, A mortgage in this state is not an alienation, but a mere security for a debt; it creates a lien, but vests no title. (Chick and others v. Willetts, 2 Kan. 384; Kirkwood v. Koester, 11 Kan. 471; Hunt v. Bowman, 62 Kan. 448, 63 Pac. 747; Railway Co. v. Sharpless, 62 Kan. 841, 845, 62 Pac. 659.)
It thus appears that Brewster v. Madden, 15 Kan. 249, stands opposed to the current of recent authori ties. When it was decided the principal case upon which it relied had been discredited, and was no longer authority in the Minnesota court. It is itself no longer in harmony with the policy of the department of the government which has to do with public lands. When it’was decided it accorded with the rulings of the interior department; and it may be noted that when.it was followed in Mellison v. Allen, 30 Kan. 382, 2 Pac. 97, it was expressly stated that the contract declared to be void was against “the will and policy of the government.” This was true until the decision by Secretary Teller in Larson v. Weisbecker, 1 Land Dec. Dept. Int. 409, and it is apparent that the court’s attention was not directed to the then recent change in the rulings of the department, which had occurred the previous year.
In the case at bar the land was held under the homestead law, and something might be argued in favor of upholding these mortgage liens upon the theory that the restrictions in the provisions of the homestead law are less stringent than those in the preemption act. However, the courts as well as the interior department have recognized no distinction between mortgages executed upon land held under the preemption-law, when that Jaw was in force, and those held under the homestead law. The purpose of the requirements in both is held to be to prevent speculative entries, and the right of the claimant to execute a valid mortgage upon the land for any legitimate purpose is no longer doubted. There is much force in the suggestion that in cases of this kind the courts should hold in harmony with the policy and will of the government, as announced in the rulings of the land department; and in view of all that has been said we are constrained to hold that the doctrine announced in Brewster v. Madden, 15 Kan. 249, and followed in Mellison v. Allen, 30 Kan. 382, 2 Pac. 97, should be disapproved. To do so requires little or no disturbance of any vested rights, or rule of property.
It is contended that section 2296 of the' Revised Statutes of the United States, supra, which provides that no land acquired under the provisions of the act shall be liable for any debt contracted prior to the issuance of the patent, will prevent the lien of the mortgages from attaching. This contention has been decided squarely against defendants in error in Watson v. Voorhees, 14 Kan. 328, where it was held that congress did not intend by this act to place any restriction on the right of the owner voluntarily to encumber the land. It was there said that “the limitation was on the creditor, and not upon the debtor.” (See, also, Weber v. Laidler, 26 Wash. 144, 66 Pac. 400, 90 Am. St. Rep. 726.)
Since it appears, therefore, that the mortgages in no wise conflict with the provisions of the statute in relation to homestead entries, and that in this state they do not constitute an “alienation,” and can in no sense stand in the way of the claimant’s honest oath on final proof, they are clearly valid liens. If, however, it should be made to appear that a mortgage given under such circumstances was intended as a means of transferring the title in evasion of the provisions of the homestead act, it would be void; if made in good faith for any other purpose, it is valid.
The principles of after-acquired title and equitable estoppel apply with full force. Defendants in error at the time the liens were created had no title; but it is well settled that in such a case title acquired after the mortgage inures to the benefit of the mortgagee. (Watkins v. Houck, 44 Kan. 502, 24 Pac. 361; Orr v. Stewart, 67 Cal. 275, 7 Pac. 693; Spiess v. Neuberg and wife, 71 Wis. 279, 37 N. W. 417, 5 Am. St. Rep. 211; Rauch v. Dech, 116 Pa. St. 157, 9 Atl. 180, 2 Am. St. Rep. 598, and note; 2 Herm. Estopp. & Res Jud. § 895.)
We hold, therefore, that the mortgages were valid liens upon the land in question, and not in violation of the provisions of the homestead laws; that defendants in error are estopped from defeating the liens attempted to be created by them; and that their after-acquired title inured to the benefit of the mortgagees.
The cause is reversed, and remanded for further proceedings in accordance with these views.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This action originated in a proceeding to condemn the plaintiff’s lands. From the award of the commissioners he appealed to the district court, where he recovered a judgment for an amount which he claims was grossly inadequate, the result, as he now contends, of errors committed by that court in excluding testimony, in admitting incompetent testimony prejudicial to his rights, in giving misleading and erroneous instructions, and in submitting special questions to the jury upon a wrong theory adopted by the court as to the methods of proving the value of his land. The land condemned was a quarter-section of unimproved prairie land, except about fifteen or twenty acres which were, or had been, in cultivation. The condemnation was for a perpetual easement in the entire tract for a reservoir site. It is a part of a large body of land condemned by the Lake Koen Navigation, Reservoir and Irrigation' Company, which it was intended to submerge. There was no evidence that plaintiff’s land had, or is ever likely to have, any value other than its surface value. In such cases the basis of the owner’s damages is the value of the land condemned. (K. C. W. & N. W. Rld. Co. v. Fisher, 49 Kan. 17, 30 Pac. 111; Cohen v. St. L. Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242; C. K. & W. Rld. Co. v. Parsons, 51 Kan. 408, 32 Pac. 1083; Hollingsworth et al. v. The Des Moines & St. Louis R’y Co., 63 Iowa, 443, 19 N. W. 325; L. R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51; Spring Valley W. W. v. Drinkhouse, 92 Cal. 528, 28 Pac. 681; Railway v. Combs, 51 Ark. 324, 11 S. W. 418; Cooley’s Const. Lim., 7th ed., 819; Giesy v. C. W. & Z. Railroad Co., 4 Ohio St. 308; Robb v. Maysville & Mt. Sterling Turnpike Road Company, 60 Ky. 117.)
Where an entire tract of land is appropriated, and there is no evidence that it has any value other than its surface value, the fee, which remains in the owner, has no value that can be estimated; consequently, such item should not be considered in determining the amount of damage sustained by the owner. The basis of his damages is the same as if the proceedings had devested him of the fee. (Cummins v. The Des Moines & St. Louis R’y Co., 63 Iowa, 397, 19 N. W. 268; Clayton v. The Chicago, Iowa & Dakota R’y Co., 67 Iowa, 238, 25 N. W. 150.)
With this understanding of the law controlling condemnation proceedings where the condemnation is for a perpetual easement and of an entire tract of land, with no value but its surface value, we will consider the assignments of error. The plaintiff, in attempting to prove the market value of the land at the time it was condemned, caused several witnesses to testify to that value, without any objections from the defendant as to their qualifications. Afterward, however, upon the motion of the defendant, the court withdrew all the testimony given by these witnesses, upon the ground that they had not shown themselves competent to speak on the question of market value. This is assigned as error. An examination of the testimony of these witnesses satisfies us that none of them qualified to testify to the market value.
The second assignment is the admissibility of the evidence of M. B. Fitts as to what was a fair and reasonable value per acre of the land at the date of its condemnation. This witness qualified himself to give his opinion. Perhaps it should not have been given great weight by the jury because of his slight acquaintance with the land, but there was no error in permitting him to'give his opinion.
' Error is also predicated on the giving of the eighth instruction, which reads:
“The jury are further instructed that the sale of a piece of real estate for a certain sum and at a certain time does not necessarily establish or prove that the value of the real estate was the price paid for it in such sale. Circumstances might be such that the owner desired to sell the same and was willing to take less than its real yalue, and on the other hand the purchaser might for certain reasons be willing to pay more than the real value of the property, but I instruct you that there is no legal presumption, in the absence of any proof, that an owner of real estate, when he makes a sale of the same, sells it for less than it is reasonably worth, nor is there a presumption that the purchaser of real estate in making his purchase is giving more than it is reasonably worth; and the fact, if it is a fact, that the real estate in question was sold for a given price at a given time, is a circumstance which the jury may very properly consider in determining what the value of the real estate was at such time, if you can determine it from the evidence in the case.”
The defendant introduced testimony at the trial that two years prior to the condemnation the plaintiff had purchased the land for $480. It also offered testimony tending to show that this particular land had increased in value $75 between the date of such purchase and the condemnation. The instruction was given upon the theory that the jury might accept the purchase-price as a basis of estimating the value of the land, and that this amount, plus the increase, would be a proper method of determining its present value. If such a method of proving value can ever be adopted in any case, which is doubtful, it was error to adopt it in this case. A number of witnesses offered by both parties qualified under the well-established rules of evidence to testify to the value of the land at ' the time of its appropriation, and gave their opinions. There was no lack of competent evidence on this question on either side. There was no occasion, therefore, for the court to introduce a new and unprecedented method of ascertaining values. The vice of this instruction is made more apparent upon an examination of the special questions submitted to the jury, and their answers thereto, as follow:
“Ques. How much did the plaintiff pay for the land when he bought it, on thé 30th day of March, 1898? Ans. $480.
. “Q. How much do you find the value of the land in controversy to have been on the 4th day of June, 1900 ? A. $555.
“Q. What do you allow the plaintiff per acre for his land? A. $3.46% per acre.
“Q. How much did the land in controversy increase in value from March 30, 1898, to June 4, 1900? If you find that there was a material increase in the value between these periods, then state what caused the increase in value. A. $75.
“Q. What crops were produced upon the land during the year 1900? A. Hay crop.
“Q. What do you find the market value of the land in question to have been on June 4, 1900 ? A. $555.”
From these questions and answers it is apparent that the jury accepted the method indicated by the instruction, and reached their,conclusion of value from the purchase-price, plus the, increase between the date of the alleged purchase and the condemnation, and they accepted the purchase-price as this basis in the absence of any evidence that it was the fair and reasonable value of the land at the time. In this they followed the instruction “that there is no legal presumption, in the absence of any proof, that an owner of real estate, when he makes a sale of the same, , sells it for less than it is reasonably worth, nor is there a presumption that the purchaser of real estate in making his purchase is giving more than it is reasonably worth; and the fact, if it is a fact, that the real estate in question was sold for a given price at a given time is a circumstance which the jury may very properly consider in determining what the value of the real estate was at such time.”
Following this instruction, and in answer to the special questions submitted for that purpose, the- jury found that plaintiff paid $480 for the land two years before the condemnation, that it had increased $75 in value, and that the sum of these was the value of the land when condemned. The price paid for the land two years prior to the condemnation was not a proper basis upon which to determine the present value of the land. Such a method introduced two collateral issues: (1) Was the price paid the fair and reasonable value of the land at the time? This was a question of fact, and could not be established by legal presumptions. (2) What was! its increase or decrease in value for the period intervening between the purchase and the condemnation? Either of these questions was as difficult of proof as the present value of the land. We conclude, therefore, that the court erred in giving this instruction, and also in submitting the special questions quoted to the jury.
The remaining assignment of error that we find it necessary to comment upon is in giving the following instruction:
“The court instructs the jury that the defendant corporation does not by its proceedings appropriating the plaintiff’s land, or by the award in this case, acquire the fee or the absolute title to the lands appropriated. What it does acquire is the right to use and occupy the land for the purposes for which it was appropriated, and the owner of the land has at all times the right to possess and use the land for any purpose not inconsistent with the purpose for which it was appropriated; and in case of the abandonment of the use of the land by the defendant for the purposes for which it was appropriated the entire possession and title to said land revert to the plaintiff.”
This instruction is a correct statement of the law, but it has no application to any fact submitted to the jury, or to any fact that could have .been properly submitted to them in this case, and had a tendency to confuse them in arriving at a correct verdict. The only question of fact for their consideration was the value of the land condemned, and this should have been determined the same as if the fee had passed. This simple question should have been submitted without reference to where the fee lodged. A jury understand that every instruction given is intended to assist them in deciding some question of fact submitted for their determination. It is common knowledge that a fee in real estate is a thing of value, and, when the court instructed the jury that the company by its condemnation proceeding only acquired an easement in the land and that the plaintiff still retained the fee, naturally they must have attached value to the fee, and by intelligent reasoning and an innate desire to do justice must have concluded that plaintiff ought not to recover for a thing of value which he retained.
The judgment is reversed, and the cause remanded.
Mason, Smith, Porter, Graves, JJ., concurring. | [
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The opinion of the court was delivered by
MASON, J.:
W. H. Bigger sued Kate and Nannie Young to recover the possession of a tract of land, and for mesne profits. The plaintiff’s petition was general in form, and claimed a complete title. The answer included a general denial, coupled with a statement that the defendants owned an undivided nine-twentieths of the land and had no information as to who owned the remaining interest. The plaintiff recovered a judgment for the possession of eleven-twentieths of the tract, for $132 as his share of the rental valué for twenty months, for $55.15 on account of taxes paid on the entire property, and for costs. The defendant's prosecute error.
Plaintiffs in error contend that the form of the plaintiff’s petition was fatal to his recovery in this action because of the requirement of section 597 of the civil code (Gen. Stat. 1901, § 5084), which reads:
“In an action by a tenant in common of real property against a cotenant, the plaintiff must, in addition to what is required in section 595, state in his petition that the defendant either denied the plaintiff’s right, or did some act amounting to- such denial.”
.The contention is not well founded, for the reason that the plaintiff did not sue as a tenant in common, but as one having complete title to the property. That his evidence failed to support his claim in its entirety did not affect his right to recover the interest to which he established his title. (Gatton v. Tolley, 22 Kan. 678.) The defendants, by including in their answer a general denial, made an issue upon the question whether the plaintiff had a right to any part of the property, and, the proof being against them, they were properly taxed with the costs. The fact that their pleading only claimed title for themselves to nine-twentieths of the land, and recited that they had no information concerning the ownership of the remaining interest, has no bearing on the matter. Their denial of plaintiff’s claim was no less effective because they avowed ignorance of the real fact, or because they asserted only a partial title for themselves. Moreover, there was some evidence tending to show that before the bringing of the action they had asserted an exclusive right of possession as against the plaintiff.
The evidence showed that in 1882 W. E. Winner. having then a full title to the land, conveyed an undivided eleven-twentieths to E. H. Allen. A tax deed to the remaining nine-twentieths, the validity of which is not assailed, was issued to Robert Young in 1895, and'the title so created passed to the defendants in 1897. On October 6, 1903, Winner executed a warranty deed to the entire tract to the plaintiff, but the instrument passed nothing, for the grantor had already conveyed away eleven-twentieths of his interest and the tax deed had extinguished his title to the remainder. On October 20, 1903, Allen quitclaimed his eleven-twentieths to the plaintiff. On November 18, 1902, a tax deed for the whole property was issued to B. G. Horton, who .quitclaimed to the plaintiff on November 4, 1903. This deed was held to be invalid as a conveyance of title. It results from this evidence that at the time the action was brought the plaintiff owned eleven-twentieths of the land and the defendants nine-twentieths. The court so found, and the correctness of the finding is not challenged. The only remaining matters of controversy relate to the money awards.
The action was brought December 3, 1903. The trial was completed and the cause submitted to the court July 18, 1904. The decision was announced and judgment rendered November 19, 1904. The court found that the plaintiff was entitled to recover $132 as his proportionate share of the rent for twenty months. This finding seems to be based upon evidence of the reasonable rental value of the property. The plaintiffs in error claim that they were tenants in common who had not ousted their cotenant, and were only liable for a share of the rents actually received. In the brief of the defendant in error it is said:
“We recognize the rule .that a party can only be liable for the amount of rents actually received, 'if that amount be shown. ... It is not disputed that Young was in possession and rented and received the rent.”
We have made no examination of .the evidence to determine whether the case is one in which the defendants might be chargeable with the reasonable rental value of the property irrespective of the. amount actually ' received. We interpret, the language just quoted as an admission that it is not. Our attention is not called to any part of the evidence where it is shown that the defendants received any rent whatever. In such search of the record as we have been able to.make we find none, and therefore conclude that upon the plaintiff’s own theory the finding complained of was erroneous. The finding also appears to lack support from another standpoint. No explanation is offered of the period for which a recovery of rents was allowed. Plaintiff’s title accrued, as has been stated, October 20, 1,903. The judgment was rendered thirteen months later. The tax deed under which the plaintiff claimed, but v/hich was held to convey no title, was issued twenty months before the time the cause was submitted, and it may be that through some inadvertence, such as confusing the date of the tax deed with that of Allen’s deed to the plaintiff, this period was assumed to be that for which the defendants should be held accountable for rents.
The court allowed the plaintiff a lien upon the defendants’ interest in the property for a proportionate amount of the taxes, the payment of which was evidenced by the tax deed that was held.to be invalid. The defendants complain of this on the ground that inasmuch as the plaintiff was a part owner of the property when Horton conveyed to him he was disqualified to acquire a tax title, that his attempted purchase of one operated ás a redemption, and that he cannot take advantage of the statute requiring the reimbursement of the holder of a tax deed which is set aside on account of defects. There was evidence, however, that the plaintiff really bought the tax title before he had any interest in the property, although the deed in consummation. of the purchase was not made until after he recéived the deed from Allen. It will not be necessary to determine the questions thus suggested. The defendants concede that the plaintiff was entitled to a lien on their interest in the land as for taxes paid, but say that he could not enforce it in this action because he had not pleaded a claim for contribution. We think no possible prejudice resulted to the defendants from the manner in which this matter was brought to the attention of the court, and that no error was commited in respect of the allowance made to the plaintiff for taxes paid.
The final error assigned is based upon the refusal of the court to allow the defendants to charge against the plaintiff a part of the taxes which they had paid upon the entire property before he acquired any interest in it. The taxes paid by the defendants upon the part of the property owned by Allen gave them a lien upon it, as against him. (17 A. & E. Encycl. of L. 686.) Bigger, when- he bought from Allen, received only a quitclaim deed. He therefore stood in the shoes of the grantor. He acquired no higher right than Allen had had, and took the property charged with this lien. There is no showing that when these taxes accrued or were paid the defendants had ousted their cotenants or were in the receipt of any income from the property. We therefore think the court erred in not allowing the defendants credit for the taxes they had paid in excess of their due proportion. The judgment is reversed, and a new trial ordered.
•All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Two errors are alleged in addition to the denying of a motion for a new trial: First, the refusal to give instruction No. 10 asked by the defendant, which reads as follows:
“The defendant is entitled to the separate judgment of each and every one of the twelve jurors, and it is the duty of each juror to refuse to concur in a verdict of guilty unless he is satisfied in his own mind that each and every fact necessary to establish the guilt of defendant has been established by the evidence beyond a reasonable doubt.”
This instruction was probably intended to be framed after an instruction approved in The State v. Witt, 34 Kan. 488, 495, 8 Pac. 769, which reads-:
“If any one of the jury, after having considered all the evidence in this case, and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defendant’s guilt, or, after such consideration and consultation, should entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the alleged homicide, then the jury cannot find the defendant guilty.”
It will be observed, however, that a material element in the individual responsibility resting upon each juror is omitted from the instruction requested, and it is therefore erroneous. The verdict of a jury is the combined judgment of twelve men who have all heard the same evidence, each one of whom may have received some impression therefrom differing from that of all his fellows, and is not the separate, independent act of twelve men — that is, twelve independent verdicts. After hearing the evidence and the arguments of counsel thereon,- pro and con, in which arguments the evidence is usually sought to be harmonized with the conclusion of the guilt of the defendant by the attorneys for the state and with the conclusion of the innocence of the defendant by the attorneys for the defendant, the jurymen are segregated to permit them to consult and compare views, for the purpose, of course, of coming to a common conclusion that will satisfy the judgment of each juror. If such common conclusion can be arrived at it should be embodied in a verdict. If it cannot be arrived at there should be a disagreement. Witnesses may feel an interest or a sympathy for one side or the other, and counsel are presumed to use all honorable efforts in favor of the side for which they appear. • The deliberations, therefore, of the jury, in which all the evidence should be considered, as well as all of the different theories of counsel and the different impressions of the individual jurors, are of the utmost importance; and any instruction as to the individual responsibility of a juror which omits the important matter of consultation is clearly erroneous. The in struction asked in this case should have been, as it was, refused.
As to the second error complained of, it is the province of counsel in argument to apply the instructions of the court to the facts as shown by the evidence, and then to aid the jury in so doing. In the argument of the county attorney in this case he told the jury that the term “reasonable doubt” in the instructions of the court did not mean a mere imaginary or captious doubt. Defendant’s counsel thereupon objected, and the court remarked that while the court had not used those words,in its instructions the definition of “reasonable doubt” was probably correct. This was no new instruction, and wa's not therefore required to be written. It was simply an elaboration of words. It was an illustration of what “reasonable” means — not imaginary, not captious. In this there was no error.
Counsel for appellant makes a strong and vigorous argument in support of his contention that the court should have set aside the verdict of the jury and granted a new trial on the ground that the verdict is contrary to the evidence. It is contrary to much of the evidence, and is in accord with much of the evidence. If the jury had believed the evidence upon which the attorney for the appellant places emphasis, and had disbelieved the evidence for the state, their verdict should have been different. It is the especial duty of the jury to determine the weight and credibility of the evidence, and when they have done so, and the court has approved the verdict, this court will not reverse the result on this ground, providing, of course, there is evidence which, if credible, sustains the conclusion reached.
■The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
About March 28, 1900, David Limb, a. boy about sixteen years of age, was run over and killed by. the cars of the defendant in error, at the town of Scammon, in Cherokee county, Kansas. Joseph Limb and Annie Limb, the parents of the deceased, brought, this action, August 3, 1900, in the district court of that, county, to recover damages suffered by them on account of the loss of their son. At the trial a demurrer to the evidence was sustained, and a judgment entered for the defendant: The plaintiffs excepted, and bring the case here, assigning this order and judgment of the district court as error.
The facts may be briefly stated, as follow: Scammon is a small mining village located on both sides of the defendant’s railroad. Coal-mines are on the east side of the track. Many of the miners live on the west side thereof. The miners, in going to and from their- work, and school children and other citizens have for many years crossed over the railroad-tracks and right of way freely and promiscuously, resulting in paths having become worn in many places. No objection had been made by the defendant to this use of its .grounds.
David Limb, the deceased, lived in the west part of town, and had been at work in the mines about four years prior to his death, during which time he passed -over and across the railroad-tracks and grounds at his convenience. The depot was situated between the main track on the west and the switch, or house-track, on the east. These two tracks came together about 700 feet south of the depot.
About twenty feet south of the depot platform was a crossing over the main track. Between the house- and main tracks was a traveled pathway extending from a street, which crossed the railroad south of the switch, and ran north to this crossing near the depot. It was convenient for the miners who lived west of the railroad to come from their work up the traveled path between the two ‘tracks to the crossing near the depot and then cross over the main traclj. There was nothing, however, to prevent them from crossing at any place. About two o’clock in the afternoon of the day of the injury David Limb walked up from the south between the two tracks, near the main track, apparently intending to cross at the crossing near the depot. While so traveling a freight-train came in from the south and passed him. While the train was passing the caboose and a box car were detached from the moving train, but followed after by reason of the momentum acquired before they were detached. The front end of the train passed north beyond the depot. When it passed the deceased the caboose and box car were a short distance behind him, moving slowly north. As soon as the main part of the train.passed the deceased apparently assumed that it was the entire train and stepped upon the end of the ties and followed it without noticing the cars coming behind him. He was soon overtaken by the caboose and box car and run over. The deceased did not look behind him at any time. He was apparently unconcerned and indifferent, as if wholly unconscious of danger.
It was unnecessary for him to go upon the ties.. The walking was more convenient on the ground where he had been while the train was passing. He was not attempting to cross the track. He was not between the rails. He was going up the track toward the crossing, and was on the end of the ties just outside of the east rail. He was an intelligent young man, in possession of all of his faculties. He had lived there for years and had been about the depot and grounds daily, and must have been familiar with the movement and management of freight-trains and the methods of switching. A brakeman was on the rear car of the train going north, but no one was on the box car behind the deceased. None of the trainmen saw the deceased after he stepped on the ties and before he was injured.
It is claimed that the deceased had a right to be upon the track and grounds of the defendant by reason of the long-continued* use made thereof by the public, without objection, and that the defendant was guilty of negligence in not having some person on the box car to warn people who might be on the track. In the view we have taken of this case it is unnecessary to consider what rights the deceased and others acquired by being permitted to cross and recross the railroad at this place. The deceased was not using the track for crossing purposes. He was walking on the ties along the main track. Whatever use in crossing the tracks had been acquiesced in by the company would not give one the right to travel along the track, and the deceased in so doing was without right and was a trespasser.
Under the former decisions of this court the deceased was clearly guilty of contributory negligence which bars a recovery. The deceased was not upon the premises of the defendant for any purpose in which it had an interest. He was there solely for his own convenience. It was in the early afternoon, when there was nothing to obscure the vision. When the train was passing the deceased he was walking on the ground in a place of safety, going in the direction of a crossing. Had he continued in his course, as would naturally be expected, he would not have been injured. The rear car on that part of the train which went north with the engine was an empty coal-car. The deceased saw it. He must have known that it was not the rear end of a freight-train. If he had used his ordinary senses he would have known by the absence of the caboose that the train had been cut in two. His conduct was that of extreme indifference and recklessness. He neither looked nor listened; he took no precaution whatever.
It has been frequently decided by this court' that persons may not recklessly place themselves in a place of danger and then recover damages because of injuries received thereby. (Zirkle v. Railway Co., 67 Kan. 77, 72 Pac. 539; Railway Co. v. Schwindt, 67 Kan. 8, 72 Pac. 537; Libbey v. Railway Co., 69 Kan. 869, 77 Pac. 541; Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451; Railroad Co. v. McMinn, 72 Kan. 681, 84 Pac. 134; Hoopes v. Railway Co., 72 Kan. 422, 83 Pac. 987.) The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
This action was brought by the defendant in error against T. B. Sweet, George M. Noble, and E. M, Shelden, president, vice-president, and treasurer, respectively, of the Trust Company of America, with the purpose of holding them personally responsible for the conversion of the proceeds of a collection made by the corporation of which they were the principal officers. Judgment was recovered against Sweet alone, and he brings the case here.
This case has been here before. It was reported in 69 Kan. 641, 77 Pac. 538. The law relating to the personal liability of the active managing officers of a trust company for the misappropriation and conversion of trust funds by the company was then considered by this court, and the ruling made was intended to apply specially to the facts of this case, which were practically the same then as now. The scope of that decision will be better understood by a brief reference to the facts involved.
In June, 1898, the trust company had the note and mortgage in question for collection, and on the second of that month the treasurer of the company, Shelden, wrote to the plaintiff for proper releases, as the collection was then about to be made. The letter closed with the following words: “Return it to us with all papers and we will make the collection and remit.” On June 13, 1898,-this request was answered by the following letter: “I enclose herewith the release asked for in the J. E. Weaver loan, and bond and mortgage, due June 1, for collection and remittance.” Upon receipt of this Shelden wrote as follows: “We have yours of the 13th instant, enclosing the J. E. Weaver papers, due June 1, for collection.” The collection was made, but instead of remitting the proceeds as directed the company, without giving notice that the collection had been made, credited the account of plaintiff therewith, and retained the same as a part of its own funds. In September following the assets of the trust company, including the proceeds of this collection, passed into the hands of a receiver.
It is contended that the retention of this fund by the trust company amounted to a conversion thereof, for which the officers of the company are personally liable. It is claimed by the officers sought to be charged with this conversion that these two corporations had been doing business together for many years; that it had been the uniform usage in the conduct of such business, where there were no directions otherwise, for the trust company, when it made a collection, to notify the plaintiff thereof, and then reinvest or remit as might be directed; that the defendants had overlooked the foregoing correspondence concerning the remittance of this collection, and had waited for instructions; that this want of diligence and omission to obey the instructions of the plaintiff were not the result of any bad faith or wrongful intent, but a mere indifference and oversight; and that the whole transaction was the work of subordinate officers or employees in the office, of which the defendants had no actual notice.
The ease when here before was reversed on account of an instruction given by the district court, which reads:
“If the defendants were, respectively, president, vice-president and treasurer of the Trust Company of America, a corporation, and the principal place of business of said company was in the city of Topeka, and the defendants had personal charge and supervision of the office and the business affairs of said company, _ directing and managing its affairs, receiving and disbursing moneys that came into its possession, then the defendants would be held to have knowledge of all the business affairs of the corporation which came under their personal observation and knowledge, of all the business affairs of the corporation which they might have known by the exercise of ordinary diligence in the conduct of the business affairs of the company.” (69 Kan. 641, 649, 77 Pac. 538.)
The objectionable feature of this instruction is that it made the officers of the company personally liable for the misappropriation of trust funds by their company, whether they had actual knowledge thereof or not, if by the use of ordinary diligence they might have known. This court held substantially that managing officers of a corporation cannot be held personally liable for the conversion of funds to the use of the corporation by subordinate officers,.unless the transaction constituting such conversion was actually known to and acquiesced in by such managing officers. In that case Mr. Justice Atkinson used the following language' in the opinion:
“But where there were sent to a corporation a note and mortgage, with instructions to collect the same and remit, and the money was collected but not remitted, a recovery may be had by the owner of the note and mortgage against the executive officers and managing agents having the active management, charge and control of its affairs for the conversion of the money by them for the use of the corporation; and a recovery may be had against them for such conversion of the money by subordinates with the knowledge and acquiescence of such officers and managing agents. . . . It is a well-known fact that much of the business of this day and age is transacted by corporations, many of them employing numerous persons in the various departments of the work in which they are engaged. Large amounts of money and property are daily handled by the employees of such corporations. The instruction complained of casts upon the executive officers, and managing agents of such corporations an unreasonable degree of liability. It would be a great hardship to hold them liable for acts of misappropriation of money or property by subordinates of which they had no actual knowledge. The rule of personal liability of such officers for the misappropriation by subordinates adopted by the trial court is too far-reaching in its scope.” (69 Kan. 641, 649, 77 Pac. 538.)
At the last trial of this case in the district court the plaintiff in error requested the court to give two instructions which read:.
“ (2) The collection of the money by the Trust Company of America was rightful, and said company was authorized to make such collection. It was the duty of said Trust Company of America'to remit said money when called for by the plaintiff, and for failure so to do it could be held liable in a proper action; but neither of the defendants is individually liable to the plaintiff for the mere failure or neglect to remit said money.”
“(5) In order to render either one of the defendants liable in this action the burden of proof is upon the plaintiff to show affirmatively an actual personal knowledge of some request or direction by or from the plaintiff to remit the money in question and some actual intent to convert said money to the use and benefit of the Trust Company of America.”
The court refused this request and gave the following:
“ (7) Where the owner of a note and mortgage forwards the same to a person for collection, with instructions that the money collected thereon shall be remitted upon collection, then I instruct you that the money so collected, when in the hands of the person who collected it, constitutes a trust fund and belongs to the owner of the note and mortgage, and the person so collecting it is not authorized to appropriate the money to his own use.”
“(13) . . . That the Trust Company of America appropriated the money so collected to the use of said company without the knowledge or consent of the plaintiff; that defendants had knowledge that the money so collected was a trust fund, and of its misappropriation ; that the defendants, or either of them, participated in the misappropriation of the money, or knowingly permitted subordinates in the office to misapproprate the money to the Trust Company of America, and acquiesced in such misappropriation, then I instruct you that the defendants, or such of them as participated in the misappropriation of the money or knowingly acquiesced in the misappropriation of the money by subordinate employees, would be liable in thik action.”
In these instructions the court denominated the fund in question a “trust fund,” and stated the elements of which it is composed, one of them being that the collection when forwarded was accompanied with directions . to remit. As to the knowledge necessary to make the defendants liable the court said, in substance, that they must have known that the money collected was a “trust fund,” and misappropriated to the use of the trust company. If they possessed this knowledge ■they would necessarily know of the directions to- remit, and that, a conversion was intended. We think the instructions given cover all that was necessary to be stated to the jury.
■ In the argument it was claimed that by the refusal to give the instructions requested the court failed to present to the jury the question of conversion with intent to defraud, and apparently this is the real objection made to the court’s instructions. We do not think this idea is necessarily conveyed by the language used in the instructions requested, nor do we think that a fraudulent intent is an essential element of this case. When the managing agents of a trust company mingle money collected for another with the current funds of the company, for use in its business, in violation of the express directions of the owner to remit, or knowingly permit their subordinates so to do, and the fund is thereby lost, such agents will be personally liable to the owner therefor, although at the time of such misappropriation it was the intent of such managing agents to account for and return the money to the owner upon demand.
We think that this court in its former decision in this case touched, the limit of liberality in favor of trust-company officers. The rapidly increasing volume ■of important business transacted between persons widely separated from each other, wherein trust companies and similar agencies are necessarily employed, demands that the officers of such agencies be held to a strict performance of the duties confided to them, and we do not wish further to limit the rule of their responsibility already adopted.
The plaintiff in error makes complaint that the trial ■court admitted a letter written by defendant Noble to A. W. Ferrin, treasurer of the plaintiff. The letter was written after the assets of the trust company had passed into the possession óf a receiver. When the letter was offered Sweet, Noble and Shelden were co-defendants. The letter was admissible against the writer, Noble, but not against Sweet, his codefendant. Proper objection was made by Sweet to its admission as incompetent and not binding on him, but the objection was overruled. As the evidence was proper against Noble, the court could not have sustained the objection and kept the evidence from being read to the jury. The most the court could have done would have been to instruct the jury then, or later, that it could only be considered as to Noble. Such an instruction would have been proper, but it was not given. No request was made for such an instruction. The letter was properly admitted in the case. If any error was committed it was because of the failure of the court to limit its application. Such an instruction, however, is not of a general nature, such as the law requires the court to give without request. As no request was made we cannot say that the omission was material error. In the absence of such a request at the close of the evidence, a court may assume that the objection has been waived.
Another objection made by the plaintiff in error is that the verdict against him is not sustained by the evidence. After a careful examination of the evidence we think it not only justified the verdict against Sweet, but would have sustained one against his codefendants. Sweet was president of the company; a large part of its business passed through his hands and was brought to his personal attention. He had ample opportunity to know about the transaction in question. It is true that this was one of a mass of items presented to him, and might have failed to make any distinct impression upon his mind. Whether it did or not was a proper question for the jury. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The striking from the files of an amended petition is the subject*-of the complaint in this proceeding. The plaintiff brought a suit seeking to charge what is known as the DeBoissiere estate, which had been acquired by the defendants, with a lien for an indebtedness of DeBoissiere to one Sears which had been assumed and paid by the plaintiff. The defendants demurred to the petition on four grounds, viz.: (1) That the plaintiff did not have legal capacity to sue; (2) that there was a defect of parties defendant; (3) that several causes of action were improperly joined; (4) that the petition did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, but whether upon one or all of the grounds was not stated. The plaintiff did not stand on the ruling, but asked and obtained' leave to file an amended petition. In due time an amended petition was filed, containing two counts, but the second count was dismissed by plaintiff and the first was stricken out by the court on the ground that it contained the same matters and things as the original petition, to which a demurrer had been sustained.
• There is reason to complain of this ruling. A motion to strike from the files is not an appropriate test of the sufficiency of a pleading, or a proper method of ending a bona fide controversy. It may be used to get rid of a frivolous amendment or pleading, but the amended petition in question is hardly open to that objection. If an amended pleading were a mere repetition of the original one the court might assume that the amendment was not made in good faith and strike it from the files. The amendment in question, however, is not of that character, and does not indicate a purpose on the part of the pleader to trifle with the court. Whatever may have been the defect found in the original petition, it was one which the court determined could be reme died by amendment, as it appears that leave was granted to amend.
Under the code great liberality is allowed in the amending of pleadings, the only express limitations being that the amendment shall not change substantially ,the claim or defense of the party and shall be in furtherance of justice. (Code, § 139; Gen. Stat. 1901, § 4573.) Courts may allow corrections of mistakes in the names of the parties, as well as of mistakes of every other kind, and parties may be permitted to add pertinent facts and insert allegations to make clear that which has not been definitely stated, or which will elucidate, strengthen or explain the averments of the original pleading. •
Now, while many of the allegations of the original and amended petitions are substantially similar, changes of considerable consequence were in fact made. In respect to the lien sought to be charged on the property the original petition avers that it was based on an obligation of DeBoissiere to Sears, without stating its nature, or how it arose, while in the amended petition it is stated that the indebtedness was for services performed by Sears in the management of the DeBoissiere estate, and for moneys expended by him on the real estate for its betterment and improvement. How far the statement that the moneys expended by Sears were for the betterment of the real estate may have gone toward stating a cause of action cannot be determined on this motion, but it appears to be a substantial change in the pleading, and evidently one the pleader thought to be material and to have some bearing on the claim which he was making. Then in the' original pleading the respective rights of DeBoissiere and Sears are said to have arisen on what is called an “arrangement,” while in the amended petition it is designated as an “agreement.” In the first Sears is alleged to have been in possession of the land with the consent of DeBoissiere, while in the second it is stated that there was an agreement which provided that Sears should have the possession and management of the estate and an interest in the rents and the profits thereof in payment of his services and the moneys expended by him; that the sums due on account of the services and expenditures made should constitute a lien on the land, and, if not repaid on the death of DeBoissiere, the land should be devised to Sears in satisfaction of his claim; and that in the meantime Sears should remain in possession of the real estate for the security of the sum due him, and for the enforcement of his lien thereon.
Some general statements and conclusions of fact were thus elaborated and made more explicit, and, as is seen, some additional facts were set forth. It is true, as defendants argue, that courts will not permit the filing of pleadings which are mere repetitions of former ones held defective on demurrer. To file such pleadings would evidence such a lack of respect for judicial authority and would so interfere with the orderly administration of justice as to warrant a court in going to the extent of striking a pleading from the files; but where, as here, the amended pleading contains some additional facts, as well as fuller and more explicit statements of those set forth in the original pleading, and where the amendments are apparently made in an honest effort to state a cause of action and meet objections previously made to the original pleading, a motion to strike from the files the amended one will not lie. The question involved was not the sufficiency of the original pleading, nor the sufficiency of the amended pleading, but whether there was such a sameness in the pleadings that the latter was not entitled to be treated as an amended petition.
Our conclusion is that the order striking the amended petition from the files and dismissing the suit must be reversed, and the cause remanded for further proceedings. It is so ordered.
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The opinion of the court was delivered by
Porter, J.:
Plaintiff in error brought this suit to foreclose a mortgage securing two notes, each for $500. Defendants claimed that the indebtedness amounted to only $500, and that the second note was without consideration. The case was tried by the court without a jury, and, from a judgment in favor of defendants as to the second note, plaintiff brings this proceeding in error.
Plaintiff negotiated a loan of $10,000 for ten years on defendants’ farm, and claimed that these notes were given as a commission of one per cent, that had been agreed upon. Defendants claimed that the commission agreed upon was one-half of one per cent., or $500, and that they were induced to sign the two notes by false and fraudulent representations of plaintiff’s agents. It appears from the evidence that three sets of papers were made out and executed, the first and second being destroyed on account of errors. Defendant B. F. Wallace testified that the agents of plaintiff came to his farm during harvest, when he was busily engaged with a number of men in his field, and informed him that it was necessary to execute new papers which they had prepared; that the notary they had brought with them was sick at his house, and they urged him to attend to the matter at once; that he quit work and went to the house, where he and his wife signed the papers, including these commission notes, without examination, relying upon the representations of the agents that the papers were all exactly the same as the ones previously executed, and believing that these notes were each for $250, which he claims was the amount of the former commission notes. It was stated in the answer that defendants signed the notes upon the representations of the agents of plaintiff that the notes were exactly alike the former notes in amounts; that these representations were false and fraudulent, and were made for the purpose' of inducing defendants to sign them; and that the representations were relied upon by defendants as true.
The first complaint is that there was error in the admission of parol testimony to contradict the terms of a written contract. In the cases cited by plaintiff in error from this court it was expressly stated that no fraud or misrepresentation was relied upon. It is always competent to show by parol evidence that a contract was obtained by fraud, where fraud or misrepresentation is pleaded as a defense. The rule that oral representations and inducements preceding or contemporaneous with the agreement are merged in the writing is subject to the exception that if the representations amount to fraud which avoids the written contract they are not merged therein, and parol evidence is admissible to show the fraud. (Brook v. Teague, 52 Kan. 119, 123, 34 Pac. 347; McKinney v. Herrick, 66 Iowa, 414, 23 N. W. 767; Greenl. Ev., 16th ed., § 284; Browne, Parol Ev. § 79.) In Brook v. Teague, supra, it was said: “Parol evidence is admissible as between the original parties to a negotiable note to show fraud, and so as to third parties with notice or without having paid value.” Between the original parties to a note or bill the consideration may always be inquired into. (Blood v. Northup and Chick, 1 Kan. 28; Miller v. Brumbaugh, 7 Kan. 343; Dodge v. Oatis, 27 Kan. 762; 4 A. & E. Encycl. of L. 196.) There was no error, therefore, in admitting parol testimony to show the actual consideration and for the purpose of proving the alleged misrepresentation and fraud.
It is argued that as defendants were able to read it was negligence for them to sign a note without knowing its contents, and that by their negligence they are es- topped. The case of Burroughs v. Pacific Guano Co., 81 Ala. 255, 258, 1 South. 212, is in point. The court there said:
- “Where a person signs an instrument without reading it, or if he cannot read, without asking to have it read to him, the legal effect of the signature cannot be avoided by showing his ignorance of its contents, in the absence of some fraud, deceit, or misrepresentation having been practiced upon him. But the rule is otherwise, and the instrument will be held void, where its execution is obtained by a misrepresentation of its . contents — the party signing a paper which he did not know he was signing, and did not really intend to sign. It is immaterial, in the latter aspect of the case, that the party signing had an opportunity to read the paper, for he may have been prevented from doing so by the very fact that he trusted to the truth of the representation made by the other party with whom he was dealing.” (See, also, Buchanan v. Gibbs, 26 Kan. 277.)
The only other errors complained .of relate to the admission of certain testimony which it is claimed was not relevant. A wider range with reference to testimony, is permissible where a case is tried by the court; and the testimony with reference to the customary rate of interest at the time of the transaction could not have prejudiced plaintiff.
While there was a sharp - conflict in the testimony as to the facts upon which the fraud and misrepresentations were predicated, there was sufficient evidence to sustain the finding of the court that the second note was without consideration. The court, having heard and seen the witnesses, was better able than we are to determine the question of fraud; and, having upon sufficient evidence decided that question, it is not before us. The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The chief controversy is over the meaning of the contract. The plaintiff says that although the contract provides for a mill of a given capacity no test is prescribed by which that capacity is to be ascertained; that an actual test with the kind of wheat described in the contract is not necessary, and that such capacity may be proved by any competent evidence, citing Kinnard v. Stanley, 70 Kan. 770, 79 Pac. 661, and Edward P. Allis Co. v. Columbia Mill Co., 65 Fed. 52, 12 C. C. A. 511.
The contract expressly provides that when the machinery is operated so as to meet the requirements of the milling guaranty the defendant shall accept the mill and pay for it. It is a part of the guaranty that the mill will perform according to the guaranty when operated under the plaintiff’s own direction, and the defendant is required to furnish wheat, labor and power to operate the mill at its full capacity when the plaintiff is ready to do so. These terms can mean but one thing. Besides the existence of mill machinery which when properly set up shall have a given capacity, there must be an operation of the machinery in such a manner that it will demonstrate its powers.
The contract indicates that the defendant wanted a 200-barrel mill which would be the equivalent in all respects of those of his competitors, and which would make a barrel of flour from four bushels and.twenty-four pounds of No. 2 wheat; that he was willing to pay the plaintiff’s price for it whenever the mill produced the desired results, but that he wanted to see such results produced before parting with his money. The contract further indicates that the plaintiff, as a manufacturer of mill machinery, undertook to furnish the very kind the defendant needed, and agreed to wait for its pay until an actual working test of the mill demonstrated a capacity commensurate with the guaranty. So interpreted the contract is fair and just and businesslike and reasonable. Any other interpretation would strain the meaning of words, and would violate the rule relied upon by the plaintiff when-discussing other features of the contract — that all of its parts are to be considered in ascertaining the meaning of any particular part. Any other interpretation would also be contrary to the practical construction which the parties themselves have given it by three attempts at a mill-run demonstration. When writing for wheat with which to make a test run and calling the attention of the defendant to the provisions of the contract respecting the matter the plaintiff had no doubt as to what was required of it. To substitute some kind of proof of capacity other than that afforded by an operation of the mill would be to change the contract.
Since the mill must show for itself what it can do the character of grain to be used in making the test is important. The defendant says the special guaranty relating to the quantity and quality of flour to be made from a given number of bushels of wheat is to be considered as if standing alone; that it was written in a printed blank; that the printed clause relating to the kind of wheat to be supplied for a test run should be read solely with reference to the printed guaranty of an equal rating with other mills, and that it has no bearing upon the written -guaranty; and his conclusion is that any kind of wheat which will grade No. 2 when cleaned on the receiving separator, even though some of the grains be bleached and shriveled, will satisfy his obligation in respect to material for a test.
This interpretation of the contract appears to have occurred to the defendant after he had provided the wheat for two inconclusive tests. It would kill the effect of. the words “good, plump, dry milling” when the contract speaks of wheat to be' used in' showing a compliance with the written guaranty, and it would utilize them when it prescribes the character of grain to be forthcoming to prove capacity according to the printed guaranty. To avoid this crux the defendant argues that the printed guaranty is meaningless, although he retained it in the contract after striking out other parts of the printed form.
This court cannot assume that there are no other accessible mills having an equivalent line of machinery, or that the quality, percentage and yield of flour produced by such mills from a given grade, quantity and quality of wheat cannot be ascertained. There is a likelihood at least that such mills exist, and that their owners have proved with perfect accuracy their exact capacity; and it may be that in order to fulfil the printed guaranty the plaintiff’s machinery must be able to produce a barrel of flour, with not to exceed three per cent, low grade, from four bushels and twenty pounds of No. 2 wheat.
The clause in which the words referred to occur is a very important one. It is the duty of the court to give effect to every word of the contract if possible, and to construe its written and printed portions together when they do not contradict each other. The obvious sense of this undertaking is that whenever a test run is to be made the defendant must furnish wheat, labor and power to operate the mill at full capacity, and that the wheat furnished must be good, sound, dry milling wheat at all events, whether attention be directed specially to matching some other mill in some particular or to the competency of the machinery to extract from wheat grains a high percentage of flour.
Since this mill has not been operated to prove that it has the capacity called for the condition precedent to payment of the price has not been performed. Since the defendant has not furnished wheat of the kind required to perform the condition he is not in a position to urge that the test made proves the mill to be inadequate. That operation merely showed what the mill will do with bleached and shriveled No. 2 wheat, and the defendant cannot in effect take advantage of his own default.
■ There is no question in the case of the defendant defeating payment through a wrongful refusal to arrange the preliminaries of a test, or of a recovery by the 'plaintiff notwithstanding a wrongful refusal to operate the mill under- proper conditions.
The plaintiff says that if it requires a high quality, of No. 2 wheat to produce a barrel of flour from four bushels and twenty-four pounds the contract should be construed to apply only to wheat of the superior kind. This court has no judicial knowledge of how much flour may be extracted from different grades of wheat. The plaintiff guaranteed that its machinery would produce a barrel of flour, with not to exceed three per cent, low grade, from four bushels and twenty-four pounds of good, plump, dry No. 2 milling wheat, and the court will not assume that it contracted to do an impossibility, or anything unreasonable.
There is nothing before the court to call for its opinion upon the situation of the parties if performance of the strict conditions which they have imposed upon .themselves should be impossible, or upon the question whether or not performance by either of them may be excused, or, if excuses may be offered, which ones are valid.
Conceding, but not deciding, that, what may be termed secondary evidence of the capacity of the mill might be proper under some circumstances, still the plaintiff is not entitled to recover in this action on the findings of fact. Finding No. 22 relates to a local custom not pleaded as affecting the contract, and hence is outside the issues. There is no finding that the custom was known to either party, and they must be held to have contracted with reference to the law. There fore finding No. 25, which described No. 1 wheat, does not show a compliance with the milling guaranty, and no other finding or set of findings is sufficient for that purpose.
Nor is the plaintiff entitled to a new trial under the provisional concession. The facts being found the court can apply the law, and will do so unless an erroneous theory of the law has prejudiced the trial, which does not appear. It is said the court erred in refusing to make additional findings of fact requested by the plaintiff relating to the efficiency and capacity of the mill, but such findings are not printed in the brief or further described, the evidence supposed to support them is not pointed out, and the assignment of error is not argued. Hence the matter will not be considered. No complaint is made that evidence relating to the capacity of the mill was improperly rejected. This being true, the facts found which are within the issues are to be regarded as the facts of the controversy.
The plaintiff claims that the second count of the petition was inserted on the theory that it may recover as in quantum meruit, notwithstanding a deviation from the contract. No such theory is discoverable in the count itself. It asks damages as in trover for the conversion of property owned by the plaintiff and to the possession of which the plaintiff was entitled. This cannot be done while at the same time the first count of the petition claims the price of the property on the theory that the plaintiff has parted with title by sale; that the defendant owns it and hence-is entitled to its possession. The' two theories are inconsistent, and an election was properly required.
The plaintiff says that, the machinery having been accepted and used, the burden was on the defendant to allege and prove that it was not up to the requirements of the contract, and cites Hoffman v. District of Hampton, 96 Iowa, 319, 65 N. W. 322, among other decisions, as authority. In that case the court said:
“Parties may well stipulate as to the character and capacity of apparatus or machinery, to be furnished or improvements to be made, and make affirmative proof of performance a condition precedent to the recovery of the contract price.” (Page 324.)
The contract under consideration is of the kind there described. Besides, there has been no acceptance of the machinery in the sense that a performance of the guaranty is waived. The defendant was under no obligation to bring about a test of the mill. The plaintiff could do so at once, or delay as long as it saw fit. There is nothing in the contract or in the situation of the parties requiring that the mill lie idle until a compliance with the guaranty is shown, or requiring a forfeiture of the defendant’s contract rights upon his setting the machinery in motion. If the plaintiff has not been prejudiced in any. way, and there is no claim that it has been, simple use of the mill does not waive the test or shift the burden of proof.
The written and printed portions of the contract relating to the belting should be construed together, and the conclusion of the trial court upon that matter was correct. The plaintiff recovered a judgment upon its third' cause of action after proof which it was obliged to make. Upon other matters which occasioned the bulk of the costs both parties asked relief, and both were defeated. Under these circumstances the judgment that each party pay half the costs will not be disturbed.
The judgment of the district court is affirmed. The costs in this court are divided.
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Per Curiam,:
The court has examined each assignment of error made in this proceeding, and after a consideration of the entire case is unable to declare that prejudicial error was committed. Many qf the specifications are ashes from which the heat of the fire of the trial has subsided. Such are those relating to leading questions, evidence merely immaterial, and instructions refused in form but given in substance. Most of the testimony assailed is not, when fairly considered, open to criticism. Standing alone, a few answers appear to be improper; but the entire body of the evidence is such that the verdict and judgment ought not to be set aside on account of the occasional infraction of an arbitrary rule.
It would have been error to have told the jury that actions for malicious prosecution have never been favored. Conduct sufficient to excite a well-grounded suspicion in men unskilled in technical rules of law is not the test of probable cause. The jury should not allow for the prejudice, partiality and excitement of a person instituting a prosecution in which he is interested in determining his liability. The standard is that which a reasonably prudent man would do. The fact that a person arrested did not secure his release upon his own recognizance does not as a matter of law indicate that he attached small importance to his arrest or incarceration, or deprive him of the right to damages on the ground that he did not consider himself injured. Instructions embodying these misstatements of the law were rightfully refused, and all other instructions asked were either given in substance or properly refused. Considered separately, one or two instructions given seem to be brief; but this is probably a matter for commendation. When all the instructions given are read together they fairly present the law of the case. ■
Upon the whole the parties appear to have been afforded a fair trial. A full publication of the views of the court upon each specific question raised would only encumber the reports, and it is sufficient to say that the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In 1882 the Kansas Railway Company condemned a right of way across Wilson county. A grade was constructed, but no track was ever laid. In 1903 James Hamlin, as owner of the fee of a portion of the tract so appropriated, brought a suit to quiet title against the railway company, upon the ground that whatever rights it had acquired with respect thereto had been forfeited. A trial was had upon oral evidence, a part of which tended strongly to show an abandonment by the company and a part of which had some tendency to the contrary. The court decided in favor of the defendant, and the plaintiff prosecutes error. No special findings were made and it is impossible for this court to know upon what view of the facts the decision was based. The judgment must therefore be affirmed unless it can be said that the mere fact that no railroad was ever completed compelled a different result.
It may be assumed that there was no adverse possession by the plaintiff, for the evidence does not conclusively show it. Where there is no adverse possession non-user does not of itself work an extinguishment of the company’s right. (23 A. & E. Encycl. of L. 705.) Of course the legislature might have provided that a failure to complete a railroad within a stated time should have that effect, but no claim is made that the Kansas statute is to be construed as fixing such a limit. In the absence of a statutory limitation, a court cannot say as a matter of law that, irrespective of all other considerations, the mere failure of the company to complete its track within any fixed period operates as an extinguishment of all rights acquired by the condemnation proceedings. (3 Ell. Rlds. § 931; Nicomen Boom Co. v. North Shore etc. Co., 40 Wash. 315, 82 Pac. 412, arid cases there cited.)
It results that the judgment must be affirmed, and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff in error insists that his contract with the railroad company is not a lease, but a contract for the purchase of real estate, and that therefore the justice of the peace before whom the action was commenced did not have jurisdiction of the subject-matter involved therein. The claim in this respect is clearly and tersely stated in his brief, as follows :
“As to whether the above and foregoing contract is a contract of purchase or a contract of lease depends, as we believe, the correctness or incorrectness of the ruling of the district court in this case. It seems to us that it is clearly a contract of purchase, and not a contract of lease; and it cannot be both. It must be one or the other.”
We do not deem it necessary to gike this paper a name. Its provisions state the rights and duties of the parties thereunder, and present the only questions to be considered. Justice will probably be better sub-served by treating this exhibit as an ordinary written contract, containing the stipulations and agreements of the parties thereto, than by attempting to assign it to a place in the technical classification of legal instruments by determining which of them it most resembles. The parties refer to this paper in their briefs as a contract, and for convenience it will be so designated here.
It is conceded that whatever right plaintiff in error may have to the possession of the land in controversy is derived from this contract. By the covenants of such contract he agreed that in case of failure on his part to comply with its provisions his right to the possession of the premises should cease at once, and all payments which had been made by him should be retained as rent for the prior use of the property. The agreed statement of facts shows that he failed to comply with his agreements in-the contract on April 14, 1902, by refusing to make the payment then due. He has ever since remained in default. On January 21, 1904, he was notified that the contract was at an end. No payment or offer to pay has been made since April 14, 1901.
This action was commenced May 16, 1904. The ag gregate amount paid by Dineen is $258.72. He had been in possession two years at the time of default. When this action was commenced he had been in possession more than four years. The aggregate amount paid, from the time he went into possession to the date of default, if applied as rent, would be less than eighty 'cents an acre annually, and, for the whole period of occupancy prior to the commencement of this action, less than forty cents an acre annually. It is not claimed that an injustice will be done to Dineen by compelling him to surrender possession of the land, nor that he has any meritorious defense to a proper action brought for that purpose. It is simply insisted that he has a legal right to stay there until ousted according to the strict letter of the law.
It may be conceded that an action of forcible detainer is strictly possessory in its character, that the plaintiff must have a perfect right to possession qt the time the notice to quit is given, and that when such an action is pending before a justice of the peace — a court without equitable jurisdiction or power — it must be determined as an action at law. (Kellogg v. Lewis, 28 Kan. 535; Gilmore v. Asbury, 64 Kan. 383, 67 Pac. 864.) But for the purpose of determining the right of possession, questions of title, legal or equitable, may be incidentally considered. (Conaway v. Gore, 27 Kan. 122; McClain v. Jones, 60 Kan. 639, 57 Pac. 500.) In the case of Conaway v. Gore, supra, which was an action of this nature, Mr. Justice Brewer, who delivered the opinion of the court, used the following language:
“It is true, as the court charged the jury, that questions of title are not to be litigated in actions of this nature. The question is simply one of the unlawful and forcible disturbance or withholding of possession ; and yet, as we shall see hereafter, evidences of title are often properly received in evidence, and questions of title may often be considered and have an important bearing upon the final decision. Indeed,' cases may arise under our statute where the plaintiff may rest his entire right of recovery upon mere proof of title.” (Page 126.) •
The plaintiff may always recover in an action of forcible detainer if he is entitled to possession and the defendant has no legal or equitable interest in the land. In the case of Douglas v. Anderson, 28 Kan. 262, it was held that, where a tenant stipulated in a lease that upon failure to pay rent the lessor might enter and take possession, upon default the landlord might recover possession by an action of forcible detainer.
The provisions of the contract between Dineen and the railroad company contain the measure and limit of the rights acquired by him to the land thereiq described. By the terms of the contract he expressly agreed to quit the premises and deliver back the possession thereof in case of default by him in the performance of any of his agreements. It is admitted that he made default, and no cause or excuse is offered therefor. We can see no reason why he should not be held to this agreement. Upon the agreed facts he has no right,- legal or equitable, remaining in the land, and does not claim to have. His right to possession has ended by reason of the breach of his own deliberate contract. The question whether a justice of the peace has equitable jurisdiction is immaterial, as nothing of an equitable nature is presented here to challenge such jurisdiction.
The court was clearly right in holding that under the admitted facts the right of Dineen to remain in possession was at an end. If outside of the question of' possession he has rights concerning crops, improvements, or of any other nature, they can be adjusted in any appropriate proceeding without embarrassment on account of this judgment, as it is not a bar to any after-action brought by either party. (Gen. Stat. 1901, § 5396; Waite v. Teeters, 36 Kan. 604, 14 Pac. 146.) The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The essential facts in this case are as follow: In October, 1898, A. R. Ridenour commenced a suit against Mrs. Carrie L. Emmons and her husband, D. R. Emmons, on a promissory note given by them, and to foreclose a mortgage on certain real estate owned by Mrs. Emmons which had been given by them to secure the payment of the note. A personal judgment was rendered against Mrs. Emmons and her husband, and a judgment of foreclosure and order for the sale of the real estate was entered. Under the order of sale the sheriff sold the land, on May 22, 1899, to one Hobbs, and issued Hobbs a certificate of sale therefor. On May 3, 1900, the plaintiff in error, James M. Gille, obtained a general money judgment against Mrs. Emmons for a large sum, and caused execution to be issued thereon and levied on the same real estate that had been sold under foreclosure. Under this execution the sheriff sold the real estate to Gille, on September 23, 1901. On April 9, 1903, after confirmation of the sale, the sheriff made his deed for the real estate to Gille.
On November 27, 1903, Myra B. Enright commenced this suit to quiet title, claiming ownership of the real estate under a deed from Hobbs, and alleging that she was in possession thereof. Gille and others were made parties defendant.
It appears that Mr. Emmons, within four or five months after the sale to Hobbs, made an arrangement with Hobbs for an assignment of the certificate of purchase and repaid a portion of the purchase-price, and paid all he agreed to pay Hobbs for the assignment before Hobbs procured the sheriff’s deed and conveyed the land, at Mr. Emmons’s request, to Enright. Gille claims this transaction amounted to a redemption of the real estate by Mrs. Emmons, through her husband. Many other questions are raised as to the validity of the sheriff’s deed to Hobbs after Hobbs had equitably, at least, parted with all his interest in the land; as to the validity of the deed from Hobbs to En-right, and as to the deposit of the purchase-price in escrow, to abide the result of this suit, instead of paying it to Hobbs or Emmons. It is also contended that Emmons could not thus devest his wife of her title to the land. We regard none of these questions as material. Section 4949 of the General Statutes of 1901 reads:
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.”
The land was sold to Hobbs on May 22, 1899, and Gille obtained his judgment against Mrs. Emmons on May 3, 1900, eighteen days before his right to redeem as a creditor began. The lien of his judgment was inferior to the lien upon which the land was sold, and he had three months within which he could have redeemed it. It is clear that the second sale, under which he claims title to the land, was forbidden by the statute and was void. (Case v. Lanyon, 62 Kan. 69, 61 Pac. 406.)
Gille did not claim he was in possession of the land, and as he has no right or title to it he has no standing to complain of any ruling or decision of the court in reference thereto. If Mrs. Emmons had redeemed the land, as he claims she in effect did, after his right to redeem had attached, he would have no better standing.
The order of the district court granting a new trial is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to enjoin the closing of an undergrade farm-crossing of a railroad. In 1886 the Chicago, Kansas & Nebraska Railway Company laid out a railroad and condemned a right of way across the farm of David Wynkoop. The route selected was between the buildings on the Wynkoop farm and the public highway. In a depression which extended from the buildings to the public highway a private roadway had been built for the accommodation of the owner and occupants of the farm. The railroad was laid out and built across this depression, and the plan of the railroad required a high embankment which extended eighty-five rods across the farm, the height of which was about twenty-five feet at the intersection of the private roadway. When the commissioners met to condemn a right of way over the farm the matter of passing from one side of the railroad to the other by the use of the private roadway was considered, and it was agreed between the owner and the representative of the railway company that an opening should be left for an undergrade crossing at the intersection of the private roadway; and the damages of the owner were assessed by the commissioners upon the understanding that he should have such a crossing at that point. The railroad was built in accordance with the plan, and a bridge constructed over the private roadway.
In 1891 defendant corporation acquired the railroad property, and in 1895 some negotiations were had between the railway company and the owner of the farm in regard to the narrowing of the'passageway under the railroad and the substitution of an arch stone culvert for the bridge first built. No agreement was reached by them, however, and another bridge similar to the one first built was erected without interfering with the private roadway. In 1903 the railroad com pany, desiring to improve its road-bed and to put it in a condition for the use of heavier equipment, again negotiated with Wynkoop with reference to placing a stone culvert where the private roadway crossed under the railroad-track. At that time the representative of the railway company suggested the substitution of a stone culvert about ten feet wide, while Wynkoop insisted that the necessities of the farm required an opening fourteen feet wide. There was a suggestion, too, by the railway company that a grade crossing might be made at the end of the embankment, but the parties were unable to agree, and the company proceeded to close up the roadway, when this suit was brought, which resulted in a permanent injunction against the destruction of the undergrade crossing.
It is first contended that as the situs of the under-grade crossing is in Doniphan county the district eourt of Atchison county was without jurisdiction to consider the case; that the provision of section 46 of the civil code (Gen. Stat. 1901, § 4476) requiring that actions “for the recovery of real property or of any estate or interest therein, or for the determination in any form of any such right or interest,” must be brought in the county in which the subject of the action is situated applies. This is not an action to recover real property, nor for the determination of an interest therein. It is a suit which operates in personam, and its object is to prevent the commission of a wrong by obstructing a roadway. Wynkoop was not asking to have an interest in land determined, nor could any judgment be rendered in the suit which would have that effect. The legal title to the land was in himself, and ever since the right of way for the railroad was condemned and the railroad was built there has been an undergrade crossing from one part of his farm to the other. The proposed closing of this roadway is the wrong of which complaint.is made.' In establishing the wrong the ownership of the land, as well as the condemnation of a right of way over it, was to some extent drawn in question; but these matters were only incidental to the gravamen of the suit —the prevention of a threatened wrong.
Not every action growing out of transactions concerning real property is local. Where the decree sought is to operate on the person, and not upon the real property, the location of the property indirectly affected is not material. It was held in Close v. Wheaton, 65 Kan. 830, 70 Pac. 891, that a suit to compel the specific performance of an agreement to convey land did not come within the provisions of section 46 of the civil code (Gen. Stat. 1901, § 4476), and that while it related to real estate it could be brought in any county where the defendant might be legally served with personal process. In Massie v. Watts, 10 U. S. 148, 3 L. Ed. 181, Chief Justice Marshall, speaking of such a suit, said:
“In a case of fraud, of trust, or. of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.” (Page 160.)
It is held that jurisdiction of this character is strictly in personam, and that the court, may exercise it independently of the locality where the act is to be done. The relief sought not being the determination of an interest in real estate but against the defendant personally, suit was rightly brought where personal service could be had. As tending to sustain this view, see: Alexander v. Tolleston Club, 110 Ill. 65; Powell v. Cheshire, 70 Ga. 357, 48 Am. Rep. 572; Great Falls Manufacturing Company v. Worster, 23 N. H. 462; Clad et al., Appellants, v. Paist, 181 Pa. St. 148, 37 Atl. 194; Jennings Bros. & Co., Appellants, v. Beale, 158 Pa. St. 283, 27 Atl. 948; O'Connor v. Shannon (Tex. Civ. App.), 30 S. W. 1096; Roche v. Marvin et al., 92 N. Y. 398; Rose et al. v. Schoteau, 11 Ill. 167; Roys ton v. Royston, 21 Ga. 161; McArthur & Griffin v. Matthewson & Butler, 67 Ga. 134; 11 A. & E. Encycl. of L. 173.
There is a contention that under the evidence Wynkoop was not entitled to an undergrade crossing. In that connection it is argued that the right of Wynkoop to use the crossing is in the nature of an easement, and that it is worthless unless evidenced by writing. The case is not to be treated as an easement obtained by Wynkoop from the railroad company. The private roadway passed over his own land, and he never parted with the right to it or to its use. The company acquired no. more than it paid for, and according to the testimony the open passageway was excepted from the right of way, and that fact was taken into account in the allowance of damages by the commissioners. If the right to make a solid embankment had been sought and obtained, an award of damages for the obstruction and the resulting inconvenience of the owner in passing from one part of his farm to the other must have been allowed. The question whether the under-grade crossing was practicable and should be maintained was a proper consideration in the condemnation proceeding. If such a crossing is a part of the plan of the railroad company, and it is considered in awarding damages to the landowner, the company is bound to construct and maintain such crossing. (K. C. & E. Rld. Co. v. Kregelo, 32 Kan. 608, 5 Pac. 15; C. K. & W. Rld. Co. v. Cosper, 42 Kan. 561, 22 Pac. 634; Railway Co. v. Davenport, 65 Kan. 206, 69 Pac. 195; 15 Cyc. 717.)
A contract reserving a ■ crossing which diminishes the damages to be paid by the railroad company surely has a binding effect upon such company. The crossing was maintained by the railroad company, and used by the landowner, about seventeen years, without interruption, before this controversy arose; but the right to the crossing does not depend upon inferences based on the conduct of the parties, nor yet upon the necessity for the crossing, but rests upon an agreement reserving it to the owner, and largely affecting the compensation paid for the right of way. The landowner cannot insist that the opening shall remain in the same form, nor as wide as it was originally left, but under the agreement is entitled to such an undergrade crossing as will meet the ordinary necessities of a farm. The fact that the parties were unable to agree just what should be the width of the crossing did not abrogate the original agreement, nor warrant the closing of the crossing.
There appears to be substantial support in the evidence for the findings of the court, and hence its judgment is affirmed.
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Per Curiam:
In addition to the advisory findings of the jury the court made findings of its own, which bring to the support of the judgment all the facts and all the inferences of fact derivable from the evidence most favorable to the plaintiff, even although opposed by strong evidence to the contrary.
The findings of the jury themselves entirely preclude the notion that the attempted return of the windows can be tacked to the tender of the $250 so as to make a legal tender of payment of the balance due the plaintiff. The transaction amounted to no more than a belated attempt to return damaged property to a vendor on the ground that it did not comply with the contract of sale.
The record contains ample evidence to support Fair’s position that he was under no legal duty to receive and give credit for the windows when Smith brought them back, and Smyser is clearly chargeable with them if he is the principal debtor.
The evidence and findings are that Smyser was not a surety at all, but that he agreed to pay for the material for his house himself. The law will not imply a relation between parties contrary to their agreement covering the' subject. (Bank v. McIntosh, 72 Kan. 603, 84 Pac. 535.) The case is quite like that of Carney Bros. v. Cook, 80 Iowa, 747, 45 N. W. 919, and bears no resemblance to Fisher v. Stockebrand, Adm’r, 26 Kan. 565.
Smyser cannot be heard to say that a notice was not given which he expressly waived, and if he desired a general verdict he should have asked for it before the jury to which he submitted his case were discharged.
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The opinion of the court was delivered by
Mason, J.:
On May 29, 1905, Mary Johnson was convicted in the police court of the violation of an or dinance of a city of the second class. On the same day, for the purpose of effecting an appeal to the district court, she presented a bond for her appearance at the next term thereof, signed by herself but by no other person. The police judge indorsed his approval upon the bond, and the defendant was discharged from custody. At the next term of the district court, in September, she appeared for trial, and the prosecution moved to dismiss the appeal upon the ground that the bond, being signed by no one except the plaintiff, was void. The motion was allowed, and the defendant upon an appeal to this court presents the single question of the correctness of that ruling.
In behalf of the appellee it is argued that the statute (Gen. Stat. 1901, § 1Ó41) makes it a condition of the allowance of an appeal from a conviction in police court that the defendant shall enter into' a recognizance, “with good and sufficient security to be approved by the police judge,” for his appearance in the district court; that the word “security” as there used means “surety”.; and that the bond given in this case, not being signed by a surety, failed to comply with the statute, and was therefore an absolute nullity and conferred no jurisdiction upon the district court. To this we cannot agree. It was held in McClelland Bros. v. Allison, 34 Kan. 155, 8 Pac. 239, that an appeal bond approved by a justice of the peace in a civil case, signed only by the parties against whom the judgment had been rendered, was not entirely void, and might be amended, although the statute (Gen. Stat. 1901, § 5354) required that it should be signed by “at least one good and sufficient surety.” It is true that there is express statutory authority (Gen. Stat. 1901, § 5361) for renewing an appeal bond in a civil case where the surety is insufficient or the undertaking is defective in form or amount, while the criminal code contains no corresponding provision.' In the case cited the statute permitting such renewal was referred to, but the conclusion reached involved a holding that the bond there under consideration, although lacking a surety, was not absolutely void, and a distinction was noted in that regard between such a bond and one running to the wrong obligee, which was decided in Lovitt v. Wellington & Western Rld. Co., 26 Kan. 297, to be without effect for any purpose.
It is said, and there appears to be no authority to the contrary, that “although the statute provides that recognizances shall be executed by two sureties, a recognizance is not invalid because executed by one only.” (3 A. & E. Encycl. of L. 683. See, also, 2 Cyc. 922.) Upon the same principle it seems clear that a recognizance upon appeal, entered into by a defendant without any surety whatever, although it fails to meet fully the requirements of the law, is not utterly void, but if approved and acted upon is effective to bind the signer and confer jurisdiction upon the appellate court.
No question is presented regarding the right of the district court to require the giving of a further recognizance.
The judgment is reversed, with directions to deny the motion to dismiss.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
Many assignments of error have been presented, but they; are all substantially covered by these three: (1) It is insisted that thé plaintiff has no interest in the machinery in controversy, and, therefore, cannot maintain an action for its conversion; (2) that the proper measure of damages in case of a recovery is the difference between the market value of the machinery at the time and place of delivery and the market value thereof when it in fact arrived'at such place; (3) that damages'for loss of commission ,cannot be recovered, because a sale of the property was not within the contemplation of the parties when the shipment was made.
Concerning the first proposition, there is considerable confusion among the authorities as to whether the consignee^ or consignor is the proper party plaintiff in an action agai.nst_a. carrier, but the rule that an action for the conversion of goods must be brought by the owner or one having a beneficial interest in the property converted seems to be fairly well established. (Hutch. Carr., 2d ed., §§ 731-734; 6 Cyc. 510; Wood’s Browne, Carr. § 599.) The consignee is always presumed to possess the necessary ownership, until the contrary is shown. (Ray, Carr, of Freight, 1006; Griffith v. Ingledew, 6 S. & R. [Pa.] 429, 9 Am. Dec. 444; Smith v. Lewis, 3 B. Mon. [Ky.] 229; Arbuckle v. Thompson, 37 Pa. St. 170; The Pennsylvania Company v. Poor, 103 Ind. 553, 3 N. E. 253.) The ownership need not be extensive, and an agent, factor, broker, bailee or other person having rights in the property to be protected may maintain an action, and recover both for himself and the general owner. (Chamberlain v. West, 37 Minn. 54, 33 N. W. 114; Harrington v. King, 121 Mass. 269; Finn v. Western Railroad Corporation, 112 Mass. 524, 17 Am. Rep. 128; Green v. Clarke, 12 N. Y. 343; Bost. and Me. R. R. Co. v. Warrior Mower Co., 76 Me. 251.) We think the plaintiff in this case, had sufficient interest in the property to enable it to maintain this action. In the case of Bost. and Me. R. R. Co. v. Warrior Mower Co., supra, a case very similar to this, the court.said:
“Ordinarily when a plaintiff sustains his action it is presumed that the whole amount of damages recovered will belong to him. In fact, the injury to him or to his property is the measure of the damages. But while this is the general rule there are exceptions, not to the extent or measure of damages, but to the interest the plaintiff may have in them. It is true that an action cannot be maintained unless the plaintiff has an interest in the subject-matter of the suit, but he may do so when he is not interested to the full extent of the damages to be recovered. Such are the familiar cases of injury to property in which there is a general and special owner, as bailor and bailee, consignor and consignee, principal and factor. In such cases the action may not be brought in the names of the two jointly, but may in the name of either. In the action now in question the subject-matter was mowing-machines and parts of mowing-machines. The damage claimed rests upon a neglect of the carrier by which the property was improperly delayed in its transit. The facts show that the title to the property was in the mower company; that it had consigned and forwarded the machines to Dunham by virtue of a contract under which Dunham was to sell them for a specified commission and account to the company for them at a specified price. Dunham was also to pay the freight. This contract, while it did" not change the title in the machines and pieces, gave Dunham such a special property in them as to enable him to maintain the action in his own name, and the consignment and forwarding [of] the property, thus setting it apart and putting it into the hands of the carrier for his benefit, gave him a constructive possession sufficient for that purpose; and as the injury was the result of a single wrongful act to the whole property the damage could not be apportioned but must all be recovered in that one action, the judgment in which would be conclusive against any suit by the general owner. . . . Hence Dunham, in his suit, is entitled to recover not only his own damages but such as have accrued to the mower company as general owners. The measure of damages as held by the court in that case can be applicable upon no other theory. If, then, Dunham should receive the whole damage recoverable in his suit, he would be entitled to retain his own share, and the balance he would hold as trustee for the mower company.” (Pages 259, 260.)
In the case of Southern Express Company v. Armstead, 50 Ala. 350, it was said:
“The consignee of goods has a right to sue for their loss by the carrier, notwithstanding another party may be the owner of them. The obligation is to deliver to him. Generally the property vests in him by the mere delivery to the carrier. Although the absolute or general owner of personal property may support an action for any injury thereto, if he have the right of immediate possession, this does not necessarily devest the right Of the consignee to sue, notwithstanding he has never had the actual possession.” (Page 352.)
A judgment in favor of the plaintiff can work no harm, as it would be a bar to an action for the.same injury by the Portf Huron. company. (White et al. v. Bascom et al., 28 Vt. 268; Green v. Clarke, 12 N. Y. 343; Harker, et al., v. Dement, 9 Gill [Md.] 7, 52 Am. Dec. 670; Little v. Fossett, 34 Me. 545, 56 Am. Dec. 671.) The plaintiff holdsin.-trustfoiL-the Port Huron company whatever remains of the amount recovered, after payment of its commission. (Chamberlain v. West, 37 Minn. 54, 33 N. W. 114; Finn v. Western Railroad Corporation, 112 Mass. 524, 17 Am. Rep. 128; White et al. v. Bascom et al., supra; Little v. Fossett, supra.)
A consignee has the right to withhold a freight bill, when its damages exceed that amount, and in such a case the refusal of the carrier to deliver .the goods.until the--freight is paid amounts to a conversion. (5 A. & E. Encycl. of L. 232; Miami Company v. Railway Company, 38 S. C. 78, 16 S. E. 339, 21 L. R. A. 123, 55 Am. & Eng. Rld. Cas. 688; 6 Cyc. 497; Railway Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066.) The measure of damages' is compensation for the injury sustained. An amount which will place the injured party in the same condition he would have occupied if no loss had ‘'occurred will satisfy this requirement. If in this case the machinery had been delivered according, to contract, the price for which it had been sold would have been realized. Out of this amount the commission dqe the plaintiff would have been deducted. The freight would have been paid by the purchasers of the machinery. The selling_4niice_at — the--plaee--of "delivery seems, therefore, to be the true measure of damages. We think the amount recovered in the' district court fairly compensates all parties for the losses sustained. Out of this amount the plaintiff will retain a sum equal to the commission lost, and múst account to the Port Huron company for the remainder.
Finally, it is insisted that a sale of the machinery was not within the contemplation of the parties at the time of shipment, and, therefore, the commission is not a proper element of damages. . A railroad company must be held to know facts familiar to ordinary people. It is fair to assume that a carrier of thrashing-machines knows what they are used for, and that the only purpose implement dealers have in shipping such property into the heart of a great wheat country is to sell it. When a shipment of thrashing-machines is made in June of any year, the inference follows that, if they are not already sold, an immediate sale is intended. We think, therefore, that the loss of a commission is not so remote as to be excluded as an element of damages in this case.
SYLLABUS BY THE COURT.
Railroads — Injury to Goods in Transit — Carrier’s Lien — Conversion. Where a common carrier becomes liable to the consignee of goods for injury to property while in transit, and the amount of the damages occasioned by such injury equals or exceeds the freight bill on the damaged goods, the lien of the carrier is thereby extinguished, and the consignee is entitled to the possession of such goods without payment of freight; and in such a case the refusal of the carrier to deliver the goods to the consignee upon demand constitutes a conversion.
The general rule that damages caused by the loss of a sale not ypthin- the contemplation of the parties cannot be recovered has no application to the facts here shown. No error appearing, the judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiffs in error prosecute this proceeding to reverse an order of the district court refusing to open the case, in which a judgment had been rendered against them, that they might have another opportunity to make a defense therein. The action was on a promissory note bearing the signature of both of the defendants. Summons was properly served upon both, and they appeared and participated, in the trial. The judgment was rendered May 7,. 1903, and the application to have it set aside was filed October 6, 1903. The application states no defense to' the action. It states no reasons why the court should open the case- and permit the defendants to relitigate the questions.
The order of the court denying the application of the plaintiffs in error is affirmed. | [
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Per Curiam:
An ice-house was burned through the negligence of the employees of the railway company, who were burning and clearing the right of way. It was not an accidental fire, but was purposely set out under orders of a foreman and to carry out the company’s scheme of clearing the right of way and protecting it against loss. The fire was set out just beyond the right of way and within a few feet of the ice-house, but the company cannot escape liability on that account. Because of the direction of the wind the men thought it to be more practicable to burn from the outside toward the railroad-track, instead of from the track outward, but it proved to be a careless and disastrous plan. The fire was started near the right of way by employees of the company, under orders of its representative, and for its own benefit. For their negligence the company is responsible.
The question of contributory negligence was properly submitted to and settled by the jury. We find no error in the instructions, or other rulings, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Six grounds were set forth in the motion to dissolve the temporary injunction, the first, second, third and sixth of which relate to the failure to issue a formal order addressed to the defendant and under the seal of the court. The temporary order was allowed at the time of commencing the suit, and “injunction allowed” was indorsed on the summons that was issued and served. (Gen. Stat. 1901, § 4690.) But it is urged in the defendant’s brief that the words “injunction allowed” were not indorsed by the clerk but were written on the summons by plaintiff’s attorney. In the absence of any evidence on the subject it must be presumed the indorsement'was made by the clerk. A forgery will not be presumed. It follows that as to these grounds for dissolution the motion should have been denied.
The fourth and fifth grounds of the motion were really one, which was that the verified petition was not filed with the clerk before it was presented to the judge for the allowance of the order. The principal controversy on the hearing seems to have been whether the order was made by the judge immediately before the filing of the petition or immediately thereafter. Much evidence pro and con was introduced, and we assume from the ruling of the court that it found this issue in favor of the defendant. It is not within our province to weigh this evidence, and we disregard it as immaterial, except so far only as there is no conflict.
The uncontroverted evidence shows that the plaintiff with her attorney appeared in the clerk’s office about the time the court opened in the adjoining room of the court-house, and, the clerk being absent, the attorney presented the petition to the deputy clerk and requested him to swear the plaintiff to the same, which he did; she subscribed her name to the oath, and he affixed his jurat and seal. The attorney either did or did not request the deputy to file the paper, but im mediately took the same to the judge and requested him to allow the order, which was done; and immediately thereafter the attorney returned the petition to the deputy clerk, when the papers were marked filed, including a prsecipé for a summons. An injunction bond was then filed, security for costs given, and the summons issued and indorsed as before stated.
The statute (Gen. Stat. 1901, § 4686) provides that “the injunction may be granted at the time of commencing the action,” and section 4487 provides that “a civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” If the petition is used as the evidence upon which the injunction order is obtained the filing thereof and the order thereon cannot well be made at the same instant. Nor is this requisite. It is urged that a judge has no jurisdiction to make any order except in an action actually pending, and this may be admitted as the general rule. Under the facts of this case, however, the granting of the order and the commencement of the suit, being practically simultaneous, will be regarded as actually simultaneous. Since the granting of the order is entirely ineffective until the order is issued and served, or until a summons with the indorsement “injunction allowed” is issued and served, the rights of a defendant cannot be affected even if the allowance of the order in fact precedes the filing of the petition by a moment’s time. Further, it may be said, the law necessitates the granting of the injunction before the commencement of the suit. Procuring the issuance of a summons is as essential to the commencement of a suit as is the filing of a .petition, and the indorsement “injunction allowed” should, if desired, be made upon the summons at the time it is issued. If this were done before the judge or court had in fact granted the injunction, another objection, with equal force, might be based thereon. While the act of the judge and the act of the clerk must, of necessity,. be separated by some inconsiderable interval of time, the law regards both acts as done at the same time, regardless of which precedes the other.
The order of the district court dissolving the temporary injunction is reversed, and the case is remanded.
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The opinion of the court was delivered by
Johnston, C. J.:
S. H. Braden, as receiver of the Elsmore Creamery Company, brought an action against Fred Samp and Rudolph Kamping to recover upon their individual liabilities as stockholders of that company. They contested the action upon various grounds, but the court found in favor of the plaintiff and rendered judgment against Rudolph Kamping for $100, and another judgment against Fred Samp for $100. Although the judgments were embraced in a single entry, they were distinct, and were founded upon single shares of stock, each of the face value of $100. Both defendants joined in this proceeding, asking for a reversal of the judgments, but the right to a review is challenged on the ground that the amount or value in controversy is not sufficient to give the court jurisdiction.
Under the code the appellate jurisdiction of the court cannot be exercised in cases of this character “unless the amount or value in controversy exclusive of costs in civil actions exceeds $100.” (Code, § 542; Gen. Stat., 1901, § 5019.) Neither of the judgments exceeds $100, and the question arises, Can the defendants by uniting in one proceeding and aggregating their judgments confer jurisdiction upon this court? There was no joint liability of the defendants, nor is there any unity in the judgments. While both are in favor of the same plaintiff, and were rendered in the same action, each is based upon an independent and individual liability, and they stand as distinct and separate as if they had been awarded in different actions against each defendant. Neither defendant is concerned whether the judgment against the other is affirmed or reversed, nor would the compromise or settlement of a judgment by one defendant affect the liability of the other. Either one might settle the judgment against himself without the consent of the other, and if he did so it would be clear that there would be no jurisdiction to review the remaining judgment.
While these judgments grow out of the same corporate transactions, and involve some common questions of law, they are not tied together by any common interest, and they must be separately enforced. As to each defendant the judgment against him fixes the amount or value in. controversy, and, since neither judgment is sufficient in amount to authorize a review, jurisdiction cannot be obtained by the defendants aggregating judgments which are several and distinct. (Richmond v. Brummie, 52 Kan. 247, 34 Pac. 783; Stinson v. Cook, 53 Kan. 179, 35 Pac. 1118; McClelland v. Cragun, 54 Kan. 599, 38 Pac. 776; Zable, &c., v. Harris, 82 Ky. 473; Oswald, &c., v. Morris, &c., 92 Ky. 48, 17 S. W. 167; Henderson v. Wadsworth, 115 U. S. 264, 6 Sup. Ct. 40, 29 L. Ed. 377; Hassall v. Wilcox, 115 U. S. 598, 6 Sup. Ct. 189, 29 L. Ed. 504; Merritt v. Hozey, late Sheriff, and others, 4 Rob. [La.] 319; State National Bank v. Allen, 39 La. Ann. 806, 2 South. 600; Sampson’s Estate, 201 Pa. St. 590, 51 Atl. 325; Davis v. Upham & Stone, 191 Ill. 372, 61 N. E. 76.) The proceeding in error is dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, j. :
The question for decision in this case is whether a bill of particulars filed before a justice of the peace states a cause of action for trespass on real estate. If it does the matter was beyond his jurisdiction, the damages claimed exceeding $100. (Justices’ Code, § 6; Gen. Stat. 1901, § 5233.)
The justice rendered judgment for the plaintiff. The defendant appealed to the district, court and the plaintiff was again successful. The question of jurisdiction was first raised by a motion filed after the trial in the district court. The motion was denied. The defendant then commenced a separate suit to enjoin the enforcement of the judgment of the district court on the ground that it is utterly void. Having been denied that relief he prosecutes this proceeding in error. The bill of particulars reads as follows:
“Plaintiff for cause of action alleges: That he is the owner by lease of certain crops, to wit, corn, hay, and grass, on what is known as the Cavanaugh farm, in Mount Pleasant township, Atchison county, Kansas, and at all times hereinafter mentioned was such owner of said crops so growing on said premises; that the defendant is the owner of certain cattle which were kept on adjoining land part of the time, and permitted them to trespass upon the land of this plaintiff, and permitted the division fence between the land of the plaintiff and the land on which she permitted said cattle to run to become down so that the same was not a legal fence or sufficient to prevent the said cattle from trespassing upon the land of this plaintiff, and said cattle did trespass upon the lands of this plaintiff, and did enter thereon through the said insufficient fence of the defendant, and did tramp down and eat and destroy all the corn on fourteen acres thereof, and did damage and destroy a part of a twenty-acre field, and did tramp, eat and destroy several acres of grass and meadow of the plaintiff; in all to his damage in the sum of $200.
“Whereof, plaintiff asks judgment against the said defendant for the sum of $200 and the costs of this action.”
It has been decided by this court that the action referred to in section 6 of the justices’ code is the equivalent of the common-law action of trespass guare clausum fregit. (Kaub v. Mitchell, 12 Kan. 57, 60; St. L. & S. F. Rly. Co. v. Sharp, 27 Kan. 134.) It has also been decided by this court that trespass guare clausum fregit is a possessory action brought because of a disturbance of the peaceable possession of plaintiff. (Hefley v. Baker, 19 Kan. 9.)
The gist of the action is the wrongful entry — the breaking in upon and the interruption of the quietude of the plaintiff’s possession, and whatever follows in the nature of damages to buildings, fences, crops or other property is mere aggravation. To maintain the action, possession of the premises upon which the property destroyed is situated, by the plaintiff personally or by his tenant, is indispensable. (Loring v. Rockwood, 13 Kan. 178, 181; Fitzpatrick v. Gebhart, 7 Kan. 35, 42.) The decisions of other states to this effect are collated in volume 46 of the American Digest, Century édition, page 295. Without something to indicate that the pleader intended to allege and rely upon possession as an element of his cause of action no issue could be framed upon that subject; no proof could be offered concerning it, and no judgment could be rendered presupposing possession in the plaintiff.
The bill of particulars contains no allegation relating to possession. Much stress is laid upon the fact that it makes several references to “land of the plaintiff.” The first paragraph, however, limits the meaning of all such expressions to the Cavanaugh farm in Mount Pleasant township, which, so far as the pleading shows, may have been in the possession of Cavanaugh or any one else other than the plaintiff, with no right in the plaintiff under his lease except to enter and gather his corn and cut his meadow.
The allegations relating to the negligence of the defendant in permitting the division fence between the lands of the respective parties to become defective, so that it no longer constituted a legal fence, are quite foreign to an action of trespass quare clausum fregit. They are, however, characteristic of an action on the case for damages occasioned by cattle negligently allowed to escape, and clearly indicate the theory upon which the bill of particulars was drawn.
It is immaterial that the allegations may not be entirely sufficient to make a case under the fence law. That fact does not destroy jurisdiction, and the pleader certainly did not intend to state a case which the court could not try at all. It is immaterial that growing crops and hay are regarded for almost all purposes as forming a part of the real estate. Trespass on the case was a common form of action for the recovery of damages for injuries to such property, and that it may be employed under circumstances similar to those under consideration is shown by the decision in St. L. & S. F. Rly. Co. v. Sharp, 27 Kan. 134.
If the character of the action were more doubtful than it appears to be the bill of particulars should be given a. liberal interpretation in favor of jurisdiction. The plaintiff in error submitted to the authority of both courts until each one had decided against him, and now ought not to be permitted to defeat the jurisdiction he so long acknowledged upon any but the most meritorious ground.
The judgment of the district court is affirmed.
All the Justices, concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Six assignments of error are made, of which the first is the refusal of the court to strike out certain portions of the plaintiff’s petition which set forth the circumstances and long continuance of the engagement to marry and the seduction of plaintiff, which in themselves do not constitute a cause of action or any part of a cause of action, but which' are proper matters of proof for the consideration of the jury by way of aggravation of the damages for the breach of the contract to marry.
“As a general rule, it is not necessary to the plaintiff’s right of recovery that the particular circumstances of aggravation should be set out in the declaration, although such matters are not infrequently alleged, and in some cases have been required in order to warrant a recovery.” (5 Encyc. Pl. & Pr. 705.)
In Klopfer v. Bromme, 26 Wis. 372, 378, it was assumed that facts which go in mere aggravation of damages should not be allowed in evidence, unless pleaded, if objection be made on that ground. The general rule, however, does not seem to go that far. The allegation of such facts, instead of being prejudicial, is generally considered, if not a matter of right, as at least highly favorable to the defendant. If the facts pleaded are evidential, but are so remotely connected with the cause of action as to. form no part thereof, and, in so far as they pertain to stating a cause of action, are redundant and irrelevant, still it is within the discretion of the court to strike them out or retain them. (Drake v. National Bank, 33 Kan. 634, 7 Pac. 219.) Some, if not all, of the facts alleged are evidential upon the issue as to whether or not there was a contract to marry. (Johnson v. Leggett, 28 Kan. 590.)
The second and third claims of error relate to the admission of, and the refusal to strike out, the evidence of the plaintiff as to the courtship and oft-repeated promise to marry, continuing from 1896 to 1902, when first, it is said, a time was agreed upon for the fulfilment of the contract; also, the evidence as to the seduction of the plaintiff. We have examined this evidence, and find it all admissible for the purpose of establishing the disputed contract or in aggravation of the damages for the alleged breach of the contract. (Johnson v. Leggett, supra; Klopfer v. Bromme, 26 Wis. 372.)
It is urged further that the court erred in refusing to instruct the jury that it should disregard the evidence of the seduction of the plaintiff by the defendant in determining whether or not a contract to marry was entered into. Some limitation upon the application of this evidence might well have been given, but the instruction asked was properly refused. True it is, as contended, that if the defendant promised to marry the plaintiff in consideration of her consent to sexual intercourse no action could be maintained for damages for the breach of such contract, by reason of the immorality and illegality of the consideration. (Saxon v. Wood, 4 Ind. App. 242, 30 N. E. 797; Hanks v. Naglee, 54 Cal. 51, 35 Am. Rep. 67; Steinfeld v. Levy, 16 Abb. Pr., N. S., 26.) On the other hand, it is contended that the seduction was not accomplished in consideration of the promise to marry, but that the barriers of modesty and virtue were overcome long after the contract to marry had been made, by the defendant’s taking advantage of the plighted love and confidence of the plaintiff. The jury had a right to-consider this evidence, and if they believed the latter contention to be true they might well give it weight in determining the amount of damages to be awarded. They might also properly consider, if they believed plaintiff’s evidence, the years of courtship, the years of renewed promises of marriage, and all other cir cumstances which they found placed the plaintiff in a worse position, or debarred her from other opportunities of marriage. The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
In this case a separate discussion of each of the twenty-seven errors assigned would extend the opinion of the court to an insufferable length, and it would then be of no assistance to the profession generally.
The chief ground of complaint is that the court gave undue prominence to certain statements made in connection with the defendant’s charge that the plaintiff was guilty of contributory negligence. When these statements were first called to the attention of the court in the amended answer there was nothing about them to indicate that they might be prejudicial, and so far as the court.could tell they might become material on the trial. Hence there was no error in allowing the amended answer to be filed or in refusing to strike out the matter of which complaint is made.
When the instructions were given the court did not, as the plaintiff urges, impose the matters referred to upon the jury as ingredients of negligence. The weight to be given to every item of evidence in the case was left to the jury. The jury were plainly told that the plaintiff had the right to use his premises for all lawful purposes, including those for which they were adapted, and the test of his conduct under every phase of the case was stated to be that which an ordinarily prudent man would have exhibited under the circumstances. This being true, assignments of error numbered 1, 2, 3, 11, 12, 13, 14 and 16 fail.
The nature of the defendant’s duty under the circumstances of the case was fully and accurately explained, and the evidence was such that this court is unable to discover in what manner the jury would have been aided by reading to them the theoretical proposition of law stricken from instruction No. 8.
The modification of the instruction is readily distinguishable (Campbell v. Fuller, 25 Kan. 723), and the plaintiff has lost nothing by reason of the court’s conduct respecting it. The plaintiff presents conflicting theories in reference to this subject, but none of them is valid, and assignments of error numbered 6, 7, 8, 9 and 10 are not well taken.
Instructions numbered 14 and 18 correctly state the. law, and the jury may have believed from all the evidence that the plaintiff did not exercise due care notwithstanding his negotiations with the defendant respecting the plowing of fire-guards. It was not erroneous for the court to refuse the plaintiff’s oral request for instructions. Instruction No. 25 was properly given, and as it appears in the record is duly identified. This disposes of all the remaining assignments of error except those which are formal, and those numbered 4 and 5, which do not comply with rule 10 of this court.
The judgment of the district court is affirmed. | [
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Per Curiam:
This was an action brought by the plaintiff in error against the defendant in error to recover damages for the non-fulfilment in part of an alleged contract for the purchase of 100 show-cases, a part of the order having been delivered. The plaintiff introduced its evidence, rested its case, and the defendant demurred. The court sustained the demurrer, and, the plaintiff standing thereon, the court rendered judgment in favor of the defendant. The plaintiff brings the case here.
• The evidence showed that the plaintiff had a factory where it manufactured show-cases, and also that it had its principal place of business at Alliance, Ohio. The principal question in the case for our decision is whether or not the following letters constituted a contract to sell and to purchase between the plaintiff and the defendant. Under date of March 26, 1901, the plaintiff, by its president, wrote the defendant as follows:
“We are in receipt of your esteemed favor of March 21, in which you state that you are in the market for a considerable number of show-cases. ... In order that you may look into this matter somewhat, we are sending you under separate cover some cuts of our revolving show-cases, and we beg to state in this connection that the plan which you suggest — shipping out direct to the customer — is the one which we usually pursue, as we have found it to be very much more satisfactory in this, that it saves double handling and the expense thereto. In definite orders for 100, to be shipped from the factory within six months as you may direct, we will make you the following quotations:
Style A #1................... $15 00
Style B #1____:............... 9 00
Style A #1, without the handrail, which is the exterior means of revolving the inside of the case................. 12 00
Style B #1, without the handrail top, which is the exterior means of revolving the inside of the case................. 8 00
Copper oxidized pedestal, when desired, we furnish for...... 3 50”
Under date of May 15, 1901, the defendant wrote the plaintiff as follows:
“Back in March and April we had some correspondence with you relative to show-cases. I believe you quoted as follows:
Style #1, with hand-rail (A)
and bronze pedestal.........$18 50
Style B #1, without hand-rail.. 8 00
“Above prices f. o. b. cars, Alliance, Ohio.
“We now think of trying to sell a few of these cases and you may enter us for a hundred. We will pay for them as ordered out. Don’t know just the proportion of each but presume about two of the B to one of the A. Will you please send us a small size (the smallest you have) cut of each style, and, if you have them so, prefer for them to show jewelry, but if not, we will take, them and have plates made ourselves.”
It is claimed on the part of defendant that because a letter from the plaintiff proposed to sell 100 cases “to be shipped from factory,” whereas the defendant’s letter in answer thereto stated “I believe you quoted as follows: . . . Above prices f. o. b. cars, Alliance, Ohio,” that the answer did not constitute an acceptance of the offer as made, but attempted to modify it and accept it as modified. By the rules of construction of contracts,, it was the duty of the court below and is the duty of this court to determine if possible what was the meaning of the parties, and if their minds met upon one meaning the letters constituted a contract; otherwise there was no contract.
We are authorized in determining this question to consider the subsequent actions of the parties. In the first place, it may be noted that the language of plaintiff’s letter, if not ambiguous, was at least unusual. It is usual to speak of freight delivered upon and to be carried by the railroad as shipped. It is not usual to speak of goods delivered upon and carried by a dray as shipped, but the usual expression is carted or hauled. The defendant, it seems, recognized this ambiguity— if it may be so called — in the proposition, and interpreted it without an intention of modifying it. He says, in substance, I believe you quoted above prices f. o. b. cars, Alliance, Ohio. It is shown that the plaintiff either • originally intended its quotation as interpreted by defendant or afterward accepted the defendant’s interpretation, as it shipped a part of the goods on the order of the defendant oh that basis. The part performance evidences no misunderstanding, but is evidence of a complete understanding — a complete contract.
Some minor reasons for sustaining the judgment are discussed in defendant’s brief which we have examined and do not find well sustained. The question whether or not there was a contract seems to have been the question upon which the case turned, and as we have concluded that there was a contract between the parties the ruling of the district court in sustaining the demurrer to plaintiff’s evidence is reversed, and a new trial granted. | [
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Per Curiam:
The state’s motion to dismiss is denied, and the appellant is allowed to amend his assignments of error. This done, he still presents for consideration nothing prejudicial to his rights. The words “violently” and “forcibly” do not change the fact that the victim of appellant’s crime was only sixteen years old. If the information lacked certainty it should have been attacked by hiotion.
The little girl’s story to her grandmother was timely, and her reasons for not divulging the previous conduct of the appellant, her father, were pertinent. The appellant himself invited the explanation of the witness, Turner, that he would not allow the appellant’s father to talk to the little girl because he was offering money to stifle prosecution. The remark of the court to the state’s attorney postponing the introduction of anticipatory testimony was not improper, and the evidence of the doctor who examined the child was competent, relevant, and very material.
The instructions to the jury were correct, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
There was some attempt to show that the child was denied admittance to Mr. Werner’s room for the reason that there was no unoccupied seat there, while in Dodd’s room there was an abundance of seats; also, that the teacher did not reject the pupil by direction of the board of education. The teacher testified that he received more white pupils soon after this girl was rejected, and we think the evidence shows that the board of education maintained separate schools for white and colored children of the same grade, and that they were separated by reason of color; that this girl was refused admission to the school where she applied for admission for really the sole reason that she was colored; and that the act of the teacher in excluding her was done in carrying out the plans of the board of education in accordance with his- employment.
It is contended that the plaintiff is not the real party in interest, and hence is not entitled to maintain this action. In this state a parent is required by law to send his children of certain ages to school, and may be prosecuted criminally for his failure so to do. While several similar cases have been maintained in the name of the parent in this court, it does not appear that this question was raised therein. (Billard v. Board of Education, 69 Kan. 53, 76 Pac. 422, 66 L. R. A. 166, 105 Am. St. Rep. 148; Board of Education v. Tinnon, 26 Kan. 1; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616, 11 L. R. A. 830.)
Authority is not wanting for this procedure. (See The People v. The Board of Education of Detroit, 18 Mich. 400; State ex rel. Bowe v. Board of Education of the City of Fond du Lac, 63 Wis. 234, 23 N. W. 102, 53 Am. Rep. 282.)
. It is not contended that there is any statute in this state authorizing boards of education of cities of the second class to establish separate schools for the education of white and colored children. In the absence of such a statute it has been decided by this court that no such power exists, and we adhere to these decisions as expressing the law of this state. (Board of Education v. Tinnon, supra; Knox v. Board of Education, supra,) The board of education has no power to exclude colored children from schools established for white children for the reason solely that they are colored, in the absence of a statute conferring such power.
The peremptory writ of mandamus is allowed, as prayed for, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The sole issue in this case is whether Goode was the agent of the plaintiff to receive the alleged payment. It is not contended that Goode had the possession of the principal note or of the coupon claimed to have been paid at the time of the payment of the note. Goode could only become the agent of the plaintiff by will of the plaintiff and the acceptance of such agency by Goode. The intent of the plaintiff to make Goode his agent might have been evidenced by-written or oral instructions directing Goode to take charge of plaintiff’s loans generally at Wichita-and to collect the same at his discretion before or after maturity, or by such directions relating specifically to the loan of defendants; or such authority from the plaintiff to Goode might have been presumed by the defendants from transactions between the plaintiff and Goode which came to their knowledge before the payment. If the defendants had known of such transactions between the plaintiff and Goode prior to the payment as would justify them in believing that Goode had general authority over .the loans of plaintiff in that locality, and had authority to receive payment of the same before due and without the possession of the notes and mortgages securing such loans, the plaintiff would be estopped from denying the authority of Goode to receive the payment.
We think, however, there is no evidence in this case of express authority to Goode as a general or special agent of the plaintiff. Nor is there evidence of such dealings between the plaintiff and Goode, the knowledge of which came to the defendants before the payment, as would justify them in presuming such agency or would estop the plaintiff from denying the same. Statements of the alleged agent made in the -absence and without the knowledge of the plaintiff, at the time of the execution of the note and mortgage, that the interest coupons might be páid to him, are not competent evidence upon the issue in this case. Nor are letters written by the plaintiff to the alleged agent which relate only to specific claims against other persons, and of which the defendants had no knowledge at or before the time of payment, competent evidence. Nor are the entries in a loan register, not a book of accounts, kept by the alleged agent, of which neither the plaintiff nor the defendants are shown to have had any knowledge prior to the alleged payment, competent evidence upon the issue in this case.
Where a debtor delivers money to a third person for the purpose of paying a note which is not due, and of which such person is not in the possession, the presumption is that the person receiving the money does so not as the agent of the creditor but as the agent of the debtor. This presumption can only be overcome and the converse established by evidence to the contrary. The presumption of agency from the possession of the note by the person claiming payment is ordinarily sufficient in itself to justify the debtor in making the payment, and the want of such possession is of itself sufficient to put the debtor upon inquiry as to the authority of the agent to receive payment. If this be so, it would seem that the circumstances must be strong, in the absence of direct authority from the creditor, that would justify a debtor in paying a note, especially one not due, to a pretended agent so as to bind the creditor thereby. Such circumstances, it would seem, must practically amount to an estoppel upon the creditor to deny the authority of the agent —an estoppel in pais.
If the dealings of the plaintiff with the defendants or with others, of which the defendants were cognizant, reasonably led the defendants to believe that Goode had full authority from the plaintiff to receive payment of the debt without having possession of the note, and if the defendants made the payment to Goode relying upon such conduct of the plaintiff, then it might be said that it would be a fraud for the plaintiff to deny Goode had such authority, and the plaintiff might be estopped by such conduct from denying it; but such is not the evidence in this case. The evidence of Williams as to what Goode said in regard to the payment of the interest coupons to him would only be competent after the agency of Goode was established, and is incompetent for the purpose of establishing such agency. It is not shown that Williams relied on the transactions set forth in the letters, or in the entries in the loan register, as he is not shown to have had any knowledge of either at the time of the payment.
There are other trial objections, but they are really based upon the incompetency of the evidence referred to above and we do not consider it necessary to discuss them. The judgment of the district court is reversed, and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The defendants are partners engaged in the manufacture and sale of buggies and other vehicles. They employed the plaintiff to work for them as collector, agreeing to pay him eighty-five dollars per month and traveling expenses. The contract provided that it should not take effect until a bond for the faithful performance of the plaintiff’s duties was given and approved, and further provided that the plaintiff might be discharged for incompetency, immorality, or failure to comply with instructions. His instructions covered the subjects of'stated reports of business done, the keeping of accounts, the remittance of cash collected, and the forwarding of renewal notes. The defendants undertook to forward drafts to cover the items of the plaintiff’s expense accounts as soon as reports were received, so as to keep seventy-five dollars for expense money always with him.
The employment was terminated at a time when the plaintiff had in his possession a considerable sum of the defendants’ money and a number of notes belonging to them. A replevin action was instituted for the notes, which were later delivered to the defendants, but the plaintiff continued to retain the cash.
Afterward the plaintiff instituted the action from which this proceeding in error arises to recover his wages, charging the defendants with the amount due on that account and the amount of his traveling expenses, and giving the defendants credit for money he had received. The defendants answered pleading payment, and pleading facts showing that the plaintiff had been in their service for a shorter period than that stated in the petition. These facts were the failure to give bond at the commencement of the service, and a discharge for incompetency, immorality and failure to obey instructions before the date the plaintiff claimed his employment ceased. A counter-claim for moneys of the defendants received and retained by the plaintiff was added to the answer.
On the trial the jury returned a verdict for the plaintiff. The evidence introduced by the defendants would bear the interpretation that the plaintiff had been quite remiss in following instructions. Because of this fact, and because of the plaintiff’s retention of the defendants’ money and notes after his discharge, it is claimed the plaintiff forfeited all compensation; and the court was requested to instruct the jury upon that theory. The refusal of the court to give such instructions gives rise to the only substantial law question in the case.
The contract did not go to the extent of forfeiting compensation for time which had elapsed in the event of a discharge for incompetency, immorality, or disregard of instructions. Those facts having been considered by the parties and made the subject of a special agreement, the law should not, ordinarily, annex penalties beyond those stipulated for. But conceding that the conduct of the plaintiff was sufficiently culpable to justify the application of the rule sometimes invoked in cases of embezzlement (Peterson v. Mayer, 46 Minn. 468, 49 N. W. 245, 13 L. R. A. 72), and other flagrant acts of dishonesty and crime (Turner v. Kouwenhoven, 100 N. Y. 115, 2 N. E. 637), the answer went no further than to dispute the length of time the service continued and to allege payment of the indebtedness described in the petition. The claim of a forfeiture of compensation is therefore not within the contemplation of the answer. That such a forfeiture is a matter of defense is clear, and consequently the facts upon which it is based must be pleaded. This being true, the requested instructions were rightfully refused, and the special questions which the court refused to submit to the jury were rightfully withheld.
The defendants submitted to the jurisdiction of the court by giving a forthcoming bond for the attached property. The signature used as a basis for comparing handwriting appears to have been prima facie proved.
Under the long-established practice in this state the general assignment of “error of law occurring at the trial” as a ground for a new trial is not limited by the specific mention of grounds which by construction might have been included within it.
No answer having been made to the sixth assignment of error, the judgment of the district court will be modified by reducing it $15.20. As modified, the judgment is affirmed. The costs in this court are divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
On September 2, 1903, the district court of Sumner county rendered a judgment revoking the license of Cleo D. Burnette to practice as an attorney and counselor at law. From that judgment an appeal was taken to this court, under the provisions of section 403 of the General Statutes of 1901, which reads as follows:
“In case of a removal or suspension being ordered by a district court, an appeal therefrom lies to the supreme court, and all the original papers, together with a transcript of the docket entries, shall thereupon be transferred to the supreme court, to be there considered and finally acted upon. - A judgment of acquittal in the district court is final.”
When the appeal was heard it was argued that the judgment was erroneous because the accusation had been verified upon information and belief only, and because,. after appellant had failed to answer, the court, acting under section 402 of the General Statutes of 1901, rendered such judgment as the case required without hearing evidence. Upon consultation, it was understood that a majority of the court believed that the judgment should be reversed because it had been rendered without evidence in support of the accusation. A minority also thought the accusation to be insufficiently verified. Therefore an order was made remanding the cause to the district court, with instructions to set aside its judgment and to proceed with a' hearing upon the accusation. Various members of the court expressed their views, from which it appears that, while the order of reversal was agreed to by a majority, neither ground of reversal was sustained, and the judgment of the district court should have been affirmed. (In re Burnette, 70 Kan. 229, 78 Pac. 440.) This fact was not noted until the order of reversal had gone into effect.
Upon the return of the cause to the district court a trial was had, and a judgment of disbarment was again entered, from which the present appeal was taken. The accused now claims this court had no power to remand the cause; that the appeal is for the purpose of a hearing de novo; that the object of filing all original papers and a transcript of the docket entries in this court is that a trial de novo may be had; that when the original papers are transferred to this court they are to be considered independently of the judgment of the district court, and that a final judgment must be rendered upon them here.
In this state remedies in courts of justice are divided into two classes — actions and special proceedings. An action is an ordinary proceeding by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. There are two kinds of actions — civil and criminal. A criminal action is one prosecuted by the state as a party against a person charged with a public offense, for the punishment thereof. Every other action is a civil action. Every remedy other than an action is a special proceeding. (Gen. Stat. 1901, §§ 4431-4436.)
A disbarment proceeding is not prosecuted by the state as a party. Many causes for disbarment are not denounced as crimes at all. Acts amounting to offenses under the crimes act which constitute causes for disbarment are such only because they disclose a disqualification to exercise the rights, privileges and powers of an attorney and counselor at law. Proceedings to disbar an attorney on account of criminal conduct connected with the practice of his profession are wholly independent of any prosecution for crime. The proceeding to disbar is not for the punishment of the derelict attorney, but for the protection of the courts, the legal profession, and the administration of justice generally. The purpose is not to enforce a forfeiture against the accused in the sense of an amercement, or to visit any kind of retribution upon him!, but to deprive him of the power and opportunity to abuse an office. In all free governments crimes must be defined by the legislative power so that nothing is left to the courts but to interpret and administer its will. But every court has the right to purge its roll of persons guilty of misconduct, whether the acts done have been proscribed in advance or not.
It is true, as stated in Peyton’s Appeal, 12 Kan. 398, that the public is benefited by the disbarment of a disreputable lawyer, that it involves him in disgrace, and that it takes away from him the means of gaining a livelihood. The gravity of the matter suggests caution and strictness; But it contravenes the express classification of the statute, is destructive of scientific accuracy, and leads to confusion, to call the proceeding criminal. This confusion is nowise clarified by using the hybrid expression “quasi-criminal.” It involves an ancient fallacy to give a thing a name and then attempt to prove its attributes by that name. The learned judge who presided at the last trial was no doubt misled by the sometime description of the proceeding as criminal. He excluded important deposi tions taken against the appellant, holding that the accused had the right to meet the witnesses face to face. Such is not the law (4 Cyc. 915), and the circumstance illustrates the great danger lurking in the unnecessary employment of unauthorized.terms. It is sufficient to say with the legislature that the remedy of disbarment is a special proceeding. The special statute regulating the matter must be observed so far as the steps to be taken have been prescribed. Otherwise the proceeding must be conducted in general harmony with the practice of the courts in civil matters. Thus, notwithstanding thé statute requires the evidence to be reduced to writing, filed and preserved, and all original papers, together with a transcript of the docket entries, to be filed in this court upon appeal, testimony not incorporated in a bill of exceptions or case-made allowed and settled by the judge will not be considered here. (In re Norris, 60 Kan. 649, 57 Pac. 528.)
In this state, except in certain specified matters, the supreme court is a court of error and review. In criminal cases it may reverse, affirm or modify the judgment appealed from, or may order a new trial. In civil cases it may affirm, reverse, vacate, or modify, grant new trials, and, if the facts be found or agreed to, may designate, the character of judgment to be entered. But in all appellate cases the supreme court considers the conduct of the lower court. Error must be assigned as inhering in the rulings, orders and judgments appealed from. The supreme court decides the questions thus presented as they arise upon the record, and issues its mandate to the tribunal from which the appeal was taken to carry the judgment rendered into execution. Such being the general character of appellate procedure in this state, a trial de novo here would be an anomaly,, and can take place only under the compulsion of some sovereign command. Elsewhere it is held that trials de novo can be had in appellate courts only by virtue of express authority, and statutes to that effect are to be strictly construed. (3 Cyc. 260.)
It is doubtful if the disbarment statute of this state is of the peremptory kind required. The use of the word “appeal” does not alone import a trial de novo. The old civil-law signification no longer obtains, and the term not merely includes but is commonly used to designate a review of the proceedings of an inferior court brought up as by writ of error. (Styles v. Tyler, 64 Conn. 432, 458, 30 Atl. 165; Dutcher v. Culver, 23 Minn. 415, 420; Lyles v. Barnes, 40 Miss. 608, opinion; The State of Florida, ex rel., v. King, 20 Fla. 399; In re Jessup, 81 Cal. 408, 465, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594.) That the appellate jurisdiction of this court under the constitution includes proceedings in error no one will deny. The limitation of final consideration and action to original papers (which do not include evidence; In re Norris, 60 Kan. 649, 57 Pac. 528), and a transcript of the docket entries, might be taken to indicate that the facts are not to be reinvestigated at all rather than that they shall be tried anew; and the entire statute lacks the certainty and the mandatory quality necessary to engraft this alien practice upon our appellate procedure.
Appellant cites the case of State v. Mosher, 128 Iowa, 82, 103 N. W. 105, in support of his contention. The Iowa statute relating to appeals in disbarment cases reads like our own, and in- the opinion it was said that under the section relating to the revocation of the license of an attorney, and providing that all the original papers, with a transcript of the record, shall be transferred to the supreme court on appeal, to be there considered, the supreme court is to consider the case de novo. Contrary to the law of Kansas, the practice of trying certain cases de 'novo in the supreme court is an established feature of the judicial system of Iowa. In the opinion cited the question at issue is not discussed at all, and the decision was rested upon the case of In re Crum, 7 N. Dak. 316, 75 N. W. 257, which was disposed of under, a statute obliging the supreme court to try and determine disbarment appeals as the law and the evidence might warrant. Therefore State v. Mosher is not of controlling authority. The statute under consideration being ambiguous, it must be interpreted in a manner to uphold it if possible. If it were given the meaning recognized by the Iowa court it would be unconstitutional, and therefore void.
The jurisdiction to consider and decide causes de novó is in its essence original. The manner in which a case reaches the higher court is not the test. Jurisdiction being the power to hear and determine, the nature of the functions to be exercised controls, whether they are brought into activity by primary process or by removal from a,n inferior tribunal. Upon a trial de novo the power of an appellate court in dealing with the pleadings and the evidence, in the application of the law, and in the rendition of judgment according to the right of the case, all independent of the action of the lower court, is no different from what it would be if the case were begun there originally, and hence is not appellate within the meaning of laws creating jurisdiction. (Lacy v. Williams, 27 Mo. 280; County of St. Louis v. Sparks, 11 Mo. 201; Ex Parte Henderson, 6 Fla. 279; The State, ex rel., v. Vann, 19 Fla. 29.)
The constitution of this state provides:
“The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace; and such other courts, inferior to the supreme court, as may be provided by law. . . .
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law.” (Const, art. 3, §§ 1, 3; Gen. Stat. 1901, §§ 148, 150.)
The distinction between original and appellate jurisdiction is here clearly drawn. The supreme court, as the head of the judicial system, was not made the forum for general litigation. The protection and enforcement of rights, the prevention and redress of injuries and the punishment of crimes are committed to district and inferior courts of general jurisdiction, where all ordinary actions are to be initiated and determined. A few matters of great public importance and certain depredations upon personal liberty are cognizable in • the first instance by the supreme court, through proceedings in quo warranto, mandamus, and habeas corpus. But even in such cases some special reason must exist for invoking its powers or parties will be relegated to a court of general jurisdiction for relief. (The State, ex rel., v. Breese, 15 Kan. 123; Evans v. Thomas, 32 Kan. 469, 476, 4 Pac. 833; Supreme Lodge v. Carey, 57 Kan. 655, 47 Pac. 621; The People v. City of Chicago, 193 Ill. 507, 62 N. E. 179, 58 L. R. A. 833; The People v. Board of Trade, 193 Ill. 577, 62 N. E. 196; and cases cited in these opinions.)
It would be entirely impossible for a single supreme court to hear and decide controversies generally, arising within the state, upon their merits; and if any considerable number of them were to be heard anew little opportunity would remain for the performance of the true functions of an appellate court. Therefore the constitution establishes a classification of its own, and in all except the extraordinary matters referred to the power of the supreme court is limited to expounding the law and supervising the conduct of inferior tribunals by correcting errors in the decisions which they may promulgate.
It is beyond the power of the legislature to enlarge the scope of the original jurisdiction to which this court is confined, either directly by authorizing the primary consideration of causes other than those specified in the constitution, or indirectly by including such cases within its review power on appeal.
“This court is created by the constitution, and the outlines of its jurisdiction established by that instru ment. It has original jurisdiction in three specific classes of cases, which it possesses independent of any legislation, and such appellate jurisdiction as may be provided by law. The jurisdiction of the court under this last provision is wholly dependent upon the will of the legislature. It may be enlarged or restricted, as the legislature shall prescribe; but in all its acts the legislature is still under the restriction that the jurisdiction conferred must be appellate, not original.” (Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500, 504, 7 Am. Rep. 575. See, also, The State, ex rel., v. Wilson, 30 Kan. 661, 2 Pac. 828.)
In the case of Klein v. Valerius and another, 87 Wis. 54, 57 N. W. 1112, 22 L. R. A. 609, it was held that since the jurisdiction of the supreme court of Wisconsin under the constitution of that state was appellate only, except in specified cases, a statute attempting to make it the duty of the court, to examine and review the evidence preserved by a bill of exceptions, and give judgment according to the right of the case, regardless of the decision by the court below upon questions of fact as well as of law, was unconstitutional and void. The opinion reads:
“It is suggested, however, that the recent amendment to section 3070, Revised Statutes, by section 2, chapter 242, Laws of 1893, makes it the ‘duty’ of this court to review ‘all questions of law or fact presented by the record upon such appeal or writ of error,’ and ‘to examine and review the evidence when the same is preserved by a bill of exceptions, and give judgment according tó the right of the cause, regardless of the decision upon questions of fact or law made by the court below, according to law and equity.’ . . . Undoubtedly, within certain limits, the legislature has power to regulate the practice of this court; but it must be remembered that this court, as well as the legislature, gets its judicial power and jurisdiction directly from the constitution. That instrument declares that ‘the judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and'in justices of the peace.’ (Sec. 2, art. 7.) It moreover declares that ‘the supreme court, except in cases otherwise pro vided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state; but in no case removed to the supreme court shall a trial by jury be allowed.’ (Sec. 3, art. 7.) The case at bar is not one of those otherwise provided for in the constitution, and hence is not within the exception mentioned. ... It may be added that much less can the legislature take anything from the original jurisdiction of the circuit- courts and give the same to this court in cases in which it has only appellate jurisdiction. We must hold that, in so far as section 2, chapter 242, Laws of 1893, has attempted to give this court original jurisdiction in cases in which, under the constitution, it only has appellate jurisdiction, the .same is null and void.” (Pages 59, 60, 62.)
. In Florida the constitution conferred jurisdiction in civil actions at law upon justices of the peace, if the amount or value involved should not exceed $100. It also gave the circuit court original jurisdiction if the amount or value in controversy should exceed $100, and final appellate jurisdiction in cases coming from justices’ courts in which the amount or value should be twenty-five dollars or upward. The legislature passed .an act providing that when an appeal should be perfected the justice should transmit to the clerk of the circuit court a certified copy of all the entries in his docket and all papers filed in the case, and providing that “thereupon the said appellate court shall proceed to hear the said cause, and may allow such amendments therein as may be just, and render such judgment as may be conformable to law and the justice of the case. The trial shall be by jury, if demanded by either party.” A subsequent statute provided that “all appeals taken from a judgment of any justice of the peace shall be tried de novo” The supreme court held these acts to be unconstitutional, as attempting to confer original jurisdiction on the circuit court, saving them, however, to the extent that they provided a method of bringing up eases for review on error ac cording to the proper appellate jurisdiction of the circuit court. In the opinion it was said:
“ ‘Appellate pertains to the judicial review, of adjudications. Appellate jurisdiction is the power to take cognizance of and review proceedings had in an inferior court, irrespective of the manner in which they are'brought up, whether by appeal, or by writ of error.’ . . . The case of Ex parte Henderson, in 6 Fla. 279, decided that the trial de novo of a cause coming to the circuit court on appeal from a justice’s court was the exercise of original rather than appellate jurisdiction. . . . Where words confer only appellate jurisdiction, original is clearly not given. (Ex parte Henderson.) And especially where the constitution draws the line distinctly, and clearly declares where the boundary is, it is beyond the power of the legislature to establish a different one.
“The constitution confers on circuit courts appellate jurisdiction, and it is confined to the limits there defined. Whether exercised by a writ of error, certiorari, or appeal, as may be provided by statute, it is still appellate, and its office is to review the proceedings of the inferior tribunal and to decide the law of the case as presented by the record legitimately brought up by the appeal.
“The constitution conferring on parties the right of appeal, and on the circuit courts the power to entertain it, the statute has provided how an appeal may be taken. While it is evident that the legislature had in view a trial by the exercise of original jurisdiction of the cause appealed, yet so far as it provided the machinery by which the appeal might be effected the law is valid to give the circuit court power to dispose of the case; while so much of the law as provided for a trial by a jury, or otherwise than by a review, is not authorized but conflicts with the constitutional restriction. The appeal here provided operates as a statutory writ of error, bringing up the proceedings for examination and judgment upon their validity. Hendricks v. Johnson, 6 Porter, 472; Lewis v. Nuckolls, 26 Mo. 278; Lyles v. Barnes, 40 Miss. 608.” (The State, ex rel., v. Baker, 19 Fla. 19, 26.)
The constitution of the state of Connecticut provides as follows:
“The judicial power of the state shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall, from time to time, ordain and establish; the powers and jurisdiction of which courts shall be defined by law.” (Art. 5, § 1.)
In 1893 the legislature of that state passed an act in the following terms:
“Sec. 7. Either party may appeal, from any finding or refusal to find any fact, to the supreme court of errors in the manner now by law provided.”
“Sec. 9. The supreme court shall review all questionsfof fact raised by the appeal as well as all questions of law, and in all cases where no evidence has been improperly admitted or excluded in the trial court shall determine the questions of fact and law and render final judgment thereon. In passing upon said qtiestions of fact said supreme court shall not reverse the finding of the trial court upon any question of fact, unless it find the conclusions of such trial court upon such question clearly against the weight of evidence.
“Sec. 10. The rights of appeal under this act shall be in addition to those now provided by law, and the provisions of this act shall apply to all suits now pending.” (Pub. Acts Conn. 1893, ch. 174.)
From the use of the name “supreme court of errors,” and from a consideration of the history of the judicial establishments of the state prior to the adoption of the constitution, in 1818, the court, in Styles v. Tyler, 64 Conn. 432, 30 Atl. 165, came to the following conclusions respecting its powers:
“The most significant feature in the establishment of the court is found in the fact that it was the deliberate adoption into our system of judicature of the fundamental principle, which has ever since characterized it, that the certainty of our jurisprudence as well as the security of parties litigant depends upon confining the jurisdiction of a court of last resort to the settlement of rules of law. . . . Two courts are established and the.character of their jurisdiction described by the constitution itself; one with a supreme jurisdiction in the trial of causes, and one with a supreme and final jurisdiction in determining in the last resort the principles of law involved in the trial of causes. The ‘superior court’ is a ‘superior court of judicature over this state,’ with a supreme jurisdiction original and appellate over the trial of all causes not committed to the jurisdiction of inferior courts. The ‘supreme court of errors’ is not a supreme court for all purposes,, but a supreme court only for the correction of errors in law. . . . The judicial power committed to the court was intended to secure the people against a mixed jurisdiction they deemed unwise and unsafe.” (Pages 447, 450, 453.)
Consequently it was held that the act quoted did not authorize the court to determine, from evidence spread upon the record brought up by appeal, questions of pure fact settled by the trial court. The syllabus of the case reads:
“The supreme court of errors, as established by the constitution' of this state, is a court of last resort for the correction of errors, and its jurisdiction as described in the constitution relates to the determination of principles of law and not to the trial or retrial of pure questions of fact.
“In view of such jurisdiction, chapter 174 of the Public Acts of 1893 cannot be construed as requiring this court to determine, upon evidence spread upon the record, questions of pure fact settled by the judgment of the trial court.” (Styles v. Tyler, 64 Conn. 432, 30 Atl. 165.)
In the case of Jasper v. Hazen, 4 N. Dak. 1, 58 N. W. 454, 23 L. R. A. 58, it was said:
“Under section 25, chapter 120, Laws of 1891, this court is required,' upon appeal, to review questions of fact in cases tried by the court or referee, when exceptions to the findings are duly taken and returned. But this court will not try the case de novo. The findings below are presumed to be correct. Appellant must show error, and a finding based upon parol evidence will not be disturbed unless the error be made clearly to appear.” (Syllabus.)
This doctrine is approved. The less-pronounced views announced in the case of Christianson v. Warehouse Association, 5 N. Dak. 438, 67 N. W. 300, 32 L. R. A. 730, are not in harmony with the principles which lie at the foundation of the judicial system of this state. The decisions quoted are entirely sound, and are conclusive against the appellant’s contention.
In the case of Marbury v. Madison, 5 U. S. 137 (reprint, vols. 5-6, p. 49), 2 L. Ed. 60, involving the power of congress to authorize the supreme court of the United States to issue the writ of mandamus, Chief Justice Marshall said:
“The act to establish the judicial courts of the United States authorizes the supreme court ‘to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.’ . . . The constitution vests the whole judicial po^er of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.
“In the distribution of this power it is declared that ‘the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.’
“It has been insisted at the bar, that as the original grant of jurisdiction to the supreme and inferior courts is general,. and the clause assigning original jurisdiction to the supreme court contains no negative or restrictive words, the power remains to the legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.
“If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction where the constitution has declared their jurisdiction shall be original, and original jurisdiction where the constitution has declared it shall be appellate, the distribution of jurisdiction made in the constitution. is form without substance. . . . When an instrument organizing fundamentally a judicia.1 system divides it into one supreme and so many inferior courts as the legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and hot appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, hnd for adhering to the obvious meaning. .
“To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. •
“It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.
“It is the essential criterion of appellate, jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.
“The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution.” (Reprint, vols. 5-6, pp. 66-68.)
The statute in question does no more than to pro-wide in part a special method for bringing disbarment cases to this court for consideration according to its constitutional jurisdiction, which includes nothing except a revision of errors appearing upon the record and power to enforce the decision rendered. There-, fore,' the judgment upon the first appeal remanding the cause was valid, and invested the district court with authority to proceed as directed.
At the second trial appellant objected to the jurisdiction of the district court, and after conviction moved an arrest of judgment, because the accusation had been transmitted to this court on appeal, and was not then technically on file in the district court. It is true that this court made no special order relating to the transfer of the original papers to the district court and their custody pending the proceedings there. But this fact did not deprive the district court of jurisdiction. When the cause was remanded the district court had the same jurisdiction it originally possessed, and the absence of the accusation from its files could not terminate its authority. The accusation having once been filed in the district court, no useful purpose could be subserved by refiling it. The reason for requiring papers to be filed is to preserve their identity, and to afford them the protection secured to court records. So long as the accusation was in official custody this purpose was accomplished. It is true that the original papers ought to be present in the district court during the trial, in order that the court and the parties may be able to conduct and verify each step of the proceeding by them. The record indisputably shows that the original papers in this case not only were present in the district court at the trial, but that counsel for appellant used the accusation in the cross-examination of a witness, and introduced another original paper in evidence. What danger to the appellant would have been circumvented if the accusation had been refiled, or what embarrassment he suffered because it was not,, he forbears to disclose. The circumstance afforded no ground whatever for assailing the jurisdiction of the district court. It did serve the appellant, however, as a flimsy pretext for not answering the accusation, and for refusing to give testimony regarding the nefarious transaction disclosed by the evidence adduced by the prosecuting committee.
The legal sufficiency of the evidence to support the findings of the trial court is challenged. The charge against Burnette, briefly stated, is that he manufactured a spurious letter to be used as evidence on the trial of a civil action in the district court of Sumner county, and at such trial, as a witness, falsely swore to the genuineness of the letter. On July 21,1902, May Randolph brought a suit in the district court of Sumner' county against Eli McCauIIey and others for the specific performance of a contract for the sale of land. It was necessary to make out the alleged contract from. letters written by Burnette to McCauIIey and answers thereto by McCauIIey to Burnette. On May 80, 1902, Burnette reported a sale, and among other things said:
“I started to make out a deed for the place but discovered that I did not know the names of all the parties who should sign the deed; consequently I have made out a list of the heirs as best I could and herewith enclose them on a separate sheet. I wish you would examine the names of these parties on this separate sheet and those that I have not completed I wish you would complete if you can and return them to me.”
On June 4 Burnette wrote again:
“Please send me list of heirs, stating whether they are married or single, and if married give the names of their husband or wife, as the case.may be, so that I can make out deed at once. ■ I sent you a statement in my last letter of this kind for you to fill out, but it seems that you overlooked it. Deed cannot be made until I have the names of the parties who are going to give the deed.”
Other letters passed between the parties. Mr. Ed. T. Hackney represented Randolph, and copies of the letters Burnette had written to McCaulley, made from Burnette’s letter-press copies, were given to him. The original letters McCaulley had written were also given to him. Mr. Ivan D. Rogers represented McCaulley, and received from his client the letters Burnette had written.
Preparatory to the trial, the attorneys for the respective parties agreed that the correspondence might be introduced without preliminary proof. To avoid mistake Hackney and' Rogers checked over the correspondence, and Rogers was not informed of any letter of May 31,1902. Shortly before the trial Rogers went to Burnette’s office and told him he wanted to be sure he had all of Burnette’s letters to McCaulley, and asked him to get his letter-book, so the fact could be determined, as he - wanted to be sure. Burnette took his letter-book, Rogers held his letters, and the two went through them to ascertain the fact, and no copy of any letter of May 31, 1902, was pointed out to Mr. Rogers. When the trial occurred, on May 29, 1903, a purported copy of a letter from Burnette to McCaulley, dated May 31, 1902, containing important matter bearing upon the rights of the parties, was offered in behalf of the plaintiff-Objection was made because no such letter had ever been heard of by the defendant’s counsel prior to that time. Burnette was sworn as a witness and testified that he had corresponded with McCaulley; that his stenographer kept copies of his letters to McCaulley; that the letters in a letter-book produced were copied in the order in which they were written; that he wrote a letter of May 31, 1902, corresponding to a copy contained in the book; that he kept a copy of that letter; that the copy in the book was correct; and that the letter was mailed to McCaulley. He further stated that in making copies of letters for Mr. Hackney he made copies of the letters relating to the sale as shown by the letter-press book. The court prudently adjourned the case to a later date.
• On August 6, 1903, when the trial of Randolph against McCaulley was resumed, Burnette declined to testify, on the ground that his testimony might incriminate him. He did testify, however, that he dictated the letter of May 31, 1902, to his stenographer, Miss Barnes. He was not pressed to state when or under what circumstances the dictation occurred.
On August 6, 1903, the accusation involved in this proceeding was prepared and verified, and on the next day it was presented to the court. On September 2, 1903, the first judgment in disbarment was rendered. On September 4 an application was made to set aside the judgment, and the court made an order that if before September 8 an answer should be filed containing a defense to the accusation the judgment would on that day be set aside. On September 4 Burnette subscribed and swore to an answer to the accusation before a notary public, which answer gave a detailed account of the writing of the spurious letter in his office and the making of the copy of it in his letter-book some time in the month of August, 1902. These acts, however, although committed in his presence, were attributed to another person. Various conversations with the party charged to be the actual writer, relating to the transaction, were narrated, and the following admission was made:
“That some time afterward, along in the first days of September, 1902, this respondent made a lead-pencil copy of said letter on a piece of typewriting paper and dictated the same from said copy to said Morah Barnes, who was at that time a stenographer in the office of Elliott & Burnette; that this respondent shortly afterward told said Morah Barnes that she need not write said letter and she could tear it up or scratch it out. The dictation of said letter to said Morah Barnes was done at the request and the suggestion of- [the person charged with writing the letter] and so said Morah Barnes could get and would be under the impression, and of the opinion, that she had written such a letter in which the .name of Randolph was mentioned.”
The answer concluded with the statement that while on the witness-stand in the trial of Randolph against McCaulley the accused did not intend to say he wrote or dictated the letter of May 31, 1902, or that he copied it in his letter-book. When Burnette presented himself before the notary to be sworn to this document he asked the officer to read it, which he did. The papelwas discussed between them, and the notary hesitated to have any relation to it because it implicated other persons and he feared it would cause trouble. On the same day Burnette gave an interview to Mr. H. L.' Woods, editor of the Wellington Daily News, containing the same facts which were embodied in the answer, but somewhat more in detail. A portion of the interview reads as follows:
“ ‘On one of these occasions - said that he would write and copy the letter and he and Randolph would take the witness-stand when the suit came up and swear that they knew the letter was written before the suit was filed because they saw it. I finally yielded, and-sat down to write the letter on our typewriter.’ . . . ‘Who changed the figures in the index in the letter-book?’ Burnette was asked. ‘Those changes I made. I think it was along in February or March this year. I had given Miss Barnes orders to make copies of all the McCaulley letters, and when this letter was not copied I thought it would be well to change the indexing so that the letter would show. The figures are mine and I scratched the others out.’ ”
The interview was printed in the evening issue of the paper named. On the evening of September 5 Burnette left the state, after making an effort to conceal the fact that he was going, and did not return until March 4, 1904. On his return he published the contents of his answer in the disbarment proceedings (which, however, had never been filed) in the petition filed against Mr. C. E. Elliott, which was considered by this court in the case of Elliott v. Burnette, 72 Kan. 624, 84 Pac. 374. In this petition he denied the truth of the facts he had sworn to in the answer, and asseverated the genuineness of the letter of May 31,1902.
Meanwhile Mr. Woods had been arrested for libel, by the party implicated by Burnette, on account of the publication of Burnette’s interview. On the trial of the libel case Burnette was a witness. He admitted the conversation with Woods on the morning of September 4, 1903, examined a copy of the Wellington Daily News of that date, and stated that it contained the substance of such conversation, but declined to say whether the matter was true because it might incriminate him. He did, however, make the following further significant admissions:
“Ques. Do you refuse to testify on the ground that your testimony in regard to the statement made to Mr. Woods would tend to incriminate you because of your testimony on the trial of Randolph against McCaulley? Ans. Ido. I. think it might; yes, sir. Let me see that paper. (“Exhibit C” handed to witness.) I think I can testify to parts of that article, except to the part that has to do with the writing or copying and the mailing of the letter.
“Q. Was there a conversation between you and -in regard to writing a letter to Eli McCaulley and dating it back at any time after the suit of Randolph against McCaulley had been brought? A. There was.
“Q. Where did that conversation take place? A. Took place in our office.
“Q. Office of Elliott & Burnette? A. Yes, sir.
“Q. Was Mr. Elliott there? A. No, sir.
“Q. Was Morah Barnes there? A. No, sir.”
“Q. Did you and-have any conversation in regard to the letter, or copy of the letter, dated May 31, 1902, purporting to have been addressed to Eli Mc-Caulley and written by you, after the 29th of May, 1903, and prior to the 6th day of August, 1903? A. Did we have any conversations?
“Q. Yes, sir. A. Yes, sir.
“Q. How many conversations did you have? A. Well, of course, I wouldn’t undertake to say how many, but then there were fifteen or twenty, I should judge, at different times between those dates.”
It is of course plain to every lawyer that there could be no occasion for talking about writing a post-dated letter if the letter of May 31, 1902, were genuine. A genuine letter would not have aroused the feverish agitation which led to fifteen or twenty consultations about it. If the letter had been genuine a copy of it would have been given to Hackney, who would have shown it to Rogers when they were checking up the correspondence; and Burnette would have called attention to its absence when Rogers was checking up the correspondence to be sure he had it all. Not being genuine it was necessary to conceal it from Rogers until the trial; else Rogers would have had time to interrogate his client, a non-resident of the state, and the scheme would have failed or would have been exposed. Burnette’s letter to McCaulley of May 30 contained the list of heirs. His letter of June 4 referred to that letter as the last, and left no room for one of May 31.
These facts are all inconsistent with the genuineness of the disputed letter. They are consistent with the interview with Woods, and with the disbarment answer. The statements in the petition against Elliott were probably inserted in a floundering attempt on the part of Burnette to rehabilitate himself after he had absconded and returned. Whether Burnette fabricated the letter alone, or had a confederate, is immaterial. The court was abundantly justified in finding the accused guilty, and its conclusion is fortified by the failure of Burnette to interpose in court any single written or oral statement, either in denial or explanation of the facts charged against him, from the day the accusation was filed to the present time. (Matter of Randel, 158 N. Y. 216, 52 N. E. 1106; In re Wellcome, 23 Mont. 450, 468, 59 Pac. 445; Ex parte Thompson, 32 Ore. 499, 52 Pac. 570, 40 L. R. A. 194; The People v. Webster, 28 Colo. 223, 225, 64 Pac. 207.)
Some objections to the admission of evidence are argued. The disbarment answer was proved, after the original had been traced into Burnette’s possession, by a copy taken by one of his attorneys, who furnished it to the prosecuting committee. It is claimed the paper was privileged. As already shown, Burnette published the matter contained in this answer to the notary who administered the oath to him. He published the same matter to Woods. He again published it in his petition against Elliott. It was then no longer private or confidential or privileged. Whenever a party to a cause voluntarily solicits and procures the reading of his unfiled pleading by a non-professional stranger, bruits it in a newspaper interview, and blazons it upon the records of a court of general -jurisdiction in another pleading filed against the attorney who assisted in preparing it, the privileged character of the document is waived; it then becomes common public property; the attorney is released from the confidential relation he bore to it prior to its publication, and his production of a copy of it which he has retained, for use as evidence in a subsequent proceeding brought against the party, is not a breach of privilege. (In re Elliott, ante, p. 151.) If any decided cases have attempted to make the rule of privilege a byword by holding to the contrary, they are disapproved.
The newspaper interview with Woods was proved by an identified copy of the Wellington Daily New.s of September 4, 1904. It having been shown that on the trial of the libel suit, after inspecting that issue of the paper, Burnette declared he made the statements it contained, the paper was the best evidence. This interview constituted an admission that the letter of May 31, 1902, was not genuine, and the fact that on the trial of the libel case Burnette declined to answer respecting its truth did not affect its admissibility.
The judgment of the district court of Sumner county revoking the license of Cleo D. Burnette to practice as an attorney and counselor at law in the courts of Kansas is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
William J. Hall died testate, having devised his property in equal proportions to his children, Ezra D. Hall, George Hall, William H. Hall, Benjamin Hall, and Griffith Hall, and his grandson, William M. Davidson, who was the only child of Sarah J. Davidson, a daughter of the testator who died before the will was executed. The grandson, William M. Davidson, who was the plaintiff in this case, had prior to the suit purchased the one-sixth interest of Griffith Hall, and thus claimed to be the owner of one-third of the property. At the time of his death William J. Hall held the legal title to the north one-half of the southwest quarter of section 16, in township 34 south, of range 24 east of the sixth principal meridian, in Cherokee county, Kansas. Davidson began suit in partition against all of the defendants except Ezra Hall and his wife, and as to them his suit was ejectment, partition, and for rents and profits. For the purpose of deciding the question presented by this proceeding it may be said that all of the defendants except Erza D. Hall and his wife, Sarah, admitted the allegations of the petition and joined with the plaintiff in his prayer for relief. Ezra D. Hall,, in his cross-answer, denied all the allegations of the cross-petitions of the other defendants, and in his answer to the plaintiff’s petition stated: ■
“That on July 21, 1884, William J. Hall, in consideration of love and affection, transferred and conveyed to this defendant, by parol gift, the real estate above described; that this defendant then and there, under and by virtue of said gift, and with the knowledge and consent of said William J. Hall, took possession of said premises, and continued to hold the open, notorious and exclusive possession thereof, without any adverse claims thereto, for more than fifteen years, to wit, until March. 28, 1.900, when he, by warranty deed, transferred and conveyed said real estate to Sarah Hall; that during said fifteen years and more of possession and occupancy of said premises, by this defendant, as aforesaid, this defendant made valuable, permanent and lasting improvements on said premises, and paid the taxes thereon; and during all of said occupancy of said premises this defendant was the owner in fee simple of said real estate, and the said William J. Hall during said time had no right, title or interest in and to said land, nor the right to possession thereof.”
Sarah Hall in her answer restated the facts substantially as they were recited in the answer of her husband. The facts stated in the answers and cross-answers were put in issue by proper pleadings by all of the other parties. After a jury had been impaneled to try the issues of fact the parties made the following admissions:
“It is admitted by the parties to this action that William J. Hall, deceased, became the owner of the land in controversy, to wit, the north half of the southwest quarter of section 16, township 34, range 24, in Cherokee county, Kansas, on the 21st day of July, 1884, and that the records in the office of register of deeds of Cherokee county, Kansas, show the title in said real estate to be in William J. Hall, deceased, from said July 21, 1884, until the time of his death, which was on April 29, 1900, except during the time that James H. Boyce held a tax deed on said real estate, from September 12, 1894, until January 24, 1895, when he conveyed the same to William J. Hall by a quitclaim deed.”
The court then said:
“In addition to the facts agreed on by the attorneys in this case the court states further that in the statement of this case to the jury by Mr. Tracewell it was stated that Ezra D. Hall consulted with John N. Ritter, who was a former member of this bar, but is now deceased, and who advised him to procure Mr. Boyce to make a deed of the premises to his father instead of to him; and he got Mr.' Boyce to make a deed to his father, William J. Hall.
“And now the court upon the admitted facts in the statement just recorded holds that prior to and at the time of his death the legal title to the land in contro versy was in William J. Hall, and that the ownership thereafter went to his heirs by the force and effect of his will, and denies to the defendants the right to submit to the jury the question as to whether William J. Hall gave to the said Ezra D. Hall the lands in question in 1884, or at any time thereafter prior to the execution of the deed from Mr. Boyce to William J. Hall, and holds the only questions there are here for trial to be the question of rents and profits, as stated in the second count of plaintiff’s petition, and the action of partition, as stated in the third count of plaintiff’s petition; and the matter of partition is for the court to try, and will be tried by the court.”
Upon the issues remaining a judgment was rendered against the plaintiffs in error as in ejectment, partition, and for rents and profits.
Complaint is made that the court erred in withdrawing from the consideration of the jury, and in refusing to try, the issue of ownership presented by the answers and cross-answers of the plaintiffs in error. . The plaintiffs in error pleaded in their answers and cross-answers that they had paid all of the taxes from the time they had gone into possession. The statement of their counsel that during that period the land had been sold and deeded for taxes,. and the plaintiffs in error had redeemed, and by the ádvice of their lawyers had got the holder of the tax deed to quitclaim to William J. Hall, who was still the holder of the legal' title, would not as a matter of law preclude them from establishing their defense of ownership. Redemption under the circumstances was equivalent to a payment of the taxes, and nothing more. The court coulcl not therefore say, as a matter of law, that paying the tax-deed holder the amount necessary to redeem the land and directing him to quitclaim to William J. Hall were conclusive that Ezra Hall was not the-owner of the land. Therefore th.e judgment is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
John F. Behrens, the owner of the real estate in controversy, died intestate in June, 1890. On January 80,1896, plaintiff in error O’Keefe placed upon record an administrator’s deed of the land to him, regular upon its face, and duly approved, executed and delivered in pursuance of a sale directed to be made by an order of the probate court. In December, 1903, the heirs of the decedent commenced an action of ejectment for the recovery of the land, and on the trial attacked the administrator’s deed as void. They claimed that the probate court had no jurisdiction to grant the order of sale because no notice of the hearing of the application to sell had been given (Michel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161), and that unless founded upon a valid order of sale the deed could not devest them of their inheritance.
Whether the proof offered was sufficient to establish this claim need not be discussed, and is not decided. For the purposes of the case it will be assumed that no order respecting notice was made, that notice was neither given nor waived, that none of the heirs appeared in the probate proceedings, and hence that the order of sale was void and open to attack in a collateral proceeding. The question still remains whether the action was barred under the provisions of section 16 of the code of civil procedure, which reads as follows :
“Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed after the cause of action shall have accrued, and at no time thereafter: . . .
“Second, An action for the recovery of real property sold by executors, administrators or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person, or the ward or his guardian, or any person claiming under any or either of them, by title acquired after the date’ of the judgment or order, within five years after the date of the recording of the deed made in pursuance of the sale.” (Gen. Stat. 1901, § 4444.)
The question suggested was fairly decided in the case of Young v. Walker, 26 Kan. 242. The action there under consideration was one of ejectment against a claimant under an administrator’s deed. There were defects in the proceedings upon which the deed was founded. The court held that the statute' cited applied, and in the course of the opinion said:
“We shall assume for the purposes of the case that, except for the statute of limitations, the administrator’s deed would be void. We shall assume for the purposes of the case that the irregularities in the proceedings of the probate court, and of the administrator, are sufficient to render the administrator’s deed void in any action or proceeding that might have been commenced before the statute of limitations had completely run, and this whether the deed was attacked directly or collaterally; and with such assumptions we shall proceed to a discussion of the question whether the statute of limitations has in fact so run as to make the deed valid. Of course the statute of limitations must have some use. It was not enacted for the purpose of curing administrators’ deeds which were already good. It was really enacted for the purpose of curing administrators’ deeds which would otherwise be void. ... If everything was regular, there would be no need of any statute of limitations. If the administrator’s deed was valid without such statute, then there would be no need of the statute. Therefore it is evident that the statute was enacted for the purpose of curing administrators’ deeds which would otherwise be void.” (Pages 249, 251.)
This decision has never been overruled. In the case of Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116, a guardian’s deed was attacked in an action of ejectment. The defects in the proceedings supporting the instrument were held to be mere irregularities, the usual presumptions in favor of proceedings within the jurisdiction of the probate court were indulged, and it was decided that the deed was not vulnerable to collateral attack. The opinion was delivered by the justice who expressed the conclusion of the court in Young v. Walker, supra. That decision was not referred to, but, apparently forgetful of what had been written in the earlier case, the learned judge made incidental use of language from which it might be inferred that the statute of limitations in question would not apply to void sales.
Some inconclusive references to the statute appear in other decisions, and in order that all doubt regarding the matter may be removed a restatement of the court’s views, and of the reasons for entertaining them, may be proper.
The probate business of this state has been exposed to administration by unskilled hands. The office is political, the terms short, and ignorance, inexperience, inefficiency and carelessness are likely to register their effects upon the devolution of titles accomplished through probate proceedings. Upon the death of a resident of a county his estate must be settled. His debts must be paid, and his real estate liable for the satisfaction of debts must be sold for that purpose, in the absence of bther available assets. In justice to all persons interested land ought to be sold to the highest possible advantage, and this cannot be done unless purchasers have confidence in the security of their titles. Men will not pay for land upon which to found homes unless they are to be protected in the undisturbed enjoyment of the fruits of their enterprise. After a fair purchase has been made upon the faith of an order of sale granted by a court of competent authority, and the purchase-money has been irretrievably distributed among creditors, it would result in the rankest kind of injustice to allow heirs to remain silent for years and then, prompted by some fortuitous circumstance, like the discovery of oil or other mineral in the vicinity of the premises, to claim them. The state itself, as a matter of public policy, is interested in the repose and stability of land titles; in the development and improvement of landed property, which doubtful tenures prohibit; and in the repression of vexatious and speculative litigation. These considerations apply as well to sales made without notice as to those of which the heirs have been legally informed.
A title which is not infirm needs no statute of limitations for its protection. If there be no defects, remedial legislation is superfluous. All the defects which vitiate probate sales must range themselves with one or the other of two classes — those which go to the jurisdiction of the court, and those which are not jurisdictional. The latter class does not render sales void or subject to attack except in a direct manner, by appeal or by statutory proceedings to reverse, vacate, or modify. The time limitations upon such proceedings are found in the provisions of the statutes fixing the period within which appeals may be taken or proceedings in error and the like may be commenced. When such time has elapsed, no matter what the irregularities may be, for. all purposes of the law the proceedings are valid, and ejectment against the purchaser will not lie. There is, therefore, no room for the beneficial application of the statute cited except to forefend collateral attacks. Ejectment is a collateral proceeding. (Fleming v. Bale, 23 Kan. 88; Mastin v. Gray, 19 Kan. 458, 466, 467, 27 Am. Rep. 149; Priest v. Robinson, 64 Kan. 416, 420, 67 Pac. 850.) The basis of the action must of necessity be the absence of some fact essential to probate jurisdic tion. The language of the statute, which is plain and unambiguous, clearly applies to such an action, and to limit its operation to sales made upon voidable orders only is to make an unauthorized and unwarranted interpolation.
It is to be conceded that whatever is placed of record must be capable of description as an administrator’s deed or the statute will not be set in motion. It must also be tested by what appears upon its face. But if it can be said from what appears there that it fairly complies with the law it will be sufficient, although informal and irregular. Such deed must also be made pursuant to an order or judgment directing a sale. The court must have acted, and what it did must be of a character to make it identifiable as an order or judgment. A forged order would not be an order of a court any more than a forged deed would be a deed made pursuant to an order or judgment. If upon appeal an order of sale should be set aside, or if the enforcement of the order should be permanently enjoined, no deed could be made pursuant to it. Other circumstances might be suggested under which something in the form of an order or a deed would not .be such. But after an administrator’s deed made pursuant to an order or judgment of the proper court directing a sale has been placed of record heirs' must sue to recover the property within five years, or be deemed to have admitted the validity of the sale and conveyance, whether they had notice of the proceedings or not. After the expiration of that time the purchaser cannot be called upon to vindicate their legality.
Statutes of this character are common, and usually receive the interpretation here indicated. In Mississippi a statute was passed barring actions brought on account of the invalidity of executors’, administrators’ and guardians’ sales made under decrees of probate courts prior to October 1, 1871, and barring actions directed against such sales made under decrees of the chancery court, to which probate jurisdiction was transferred, subsequently to that time. The period within which such actions might be brought was limited to one year, but the protection of the act was confined to sales made in good faith upon which the purchase-money had been paid. In construing this statute, in a case in which the invalidity complained of was in part want of notice to heirs, the court said:
“The manifest purpose of the statute was remedial. It is framed on the idea of giving repose and confidence to titles derived from probate sales made prior to the 1st of October, 1871, and to the same kind of sales made by executors, administrators and guardians subsequently by the chancery court. The evil was that, because of the negligence and carelessness which experience had shown marked the history of the probate court, it was almost the exception to conform to the statutory directions, in the exercise of that special and limited jurisdiction for the sale of the real estate of decedents by their personal representatives, and of minors by their guardians; and under the decisions applicable to that sort of jurisdiction the titles of the purchasers were invalid. Persons who had in good faith paid their money, years afterward lost their lands, and the heirs recovered the property oftentimes disencumbered of debts.
“The statute proposed to cure the evil by applying a short limitation where the sale was free from fraud, and the purchaser in good faith had paid his money; so that if the purchaser lost his land, he might indemnify himself in some mode or other. . . . Mrs. Faler, having been- in possession for more than a year after the 1st of October, 1871, before suit was brought, can claim the benefit of the bar, unless the further position taken by counsel be true, that the statute does not apply if the sale be void for some defect which makes the decree a nullity, such as want of notice to the heirs. It is said the invalidity meant is some irregularity occurring after decree. If the court had jurisdiction of the subject-matter and parties, the decree of sale is valid, and the sale itself would stand on the same footing as other judicial sales, and could not be impeached collaterally for mere irregularities.
“The statute is remedial and curative, has its origin in that policy, and, if the words will admit of it, should receive that construction which will accomplish the end aimed at. It was meant to cure all defects in the sale, no matter from what cause, whether before or after decree, unless the heir brought his action within the time to contest and show its invalidity. The vendee enters claiming under the judicial proceedings and the administrator’s deed. Though the sale be void, he is in under color and claim of title, and the statute does no more than to protect and perfect his imperfect right, after the expiration of a year from the time the right to bring suit arose.” (Morgan v. Hazlehurst Lodge, 53 Miss. 665, 679, 682.)
In a subsequent decision the court commented upon the same statute as follows:
“It originated in the known fact that a very large proportion of the sales of property by virtue of the orders of probate courts was void, from various causes; and, as insecurity of titles to property is a great public evil, it was determined to provide a short statute of limitations applicable to all cases falling within the existing evil. . . . This section applies to all sales of the class mentioned which are invalid, no matter on what ground. Every sale which is included in the evil intended to be remedied is embraced. . . . The section does not involve the idea of a legally appointed and qualified administrator, executor or guardian who made a sale by virtue of the order of any probate court. The language is, ‘any administrator, executor or guardian by virtue of the order of any probate court.’ It is not any legally appointed and qualified administrator, executor or guardian; and to hold that the statute applies only to sales by a legally appointed and duly qualified one is to interpolate the section, and to circumscribe its beneficial operation within narrower limits than the evil to be remedied, and than, it is to be justly assumed, the legislature intended. . . The statute was passed with direct reference to the known condition of things, and to meet that, and not upon the view that proceedings in the probate courts were what they should have been under the constitution and laws.” (Hall v. Wells, 54 Miss. 289, 297, 299.)
In the case of Vancleave v. Milliken, 13 Ind. 105, an administrator’s deed was attacked as void for want of notice to the heirs in an action to recover possession of the land. The court held a statute of limitations identical in effect with section 16 of the code (Gen. Stat. 1901, § 4444) of this state to be applicable, and adopted the reasoning employed in Pillow v. Roberts, 54 U. S. 472, 14 L. Ed. 228, saying:
“It is held by the court, in that case, that such statutes are statutes of repose, and that it is not necessary that he who claims their protection should have a good title; that such statutes would be of little use if they protect those only who could otherwise show an indefeasible title to the land; and, hence, color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and, of course, adversely to all the world.” (Page 107.)
In the case of White et al. v. Clawson et al., 79 Ind. 188, the statute was applied to a void guardian’s sale. The court said:
“Nor did the averment that the guardian’s sale was void add anything to it. The statute upon which the defense was based is a statute of repose, and it is not necessary that a person shall have a good title to invoke its aid. Such persons do not need it. It is only those who cannot assert á good title. It protects those who hold under void sales.” (Page 192.)
In the case of Harlan v. Peck, 33 Cal. 515, 91 Am. Dec. 653, the court had under consideration a three-year statute of limitations similar to that of this state. The opinion reads:
“There is nothing in the policy or language of the statute which excludes void sales from its operation. The policy of the statute is to quiet titles to real estate sold by order of the probate courts, and in view of that policy, merely, there can be no distinction between sales which may be termed void for the want of jurisdiction, and those which are voidable only. . . . We think the statute applies to all sales, void as well as voidable, made by probate courts, of real estate belonging to persons who have died since the passage of the probate act.” (Pages 520, 521.)
The syllabus of the case of Ganahl v. Soher, 68 Cal. 95, 8 Pac. 650, reads:
“An action by the heirs of a deceased intestate to recover real property sold by a person acting as his administrator under the provisions of the probate act, and by order of the probate court, must be brought within three years next after the sale, or within three years after they attain majority, notwithstanding such sale was void because of the invalidity of the appointment of the acting administrator.”
In The case of Scott v. Hickox et al., 7 Ohio St. 88, persons who had not been made parties to a foreclosure suit undertook to recover the land in controversy in the face of a seven-year statute protecting purchasers at judicial sales. The court said:
“On the face of the section there is no absurdity, which might imperiously require a construction giving it a meaning different from its literal import; and the only argument by which we are urged to do so is derived from supposed cases of hardship which might arise under its operation if literally construed. That such cases of hardship might possibly occur is readily admitted. But the same may be said of the operation of all statutes of limitation. It is in the nature of all such statutes that it should be so. And they all proceed upon the policy of compelling either a vigilant and timely prosecution of the rights of parties, or the sacrifice of those rights to the public repose. Where statutes of limitation are, on their face, free from ambiguity, it is now the established policy of courts to avoid giving them any other construction than that which their words demand. (Angelí on Limitations, 24.)
“And, on the whole, looking at the examples of like legislation to be found in other states, we are not prepared to say but that the general assembly, in the enactment of this statute, appreciating the advantages of public repose, and the evils of insecurity of land titles, may have intended to express all it has expressed, notwithstanding the cases of individual hardship to which its operation might possibly give rise.
“But, it is said, neither the plaintiff nor those under whom he claims have had their day in court, and therefore he ought not to be barred. This would be a valid objection if the defendant were setting up the decree as an estoppel; but as against a plea of this statute it cannot avail, for the objection would lie equally against all pleas of any statute of limitation, and effectually prevent its operation.” (Page 94.)
(See, also, Holmes v. Beal, 63 Mass. 223; Kammerer v. Morlock, 125 Mich. 320, 84 N. W. 319; Cheesebrough v. Parker, 25 Kan. 566.)
Although length of years may not give jurisdiction or, in a certain sense, make good that which is void (Foreman v. Carter, 9 Kan. 674, 678), an act of the legislature may, out of consideration for the public welfare, oblige interested persons to assert their rights' within a limited time or forever hold their peace. ’ The power of the legislature to enact a statute of this character is included in the general power to fix periods within which actions may be brought. On the score of reasonableness it may be observed that the practical protection to heirs afforded by a probate court order and a public record of the administrator’s deed for five years is much greater than that secured by a notice published for a brief period in a newspaper, which step at the outset would have conferred jurisdiction. In many states proceedings for the sale of a decedent’s lands to pay debts are treated as proceedings in rem, and notice to heirs may be dispensed with altogether. Generally heirs will know something of steps taken to settle the estate of their ancestor, and it cannot be unjust to require them to press objections at an early date or forfeit the right to do so. From the foregoing it follows that the court erred in admitting evidence of the invalidity of the defendant’s deed.
Immediately upon the death of the ancestor title to his real estate descends to his heirs, subject only to appropriation for the payment of debts. (Black v. Elliott, 63 Kan. 211, 215, 65 Pac. 215, 88 Am. St. Rep. 239.) They are entitled to possession, and may require partition at once. Letters of administration may not be taken out for a long period of time, or not at all. Much time may elapse before claims are presented or established, or before it may be known that the personal assets are insufficient. During such periods they are entitled to the separate enjoyment of their several portions of- the estate, and may proceed to enforce their rights unless some special state of facts should make it unjust or improper that they should do so. General creditors are not proper parties to partition proceedings at all, and the administrator should not be joined unless under exceptional circumstances. (Sheehan v. Allen, 67 Kan. 712, 74 Pac. 245.) If after partition the administrator should require the land or some portion of it for the payment of debts, it may then be sold. (Sample v. Sample, 34 Kan. 73, 77, 8 Pac. 248.) Therefore it was not necessary that the heirs as a condition of recovery should either plead or prove that the decedent’s estate had been settled, or that no debts existed for the payment of which the land might afterward be appropriated.
The allegation of the defendants’ answer that they are the owners in fee of the premises in controversy “under a valid and legal deed of conveyance duly executed” describes no written instrument whose execution is admitted unless denied under oath; and a failure to deny the execution of an administrator’s deed under oath does not admit the validity of the court proceedings upon which it is based. It has only the prima facie effect which the statute gives.
For the error in allowing the administrator’s deed to be impeached the judgment of the district court is reversed, and the cause remanded.
Greene, Mason, Smith, Porter, Graves, JJ., concurring. ■ | [
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The opinion of the court was delivered by
Greene, J.:
This was an action in ejectment. The only question reserved for our determination is the validity of the tax deed relied upon by the defendants, which had been of record more than five years. If this deed is valid on its face, the judgment must be affirmed ; if invalid, it must be reversed.
The deed, after showing.that the taxes on the lots in question were delinquent for the year 1892, and that the lots had been advertised for sale for such delinquent taxes in September, 1893, and not having been sold were “therefore bid off by the county treasurer of said county for the sum of $12.82,” contains the following recitals:
“And whereas, for the sum of thirty-one (31) dollars and fifteen (15) cents, paid to the treasurer of said Crawford county on the 9th day of April, A. D. 1895, the county clerk of said county did assign the certificate of sale of said property and all the interest of said county in said property to Crawford & McMurray, of the county of Crawford, state of Kansas; and whereas, the subsequent taxes of the years 1893, 1894, 1895, amounting to the sum of thirty-eight (38) dollars and eighty (80) cents, have been paid by the purchasers as provided by law; and whereas, three years have elapsed since the date of said sale and the said property has not been redeemed therefrom as provided by law:
“Now, therefore, I, John Ecker, county clerk of the county aforesaid, for and in consideration of the sum of sixty-five (65) dollars and ninety-six (96) cents, taxes, costs and interest due on said land for the years 1892, 1893, 1894, and 1895, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said Crawford & McMurray,” etc.
The objection to the deed is stated by the plaintiff in error as follows:
“It is our contention that under a fair interpretation of these recitals, as to payments made and taxes existing on the property, it is evident that section 7649 of the General Statutes of Kansas, 1901, was not complied with. Section 7649 of the General Statutes provides that no certificate of sale shall be made to any person unless there be paid into the county treasury a sum of money equal to the cost of redemption at that time of any land or lots sold to the county; . . . that inasmuch as the land was bid off for taxes and charges in September, 1893, for $12.82, and the certificate of sale was not assigned until April 9, 1895, the interest on this sum at the statutory rate of fifteen per cent, would require that a purchaser of the county’s certificate for the taxes of 1892 pay the sum of $15.74. It is likewise apparent that the subsequent taxes for the years 1893 and 1894, being past due and a lien on the land, must have been paid by the assignee of the tax certificate in order to entitle him to obtain a good and valid assignment.”
The tax deed recites that the certificate was assigned April 9, 1895, for the sum of $31.15. Counsel argue that this amount-is less than the taxes, interest and costs then payable could possibly have been, since the taxes and charges for 1892 would at that time amount to $15.74, which if deducted from the total' amount paid would leave only $15.41 to be applied to the delinquent taxes for the years 1893 and 1894. The error into which counsel have fallen is in presuming that the assignee of the certificate assigned on April 9, 1895, was required to pay the delinquent taxes of 1894.
It presumptively appears from the deed that the-taxes for 1893 became delinquent and the lots were advertised to be sold therefor in September, 1894; and that the county treasurer charged’ such delinquent taxes and charges on the book of tax sales of the year in which the lots were sold to the county. Such taxes would thereupon become a lien upon the property, and the county could not legally assign the certificate until such taxes were .paid. It also appears that the taxes for 1894 were delinquent. It was the duty of the county treasurer to advertise such lots for sale for such delinquent taxes in September, 1895, and if the county still retained the certificate the county treasurer should have charged such delinquent taxes and charges on the book of tax sales of the year in which the lots were sold to the county. But in this case the tax-sale certificate was assigned April 9, 1895. Therefore the taxes of 1894 had not been and could not have been charged upon the book of tax sales until the lots had been advertised for sale, which sale could not take place until September, 1895. When the certificate was assigned the taxes for 1894, although delinquent, were not a lien upon the lots in the hands of the county by virtue of its tax certificate, and were not collectable or receivable by it under the certificate.
It is also contended by the plaintiff in error that the deed is void on its face because it does not recite that the lots were bid off by the county treasurer for the county. The recital is:
“Whereas, at the place aforesaid said property could not be sold for the amount of the taxes and charges thereon, and was therefore bid off by the county treasurer of said county for the sum of . . . ; and whereas, for the sum of ... , paid to the treasurer of said Crawford county, . . . the county clerk of said county did assign the certificate of sale of said property and all the interest of said county in said property.”
These recitals, considered with the provisions of the statute which require the county treasurer as such officer to bid the unsold lands off for the county (Gen. Stat. 1901, § 7646), are sufficient to supply the omission in the deed of which complaint is made. They are sufficient to satisfy us that the county treasurer was not acting for himself as an individual when he bid the lands off, but that the bid was for the county. And the additional recital that the deed was made by the,county clerk of Crawford county to Crawford & McMurray, apparently in pursuance of the purchase made by the county, leaves no room to doubt that the treasurer bid the land off for the county.
Counsel have, no doubt, been misled into making this contention by the decision of this court in Penrose v. Cooper, 71 Kan. 720, 81 Pac. 489, which they cite as authority. A rehearing was granted in that case, and it was subsequently held that “where a tax deed has been of record for more than five years it will not be held to be void because of the omission of express recitals required by the statute, if the substance of such omitted recitals can be supplied by inference -fairly to be drawn from statements elsewhere made in the-deed, by giving to the language employed a liberal interpretation to that end.” (Penrose v. Cooper, 71 Kan. 725, 84 Pac. 115.) The recitals in the deed in this case are substantially those in the deed under consideration in Penrose v. Cooper.
As we discover no defects on the face of the deed the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
In the first of these cases appellants were charged with assault with intent to kill Roy Berry, in the second with murder in the first degree for the killing of Alpheus W. Berry, and in the third with murder in the first degree for the killing of Daniel P. Berry.
On May 1, 1905, the first day of the regular May term of court, appellants filed motions in each case, under section 221 of the code of criminal procedure (Gen. Stat. 1901, § 5666), asking to be discharged on the ground that more than three, ter ms of court had elapsed after indictment without their having been brought to trial. On the 2d day of May these motions were denied; at the same time, upon the request of the county attorney, and over the objections of appellants, the court entered ah order in each case dismissing it “without prejudice.” Exceptions were saved, and the appellants bring the causes here for review. Error is alleged in the rulings on the motions of appellants and in the entering of the orders requested by the county attorney.
The record in each case discloses that the information was filed in the district court of Cheyenne county on December 2, 1903. On the application of defendants the venue was changed to Norton county, and a certified copy of the information was filed in the district court of that county January 12, 1904. The regular February term of the district of Norton county convened February 1, 1904, and at this term the cases were continued by the court. At the regular May, 1904, term of the court orders were entered for continuances over the term on account of there being no jury in attendance, none having been called. On the last day of the regular September, 1904, term of the court continuances were ordered by consent of the parties. The regular February, 1905, term of court convened February 6, 1905, at which time defendants appeared and announced themselves ready for trial, and the cases were passed until a later day. Afterward they were continued over the term, defendants being present and making no objection. The defend ants were on bail during all the time from the filing of the informations.
There are two questions raised: (1) Whether the court erred in denying the applications of appellants to be discharged; (2) whether error was committed in dismissing the actions without prejudice. The consideration of the first will necessarily dispose of the second. Our statute reads as follows:
“If any person under indictment or information for any offense, and held to answer' on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to such offense, unless the delay happen on his application or be occasioned by the want of time to try such cause at such third term.” (Gen. Stat. 1901, § 5666.)
There is some diversity of opinion among the members of the court with respect to the proper construction to be given this statute. According to one view, the words “before the end of the third term of. court”' refer to a distinct period of time measured by the first three successive terms of court, and if at the end of the third term the person under indictment be not entitled to claim the benefit of the statute because delay has happened on his application, or for want of time to try the cause, then a new period of like duration begins; the slate is wiped clean, and the state has another three-term period in which to bring him to trial. Under this theory single terms of court are not counted against the state and in favor of the accused. Another theory counts the first, second and third terms. If the accused ask for a continuance at the first, second or third term, or the delay at either of them be occasioned by want of time to try the cause, that particular term is not counted, and the state has an additional term in its stead in which to bring him to trial. Another view gives all importance to “such third term,” and regards what transpired at the first or second as of no consequence. If at the end of the third term he be not entitled to claim the benefit for the reason that the delay at that term happened on his application, the state has another term in which to bring him to trial. In The State v. Campbell, ante, p. 688, it was held that the terms of court intervening while an appeal by the state is pending should not be counted, although .the statute makes no exception in such a case.
In the cases at bar we are not left in doubt as to the theory of the trial court in refusing to discharge the appellants. The orders recite that the court held that if the applications should be presented at the last day of that term, or the first day of the following term, they would, be granted. The court apparently considered that, appellants were not entitled to count the third regular term of court for the reason that they consented to a continuance at that term, and'were likewise not entitled to count the fourth for the reason that they were present and made no objection to the causes being continued at that term.
There is no diversity of opinion that in any view of the statute the appellants were not entitled to be discharged at the time their application was presented. A defendant may waive his rights under the statute. He may do this by consenting to, or by failing to object to, a continuance at the third or subsequent term. The court therefore committed no error in refusing to discharge the appellants. The regular third and fourth terms of court are not to be considered as terms at which they should have been brought to trial.. In the one they consented to a continuance; in the other they were present and made no objection when the continuance was ordered.
Under a statute which has been construed so liberally as this has been — to mean that when discharged under it a defendant is to be deemed as acquitted of the charge against him (The State v. Edwards, 35 Kan. 105, 10 Pac. 544), we think that before a defendant is entitled to such an order he must bring himself clearly within the spirit and intention of the statute. Its purpose was not to enable the guilty to escape upon technicalities, but to shield the innocent by preventing unnecessary and unreasonable delays. A defendant under indictment who consents, or raises no objection, to his case being continued is not within the purpose and intention of the law. Delay does not hurt him; often it serves his purpose better than a speedy trial. The judgment is affirmed.
SYLLABUS BY THE COURT.
Criminal Law — Continuance — Discharge—Statute Construed. In determining whether a person under indictment and held to bail is entitled to be discharged under section 221 of the • code of criminal procedure (Gen. Stat. 1901, § 5666), it is proper to count the terms of court held after indictment found or information filed, omitting any term at which the delay happened upon his application. Any term at which he has consented to the delay or postponement cannot be claimed as one at which he should have been brought to trial; but a postponement or delay ordered by the court cannot be regarded as happening on his application merely because he fails to object.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The husband of the plaintiff, who lived at Abilene, was returning from Kansas City to his home in a train of vestibuled coaches on the Union Pacific railroad. Within a short distance of the station at Abilene -the whistle was sounded, and a brakeman went through the smoking-car, at least, and called the name of the station. A witness who had been asleep in the smoking-car was awakened by the whistle, or by the call of the brakeman, and arose, put on his overcoat and went to the rear end of that car, and, looking through the glass in the door of the car, saw the deceased standing within the vestibule of the smoking-car, and also saw that the side and floor doors of the vestibule on the same side of the train as the Abilene station were open. The vestibule was light, and the deceased could have seen, if he had looked, that it was open. The witness looked in another direction — perhaps in search of a drink of water — for a short time, and when he again looked into the vestibule the deceased was gone. Soon after the train had passed the deceased was found with his legs lying across the north rail of the track, cut off, and he was otherwise mangled. He died in a few hours. This is all that the evidence shows as to the cause of the accident. It Is not shown who opened the vestibule, nor is it shown whether the deceased was walking in his sleep or was awake and alert — whether he walked off the train or fell off. All is conjecture.
The burden of showing negligence is generally upon "the plaintiff, who asserts it as his ground of recovery, hut where there are no- witnesses to a death which occurs to a passenger of a common carrier for hire, and ■circumstances are proved sufficient to justify the conclusion that the cause of the death was wrongful, the .jury may infer ordinary care and caution on the part of the injured person from the love of life and the instinct of self-preservation.
Is there, then, enough evidence in this case to justify "the inference that the death was caused or contributed to by any wrongful act on the part of the trainmen? All that they did and all the movements of the train were susceptible of proof. It is the movements and the cause of the movements of the deceased which are conjectural. The only witness whose knowledge of "the circumstances is at all intimately connected with the accident is Sheriff Baker, who stood upon the floor of the car with only a glass door between him and the floor of the vestibule where the deceased stood; and, as his attention was almost immediately called to the disappearance of the deceased, he could not have failed to remember any sudden lurching, sudden stopping or starting of the car which would have accounted for the (to him) mysterious disappearance of the deceased. An illegally high rate of speed is one of the grounds upon which negligence is sought to be imputed to the railroad company, and there is evidence that the train, at the time of the accident, was moving twelve to fifteen miles per hour, while the ordinance of the ■city prohibited a greater speed than ten miles per hour within the city limits. There is no evidence, however, that this was a contributing cause of the accident. Inferentially the evidence of Baker is to the contrary.
The plaintiff produced all the evidence relating to negligence that was produced, and there is no conflict as to any fact. Where there is a conflict of evidence and the facts are in dispute, whether there was negligence is a question of fact for the jury under proper instructions; but where the facts are undisputed, and only one inference is to be drawn from them, the question of negligence is one of law for the court. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101.)
Since no fault in the running or management of the train is shown to have caused or contributed to the accident, there remains only to consider whether or not the opening of the vestibule or leaving it open constituted negligence on the part of the trainmen. In the absence of evidence as to when and by whom the vestibule was opened we assume that it was opened by one of the trainmen whose duty it was to open it at the proper time to enable passengers to enter or leave the train at the station. Whether it was open for a considerable length of time before the witness Baker saw it after he had been aroused from sleep by the station call, and had put on his overcoat and gone to the rear door of the smoker, is immaterial in this case. It had.neither caused nor contributed to any injury-prior to that time. We will then assume that it had been opened just prior to the time Mr. Baker saw it. open and after the brakeman, by calling the station, had notified the passengers desiring to leave the train at Abilene to be prepared so to do.
As a question of law, does it endanger the safety of' the passengers, and per se constitute negligence, to open the vestibule at such time? On the other hand, is it not the only orderly and proper way to conduct the business for the safety and convenience of the passengers ?
It is in evidence in this case, and is a matter of general knowledge, that, on fast trains especially, when they hear their station called, passengers' who “don’t forget their packages” get their belongings and go into the vestibule prepared to alight immediately upon the stopping of the train. It is also generally known that incoming passengers are detained until the outgoing have alighted. If the vestibule must be kept closed until the train comes to a full stop it would often be difficult to open it at all. It would discommode passengers and delay trains. Passengers at such times enter a vestibule expecting to see the exit open, and if they find it closed immediately seek another.
That a passenger may fall from an exit opened for his accommodation, as possibly the deceased did in this case, is no argument against the timely opening. There is danger in every step of life, from the first toddling effort of the infant to the last of the octogenarian; danger in standing, danger in.sitting, danger in lying, danger in eating, danger in fasting, danger in sleeping, danger in waking. There is no moment of life, active or inactive, on land or on sea, when danger is not near. It is omnipresent. When we consider how easily we fall, what trifling incidents, what invisible microbes end our lives, it is a wonder we ever take the first step; it is a miracle that we attain three score and ten years, not to mention one hundred.
s' Since danger can in no way and nowhere be absolutely avoided, it would be unreasonable to impose upon a common carrier the discontinuance of a practice or mulct it in damages for the doing of an act which accommodates and, by saving them time, lengthens the lives of thousands because in one instance it may have contributed to the shortening of the life of one. It is necessary to the efficient and orderly conduct of the business of carrying passengers in vestibuled railway-coaches, and necessary for the convenience and accommodation of the passengers, that the vestibules be opened before the stopping of trains at stations; and, as the practice does not expose the passengers to any considerable danger, the opening of a .vestibule at any time after the usual call for a station is not, under ordinary circumstances, and was not in this case, per se negligence.
The judgment of the district court is reversed, and the case is remanded.
All the Justices concurring. | [
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Per Curiam:
It is the law that checks are payable instantly on demand, but it is not the law that payment of a check must be demanded instantly. Granting that a check has some features of a bill of exchange under the statutes of this state, it need hot be presented until the day after it is given if the party receiving it and the bank upon which it is drawn are in the same place. If they are not in the same place, it is only necessary that the check be put in course of - collection within the time otherwise allowed for presentation. It cannot be said to be due until demand for payment is made.
If not forwarded and presented within the time allowed by the rules of commercial law the drawer must show the delay caused him to suffer loss before he can defeat recovery by a bona fide holder. The same rule holds regarding protest and notice of non-payment. (Noble v. Doughten, 72 Kan. 336, 83 Pac. 1048, and cases there cited.)
The statement in the defendants’ answer that the check was due the day it was drawn could not be true, and no facts showing a violation of the rule of diligence in presenting the check and subsequent damage are pleaded.
In suing upon the check the indorsee had the right to disregard or cancel all indorsements carrying the check forward from it to the drawee. The defendants’ remedy is against the party defrauding them, and not against the party who in good faith cashed their check.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant contends that the trial court erred in refusing to discharge him, for the reason that more than three terms of court had elapsed since the indictment was filed.' The grand jury returned the indictment on January 25, 1904. At the next regular term of the court, which was the March term, appellant’s motion to quash the indictment was allowed. The state appealed from that decision, and, on February 11, 1905, the judgment of the court was reversed, and the cause remanded for another trial. (The State v. Campbell, 70 Kan. 899, 79 Pac. 1133.) By section 5666 of the General Statutes of 1901 it is provided as follows:
“If any person under indictment or information for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found or. information filed, he shall be entitled to be discharged so far as relates to such offense, unless the delay happen on his application or be occasioned by the want of time to try such cause-at such third term.”
By section 5665 it is provided that if the person indicted be committed to prison and not brought to trial before the end of the second term after the indictment is filed he shall be discharged. The appellant here was admitted to bail immediately after his arrest, and therefore his case falls under section 5666, supra. Counsel for the state contends that, the delay having been caused by the erroneous ruling of the district court upon appellant’s motion to quash, appellant was himself responsible for it, and it comes within the exception in the statute as one which happened on his application. On the other hand it is argued: (1) That the delay was the result of the state’s appeal, not caused by any act of appellant;' (2) that the statute having excepted certain delays, all others, not mentioned are necessarily excluded.
It is proper here to refer to the history of the statute insuring to a person indicted and imprisoned or held to bail a speedy trial. By considering the evil sought to be remedied we are better enabled to construe the statute. When it was enacted it followed in general terms the provisions of similar statutes in the older states; and in them the evil sought to be remedied was one which the English people had struggled against since before the days of magna charta and the petition of right. It recalls the days of tyranny and despotism, when men were allowed to lie in dungeons for long periods without even an opportunity to know the nature of the charge against them. A speedy trial for all' accused persons was one of the things insisted upon by the people of England in the first bill of rights, and English laws have jealously guarded the right from that time. It is provided for in the first ten commandments of the federal constitution, being embodied in the sixth of the ten amendments submitted by the first congress. The guaranty of the federal constitution, however, has been held not to apply to acts of the legislatures of the several states or to state courts. (Fox v. The State of Ohio, 46 U. S. 410, 12 L. Ed. 213; Murphy v. The People, 2 Cow. [N. Y.] 815.)
The same provision or one similar is found in the constitutions of most of the states. It is a part of section 10 of our bill of rights; (Gen. Stat. 1901, '§ 92.) The statute is for the purpose of carrying into effect this provision of the constitution. It was never intended to apply to the facts in a case like the one at bar. Here there was no laches or delay on the part of the state, within the spirit and intention of the statute. The state was doing all within its power to bring the appellant to a speedy trial. A trial was begun, a motion to quash allowed, and the state appealed. This statute must be construed with the one giving to the state the right to appeal from a judgment allowing a motion to quash the indictment. (Crim. Code, § 283; Gen. Stat. 1901, § 5721.) To hold as appellant contends would deny to the state all benefit of the appeal, which the statute expressly gives. This cannot be the law. The appeal deprived the trial court of power to proceed further until it was determined, and in effect it held in abeyance the provisions of section 5666. Even though appellant had been in prison, unable to furnish bail, while the appeal was undetermined, his right to a speedy trial under this section would have been in no manner infringed.
In People v. Giesea, 63 Cal. 345, the same question arose, and the supreme court reversed an order discharging the prisoner. The court said;
“We are of opinion that the case of the defendant does not come within the provisions of the section above referred to. That section has no application where the prisoner has demurred to the indictment, the demurrer sustained, the effect of which ruling had to be gotten rid of by an appeal.” (Page 346.)
(See, also, Marzen v. The People, 190 Ill. 81, 60 N. E. 102; People v. Lundin, 120 Cal. 308, 52 Pac. 807; Patterson v. State, 50 N. J. Law, 421, 14 Atl. 125; State v. Conrow, 13 Mont. 552, 35 Pac. 240.)
It is claimed that the court erred in allowing members of the grand jury which indicted appellant to testify to statements made by. him while a witness before the grand jury. It is contended (1) that before such testimony was competent the state should have shown that the statements of appellant were voluntary, and (2) that members of a grand jury are prohibited by statute from testifying as to what a witness before that body has sworn to, except for the purpose of impeaching his statements made in court or in a case where the witness is being prosecuted for perjury.
In its testimony in chief the state introduced four members of the grand jury which returned the indictment, and proved by them certain statements made by appellant while a witness before the grand jury. These statements were to the effect that appellant made the contract with Gilhaus; that the $412 was paid to him for the steam valve sold to Gilhaus after the contract was made for cleaning- the school buildings; that he had invented the valve; and further statements in reference to his efforts to procure letters patent for it, his account of the loss of certain correspondence with his patent attorneys, and as to his procuring from Gilhaus the valve to be used in his defense against the charges made. When this evidence was offered counsel for appellant objected, and the following took place':
Qhes. “What did Mr. Campbell say in his examination before the grand jury as to who had employed Mr. Gilhaus?”
Mr. Wooley: “I object to that as incompetent; testimony taken before the grand jury cannot be reiterated by the grand juror. They are attempting to make out their case in chief by hearsay testimony, taken before the grand .jury in an ex parte proceeding.”
The court: “Of course statements by a defendant are different from statements by other witnesses. Was that voluntary testimony, or was he compelled to go there; that might make a difference ?”
Mr. Wooley: “He was brought there by subpoena.”
Mr. Coleman: “I do not think there is anything in the objection. The witness comes before the grand jury, and he is there as a witness generally in the investigation of violations of the law. He is supposed to tell the.truth.”
Mr. Wooley: “No proper foundation is laid here for the introduction of testimony of a grand juror. It is incompetent, at least at this time.”
Mr. Coleman: “It is competent as an admission, if it amounts to one.”
The court: “It may have been voluntarily made, and competent, if shown they are not made under compulsion. He may answer.”
Another objection was made, as follows:
Mr. Wooley: “Objected to as incompetent for the jurors to disclose what was said in the grand-jury room; and for the further reason, he says his memory is refreshed by reading notes taken by some one else, ánd not by some notes he made himself.”
These objections can hardly be said to raise the points now urged by appellant,.but we prefer to consider them as if they did. Counsel for appellant urge, first, that before this evidence was competent the state must have shown that “the confession, admission or declaration, it matters not what the statements are called, were voluntarily made or given.” It is insisted that the same rule applies to the admissibility of statements and declarations of a defendant in a criminal action that obtains in reference to a confession. The distinction between a confession and a statement or declaration is one recognized by the courts and text-writers, because it is a patent distinction in the very nature of things. The only reason why confessions are sometimes not admitted in evidence is because experience has shown that when made under certain circumstances they cannot be relied upon as true. It is not. out of any consideration for the rights of the party alleged to have made the confession that it is excluded, but simply because of the inherent probability of its untruthfulness unless ..it first appears to have been made voluntarily, and not under the influence of fear or duress occasioned by threats or hope of immunity by reason of promises.
“A ‘confession/ in a legal sense, is restricted to an acknowledgment of guilt made by a person after an offense has been committed, and does not apply to á mere statement or declaration of an independent fact from which such guilt may be inferred.” (State v. Reinhart, 26 Ore. 466, 477, 38 Pac. 822.)
In the case of State v. Gilman, 51 Me. 206, it was said:
“The declarations of accused persons are not necessarily confessions, but generally, on the other hand, they are denials of guilt, and consist in attempts to explain circumstances calculated to excite suspicion.” (Page 225.)
In volume 1 of Wigmore on Evidence, section 821, the author says:
“. . . (3) An acknowledgment of a subordinate fact, not directly involving guilt, or, in other words, not essential to the crime charged, is not a confession; because the supposed ground of untrustworthiness of confessions is that a strong motive impels the accused to expose and declare his guilt as the price of purchasing immunity from present pain or subsequent punishment; and thus, by hypothesis, there must be some quality of guilt in the fact acknowledged. Confessions are thus only one species of admissions; and all other admissions than those which directly touch the fact of guilt are without the scope of the peculiar rules affecting the use of confessions.”
“When. a person only admits certain facts from which the jury may or may not infer guilt, there is no confession.” (Covington v. The State of Georgia, 79 Ga. 687, 690, 7 S. E. 153.)
“A confession of guilt is an admission of the criminal act itself, not an admission of a fact or circumstance from which guilt may be inferred.” (The State v. Red, 53 Iowa, 69, 74, 4 N. W. 831.)
One of the early cases in point is Hendrickson v. The People, 10 N. Y. 13, 61 Am. Dec. 721. The ap pellant was charged with murder. His testimony given before a coroner’s inquest previous to his arrest was held to be competent against him. The court there said:
“His statement as a witness was in no respect an admission of guilt. On the contrary, it was a denial of máterial facts attempted, on his trial, to be established by other witnesses. His testimony was calculated to ward off suspicion' from himself, not to attract it toward him.” (Page 22.)
It also held:
“The general rule is, that all a party has said, which is relevant to the questions involved in the trial, is admissible in evidence against him. The exceptions to this rule are where the confession has been drawn from the prisoner by means of a threat or a promise, or where it is not voluntary, because obtained compulsorily or by improper influence.” (Page 21.)
On the competency of a defendant’s admissions generally, see The State v. Inman, 70 Kan. 894, 79. Pac. 162. The question whether the statement is voluntary or an involuntary one does not depend upon the fact of the witness’s being under a subpoena. (The State v. Finch, 71 Kan. 793, 81 Pac. 494.) He may protect himself, if he sees fit, by refusing to answer because the answer tends to incriminate him. (1 Greenl. Ev., 16th ed., § 225.)
In the case of The State v. Finch, supra, appellant was charged with manslaughter, and his. testimony given at the coroner’s inquest in pursuance to a subpoena was held admissible. In that case, as in this, appellant relied upon some expressions in The State v. Taylor, 36 Kan. 329, 13 Pac. 550, and the court said: “But that case [The State v. Taylor] is not an authority that testimony given under a subpoena and without compulsion and duress is inadmissible.” (Page 798.)
The case of State v. Broughton, 7 Ired. Law (N. C.) 96, 45 Am. Dec. 507, is a leading one which is in point. The person on trial had testified before the grand jury that indicted- him, and his statements before the jury were held admissible. It was there said:
“The counsel for the prisoner took the further ground here, that it was incompetent to prove th,e evidence of the prisoner, because it was in the nature of a confession, which, compelled by an oath, was not voluntary. It is certainly no objection to the evidence, merely, that the statement of the prisoner was given by him as a witness under oath. He might have refused to answer questions, when he could not do so without criminating himself; and the very ground of that rule of law is, that his answers are deemed voluntary and may be used afterward to criminate or charge him in another proceeding, and such is clearly the law. . .' . But it is altogether a mistake to call this evidence of a confession by the prisoner. It has nothing of that character. It was not an admission of his own guilt, but, on the contrary, an accusation of another person. That it was preferred on oath in no way detracts from the inference that may be drawn from it unfavorably to the prisoner, as being a false accusation against another, and thus furnishing, with other things, an argument of his own guilt. There was, in our opinion, no error in receiving the evidence.” (Pages 100, 101.)
In Hendrickson v. The People, 10 N. Y. 13, 61 Am. Dec. 721, it was said:
“It is now regarded as a well-settled rule, and recognized in the elementary books, that where a witness answers questions upon examination on a trial tending to criminate himself, and to which he might have demurred, his answers may be used for all purposes. . . . Such answers are deemed voluntary, because the witness may refuse to answer any question tending to criminate him. . . . Independent of any supposed authority, I do not see how, upon principle, the evidence of a witness, not in custody and not charged with crime, taken either on a coroner’s inquest or before a committing magistrate or a grand jury, could be rejected.” (Pages 27, 29.)
In the celebrated case of People v. Molineux, 168 N. Y. 264, 61. N. E. 286, 62 L. R. A. 193, defendant at tended the inquest in obedience to a subpoena and testified under a threat of punishment for contempt if he refused. His testimony was held admissible notwithstanding he was not advised of his rights when it was given, it being shown that he was not under arrest or formally accused of the crime. The court in the opinion said:
“The law presumes that a party who is called upon to testify as a mere witness knows his rights. He may decline to testify to anything that may tend to incriminate him. This the defendant could have done had he chosen to claim his privilege. Having failed to do so he cannot now complain.” (Page 333.)
“A confession receivable in evidence, only after proof that' it was made voluntarily, is restricted to an acknowledgment of the defendant’s guilt, and the word does not apply to a statement made by the defendant of facts which tend to establish his guilt.” (Taylor v. State, 37 Neb. 788, 56 N. W. 623, syllabus.)
To the same effect see The People v. Mondon, 103 N. Y. 211, 8 N. E. 496, 57 Am. Rep. 709; People v. Chaplean, 121 N. Y. 266, 24 N. E. 469; Wilson v. The State, 110 Ala. 1, 20 South. 415, 55 Am. St. Rep. 17; State v. Coffee, 56 Conn. 399, 16 Atl. 151; People v. Hickman, 113 Cal. 80, 45 Pac. 175; People v. Parton, 49 Cal. 632.
Tested by these well-established rules, how can it be said that the statements of appellant before the grand jury ¿mounted to a confession? They were made in positive denial of guilt, and for the purpose of exculpating himself. He admitted the making of the contract with Gilhaus; there was no guilt, no crime, no offense in that. He admitted the receipt of $412 from Gilhaus; but if the story he told was true, and this money was in payment pf the' purchase-price of the steam valve which he had sold to Gilhaus, there was no offense in that. No statement by itself amounted to an acknowledgment of guilt; nor could his guilt be necessarily inferred by the jury from all his statements taken together.
The constitutional right which every man has to refuse to answer any question that may incriminate him seems, in these days of “immunity pleas,” to be fully recognized and appreciated. It furnishes ample protection, and does not, in our opinion, require reenforcement by the adoption of the rule contended for by the appellant.
The second ground upon which it is contended that this testimony was incompetent is that the statutory as well as the common-law rules prohibit a grand juror from disclosing the testimony of a witness before that body, except for two purposes: (1) To prove whether the testimony of such witness before the grand jury is consistent with or different from his testimony before the court; (2) upon a complaint against such person for perjury, or upon his trial for that offense.
Section 91 of the code of criminal procedure (Gen. Stat. 1901, § 5533) reads as follows:
“Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such grand jury is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person upon a complaint against such person for perjury, or upon his trial for such offense.”
Section 93 of the code of criminal procedure (Gen. Stat. 1901, § 5535) is as follows:
“No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto; nor shall he disclose the fact of any indictment having been found against any person for felony, not in actual confinement, until the defendant shall have been arrested thereon. Any juror violating the provisions of this section shall be deemed guilty of a misdemeanor.”
These sections first appear in our statutes in the Laws of 1855 (Stat. Kan. Ter. 1855, ch. 129, art. 3, §§ 15, 17), and have been subsequently reenacted without change. It is historical that the territorial legislature of 1855, often referred to as the “bogus legislature,” adopted the entire statutes of Missouri, substituting the word “territory” for “state,” and making some other slight changes where it was found necessary. These sections had been construed by the supreme court of Missouri in the case of Tindle v. Nichols, 20 Mo. 326, decided in January, 1855, and it is now contended that we are bound by the judicial construction placed thereon. In the Tindle case, which was an action for slander, defendant justified, and answered that plaintiff had sworn falsely in a certain matter before the grand jury. On the trial defendant sought to prove by members of the grand jury what the witness-had testified. The court held that inasmuch as section 91 (Gen. Stat. 1901, § 5533) specified two classes of cases in which a grand juror may be required to disclose such testimony, it followed that all other cases not enumerated were excluded, and that the words of section 93 (Gen. Stat. 1901, § 5535), “when lawfully required to testify as a witness in relation thereto,” had reference only to those two exceptions.
We recognize the force of the rule that where one state adopts a statute from another state it adopts the construction placed thereon by the courts of that state. But this is a general rule, to which there are numerous exceptions. It is not an absolute rule. In Dixon v. Ricketts, 26 Utah, 215, 72 Pac. 947, it was said:
“It is a general, though not a binding, rule of statutory construction, that where the provisions of a statute have received judicial construction in one state, and it is then adopted in another state, it is adopted with the construction so given it.” (Syllabus.)
(See, also, Davis Iron Wks. Co. v. White, 31 Colo. 82, 71 Pac. 384; Coulam v. Doull, 4 Utah, 267, 9 Pac. 568.)
Endlich on the Interpretation of Statutes, section 371, says:
“Whilst admitting that the construction put upon such statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only stróng, reasons will warrant a departure from it, its binding force has been wholly denied, and it has been asserted that a statute of the kind in question stands upon the same footing arid is subject to the same rules of interpretation as any other legislative enactment. And it is' manifest that the imported construction should prevail only in so far as it is in harmony with the spirit and policy of the general legislation of the home state, and should not, if the language of the act is fairly susceptible of another interpretation, be permitted to antagonize other laws in force in the latter, or to conflict with its settled practice.”
“Thus it has been held that the presumption will not be indulged where other jurisdictions having the identical or substantially the same provision had, almost without exception, given to the language a different construction long prior to the adoption in question.” (26 A. & E. Encycl. of L. 703.)
It has been held that where the statute is not peculiar to the state from which it was adopted, but other states have substantially the same statute, which their courts have construed differently, and when the construction placed upon it by the courts of the state from which it was taken is contrary to the weight of authority, the decision is not binding. In Coad v. Cowhick et al., 9 Wyo. 316, 63 Pac. 584, 87 Am. St. Rep. 953, the court, construing a statute adopted from Ohio, refused to follow a decision of the latter court holding a judgment not a lien upon after-acquired lands of the judgment debtor. The reasons stated by the Wyoming court were that the statute under consideration was not peculiar to Ohio, as other states had similar provisions, using the identical words or language the same in substance, and because it considered the decision of the Ohio court to be opposed to the best reasoning and the weight of authority. In volume 3 of Current Law, page 739, it is said:
“A statute copied from a similar statute of another state is presumed to be adopted with the construction it had already received. The presumption, however, is not conclusive, and where the same provision exists in several states, there is no presumption that the construction of any particular state was in view.”
The question before us, however, is not whether' this statute was in fact adopted from Missouri, about which there can be no dispute, but whether we should be bound by the Missouri court’s interpretation of it. To regard ourselves as bound absolutely by that construction would give it greater weight than if it had been the decision of this court originally, in which case the right and duty of this court to disregard it would not be denied, if upon reexamination it should be found opposed to the better reasoning, in conflict with the great weight of authority, or not in harmony with the spirit and policy of our laws.
The exact question decided in the Tindle case (Tindle v. Nichols, 20 Mo. 326) has been the subject of much discussion by the courts. In some of the states there are no statutory prohibitions, and the decisions are placed upon the reasoning deduced from common-law principles; and in some cases it is made to turn upon the peculiar oath required of grand jurors by the statutes. In many of the states the subject is controlled by statute, and provisions almost identical with our statutes are in force. The various statutory provisions of the several states are set forth in a note to section 2360 of volume 4 of Wigmore on Evidence.
From the time the grand jury was first established the law has surrounded its deliberations and all that transpired before it with secrecy. By the common law a grand jury was not permitted to disclose how any witness testified before that body or how any member voted. (12 Viner’s Abr. 20.) The grand juror’s oath required him to keep the state’s counsel, his own and his fellows’ secret. The purpose of this requirement has been manifestly, first, to protect the interests of the state by preventing information reaching the accused which might enable him to escape, or induce him to suborn witnesses to prove the contrary of the charges; second, to protect the members of the grand jury, and leave them free to act without fear of consequences to themselves; and, third, to protect witnesses in the same way. Gradually exceptions to these rules have been allowed, and the first naturally to suggest themselves were those permitting a grand juror to testify what a witness swore to before the grand jury in a prosecution of the witness for perjury, and, again, for the purpose of impeaching the testimony of the witness on a trial of an indictment or in another action. The tendency of modern authorities has been to hold that when the reasons for secrecy no longer exist the ancient rules with reference thereto do not apply, and, in all cases where justice or the rights of the public require it, the facts should be disclosed.
“It was at one time supposed that a grand juror was required by his oath of secrecy to be silent as to what transpired in the grand-jury room; but it is now held that such disclosure, wherever it is material to explain what was the issue before the grand jury, or what was the testimony of particular witnesses, will be required.” (Whart. Crim. Ev. § 510.)
“It is equally clear that the jurors were competent witnesses. In Haak v. Breidenback, and Leonard v. Leonard [1 W. & S. 342], supra, the parol evidence was given by jurors, and in the latter case under a special objection and exception;' yet the judgment was reversed for the rejection of the evidence. There is no principle of law or rule of policy which in such a case ought to exclude them. It is entirely different from where they are called to impeach a verdict on the ground of their own misbehavior or that of their fellows.” (Follansbee v. Walker, 74 Pa. St. 306, 310.)
In Commonwealth v. Mead, 78 Mass. 167, 71 Am. Dec. 741, it was said: “But vyhen these purposes are accomplished, the necessity and expediency of retaining the seal of secrecy are at an end.” (Page 170.) Mr. Wigmore, in volume 4 of his work on Evidence, section 2362, says: “But what are the limits of this temporary secrecy? The answer is, on principle, that it ceases when the grand jury has finished its duties and has either indicted or discharged the persons accused.” In note 6 to the next section, in referring to Tindle v. Nichols, 20 Mo. 826, the author characterizes the decision as “clearly unsound, as well as unjust.”
The Florida supreme court in a well-considered case (Jenkins, McRae and Clinton v. The State, 35 Fla. 737, 18 South. 182, 48 Am. St. Rep. 267), decided in 1895, construed .a statute which is in the same language as ours so far as section 93 (Gen. Stat. 1901, § 5535) is concerned. The court held that the provision of the Florida statute permitting a member of the grand jury to testify in the two special cases does not exclude an inquiry in other cases sanctioned by law, when in the discretion of the court it becomes proper to open up such inquiry. The Tindle case is cited, and the court comments upon the absence in their statute of the provision of the Missouri statute which prohibits a member of the grand jury from disclosing any evidence given before the grand jury “except when lawfully required to testify as a witness in relation thereto,” but it is apparent that the same result would have been reached if the Florida statute had contained this provision. The Tindle case rests upon the theory that the first section specifies two cases, and that “the bare specification excludes all other cases not enumerated.” (Page 328.) The Florida statute, likewise, specifies these same two cases, yet that court refuses to restrict the operation of the statute so as to exclude other cases, not mentioned. They said:
“But independent of statutory regulation, it has long been established that it is discretionary with the trial court to permit a grand juror to be examined as to what' a witness testified to before the grand jury, when competent and the ends of justice require it, and we do not see that our statutes have changed this rule.”' (Page 810.)
In Hinshaw v. State, 147 Ind. 334, 47 N. E. 157, the appellant was charged with murder. Over his objection a member of the grand jury was permitted to testify to appellant’s testimony before the grand jury. The same statute, substantially, as ours was construed, and in addition a statute prescribing a form of oath for the members of the grand jury, which latter provision, it was claimed, added to the inadmissibility of the evidence. It was held:
“The oath of grand jurors that they will not disclose the proceedings given before them does not prevent them from testifying in court as to such proceedings.
“Section 1731, Burns’s R. S. 1894 (1662, R. S. 1881), providing that a member of a grand jury may be required to disclose the testimony of a witness examined before the grand jury, ‘for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person upon a charge against him for perjury in giving his testimony upon his trial therefor,’ does not limit the right to require grand jurors to testify to the two cases specified.” (Syllabus.)
It should be noticed, perhaps, that the form of the grand juror’s oath provided by our statute is silent with respect to keeping anything secret. In the case of United States v. Negro Charles, 2 Cranch, C. C. 76, 25 Fed. Cas., p. 409 (No. 14,786), it was said:
“Grand jurors may testify as to the confessions made by the prisoner before them, upon oath, when under examination as a witness against another person.” (Syllabus.)
“The oath of grand jurors to keep their proceedings secret does not prevent the public or an individual from proving by one of the jurors, in a court of justice, what passed before the grand jury.” (Burnham v. Hatfield, 5 Blackf. [Ind.] 21, syllabus.)
“The fact that a witness testified before the grand jury, together with his testimony delivered there, may, when otherwise competent, be proved in the trial of an action, when such evidence is required for the purposes of public justice, or the establishment of public rights.” (Hunter v. Randall, 69 Me. 183, syllabus.)
The Oregon statute is substantially the same as ours. In State of Oregon v. Moran, 15 Ore. 262, 14 Pac. 419, the court said:
“The policy of the law generally is that the proceedings before the grand jury are secret. The reasons for this secrecy are many and obvious. It assists them in discharging their important duties; they are not troubled with any questions by the interested or ''curious ; the means and sources of their information are not made public until the trial of the accused, and in many cases the guilty may not know that he is even suspected of crime until he is in custody. But there are cases in which the court is authorized to remove this secrecy, and to require the proceedings before the grand jury to be disclosed.
“It is provided by section 58 of the code of criminal procedure that a member of a grand jury may be required by any court to disclose the testimony of a witness examined before such grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before such grand jury by any person upon a charge against such person for perjury, or upon his trial therefor. ... It may be conceded that the authorities cited from Missouri and Minnesota are opposed to this view; but it seems clear to us that they are at variance with the great weight of authority on this subject, and, in addition to that, they rest upon a narrow and technical construction of the statutes of those states. The court, therefore, did not err in allowing the grand juror Severson to disclose Moran’s testimony before that body.” (Pages 273, 274.)
“Upon the trial the defendant offered to prove by a member of a previous grand jury some admissions respecting the cause of action, made by the plaintiff on his examination before the grand jury. The evidence was objected to, and the objection sustained.” (Burnham v. Hatfield, 5 Blackf. [Ind.] 21.)
“It seems not to be contrary to the policy of the law to allow disclosures by them [the grand jury] of what has been testified to before them, when they are called upon as witnesses in court to speak in relation thereto; but to permit it or not is in the discretion of the court, according to the time and circumstances of each case. (Sands v. Robison, 20 Miss. 704, syllabus, 51 Am. Dec. 132.)
“Where these reasons have ceased to operate, it is the. better opinion, contrary perhaps to some cases, but maintained in most, that any revelations of the grand jury’s doings which justice demands may be made. The witness may be the prosecuting attorney or a third person present, a grand juror himself, or one who gave evidence before the grand jury, who may be even required to state what his own testimony was.” (1 Bish. New Crim. Proc. § 857.)
Mr. Wigmore, after referring to and criticizing the Missouri and Connecticut cases, says:
“There remain, therefore, on principle, no cases at all in which, after the grand jury’s functions are ended, the privilege of the witnesses not to have their testimony disclosed should be deemed to continue. This is, in effect, the law as generally accepted to-day. It is, however, not usually stated in such a broad form. The common phrase is that disclosure may be required ‘whenever it becomes necessary in the course of justice.’ Disregarding a few local exceptions, this is in practice' no narrower a rule than the one above deducible from principle.” (4 Wig. Ev. § 2362.)
The same author disposes of the notion that the two exceptions contained in many statutes should be •held to exclude all others. He says:
“It is now universally conceded that a witness may be impeached, in any subsequent trial, civil or criminal, by self-contradictory testimony given by him before the grand jury. In the same way, a party to the cause, not taking the stand as a witness, may be impeached by his admissions made in testifying before the grand jury. The occasional statutory sanction for the former of'these uses cannot be construed to prohibit the latter, which goes upon the same reasoning. Nor should any of the ensuing legitimate purposes of disclosure be considered to be obstructed by the statutory omission to mention them — else the integrity of common-law principles would tend to be diminished in direct ratio to the ignorance or unskilfulness of the legislature which attempted in any respect to make a declaratory statute.” (4 Wig. Ev. § 2363.)
Appellant, in addition to the Missouri cases, relies upon the old case of The State v. Fasset, 16 Conn. 457, which is a leading authority in support of the rule excluding such testimony. This case was decided in 1844, and has been to some extent discredited by that court in the case of State v. Coffee, 56 Conn. 399, 16 Atl. 151, decided in 1888. In the later case the court used this language:
“Some of the reasons given for keeping the testimony secret are temporary in their nature, and some do not exist under our practice where the prisoner is before the grand jury; nevertheless the oath and the policy of the law have ever regarded the testimony as among the secrets of the grand-jury room. Not, however, inflexibly so. In State v. Fasset, 16 Conn. 457, the court notices two exceptions — in prosecutions for perjury, and in case witnesses testify differently on the trial. Perhaps it would be proper to say that the oath has this implied qualification, that the testimony is to be kept secret unless a disclosure is required in some legal proceeding. It does not seem that the policy of the law should require it to be kept secret at the expense of justice. And so the weight of authority outside of this state seems to be, that where public justice or the rights of parties require it, the testimony before the grand jury may be shown. . . . We make these quotations, not for the purpose of showing what the law is in this state, but for the purpose of showing the principles which prevail in other jurisdictions. The case of State v. Fasset, supra, may be regarded as somewhat inconsistent with the broad principles elsewhere enunciated. It is doubtful whether the court intended to go further than the two exceptions there noticed.” (Pages 410, 412.)
In an early Maine case cited by appellant (McLellan v. Richardson, 13 Me. 82) the testimony was held inadmissible because in conflict with the policy of the law and with the grand juror’s oath, but in State v. Benner, 64 Me. 267, 285, the contrary was held, and this language used: “So, in all cases when necessary for the protection of the rights of parties, whether civil or criminal, grand jurors may be witnesses.”
In the case of The State v. Gibbs, 39 Iowa, 318, cited by appellant, a different question was involved. It was sought by defendant to impeach the action of the grand jury by presenting affidavits of several members for the purpose of showing that the indictment had not been concurred in by the requisite number of jurors. It is a universal rule that the evidence of members of the grand jury is not competent to impeach their action. (1 Bish. New Crim. Proc. § 858.) The same rule applies to the verdict of a petit juror. It is true the Iowa court in the opinion refers to the statutory and common-law rules enjoining strict secrecy upon the proceedings before a grand jury, and lays down the same rule as to the admissibility of testimony of its members as in the Tindle case, supra. However, in the case of Steele-Smith Gro. Co. v. Potthast, 109 Iowa, 413, 80 N. W. 517, a party’s admissions before a grand jury were held to be competent evidence against him. In that case the evidence of his admissions was in the minutes of the testimony taken by the clerk of the grand jury, and the court said: “We know of no rule that would restrict the use of such minutes to cases of perjury.” (Page 417.) No reference was made to The State v. Gibbs, supra.
Another case upon which appellant relies is the case of Gutgesell v. State, (Tex. Cr.) 43 S. W. 1016, in which the court of appeals of Texas held that such testimony was incompetent. It was declared to be against the policy of the law of that state, as appeared by the oath required of grand jurors and the statute authorizing a disclosure in the two classes of cases, and that the statute excludes any other exceptions. In Wisdom v. The State, 42 Tex. Cr. 579, 61 S. W. 926, a different view was taken, and the language of the former case was criticized.
It appears beyond question, we think, that the doctrine of the Tindle case, supra, is opposed to the weight of modern authority, and as its reasoning does not accord with our views we must decline to be bound by it. The oath provided for grand jurors by our state imposes none of the common-law restrictions of secrecy required by the statutes of many of the states. While the obligations of the oath are by many of the courts considered indicative of the policy of the law in those states, the absence of any such requirements in the oath provided by our statute is perhaps of little importance, in view of the other obligations as to secrecy imposed by the sections which we are considering. In principle we see no good reason why the statements, admissions or declarations made by a witness before a grand jury should not be disclosed by a member of the grand jury whenever lawfully required to do so, or why a member of the grand jury may not be lawfully required to testify “in relation thereto” when, after the purpose of secrecy has been effected, it becomes necessary in furtherance of justice or for the protection of public or individual rights. To the same effect see the following cases: Simms v. The State—Loyd v. The State, 60 Ga. 145; State v. Broughton, 7 Ired. Law (N. C.) 96, 45 Am. Dec. 507; People v. Young, 31 Cal. 563; People v. Northey, 77 Cal. 618, 19 Pac. 865, 20 Pac. 129; People v. Reggel, 8 Utah, 21, 28 Pac. 955; Perkins v. The State, 4 Ind. 222; Burdick v. Hunt et al., 43 Ind. 381; The State v. Van Buskirk, 59 Ind. 384; Shattuck v. The State, 11 Ind. 473; State v. Wood, 53 N. H. 484; United States v. Kirkwood, 5 Utah, 123, 13 Pac. 234.
The next serious contention is that, because the appellant as a member of the board of education had no legal authority personally to make the contract for the cleaning of the school buildings, the prosecution for bribery in accepting money to make such a contract must fail. This point is urged in complaint of certain instructions given, and of error in refusing to allow the motions for a new trial and in arrest of judgment. So far as this contention bears upon the charge in the indictment, the former decision in this case is controlling. The motion in arrest of judgment was based upon three grounds:
“(1) That the facts stated in the indictment filed in this causé and upon which the defendant was tried do not constitute a public offense. (2) That the facts stated in the indictment filed in the case and upon which the defendant was tried are not sufficient to constitute an offense or sustain the verdict heretofore rendered against the defendant in said cause. (3) That the indictment filed in this cause and upon which the defendant was tried has never been signed by the prosecuting attorney of said county.”
When this case was here before it was held that the indictment was properly signed and sufficient in subr stance, so that upon every question raised in the motion in arrest of judgment the former decision is the law of the case. But it is urged that the evidence of the state shows that the board placed the matter of letting the contract for this work in the hands of Biscomb, superintendent of buildings, and that if the evidence shows that anything was done by appellant.it is that he himself let the contract to Gilhaus. It is the contention that, as Biscomb alone could lawfully let the contract, no offense was committed.
The case of State v. Butler, 178 Mo. 272, 77 S. W. 560, is relied upon. In that case the defendant was charged with bribery in offering money to Doctor Chapman, a member of the board of health, to influence his vote upon the letting of a contract for the disposal of garbage. The board of health was given authority to make the contract by an ordinance of the city of St. Louis. The point was raised that the removal of garbage was a public work and the authority to contract therefor belonged to the board of public improvements, and that the ordinance giving the authority to the board of health was invalid. This view was sustained, and the court held that offering money to a member of the board of health to influence his action in letting such contract did not constitute bribery. The contract, providing for an expenditure of $65,000, was in fact ■entered into by the board of health, and when executed doubtless a plea of ultra vires on the part of the city in defense of payment would not have proved availing. The money offered was clearly to influence the •officer to do what the bribe-giver and every one else believed he had authority to do, and which if done would, under some circumstances, bind the city.
The decision in that case is one which does not appeal to our sense of justice, nor does the reasoning satisfy our views of the law of bribery. Let us transpose the facts and suppose that instead of the board of health the ordinance had authorized the board nf public works to let contracts for the removal of garbage; •and suppose that the bribe had been offered to a member of the board of public works: it is apparent that the ingenuity of counsel would have at once discovered the same defense. It appears that the charter of St. Louis gives to the municipal assembly power to enact laws to prevent the introduction and spread of contagious diseases and to secure the general health of the inhabitants by any measure necessary, and to pass laws to sustain good government, the health and welfare of the city, and to establish a sanitary system. With equal plausibility it might in such a case be argued that the disposal of filth and slops, instead of being a public improvement, such as water-works, streets, sewers, bridges, public buildings, parks, boulevards, harbors, and wharves, looking to permanency and requiring repair and improvement, very properly belonged to the department which for years -had controlled it, namely, the board of health, and therefore the ordinance attempting to give authority to the board of public improvements was invalid and the offer of money no bribery.
The second ground upon which the decision was based is, perhaps, as unsatisfactory. The particular ordinance in question was passed by the council and signed by the president of the council September 11, 1901, and signed by the speaker of the house of delegates on September 13, 1901. On September 17, 1901, the mayor reported to the council that he had signed the ordinance. Doctor Chapman testified that defendant came to his house on the evening of September 16 and offered him the bribe. The trial court instructed that if defendant knew the ordinance had been passed and that the matter might come before the board for action, and offered the money to influence the vote of the member, it was bribery. The supreme court held that because the ordinance was not signed until the next day the board of health had no authority to let the contract, and therefore it was not bribery to offer money to influence the action of a member of the board.
Suppose a member of the board of county commissioners is offered $100 to influence his vote upon a claim filed before the board against the county, and that the next day when the matter is to come before the board it is discovered that the claim is not such a one as can be allowed because it is not verified or itemized as the statute requires; suppose it is amended, and the member votes to allow it: could it be claimed in defense of the charge of offering or accepting the bribe that when the bribe was offered and accepted there was in fact no lawful claim pending before the board? In the case of The State v. Gregory, 46 Kan. 290, 26 Pac. 747, defendant was charged with perjury in an affidavit to a claim filed against Finney county. The defense was that the claim appeared upon its face to have been barred by the statute of limitations, and not being a claim which the board could lawfully allow the oath was not material. The trial court set aside the conviction, and upon a second trial quashed the indictment. On appeal by the state the cause was reversed.
The court in the Butler case (State v. Butler, 178 Mo. 272, 77 S. W. 560) seeks to distinguish that case from State v. Ellis, 33 N. J. Law, 102, 97 Am. Dec. 707, where there was pending before the common council an application for permission to lay a railroad-track in the streets of the city. A member of the council was offered a bribe to influence his vote thereon. It was contended that as the council had no authority to grant the application there could be no bribery. The contention of defendant was not upheld. The Missouri court approves the ruling, and uses this language : “It was immaterial whether the action of the council could be enforced. It was a matter pending before the council, upon which the members had a right to vote. It was not necessary ‘that the vote, if procured, would have produced the desired result.’ ” (Page 333.) It is somewhat difficult to understand how the result in the Butler case was reached and the ruling of the Ellis case approved. The Missouri statute is slightly different from ours. It contains the words “which may by law be brought before him,” and the court construes these words to mean “a law in force at the time of the offer to bribe.” (Page 319.) Our statute defines bribery as follows:
“Any officer of the state or of any county, city, district, or township, after his election or appointment, and either before or after he shall have qualified, or entered upon his official duties, who shall accept or receive any money or the loan of any money, or any real or personal property, or any pecuniary or other personal advantage, present or prospective, under any agreement or understanding that his vote, opinion, judgment or action shall be thereby influenced, or as a reward for having given or withheld any vote, opinion, or judgment in any matter before him in his official capacity, or having wrongfully done or omitted to do any official act, shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars, or by imprisonment for not less than one year nor more than seven years in the penitentiary at hard labor, or by both such fine and imprisonment, at the discretion of the court.” (Gen. Stat. 1901, § 2212.)
Appellant was a member of the board of education, which had the exclusive power to act in reference to cleaning the schoolhouses. It was the duty of the board to act. The duty devolved upon him to participate. The gravamen of the charge was feloniously receiving money as a bribe for giving his vote, opinion, judgment and action in favor of letting or causing to-be let the contract with Gilhaus. True there was no vote, but there was opinion, judgment and action by him in favor of giving Gilhaus -the contract. He saw Gilhaus and made the arrangement with him, agreed upon the terms — the amount Gilhaus was to be paid— and introduced him to the superintendent of buildings, so that the superintendent to whom the letting had been: referred adopted and acquiesced in appellant’s, action. Appellant was acting officially when he saw and arranged with Gilhaus to do the work, although if the arrangement had not been adopted by the superintendent there might possibly have been a question of the authority of appellant to make the contract.. He “permitted and caused to be let” the contract in question. If, therefore, he accepted money to influence his action in causing the contract to be let, why is he-not guilty of accepting -a bribe as contemplated by the statute? A valid contract was let through his influence-—his official opinion, judgment, and action. The mere fact that before it could be made valid it had to-be ratified by the superintendent of buildings,.to whom, he took Gilhaus, in no legal sense destroys the criminal nature of his offense. In our view of the law, to hold otherwise would be placing entirely too much importance upon a play of words — giving to strained technicalities more consideration than they deserve in order to avoid rather than attain substantial justice. In People v. Ellen, (Mich.) 100 N. W. 1008, the court held:
“Where a proposition to let a contract for waterworks was one which might come before a city council for official action, the fact that the council has no au thority to enter into the contract proposed did not prevent the payment of money to councilmen to influence their action on the same from constituting [bribery.] ” (Syllabus.)
(See, also, People v. McGarry, 136 Mich. 316, 99 N. W. 147; Glover v. The State, 109 Ind. 391, 10 N. E. 282; The State v. Potts, 78 Iowa, 656, 43 N. W. 534, 5 L. R. A. 814; The State v. McDonald, 106 Ind. 233, 6 N. E. 607; State v. Lehman, 182 Mo. 424, 81 S. W. 1118, 66 L. R. A. 490, 103 Am. St. Rep. 670.)
Complaint is made that the testimony of witness Lilly in reference to the amount Gilhaus charged him for similar work was immaterial, and that no foundation was laid showing that the conditions were the same. The work consisted of pumping mud and water out of a building in the same flooded district with a steam-pump, and the work was done soon after the other work was completed. The testimony was material as evidence of a circumstance bearing upon the price allowed Gilhaus and the intent with which the money was received.
There was. no error in' admitting in evidence the $412 check from Gilhaus to appellant. It was competent to establish the payment of the money by Gilhaus which appellant was charged with receiving from him. (People v. McGarry, 136 Mich. 316, 99 N. W. 147.)
Appellant insists that the court erred in refusing him a new trial, álleging three grounds:
(1) On account of newly discovered evidence, consisting of a letter dated September 21, 1889, addressed to him at Sioux City, Iowa, written by his patent attorney, in reference to his claim for letters patent upon the steam valve. This would have merely corroborated his own testimony that years before he had made an effort to secure a patent. It could not have been material evidence to disprove the charge of bribery.
(2) To enable appellant to procure the testimony of G. E. Gilhaus, a witness whose name was indorsed upon the indictment, and for whom the state had issued a subpoena. Appellant claims that it was the duty of the prosecution to produce all the witnesses whose námes were indorsed upon the indictment; that it was particularly its duty to procure the attendance of Gilhaus; and that he had the right to rely upon the performance of this duty. Cases are cited to the effect that a prosecutor owes the duty of laying before the jury all the facts of which he is informed and has the means of proving, and other cases holding that all witnesses whose names are indorsed upon the indictment should be called and sworn and defendant given an opportunity to cross-examine them. This may be the rule in some jurisdictions, but we believe it has never been recognized as the proper practice in criminal actions in this state. A prosecutor is. bound by his oath to perform his duty fearlessly and vigorously. He is not to seek to convict a man whom he knows to be innocent, or to conceal facts which would establish one’s innocence; and his duty to the court forbids him to employ trickery to convict any one. But he is not required to place on the stand every witness whose name happens to be indorsed upon the indictment, nor is he required to produce a witness merely because he has issued a subpoena for such witness. The defendant has no right to rely upon the presence of witnesses for whom subpoenas have been issued by the state. At his request the court may order a witness under subpoena by the state to remain; and other opportunities are afforded him for procuring the attendance of witnesses in his own behalf.
(3) The third ground for a new trial which is insisted upon is misconduct of the attorney-general in his closing argument to the jury. Affidavits of several persons present at the trial were offered to show that in his remarks counsel for the state told the jury that, the appellant was not satisfied with a bribe from Gilhaus, but that he had “bought lots for $150 apiece and sold them to the school board for $1000 apiece.” The trial court evidently accepted as true the affidavit of General Coleman that he had made no such statement. He explains that he did use substantially the following language:
“This thing of giving a makeshift and sham consideration for money really received as a bribe is no new thing. You have all doubtless heard of the thrifty member of the legislature, not of Kansas, but of some other state, who owned a cheap lot down in Missouri not worth over $150; how there was a bill pending before the legislature in which a certain rich corporation was deeply interested, and how the thrifty legislator voted for that bill, and how, immediately after it was passed, he sold that cheap lot of his to the same rich corporation for the sum of $1500. Of course he claimed he had not accepted a bribe; he just sold a lot. So, in this, case, Campbell did not accept a bribe; he tells you he simply sold a valve.”
There had been, of course, no evidence of any such transactions upon the part, of appellant; and, aside from his positive denial, the extreme improbability of counsel having employed the language imputed is apparent. The ruling of the trial court upon the motion should be regarded as a finding against defendant’s affidavits. The language which counsel admits having used was not improper in argument. We have considered the other remarks of counsel of which complaint is made, and find nothing prejudicial to appellant or which warranted a new trial.
It becomes unnecessary to consider the errors complained of in the instructions to the jury, for the reason that from our view of the law governing this case it follows that the instructions were properly given. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The defendants are real-estate brokers, and reside at Belleville, Kan. The plaintiffs own real estate in Republic county. They employed defendants to sell their land, agreeing to pay them $100 if they would make the sale as stipulated in the contract.
Defendants found a buyer, with whom they entered into a written contract of sale materially different from the one authorized by the plaintiffs, but the contract was made subject to the plaintiffs’ approval. The buyer paid $100 cash on the contract, which sum was to be returned if the sale was not approved by the plaintiffs, and to be forfeited if the conditions of the contract were complied with on the part of the owners of the land and the buyer failed to carry out the stipulations on his part. Afterward plaintiffs claimed that the $100 had become forfeited, and demanded payment thereof from Hall & Co., who refused, and this action was brought to recover that sum.
A general demurrer was' sustained to the plaintiffs’ petition, which ruling is assigned as error in this court. The petition, so far as necessary to show the question raised by the demurrer, reads as follows:
“That on the 22d day of August, 1902, . . . the plaintiffs . . . entered into a contract in writing with the said J. W. Hall & Co. to sell the farm of the said plaintiffs. The said contract is as follows: [This contract, being immaterial, is omitted.] . . .
“Plaintiffs state that thereafter, the exact date they are unable to give, the said defendants, J. W. Hall & Co., entered into a contract to sell the land heretofore described, which contract is as follows:
“ ‘Received of George W. Hart, town of Colfax, county of Jasper, state of Iowa,- one hundred dollars, the same being a part of the purchase-money on the following-described real estate, situated in the county of Republic and state of Kansas, to wit: S. 2 of S. W. 4 and N. E. 4 of S. W. 4 and S. 2 of N. W. 4 of S. W. 4 of sec. 22, T. 1, R. 2.
“ ‘Contract price for same being $3700. Balance of purchase-money payable as follows, to wit: First, on the 10th day of February, 1903, $1750. Second, balance is to be a mortgage covering this land at six per cent. ...
“ ‘An abstract to be furnished, showing title as represented — that is, clear of all encumbrances, and no clouds on the title; also a good and sufficient warranty deed to be given upon the above terms being complied with — that is,
“ ‘Providing, however, in case title is not as above represented, the part purchase-money here paid shall be refunded to said George W. Hart; but in case title is as represented, and said George W. Hart fails to comply with the terms as above stated, then the money here paid shall be forfeited, and this contract shall be null and void; in case title is not good or of any failure of Bowersox to accept this contract, it is understood that J. W. Hall & Co. will not be held responsible for any damages. -, Owner. ■
By J. W. Hall & Co., Agents.
“ ‘The above sale, price and terms approved, and I hereby agree and bind myself to carry out my part of the same. " George W. Hart.’
“Plaintiffs say that after the execution of the above contract, but the exact date plaintiffs cannot give, they were notified by J. W. Hall & Co. of the execution of the above contract with said George W. Hart, and at the request of J. W. Hall & Co. the plaintiffs executed a warranty deed to the said George W. Hart for the premises described in said contract, to wit: The south half of the southwest quarter, the northeast quarter of the southwest quarter and the south half of the northwest quarter of the southwest quarter of section twenty-two (22), in township one (1) south, of range two (2) west of the sixth principal meridian, in Republic county, Kansas, free and clear of all encumbrances, and deposited the same, together with an abstract of title to said land, with the said J. W. Hall & Co.
“Plaintiffs say that no part of the contract entered into for them, by the defendants, J. W. Hall & Co., with the said George W. Hart, has been carried out; that no payments thereon were ever made by said George W. Hart, or any one for him, other than the one hundred dollars preliminary payment mentioned in said contract; and that the said contract by its terms is null and void.
“Plaintiffs further say that no part of the one hundred dollars paid by George W. Hart to J. W. Hall & Co. on the contract above set forth has ever been paid to them; that they have made repeated demands upon the said J. W. Hall & Co. for the said sum of one hundred dollars; that the same is now due and unpaid and has been due them from defendants, J. W. Hall & Co., from and since the 10th day of February, A. D. 1903.
“Wherefore, plaintiffs pray judgment against the defendants, J. W. Hall & Co., for the sum of one hundred dollars, with interest thereon from the 10th day of February, A. D. 1903, at the rate of six per cent, per annum, and for the costs of this suit, and for such other and further relief as shall seem just and equitable to the court.”
It is claimed that this petition does not show that plaintiffs complied with the requirements of the contract made for them by Hall & Co., in that it fails to allege that they furnished an ■ abstract showing the title clear of all encumbrances, and no clouds thereon. There are other objections made to the petition, but we think this the most important and meritorious. Upon this subject the petition avers that plaintiffs, when informed by Hall & Co. of the transaction with George W. Hart, executed a warranty deed to the latter for the land, free and clear of all encumbrances, and deposited it and an abstract of title with Hall & Co. This is a* weak statement,' but under the liberal rule of construction that applies in favor of the pleader, as against a general demurrer, where no motion to make definite and certain has been filed, we deem it sufficient.
It is claimed that the agents, Hall & Co., have a lien on the fund for services rendered. If they have their rights in that respect should be presented in an answer. The contract fixing their fee at $100 was not complied with, and the amount to which they are entitled for what they have done is a reasonable sum, which might furnish a question for litigation. This is likewise true of the question whether or not the acts of Hart are sufficient to amount to a forfeiture. >lf not, the facts might be a good defense.
In overruling the demurrer we only decide that the averments of the petition, when considered in their broadest sense, state a cause of action. (The Western Massachusetts Insurance Company v. Duffey, 2 Kan. 347; Stewart v. Balderston, 10 Kan. 131, 147; Crowther v. Elliott, 7 Kan. 235; Park v. Tinkham, 9 Kan. 615.)
The judgment of the district court is reversed, and the court directed to overrule the demurrer and proceed with the case.
Johnston, C. J., Greene, Mason, Porter, JJ., concurring. | [
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Elliott, J.:
In this K.S.A. 60-1507 proceeding, Roger Alan Anderson claims his conviction of a felony is unconstitutional because Kansas state courts have no jurisdiction to hear felony cases.
The trial court summarily denied the motion and we affirm.
Anderson claims the United States Supreme Court has exclusive jurisdiction for all cases in which the State is a party. Article III, § 2, clause 2 of the United States Constitution states: “In all cases . . . and those in which a State shall be a party, the supreme Court shall have original Jurisdiction.”
This grant of original jurisdiction is not exclusive. See Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 9 L. Ed. 1233 (1838). If the parties are willing, these types of cases can be litigated in state courts. Popovici v. Agler, 280 U.S. 379, 383, 74 L. Ed. 489, 50 S. Ct. 154 (1930).
The exercise of the United States Supreme Court’s original jurisdiction is not obligatory; rather, it is discretionary. See Texas v. New Mexico, 462 U.S. 554, 570, 77 L. Ed. 2d 1, 103 S. Ct. 2558 (1983).
Original jurisdiction is to be honored
“only in appropriate cases. And the question of what is appropriate concerns, of course, the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer. [Citation omitted.]” Illinois v. City of Milwaukee, 406 U.S. 91, 93-94, 31 L. Ed. 2d 712, 92 S. Ct. 1385 (1972).
Further, the regulation and punishment of crimes not involving interstate commerce “has always been the province of the States.” United States v. Morrison, 529 U.S. 598, 618, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000).
As near as we can discover, only once in its history has the United States Supreme Court heard an original criminal case. See United States v. Shipp, 214 U.S. 386, 53 L. Ed. 1041, 29 S. Ct. 637 (1909) (criminal contempt of the United States Supreme Court).
Article 3, § 6(b) of the Kansas Constitution grants our district courts with jurisdiction as shall be provided by law. K.S.A. 22-2601 grants our district courts with exclusive jurisdiction to try all felony and other criminal cases.
The trial court did not err in dismissing Anderson’s K.S.A. 60-1507 motion.
Affirmed. | [
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Beier, J.:
This case requires us to decide whether an insurance company is bound to a settlement agreement negotiated on behalf of an injured minor if the company changes its mind about the value of the claim before scheduling a “friendly” hearing intended by both sides to obtain approval of the settlement.
Elizabeth White, 15, was a passenger in a car driven by her boyfriend and owned by her father, Steven, when the car was involved in a single-car accident. She suffered severe and permanent injuries to her right hand. Defendant Allied Mutual Insurance Company (Allied) was the liability carrier on the car.
Allied agreed with Steven to settle Elizabeth’s claim for $45,000, subject to approval of the court in a “friendly” hearing, and Allied turned the matter over to counsel to arrange for and conduct the hearing. Allied’s counsel made initial contact with Steven about the hearing. Then there was a sudden and lengthy silence.
Several months later, Steven contacted Allied because Allied had neither initiated the hearing nor paid the $45,000. Allied informed Steven that it had decided not to settle after all. Since negotiating with Steven and arriving at the $45,000 settiement amount, it had become aware of legal authority supporting a defense to Elizabeth’s claim.
Steven sought specific enforcement of the settlement agreement. The district court granted summary judgment in favor of Allied, finding Steven “had no legal authority to enter into a binding settlement contract on behalf of his minor daughter and, therefore, Allied lawfully withdrew its offer to setde. Without the existence of a settlement contract the plaintiffs breach of contract lawsuit must be dismissed.”
The standard of review for a motion for summary judgment is well established and often recited:
“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). On appeal, we apply die same rules, and where we find reasonable minds could differ as to the con elusions drawn from the evidence, summary judgment must be denied.’’Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
A settlement agreement is a type of contract and, therefore, governed by contract law. See Marquis v. State Farm Fire & Cas. Co, 265 Kan. 317, 323-24, 961 P.2d 1213 (1998). To create a contract, the parties involved in making the contract must have the capacity to contract. See Aetna Life & Cas. v. Americas Truckway Systems, Inc., 23 Kan. App. 2d 315, 319, 929 P.2d 807 (1997) (there must be at least two parties to a contract); see also U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 88, 966 P.2d 68 (1998) (municipal corporations cannot bind themselves by a contract in a manner that is beyond the scope of their powers).
Steven argues that he and Allied had a binding oral contract. Allied argues that there was no contract because die court never approved the settlement agreement and Steven lacked the capacity or legal authority to enter into an enforceable contract on his own.
Both parties cite Railway Co. v. Lasca, 79 Kan. 311, 99 Pac. 616 (1909). In Lasca, the minor plaintiff was 18 months old when his hands were run over by the wheel of a railroad car. His parents settled his claim against the railway company for $100, and the settlement was approved by the district court. Later, a second suit was brought to set aside the judgment entered on the basis of the settlement. The district court ordered the judgment set aside and the Supreme Court affirmed, finding the parents could negotiate for a fair adjustment of the controversy, but a settlement could not bind the infant without court approval after careful review. 79 Kan. at 316; See Childs v. Williams, 243 Kan. 441, 441, 757 P.2d 302 (1988) (“Because a minor can disavow a contract within a reasonable time after reaching majority [under K.S.A. 38-102], it is necessary to reduce a minor s settlement to judgment with court approval to make it binding.”); cf. Myers v. Anderson, 145 Kan. 775, 67 P.2d 542 (1937) (mother lacked authority to settle child’s cause of action for support from father; trial court erred in holding mother’s settlement with father bars child’s recovery).
Thus there is ample authority in Kansas for the idea that a minor is not bound by a settlement agreement such as the one in this case until court approval has been obtained. Even then, the minor may escape the settlement if the review hearing was inadequate to protect his or her interests. See Leslie v. Manufacturing Co., 102 Kan. 159, 164, 169 Pac. 193 (1917). And courts in other jurisdictions have applied this rule to permit minors to repudiate or withdraw from a settlement prior to its approval by the court. See e.g., Dacany v. Mendoza, 573 F.2d 1075, 1079-80 (9th Cir. 1978) (applying Guam law; settlement voidable at election of minor until it receives court’s imprimatur); Scruton v. Korean Air Lines Co., 39 Cal. App. 4th 1596, 1608, 46 Cal. Rptr. 2d 638 (1995) (compromise of claim could be repudiated by guardian for minor at any time until approval rendered); Wreglesworth v. Arctco, Inc., 316 Ill. App. 3d 1023, 1027-28, 738 N.E.2d 964, 969 (2000) (release of minor’s claims ineffective absent probate court approval). We agree that this is logical. The question becomes: Does the party responsible for paying the settlement amount have the same right?
Steven is correct that the public policy behind the requirement of court approval is protection of the minor’s interests, not those of the minor’s opponent. Kansas’ appellate decisions repeatedly urge reviewing courts to exercise extensive oversight, ensuring that the injured minor’s claims are not sold short by an agreed settlement merely outlined at a “friendly” hearing. As we said in Baugh v. Baugh, 25 Kan. App. 2d 871, 872-73, 973 P.2d 202 (1999): “The district court may not simply rely on the fact that the minor’s parents have consented to the proposed agreement. Instead, the court must determine whether the agreement is in the minor’s best interests.” See also Leslie, 102 Kan. at 164 (city court’s approval of settlement between defendant and injured minor’s father not bona fide; “merely a complaisant and perfunctoiy acquiescence”); Lasca, 79 Kan. at 316-19; cf. Perry v. Umberger, 145 Kan. 367, 65 P.2d 280 (1937) (district court approval of settlement upheld because it engaged in full examination of facts of accident and extent of minor’s injuries). The Alabama Supreme Court, whose language was relied upon in Lasca, characterized the agreement of a minor’s next friend to a settlement amount as “nugatory.”
“ ‘It is as if it were not and had never been. The court may upon being advised of the facts, upon hearing the evidence, enter up a valid and binding judgment for the amount so attempted to be agreed upon, but this [is] not because of the agreement at all—that should exert no influence—but because it appears from the evidence that the amount is just and fair, and a judgment therefor will be conservative of the minor’s interests.’ ” Lasca, 79 Kan. at 317 (quoting Tennessee v. Coal, Iron & Railroad Co. v. Hayes, 97 Ala. 201, 209, 12 So. 98 [1892]).
The parties have directed our attention to only one case, from New York, in which a paying party asserted a right to withdraw its settlement offer to a minor s parent between the time the deal was struck and the time the court reviewed it. In that case, Wizniewski v. Parks, 169 Misc. 2d 326, 645 N.Y.S.2d 992 (1996), a father brought a personal injury suit after his child was bitten by a dog owned by neighbors. The father accepted a settlement offer from the defendants on January 11, 1996, but his acceptance noted that the required hearing to obtain court approval could not be completed until the child returned to the country sometime in September 1996. On January 15, 1996, the defendants purported to reserve the right to withdraw the offer if the child would not be available within 60 days. A January 30, 1996, letter reiterated this intention.
The Wizniewski court found the settlement agreement was an executory accord, defined as “an agreement embodying a promise express or implied to accept at some future time a stipulated performance in satisfaction or discharge in whole or in part of any present . . . cause of action.” 169 Misc. 2d at 328. The executory accord was binding on the défendants, even though it called for performance to occur at a time after its making. Because the agreement contemplated performance within a reasonable time, the defendants’ attempt to reserve a right to unilaterally terminate the accord was ineffective. In the period between the father’s acceptance of the offer on his child’s behalf and approval by the court, the defendants were not “free to disavow or repudiate their contract.” 169 Misc. 2d at 330.
The Wizniewski court rejected the defendants’ argument that it would be “ludicrous” to enforce a settlement agreement against the defendants while permitting the minor to repudiate it:
“[I]nfants have been free to enter into contracts which can be subsequently repudiated and this rule derives from the common law and flows as a natural con sequence from the legal status of infants. The function of an . . . infant settlement motion or proceeding, as Plaintiff ably points out, is to provide Defendants with an ability to obtain an enforceable settlement agreement so that cases just like the present one can be resolved. Plaintiff cannot now obtain an order from this Court compelling payment on this executory accord since the . . . infant settlement proceeding has not been completed. To that extent, Defendants are precisely correct. [Citation omitted.] In the posture of this case, however, the executory accord between the parties operates as a bar to Defendants’ ability to obtain summary judgment [on the merits of the minor’s claim]. Having found an offer and an acceptance resulting in an executory accord, this Court finds no difficulty, conceptually or otherwise, in finding that the settlement agreement reached by the parties remains subject to the subsequent review by this Court before it becomes a final settlement. During the interim between acceptance and Court disposition, however, the Defendants do not remain free to disavow or repudiate their contract with Plaintiff.” 169 Misc. 2d at 330.
Kansas cases have recognized the doctrine of executory accord. See Gillick v. Brite Voice Systems, Inc., 267 Kan. 420, 425, 981 P.2d 1165 (1999) (settlement agreement was executory accord; plaintiff could enforce agreement but could not then revive original claim); Coffeyville State Bank v. Lembeck, 227 Kan. 857, 860-61, 610 P.2d 616 (1980) (executory accord operates as suspension of original claim; if debtor breaches accord, creditor may enforce prior obligation unless creditor has already sued on accord and recovered judgment); cf. Elliott v. Whitney, 215 Kan. 256, 259-60, 524 P.2d 699 (1974) (subsequent written agreement breached by defendant governed plaintiffs rights rather than oral agreement; written agreement constituted novation or substituted contract, not “executory accord”).
We are persuaded that this is one of the rare situations suitable for application of the doctrine of executory accord. The executory accord is binding on Allied, which does not dispute that it made an offer to settle Elizabeth’s claim for $45,000 or that the offer was accepted on her behalf by Steve. Although our precedents are clear that the resulting agreement was not binding on Elizabeth until a court approved it, Allied was bound not to revoke or attempt to withdraw its offer prior to the friendly hearing that it undertook to schedule. To the extent this rule results in “preferential” treatment for minor plaintiffs who retain their historical flexibility pending court approval, it is preferential treatment consonant with the express public policy underlying the court approval requirement.
This case must be reversed and remanded to district court for the hearing Allied promised. At that hearing, Allied shall not take the position that it offered or should have offered anything less than the $45,000 already accepted. Of course, the district court should perform the careful review of the matter required by the cases we have cited and conclude on its own whether the settlement adequately protects the interests of Elizabeth.
We would be remiss if we did not make one additional observation regarding the peculiar facts of this case. Allied’s apparently deliberate prevention of the occurrence of a condition precedent to the setdement’s effectiveness could provide another ground for reversal.
“A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. A condition precedent requires the performance of some act or the happening of some event after the terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect. (See Words and Phrases, Conditions Precedent, Vol. 8, pp. 713-785.)” Wallerius v. Hare, 194 Kan. 408, 412, 399 P.2d 543 (1965).
The “friendly” hearing intended to obtain court approval of the settlement agreement qualified as a condition precedent for the setdement agreement. Allied undertook to arrange the hearing and then refused to go forward with it. This it could not do.
“ ‘The rule is clear and well settled, and founded in absolute justice, that a party to a contract cannot prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition. [Citations omitted.] And this is the universal rule. [Citations omitted.]’ ” 194 Kan. at 412
Although the record does not disclose exacdy when Allied’s counsel determined that there was a substantive defense to Elizabeth’s claim, it is reasonable to assume that this determination prompted the sudden and prolonged silence. When Steven could stand the suspense no longer, he took the initiative to find out why neither the hearing nor a check for $45,000 had materialized. It is fortunate for Elizabeth that he became curious when he did, as it is obvious that Allied and its counsel were content to let the statute of limitations run before they informed Steven that the deal he was waiting to finalize had, in their view, evaporated. Although their tactic was not unethical, it was unprofessional, given their previous enthusiastic pursuit of the settlement and subsequent preliminaiy contracts regarding the hearing they promised to set up.
Reversed and remanded for further proceedings consistent with this opinion. | [
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Beier, J.;
Ronald Edwards appeals the district court’s denial of his K.S.A. 60-1507 motion alleging ineffective assistance of counsel. We conclude Edwards’ claim that his counsel should have taken issue with evidence arising from his accomplice’s plea bargain is without merit.
When reviewing the denial of a K.S.A. 60-1507 motion, an appellate court must determine whether the district court’s findings of fact 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). In order to prevail on a claim of ineffective assistance of counsel, a movant must show counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment and that counsel’s deficient performance prejudiced the defense, depriving movant of a fair trial. State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 (2000).
Movant argues his counsel was ineffective because he failed to object or move to suppress an accomplice’s testimony. The accomplice had entered into a plea agreement and received leniency in exchange for his testimony on behalf of the State in Edwards’ case. Edwards contends the deal violated the rules governing lawyers’ ethical conduct and K.S.A. 21-3807(a)(l).
Kansas Rule of Professional Conduct (KRPC) 3.4(b) (2000 Kan. Ct. R. Annot. 389) provides that a lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.”
K.S.A. 21-3807(a)(l) provides: “Compounding a crime is accepting or agreeing to accept anything of value as consideration for a promise: (1) Not to initiate or aid in the prosecution of a person who has committed a crime.”
KRPC 3.4(b) prohibits only unlawful inducements, and the inducement offered Edwards’ accomplice was not unlawful under K.S.A. 21-3807(a)(l). The statute does not apply even if one assumes for the purposes of argument that the accomplice’s testimony was something “of value” to the prosecutor, and the prosecutor’s willingness to deal was something “of value” to the accomplice. Neither side in the plea negotiation agreed in exchange for something of value not to prosecute Edwards or the accomplice. In fact, both were prosecuted.
We also note that applying K.S.A. 21-3807(a)(l) as Edwards suggests would contradict K.S.A. 21-4713, which provides:
“The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea to a charged offense or to a lesser or related offense, the prosecutor may do any of the following:
“(a) Move for dismissal of other charges or counts;
“(b) recommend a particular sentence within the sentencing range applicable to the offense or to the offense to which the offender pled guilty;
“(c) recommend a particular sentence outside of die sentencing range only when departure factors exist and shall be stated on the record;
“(d) agree to file a particular charge or count;
“(e) agree not to file charges or counts; or
“(f) make any other promise to the defendant . . . .”
Our Supreme Court has set forth the proper analysis when such a conflict appears to exist:
“In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire act if it is reasonably possible to do so. [Citation omitted.] “ ‘General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.’ ” [Citation omitted.]” State v. Le, 260 Kan. 845, 847-48, 926 P.2d 638 (1996).
K.S.A. 21-4713 is a specific statute that sets forth the lawful actions a prosecutor can take in offering a plea bargain. This contrasts with the general prohibition against compounding a crime in K.S.A. 21-3807. It also is noteworthy that K.S.A. 21-3807 was enacted first, and it is thus unlikely the legislature intended every plea bargain entered into in compliance with K.S.A. 21-4713 to be a crime.
This conclusion is bolstered by the Supreme Court’s related ruling in State v. Barksdale, 266 Kan. 498, 515, 973 P.2d 165 (1999). In that case, the defendant relied on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), overruled upon rehearing en banc 165 F.3d 1297 (10th Cir. 1999), cert. denied 527 U.S. 1024 (1999), to argue that the district court erred in allowing a witness’ testimony because it was obtained in return for the State’s promise to contact the parole board on his behalf. The Supreme Court found Singleton was inapplicable to the case because Kansas did not have a statute comparable to 18 U.S.C. § 201(c)(2) (1994), whiph prohibits the giving, offering, or promising of anything of value to a witness for his or her testimony. The court further stated: “[T]here is no constitutional prohibition against the testimony of a witness who receives benefits in exchange for testimony.” 266 Kan. at 515.
Although the district court based its decision in this case on a rationale different from ours, the reason for its decision is immaterial if its ruling is correct for any reason. See KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 110, 118, 936 P.2d 714 (1997). In view of our interpretation of KRPC 3.4(b) and K.S.A. 21-3807(a)(1), the district judge was correct in denying Edwards’ K.S.A. 60-1507 motion.
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Pierron, J.:
In the case before us, Hal Jarvis Kunze, Delores Kunze, and Darcy D. Kunze appeal the judgment of the trial court against them for the cost of repairs to a partition fence and the award of attorney fees.
Jerry Schwartz owns a parcel of land and the Kunzes own the adjoining parcel to the east. A partition fence running south to north divides the two properties. Fancy Creek runs west to east through the properties and under the partition fence.
On October 6, 1983, the Board of Riley County Commissioners (County), acting as fence viewers pursuant to K.S.A. 29-301, made an assignment for the budding and maintenance of the fence. The assignment contained the rights and responsibdities of each party with respect to the fence. In addition to the partition fence, the assignment directed the Kunzes to maintain stock tight fences east of the partition fence on both sides of Fancy Creek.
When Schwartz inquired about a perceived fence problem in 1998, he was directed by the county counselor how to proceed in seeking to have the fence repaired. He allegedly followed those directions.
On May 29,1998, Schwartz notified the Kunzes by certified mail that the partition fence in the Fancy Creek channel was in disre pair. The notice stated the Kunzes had until June 10, 1998, to repair the fence or Schwartz would repair it and bill the costs to the Kunzes. Hal inspected the fence and determined it did not need repair. Schwartz repaired the fence and sent a bill to the Kunzes.
Shortly thereafter, Schwartz felt the fence needed to be repaired again. On July 23, 1998, he sent another notice to the Kunzes, giving them until July 30, 1998, to repair the fence. The Kunzes again failed to repair the fence, and Schwartz repaired it and billed the Kunzes for the expense. Schwartz sent copies of the letters requesting the Kunzes to repair the fence to the County.
Schwartz then requested the County, pursuant to 29-303, to inspect the repairs and determine their value. The County determined the value of the repairs made on July 6,1998, to be $265.00 and the value of the repairs made on August 15, 1998 to be $133.00. The Kunzes failed to pay for either repair.
Schwartz filed suit seeking to have the trial court order the Kunzes to pay for the repairs plus interest and attorney fees. The Kunzes filed a motion for summary judgment, claiming Schwartz had failed to comply with K.S.A. 29-302 by repairing the fence before the County had viewed it to determine whether it was in need of repair. The court denied the motion, ruling in part that compliance with 29-302 was not required to bring the action.
At trial Schwartz, Hal, and Darcy testified regarding the fence assignment. The trial court interpreted the assignment and held that the Kunzes had not maintained their portion of the fence in accordance with the assignment. The court awarded $398 plus interest at the rate of 1 percent per month from December 26,1998, and assessed attorney fees of $2,951.05 with interest.
This case involves interpretation of the statutes regulating fence viewing. It is a question of statutory interpretation and is subject to unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
The Kunzes claim Schwartz was required by 29-302 to request the County to inspect the fence to determine whether it needed repair before any repairs were undertaken. Schwartz counters that under 29-303, there is no such requirement.
As a preliminaiy matter, the Kunzes argue Schwartz did not bring this action at the trial level pursuant to K.S.A. 29-305, as Schwartz now claims, but rather pursuant to 29-303. The Kunzes are correct that the petition and the memorandum in opposition to the Kunzes’ motion for summary judgment clearly state that relief is being sought under 29-303. In its order denying the Kunzes motion for summary judgment, the trial court found, seemingly on its own initiative, that Schwartz was entitled to repair the fence pursuant to 29-305 and compliance with 29-303 was not a prerequisite to bringing an action under 29-305. At the trial was the first time Schwartz mentioned 29-305 as a possible basis for relief. He also claimed in his written closing argument that the action was being brought pursuant to 29-305. The Kunzes argued in their written closing argument that the action was brought pursuant to 29-303 and, thus, Schwartz had to comply with 29-302. The court concluded the basis for the action was at least partially 29-305, and that is the issue presented to this panel.
The statutes relevant to this issue are 29-301 through 29-305. These statutes relate specifically to partition fences.
“The owners of adjoining lands shall keep up and maintain in good repair all partition fences between them in equal shares, so long as both parties continue to occupy or improve such lands, unless otherwise agreed.” K.S.A. 29-301.
“If any party neglect to repair or rebuild a partition fence, or the portion thereof which he ought to maintain, the aggrieved party may complain to the fence viewers, who, after due notice to each party, shall examine the same, and if they determine that the fence is insufficient, shall signify it, in writing, to the delinquent occupant of the land, and direct him to repair or rebuild the same within such time as they may judge reasonable.” K.S.A. 29-302.
“If such fence be not repaired or rebuilt accordingly, the complainant may repair or rebuild it, and the same being adjudged sufficient by the fence viewers, and the value thereof, with their fees, being ascertained by them and certified under their hands, the complainant may demand of the owner of the land where the fence was deficient, the sum so ascertained; and in case of neglect to pay the same for one month after written demand, may recover it, with interest at the rate of one percent per month, by action in any court of competent jurisdiction. In any such action the court shall allow the prevailing party a reasonable sum for attorney’s fee.” K.S.A. 29-303.
“When any controversy shall arise about the rights of the respective owners in partition fences, or their obligations to keep up and maintain the same in good repair, and if they cannot agree among themselves, either party may apply to the fence viewers of the township in which such fence may be situated, who, after a reasonable notice to the other party, shall proceed, on application as aforesaid, to view such fence, and assign to each party, in writing, his equal share or part of such partition fence, to be by him kept up and maintained in good repair; which assignment shall be recorded by the register of deeds of the county in a book to be provided for that purpose, and shall be final, conclusive and binding upon the parties, and upon all the succeeding occupants of the lands, and they shall be obliged thereafter to maintain their respective portions of said fence.” K.S.A. 29-304.
“If a party neglect or refuse to erect or maintain the part of the fence assigned him by the fence viewers, it may be erected and maintained by the aggrieved party in the manner before provided, and he shall be entitled to recover the ascertained cost thereof, with interest at the rate of one percent per month and a reasonable attorney’s fee to be fixed and allowed by the court, by action in any court of competent jurisdiction; and.the amount recovered, with costs, shall be a lien against the land chargeable with the same.” K.S.A. 29-305.
The Kunzes assert that Schwartz was required under 29-302 to complain to the County and have it declare the fence insufficient before anyone was directed to undertake repairs. According to the Kunzes, this is the natural interpretation of the statute to cover a situation where adjoining landowners have a difference of opinion regarding whether a particular partition fence is in need of repair. In addition, it is the fence viewers’ duty to determine a reasonable time for repair.
The Kunzes further assert the language found in 29-303 that a complaining party may repair a fence if it has not been repaired accordingly refers to the directions given by the fence viewers pursuant to 29-302. Since it is undisputed that there was no inspection by the County prior to Schwartz commencing the repairs, the Kunzes maintain that Schwartz would not be in statutory compliance for an action brought under 29-303.
The Kunzes’ main argument, and the major point of contention in this case, is that 29-305, by providing that an aggrieved party may fix a neglected fence in the manner before provided, refers to 29-302 and 29-303 and requires a viewing of the fence before any repairs are made. The rationale provided for this interpretation is that too many problems can arise if an aggrieved landowner is permitted to determine when repairs are needed and to choose the method of notification and amount of time to fix the fence. Also, the Kunzes state that to ignore the language “in the manner before provided” obviates the need to involve the fence viewers at all once an assignment has been made.
As partial support for their argument, the Kunzes’ point to Vernon’s Kansas Forms, §§ 2341, 2342, 2343, and 2344, which are referenced in the Research and Practice Aides following K.S.A. 29-302 and K.S.A. 29-303. Section 2344, titled “Complaint of Failure to Repair or Rebuild,” instructs the attorney to follow § 2341 and states:
“That on the_day of_, 19_, the fence viewers made an order that -rebuild [or, repair] the_half of the partition fence between the land of complainant and that occupied by said_within_days; that said-failed and refused to comply with said order, and after the time above mentioned expired, and_still refusing to comply with said order complainant rebuilt said fence [or, repaired said fence], and now requests that you examine said fence and adjudge it sufficient, and ascertain the value of the work and material placed therein by complainant, and certify thereto.
Dated_19_
[Signature]”
Section 2341 is the original “Complaint to Fence Viewers,” which requests a fence viewing. The Kunzes contend this reference to § 2341 shows an understanding that the fence viewers shall be called back prior to a repair or rebuild by the complainant if an assignment has been made, one party refuses to comply, and the other party wishes to benefit from the provisions of K.S.A. 29-301 through -305.
We note that the language “in the manner before provided” does not necessarily refer to either K.S.A. 29-302 or K.S.A.. 29-303 but might well refer to the rights and responsibilities found in the assignment filed pursuant to K.S.A. 29-304.
Schwartz agrees that 29-302 and 29-303 are to be read together to require an inspection by the fence viewers prior to repairs being made and a procedure to be followed by an aggrieved landowner when the repairs are not made as directed. However, Schwartz claims 29-304 provides a final answer to parties who are not able to agree on their rights and responsibilities regarding a partition fence. According to Schwartz, requiring an inspection eveiy time a landowner feels a fence needs to be repaired by the other landowner would defeat the purpose of 29-304, which is to negate such a requirement.
Schwartz contends the language “in the manner before provided” refers to 29-303, which itself does not specifically require an inspection prior to the actual repairs being made. This, Schwartz argues, is the clear intent of 29-305.
It is illogical to concede, as Schwartz does, that the remedy in 29-303 follows from the process provided in 29-302, and then to argue that 29-305 refers to 29-303 and not simultaneously to 29-302. It is not clear, as Schwartz argues, that this interpretation is what the legislature intended.
“ In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible.’ [Citation omitted.]” State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998) (citing State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 [1998]). Construing the statutes in this case as a whole provides few clues about the legislature’s intent regarding when fence viewers are required to inspect a partition fence. Neither party in the present case presents any real authority or support for their conclusions pertaining to which statutes are implicated.
The issue in this case boils down to whether the intent of the legislature was to require fence viewers to inspect a fence every time a dispute arises between adjoining landowners pursuant to 29-302 and 29-303, or, as in the present case, the presence of an assignment filed pursuant to 29-304 implicates 29-305, which does not specifically state the requirements of inspection.
We believe the five statutes quoted above need to be read together. While there is obvious support for the trial judge’s reading of the statute, we are persuaded that the answer to our problem is found in the first sentence of 29-304, which reads: “When any controversy shall arise about the rights of the respective owners in partition fences, or their obligations to keep up and maintain the same in good repair, and if they cannot agree among themselves, either party may apply to the fence viewers.”
This language appears to apply to both the original dispute and to any subsequent arguments over the obligation to keep up the fences. This seemingly all inclusive language is reasonable in context as it gives the objective fence viewers the ability to see the situation before action is taken and direct what is to be done.
We must therefore find that since the provisions of 29-304 and 29-305 were not followed, Schwartz cannot avail himself of the damage and attorney fee provisions of29-303 and 29-305. We must reverse the decision rendered below and find that the repair costs and attorney fees cannot be recovered under K.S.A. 29-301 et seq.
While this ruling would resolve the remaining issues as to this case, we will address the other matters on appeal in case of review and for the benefit of subsequent parties with similar cases.
The Kunzes also claim the assignment as filed in 1983 was invalid because it did not divide responsibility for the fence in equal shares between the parties as required by 29-301. Schwartz contends the Kunzes did not raise this issue at the trial level and are now precluded from raising it here. The Kunzes point out the defense was raised in the answer to Schwartz’s petition and in the pretrial order.
The issue was raised in the manner the Kunzes claim, but the issue pursued at trial focused more on the interpretation each party gave to the assignment, not the validity of the assignment. The trial court’s memorandum of judgment quoted portions of the assignment when ruling on the parties’ responsibilities, but the court was never asked to rule on the validity of the assignment. The Kunzes did not raise the issue at trial and cannot raise it now. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999).
In any event, we seriously doubt the unappealed 1983 order can now, in effect, be appealed.
Schwartz argues that another issue on appeal is whether the trial court correctly interpreted the assignment. The Kunzes did not raise this issue and Schwartz did not cross-appeal it. The issue is not properly before this court.
We are also asked to determine if the trial court erred in taking judicial notice of Riley County District Court Case No. 96-C-56.
Schwartz testified briefly during his direct examination about case No. 96-C-56 regarding the same subject matter and parties as the present case. Schwartz also included a reference to taking judicial notice of the case in his proposed findings of fact and written closing argument. The Kunzes argue Schwartz never requested the trial court to taire judicial notice of the case and, therefore, it was error for the court to do so.
K.S.A. 60-409 governs which facts must or may be judicially noticed. The provisions concerning which facts may be judicially noticed absent a request from a party are not applicable to this case. See K.S.A. 60-409(a) and (b).
If a party wishes to request the trial court to taire judicial notice of a fact not enumerated in K.S.A. 60-409(b), the party must furnish the judge “sufficient information to enable him or her properly to comply with the request” and give the adverse party “such notice as tiie judge may require to enable the adverse party to prepare to meet the request.” K.S.A. 60-409(c). It is questionable whether the requirements of 60-409 were followed in this case.
However, even if it was error for the trial court to include mention of case No. 96-C-56 in its memorandum or judgment, the Kunzes have not shown it was prejudicial. The court mentions the case and another earlier case to illustrate the Kunzes had not been maintaining the fence in compliance with the assignment. The ultimate question was whether the Kunzes were liable for the cost of repairs performed by Schwartz. The court’s determination that the Kunzes were responsible for a particular portion of the fence and failed to maintain it on the dates in question would not likely have been different in the absence of the case No. 96-C-56. Without a showing of prejudicial error, the consideration of the prior case is not reversible error. Catholic Housing Services, Inc. v. State Dept. of SRS, 256 Kan. 470, 479, 886 P.2d 835 (1994).
Finally, we must determine if the trial court erred in awarding interest on an award of-attorney fees.
K.S.A. 29-303 provides that an aggrieved party may recover the cost of repairs with interest at the rate of 1 percent per month and a reasonable attorney fee. K.S.A. 29-305 provides an aggrieved party may recover costs in the same fashion as 29-303, as well as a reasonable attorney fee “to be fixed and allowed by the court.” The trial court granted judgment in the amount of $398 plus interest at the rate of 1 percent per month from December 26, 1998. The court also granted attorney fees of $2,951.05 plus interest at the legal rate from the date of the memorandum of judgment.
The Kunzes argue the trial court was without the authority to award interest on the attorney fees. Schwartz counters that since the court is permitted to set the attorney fees and it is appropriate to award interest on a judgment entered by a court, the interest was appropriate. It is true there is a statutory framework for awarding interest on judgments. See K.S.A. 2000 Supp. 16-204. However, in Kansas attorney fees cannot be granted absent statutory authority. United States Fidelity v. Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905, 908 P.2d 1329 (1995). In the present case, there is statutory authority for the fee, but it also seems clear that the award of attorney fees was separate from the judgment awarded for repairs to the fence. Accordingly, absent statutory authority allowing for interest to be added to the attorney fees, it was error for the trial court to do so.
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Wilbert, J.:
Jack L. Burton appeals the district court’s ruling granting child support arrearage, entering a wage withholding order for current and past-due child support, and awarding Charlotte Burton attorney fees.
Jack and Charlotte were married in 1977 and divorced in May 1991. They have three children: Noah, dob: 6/6/78; Heidi, dob: 4/ 22/81; and Amber, dob: 8/15/82.
The court order granting the divorce gave residential custody of the minor children to Charlotte and ordered Jack to pay $697 per month for child support. In March 1994, the court reduced Jack’s child support obligation to $400 per month after a loss of employment caused a reduction in income. In May 1995, Charlotte filed a motion to modify child support. In October 1995, the court noted the parties had agreed Jack would pay $444 per month beginning in August 1995 and entered this amount as its order.
After Noah turned 18 years old in June 1996, Jack attempted to recalculate his child support obligation by using the most recent court-approved child support worksheet. The worksheet reflected $326 in support for Noah and $284.50 for Heidi and Amber each. Jack’s proportionate share of the combined income was 59.70%. Jack calculated his 59.70% of $326 that had abated due to Noah’s majority to be $194.62 and subtracted that amount from $444. He concluded that his child support obligation for Heidi and Amber was $249.38 and started to pay this amount in June 1996.
Charlotte filed a motion to modify child support in July 1996. For reasons that are unclear, Charlotte did not pursue this motion. The amount of child support Jack paid from June 1996 until May 1999 was without the benefit of a court order or the proper calculation under the Kansas Child Support Guidelines (Administrative Order No. 128 [2000 Kan. Ct. R. Annot. 97]).
After Heidi graduated from high school, Jack again modified the amount of child support without a court order. Jack once again utilized the method he devised after Noah turned 18 years of age and determined that the child support for Amber would be $79.53. Jack did not think this was a fair amount, so he decided to pay one-half of the previous $249.38. On June 21, 1999, Charlotte filed a motion for modification of child support.
On December 15, 1999, the court held a hearing on Charlotte’s motion to modify. The court ordered that Jack’s child support payment would be $285 per month and awarded Charlotte $1,000 in attorney fees.
On February. 28, 2000, an order for wage garnishment in the amount of $3,059.68 was entered with Jack’s employer. Jack filed a motion to quash garnishment. At the hearing, Jack argued that there was no arrearage pursuant to Brady v. Brady, 225 Kan. 485, 491, 592 P.2d 865 (1979), which allows one to reduce child support proportionately without coming back to the court for an order. However, the district court ruled that Jack had improperly calculated child support and had essentially entered his own order, causing an arrearage.
The district court entered an income withholding order for $285 per month for current support, and $100 per month for the past due support. On April 20, 2000, the district court entered an order of disbursal, noting Jack had failed to reply to the answer of the garnishee and was in default. The district court ordered the garnishee to pay $995.02. Jack appeals to this court.
“ ‘A trial court’s order determining the amount of child support will not be disturbed on appeal absent an abuse of discretion.’ ” In re Marriage of Scott, 263 Kan. 638, 645, 952 P.2d 1318 (1998) (quoting In re Marriage of Denning, 22 Kan. App. 2d 226, 914 P.2d 576 [1996]). The Kansas Child Support Guidelines are the basis for estabhshing and reviewing child support orders in Kansas. The court must follow the guidelines and a deviation from the guidelines without a stated reason is reversible error. In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 (1998). The interpretation of the child support guidelines is a question of law. 265 Kan. at 717.
Jack does not challenge the district court’s order of $285 in child support per month beginning in June 1999. Jack seeks relief from the court’s order finding him in arrears because he improperly reduced the amount of child support he was paying when Noah reached the age of majority. Jack relies on the Brady case, in which the court held:
“When a child attains the age of majority, or when a child goes to live with the other parent, or when a child dies, the obligation to pay support for that child should automatically cease and terminate unless the agreement provides otherwise.
“Under the proportionate share rule of divisibility, needless litigation will be avoided because neither party will be required to seek an immediate court order. If, however, the proportionate share is unfair under the circumstances, either party can apply to the court for a change under K.S.A. 1978 Supp. 60-1610(a). In any event, the parent who pays support pursuant to a lump sum award should be allowed to reduce support proportionately as the children become of age without returning to court each time.” 225 Kan. at 491.
At the hearing on the motion to quash garnishment, Jack argued that no arrearage existed because he had merely reduced the amount of support he was paying when Noah reached majority as Brady allowed for him to do. Jack asserted that it was proper to reduce his payments by the amount he had been paying for Noah, not according to the Brady proportionate share rule. Jack contended that Brady was decided before the child support guidelines came into effect and dealt with a lump sum of support, whereas he paid an individual amount for each child.
Charlotte argued that Jack should have paid $296 per month (two-thirds of $444) after Noah reached the age of majority, but Jack improperly paid $281.50 based upon his own calculations. Thus, he had an arrearage of $3,059.68.
The district court noted that while there may be a breakdown per child on the child support worksheet, Jack could not simply deduct the amount for Noah when he turned 18 because the applicable child support worksheet would then be a two-child schedule as opposed to a three-child schedule, which leads to an increase in support. The court held that Jack could not recalculate the support and enter his own order. Thus, the court found that Jack was in arrears. The court accepted Charlotte’s amount of $3,059.68 as being the correct amount of the arrearage.
Subject to the provisos in K.S.A. 60-1610 under which child support may continue after a child attains 18 years of age, the proportionate share rule in Brady has application even after enactment of the Kansas Child Support Guidelines. Brady permits a pro rata reduction as a matter of law without the necessity of returning to court. However, in this appeal, Jack did not reduce his child support proportionately as is permitted by Brady.
Jack argues that the doctrine of laches bars Charlotte’s claim to a child support arrearage. He points out that although Charlotte filed a motion to modify in 1996, she did not pursue it. Instead, she accepted the support proffered by Jack for 3 years.
In the case of In re Marriage of Jones, 22 Kan. App. 2d 753, 757, 921 P.2d 839, rev. denied 260 Kan. 993 (1996), the court held the doctrine of laches could apply to child support cases. The doctrine of laches is an equitable principle designed to bar stale claims. In Jones, the court stated:
“Because April had reached the age of majority at the time Maty brought her action, the revivor action brought by Mary cannot be applied to her. Kansas case law interpreting K.S.A. 60-1610(a)(l) states: ‘K.S.A. 60-1610(a)(l) provides for support and education of minor children, making no provision for application of the funds other than for such support. The statute thus contemplates the use of such funds for support rather than for the reimbursement of funds to the custodial parent for past deficiencies.’ Dallas v. Dallas, 236 Kan. 92, 95, 689 P.2d 1184 (1984). It would, therefore, contravene the purpose of the statute to allow Mary to now recover back payments of child support on behalf of her daughter April.” 22 Kan. App. 2d at 761.
In this case, as noted above, Charlotte accepted the amount of child support Jack paid from July 1996 to June 1999. For the period of time the support paid was more than adequate for one child. In June 1999, Heidi reached the age of majority. As we reason it, in June 1999 any arrearage would have been for Heidi’s support, who had reached the age of majority. For that reason, any arrearage would reimburse Charlotte for Heidi’s support. Jack would not be providing child support for Amber. We conclude that Charlotte’s inaction for 3 years under these facts raises laches as a bar to any claim for arrearage due from June 1996 to July 1999. The trial court’s order awarding arrearages for the period is reversed.
Having determined that the district court should not have awarded arrearage for past due child support, that portion of the income withholding orders applying to arrearages, including garnishment and disbursement of funds orders, are set aside.
Jack does not challenge the district court’s order of $285 child support per month beginning in June 1999 for Amber. Jack does challenge the district court’s authority to enter an income withholding order to enforce future support; however, K.S.A. 2000 Supp. 23-4,107(b) clearly provides for income withholding orders for all new or modified orders of support. Jack does not assert the exceptions provided in subsections (j), (k), or (1) apply. Thus, according to the statute, the district court had authority to enter a wage withholding order for current and future support without further notice to Jack when it entered the modified support order.
Jack also challenges the district court’s award of attorney fees to Charlotte’s attorney. The district court is vested with wide discretion to determine the amount and the recipient of an allowance of attorney fees. When reviewing an award of attorney fees, the appellate court does not reweigh the testimony or evidence presented or reassess the credibility of witnesses. In re Marriage of Patterson, 22 Kan. App. 2d 522, 534-35, 920 P.2d 450 (1996). An attorney fee award will not be set aside on appeal when supported by substantial competent evidence. Powell v. Powell, 231 Kan. 456, 463, 648 P.2d 218 (1982).
Charlotte’s attorney submitted an attorney fees statement of approximately $2,300 of which the court awarded attorney fees of $1,000. This court is unable to determine whether the $1,000 was for time expended in arguing the arrearage or in resolving the award for Amber, which Jack does not contest. In light of this court’s order setting aside the arrearage, we are unable to determine if there is substantial competent evidence to justify the award of attorney fees. For that reason, the attorney fees award is set aside and remanded to the district court for further consideration.
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Per Curiam:
Kenneth Marion appeals his convictions of possession of cocaine, possession of drug paraphernalia, and delivering or possessing with the intent to deliver simulated controlled substances. On appeal, Marion argues that the evidence was insuffi cient to support his convictions. We affirm in part and reverse in part.
On July 27, 1999, Officer Richard Parsons stopped a vehicle driven by Thomas Lewis. Marion was a passenger in the vehicle but identified himself as Terry Fountain. Officer Parsons questioned Lewis about a burglary he was suspected of committing. Lewis consented to a search of his residence for the reportedly stolen items. Marion told Officer Parsons that he was living with Lewis at 424 West 4th Street, Junction City, Kansas.
Lewis’ residence was later searched. In the living room, there was a table, dresser, mattress, sleeping bag, and blankets. On the table in the living room lay a candle cut up into small pieces. There was also copper wire mesh which is commonly used in a crack pipe. In addition, officers found pieces of clear plastic baggies in the kitchen garbage can. A utility bill discovered in the pantry and mail discarded in the trash were addressed to Lewis. The officers did not find any evidence in the residence which indicated that Marion lived there.
In Lewis’ bedroom, there was a dresser and clothes hanging in the closet. The other bedroom was empty. Officer Parsons testified that Marion indicated that he used to live in the empty bedroom but was currently staying in the living room.
Sonia Gregoire, a Junction City Drug Task Force Officer, assisted with the search of Lewis’ residence. Upon entering the residence, Officer Gregoire observed a spoon covered with a white residue on the stove. Officer Gregoire testified that it was common to use a spoon for breaking down cocaine and that the process would leave a white residue on the spoon. Officer Gregoire further testified that she found baggies with the comers tom out. The comers are commonly tom out of baggies to package narcotics.
Officer Gregoire also found an assortment of baggies, baggie comers, razor blades, and candles cut up to look like crack cocaine. In addition, Officer Gregoire observed a tube of sports cream in the living room. She testified that it was common for purchasers of crack cocaine to place the substance in their mouths to check for a numbing sensation to ensure that the substance they were buying was actually cocaine. Officer Gregoire testified that if the pieces of candle had sports cream on them, a purchaser who placed a piece of the candle into his or her mouth might believe that the fake cocaine was real because the sports cream would create a numbing sensation.
Three of the baggie comers discovered in the kitchen garbage can and the spoon which was on the stove tested positive for cocaine. The remainder of the property seized from the residence did not test positive for a controlled substance.
Based on this evidence, Marion was arrested and charged with numerous dmg offenses. Some of the offenses were dismissed, and Marion was tried and convicted by a jury of single counts of possession of cocaine, possession of drug paraphernalia, and delivering or possessing with the intent to deliver simulated controlled substances.
Marion’s first argument on appeal is that the evidence was insufficient to support his conviction of delivering or possessing with the intent to deliver simulated controlled substances in violation of K.S.A. 2000 Supp. 65-4153(a)(l). Marion alleges that the State combined K.S.A. 2000 Supp. 65-4153(a)(l) (possession or manufacture of simulated controlled substances) and K.S.A. 65-4150(e) (defining the term “simulated controlled substance”) to create an offense that does not exist. The State concedes that the evidence was insufficient to convict Marion of criminal use of simulated controlled substances.
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).
K.S.A. 2000 Supp. 65-4153(a)(l) states that “[n]o person shall deliver, possess with intent to deliver, manufacture with intent to deliver or cause to be delivered within this state . . . [a]ny simulated controlled substance.” In addition, K.S.A. 65-4150(e) defines “simulated controlled substance” as “any product which identifies itself by a common name or slang term associated with a controlled substance and which indicates on its label or accompa nying promotional material that the product simulates the effect of a controlled substance.”
Here, the State concedes that the legislature’s definition of a simulated controlled substance in K.S.A. 65-4150(e) malees Marion’s conviction for that offense a legal impossibility. Because there were no labels or promotional materials associated with the faux crack cocaine recovered in this case, Marion’s conviction for delivering or possessing with the intent to deliver a simulated controlled substance was not supported by sufficient evidence. As a result, we reverse Marion’s conviction for this offense.
Marion further argues that his remaining convictions of possession of cocaine and possession of drug paraphernalia were not supported by sufficient evidence. Marion argues that there was no evidence which tended to indicate that he, as opposed to Lewis, was in possession of the cocaine and drug paraphernalia found at the residence.
When a defendant is in nonexclusive possession of the premises upon which drugs are found, it cannot be inferred -that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. State v. Cruz, 15 Kan. App. 2d 476, Syl. ¶ 11, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). The Cruz court stated that “[possession” of a controlled substance “is having control over the [controlled 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.” 15 Kan. App. 2d at 489. Other incriminating factors tending to prove a defendant’s knowing possession of drugs include
“ ‘a defendant’s previous participation in the sale of drugs, his use of narcotics, his proximity to the area where die drugs are found, and the fact that the drugs are found in plain view. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of defendant’s possession^] to the drugs.’ [Citation omitted.]” 15 Kan. App. 2d at 489.
Here, other incriminating circumstances connected Marion to the cocaine and drug paraphernalia recovered from the residence. First, the spoon containing the cocaine residue was found in plain view. See State v. Bullocks, 2 Kan. App. 2d 48, 49-50, 574 P.2d 243, rev. denied 225 Kan. 846 (1978) (holding that the evidence tended to show knowledge and intent because drugs and paraphernalia were found in defendant’s house in plain view). Moreover, some of the drug paraphernalia was found in the living room, where Marion admitted he was staying. A mattress, other bedroom furniture, and bedding were found in the living room. Accordingly, the drug paraphernalia was located in the immediate area where Marion slept. See State v. Walker, 217 Kan. 186, 190, 535 P.2d 924 (1975) (holding that the defendant constructively possessed heroin which was found in the bedroom of a house that only he occupied). This evidence sufficiently links Marion to the cocaine and drug paraphernalia and, as a result, his convictions for possession of cocaine and possession of drug paraphernalia were supported by sufficient evidence.
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Jackson, J.:
Acceptance Insurance Company (Acceptance), appeals the trial court’s ruling finding it liable for a judgment entered against its insured, Reliable Security, Inc. (Reliable), because Acceptance breached its contractual duty to act in good faith when Acceptance refused to defend or indemnify Reliable in a tort claim brought against it by Matthew Jones. We reverse.
Reliable is a Missouri company in the business of providing private armed security services to the public. In June 1994, Reliable submitted an application for insurance through Marino & Wolf, Inc. (M&W), insurance agents located in Kansas. M&W sent the application to Chris-Leef General Agency, Inc. (CLGA), also located in Kansas. CLGA acts as a managing general agent for several different insurance companies. CLGA provides insurance to independent agents such as M&W for insureds who are unable to obtain a policy through the normal marketplace.
Prior to 1994, Reliable was insured through Scottsdale Insurance Company (Scottsdale). The Scottsdale policy did not have an assault and battery exclusion. It appears that there was a question as to whether Scottsdale would continue to insure Rehable under the same terms. M&W asked CLGA to find a pohcy for Reliable. CLGA advised M&W that Scottsdale would insure Reliable, but a pohcy from Acceptance would cost less.
Scottsdale and Acceptance are surplus hne insurance carriers who are only allowed to issue policies in Kansas through general agents licensed in Kansas. See K.S.A. 40-4117. The insurance forms of these carriers do not have to be approved by the Kansas Insurance Department. Insureds purchase these pohcies because they are unable to purchase insurance from other companies. There are no statutes, written regulations, or proclamations by the Kansas Insurance Department prohibiting the use of an assault and battery exclusion in pohcies issued in Kansas.
In April 1994, CLGA advised M&W that it could write an Acceptance pohcy for Rehable. The proposed pohcy sent to M&W indicated that an assault and battery exclusion was included. In June 1994, CLGA issued a coverage binder for Reliable through Acceptance. The binder indicated that the pohcy had an exclusion for assault and battery. The pohcy hmits were $1,000,000. M&W returned the binder signed by one of its agents. No one from M&W asked CLGA to'remove the exclusion prior to March 1997, or questioned the exclusion. CLGA knew that Reliable had previously been insured by Scottsdale, but it was not aware of the policy terms and did not have a copy of that policy.
The policy issued by Acceptance was compiled by Gary Peterson at CLGA. Peterson intentionally included the assault and battery exclusion in Reliable’s policy. Peterson believed that Acceptance required this exclusion in policies for security companies. He also testified that it was his practice to include this exclusion in any policy issued for this type of risk. The exclusion form was among the forms he received from Acceptance. Peterson believed that adding the exclusion in this policy was prudent in underwriting the risk.
The record on appeal is not clear as to when Rehable received a copy of the policy. Scott Brown, counsel for Reliable in the underlying claim, testified that Reliable’s owner reviewed the Acceptance policy initially, but may not have read it word for word. Brown later testified that he was not sure Reliable received a copy of the policy until he requested it after Jones’ suit was filed. There is no direct testimony from Reliable’s owner in the record on appeal.
Reliable- renewed the Acceptance policy for June 1995 to June 1996 and June 1996 to June 1997. These policies also contained an assault and battery exclusion which stated:
“It is' agreed that this policy does not cover any claims arising out of Assault and Battery or out .of any .act ór omission in connection with the prevention or suppression of such acts, whether caused by or at the instigation or direction of you, your employees or volunteers, patrons or any other persons. Claims, accusations or charges of negligent hiring, placement, training or supervision arising from any of the foregoing are not covered. Furthermore, we shall have no obligation to defend you, or any other insured, for any such loss, claim or suit.”
This exclusion is on a form developed by Acceptance.
The policy also contained a Detective or Patrol Agency Endorsement (Patrol Endorsement), which provided, in part:
“1. This insurance provides coverage for sums which you become legally obligated to pay because of any negligent act, error or omission committed during the policy period in the conduct of the operations shown above [Security Patrol], whether committed by you or by any person for whom you are legally responsible.
“3. In addition to those exclusions already found in the coverage form, this insurance does not apply to any dishonest, fraudulent, criminal or malicious act or omission of yours, any partner or employee or to any allegations against you that such loss arose out of your failure to properly hire, train or supervise any employee.” (Emphasis added.)
Jones was shot and severely injured by a third party on March 1, 1997, in Kansas City, Kansas, while attending a wedding reception. Reliable had been hired to provide armed security at the event.
On April 22, 1998, Jones filed a civil action against Rehable in Wyandotte County District Court. In the petition, Jones alleged that he was shot and asserted Reliable was negligent in failing to (1) warn or protect him from the assailant; (2) expel, disarm, or subdue the assailant; (3) have a sufficient number of trained security guards on duty; (4) promptly call the police; and (5) use ordinary care in providing adequate security.
Jones requested $2,000,000 in damages. Reliable filed an answer denying it was negligent. Reliable made demand on Acceptance to defend it in the suit. Acceptance’s litigation specialist, Rob Plenger, reviewed the policy, summons, and complaint. In a letter to Reliable, Acceptance cited the assault and battery exclusion, disclaimed coverage, and declined to provide a defense. The letter indicated that Acceptance’s decision was based on all facts “presently available” and invited Reliable to notify it if there was any additional information relevant to the case or if an amended petition was filed. Acceptance also notified Jones that his claim was not covered under the pohcy.
Shortly thereafter, Jones offered to settle all claims it had against Rehable for the pohcy limits or $5,000,000, whichever was less.
In June 1998, Peterson faxed a copy of the Patrol Endorsement to Plenger and asked him to review it to determine if it provided coverage for Jones’ claim. Plenger discussed the endorsement with Peterson and his supervisor. They both, agreed that the exclusion still apphed to Jones’ claim.
In October 1998, Reliable’s attorney sent a letter to Acceptance. Counsel asserted that (1) Rehable assumed that it was buying a defense to any claim brought against it and it had such coverage in the past; (2) Rehable was not notified of the exclusion by M&W or Acceptance; and (3) the exclusion was against public pohcy be cause Reliable was required to have such coverage under local law. Counsel cited a Louisiana case, Hickey v. Centenary Oyster House, 690 So. 2d 858 (La. App. 1997) as authority for his argument.
Plenger discussed counsel’s letter with Acceptance’s claims counsel. They found that Hickey had been overruled and found a Kansas Supreme Court case, First Financial Insurance v. Bugg, 265 Kan. 690, 962 P.2d 515 (1998), which upheld an assault and battery exclusion. See Hickey v. Centenary Oyster House, 719 So. 2d 421 (La. 1998). Accordingly, Acceptance sent another letter to Brown and refused to defend based on the exclusion and included copies of the Hickey and Bugg cases. CLGA also was notified about Acceptance’s refusal to defend Reliable.
On March 10, 1999, Jones and Reliable entered into a written settlement agreement. The parties agreed that the matter should proceed to trial and Jones would be assessed 10% at fault and Reliable 90% at fault. The parties also agreed as to the evidence of damages that Jones would introduce at trial, and the end result would be a judgment entered against Reliable for $1,400,000.
The parties proceeded to a bench trial on March 11, 1999. The trial court entered judgment for Jones in the amount of $1,400,000 based on the fault percentages and damages set forth in the settlement agreement.
In May 1999, Jones and Rehable signed a Covenant Not to Execute and Assignment of Claims. In this agreement, Rehable assigned to Jones any claims against Acceptance Insurance Company arising out of its negligent or bad faith failure or refusal to defend or settle within pohcy limits. In exchange, Jones agreed not to pursue the collection of Reliable’s assets.
Shortly thereafter, a request for garnishment was filed against Acceptance. Acceptance filed a timely answer, denying that the company held any money or indebtedness to Reliable and attached a copy of its denial letter to its answer.
In the garnishment action, Jones asserted that (1) Rehable was not aware the exclusion was in the pohcy and would not have purchased it had it known of the exclusion; (2) the Patrol Endorsement is inconsistent with the exclusion and therefore, negated it; (3) the exclusion was unenforceable because of fraud, the pohcy provided only illusory coverage, and was inconsistent with Reliable’s reasonable expectations of coverage. Jones further alleged that Acceptance breached its duties to Reliable by failing to settle within the policy limits and properly investigate Jones’ claims.
, Extensive discovery followed, which included several motions to compel filed by Jones. In December 1999, Acceptance filed a motion for summary judgment and argued that Missouri law applied. The trial court overruled the motion at trial.
On Februaiy 1, 2000, Jones’ claims against Acceptance proceeded to a bench trial. At trial, various exhibits from the underlying litigation and various discovery records from the garnishment action were admitted into evidence.
Jones called several witnesses on his behalf. Attorney Scott Brown testified at trial about his representation of Reliable and his communications with Acceptance. Jones also presented the testimony of two insurance experts. These witnesses testified that Acceptance’s policy extended coverage for Jones’ claims under the Patrol Endorsement. They testified that Acceptance’s assault and battery exclusion rendered the policy virtually useless. They testified that the exclusion deviated from generally accepted standards applicable to insurance companies, and industry practice would be to get the insured to sign such an exclusion. They also testified that Acceptance did not conduct a reasonable investigation, especially after CLGA inquired about coverage under the Patrol Endorsement.
Acceptance also presented the testimony of its own insurance expert, who testified that (1) assault and battery exclusions were common in policies issued to security companies; (2) it was not unusual for surplus fine companies to allow experienced general agents to underwrite policies and use their discretion in including nonmandatory forms; (3) the Patrol Endorsement and exclusion were not mutually repugnant; (4) the Acceptance policy provided coverage to Rehable for a variety of claims; and (5) Acceptance adequately investigated Jones’ claim in denying coverage.
David Seaholm, a former Acceptance underwriter, testified for Acceptance. Seaholm testified that neither the insurer nor the broker normally have any direct contact with the insured and all con tact is done through the retailer. Seaholm testified that CLGA had authority to include the assault and batteiy exclusion in policies it issued through Acceptance, although he did not know why CLGA included the exclusion in this particular policy. He testified that each policy CLGA writes gets reviewed by Acceptance, and this exclusion in a security company’s policy would not raise a red flag during its review. While the exclusion is not mandated by Acceptance, it is up to the discretion of the underwriter to include it. Seaholm testified that the policy issued provided significant coverage, even with the exclusion.
On June 6, 2000, the trial court entered its journal entry ruling in favor of Jones. The trial court concluded that Reliable believed Acceptance’s policy was the same type of coverage it previously had from another carrier, i.e., without an assault and battery exclusion. The trial court found that because Acceptance did not know why the exclusion was added to Reliable’s policy, Acceptance “be-' lieved that it was insuring Reliable for acts arising out of an assault and battery situation.” The trial court applied Kansas law and found that the assault and battery exclusion conflicts with and was repugnant to the Patrol Endorsement. The trial court found the policy ambiguous and the trial court concluded that the policy provided coverage for Jones’ claim.
Finally, the trial court concluded that Acceptance was negligent in the investigation of Jones’ claim and acted in bad faith. The trial court found that Acceptance’s investigation was unreasonable in failing to investigate the “situation surrounding the purchase of this policy.” Specifically, the trial court stated:
“Upon receipt of plaintiff s claim Plenger summarily denied coverage based upon the assault and battery exclusion. Had he investigated further and consulted the underwriting department at [Acceptance] he would have determined that [Acceptance] did not require an assault and battery exclusion in a policy such as this and that it was only included in this policy because of the mistaken belief by Gary Peterson of the managing general agency that such an exclusion was required. He further would have learned that just prior to Rehable purchasing the contract of insurance from [Acceptance] it had been insured by the Scottsdale Insurance Company and that that policy contained no such exclusion and further that Scottsdale had on a previous occasion paid for a claim arising out of a situation in which assault and battery was involved.”
Consequently, the trial court found that Acceptance was hable for the entire judgment, even that in excess of the policy limits.
Application of Kansas Law
In its first issue on appeal, Acceptance argues that the trial court erred in applying Kansas law in this case. Acceptance argues that the policy was delivered to Rehable in Missouri and Missouri law should control all issues.
When there is a question of which state law applies, it is typically a question of law over which this court exercises unlimited review. Resolution Trust Corp. v. Atchity, 259 Kan. 584, 590, 913 P.2d 162 (1996).
Under traditional conflicts theoiy, the law of the place the contract is to be performed is applied when the issue calls for the determination of “ ‘the manner and method as well as the legality of the acts required for performance.’ ” Aselco, Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 848, 21 P.3d 1011, 1018 (2001). In Aselco, as in this case, the insurance company was garnished based on allegations that it breached its duty to defend. This court apphed Kansas law because the insurer’s duty to defend would have been performed in Kansas, where the underlying claims against the insured were litigated.
After reviewing the briefs of counsel, we have concluded that this issue is moot. Acceptance concedes in its brief that Kansas and Missouri law do not differ significantly on the issues presented in this case. Our research confirms this fact. Thus, Acceptance has failed to establish that this claimed error was prejudicial. Harmless errors, which do not prejudice the substantial rights of the parties provide no basis for reversal of a judgment and should be disregarded. Tamplin v. Star Lumber and Supply Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992).
Acceptance’s Breach of Duty
The trial court held that Acceptance was liable for Jones’ entire judgment because it breached its duty to defend Reliable in the underlying litigation.
The duty to defend and whether the policy provides coverage are not necessarily coextensive. The duty to defend arises whenever .there is a potential of liability under the policy. The insurer determines if there is a potential of liability under the policy by examining the allegations in the complaint or petition and considering any facts brought to its attention or which it could reasonably discover. Where a petition alleges an act that is clearly not covered, for example, that the defendant acted willfully and intentionally, there would be no potential of liability under the policy for intentional acts. Where the complaint alleges both a negligent and intentional act, these alleged facts give rise to the potential for liability, and the duty to defend arises. Quality Painting, Inc. v. Truck Ins. Exchange, 26 Kan. App. 2d 473, 476, 988 P.2d 749 (1999).
Whether an insurer has breached the duty to defend is often a mixed question of law and fact. As in this case, there are issues pertaining to the interpretation of the insurance policy, which calls for de novo review.
Distilling Jones’ claims to their essence, Jones asserts that Acceptance had a duty to defend because the policy’s coverage was ambiguous and Acceptance failed to adequately investigate the claim. As part of the “failure to investigate” assertion, Jones appears to assert that an adequate investigation would have disclosed that Acceptance (or someone else) was negligent in procuring and issuing the policy Reliable received, and the exclusion was invalid because of mutual mistake of the parties. Each of these arguments will be addressed separately.
Ambiguous Policy Provisions
Jones asserted and the trial court found that the Patrol Endorsement and assault and battery exclusion were mutually repugnant and, therefore, created an ambiguity in the contract.
The interpretation of a written contract is a question of law. Regardless of the trial court’s interpretation, the appellate court may construe the instrument de novo and determine its effect. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998).
For a contract to be found ambiguous, it must contain language of doubtful or conflicting meaning based on a natural and reasonable interpretation of the agreement’s language. A contract is am biguous if, after applying appropriate rules of interpretation to the face of the instrument, there remains a genuine uncertainty which one of two or more meanings is the proper meaning. Brumley v. Lee, 265 Kan. 810, 813, 963 P.2d 1224 (1998).
Courts should not look for ambiguities or uncertainties where common sense says there are none. Eggleston v. State Farm Mut. Auto Ins. Co., 21 Kan. App. 2d 573, 574, 906 P.2d 661, rev. denied 257 Kan. 1091 (1995). The fact that the parties disagree over the meaning of the terms does not establish the contract is ambiguous. Ryco Packaging Corp. v. Chapelle Int’l. Ltd., 23 Kan. App. 2d 30, 36, 926 P.2d 669 (1996), rev. denied 261 Kan. 1086 (1997).
In this case, the Patrol Endorsement extended coverage to Reliable for acts of negligence in carrying out its security patrol operations. However, paragraph 3 of the endorsement clearly indicates that the coverage was subject to exclusions. Specifically, that endorsement states in pertinent part:
“In addition to those exclusions already found in the coverage form, this insurance does not apply to any dishonest, fraudulent, criminal or malicious act or omission of yours, any partner or employee or to any allegations against you that such loss arose out of your failure to properly hire, train or supervise any employee.” (Emphasis added.)
By expressly referencing the exclusions in the policy, it is clear that the Patrol Endorsement does not override those exclusions.
Our courts have held that to determine whether an insurance contract is ambiguous we must consider, not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. Hodgson v. Bremen Farmers’ Mut. Ins. Co., 27 Kan. App. 2d 231, 233, 3 P.3d 1281 (1999). This should not be confused with the insured’s uninformed expectations of the policy coverage; it only requires the policy to be read as a reasonably prudent insured would read it. Where an insurance contract is not ambiguous, the courts will not make another contract for the parties but will enforce the contract as written. Elliott v. Farm Bureau Ins. Co. Inc., 26 Kan. App. 2d 790, 793, 995 P.2d 885 (1999), rev. denied 269 Kan. 932 (2000).
Jones’ experts testified that the assault and battery exclusion, standing alone, was not ambiguous. Instead, they testified that the Patrol Endorsement and exclusion conflicted and, therefore, created an ambiguity. However, whether a contract is ambiguous is a question of law for the court; the mere fact the parties disagree as to the meaning of language does not require this court to find an ambiguity. Ryco Packaging, 23 Kan. App. 2d at 35-36.
Here, the assault and battery exclusion was not ambiguous. It clearly excluded coverage and any duty to defend in cases where the claims against the insured, whether based on intentional torts or negligence theories, arose from an assault and battery. In addition, die exclusion was not rendered ambiguous by the broad language of the Patrol Endorsement. The Patrol Endorsement’s unequivocal recognition of the exclusions elsewhere in the policy undermines any claim that a reasonable insured reading the language would believe the exclusion was abrogated or limited by the Patrol Endorsement.
Jones’ reliance on Brumley is misplaced. Brumley involved a lawsuit filed against two homeowners arising from the death of a child in their care. The appeal arose from the question of whether the defendants’ homeowner’s policy provided coverage for the losses claimed as a result of the death. In this case, the policy excluded coverage for bodily injury which was “expected or intended by any insured” while at the same time indicating the insurance “applies 'separately to each insured.” 265 Kan. at 813. In the civil case filed against the insureds, one insured was accused of intentionally striking the child, resulting in its death. Another insured was accused of negligence. The Supreme Court found that the use of the term “any” in the exclusion was ambiguous. In construing the severability clause in light of this ambiguity, the court held that the policy afforded coverage for a negligent insured, even if the incident also involved the intentional act of another insured. 265 Kan. at 815.
If Acceptance’s policy only excluded coverage for intentional acts, Brumley might carry some weight in this case. However, the exclusion at issue clearly disallowed coverage for any claim arising from assault and battery, even if the battery was committed by a third person and if the claims asserted the insured was negligent in connection with the battery.
This case more squarely falls within the Supreme Court’s decision in Bugg. In Bugg, plaintiffs were shot in a tavern during a disturbance when the tavern’s agents and a third person exchanged gunfire. The tavern’s insurer sought declaratory judgment, claiming that no insurance coverage was available for the claims. The policy excluded coverage for bodily injury “[ejxpected or intended from the standpoint of any insured” or “[a]rising out of assault or battery, or out of any act or omission in connection with the prevention or suppression of an assault or battery.” 265 Kan. at 692-93.
The Supreme Court in Bugg rejected the trial court’s finding that the policy was ambiguous and the exclusion was concealed. 265 Kan. at 698. The court noted that an insurance policy can provide coverage while qualifying or limiting coverage with a clear and unambiguous exception. 265 Kan. at 698. The court found that the assault and battery exclusion was not ambiguous and cited a number of cases from other states reaching a similar conclusion. 265 Kan. at 699-704. Finally, the Supreme Court found that the clear terms of the exclusion applied, regardless of the theory of liability as long as the injuries arose out of an assault and battery. 265 Kan. at 706. Thus, the fact that plaintiffs sued asserting the insured was negligent did not avoid the application of the exclusion. 265 Kan. at 706-07.
Based upon the language of the policy, the terms of coverage in this case were not ambiguous. A reasonably prudent person who read the policy would not be confused by the Patrol Endorsement or the exclusion. For these reasons, the trial court erred in concluding that the policy was ambiguous.
Acceptance’s Duty to Defend and Failure to Adequately Investigate Jones’ Claim
The trial court determined that had a reasonable investigation been done, Acceptance would have discovered CLGA issued the policy with an exclusion not mandated by Acceptance’s underwriting guidelines. The trial court also found that Acceptance had a duty to investigate whether the policy issued met with Reliable’s expectations of coverage.
The difficulty with the trial court’s reasoning and Jones’ arguments is that Jones is attempting to “bootstrap” a claim of negligent failure to procure an adequate policy into a duty to defend case. This case really turns on the scope of Acceptance’s duty to defend. Whether a duty exists is a question of law over which this court has unlimited review. Fountain v. Se-Kan Asphalt Services, Inc., 17 Kan. App. 2d 323, 327, 837 P.2d 835, rev. denied 251 Kan. 937 (1992).
Under standard “duty to defend” cases, the courts recognize an insurer has a duly to defend if there is any potential of liability under the policy. Generally, the insurer must determine if there is a potential of liability under the policy by examining the petition and considering any facts which are brought to its attention or which it could reasonably discover. Quality Painting, 26 Kan. App. 2d at 476.
In this case, there is no dispute that when Acceptance received notice of Jones’ claims, its agent reviewed the pleadings and the policy. In addition, Plenger contacted the insured and M&W about the facts of the claim. Acceptance’s initial denial letter set forth the basis for denial of the claim and refusal to defend, quoted the exclusion, and invited the insured to submit any additional information or amended pleadings. After CLGA contacted Plenger, he again reviewed the exclusion and endorsement with his supervisor. After receiving a letter from Reliable’s attorney, Plenger reviewed the policies and authorities cited by Reliable with the claims attorney at Acceptance.
Jones cites to no authority which states that an insurer’s duty to defend can be triggered by a claim the insured was ignorant of the policy’s terms or a claim of negligence in procuring or issuing the policy. If this were the case, an insurer could be forced to defend a claim clearly outside coverage simply by an insured claiming that he did not know of the lack of coverage.
Jones’ claims in this case are essentially for breach of the contract to procure insurance, or negligence in procuring insurance, and/or reformation of the contract because of mutual mistake. This court has recognized the difference between a claim against an insurer based on a policy and a claim for negligent procurement of a policy. See Weinlood v. Fisher & Assocs., Inc., 26 Kan. App. 2d 20, 22, 975 P.2d 1226 (1999); Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 682, 634 P.2d 133 (1981). It is unreasonable to link the duty to defend to an alleged breach of a different legal duty— the duty to act with reasonable care when procuring a policy for an insured. These duties arise from different sources, provide for different damages, and allow for different proof and defenses.
We have examined the cases cited by Jones, Barth v. Coleman, 118 N.M. 1, 878 P.2d 319 (1994), and National Fire v. Hoene Springs Improvement Association, 889 F. Supp. 362 (E.D. Mo. 1995), and have concluded that they do not establish that negligent procurement triggers a duty to defend under a policy. We find them factually distinguishable from the case at bar.
A claim for negligent procurement of the policy does not create a potential for “liability under the policy” and should not provide a basis for a claim for bad faith failure to defend. Based on the record on appeal before the court, Acceptance only owed a duty to review the policy and investigate the nature of Jones’ claim. Acceptance did a reasonable investigation of Jones’ claim and reasonably concluded that Jones was not covered under the clear terms of the policy. The trial court’s conclusion that Acceptance did not adequately investigate and acted in bad faith in refusing to defend was erroneous.
Mutual Mistake
The trial court concluded that Acceptance acted in bad faith in fading to defend because the assault and battery exclusion was added to the policy as a result of a mutual mistake by the parties. The trial court concluded that a reasonable investigation would have resulted in Acceptance learning of this mutual mistake. In essence, the trial court reformed the contract under the mutual mistake doctrine.
To the extent the trial court’s ruling is based on the scope of Acceptance’s duty to investigate, the issue raises a question of law over which this court has unlimited review. Fountain, 17 Kan. App. 2d at 327.
Regardless of the standard of review applied, we find that the trial court’s ruling based upon mutual mistake is erroneous. First, a claim attacking contract formation does not establish a potential liability under the policy to trigger a duty to defend as discussed above. Instead, it is a separate claim seeking to rewrite the policy itself.
Second, the record on appeal before the court fails to establish that a mutual mistake occurred. It seems tenuous to find a mistake on the part of Rehable with respect to the terms of the policy. The original, pohcy issued by Acceptance in 1994 contained the assault and battery exclusion. There is no direct evidence that Rehable did not receive the pohcy. Generally, Kansas recognizes some obligation on the insured to review and understand an insurance pohcy. See Geiger-Schorr v. Todd, 21 Kan. App. 2d 1, 10, 901 P.2d 515 (1995); Miner v. Farm Bur. Mut. Ins. Co., Inc., 17 Kan. App. 2d 598; 609, 841 P.2d 1093 (1992), rev. denied 252 Kan. 1092 (1993). Moreover, a party seeking equitable rehef must take reasonable action to protect his own interests. Generally, equity aids the vigilant and not those who slumber on their rights. Robinson v. Shah, 23 Kan. App. 2d 812, 831, 936 P.2d 784 (1997). A vigilant insured paying significant premiums should be expected to obtain and read a copy of the pohcy some time during the 3 years of its existence.
Even if there is some evidence of mistake on the part of Rehable, there is no evidence of a “mutual” mistake.
“ ‘The equitable remedy of reformation of written instruments is the remedy afforded by courts of equity to the parties and the privies of parties to written instruments which import a legal obligation, to reform or rectify such instruments whenever they fail, through mistake or fraud, or a combination of fraud and mistake, to express the real agreement or intention of the parties.’ ” (Emphasis added.) In re Marriage of Jones, 22 Kan. App. 2d 753, 761-62, 921 P.2d 839, rev. denied 260 Kan. 993 (1996).
Kansas has recognized the equitable remedy of reformation to reform written instruments. See Conner v. Koch Oil Co., 245 Kan. 250, 254, 777 P.2d 821 (1989); Schlatter v. Ibarra, 218 Kan. 67, 70, 542 P.2d 710 (1975). Reformation by its very definition is “[a]n equitable remedy by which a court will modify a written agreement to reflect the actual intent of the parties.” Black’s Law Dictionary 1285 (7th ed. 1999).
In this case, there is no evidence of a mutual mistake. While Peterson might have been mistaken in believing Acceptance mandated the assault and battery exclusion in this type of policy, he intentionally inserted the exclusion in the policy and intended it to be part of tire contract. M&W assented to the terms of the policy by signing the binder which listed the exclusion on its face.
Moreover, there was no evidence that Acceptance was unaware of the exclusion in this policy. Acceptance reviewed every policy put together by CLGA and either accepted it or requested further action. While Acceptance’s in-house underwriter did not know why CLGA placed the exclusion in this particular policy, Acceptance left that decision to CLGA because it was more knowledgeable of the risks. The presence of the exclusion would not raise a red flag when reviewed by Acceptance.
The mutual intent of CLGA and M&W, as reflected in the documents, was for the exclusion to be part of the policy. No one from M&W testified and there is no evidence that it believed the exclusion would not be part of the policy. There is no evidence in the record on appeal that Acceptance and Reliable intended for the policy not to have the exclusion. Even if Reliable did not intend for the exclusion to be included, its intent only constitutes a unilateral mistake.
Granted, a written instrument may be reformed where there is ignorance or mistake on one side and fraud or inequitable conduct on the other; this can occur where one party to an instrument has made a mistake and the other knows it and fails to inform him or her of the mistake or conceals the truth from him or her. Andres v. Claassen, 238 Kan. 732, 740, 714 P.2d 963 (1986). In addition, an instrument prepared by one party not in accord with a prior agreement of the parties as to its terms, when executed by the other without observing the mistake in the instrument, may be reformed where it is clearly shown one party was mistaken and the other party acted inequitably. Russell v. Ely, 133 Kan. 318, 320-21, 299 Pac. 619 (1931).
In this case, however, there is no evidence that Acceptance or CLGA issued the policy containing the exclusion knowing it was inconsistent with any prior understanding it had with Rehable. CLGA presented an offer to M&W to issue the policy with the exclusion noted and M&W signed the offer. CLGA then issued a binder, again noting that the exclusion was included and M&W signed the binder. There is no evidence that CLGA knew of the terms of Reliable’s prior coverage, and the application did not specifically request coverage for assault and battery claims. The exclusion was noted in the preparatory documents and was not concealed within the policy. Therefore, there is no basis to support a finding of inequitable conduct by Acceptance.
The purpose of reformation of a contract is not to make a new contract or to supply terms upon which the minds of the parties have not met. Jones v. Crowell, 164 Kan. 261, 264, 188 P.2d 908 (1948). The prevailing rule in Kansas does not permit reformation of a contract in instances involving unilateral mistake. Squires v. Woodbury, 5 Kan. App. 2d 596, 599, 621 P.2d 443 (1980), rev. denied 229 Kan. 671 (1981). Therefore, Jones cannot use Reliable’s unilateral mistake to rewrite the contract on terms upon where there was no meeting of the minds. Again, Reliable’s remedy is the negligent procurement claim.
Finally, Acceptance was not put on notice and could not have discovered any basis for a mutual mistake in investigating Jones’ claims. Reliable’s information to the insurer merely asserted it was ignorant of the exclusion; there is no mention of a mutual mistake. Even if Reliable would have investigated the matter, it would have discovered that CLGA intentionally included the exclusion, the exclusion was made known to M&W, and M&W assented to those terms.
Assuming that the claim for reformation was properly before the court, the trial court erred in concluding a mutual mistake occurred in this case. The trial court’s finding of mutual mistake is not supported by substantial competent evidence and is contrary to well-established Kansas law.
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Johnson, J.:
F.B., the adoptive father of M.E.B., appeals the trial court’s termination of his parental rights, based upon an unfitness presumption for murdering M.E.B.’s mother. F.B. claims the statutoiy presumption was prematurely invoked because his murder conviction appeal is pending. We disagree with F.B. and affirm.
M.E.B. was bom on January 12, 1992. On December 23,1998, F.B.’s ex-wife, who was M.E.B.’s mother, was murdered. F.B. was convicted of first-degree murder of his ex-wife, along with several other crimes, and is currently serving a hard 40 sentence for the murder. He has appealed his conviction to the Kansas Supreme Court.
After F.B.’s arrest, M.E.B. was taken into protective custody, and child in need of care proceedings were initiated. Following the juiy’s guilty verdict, F.B. was sentenced for the murder on June 26, 2000. In October 2000, the district court heard the State’s motion to terminate F.B.’s parental rights. F.B. chose not to attend the hearing but submitted a letter to the court which was admitted into evidence. In the letter, F.B. professed his innocence and argued that, if his convictions are overturned on appeal, there will be no evidence that he is an unfit parent. He urged the court to postpone the termination hearing until the completion of his criminal appeal. The trial court held that F.B.’s murder conviction triggered a presumption of unfitness pursuant to K.S.A. 38-1585(a)(7); F.B. had failed to overcome the presumption; and F.B. was an unfit parent pursuant to K.S.A. 38-1583(b)(5).
F.B. frames the issue as whether the trial court erred in terminating his parental rights based upon a murder conviction which “has not yet been heard by the appellate courts.” Appellant’s brief is pitifully scant, conclusoiy, and unhelpful. Likewise, the State’s bald assertion that the statute on termination is unambiguous begs the question. Under K.S.A. 38-1585(a)(7), when is a parent “convicted” of murdering the child’s other parent: (1) upon a guilty verdict or finding of guilt at the trial level or (2) upon affirmance of the conviction upon appeal?
Ordinarily, the standard of review in a case involving the termination of parental rights is whether there is substantial competent evidence in the record to support tire trial court’s decision that the parent was unfit and that the parental rights should be terminated. In re A.N.P., 23 Kan. App. 2d 686, 692, 934 P.2d 995 (1997). However, the issue in this case involves an interpretation of K.S.A. 38-1585(a)(7). Inteipretation of a statute is a question of law and subject to unlimited review by the appellate courts. In re A.N.P., 23 Kan. App. 2d at 687.
K.S.A. 38-1585 provides:
“(a) It is presumed in tire manner provided in K.S.A. 60-414 and amendments thereto that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes by clear and convincing evidence that:
(7) a parent has been convicted of capital murder, K.S.A 21-3439 and amendments thereto, murder in the first degree, K.S.A. 21-3401 and amendments thereto, murder in the second degree, K.S.A. 21-3402 and amendments thereto or voluntary manslaughter, K.S.A. 21-3403 and amendments thereto . . . and the victim of such murder was the other parent of the child;
“(b) The burden of proof is on the parent to rebut the presumption. If a parent has been convicted of capital murder, K.S.A. 21-3439 and amendments thereto, or murder in the first degree, K.S.A. 21-3401 and amendments thereto as provided in subsection (a)(7), the burden of proof is on the parent to rebut the presumption by clear and convincing evidence. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall now terminate the parents parental rights in proceedings pursuant to K.S.A. 38-1581 et seq. and amendments thereto.”
Criminal statutes would suggest a person is convicted upon the trial court’s entry of judgment following a verdict or finding of guilt. See K.S.A. 22-3424; K.S.A. 2000 Supp. 22-3426; K.S.A. 22-3607. The term “conviction” is defined as: “1. The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty. 2. The judgment (as by a jury verdict) that a person is guilty of a crime.” Black’s Law Dictionaiy 335 (7th ed. 1999). However, “conviction” is not defined in the Kansas Code for Care of Children (KCCC), K.S.A. 38-1501 et seq. Other states considering when a conviction may be used against a parent have reached different conclusions.
The Wyoming Supreme Court held that for purposes of the parental rights termination statutes, the term “conviction” means after the completion of the appeal as of right. In re HC., 983 P.2d 1205, 1212 (Wyo. 1999). A majority of a Wisconsin Court of Appeals panel found the term “conviction” used in the termination statutes ambiguous and held it more reasonable to interpret it to mean a “conviction after the completion of the appeal as of right,” balancing the child’s and parent’s competing interests. Monroe County v. Jennifer V., 200 Wis. 2d 678, 685-90, 548 N.W.2d 837 (Wis. App. 1996). Other states have held that a father’s conviction for sexual offenses against the children was not final prior to the conclusion of an appeal and could not be the basis for the termination of parental rights. In re Sonia G., 158 Cal. App. 3d 18, 22-24, 204 Cal. Rptr. 498 (1984); Matter of D.D.F., 801 P.2d 703, 707-08 (Old. 1990), cert. denied 500 U.S. 922 (1991).
On the other hand, an Illinois appellate court construed a statute similar to the KCCC provision and upheld the trial court’s invo cation of the statutory presumption of unfitness upon conviction, prior to the exhaustion of all state court appeals. In re C.M.J., 278 Ill. App. 3d 885, 891-93, 663 N.E.2d 498 (1996). The Illinois court reasoned that: (1) the statute was clear and unambiguous; and (2) its ruling was in the best interests of the children. 278 Ill. App. 3d at 891-93. In State ex rel. Families Dept. v. Joe R., 123 N.M. 711, 717, 945 P.2d 76 (1997), the New Mexico Supreme Court allowed a father’s termination to proceed notwithstanding the pendency of the direct appeal of the murder conviction, citing the child’s interest in some degree of permanency, stability, security, and long-term planning. The Colorado Court of Appeals noted there were a variety of “conviction” definitions in different statutory schemes, but in the termination of parental rights context, it looked to the policies of the applicable statutes and concluded:
“[I]t is apparent that the General Assembly intended ‘conviction’ to mean convicted upon trial. At that time, an accused has had a complete and full opportunity to be heard on the charges against her and a final judgment against her has been entered. [Citations omitted.]
“To hold otherwise would be to violate the important policies of the Children’s Code which seek to assure a child of some degree of permanency in long-term planning and to assure the child of a stable and secure environment as soon as possible. [Citation omitted.] If a termination proceeding were required to be stayed until a parent’s appellate rights are exhausted, a child would have to spend an indeterminate time, perhaps a great portion of his youth, in foster or other temporary care at a time when the child needs stability and bonding in his relationships. Consequently, we find no error in the trial court’s having taken judicial notice of the judgments of conviction and sentence length imposed when terminating mother’s parental rights.” People in Interest of T.T., 845 P.2d 539, 541 (Colo. App. 1992).
We find the rationale of the Illinois, New Mexico, and Colorado courts more persuasive and more harmonious with the language and spirit of die KCCC. The KCCC is to be liberally construed to “best serve the child’s welfare.” K.S.A. 38-1501. The KCCC acknowledges “that time perception of a child differs from that of an adult.” K.S.A. 38-1584(a). The statutes emphasize the need to reach a permanency plan expeditiously. See K.S.A. 38-1561; K.S.A. 38-1565; K.S.A. 38-1584. The legislature has recognized that reintegration with a parent may not be viable if the child has been in extended out-of-home placement. K.S.A. 38-1565(a)(6). “ ‘Extended out of home placement’ means a child has been in the custody of the secretary and placed with neither parent for 15 of the most recent 22 months beginning 60 days after the date at which a child in the custody of the secretary was removed from the home.” K.S.A. 38-1502(z). One would expect the extended out-of-home placement time threshold to be reached prior to the exhaustion of the appeal process. It is inconceivable that our legislature would intentionally provide that a child’s stability and permanency must await the completion of the appeal process.
We find that for purposes of the statutory presumption of K.S.A. 38-l585(a)(7), F.B. was “convicted” upon the entry of the judgment of conviction, following the jury’s guilty verdict. The trial court did not err in applying that presumption to F.B. and in terminating the parental rights of F.B. in and to M.E.B.
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Knudson, J.:
The defendant, William Peterson, spent 4 days, 3 hours, and 12 minutes in jail prior to imposition of sentence as a second-time offender for driving under the influence of alcohol, contrary to K.S.A. 2000 Supp. 8-1567(a). The issue on appeal is whether his pre-conviction jail time should be credited against the mandatory minimum of “at least five' consecutive days’ imprisonment” required in K.S.A. 2000 Supp. 8-1567(e). We affirm the district court’s determination that Peterson was not entitled to credit.
After his arrest, Peterson was placed in custody at 2:05 p.m. on February 13, 2000. He posted bond at 5:10. p.m. on February 17, 2000. Peterson entered a plea of no contest and was sentenced on August 22, 2000. For the offense of driving under the influence of alcohol, the district court imposed a sentence of 90 days and further provided that Peterson be released on supervised probation after serving the 5 days’ mandatory imprisonment required in K.S.A. 2000 Supp. 8-1567(e). The court also stated:
“[T]he Court considers that the defendant at the time of his arrest was in custody for four days, three hours and twelve minutes, but the court rules that this is not sufficient for the mandatory sentence required by K.S.A. 8-1567(e). The Court does allow the four days, three hours and twelve minutes as jail credit for the overall ninety-day sentence.”
Whether the district court erred requires interpretation of K.S.A. 2000 Supp. 8-1567(e) and K.S.A. 21-4614. Our standard of review is unlimited. State v. Masterson, 261 Kan. 158, 161, 929 P.2d 127 (1996).
We are benefitted by several reported cases. In State v. Urbanek, 15 Kan. App. 2d 73, 803 P.2d 1030 (1990), the defendant served 3 days in custody after arrest and before posting bond. A panel of this court concluded the district court did not err in denying jail time credit as to the mandatory minimum imprisonment under K.S.A. 1989 Supp. 8-1567(e) because it was “the intent of the legislature that any second-time offender spend a minimum of five consecutive days in jail upon conviction, regardless of how long he or she may have been incarcerated in lieu of bond.” 15 Kan. App. 2d at 76-77.
In State v. Masterson, Masterson was convicted of being a first-time DUI offender. He was granted 5 days’ jail time credit for the time he spent in jail before trial against the mandatory 48 consecutive hours’ imprisonment under the DUI statute. The State appealed. Citing Urbanek, the State argued the district court erred in granting jail time credit against the mandatory minimum sentence.
In affirming the district court, the Masterson court found nothing in the DUI statute required that the minimum sentence be served after conviction, thus rejecting the State’s reading of the holding in Urbanek, 261 Kan. at 165. However, the court proceeded to explain: “If a defendant’s time in jail in lieu of bond exceeds the minimum, jail time for parole eligibility for the offense of conviction, it is not contrary to either K.S.A. 21-4614 or K.S.A. 1995 Supp. 8-1567 to allow credit for that time.” (Emphasis added.) 261 Kan. at 165.
In State v. Wolverton, 25 Kan. App. 2d 737, 969 P.2d 917 (1998), the defendant served 29 days in jail after his arrest for felony driving with a suspended license (DWS) before posting bond. The district court granted jail time credit against the 5 days’ mandatory imprisonment required by the DWS statute, and the State appealed. 25 Kan. App. 2d at 737, 739. Wolverton relied upon Masterson. This court noted the DWS statute, like the DUI statute, did not require the mandatory 5 days’ imprisonment to be served after conviction. It held that if a defendant has served time in jail in lieu of bond prior to sentencing “in excess of the mandatory minimum required to be served before probation eligibility, and the applicable statute is silent as to when the mandatory minimum must be served, then such defendant is entitled to full credit against the mandatory minimum for the time previously served.” (Emphasis added.) 25 Kan. App. 2d at 739. The court found Wolverton had more than fulfilled the minimum sentence based upon his time in custody in lieu of posting bond. 25 Kan. App. 2d at 739.
Under the holdings in Masterson and Wolverton, we conclude Peterson would only be entitled to credit if a partial day may be considered as a full day under K.S.A. 2000 Supp. 8-1567(e).
“[Wjhen a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” In re Marriage of Killman, 264 Kan. 33, 43, 955 P.2d 1228 (1998). Additionally, “[t]he rule of strict construction means that ordinary words are to be given their ordinary meaning.” Matjasich v. State Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985, 989 (2001).
In State v. Martin, 14 Kan. App. 2d 138, 783 P.2d 1316 (1989), rev. denied 246 Kan. 769 (1990), the defendant argued work release was an acceptable form of imprisonment for serving the mandatory minimum 90-day jail sentence for his third DUI conviction. K.S.A. 1988 Supp. 8-1567 was silent on whether work release was authorized as a form of imprisonment. 14 Kan. App. 2d at 138-39. That statute also did not include the word “consecutive” for the minimum sentence on a third DUI conviction. This court held the 90 days’ imprisonment for a third DUI conviction must be served consecutively and work release was excluded from the definition of imprisonment. 14 Kan. App. 2d at 140.
In 1990, the legislature amended the DUI statute and authorized work release for second and third convictions only after a minimum of 48 hours in jail had been served. L. 1990, ch. 47, § 3. “The five days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day.” K.S.A. 2000 Supp. 8-1567(e). Thus, only within the context of work release has the legislature explicitly authorized credit for partial days in confinement to be counted as full days for purposes of credit under the statute. It would appear the legislature has chosen not to allow credit for partial days in confinement under other circumstances.
We also note that in Black’s Law Dictionary 402 (7th ed. 1999), a day is defined as “[a]ny 24-hour period; the time it takes the earth to revolve once on its axis.”
We hold that under the unambiguous language of K.S.A. 2000 Supp. 8-1567(e) and the ordinary definition of a “day,” the legislature did not intend 4 days, 3 hours, and 12 minutes to be the equivalent of 5 consecutive days’ imprisonment.
Before concluding, we will briefly explain why the following cases Peterson has relied upon are not persuasive. In State v. Wheeler, 24 Kan. App. 2d 616, 949 P.2d 634 (1997), rev. denied 264 Kan. 824 (1998), an aggravated indecent liberties case, the Sedgwick County District Court denied Wheeler’s request for jail time credit while held on unrelated charges in a different county but granted 2 days of jail time credit as solely related to the Sedgwick County charges. On appeal, the issue was whether the district court erred in not granting additional credit. Peterson, apparently misunderstanding the issue in Wheeler, argues that in affirming the district court, there was an implicit holding by the Court of Appeals that the defendant was rightfully given 2 days’ credit notwithstanding that he was imprisoned less than 48 hours on the Sedgwick County charges. Under the facts of the case, Wheeler does not address the issue now presented for our consideration.
Likewise, State v. Jackson, 557 N.W.2d 552 (Minn. 1996), is not helpful. Minnesota’s sentencing guidelines specifically provide for jail time to be rounded to the nearest whole day when determining days to be credited. 557 N.W.2d at 553. We have no comparable statute or regulation.
In State v. Petz, 27 Kan. App. 2d 805, 7 P.3d 1277 (2000), the defendant received three consecutive terms of 30 days in jail as a condition of probation on an underlying prison term of 42 months. The district court denied a request to apply 86 days’ jail time credit against the 90-day probation sentence. This court vacated the sentence and remanded for resentencing, holding the jail time credit should have been applied toward the jail time ordered as a condition of probation. 27 Kan. App. 2d at 807. Petz does not apply because it did not involve jail time credit toward a minimum sentence mandated by statute.
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Knudson, J.:
John D. Altevogt appeals the district court’s dismissal of an action in mandamus brought to compel the production of documents under the Kansas Open Records Act (KORA), K.S A. 45-215 et seq. The district court concluded it was without jurisdiction under the KORA to compel production of documents from the defendants.
The defendants, YouthFriends and The Greater Kansas City Community Foundation, are Missouri corporations with offices in Kansas City, Missouri. Neither defendant maintains any offices in Kansas. All of the records sought by Altevogt are located in Missouri. Under these admitted circumstances, we conclude the order of dismissal for lack of jurisdiction was proper.
K.S.A. 45-222(a) states:
“The district court of any county in which public records are located shall have jurisdiction to enforce the purposes of this act with respect to such records, by injunction, mandamus or other appropriate order, in an action brought by any person, the attorney general or a county or district attorney.”
We understand Altevogt’s principal argument to be that by enacting K.S A. 45-222(a), the legislature did not intend to grant exclusive jurisdiction to the district court of the county where the records are kept. Unfortunately, Altevogt provides no persuasive authority to support this assertion.
We acknowledge K.S.A. 45-222(a) is to be construed liberally. See K.S.A. 45-216(a). This, however, does not permit us to read into the open records law subject matter jurisdiction not provided by the legislature!
“No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct. State ex rel. Stephan v. Martin, 230 Kan. 747, 752-53, 641 P.2d 1011 (1982).” Eveleigh v. Conness, 261 Kan. 970, 978, 933 P.2d 675 (1997).
Altevogt’s suggested interpretation of K.S.A. 45-222(a) is not reasonable. This statute is clear and unambiguous, conferring subject matter jurisdiction only if the public records are located within the county where compliance with the KORA is pursued. Here, the records are not and never have been maintained in Wyandotte County, Kansas.
Our decision does not leave Altevogt without an appropriate remedy. He may be able to obtain public records from the state agency administering the grants. Additionally, he may request that the Kansas Legislature make such inquiry or investigation as would be proper.
In view of our holding, we decline to consider the interesting question of whether either defendant might reasonably be considered a “public agency” as defined in the KORA. See K.S.A. 45-217(e).
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Gernon, J.:
This is an appeal from an order issued by the district court granting summary judgment to Joseph M. Gardiner, III, (Joe) finding the marriage between Joe’s father, Marshall G. Gardiner, and J’Noel Gardiner to be void under Kansas law and denying partial summary judgment to J’Noel. We reverse and remand with instructions.
We note that this is the type of case in which the courts are required not only to weigh the legal issues but also to weigh the overlapping and sometimes conflicting positions of the parties and various interested groups. We acknowledge the several briefs filed by each side and the amicus curiae briefs filed by the Gender Public Advocacy Coahtion/American Civil Liberties Union of Kansas and Western Missouri and The Thomas More Center for Law & Justice. Each has been helpful.
Some cases lend themselves to precise definitions, categories, and classifications. On occasion, issues or individuals come before a court which do not fit into a bilateral set of classifications. Questions of this nature highlight the tension which sometimes exists between the legal system, on the one hand, and the medical and scientific communities, on the other. Add to those concerns those whose focus is ethics, religion, lifestyle, or human rights, and the significance of a single decision is amplified. We recognize that this may be such a case.
We concur with the observation made by the Supreme Court of Vermont when it wrote:
“It is not the courts that have engendered the diverse composition of today’s families. It is the advancement of reproductive technologies and society’s recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle.” In re B.L.V.B., 160 Vt. 368, 376, 628 A.2d 1271 (1993).
I-Marriage Issue
I-A Court Procedural Background
Marshall died intestate on August 12, 1999. He was a resident of Leavenworth County, Kansas.
Joe filed a petition for letters of administration with the District Court of Leavenworth County, Kansas. Joe named himself and J’Noel, 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 was the sole heir-at-law to Marshall.
J’Noel filed an objection to Joe’s petition. J’Noel also applied for letters of administration. The court then appointed a special administrator to handle the estate. Joe filed an objection to J’Noel’s application.
Joe then petitioned the district court to amend his pleadings. In his amended petition, Joe named himself as Marshall’s sole heir. Joe denied that Marshall and J’Noel were validly married. He contended that J’Noel was previously known as Jay N. Ball and was bom a man. He argued that despite surgery, a name change, and other steps taken by J’Noel to change sex, she remains a man for the purposes of Kansas law relating to the issuance of a marriage license. Joe argued that the marriage between Marshall and J’Noel is void since, pursuant to K.S.A. 2000 Supp. 23-101, marriages between persons of the same sex are prohibited. Therefore, Joe claimed, J’Noel had no right to a share of Marshall’s estate as the surviving spouse.
Joe also argued fraud regarding the waiver of J’Noel’s rights and fraud in the inducement to marry in that Marshall did not know J’Noel was bom a man. Even if the purported marriage was valid, he stated, J’Noel executed a waiver of any interest in Marshall’s assets. Joe also alleged that a premarital agreement was entered into by both parties.
J’Noel filed a response to Joe’s objection to her petition for issuance of letters. In the response, J’Noel asserted that her marriage to Marshall was valid. J’Noel argued that she is a biological female, and, as such, under K.S.A. 2000 Supp. 23-101, she is not prohibited from marrying Marshall, a biological male. J’Noel also stated that there is no evidence that she, through a memo written to Marshall, intended to waive any interest in Marshall’s property and that no premarital agreement was ever entered into by her and Marshall. J’Noel further asserted that she told Marshall about the sex reassignment surgery she had undergone before the marriage.
Joe moved for summary judgment on the basis of waiver and estoppel and the invalidity of the marriage between J’Noel and Marshall under K.S.A. 2000 Supp. 23-101 due to fraud. J’Noel moved for partial summary judgment on the issue of whether she is legally a female and was a female at the time of the marriage to Marshall. In a memorandum in support of her motion, J’Noel argued that the district court is required to give full faith and credit to die Wisconsin court order changing her sex to female on her birth certificate and to the new birth certificate that was issued.
The district court heard oral arguments on the motions. The court denied Joe’s motion with respect to the waiver and estoppel, finding disputed facts in that issue. However, the court granted Joe’s motion with respect to the issue of the validity of the marriage, finding that J’Noel was bom a male and remains a male for purposes of marriage under Kansas law.
The court found that the marriage between J’Noel and Marshall is void under K.S.A. 2000 Supp. 23-101, that J’Noel is not Marshall’s surviving spouse, and therefore, that J’Noel is not entitled to a spousal share under the laws of intestate succession.
The court then stated that J’Noel has no interest in or right to Marshall’s estate. Accordingly, J’Noel’s motion for partial summaiy judgment was denied. J’Noei appeals.
I-B Personal Background
J’Noel was bom in Green Bay, Wisconsin. J’Noel’s original birth certificate indicates J’Noel was bom a male. The record shows that after sex reassignment surgeiy, J’Noel’s birth certificate was amended in Wisconsin, pursuant to Wisconsin statutes, to state that she was female. J’Noel argued that the order drafted by a Wisconsin court directing the Department of Health and Social Services in Wisconsin to prepare a new birth record must be given full faith and credit in Kansas.
Marshall was a businessman in northeast Kansas who had accumulated some wealth. He had one son, Joe, from whom he was estranged. Marshall’s wife had died some time before he met J’Noel. There is no evidence that Marshall was not competent. Indeed, both Marshall and J’Noel possessed intelligence and real world experience. J’Noel had a Ph.D in finance and was a teacher at Park College.
J’Noel met Marshall while on the faculty at Park College in May 1998. Marshall was a donor to the school. After the third or fourth date, J’Noel testified that Marshall brought up marriage. J’Noel wanted to get to know Marshall better, so they went to Utah for a trip. When asked about when they became sexually intimate, J’Noel testified that on this trip, Marshall had an orgasm. J’Noel stated that sometime in July 1998, Marshall was told about J’Noel’s prior history as a male. The two were married in Kansas on September 25, 1998.
There is no evidence in the record to support Joe’s suggestion that Marshall did not know about J’Noel’s sex reassignment. It had been completed years before Marshall and J’Noel met. Nor is there any evidence that Marshall and J’Noel were not compatible.
Both parties agree that J’Noel has gender dysphoria or is a transsexual. J’Noel agrees that she was bom with male genitalia. In a deposition, J’Noel testified that she was bom with a “birth defect”—a penis and testicles. J’Noel stated that she thought something was “wrong” even prepuberty and that she viewed herself as a girl but had a penis and testicles.
J’Noel’s journey from perceiving herself as one sex to the sex her brain suggests she was, deserves to be detailed. In 1991 and 1992, J’Noel began electrolysis and then thermolysis to remove body hair on the face, neck, and chest. J’Noel was married at the time and was married for 5 years. Also, beginning in 1992, J’Noel began taking hormones, and, in 1993, she had a tracheal shave. A tracheal shave is surgery to the throat to change the voice. All the while, J’Noel was receiving therapy and counseling.
In February 1994, J’Noel had a bilateral orchiectomy to remove the testicles. J’Noel also had a forehead/eyebrow lift at this time and rhinoplasty. Rhinoplasty refers to plastic surgery to alter one’s nose. In July 1994, J’Noel consulted with a psychiatrist, who opined that there were no signs of thought disorder or major affective disorder, that J’Noel fully understood the nature of the process of transsexual change, and that her life history was consistent with a diagnosis of transsexualism. The psychiatrist recommended to J’Noel that total sex reassignment was the next appropriate step in her treatment.
In August 1994, J’Noel underwent further sex reassignment surgery. In this surgery, Eugene Schrang, M.D., J’Noel’s doctor, essentially cut and inverted the penis, using part of the skin to form a female vagina, labia, and clitoris. Dr. Schrang, in a letter dated October 1994, stated that J’Noel has a “fully functional vagina” and should be considered “a functioning, anatomical female.” In 1995, J’Noel also had cheek implants. J’Noel continues to take hormone replacements.
Regardless of whether one agrees with the concept of sex reassignment, one must be impressed with the resolve of, and have compassion for, any human being who undergoes such a demanding set of procedures.
After the surgeiy in 1994, J’Noel petitioned the Circuit Court of Outagamie County, Wisconsin, for a new birth certificate which would reflect her new name as J’Noel Ball and sex as female. The court issued a report ordering the state registrar to malee these changes and issue a new birth certificate. A new birth certificate was issued on September 26, 1994. The birth certificate indicated the child’s name as J’Noel Ball and sex as female. J’Noel also has had her driver’s license, passport, and health documents changed to reflect her new status. Her records at two universities have also been changed to reflect her new sex designation.
I-C The Kansas Statute: K.S.A. 2000 Supp. 23-101
J’Noel argues that the district court erred when it held that her marriage to Marshall violated K.S.A. 2000 Supp. 23-101. J’Noel argues that the legislature, through the language in K.S.A. 2000 Supp. 23-101, intended to prohibit only homosexual marriages and that her marriage to Marshall was not such a marriage.
K.S.A. 2000 Supp. 23-101 states:
“The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex. All other marriages are declared tobe contrary to the public policy of this state and are void. The consent of the parties is essential. The marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law.” (Emphasis added.)
For purposes of marriage under Kansas law, the district court found that J’Noel was bom and remains a male. Since the statute requires that a marriage must be between two parties of the opposite sex, the court found that the marriage between J’Noel and Marshall was void because both individuals were males.
There is no dispute that the legislature meant to void any marriage between members of the same sex.
The question here is whether J’Noel should have been considered a female under Kansas law at the time the marriage license was issued. Subparts to that question are the criteria used to determine sex and the timing of the determination. Stated another way: Is this marriage, between a post-operative male-to-female transsexual and a male, prohibited under Kansas law?
The interpretation of a statute is a question of law for which appellate review is unlimited. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
The amendment to 23-101 limiting marriage to two parties of the opposite sex began its legislative history in 1975. The minutes of the Senate Committee on Judiciary for January 21, 1976, state that the amendment would “affirm the traditional view of marriage.” The proposed amendment was finally enacted in 1980.
K.S.A. 23-101 was again amended in 1996, when language was added, stating: “All other marriages are declared to be contrary to the public policy of this state and are void.” This sentence was inserted immediately after the sentence limiting marriage to two parties of the opposite sex.
In 1996, K.S.A. 23-115 was amended, with language added stating: “It is the strong public policy of this state only to recognize as valid marriages from other states that are between a man and a woman.”
The legislative history contains discussions about gays and lesbians, but nowhere is there any testimony that specifically states that marriage should be prohibited by two parties if one is a postoperative male-to-female or female-to-male transsexual. Thus, the question remains: Was J’Noel a female at the time the license was issued for the purpose of the statute?
I-D The Science
It is perhaps well to pause and attempt to define what a transsexual is by stating what a transsexual is not. A transsexual is not a homosexual. A homosexual is one who prefers the same sex for sexual contact. Nor is a transsexual a transvestite. A transvestite is one who remains one sex but gains pleasure from dressing like the other sex. A transsexual is one who experiences himself or herself as being of the opposite sex, despite having some biological characteristics of one sex, or one whose sex has been changed externally by surgeiy and hormones. A transsexual might be a homosexual or a transvestite also, but one does not define the other.
The scientific literature relating to studies of transsexuals is limited both in scope and history. Serious inquiry is limited to approximately the last 30 years. To state that we know everything about this issue is wrong. To state that we know more and more every year about this complex issue is more accurate. This case has the benefit of some research which preceding cases on this issue did not.
A recent study that autopsied the brains of transsexuals and others supports a conclusion that there is a scientific basis for J’Noel’s assertion that she was bom with a condition—specifically that she had a penis and testicles, which was evidence that she was male, but in most other senses of the word, she was female. The same science which allows us to map the genome and explore our DNA requires us to recognize these discoveries in all aspects of our lives, including the legal ramifications. We can no longer be permitted to conclude who is male or who is female by the amount of facial hair one has or the size of one’s feet.
A study in the respected medical journal, The Journal of Clinical Endocrinology & Metabolism, analyzed the brains of homosexual males, heterosexual males, heterosexual females, and male-to-female transsexuals. It concluded:
“Regardless of sexual orientation, men had almost twice as many somatostatin neurons as women. The number of neurons in . . . male-to-female transsexuals was similar to that of the females .... In contrast, the neuron number of female-to-male transsexual was found to be in the male range. . . . The present findings of somatostatin neuronal sex differences in the BSTc (a part of the brain) and its sex reversal in the transsexual brain clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions and point to a neurobiological basis of gender identity disorder.” Kruijver, Zhou, Pool, Hofman, Gooren, and Swaab, Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, 85 The Journal of Clinical Endocrinology & Metabolism 2034 (2000).
We would be remiss if we did not recognize and mention other medical and scientific information which underscores the complexity of these issues and requires our introspection.
If one concludes that chromosomes are all that matter and that a person bom with “male” chromosomes is and evermore shall be male, then one must confront every situation which does not conform with such a rigid framework of thought. There are situations of ambiguity in which certain individuals have chromosomes that differ from the typical pattern. The questions which must be asked, if not answered, are: “Are these people male or female?” and, “Should they be allowed to get married?”
Professor Julie A. Greenberg, writing in the Summer 1999 issue of the Arizona Law Review, states:
“Medical experts recognize that many factors contribute to the determination of an individual’s sex. According to medical professionals, the typical criteria of sex include:
1. Genetic or chromosomal sex—XY or XX;
2. Gonadal sex (reproductive sex glands)—testes or ovaries;
3. Internal morphologic sex (determined after three months gestation)—seminal vesicles/prostrate [sic] or vagina/uterus/fallopian tubes;
4. External morphologic sex (genitalia)—penis/scrotum or clitoris/labia;
5. Hormonal sex—androgens or estrogens;
6. Phenotypic sex (secondary sexual features)—facial and chest hair or breasts;
7. Assigned sex and gender of rearing; and
8. Sexual identify.
“For most people, these factors are all congruent, and one’s status as a man or woman is uncontroversial. For intersexuals, some of these factors may be incongruent, or an ambiguity within a factor may exist.
‘The assumption is that there are two separate roads, one leading from XY chromosomes at conception to manhood, the other from XX chromosomes at conception to womanhood. The fact is that there are not two roads, but one road with a number of forks that turn in the male or female direction. Most of us turn in the same direction at each fork.’
“The bodies of the millions of intersexed people have taken a combination of male and female forks and have followed the road less traveled. These individuals have noncongruent sexual attributes. For these individuals, the law must determine which of the eight sexual factors will determine their sex and whether any one factor should be dispositive for all legal purposes.
“Because the law has typically looked to biology and the medical community for guidance in determining how an individual’s sex should be legally established, the complex nature of sexual differentiation must be understood. . . .
“A. Sexual Differentiation—The Typical Path
“During the first seven weeks after conception, all human embryos are sexually undifferentiated. At seven weeks, the embryonic reproductive system consists of a pair of gonads that can grow into either ovaries (female) or testes (male). The genital ridge that exists at this point can develop either into a clitoris and labia (female) or a penis and a scrotum (male). Two primordial duct systems also exist at this stage. The female ducts are called Mullerian ducts and develop into the uterus, fallopian tubes and the upper part of the vagina if the fetus follows a female path. The male ducts are called Wolffian ducts and are the precursors of the seminal vesicles, vas deferens and epididymis.
“At eight weeks, the fetus typically begins to follow one sex path. If the fetus has one X and one Y chromosome (46XY), it will start down the male path. At eight weeks, a ‘master switch’ on the Y chromosome, called the testis-determining factor, signals the embryonic gonads to form into testes. The testes begin to produce male hormones. These male hormones prompt the gonads and genitalia to develop male features. Additionally, the testes produce a substance called Mullerian inhibiting factor that causes the female Mullerian ducts to atrophy and be absorbed by the body, so that a female reproductive system is not created.
“Because the typical female fetus is 46XX and does not have a Y chromosome, the master switch that leads to the development of male organs is not turned on. The fetus continues on what is considered the default path and in the thirteenth week the gonads start to transform into ovaries. Because no testes exist to produce male hormones, the remainder of die sexual system develops along a female path. During this time, the Wolffian (male) ducts shrivel up. In other words, unless the body is triggered by hormonal production to follow the male path, the fetus will normally develop as a female. Therefore, although chromosomes generally control tire hormones that are produced, it is actually the hormones that directly affect sexual development.
“B. Sexual Differentiation—Intersexuals: The Paths Less Followed
“Two circumstances may lead to an intersexual condition: (1) failure to meet the typical criteria within any one factor; or (2) one or more factors may be in-congruent with the other factors.
“1. Ambiguity Within a Factor
“a. Chromosomal Ambiguity—Certain individuals have chromosomes that differ from the typical pattern of either XX or XX. Doctors have discovered people with a variety of combinations including: XXX, XXY, XXXY, XYY, XYYY, XYYYY, and XO.
“b. Gonadal Ambiguity—S ome intersexuals do not have typical ovaries or testes. Instead, they have ‘streak’ gonads that do not appear to function as either ovaries or testes. Others have ovotestes, a combination of both male and female gonads. Still others have one ovaiy and one testis.
“c. External Morphologic Sex—Some individuals’ external genitalia are neither clearly male nor clearly female. In addition, some women have clitoral hypertrophy, a clitoris that is larger than the typical clitoris, may more closely resemble a penis, and is sometimes accompanied by an internal vagina.
“d. Internal Morphologic Sex—Some individuals have incomplete internal sex organs or a complete absence of an internal sex organ. In addition, some individuals are bom with a combination of male and female internal organs.
“e. Hormonal Sex—The male hormones are referred to as androgens. The female hormones are estrogen and progesterone. Although they are referred to as male and female hormones, all human sex hormones are shared by men and women. Typically, men and women have hormones of each type, but the levels of production and reception of each hormone are highly variable among all individuals. Different medical disorders further influence levels of hormone production and/or reception.
“f. Phenotypic Sex—Individuals may have a variety of combinations of incongruent phenotypic characteristics. In other words, an individual may have characteristics that are typically associated with a male (heavy facial hair) and characteristics that are typically associated with a female (developed breasts).
“g. Assigned Sex/Gender of Rearing—Although it occurs rarely, some parents have raised their child as a gender other than the sex that was assigned by the medical attendant at birth. In addition, in some circumstances, doctors have recommended that a child be raised as the sex different from the one assigned at birth.
“h. Sexual Identity—Sexual identity refers to how individuals would identify themselves; gender identity refers to how society would identify an individual. Some individuals do not consider themselves to be either male or female; they identify themselves as a third sex.
“2. Ambiguity Among Factors
“Some individuals have an incongruence among the eight factors due to a sexual differentiation disorder. In other words, some factors may be clearly male, some may be clearly female, and others may be a mixture of male and female. Incongruity among factors can result from a number of disorders and circumstances including:
a. Chromosomal sex disorders;
b. Gonadal sex disorders;
c. Internal organ anomalies;
d. External organ anomalies;
e. Hormonal disorders;
f. Gender identity disorders; and
g. Surgical creation of an intersexed condition.
“These conditions are described in detail below ....
“a. Chromosomal Sex Disorders
“Klinefelter Syndrome
“Approximately one in 500 to 1000 ‘males’ is affected by Klinefelter Syndrome, a condition in which a mostly phenotypic male does not fall neatly into the XY chromosome complement. Individuals with Klinefelter Syndrome will typically have two or more X chromosomes. The testes, and often the penis, are smaller than in unaffected XY males.
“A diagnosis of Klinefelter Syndrome is typically not made before puberty because no easily identifiable sign exists prior to the onset of puberty. The swelling of the breasts (gynecomastia) that occurs in adolescence is typically the first sign of the existence of this intersexual condition. Most individuals with Klinefelter Syndrome report a male psychosexual orientation. Many take supplemental testosterone, which further results in a male phenoiype (e.g. facial hair).
“Turner Syndrome
“Disorders of chromosomal sex also appear in phenotypic females. Turner Syndrome is a condition that affects approximately one in 5000 newborn females. Individuals with Turner Syndrome will typically have an XO chromosomal pattern, not falling neatly into the XX, XY binary system. Individuals with Turner Syndrome typically have bilateral ‘streak’ gonads (unformed and non-functioning gonads) instead of clearly defined ovaries or testes. The absence of complete ovaries or testes in-utero means that the fetus has little exposure to either female or male hormones. In the absence of male hormones, the fetus will follow the female path.
“Individuals with Turner Syndrome are typically shorter than XX females. They have female appearing genitalia, but little breast development in the absence of exogenous estrogen administration.
“b. Gonadal Sex Disorders—Swyer Syndrome
“Pure gonadal dysgenesis is a condition sometimes referred to as Swyer Syndrome. This syndrome is similar to Turner Syndrome in that individuals with fhis syndrome will have only streak gonads. In contrast to Turner Syndrome, in which a chromosome is missing (XO), individuals with Swyer Syndrome have XY (male) chromosomes. Although Swyer Syndrome individuals have a Y chromosome, the chromosome may be missing the sex-determining segment. Without this segment, the embryo cannot develop testes and as a result, the masculinizing hormones are also missing. In' the absence of the masculinizing hormones, the fetus will take the ‘default’ female path and will develop a uterus but will not have any ovaries.
“This condition is not apparent at birth and the child will be raised as a girl. The syndrome is generally diagnosed at puberty when the absence of a menstruation and breast enlargement causes suspicion.
"c. Internal Organ Anomalies—Persistent Mullerian Duct Syndrome “Individuals with Persistent Mullerian Duct Syndrome have the internal organs typical of males as well as females. These individuals have a male chromosomal pattern (XY) and therefore develop testes which secrete androgen but for some reason fail to secrete anti-Mullerian hormones. The androgens cause the fetus to follow the male path and develop the external appearance and internal organs of a male. However, fallopian tubes and a uterus are also formed because the antiMullerian hormones are not acting to stop this development. This condition is generally not diagnosed at birth. Individuals with this syndrome are reared as males and have a male identity.
“d. External Organ Anomalies: Hermaphroditism
“Individuals who have ambiguous external genitalia (neither clearly male nor female) are commonly referred to as hermaphrodites. Hermaphrodites are often classified into three categories: true hermaphrodites, male pseudo-hermaphrodites, and female pseudo-hermaphrodites. A ‘true hermaphrodite’ has some ovarian and some testicular tissue. So-called ‘true hermaphrodites’ have either one ovary and one testis, two ovotestes (a combination of an ovary and testis in a single gonad) or some combination thereof (e.g. one ovotestes and one ovary). True hermaphroditic conditions are more rare than many of the other intersex conditions described in this section. A male pseudo-hermaphrodite has testes and no ovaries but some aspect of female genitalia. A female pseudo-hermaphrodite has ovaries and no testes and some aspect of male genitalia.
“A variety of disorders can lead to hermaphroditic conditions. Hermaphroditic conditions are named according to their etiology (e.g. Partial Androgen Insensitivity Syndrome [’PAIS’] or Congenital Adrenal Hyperplasia [’CAH’]) unless the etiology of the condition remains unknown.
“True hermaphroditism is rare and the exact incidence is unknown. The chromosome count may vary but is predominantly 46XX.
“e. Hormonal Disorders “Androgen Insensitivity Syndrome
“Androgen Insensitivity Syndrome (‘AIS’) affects approximately 1 out of every 20,000 genetic males. AIS can be either complete (“CAIS”) or partial (PAIS). Individuals with AIS are bom with XY chromosomes and normally-functioning testes, which would otherwise suggest a normal male fetus. Individuals with CAIS, however, have a receptor defect and are unable to process the androgens produced by the testes.
“Because the body cannot process the androgens, the fetus will follow the default path of female development. External female genitalia will form. No internal reproductive organs will form because the Mullerian inhibiting factor produced by the testes will inhibit the growth of the uterus and fallopian tubes. The vagina will be shorter than in the typical woman (or may only be a dimple) and will end blindly because there are no female internal reproductive organs with which to connect.
“Unlike several other intersex conditions, individuals with CAIS almost always are identified as normal’ females at birth because externally they are indistinguishable from XX females. The disorder is sometimes diagnosed in infancy because of inguinal hernias that contain the testes. Often, however, CAIS is not diagnosed until after the onset of puberty as a result of a failure to menstruate. At puberty, breasts will form because of the estrogen that is produced by the testes. Until puberty, many CAIS women have no inkling that they are other than normal XX women.
“In PAIS, an XY individual with testes will be partially receptive to androgens. Unlike individuals with CAIS, individuals with PAIS may fall anywhere along a spectrum from an almost completely male external appearance and male sexual identity to a completely female external appearance and female sexual identity. The degree to which the individual has male features depends upon the degree to which the receptors are able to process the male hormones the testes produce.
“The external phenotype of PAIS individuals will initially be determined by the degree of androgen reception in the body. Thus, a PAIS individual may have genitalia resembling either a clitoris or a penis, the labia may be fused, and during adolescence there may be breast development due to the conversion of testosterone produced by the gonads to estradiol, an estrogen compound.
“5-Alpha-Reductase Deficiency
“This condition is similar to the androgen resistance syndromes. Individuals with 5-Alpha-Reductase Deficiency have XY chromosomes and testes but appear phenotypically female at birth. This condition results from the body’s failure to convert testosterone to dihydrotestosterone, the more powerful form of androgen responsible for the development of male external genitalia. Despite a female appearance during childhood, by the onset of puberty, the body will masculinize. The testes descend, the voice deepens, muscle mass substantially increases, and a ‘functional’ penis that is capable of ejaculating develops from what was thought to be the clitoris. The prostate, however, remains small and beard growth is scanty. Although the individual is typically raised as a girl, at puberty, psychosexual orientation typically becomes male. In other words, virilization will occur at puberty in the absence of medical intervention.
“5-Alpha-Reductase Deficiency is an inheritable condition, and has resulted in a large group of affected individuals in some communities in the Dominican Republic. In some cases, a diagnosis is made in early puberty, male external development is arrested, and the individual will take exogenous female hormones to simulate a female puberty. In these cases, the individual will often have a female sexual identity. Other individuals with 5-Alpha-Reductase Deficiency will develop a masculine appearance in conformity with their genotype and will also develop a male psychosexual identification.
“Congenital Adrenal Hyperplasia
“Some individuals with XX chromosomes, ovaries, and other female internal structures have a more masculinized external appearance and/or demeanor due to an abundance of androgen production in-utero. Typical of this category is 21-Hydroxylase Deficiency Congenital Adrenal Hyperplasia (‘CAH’). It occurs in approximately one out of 5000 to 15,000 births.
“Both the chromosomes and gonads of CAH individuals are indistinguishable from unaffected females. The genitals, however, maybe ambiguous and may more closely resemble male genitalia.
“Some CAH individuals have been identified as males at birth and are reared as boys despite the presence of XX chromosomes and ovaries. In other cases, the masculinization of prenatal life is interrupted at birth, and the child is surgically and hormonally treated and reared as a girl. These girls often have characteristics that are popularly stereotyped as masculine. In addition, many CAH individuals identify themselves as lesbians.
“Progestin-Induced Virilization
“Similar to CAH is Progestin-Induced Virilization (‘PIV’), which results from an abundance of male hormones in an otherwise normal XX female. PIV is caused by exposure in-utero to progestin that has been taken by the mother during pregnancy. Like individuals with CAH, PIV women will frequently have clitoral hypertrophy. In all other respects, however, they have completely female gonads.
“f. Gender Identity Disorder
“Some individuals may be seemingly harmonious in all of the first six factors, but do not identify themselves with the sex associated with these factors. These individuals may be said to have gender dysphoria or gender identity disorder (‘GID’). Often these individuals are called transsexuals. Science has yet to definitely isolate a biological common denominator that causes these individuals to feel transgendered. A recent study, however, has determined that a section of the brain area that is essential for sexual behavior is larger in men than in women and that the brain structure of genetically male transsexuals is more similar to female brains than to male brains. Some transgendered individuals choose to undergo hormonal treatment and/or surgery so that their bodies comport with their sexual identity while other transsexuals do not choose to undergo such treatment.
“Transsexualism is not necessarily related to sexual orientation. Some transsexuals identify themselves as gays or lesbians while others identify themselves as heterosexuals. In other words, a male-to-female transsexual who has undergone surgery to acquire female genitalia may still prefer to have sex with another female, and a female-to-male transsexual may still prefer to have sex with another male.
“g. Surgical Creation of an Intersexed Condition
“In addition to cases in which intersexed individuals may be assigned a sex that does not comport with their own sexual identity, some persons have had their sexual features altered either accidentally or purposefully. For instance, some individuals have had their penises removed at a young age because they were mistakenly identified as females and the penis was considered an oversized clitoris that required reduction. Although these cases are rare, they are illustrative of the complex nature of sexual identity.
“The most famous surgical alteration case involves a male whose penis was accidentally ablated when he was eight months old. The doctors recommended that his genitals be reconstructed to have a female appearance and that he be raised as a girl even though all other sexual factors were congruent and were male. The doctors also recommended that his ‘history’ as a male be hidden from him.
“This surgical alteration case made headlines in 1973. Because the doctors involved in the surgical alteration reported that the child and the parents had successfully adapted to the sex/gender alteration, sociology, psychology, and women’s study texts were rewritten to argue, ‘This dramatic case . . . provides strong support . . . that conventional patterns of masculine and feminine behavior can be altered. It also casts doubt on the theory that major sex differences, psychological as well as anatomical, are immutably set by the genes at conception.’
“For more than twenty years, the scientific literature continued to report that the surgical alteration was successful and the child’s sexual identity was female. This case made headlines again in 1997 when Milton Diamond and Keith Sigmundson reported in the Archives of Pediatric & Adolescent Medicine that the boy who was turned into a girl was now living as a man.
“According to the Diamond and Sigmundson report, John (a pseudonym) had always thought of himself as different from other girls. As a child, he preferred ‘boy’ type toys and preferred to mimic his father’s rather than his mother’s behavior. He also preferred to urinate in a standing position although he had no penis. Because of the cognitive dissonance, Joan (apseudonym used by the authors to describe John while he lived a female life) often had thoughts of suicide.
“At twelve, Joan was put on an estrogen regimen. She rebelled against the regimen and often refused to take the medication. At fourteen, Joan confessed to a doctor that she had suspected that she was a boy since second grade. At that point, the doctors agreed with Joan that she should be remasculinized and become John once more. At age fourteen, Joan/fohn returned to living as a male. He received male hormone shots and a mastectomy. He underwent surgeiy to reconstruct a phallus at ages fifteen and sixteen. John was eventually accepted as a boy by his peers. He is now married and helping to raise his wife’s children.
“John was not bom an intersexual. He became an intersexual when doctors removed his penis, constructed external female genitalia and administered female hormones. Despite this intervention, John always felt that he was not a female.
“In another recently reported similar case, a child’s penis was severely damaged during a circumcision that was performed when die child was two months old. A decision was made to ‘turn’ the child into a girl. At seven months, surgery was performed to remove the remainder of the male genitalia and from that point on the child was raised as a girl. She was interviewed by a psychiatrist at ages sixteen and twenty-six. The results of these interviews indicate that she self identifies as a bi-sexual female whose recreational and occupational interests are more typically identified with males.
“The significance of these two reports is that they exemplify the difficulty law and medicine must confront in defining sex. At birth, these infants’ sex factors were congruent and were male. After the original intervention, they were turned into intersexuals but were treated by society as if they were females. They had male chromosomes, ambiguous genitalia, and female gender assignment. As adults, one person self-identifies as a heterosexual male while the other self-identifies as a bi-sexual female.
“These studies and other reports about intersexuals have forced the medical and psychiatric communities to question their long-held beliefs about sex and sexual identity. Just as current scientific studies have caused the scientific communities to question their beliefs about sex and sexual identity, the legal community must question its long-held assumptions about the legal definitions of sex, gender, male, and female.” Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L. Rev. 265,278-92 (1992).
I-E Case Law
This is a case of first impression in Kansas. A discussion of case law on transsexualism from other jurisdictions, including another nation, may prove helpful.
The cases generally fall into three categories: cases dealing with the amendment of identification records, usually birth certificate name and/or sex changes; cases dealing with discrimination, most pointedly in the workplace; and cases dealing with marriage between a transsexual and a nontranssexual. An additional case which will be discussed deals with transsexuals and competition in sporting events. The analysis will follow the cases chronologically.
The first case in the United States to deal with transsexualism involved a petition for a change of sex on a birth certificate. In Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), a post-operative transsexual who had assumed the name and role of a female applied to the Bureau of Vital Statistics in the New York City Health Department for a new birth certificate. The Bureau requested guidance from the Board of Health, who, in turn, called on a committee on public health of the New York Academy of Medicine to investigate the issue and make recommendations. The group called on to assist included gynecologists, endocrinologists, cytogeneticists, psychiatrists, and a lawyer.
The committee, after a detañed analysis and taking into account that at the time 10 states permitted such a change, concluded that male-to-female transsexuals are “still chromosomally males while ostensibly females.” 50 Misc. 2d at 382. Further, it was concluded that “it is questionable whether laws and records such as the birth certificate should be changed and thereby used as a means to help psychologically ill persons in their social adaption.” 50 Misc. 2d at 382. Therefore, the committee found that it was opposed to a change on birth certificates in transsexualism cases.
The transsexual’s application in Weiner was denied. In a resolution passed by the Board of Health, it was stated that “ ‘an individual born one sex cannot be changed for the reasons proposed by the request which was made to us. Sex can be changed where there is an error, of course, but not when there is a later attempt to change psychological orientation of the patient and including such surgery as goes with it.’ ” 50 Misc. 2d at 383.
In examining this issue, the New York appellate court looked at the New York City Health Code provisions. The code provided for a change in birth certificate only if the Commissioner of Public Health was satisfied that the evidence shows true facts and that an error was made at the time of preparing and filing of the certificate. 50 Misc. 2d at 383. The court found that based on the code provision, the Board did not act arbitrarily, capriciously, or in an otherwise illegal manner. The decision of the Board to deny the transsexual’s request was affirmed. 50 Misc. 2d at 385. By upholding the Board, the court then, indirectly, adopted the Academy’s position.
However, a civil court in New York, in 1968 and then again in 1970, granted an application for a change of name to a post-operative transsexual. Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968); Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970). In the 1968 case of Anonymous, a male-to-female transsexual petitioned the court to order the Bureau of Vital Statistics of the Department of Health of the City of New York to change his birth certificate to reflect a name and sex change. Based on New York law, the civil court lacked jurisdiction to change the sex on the birth certificate. 57 Misc. 2d at 813-14. Even so, the court still criticized the findings of the Academy.
The court noted that all male organs had been removed and that the petitioner could ho longer have sex as a male. The court stated that where, with or without medical intervention, the psychological sex and the anatomical sex are “harmonized,” then the social sex or gender of the individual should conform to the harmonized status of the individual, and if such conformity requires a change in statistical information, the changes should be made. 57 Misc. 2d at 816.
Later, in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973), the appellate court reaffirmed the decision in Weiner. We can conclude that as of the filing date of Hartin, New York was stating that its birth records should reflect the sex of an individual as determined at birth.
The court in Hartin noted in the decision that the Board minutes revealed that the Board was of the opinion that “surgery for the transsexual is an experimental form of psychotherapy by which mutilating surgery is conducted on a person with the intent of setting his mind at ease, and that nonetheless, does not change the body cells governing sexuality.” 75 Mise. 2d at 232. One of the Board members was quoted as saying: “ 1 would think that it would be unsound, if, in fact, there were encouragement to the broader use of this means of resolving a person s unhappy mental state.’ ” 75 Misc. 2d at 232. See also Anonymous v. Mellon, 91 Misc. 2d 375, 383, 398 N.Y.S.2d 99 (1977) (court again refused to grant a change of sex designation).
The next case, often cited, but perhaps colored by the fact that the parties lived together only 14 days of their 3-month marriage, is Corbett v. Corbett, 2 All E.R. 33 (1970), an English opinion dealing with transsexualism. One of the parties was a male-to-female transsexual and former female impersonator named April Ashley, who married Arthur Corbett. Arthur was a homosexual and transvestite “prone to all kinds of sexual fantasies and practices.” 2 All. E.R. at 38. An English court in the probate, divorce, and admiralty division ruled that a marriage between a post-operative male-to-female transsexual and a male was void. 2 All. E.R. at 50.
After the surgeiy, the respondent had her passport changed to reflect a female name. The respondent also had insurance papers changed to reflect her sex as female. An attempt to change the respondent’s birth certificate failed.
In Corbett, some dispute existed as to whether the respondent was “intersexed,” which was described then as a medical concept meaning “something between intermediate and indeterminate sex.” 2 All E.R. at 43. The court rejected this notion, finding enough evidence to support the view that the respondent was born a male. 2 All E.R. at 43.
The court found that biological sex is determined at birth and cannot be changed by natural or surgical means. The respondent’s operation, the court stated, cannot affect the true sex. The only cases where the term “change of sex” is appropriate, the court opined, is when there has been a mistake as to sex at birth that is subsequently revealed in a medical examination. 2 All E.R. at 47.
In dealing with the argument that it is illogical for the court to treat the respondent as a male while other paperwork may have been changed to say differently, the court declared: “Marriage is a relationship which depends on sex and not on gender.” 2 All E.R. at 49. The court distinguished marriage from other social situations. 2 All E.R. at 49. Sex is clearly an essential determinant of the relationship in marriage, the court stated, as it is recognized as the union between a man and woman. The court established a three-part test in determining what is a person’s sex for purposes of the law, stating:
“Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must ... be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place . . . the chromosomal, gonadal, and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.” 2 All E.R. at 48.
The unusual facts and the lack of a relationship in Corbett make it of questionable precedential value here. We recognize that it may have been the first time a court addressed these issues in the context of marriage.
A change in thinking can perhaps be observed beginning in 1975 in Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975). The petitioner, called a male at birth, had a sex change operation and later requested that the Commissioner of Health change the sex on his birth certificate from male to female. The Commissioner refused to make such a change. The transsexual sued to have the Commissioner ordered to make this change, and the Commissioner moved for summary judgment.
The court denied the motion for summary judgment, finding that the Commissioner of Health must show some substantial state interest in his policy of refusing to change a birth certificate to reflect current sexual status unless that was also the status at birth. 395 F. Supp. at 1214. The court found that this heightened level of scrutiny exists because the court felt that the fundamental right to marry could be implicated by the Commissioner’s decision. 395 F. Supp. at 1214.
The court held that the Commissioner of Health had not met his burden of proof. 395 F. Supp. at 1214. It indicated that the exact anatomical condition of the petitioner at birth was unclear, as were all of the details of the operation and present circumstances. 395 F. Supp. at 1213.
The case of M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976), deserves greater attention, in our view, than Corbett, Hartin, or Darnell.
In M.T., a husband and wife were divorcing, and the issue was support and maintenance. The husband argued that he should not have to pay support to his wife because she was a male, making the marriage void. The issue before the court, similar to that before this court, was whether the marriage of a post-operative male-to-female transsexual and a male was a lawful marriage between a man and a woman. The court found that it. was a valid marriage. 140 N.J. Super, at 90.
In affirming the lower court’s decision, the court noted the English court’s previous decision in Corbett. 140 N.J. Super, at 85-86. The court rejected the reasoning of Corbett, though, finding that “for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psy che or psychological sex, then identity by sex must be governed by the congruence of these standards.” 140 N.J. Super, at 87. Since the court found that the wife’s gender and genitalia were no longer “discordant” and had been harmonized by medical treatment, the court held that the wife was a female at the time of her marriage and that her husband, then, was obligated to support her. 140 N.J. Super, at 89-90.
The importance of the holding in M.T. is that it replaces the biological sex test with dual tests of anatomy and gender, where “for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.” 140 N.J. Super, at 87.
The M. T. court further stated:
“In this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did so here. In so ruling we do no more than give legal effect to a fait accompli, based upon medical judgment and action which are irreversible. Such recognition will promote the individual’s quest for inner peace and personal happiness, while in no way dis-serving any societal interest, principle of public order or precept of morality.” 140 N.J. Super, at 89-90.
In M.T., the husband was arguing that he did not owe any support because his wife was a man. However, in the record, it was stated that the wife had a sex reassignment operation after meeting the husband. Her husband paid for the operation. The husband later deserted the wife and then tried to get out of paying support to someone he had been living with since 1964 and had been married to for over 2 years.
In 1977, the Oregon Supreme Court was faced with the issue of whether a birth certificate of a transsexual should be changed to reflect a different name and sex. K v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977). In K, the court first looked to the statutes regarding birth certificate changes. The court found lim ited circumstances existed under the law for birth certificate amendments. The amendments, further, only dealt with name changes and only in the case of adoption or if a parent name changes. 277 Or. at 374-75.
Despite the Court of Appeals finding that the birth certificate could be amended, the Oregon Supreme Court held that no such authority existed in Oregon to change the birth certificate to reflect a change in sex or name in this instance. 277 Or. at 374-76. The court stated that “it has not been demonstrated, by legislative history or otherwise, that it would be ‘at variance with the apparent policy’ of either the legislature or the State Board of Health to deny the issuance of a ‘new birth certificate’ to a transsexual.” 277 Or. at 375. The court further stated:
“In our opinion, it is at least equally, if not more reasonable, to assume that in enacting these statutes it was the intent of the legislature of Oregon that a ‘birth certificate’ is an historical record of the facts as they existed at the time of birth, subject to the specific exceptions provided by statute.” 277 Or. at 375.
In so finding, the Supreme Court declared that “it is not for this court to decide which view is preferable. On the contrary, we hold that this is a matter of public policy to be decided by the Oregon legislature.” 277 Or. at 376.
In Richards v. U. S. Tennis Assn., 93 Misc. 2d 713, 400 N.Y.S.2d 267 (1977), the New York appellate court rejected the United States Tennis Association requirement that in order to be eligible to participate in a tournament, the plaintiff had to pass a sex-chromatin test. Renee Richards is a male-to-female transsexual. The court held that the test requirement was grossly unfair, discriminatory, and inequitable, and violated Richards’ rights under New York Human Rights Law. 93 Misc. 2d at 721.
However, the court stated that in Richards’ case, it seemed clear that the Association instituted this test for the sole purpose of preventing Richards from playing in the tournament. 93 Misc. 2d at 721. The court did not strike down the test, as such, but did indicate that the chromosome test should not be the sole criterion upon which a sex determination is made. 93 Misc. 2d at 722.
In 1984, the United States Court of Appeals, Seventh Circuit, analyzed an issue concerning transsexualism and workplace dis crimination. In Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), cert. denied 471 U.S. 1017 (1985), a post-operative male-to-female transsexual who was a pilot for Eastern Airlines was fired in 1981, shortly after sex reassignment surgery. The transsexual sued the airline, alleging that the employer violated Title VII by discharging her from her position as a pilot. A federal district court agreed with the transsexual, finding discrimination against this person as both a female and a transsexual, and the airline appealed. 742 F.2d at 1082.
The Seventh Circuit disagreed with the district court. The court stated that while it does not condone discrimination in any form, it must hold that Title VII does not protect transsexuals. 742 F.2d at 1084. First, the court stated: “It is a maxim of statutory construction that, unless otherwise defined, words should be given their ordinary, common meaning.” 742 F.2d at 1085. The court explained that the words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder. It noted that the law clearly prohibits discrimination against women because they are women or men because they are men; it does not protect a person bom with a male body who believes himself to be female or a person bom with a female body who believes herself to be male. 742 F.2d at 1085.
After noting that nothing was said in the legislative history about transsexuals, the court stated that it appears clear that Congress did not intend the legislation to apply to anything other than “the traditional concept of sex.” 742 F.2d at 1085. Had Congress intended it to apply, surely it would have said so, the court explained. 742 F.2d at 1085. Thus, the court declined to expand the definition of “sex” as used in Title VII beyond its “common and traditional interpretation,” stating: “We agree with the Eighth and Ninth Circuits that if the term ‘sex’ as it is used in Title VII is to mean more than biological male or biological female, the new definition must come from Congress.” 742 F.2d at 1087. See Sommers v. Budget Marketing, Inc., 667 F.2d 748, 750 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir. 1977).
The two most recent decisions in the United States in the area of transsexualism have dealt with the precise issue before this court, that is, whether two individuals, biologically and legally of the same sex at birth, may contract to many each other.
In 1987, a probate court in Ohio addressed the question in the case of In re Ladrach, 32 Ohio Misc. 2d 6, 513 N.E.2d 828 (1987). In Ladrach, a post-operative male-to-female transsexual and the transsexual’s fiance, a biological male, applied for a marriage license. The application indicated that the transsexual had been married two times before to spouses of the female gender and that both marriages had ended in divorce.
After reading the application, the clerk at the license bureau called a judge who reviewed the application. The judge also reviewed a signed letter by a physician indicating that the transsexual had undergone sex reassignment surgery. After reviewing the marriage statute in Ohio, the judge concluded that the application must be denied. Later, the transsexual also filed a petition to have the sex corrected on the transsexual’s birth certificate to state “Girl” instead of “Boy.” This application was dismissed, and the transsexual filed a complaint for declaratory judgment to have the birth certificate changed and the marriage license issued.
The Ohio Probate Court found that the birth certificate, based on Ohio law, should not be changed. The court stated that its statute is a “correction” type statute, which permits a court to correct errors such as spelling of names, dates, race and sex, if in fact there was an error. 32 Ohio Mise. 2d at 8. Since there was no error in the designation of the transsexual as a boy, the application, the court stated, must be dismissed as to the birth certificate change. 32 Ohio Mise. 2d at 8.
The court concluded, after a review of prior case law, law review articles, and the posthearing brief of the applicant, that no authority existed in Ohio for the issuance of a marriage license to a postoperative male-to-female transsexual and a male person. 32 Ohio Mise. 2d at 10. If it is to be the public policy of die state of Ohio to issue marriage license in such cases, the court stated, “it is this court’s opinion that the legislature should change the statutes.” 32 Ohio Mise. 2d at 10.
The most recent decision in the United States regarding transsexualism was decided by the Texas Court of Appeals in Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 531 U.S. 872 (2000). In J’Noel’s case, the district court appears to rely heavily on this case in rendering its decision that J’Noel is a male, quoting some of its language verbatim. In Littleton, a transsexual, now called Christie, who was born a man but had undergone sex reassignment surgery, brought a medical malpractice suit under Texas’ wrongful death statute as a surviving spouse of a male patient. The doctor who was sued filed a motion for summary judgment, asserting that Christie was a male and, therefore, could not be the surviving spouse of another man. The trial court granted summary judgment to the doctor, and Christie appealed.
Christie had a name and sex change made on her birth certificate during pendency of the suit. During the surgical procedures, Christie’s penis, scrotum, and testicles were removed, and a vagina and labia were constructed. Christie also had breast construction surgery. One of Christie’s doctors testified that Christie “has the capacity to function sexually as a female” after the surgery. 9 S.W.3d at 225. Doctors testified that medically Christie was a woman.
Christie married a man by the name of Jonathon in 1989, approximately 9 or 10 years after sex reassignment surgery. The two lived together until Jonathon’s death in 1996, after which time Christie filed suit against Jonathon’s doctor. In Christie’s affidavit, Christie asserted that Jonathon knew about Christie’s background and sex reassignment surgery.
The court in Littleton stated that in Texas, marriage must be between two parties of the opposite sex. 9 S.W.3d at 225. Further, in order for Christie to sue under the wrongful death statute in Texas, Christie must be the surviving spouse. 9 S.W.3d at 225. Thus, if Christie was a man, summary judgment would be appropriate. After a brief review of what transsexualism is, the court next examined the case law in this area. The court discussed Corbett and the case of Anonymous v. Anonymous, 67 Misc. 2d 982, 325 N.Y.S. 2d 499 (1971). The court also referenced such cases as M.T. v. J.T., In re Ladrach, and K v. Health Division. 9 S.W.3d at 227-29.
After a review of the case law, the court concluded that Christie was a male as a matter of law. 9 S.W.3d at 231. The court noted that this was an issue of first impression in Texas. 9 S.W.3d at 230. In line with previous cases, the court stated: “[I]t is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of marriages involving transsexuals. ... It would be intellectually impossible for this court to write a protocol for when transsexuals would be recognized as having successfully changed their sex.” 9 S.W.3d at 230.
While Christie argued that amputation was “ ‘a pretty important step,’ ” the court, while agreeing, explained that it had “no authority to fashion a new law on transsexuals, or anything else. We cannot make law when no law exists: we can only interpret the written word of our sister branch of government, the legislature.” 9 S.W.3d at 230.
Thus, the court found that even though surgery and hormones can make a transsexual male look like a woman, including female genitalia, and in Christie’s case, even breasts, transsexual medicine does not create the internal sex organs of a woman (except for a man-made vaginal canal). There is no womb, cervix, or ovaries in the post-operative transsexual female. The chromosomes do not change. Biologically, the post-operative female is still a male. 9 S.W.3d at 230. Even though some doctors would consider Christie a female and some a male, the court concluded: “Her female anatomy, however, is all man-made. The body that Christie inhabits is a male body in all aspects other than what the physicians have supplied.” 9 S.W.3d at 231.
The dissent in Littleton concluded that the matter could not be decided as a matter of law, that there were genuine issues of material fact, and that therefore an affirmance of summary judgment was precluded. The dissent noted that no law defined how a person’s “gender” is to be determined and that since the legislature had not addressed whether a transsexual may be considered a surviving spouse under Texas law, the appellate court could not conclude that judgment should be affirmed as a matter of law. 9 S.W.3d at 232-33 (Lopez, J., dissenting).
A petition for writ of certiorari of the Littleton holding was denied by the United States Supreme Court on October 2, 2000.
I-F Other Laws, Cases, Regulations, and Considerations
Kansas law allows individuals to change the sex designation on their birth certificates “with a medical certificate substantiating that a physiological or anatomical change occurred.” K.A.R. 28-17-20(b)(l)(A)(i).
K.S.A. 2000 Supp. 65-2416(a) states that a birth certificate is “prima facie evidence of the facts therein stated.”
Kansas does not require proof of one’s sex to obtain a marriage license. K.S.A. 2000 Supp. 23-106.
The Kansas Supreme Court has stated that the “ [pjublic policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to five together and to prevent separation.’ ” Ranney v. Ranney, 219 Kan. 428, 431, 548 P.2d 734 (1976).
Transsexual issues have or will arise in situations involving penal institutions, schools, sports, employment, and every other situation in which perceived gender is important.
I-G Summary judgment
J’Noel argues that summary judgment, holding her marriage to Marshall invalid, was not appropriate because genuine issues of material fact exist as to whether she was a male or female at the time she obtained a marriage license and wed. In her motion for partial summary judgment, J’Noel stated that the issue the district court should decide was whether she was legally a female and was a female at the time of the marriage to Marshall. This was also stated by J’Noel’s counsel during oral arguments on the motions. Later at the hearing, however, J’Noel’s counsel stated that the court was not being asked to determine if J’Noel was male or female but was being asked to give full faith and credit to the order amending her birth certificate. J’Noel contended the birth certificate was dis-positive.
The standard of review for a motion for summary judgment has been 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. 2000 Supp. 60-256(c).
The district court found that J’Noel was a male at the time she obtained her license and married, for purposes of K.S.A. 2000 Supp. 23-101. There is no dispute between the parties that J’Noel was bom a male with male genitalia, that J’Noel’s original birth certificate stated that J’Noel was a male, or that J’Noel suffers from gender dysphoria, which is characterized by a strong desire to be the opposite sex. The question really is whether J’Noel was a male or a female, for the purpose of the statute, at the time the marriage license was issued. Inherent in that question is the question of what criteria are to be used to determine the sex of an applicant at the time of the application process. Both parties agree that J’Noel’s original birth certificate has been amended to state that J’Noel is a female.
The district court was provided with J’Noel’s deposition and affidavits that give opinions as to whether what J’Noel has undergone indeed transformed J’Noel into a female. The affidavits are material, and they contradict each other. The district court was required to interpret K.S.A. 2000 Supp. 23-101 as to what the legislature intended when it is stated that marriage must be between two parties “who are of opposite sex.” The court had to decide whether the legislature intended a marriage between a post-operative male-to-female transsexual and a male to be valid for purposes of the statute.
II-FULL FAITH AND CREDIT
J’Noel continues to argue that the district court erred by failing to give full faith and credit to J’Noel’s Wisconsin birth certificate that designates J’Noel as female. This is a question of law over which appellate review is unlimited. See Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
Article IV, § 1, of the United States Constitution states:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof,”
“The general rule is that a judgment rendered by a court of one state is entitled to recognition in the courts of another state to the same extent as it has by law or usage in the courts of the state where the judgment was rendered.” State v. Pope, 23 Kan. App. 2d 69, 80, 927 P.2d 503 (1996), rev. denied 261 Kan. 1088 (1997).
Joe argues that the report authorizing J’Noel’s birth certificate change was not a judgment. He argues that it was not a document generated by a court but merely an administrative form provided by the state registrar.
In order to change her birth certificate, J’Noel followed Wisconsin statute § 69.15(4)(b), which provides:
“Any person with a direct and tangible interest in a birth certificate registered in this state may petition a court to change the name and sex of the registrant on the certificate due to a surgical sex-change procedure. If the state registrar receives an order which provides for such a change the state registrar shall change the name and sex on the original birth certificate, except that if the court orders the state registrar to prepare a new certificate the state registrar shall prepare a new certificate under sub.(6).”
Joe is correct that an entry made by a court clerk without direction cannot constitute an entry of judgment because the rendition of judgments is a judicial function to be performed by judges and not by clerks. See In re Estate of Penn, 216 Kan. 153, 157-58, 531 P.2d 133 (1975). In this case, however, the order to change the name and sex on J’Noel’s birth certificate is signed by a judge. Although it also contains a place for the clerk of the court to sign, the name actually signed is “Michael Gage.” It has his printed name and designation as “judge.” Thus, this particular order appears to be a judgment.
Even if it were not, the Full Faith and Credit Clause of the Constitution still requires full faith and credit to be given to records of other states. United States Constitution, Article IV, § 1. Absent an overriding consideration, the certificate itself is entitled to full faith and credit.
One such overriding consideration could be violation of Kansas public policy. J’Noel argues that Kansas public policy not only is not violated by granting full faith and credit to the Wisconsin birth certificate but that it supports such an approach. Her authority is a Kansas regulation, promulgated by the Department of Health and Environment, that allows for a change of sex designation on a birth certificate, including when an anatomical change has occurred.
The regulation, K.A.R. 28-17-20(b)(l)(A)(i), states that a birth certificate may be amended after 90 days for certain limited reasons, including if “the registrant’s sex . . . was incorrectly recorded or ... a physiological or anatomical change occurred.” Proof is necessary in the form of the applicant’s affidavit in the first instance and a medical certificate in the second instance. K.A.R. 28-17-20(b)(l)(A)(i).
K.A.R. 28-17-20 is authorized by K.S.A. 65-2402 and implements K.S.A. 2000 Supp. 65-2422c. K.S.A. 2000 Supp. 65-2422c deals with corrections to birth certificates or records. K.S.A. 2000 Supp. 65-2422c states in part: “The secretary [of health and environment] may by regulation prescribe procedures for making minor corrections to certificates or records. Any certificate so corrected shall be marked ‘amended,’ and shall have such further markings as shall be prescribed by the secretary.” (Emphasis added.)
To correct, generally, means to make right what is wrong. Black’s Law Dictionary 347 (7th ed. 1999). This court could find that giving ordinary meaning to the term “correct,” the Department of Health and Environment exceeded its statutory authority in promulgating K.A.R. 28-17-20(b)(l)(A)(i) as it relates to amendments of sex designations in response to anatomical changes. An administrative agency may not, under the guise of a regulation or order, substitute its judgment for that of the legislature. It may not alter, modify, or enlarge the legislative act which is being administered. In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 647, 753 P.2d 304, rev. denied 243 Kan. 779 (1988).
Here, it appears likely that, to the extent the regulation appears to allow for the change of a sex designation on a Kansas birth certificate to respond to anatomical changes, it oversteps. It is highly unlikely a fundamental change of that nature was contemplated by the legislature when it passed K.S.A. 2000 Supp. 65-2422c on “minor corrections.”
We note that the Texas Court of Appeals was faced with the issue of the effect of an amended birth certificate in Littleton. 9 S.W.3d at 231. As stated, Christie applied for and received an amended birth certificate during the pendency of that case. A Texas trial court ordered the change of sex and name on Christie’s birth certificate. The Court of Appeals found that the court was not bound by this amended certificate, stating that the trial court’s role in considering the petition was a ministerial one and that deeper public policy concerns were not addressed. 9 S.W.3d at 231.
Further, the Texas statute allowing for birth certificate changes allowed amendments if the record was “ ‘incomplete or proved by satisfactory evidence to be inaccurate.’ ” 9 S.W.3d at 231. While the trial court applied the term “ ‘inaccurate’ ” to the present, the Court of Appeals found that the legislature meant the term to mean at the time of birth. 9 S.W.3d at 231. Because Christie was a male at the time of birth, both anatomically and genetically, the facts in the original birth certificate were accurate and no change should have been made. 9 S.W.3d at 231.
Regardless, J’Noel’s effort to rely on K.A.R. 28-17-20 to determine Kansas public policy in this case fails. The legislature sets public policy, not administrative agencies. We read the Kansas regulation as neutral, favoring neither J’Noel’s nor Joe’s positions on the effect of the Wisconsin birth certificate.
The intended function of the Full Faith and Credit Clause was to avoid relitigation in other states of adjudicated issues, while leaving to tire law of the forum state the treatment and effect of the predetermined facts in a new situation. Sutton v. Leib, 342 U.S. 402, 407, 96 L. Ed. 448, 72 S. Ct. 398, reh. denied 343 U.S. 921 (1952). Because neither the State of Kansas nor Joe was a party to the judgment of the Wisconsin court altering J’Noel’s birth certificate, it may be argued that such a judgment is not binding on either the State of Kansas or Joe. See Riley v. New York Trust Co., 315 U.S. 343, 349-50, 86 L. Ed 885, 62 S. Ct. 608, reh. denied 315 U.S. 829 (1942) (finding that a Delaware court was free to determine domicile anew for a party who was not bound by a previous Georgia judgment relating to domicile because he was not in privity with any parties before the Georgia court). We do not find it necessary to go to that extreme, however, to affirm the district court’s treatment of the certificate as nondispositive on the issue of J’Noel’s sex at the time she obtained her Kansas marriage license.
Even if it is assumed that J’Noel’s amended birth certificate must be given full faith and credit in Kansas, it is a well-established rule of law that Kansas must give the amended certificate only as much recognition or weight as would Wisconsin, the state in which it was issued. No greater effect need be given to any judgment of a court of one state than that given in the state where it was rendered. Keller v. Guernsey, 227 Kan. 480, 482, 608 P.2d 896 (1980).
Wis. Stat. § 69.21 (2000) deals with the evidentiary weight placed on vital statistic records. Wis. Stat. § 69.21(l)(c) states:
“Any certified copy of a vital record or part of a vital record issued under this subsection shall be deemed the same as the original vital record and shall be prima facie evidence of any fact stated in the vital record, except that the evidentiary value of a vital record filed more than one year after the event which is the subject of the vital record occurred or of a vital record which has been amended shall be determined by the judicial or administrative agency or official before whom the vital record is offered as evidence.”
Clearly, J’Noel’s original birth certificate has been amended. Both the original and amended birth certificates were before the district court. The court, based on Wisconsin law, was allowed to determine the weight of the evidence offered in the form of the birth certificate. Wis. Stat. § 69.21(l)(c). The court in Kansas appeared to give the birth certificate little or no weight, which was its option. This was not error.
III-EQUAL PROTECTION
J’Noel argues that the district court’s decision violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by not recognizing J’Noel’s legal status as female and denying J’Noel the right to marry.
A new legal theory may not be asserted for the first time on appeal or raised in a reply brief. Jarboe v. Board of Sedgwick County Commrs, 262 Kan. 615, 622, 938 P.2d 1293 (1997). J’Noel did not note this in her response to Joe’s objection to her petition for issuance of letters, her suggestions in opposition to Joe’s motion for summary judgment, her motion for partial summary judgment, or at oral argument on the motions.
J’Noel argues that she could not have raised this issue at the district court level because the district court had not yet ruled on the issue of the validity of J’Noel and Marshall’s marriage. J’Noel argues that she is not arguing that K.S.A. 2000 Supp. 23-101 is unconstitutional on its face but as applied to her marriage.
J’Noel’s argument concerning equal protection fails. The Fourteenth Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the íaws.” When J’Noel was found by the district court to be a male for purposes of Kansas law, she was denied the right to marry a male. It logically follows, therefore, that the court did not forbid J’Noel from marrying a female. Federal law allows a state to not give effect to another state’s recognition of a same-sex marriage. 28 U.S.C. §1738C (1996). Kansas law forbids same-sex marriages. K.S.A. 2000 Supp. 23-101.
IV. FRAUD AND WAIVER
Joe argues that the district court’s decision could be affirmed on the grounds of fraud and waiver. Joe’s motion for summary judgment, filed with the district court, included both of these grounds. The trial court did not rule on the fraud issue, but it clearly denied Joe’s motion with respect to waiver.
“A denial of a motion for summary judgment may be reviewed on appeal when asserted as a cross-appeal. See K.S.A. 60-2103(h). It is, of course, necessary that a cross-appeal be perfected in order to obtain appellate review of the adverse decision. [Citation omitted.] If no cross-appeal is filed, the trial court’s undisturbed rulings would become a final decision when the case is finally adjudicated.” Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 484, 988 P.2d 755 (1999).
Joe did not file a cross-appeal. Therefore, the court’s ruling denying Joe’s summary judgment motion on the issue of waiver is not before us, and it becomes the law of the case. See Vaughn v. Murray, 214 Kan. 456, Syl. ¶5, 521 P.2d 262 (1974).
With respect to the issue of fraud, 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 of material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 2000 Supp. 60-256(c).
Joe argues that J’Noel induced Marshall into marriage because she assured Marshall several times that she was not marrying him for his money. Genuine issues of material fact exist as to the fraud issue, and that issue may be considered on remand.
CONCLUSION
This court rejects the reasoning of the majority in the Littleton case as a rigid and simplistic approach to issues that are far more complex than addressed in that opinion.
We conclude that a trial court must consider and decide whether an individual was male or female at the time the individual’s marriage license was issued and the individual was married, not simply what the individual’s chromosomes were or were not at the moment of birth.
The court may use chromosome makeup as one factor, but not the exclusive factor, in arriving at a decision.
Aside from chromosomes, we adopt the criteria set forth by Professor Greenberg. On remand, the trial court is directed to consider factors in addition to chromosome makeup, including: gonadal sex, internal morphologic sex, external morphologic sex, hormonal sex, phenotypic sex, assigned sex and gender of rearing, and sexual identity. The listed criteria we adopt as significant in resolving the case before us should not preclude the consideration of other criteria as science advances.
In many of the cases cited, there was very little history of a relationship, if any existed at all. Here, the history of the relationship appears stable and compatible.
If fraud be shown, a marriage can always be annulled, under any circumstances. While we find no badges of fraud in the record before us, it remains a potential alternative basis to void the marriage. Here, the evidence in the appellate record to date points to a conclusion that Marshall knew of the transsexual nature of J’Noel, approved, married, and enjoyed a consummated marriage relationship with her.
Affidavits of physicians are but one piece of evidence to be considered when reaching a conclusion.
This court looks with favor on the reasoning and the language of M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976).
Last, we note the conclusion of William Reiner, M.D., a researcher at The Johns Hopkins Hospital:
“In the end it is only the children themselves who can and must identify who and what they are. It is for us as clinicians and researchers to listen and to learn. Clinical decisions must ultimately be based not on anatomical predictions, nor on the ‘correctness’ of sexual function, for this is neither a question of morality nor of social consequence, but on that path most appropriate to the likeliest psychosexual developmental pattern of the child. In other words, the organ that appears to be critical to psychosexual development and adaptation is not the external genitalia, but the brain.” Reiner, To Be Male or Female—That is the Question, 151 Arch Pediatr. Adolesc. Med. 225 (1997).
This matter is reversed and remanded for a full hearing, with the opportunity for each side to present evidence on at least the factors enumerated in the Greenberg article and with directions to consider the conclusions, of this court and the legal and scientific research we rely upon. | [
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Wahl, J.:
Gary L. Rose appeals his conviction of driving while under the influence of alcohol. On appeal, Rose argues that the district court erred in admitting the results of his breath alcohol test because the State failed to appeal an order of the district magistrate judge suppressing the results of the test.
On January 1, 2000, a Kansas Highway Patrol trooper observed a vehicle crossing the highway center line in a zig-zag course. The trooper stopped the vehicle and contacted the driver, Gary L. Rose. The trooper detected an odor of alcohol emanating from Rose’s vehicle. The trooper also observed that Rose’s eyes were bloodshot and that his actions were slow in obtaining his driver’s license. Rose admitted that he had drunk whiskey that evening. When Rose got out of his vehicle at the trooper’s request, he lost his balance and fell back into the car door. After conducting a series of field sobriety tests, the trooper concluded that Rose was under the influence of alcohol and was too impaired to drive.
The trooper arrested Rose for driving while under the influence of alcohol. Rose agreed to submit to a breath alcohol test on an Intoxilyzer 5000. When Rose blew into the machine, it did not appear to be getting a sample of Rose’s breath. A deputy then pinched the hose on the machine tighter around the plastic tip of the mouthpiece into which Rose was blowing. Then, the Intoxilyzer 5000 test indicated that Rose had .145 grams of alcohol per 210 liters of breath, which exceeded the legal limit of .08 grams.
Rose was charged with driving while under the influence of alcohol. In a hearing before the magistrate judge, Rose moved to suppress the results of the breath alcohol test based on the irregularity of the testing procedure. The magistrate judge granted the motion to suppress. The State did not appeal this ruling. Rose was convicted by the district magistrate judge and appealed.
The district court heard Rose’s appeal de novo. During trial, the State presented evidence of the breath alcohol test results over Rose’s objection. The trial court found that the State failed to establish a per se violation of K.S.A. 2000 Supp. 8-1567, i.e., alcohol concentration in defendant’s breath of .08 grams or more. The district court also found that the evidence was inadequate to support Rose’s conviction without the disputed breath test results. Nevertheless, after considering both the breath alcohol test results and the trooper’s observations, the district court determined that the State established that Rose was driving while impaired. Rose appeals.
The sole issue presented on appeal is whether the district court erred in admitting the results of the breath alcohol test after the State failed to appeal an order of the district magistrate judge suppressing the results of the breath test. Resolution of this issue requires an interpretation of K.S.A. 2000 Supp. 22-3602(d) and K.S.A. 2000 Supp. 22-3609a. Statutory interpretation is a question of law, and this court’s review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998); State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
Rose argues that the district magistrate judge’s order suppressing the results of the breath alcohol test was appealable by the State. K.S.A. 2000 Supp. 22-3602(d) provides: “Appeals to a district judge may be taken by the prosecution from cases before a district magistrate judge as a matter of right . . . from orders enumerated in K.S.A. 22-3603 and amendments thereto.” K.S.A. 22-3603 provides:
“When a judge of the district court, prior to the commencement of a trial of a criminal action, makes an order . . . suppressing evidence ... an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”
Rather than appealing the district magistrate judge’s decision pursuant to K.S.A. 2000 Supp. 22-3602(d) and K.S.A. 22-3603, the State chose to try Rose for driving while under the influence of alcohol without the results of the breath alcohol test. Rose was tried and convicted by the district magistrate judge of driving while under the influence of alcohol and appealed his conviction pursuant to K.S.A. 2000 Supp. 22-3609a. Subsection (3) of the statute mandates that “[t]he case shall be tried de novo before the assigned district judge.”
Rose argues that because the State did not appeal the district magistrate judge’s order suppressing the breath test, that order became the law of the case and the State is bound by that ruling on the subsequent appeal.
The State argues that because K.S.A. 2000 Supp. 3609a(3) provides for trial on appeal to be conducted de novo, any decision made by the magistrate judge concerning either the law or the facts of the case was not binding on the district court, citing State v. Wright, 26 Kan. App. 2d 879, 880, 995 P.2d 416 (2000). Wright held that “[w]hen a statute provides for review of a magistrate judge’s decision de novo by a district judge, the matter is to be tried before the district judge just as if no trial had initially been had before the magistrate.” 26 Kan. App. 2d at 880. Wright further held that trial of a case de novo before a district judge “requires that both the facts and the law be determined in the de novo trial.” 26 Kan. App. 2d 879, Syl.
It is necessary that we consider K.S.A. 22-3610(a), which mandates:
“When, a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.” (Emphasis added.)
It is a basic tenant of Kansas law that appellate procedure is totally statutory. State v. Freeman, 236 Kan. 274, 276, 689 P.2d 885 (1984). The intent of the legislature is of paramount consideration. In re Marriage of Kittman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
Rose cites State v. Finical, 254 Kan. 529, 532, 867 P.2d 322 (1994), to support his argument that because the State did not appeal the magistrate judge’s order suppressing the results of the breath test, that order became the law of the case and binding on the district judge on appeal. But Finical is not on point. Finical involves grand jury indictments and a district judge’s orders dismissing the indictments. It does not consider appeals to the district judge from a magistrate judge.
Black’s Law Dictionary 392 (5th ed. 1979), defines a de novo trial as “[tjrying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered.” The magistrate judge is a judge of limited jurisdiction, and it is wholly illogical that his or her order should bind the general jurisdiction of the district judge. Such a holding would effectively negate a de novo trial before the district judge.
The prosecution has no right of appeal from a magistrate judge’s finding of not guilty. The right of appeal granted the prosecution by K.S.A. 2000 Supp. 22-3602(d) and K.S.A. 22-3603 from a magistrate judge’s order suppressing evidence would be an important right if the suppressed evidence were essential to the prosecution’s case. Here, it was not crucial, and the prosecution elected to proceed to trial without the breath test results. That the State could have taken an interlocutory appeal from the suppression order of the magistrate judge is of no consequence under the facts of this case.
State v. Burkett, 231 Kan. 686, 648 P.2d 716 (1982), considered an appeal from the district magistrate judge to the district judge. The original complaint charged Burkett with a felony. Through plea bargaining, Burkett agreed to a plea of nolo contendere and the State agreed to dismiss the felony charge and file two misdemeanor charges, request no incarceration at sentencing, and to make no recommendation as to a fine. Burkett entered his nolo plea to the two misdemeanors before a magistrate judge. The judge did not heed the State’s recommendation of no jail time and imposed incarceration of 6 months and 1 year. Burkett appealed to the district judge. The State then filed a second amended complaint charging defendant with the original felony and the two misdemeanors. The district judge dismissed the felony count, and the State appealed.
The Supreme Court stated: “[T]he issue before us is whether the State may reassert the felony charge.” 231 Kan. at 687.
The court, in considering the effect of an appeal from a magistrate judge held:
“The effect of the appeal is to stay all further proceedings before the district magistrate judge. The case is to be tried de novo before the district judge. . . . The pleas entered before the district magistrate judge are automatically vacated; otherwise there would be no reason for a trial. The proceedings start afresh; . . . The plea, conviction and disposition had before the district magistrate judge are subject to automatic vacation by the appeal; none remain.” Burkett, 231 Kan. at 690.
When Rose appealed his conviction before the magistrate judge, it became the obligation of the district judge to try the case de novo, “as if it had not been heard before and as if no decision had been previously rendered.” Wright, 26 Kan. App. 2d at 880. The appeal by Rose automatically vacated all orders entered by the magistrate judge. The district judge had to determine both the facts and the law in the de novo trial. Wright, 26 Kan. App. 2d 879, Syl.
Although some of the trial judge’s comments made in finding Rose guilty are not fully discernible to this court, we have no problem in finding adequate evidence to support Rose’s conviction or in finding the court did not err in admitting the Intoxilyzer 5000 test results.
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Elliott, J.;
Alan Torkelson appeals the denial of his motion to withdraw a plea and also appeals his sentence.
We affirm the convictions, but vacate part of his sentence, and remand for resentencing.
While charged in case No. 99 CR 224 with numerous felony and misdemeanor counts, defendant incurred new felony and misdemeanor charges in case No. 99 CR 344, not related to the charges in the earlier case.
Pursuant to a plea bargain, defendant pled guilty in 99 CR 344 to attempted aggravated sexual battery and pled no contest in 99 CR 224 to criminal threat. The State agreed to dismiss numerous other counts in the two cases; the parties agreed not to seek a departure sentence and that the two sentences would run consecutively.
Prior to sentencing, defendant moved to withdraw both pleas; the motion was denied. Based on a severity level 7 crime and a criminal history of C, the trial court sentenced defendant in 99 CR 344 to 27 months in prison, even though box 7-C of the sentencing guidelines is a presumptive probation box. The trial court did this because the crime was committed while defendant was on felony bond. See K.S.A. 2000 Supp. 21-4603d(a) and K.S.A. 21-4608.
In 99 CR 224, based on a severity level 9 crime and a criminal history of C, the trial court sentenced defendant to 12 months in prison even though the presumptive sentence was probation, because the sentence in 99 CR 344 was imprisonment. As had been agreed by the parties, the sentences were to run consecutively.
Defendant contends the trial court erred in denying his motion to withdraw his plea in 99 CR 344 (attempted aggravated sexual battery). We review for abuse of discretion. State v. Taylor, 266 Kan. 967, 974, 975 P.2d 1196 (1999).
Defendant argues his plea was not freely, fairly, and understandingly entered because a conspiracy between his wife and the victim led him to believe the victim was overcome by force or fear when, in fact, she was not. See K.S.A. 21-3518(a)(l) (defining aggravated sexual battery). Defendant argues had he known the victim was not overcome by force or fear, he would not have pled guilty.
After an evidentiary hearing, the trial court found no evidence the charged incident did not take place. The victim testified she was scared when the charged incident took place and denied she conspired with defendant’s wife to set up Torkelson. The trial court did not abuse its discretion in denying the motion to withdraw the plea.
Defendant next argues the trial court erred in sentencing him to prison in 99 CR 224 when the presumptive sentence was for a nonprison term. This question involves interpreting the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.; our review is unlimited. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
A sentencing judge must impose the presumptive sentence listed in the KSGA unless substantial and compelling reasons for depafture exist. K.S.A. 2000 Supp. 21-4716(a). Here, pursuant to a plea agreement, no departure was sought and none was granted.
The State argues there are two statutory provisions which allow a sentencing court to impose imprisonment in a presumptive probation case even absent a departure. We find neither of the statutes relied on by the State to be applicable to the present case.
K.S.A. 2000 Supp. 21-4603d(a) provides that when a new felony is committed while defendant is on felony bond in another case, the court may sentence defendant to prison in the new case, even when the new crime otherwise presumes a nonprison term. This provision does not apply here, however, because the sentence for the new crime in 99 CR 344 is not at issue. The sentence at issue in the present case is for the prior crime in 99 CR 224, to which K.S.A. 2000 Supp. 21-4603d(a) does not speak.
The State also argues that K.S.A. 2000 Supp. 21-4720(b)(2) requires all sentences to be ordered served in prison if the sentence for any of the crimes is presumptive imprisonment. But that statute cannot apply here because it only applies to multiple convictions arising out of a single charging document. See Bolin, 266 Kan. at 19.
This leads us back to K.S.A. 2000 Supp. 21-4603d(a), which states in part:
“(a) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
(1) Commit the defendant to the custody of the secretary of corrections if the current crime of conviction is a felony and the sentence presumes imprisonment ....
(3) release the defendant on probation if the current crime of conviction and criminal history fall within a presumptive nonprison category ....
(10) impose any appropriate combination of (1) . . . (3) . . .
State v. Dubish, 236 Kan. 848, 696 P.2d 969 (1985), does not apply. The inconsistent sentences in Dubish arose from a single case, not multiple cases as here. Dubish is best characterized as holding a sentence of probation on one conviction and imprisonment on other convictions arising out of the same incident is not a disposition authorized by K.S.A. 21-4603 (Ensley 1981) (preKSGA case). See Dubish, 236 Kan. at 855.
State v. McDaniel, 20 Kan. App. 2d 883, 893 P.2d 290 (1995), is closer to the facts of the present case, where we held:
“The court could have imposed consecutive sentences for the two crimes but granted probation for both, so that McDaniel would be required to serve consecutive sentences if she violated probation. K.S.A. 1994 Supp. 21-4608(d) requires only that the sentences be consecutive; it does not forbid probation. Probation is granted after imposition of sentence. [Citations omitted.] Probation is not inherently inconsistent with consecutive sentences.” 20 Kan. App. 2d at 885.
Further, K.S.A. 2000 Supp. 21-4603d(a) does not apply because it only requires an “appropriate” combination of available sentences within a single case; it does not require an “appropriate” combination of sentences in two different, unrelated cases.
Here, there simply is no statutory provision granting the trial court authority to impose a prison sentence in 99 CR 224. We recognize that what the trial court did seems logically correct, but we can find no statutoiy authority for doing what the trial court did.
The convictions are affirmed; the sentence in 99 CR 224 is vacated and remanded with directions to enter a sentence of probation. | [
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Knudson, J.;
Jesse Joseph Villanueva, Jr. appeals his conviction for the rape of S.M., contending the trial court erred in admitting opinion testimony of a social worker, failing to give a multiple acts instruction, and permitting prosecutorial misconduct that was prejudicial.
We affirm. The errors committed during Villanueva’s trial are harmless and did not impair his right to a fair trial.
S.M. and Villanueva were lovers. The State’s theory was that after S.M. decided to end the relationship there was a violent quarrel, and Villanueva raped her. Villanueva acknowledges the quarrel but denies raping S.M. This is the second trial, with the first ending when the jury was unable to reach agreement. Additional facts will be discussed as necessary under each of the issues raised on appeal.
Expert Opinion Testimony
Michele Paynter is a social worker employed as a clinical coordinator for the Metropolitan Organization to Counsel Sexual Assault (MOCSA) located in Kansas City, Missouri. Her duties include supervision of other social workers and individually working with victims of rape.
After the first trial ended in a hung jury, the State moved to endorse Paynter as an expert witness regarding rape trauma syndrome and to further testify regarding the content of S.M.’s clinical file maintained at MOCSA. After the rape, S.M. received counseling services from Shannon Hobbs, a social worker employed by MOCSA. Paynter was Hobbs’ supervisor at MOCSA. At the time of the second trial, Hobbs no longer worked for MOCSA. During the period of time MOCSA provided counseling services to S.M., Michele Paynter had no direct contact with her.
Villanueva filed a motion in limine, arguing Paynter was not qualified to testify as an expert witness regarding rape trauma syndrome. The trial court agreed and also specifically ruled Paynter would not be allowed to testify as to the signs and symptoms of the syndrome. However, the court further ruled, under the business records exception to the hearsay rule, Paynter would be allowed to testify as to the content of S.M.’s clinical file. Inexplicably, the trial court’s order was not followed when Paynter testified before the jury.
The following are excerpts of Paynter’ s testimony on direct examination:
“Q. . . . [W]hat is your educational background?
“A. I have a Bachelor in Social Work and I have some post graduate work in clinical psych.
“Q. In order to be a licensed clinical social worker, is it necessary for you to have a masters or a post bachelor degree?
“A. No. You can get licensure on a bachelor level as well.
“Q. Okay. Do you have that license?
“A. No, I do not.
“Q. ... In your training and experience, have you learned what symptoms are common in a woman who has been the victim of a rape?
“A. Yes, sir.
“Q. . . . Are you—you’re—fair to say you’re not qualified to diagnose [victims of rape] with any—
“A. No, I do not do that.
“Q. —psychological disorders?
“A. Right.
“Q. Okay.
“A. But I keep a DSM 4 handy.
“Q- ... In the—in the course of your employment [at] MOCSA and your years in seeing clients and your years of training, have you—are you able to say if there is a common set of symptoms or behavior that is displayed by a victim of rape?
“A. Yes, I—I can say that.
“Q. Can you describe some of those characteristics to the jury?
“A. Yes. They vary of course from individual to individual, but many of the symptoms that I have seen and are clinically researched include depression, displacement of anger, self blame, some self-destructive patterns which may include alcohol abuse, promiscuity, self-mutilation, even manifestation of eating disorders.
“Q. . . . The list of symptoms you just described, is it fair to say that is not a comprehensive list?
“A. It is fair to say that.
“Q. Okay.
“A- This is [an] overall' diagnosis for those symptoms, but as the defense attorney has already eluded to, I am not able to make that diagnosis.
“Q. Okay. And, in fact, you have not diagnosed [S.M.] with anything, have you?
“A. I have never diagnosed any of my clients.
“Q. Okay. Great. In your—in the treatment of [S.M.] at MOCSA, was it documented whether she displayed any of those classic characteristics of a victim of rape?'
“A. Yes, it was.
“Q. Specifically what?
“A. Shall I read this?
“Q. Please.
“A. Okay. This was an assessment given by Ms. Hobbs. At the end of each month, as clients see the specialist, we are to assess what their overall impact is and what their impressions were in those sessions. Every week that specialist sees [S.M.], she appears to be more depressed. Appears is the operative word that keeps us from being legal trouble. She has been to court one time and is nervous with the upcoming court confrontations with her alleged rapist.
She states that she cries a lot and even with the help of medication, she is having difficulty with her seeming depression. [S.M.] has many feelings that she wants to work on and she states that once she resolves some work—that once she resolves some of her issues, she knows that she will feel better. However, [S.M.] still seems scared to explore some of those feelings. At the end, the intervention specialist identifies that she Will continue the cognitive process which is the modality that we follow in my department and it is an offset of Dr. Albert Ellis’ (ph) work on rationally motive therapy.
“Q. Okay. That’s a lot of big, big words.
“A. Right.
“Q. I’ll admit I don’t understand all of it.
“A. Basically it’s looking at the maladaptive thinking patters that trauma victims can possibly have after a trauma.
“Q. Okay. And that type of thinking—those thinking patterns are present in [S.M.]?
“A. Yes.
“Q. Okay.
“A. As it appears here.
“Q. And anything else that stands out about [S.M.]’s behavior or—
“A. In essence so as not to read verbatim here, it appears that Ms. Hobbs wrote about some possible avoidant behavior and by that I mean many times trauma victims will express anxiety in coming to these crisis intervention counseling sessions and so they may not show without any call to the person with whom they are interacting and that is very, very common.
“Q. Okay. Anything else that stands out to you as important for the jury to know?
“A. Just an ongoing identification of depression—
“Q. Okay.
“A. —and denial.
“Q. Thank you.
“A. Those two things.
“Q. Denial of what?
“A. Denial that this alleged violation really in fact happened to her and that is very, very common with rape victims. I can’t believe that this happened to me.” (Emphasis added.)
The use of expert testimony at trial is controlled by K.S.A. 60-456. In order to testify as an expert, a witness must be skilled or experienced in the field to which the subject relates. State v. McClain, 216 Kan. 602, 606, 533 P.2d 1277 (1975). Whether a witness is qualified as an expert is left to the sound discretion of the trial court. State v. Colwell, 246 Kan. 382, Syl. ¶ 7, 790 P.2d 430 (1990).
In determining whether the trial court erred, we find instructive State v. Willis, 256 Kan. 837, 888 P.2d 839 (1995).
Willis was convicted of rape, and the issue on appeal was whether the trial court erred in admitting expert testimony from a licensed social worker that the victim suffered from post-traumatic stress disorder and rape trauma syndrome. At trial, Ruth Durham, the alleged victim’s outpatient therapist from a mental health center, testified the victim’s behavior was consistent with rape trauma syndrome and that the victim suffered from post-traumatic stress disorder.
The Supreme Court concluded the trial court abused its discretion in permitting Durham to give expert testimony regarding rape trauma syndrome. In its opinion reversing Willis’ conviction, the court stated:
“While Ruth Durham was eminently qualified as a social worker, having been licensed by the behavioral sciences regulatory board, her background, experience, and licensure did not qualify her to diagnose medical and psychiatric conditions such as post-traumatic stress disorder.
“[F]or a witness to qualify as an expert on post-traumatic stress disorder and rape trauma syndrome, the witness must possess special training as an expert in that field of psychiatry. Such testimony should be limited to experts with training in the field of post-traumatic stress disorder and rape trauma syndrome and possessing the professional qualifications to make appropriate diagnoses thereof. A clinical social worker with a masters degree in social work falls well below that mark.” 256 Kan. at 846-47.
Also helpful to our analysis is State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989). At trial, Helen Swan, a licensed social worker, testified for the State. Swan evaluated the alleged victim on two different dates for a total of about 4 hours. There was no question but that Swan was a recognized expert in child sexual abuse cases. Justice Herd, writing for the court, summarized Swan’s testimony as follows:
“Swan did not use the term post-traumatic stress syndrome before the jury, but testified that children who are sexually abused tend to report fairly consistent symptoms or common patterns of behavior resulting from the trauma. She noted children seldom report sexual abuse immediately, ‘particularly within family situations.’ The great majority ‘tend to keep it inside because they think it will' go away or they don’t want to embarrass people or they don’t want to embarrass themselves.’
“Swan testified she had sufficient data to form an opinion as to whether the victim showed symptoms consistent with sexual abuse. She was of the opinion the victim exhibited behavior consistent with a child who had been sexually abused.
“While the briefs of both parties leave the impression Swan testified the victim suffered from post-traumatic stress syndrome or rape trauma syndrome, that did not occur. The record is clear that Swan testified only as to traits and patterns common to victims of sexual child abuse and that the victim exhibited some of these traits. She did not go into an explanation of the post-traumatic stress syndrome, nor did she try to narrow it to rape trauma syndrome.” 244 Kan. at 308-09.
Here, Paynter was not licensed nor did she have a master’s degree. We acknowledge she did have considerable practical experience in counseling rape victims. At trial, she was portrayed as having expert credentials and permitted to testily as to the signs and symptoms common to rape trauma syndrome notwithstanding the trial court’s pretrial ruling.
Paynter’s testimony went far beyond providing the jury with S.M.’s statements and demeanor during counseling sessions with the absent social worker Shannon Hobbs.
Paynter testified she was not qualified to diagnose the psychological disorders of rape victims but informed the jury she kept a diagnostic manual handy; she then proceeded to tell the jury there were common signs and symptoms displayed by rape victims. Finally, she volunteered there was an overall diagnosis for those symptoms, but “as the defense attorney has already eluded to, I am not able to make that diagnosis.” Paynter dren went to S.M.’s counseling records to establish whether S.M.’s signs and symptoms shared the characteristics of a rape victim.
In our opinion, Paynter’s testimony is analogous to stating: “If it walks like a duck, quacks like a duck, and has feathers like a duck, you the members of the jury must decide what it is because I’m not allowed to tell you.” Under the totality of circumstances, we> believe the factual pattern in this appeal is more akin to Willis than to Reser. Paynter did not have the professional qualifications to render a medical diagnosis and should not have been allowed to give diagnostic testimony while informing the jury with a wink and a nod she was precluded from naming the disorder. Additionally, we find troubling the overruling of Villanueva’s timely objections to Paynter’s testimony notwithstanding the objections were consistent with the pretrial rulings. We hold the trial court erred in not curtailing Paynter’s testimony.
Prosecutorial Misconduct
Villanueva argues the State engaged in prosecutorial misconduct when the prosecutor made the following comments during closing rebuttal: “The funny thing is that’s not the—that’s not the only rape that took place in this case. The second rape . . . took place when she had to come in here and had her character attacked and her memory attacked.”
Villanueva objected, and the court directed the State to move onto another topic.
Before turning to an analysis of the issue, we briefly will comment upon the trial court’s tepid response to “move on.” The court’s response is ambiguous and falls far short of sustaining the defendant’s objection. Moreover, the court clearly did not instruct the jury to disregard the statements. We conclude, if the prosecutor’s statements were improper, the trial court’s retort was not sufficient to cure the error. See State v. Magdaleno, 28 Kan. App. 2d 429, 437, 17 P.3d 974, rev. denied 271 Kan. 1040 (2001).
The standard of appellate review as to an issue of prosecutorial misconduct in closing argument is:
“The analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process. First, the appellate court determines whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that in criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Second, the appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, requiring reversal. [Citations omitted.]” State v. McCorkendale, 267 Kan. 263, 278-79, 979 P.2d 1239 (1999).
Additionally, “K.S.A. 60-261 imposes a duty on the trial court to protect a defendant’s right to a fair trial. The trial court is required to prevent prosecutorial misconduct from occurring regardless of whether a timely objection has been lodged to the improper conduct.” State v. Holmes, 272 Kan. 491, Syl. ¶ 2, 33 P.3d 856 (2001).
The State acknowledges in its written brief that trial counsel’s remarks were ill considered, stating:
“The State acknowledges that the prosecutor used a poor choice of words to make a legitimate point. The State wanted the jury to consider S.M.’s testimony in light of the vigorous cross-examination by [defendant’s attorney]. The comments were intended to bolster the credibility of S.M. by pointing out her calm underpressure. The comments were not intended to disparage [defendant’s attorney] nor the defendant. However, this point was never made.”
We conclude the prosecutor’s remarks were not only intemperate but an explicit appeal to the prejudices of jurors. The more substantial question is whether the statements, considered under the totality of circumstances, denied Villanueva a fair trial.
“When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors? [Citation omitted.]” State v. Perrigo, 10 Kan. App. 2d 651, 654, 708 P.2d 987 (1985).
Our review of the evidentiary trial proceedings, including the jury instructions, persuades us the prosecutor’s remarks did not deny Villanueva a fair trial. Ill will is not evident. Indeed, in arguing the defendant’s motion for new trial, his attorney acknowledged he did not believe the prosecutor made the comments with any intent to disparage counsel. Finally, the evidence against Villanueva is so substantial that the misconduct would likely have had little, if any, weight in the minds of jurors.
Failure to Give Unanimity Instruction
Villanueva argues his right to a unanimous verdict was violated because the State presented evidence of digital and penile penetration and no unanimity instruction was given. As Villanueva did not request the instruction, we review únder a clearly erroneous standard. See State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995).
This issue is without merit for two reasons. The underlying facts support a conclusion Villanueva’s attack on S.M. was one continuous event. Thus, no multiple acts instruction is required. See State v. Staggs, 27 Kan. App. 2d 865, Syl. ¶ 2, 9 P.3d 601, rev. denied 270 Kan. 903 (2000).
Additionally, in State v. Hill, 271 Kan. 929, Syl. ¶ 3, 26 P.3d 1267 (2001), affirming 28 Kan. App. 2d 28, 11 P.3d 506 (2000), the Supreme .Court held that a two-step analysis must be applied to determine whether the failure to give a unanimity instruction resulted in harmless error. First, there must be a determination of whether the jury could have been confused or if the record indicates the presence of legally or factually separate incidents. A legally separate incident is one in which the defendant presents different defenses to different facts. A factually separate incident is when independent crimes occur at different times or a later crime is motivated by a “fresh impulse.” In the present case, there is no indication the juiy was confused. Also, Villanueva did not present different defenses to the different types of penetration, and the acts were not factually separate. Here, just as in Hill, the juiy rejected Villanueva’s general denial of all acts and accepted S.M.’s version. Under these circumstances, the failure to give a unanimity instruction does not constitute prejudicial error.
Cumulative Error
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against tire defendant.’ State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).” State v. Bedford, 269 Kan. 315, 332-33, 7 P.3d 224 (2000).
Although we have held error did occur in Villanueva’s trial, we do not believe, under the totality of circumstances, that the error cumulatively caused any undue prejudice. The evidence of Villanueva’s guilt is strong and persuasive. His testimony at trial was inconsistent and substantially discredited. Social worker Paynter’s expert testimony went too far because she was not properly qualified as a psychiatric witness. However, it does appear she was qualified by training and experience to testify as to common patterns of behavior shown by rape victims and that S.M. exhibited some of that behavior during counseling. Finally, for the reasons previously stated, we do not believe the limited statements made by the prosecutor in closing argument, although inappropriate, had any effect on the jury’s determination of Villanueva’s guilt or innocence. We conclude that although Villanueva did not receive a perfect trial, he did receive a fair trial, and the underlying conviction of rape should not be reversed.
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Hill, J.:
In this appeal, the Estate of Everett H. Wikoff (Estate) appeals the jury’s award to Clyde and Thomas Rodreick of future medical expenses. The Estate also argues that the court improperly admitted a deposition into evidence in lieu of testimony and should have imposed a sanction for not complying with a reasonable discovery request. We affirm.
Clyde Rodreick, 73, is the father of Thomas Rodreick. On October 19, 1996, Wikoff drove his vehicle into the rear of the Rodreick vehicle while their vehicle was stopped at a stoplight. Both Clyde and Thomas suffered whiplash and resulting neck pain and stiffness.
At the conclusion of the trial, the jury found Wikoff 100% at fault. The jury awarded $21,000 for future medical expenses to Clyde out of a total award of $43,473.64. The jury also awarded Thomas $10,000 in future medical expenses for a total of $34,203.16. The trial court denied Wikoff s motion for judgment notwithstanding the verdict and his motion for sanctions.
Wikoff is now deceased. His estate brings forward three issues in this appeal:
(1) Did the court properly admit the deposition of Rodreick’s expert witness instead of live testimony, when the witness’ office was less than 100 straight-lines miles from the site of the trial?
(2) Does the record contain sufficient evidence to support the amount of future medical expenses awarded by the jury to each plaintiff?
(3) Did the.court err in refusing to impose sanctions against the defendant for a claimed failure to produce discoverable material?
During the trial, the Rodreicks presented the deposition of C. Reiff Brown, M.D. Dr. Brown is an expert retained by both Rodreicks to evaluate the extent of their injuries. The trial of this case was conducted in Great Bend. Dr. Brown lives in Wichita.
Suspecting that the Rodreicks intended to submit Dr. Brown’s deposition to the jury rather than produce him at trial, Wikoff filed a motion in limine seeking to exclude Dr. Brown’s deposition. Along with the motion in limine, Wikoff submitted an affidavit by his own expert which maintained that the straight-line distance between Dr. Brown’s location in Wichita and the courthouse in Great Bend was just over 95 miles. Wikoff argued that since Brown lived less than 100 miles from the site of the trial, he should be compelled to testily in person.
The Rodreicks responded to the motion, arguing that Dr. Brown would be forced to travel 114 miles by road to reach the place of trial and, therefore, should be considered unavailable, and urged the trial court to deny the motion.
This matter was brought before the trial court over the weekend just before the trial. The trial judge conducted a hearing from her home over the telephone. That hearing is not transcribed, but the parties and the trial court orally recounted the proceeding for the record on the first day of the trial. The trial judge stated:
‘Well, as Mr. Wright has pointed out that I have overruled the motion in limine and determined, according to a reasonable interpretation and relying on the official mile map that the Court uses, it’s 114 miles to Wichita from Great Bend, and reasonable interpretation seems to me that it would be the distance that one has to travel from here to there, and that we can rely on the official map that is published by the State of Kansas in determining the mileage in this case; otherwise, you probably just simply get to taire the interpretation and raise a lot of issues and questions about from like what to what point to determine die mileage. In any event, we’re going to allow—I’m going to allow using the videotaped deposition of Doctor Brown.”
Wikoff renewed his objection to the use of the deposition just before it was admitted at trial.
Wikoff argues that the trial court’s recitation does not sufficiently show the method by which the court determined the distance. Wikoff suggests that the court may have determined that the straight-line distance was 114 miles and rejected the affidavit filed by the Rodreicks. We find no deficiency in the record, for it is apparent the trial court used the official state map to compute travel distances and not straight-line distances.
The 2000 Official State Transportation Map, published by the Department of Transportation, denotes a 114-mile distance on its distance table between Great Bend and Wichita. The table provides that “[a]ll distances were calculated using the shortest State, U.S., Interstate and Kansas turnpike route combinations.” This corresponds to the findings of the trial court on this issue.
This question boils down to whether K.S.A. 2000 Supp. 60-232(a)(3)(b) contemplates an outer range of 100 straight-line miles or whether the statute allows a party to substitute deposition testimony for a witness who would be forced to travel more than 100 miles by road to the site of the trial.
K.S.A. 2000 Supp. 60-232 provides:
“(a) Use of deposition. At the trial . . . any part or all of a deposition . . . may be used against any party who was present or represented at the taking of the deposition ....
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that:
(B) the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state of Kansas, unless it appears that the absence of the witness was procured by the party offering the deposition.”
This is an issue of first impression.
We interpret this statute de novo. Our goal is to implement the intent of the legislature according to the plain language of the provision in question. See City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956(1993).
In making this interpretation, we are not limited to the language used in the statute but can look at the background and circumstances surrounding the passage of the statute. “ In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.’ ” 253 Kan. at 436.
The Estate argues that the straight-line measurement is the accepted federal method of determining distance. The appellant sug gests that the interpretations of similar rules by our federal courts offer guidance. F. R. Civ. Proc. 32(a)(3)(B) is virtually identical to the Kansas rule. In SCM Corp. v. Xerox Corp., 76 F.R.D. 214, 215-16 (D. Conn. 1977), the court determined Federal Rule 32 contemplated a straight-line measurement. The Estate urges us to proceed in lockstep with the federal courts and adopt the view presented in SCM.
SCM attempted to unify interpretations of rules about attendance of witnesses, F. R. Civ. Proc. 32(a)(3)(B), with rules regarding subpoenas and summonses, F. R. Civ. Proc. 45(c)(3)(A)(ii) and (e)(1) and F. R. Civ. Proc. 4(f) (now F. R. Civ. Proc. 4[k]). Rules 45 and 4 limit the reach of subpoenas or summonses to 100 straight-line miles of the courthouse. The SCM court stated:
“Uniform interpretation of the 100-mile provision in all three rules achieves several benefits. It modestly expends the reach of civil trial subpoenas, thus promoting the favored policy of affording the trier an opportunity to hear witnesses in person. [Citation omitted.] It avoids trivial disputes as to which actually are the ordinary, usual, and shortest routes of travel. Finally, it eliminates the anomaly that would otherwise exist of a plaintiffs being able to sue a person within 100 air miles of the courthouse, but not being able to present that defendant’s live testimony to the trier when the defendant lives more than 100 travel miles away.” SCM, 76 F.R.D. at 215-16.
We believe that the legislature intended for depositions to be substituted for witnesses if the witness was beyond the subpoena power of the court. Therefore, we recognize at the outset that any interpretation we make concerning our rule about substituting depositions for live testimony will affect future interpretations of the reach of a court’s subpoena power under K.S.A. 2000 Supp. 60-245 (similar to federal rule 45). But, we hasten to point out that in K.S.A. 2000 Supp. 60-245(c)(3)(A)(ii), the statute directs a court to quash or modify a subpoena if it requires a resident of this state, who is not a party, to travel more than 100 miles from the place where that person resides or regularly transacts business, absent a showing of substantial need. To us, this language explicitly focuses on the distance traveled, not the geographical distance between the courthouse and the witness’ location. We believe that this is a more reasonable interpretation than the view taken by the federal courts when they ignore similar language in Rule 45. See F. R. Civ. Proc. 45(c)(3)(A)(ii).
We interpret K.S.A. 2000 Supp. 60-232(a)(3)(B) to mean that a deposition may be substituted for testimony if the witness would be forced to travel more than 100 miles to the place of trial and not 100 straight-line miles. Human beings travel not as the crow does but by means of transportation. We think that the method employed by the trial court, examining the official travel map published by the Kansas Department of Transportation, is a reasonable and effective way of solving such disputes.
Besides, we do not view the admission of this deposition as a substantial trial error. Rather, we believe if there was an error, it was harmless in this instance. Harmless error is error which does not prejudice the substantial rights of a party. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715 P.2d 2 (1986). The parties took Dr. Brown’s deposition in this case, and Wikoff had the opportunity to pose questions to the doctor about future medical expenses. The Estate argues that it had no notice that Thomas was claiming future medical expenses until Thomas took the witness stand. Thus, the Estate says it did not cross-examine Dr. Brown regarding Thomas’ future medical expenses during his deposition. The Estate concludes by saying that had Dr. Brown been available at trial in person, the Estate would have been able to cross-examine him on the extent of Thomas’ future expenses.
We find this argument to be speculative. We see no plausible reason why Wikoff should not have questioned the doctor about such an issue during the course of the deposition. Wikoff seems to assume that the Rodreicks would have called Dr. Brown to the stand after Clyde and Thomas had testified, permitting Wikoff to work from their testimony into his cross-examination of Dr. Brown. Dr. Brown could have been called to testify before the Rodreicks. Finally, when Dr. Brown did not offer any substantial testimony specifically regarding Thomas’ future medical expenses at the deposition, it seems to us that Wikoff had the same opportunity he would have had at the trial to explore the omission. We find no significant prejudice. Any error is harmless. As appellant, Wikoff has the burden to show prejudice. We conclude that the Wikoff Estate has not proven prejudice on this ground.
Turning to the second issue, we examine the sufficiency of the evidence. Insofar as jury awards for future medical expenses, a reviewing court will not reverse or direct a remittitur unless the amount awarded shocks the court’s conscience. See Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 115, 883 P.2d 1120 (1994).
We review the evidence concerning Clyde and Thomas separately. With respect to Clyde, Dr. Brown gave the opinion that he would require occasional periods of physical therapy and medication for pain management. Typically, the treatment involved 2-3 sessions per week. The therapy sessions following the accident cost anywhere from $300 to $665. Additionally, Clyde testified that he spent approximately $40-50 in pain medication each month. He testified that he did not keep a record of expenses for his medication. There is no testimony regarding how often he would seek future care or whether a medical or surgical procedure could be necessary in the future. We believe that this evidence is sufficient to warrant submitting the question of future medical expenses to the jury. Dr. Brown testified that Clyde’s condition was permanent. With Clyde’s testimony that he continues to take pain medication, we believe that this supports the jury’s finding that Clyde would face continuing medical treatment.
With respect to the amount of the award, we understand that the trial court told the jury that at age 73, Clyde had a life expectancy of 14 years. Ten additional physical therapy sessions over his lifetime could cost nearly $6,500. At $500-600 per year, Clyde could spend around $7,000 on pain medication. This totals $13,500. Therefore, the jury’s award of $21,000 based upon such facts is not outrageous and does not shock the conscience of this court.
On the other hand, Thomas’ case for future medical expenses is less strong but still exists. Dr. Brown testified that Thomas’ symptoms would continue to bother him indefinitely. Brown gave the opinion that Thomas would continue to have intermittent flare-ups and discomfort. Based upon this testimony, the jury could reasonably conclude that Thomas would need further treatment.
The record reveals that a round of intensive chiropractic treatment until February 1997 was required for Thomas. At that point, the treating chiropractor indicated that Thomas had reached maximum improvement. For this, the chiropractor charged Thomas an average of $30 per visit for 13 visits during 1997. This equaled $390 with additional charges for x-rays and lab work. The chiropractor also gave tire opinion that Thomas would need periodic care to maintain his health.
In his own behalf, Thomas submitted receipts for prescription pain and muscle relaxant medications. Some of the prescriptions cost more than $100. There is no evidence Thomas would require consistent medical care, nor was there evidence that Thomas would require regular pain medication after the period of acute care following the accident. The trial court instructed the jury that Thomas’s age was 42, and he had a life expectancy of 34 years.
The award of $10,000 for future medical expenses does not shock our consciences. We compare Smith, where the jury had awarded $35,000 in future medical expenses, surpassing the Supreme Court’s own projection based on its reading of the record of $11,043. Smith held such a disparity did not “shock the conscience of the court.” 256 Kan. at 118. We are not compelled to reverse.
We turn now to the sanctions issue. At the end of the trial, the Estate moved for sanctions. The Estate made a discovery request to the Rodreicks for any and all documents, correspondence, memoranda, and written materials of any kind in support of the amount of damages for which recovery was sought in this action. It argued to the trial court that it was “blind-sided” because the Rodreicks failed to present any written receipts or other proof to show the value of die medications they continued to take. The Estate now implies that the Rodreicks concealed die true cost of their medication.
The imposition of sanctions is within the sound discretion of the trial court. We review such decisions on a basis of abuse. See New Dimensions Products, Inc. v. Flambeau Corp., 17 Kan. App. 2d 852, 860-61, 844 P.2d 768 (1993). The object of a sanction should be to prevent the party against whom sanctions are being imposed from profiting by its own violation. Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 80, 589 P.2d 643, rev. denied 225 Kan. 844 (1979).
A careful reading of the record does not reveal that Clyde or Thomas wilfully concealed or destroyed material that could be considered discoverable. A more reasonable interpretation of the record is that they did not keep the receipts and the documents are, therefore, simply not available for discovery. Clyde relied on his oral testimony alone to support his request for damages. This issue goes to the weight of the evidence, but the record does not establish any pattern of wrongdoing by the Rodreicks.
We find that the trial court’s refusal to sanction Clyde or Thomas reasonable and not an abuse of discretion.
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Green, J.:
Peter J. Dugan appeals the trial court’s determination that the State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), exceptions to the requirement of a timely filed notice of appeal do not apply in this case. On appeal, Dugan argues that the trial court erred in making this determination. We disagree and affirm.
Dugan pled guilty to robbery as the result of a plea agreement with die State. On May 26, 1998, Dugan was sentenced. At sentencing, Dugan’s attorney requested a dispositional departure, noting that Dugan fell within a presumptive incarceration box on the sentencing grid. The trial court denied Dugan’s motion after finding insufficient compelling reasons for a departure. Dugan was sentenced to the presumptive sentence of 41 months’ incarceration.
On April 8, 1999, nearly a year after he was sentenced, Dugan filed a notice of appeal. On September 7, 1999, this court remanded the case to the trial court for a determination of whether the statutory requirement of a timely filed notice of appeal could be excused under one of the exceptions set forth in Ortiz.
At the Ortiz hearing, Dugan’s trial attorney, Patrick Lewis, testified that he told Dugan that the denial of a motion for dispositional departure could not be appealed. Lewis further testified Dugan indicated that he wanted to appeal the denial of the departure motion despite the rule prohibiting such an appeal, and Lewis believed he told Dugan he could file a pro se appeal. The trial court determined that the case law exceptions of Ortiz did not apply.
The sole issue on appeal is whether the trial court erred in finding that the exceptions set out in Ortiz are not applicable to condone Dugan’s tardy filing of his notice of appeal. Dugan contends that his untimely appeal should be excused by his attorney’s failure to perfect an appeal that he requested. The State, on the other hand, contends that because a presumptive sentence is not appealable, the Ortiz exceptions are not applicable.
Whether any of the exceptions set forth in Ortiz excuse Dugan from not filing a timely appeal is a question of law over which this court has unlimited review. See State v. Parker, 23 Kan. App. 2d 655, 658, 934 P.2d 987, rev. denied 262 Kan. 967 (1997).
In State v. Thomas, 21 Kan. App. 2d 504, 506-07, 900 P.2d 874 (1995), Thomas attempted to appeal the finding that he was ineligible for retroactive application of the Kansas Sentencing Guidelines Act, an issue that could not be appealed because he was bound by his stipulation that he was ineligible for retroactive application. On appeal, Thomas argued that the trial court erred in refusing to permit him to appeal out of time based on the Ortiz exceptions. The Thomas court noted that “[t]he rule developed in Ortiz allowing appeals out of time was developed in the interest of fundamental fairness,” however, fundamental fairness did not justify permitting Thomas’ untimely appeal because “were Thomas allowed to appeal out of time, no relief would be available.” The Thomas court concluded by holding “the Ortiz exception does not apply when an appeal would clearly raise no issues this court could address.” 21 Kan. App. 2d at 506-08.
The court relied on Thomas in Parker, 23 Kan. App. 2d at 659. In that case, Parker sought to appeal from a presumptive sentence by claiming he was not given his right to allocution. The Parker court found that because a presumptive sentence may not be appealed, even when a motion to depart is denied, “Ortiz does not and cannot afford an appeal to a defendant where one does not exist by law.” 23 Kan. App. 2d at 660.
Similarly, Dugan’s original appeal raises an issue this court is precluded from addressing. K.S.A. 21-4721(c)(l) states that a defendant may not appeal a sentence that falls within the presumptive range, even if the trial court denied a motion for departure. See State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000). The Ortiz exception cannot operate to save Dugan’s untimely appeal because the appeal raises no issues this court could address. Because this court lacks jurisdiction to entertain Dugan’s original appeal from a presumptive sentence and because Ortiz does not operate to supply such jurisdiction, the trial court did not err in finding that the Ortiz exceptions do not save Dugan’s untimely appeal.
Finally, the State has moved for attorney fees on appeal and costs for reproducing its brief under Supreme Court Rule 7.07(c) (2000 Kan. Ct. R. Annot. 52). The State contends that it is entitled to attorney fees because Dugan’s appeal is frivolous in that he appealed the imposition of a presumptive sentence which is precluded under K.S.A. 21-4721(c)(l).
Rule 7.07(c) provides: “If the appellate court finds that an appeal has been taken frivolously ... it may assess against an appellant or appellant’s counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney fee for the appellee’s counsel.”
Although this rule appears to give the appellate courts blanket authority to order attorney fees based on frivolous appeals, Kansas follows the American Rule that courts do not have authority to award attorney fees except when authorized by statute or agreed to by the parties. See 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 906. See Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1009-10, 894 P.2d 260 (1995).
Unlike K.S.A. 2000 Supp. 60-211, which provides for assessment of attorney fees against an opposing party in frivolous civil matters, there is no statutory authority imposing liability for filing frivolous motions or papers in a criminal case. As a result, this court lacks authority to award the State attorney fees on appeal.
The State also requests costs for reproducing its brief under Rule 7.07(c). We agree with the State’s characterization of Dugan’s appeal as “frivolous.” In Blank v. Chawla, 234 Kan. 975, 982, 678 P.2d 162 (1984), the court defined a frivolous appeal as one in which no justiciable question has been presented and the appeal is readily recognized as devoid of merit in that there is little prospect that it could succeed. This case fits that definition. Dugan’s untimely appeal on the merits failed to raise a justiciable question because his presumptive sentence may not be appealed. Moreover, his appeal on the denial of the Ortiz exceptions is based on his original appeaL which was devoid of merit. As a result, we award the State judgment against Dugan in the amount of $31.20 for the costs of printing its briefs. We stress that the award is assessed against Dugan personally, not his appellate defender, because Dugan insisted on the initial appeal even though his trial counsel told him the presumptive sentence was not appealable.
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Paddock, J.:
Plaintiff Kenneth P. Seek appeals the district court’s dismissal of his mandamus action pursuant to the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq., to open the investigatory records of the death of Elaine Beckers Braun held by the defendants, the City of Overland Park and the Overland Park Police Department.
In 1997, Elaine Beckers Braun, a former Johnson County Commissioner, was found dead in a parking lot. After an investigation, Braun’s death was determined to be a suicide.
Thereafter, the plaintiff requested the police records pertaining to Braun’s death, but the defendants denied the request. The plaintiff then filed suit in mandamus, seeking an order from the court to disclose the records pursuant to the KORA.
When the defendants filed a motion to dismiss, the plaintiff responded with a request to depose Police Chief John Douglass, the custodian of the records sought. The district court denied the plaintiff s motion to depose the chief of police. After a hearing, the court also denied the plaintiff s suit, finding that the records sought fell within the criminal investigation exception to the disclosure of public records under the KORA.
The district court denied the plaintiffs motion for a new trial or to open, alter, or amend the judgment. The plaintiff appeals.
Although the plaintiff presents little argument to support his claim that the district court erred in refusing to order disclosure of the police records, he apparently contests the court’s conclusion that these records qualify for the criminal investigation exception provided by K.S.A. 1999 Supp. 45-221(a)(10).
Determining whether the district court correctly applied the KORA is a question of law, involving an interpretation of the statute; therefore, this court’s review of the district court’s interpretation is plenary. See Burroughs v. Thomas, 23 Kan. App. 2d 769, 770-71, 937 P.2d 12, rev. denied 262 Kan. 959 (1997).
K.S.A. 1999 Supp. 45-217(b) defines criminal investigatory records to include the records of a criminal justice agency “compiled in the process of preventing, detecting or investigating violations of criminal law.” Although the statute does not define criminal justice agency, the plaintiff does not contend, nor is there any reasonable doubt, that the Overland Park Police Department qualifies as a criminal justice agency.
Instead, the plaintiff questioned whether the records compiled by the police department in the course of investigating Braun’s death qualify as records “compiled in the process of preventing, detecting or investigating violations of criminal law.” He argues that because the death was declared a suicide, the investigation was not designed to unearth a violation of criminal law.
The district court properly rejected the plaintiff s interpretation of what constitutes a criminal investigation. The Kansas Supreme Court has noted that the legislative intent behind a criminal investigation exception to the KORA is to protect innocent people whose names might be involved in the investigation, either as possible suspects or as informants. See Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 67, 734 P.2d 1083 (1987). Until a death has been declared a suicide, it may be a potential homicide. Therefore, a police investigation of a death, even when it is ultimately declared a suicide, may contain names of innocent individuals who were suspects or merely informants. Considering the legislative intent behind the criminal investigation exception, the Overland Park Police Department investigation of Braun’s death qualifies as “the process of preventing, detecting or investigating violations of criminal law.” The defendants are not compelled by the KORA to disclose the records relating to Braun’s death.
However, K.S.A. 1999 Supp. 45-221(a)(10) provides that a district court may order disclosure of criminal investigation records if the court finds that disclosure would satisfy several criteria imposed by statute. Even if all of the statutory criteria is present in a given case, the district court has discretion to deny disclosure. See Harris Enterprises, Inc., 241 Kan. at 65. As a result, this court is limited to reviewing the district court’s decision for an abuse of that discretion. Judicial discretion is abused when it is arbitrary, fanciful, or unreasonable. If any reasonable person would take the position taken by the district court, reversal is unwarranted. See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998).
After viewing the records in camera and hearing the arguments of the parties, the district court concluded that the plaintiff had failed to establish a public interest requiring the disclosure of the records. The court further concluded that disclosing the records might jeopardize the physical safety of a person contained therein. This finding is reasonable.
The plaintiff alleged that Braun’s death involved a public interest due to her position as a former Johnson County Commissioner and due to the amount of press coverage her death received. He also alleged that Braun’s death raised questions of drug or alcohol use, and he questioned a police cover-up relating to some ulterior motive on the part of the police department. The district court responded that nothing in the records would assist the plaintiff in addressing his question regarding Braun’s death and that the only other public interest involved was mere curiosity.
The Supreme Court in discussing the meaning of “public interest” in 45-221(a)(10)(A) held that die interest “must be a matter which affects a right or expectancy of the community at large and must derive meaning within the legislative purpose embodied in the statute.” Harris, 241 Kan. at 66. Mere curiosity about the circumstances surrounding an investigation is not sufficient.
Of the plaintiff s assertions, only his claims concerning suspected drug or alcohol use or official corruption provide any basis for disclosure. The allegations concerning Braun’s drug or alcohol use were put to rest by the autopsy report which was released to the plaintiff, leaving only the allegations of official corruption.
In Harris, the Olathe newspaper sought release of criminal investigation records to determine whether the police had mishandled the investigation by using fire department personnel to pro cess the crime scene, delaying the use of an elite investigation unit, possibly postponing the identification of the individual involved with the crime, and applying improper methods to solve the crime. Although the court ultimately concluded that the newspaper had presented legitimate public interest in the records, it held that the district court had not abused its discretion in refusing to disclose the records because they contained no information that would promote those public interests. 241 Kan. at 66-67.
Likewise, in the instant case, even if the plaintiff s mere allegation of official corruption presented a sufficient basis for the district court to conclude that a valid public interest was at issue, the district court’s review of the records in camera revealed that the records would not assist the plaintiff s allegations. Therefore, according to the Harris opinion, the district court did not abuse its discretion in refusing to disclose the investigation reports to the plaintiff.
The plaintiff also contends that the district court should have allowed him to depose Police Chief John Douglass to support the allegations in his motion. Again, the standard of review is abuse of the district court’s discretion. See Hill, 263 Kan. at 704.
The district court stated that, other than informing the plaintiff of matters contained within the investigation records, the witness could not provide any information that would enable the plaintiff to demonstrate that the records were of public interest, thus, persuading the court to disclose the information contained within the records.
Since nothing contained within the records would promote a public interest, the plaintiffs motion in mandamus must fail regardless of any information he obtained from the custodian of the records, John Douglass. Therefore, the district court did not abuse its discretion in denying the plaintiff s request to depose Douglass.
Finally, the plaintiff argues that the district court erred in denying him a new trial or, in the alternative, failing to.open, alter, or amend the judgment. He appears to claim that the district court violated his due process rights by failing to give adequate notice of the hearing in which the district court dismissed the case.
Whether a party to civil litigation is entitled to a new trial is a matter within the sound discretion of the district court, and the decision denying or granting a new trial will not be disturbed on appeal absent a showing of an abuse of discretion. See Hoover v. Innovative Health of Kansas, Inc., 26 Kan. App. 2d 447, 454, 988 P.2d 287, rev. denied 268 Kan. 886 (1999) (citing Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 458, 856 P.2d 906 [1993]).
However, an abuse of discretion resulting in constitutional error must be reversed unless the appellate court is willing to declare that the error was harmless beyond reasonable doubt. In other words, the appellate court must find that the error had little likelihood, if any, of altering the outcome of the trial. See Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 (1993).
Here, the plaintiff challenges the court’s refusal to grant him a new trial, contending the district court failed to notify him that the hearing on his motion for a writ of mandamus would be considered together with the defendants’ motion to dismiss the writ. This argument has no legal merit. As already noted, the district court examined the records in camera, determining that the contents of the records did not support the furtherance of any public interest. Nothing the plaintiff could have introduced could have altered the contents of those records.
The district court’s refusal to grant a new trial to the plaintiff was not an abuse of its discretion.
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Beier, J.:
Defendant-appellant Timothy A. Carr seeks reversal of his upward dispositional departure sentence for his conviction of criminal possession of a firearm.
Carr was arrested 26 days after his release from the Youth Center in Topeka, where he was serving a sentence arising from an earlier juvenile adjudication on drug charges. Wichita police offi cers pulled Carr over after observing him driving without a license tag. When Carr admitted to driving on a suspended license, he was placed in custody and the car was impounded and inventoried. The police recovered a stolen revolver from the passenger compartment.
Carr and the State entered into a plea agreement under which the State agreed to recommend the mid-range sentence in the applicable grid box, no fine, and probation under the guidelines presumption.
At sentencing, the district judge stated Carr had a criminal history score of E and criminal possession of a firearm was a severity level 8 offense. After verifying that neither side disputed the criminal history score or the offense severity level and soliciting comments from Carr, his lawyer, and the prosecutor, the district judge immediately and without notice pronounced a dispositional departure sentence of 15 months’ imprisonment. The judge stated Carr was “not amenable to rehabilitation” and noted the firearms offense occurred shortly after Carr’s release from the Youth Center. The judge also said Carr had failed at juvenile probation and had a lengthy criminal history of drug possession. He authorized placement at Labette Correctional Conservation Camp if Carr was willing to go and the facility accepted him. The transcript contains no subsequent comment or objection from either side.
Our evaluation of the adequacy of the district judge’s summary procedure in this case requires interpretation of K.S.A. 21-4718(b). This is a question of law over which we exercise unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
K.S.A. 21-4718(b) states:
“If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if [it requests]. The notice shall state the type of departure intended by the court and the reasons and factors relied upon.”
Carr did not object to lack of notice after the judge’s pronouncement of sentence or request a postponement in order to prepare a response or motion for rehearing. He also made no proffer of
the evidence that would have been presented to refute the departure factors, if notice had been sufficient. Ordinarily such omissions bar consideration of the issue on appeal. See State v. Billington, 24 Kan. App. 2d 759, 762-63, 953 P.2d 1059 (1998) (defendant had 2 weeks’ warning of court’s intention to depart and reason for it). However, our review of the transcript of the sentencing hearing in this particular case persuades us that the district judge provided no meaningful opportunity for such an objection, request, motion, or proffer. His mind had been made up before either side was made aware he was even considering departure.
The plain language of K.S.A. 21-4718(b) clearly requires more than Carr and his counsel were provided here. The notice it says the district judge “must” give of his or her intention to depart need not be elaborate; it need not even be in writing; but it must be reasonable in all of the circumstances. At a minimum, this means it must be provided at such a time and with such specificity that the defendant and the State have a fair opportunity to marshal and present their arguments for or against the proposed departure before sentence is pronounced. The inadequacy of the notice of departure requires us to vacate the sentence and remand for resentencing.
Carr also takes issue with the district judge’s stated reasons for departure, arguing they were not substantial and compelling as required. This is a question of law subject to de novo review by this court, State v. Jackson, 262 Kan. 119, 134, 936 P.2d 761 (1997), and, because it may arise again on remand, we address its merits.
The term “substantial” refers to something that is real, not imagined, something with substance and not ephemeral. The term “compelling” implies that the court is forced, by the facts of the case, to leave the status quo or go beyond what is ordinary. State v. Eisele, 262 Kan. 80, 84, 936 P.2d 742 (1997).
Here the district judge stated:
“HI find that Mr. Carr is not amenable to rehabilitation. His criminal history score, his failure at probation, the fact he couldn’t be on probation while a juvenile shows that and the fact that he picked up this charge within five weeks of being released from the Youth Center. Actually, less than that, 26 days after being released from the Youth Center.”
A court’s comments at the time of sentencing govern as its reasons. Jackson, 262 Kan. at 135. Although “[a] defendant’s criminal history cannot be used to justify a departure sentence when the sentencing guidelines have already taken the criminal history into account in determining the presumptive sentence,” State v. Hawes, 22 Kan. App. 2d 837, Syl. ¶ 4, 923 P.2d 1064 (1996), the fact that a defendant is found not to be amenable to probation is, if supported by the evidence, a substantial and compelling reason to justify an upward dispositional departure, State v. Meyer, 25 Kan. App. 2d 195, Syl., 960 P.2d 261, rev. denied 265 Kan. 888 (1998).
According to Carr’s presentence investigation report, he had six juvenile adjudications and five adult convictions between 1994 and 1999. Although there is no explicit record of a violation of probation, the sheer frequency of his convictions permitted the district judge to reason that Carr had been on probation when he committed at least one of his prior offenses.
Carr also argues that the legislature did not include the crime he committed after release from the Youth Center as an aggravating factor under K.S.A. 21-4716(b)(2). This list is nonexclusive, however, and the legislature intended that other circumstances be considered. State v. Gideon, 257 Kan. 591, 625, 894 P.2d 850 (1995).
We hold that both the frequency of Carr’s past criminal activity and the fact that he was released from the youth facility such a short time before the arrest for his current crime constituted substantial and compelling reasons for departure. Had notice been sufficient, the court’s decision to impose a dispositional departure sentence based on those factors would not have required us to vacate and remand.
Carr’s final argument is a constitutional challenge under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Since this case was docketed, our Kansas Supreme Court has followed Apprendi in a durational departure case. See State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
In Gould, the court declared:
“The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face. Gould received a sen tence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of the evidence. Apprendi, on the other hand requires ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation omitted.] Any other procedure ‘is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.’ [Citation omitted.]” 271 Kan. at 413.
Although the Supreme Court stated that the upward departure provision of K.S.A. 2000 Supp. 21-4716 was unconstitutional “on its face,” it is difficult to see how a dispositional departure such as Carr’s fits under the rationale of Apprendi. Pending contrary explicit guidance from the Supreme Court, we find Gould inapplicable to upward dispositional departures. It does not constitute an alternative basis for vacating the sentence in this case. Indeed, we view the Supreme Court’s post -Gould decision in State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), as implicitly supportive of our reading of Gould. In McKay, the Supreme Court reached the merits of an upward dispositional departure sentence rather than reversing it immediately as violative of the Sixth and Fourteenth Amendments to the United States Constitution.
Furthermore, our decision on this issue appears philosophically and analytically consistent with that in State v. Conley, 270 Kan. 18, 30-35, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), which held that a district judge’s decision to impose a hard 40 sentence did not run afoul of Apprendi. In Conley, the hard 40 sentence potentially altered the mode of service of the defendant’s life sentence, delaying initial parole eligibility from 25 years to 40 years. Here the dispositional departure also merely altered tire mode of service of Carr’s sentence; it did not extend its length. Gould did not affect the district judge’s power to alter the mode of service of the offender’s sentence.
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Buchele, J.:
Melvin B. Karst appeals the finding that the parties did not have “shared custody” as defined in the Kansas Child Sup port Guidelines (KCSG). Supreme Court Administrative Order No. 128 (2000 Kan. Ct. R. Annot. 97).
Melvin and Jolene Marie Karst were divorced January 8, 1991, and awarded joint custody of their four minor children. Currently, two of the children are past the age of majority and the other two, Jonathan (age 16) and Clayton (age 14), primarily reside with Jolene. Jolene has always had residential custody of these two children.
The proceedings leading to this appeal began when Melvin filed a motion for change of Jonathan’s custody. Jolene then filed a motion to modify child support. Both matters were eventually heard, and the district court entered findings and orders denying the motion to change custody and reduced the amount of child support payable by Melvin by $300 per month as a visitation adjustment. In making this adjustment, the court specifically found that no shared custody arrangement has existed at any time in this case. Melvin appeals this decision.
Melvin claims the district court disregarded a 1995 mediation report creating shared custody and various time-sharing exhibits in making its ruling. Melvin does not claim an extrinsic consideration played a role in the court’s finding or that the court erred in interpreting or applying the KCSG.
The standard of review of a district court’s order determining the amount of child support is whether the district court abused its discretion, while interpretation of the KCSG is subject to unlimited review. In re Marriage of Johnson, 24 Kan. App. 2d 631, 636, 950 P 2d. 267 (1997), rev. denied 264 Kan. 821 (1998). The district court’s finding that shared custody did not exist amounts to a negative finding. A negative finding “will not be disturbed absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. ” See Nance v. Harvey County, 263 Kan. 542, 551, 952 P.2d 411 (1997).
Here, the mediation report states that the parties agreed to “share the physical and legal custody of their children.” The district court considered the language in this report in light of the entire case history and concluded that no shared custody arrangement, as that term is used in the KCSG, existed in this case. The court determined that the mediation report was drafted by a nonlawyer and used the term “shared custody” in a manner different than contemplated by the KCSG.
The KCSG governs the setting of child support, while 60-1610(a)(4) governs the determination of child custody status. In re Marriage of Roth, 26 Kan. App. 2d 365, 368, 987 P.2d 1134 (1999). The district court was correct in using the shared custody provisions in the KCSG for setting child support rather than focusing on the purported custody determination. It is possible to apply the shared custody provisions of the KCSG without contravening 60-1610(a)(4). 26 Kan. App. 2d at 368.
It is apparent from the record that the district court considered the time-sharing percentages of custody in the exhibit prepared by Melvin. Jolene also submitted evidence regarding the time the minor children spent with Melvin. Jolene testified that she received no real financial benefit for the time the children were with their father and that she generally provided for the children financially, including provisions for their direct expenses such as clothing and school lunch tickets.
The considerations for using the shared custody provisions are set forth in the KCSG. Supreme Court Administrative Order No. 128, II.M. (2000 Kan. Ct. R. Annot. 97). In determining whether the shared custody provisions of the KCSG should be applied, two elements must be considered: Is there a regular sharing of residential custody on an equal or nearly equal basis; and are the direct expenses of the children being shared on an equal or nearly equal basis by the parents. An affirmative finding on both elements is necessary for the shared custody provisions of the child support guidelines to be applicable.
The district court found that although Melvin spent substantial time with the children, the sharing of residential custody was not equal or nearly equal. The court also found that Melvin shared some of the expenses, but not on an equal or nearly equal basis. The parties’ evidence on these issues was controverted. From the record it appears that the evidence and testimony presented was carefully considered by the court in its 21-page journal entry. The court’s finding that no shared custody arrangement existed for the purpose of the KCSG is affirmed.
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Knudson, J.:
Timothy D. Duffy and Carrol A. Duffy brought suit again John T. Casady, alleging termination of a written lease executed on June 27, 1975, and requesting damages or rent from Casady as a holdover tenant. The gravamen of their action is that Casady failed to timely exercise an option to extend the lease, thereby allowing the lease to expire under its express terms. The district court, relying primarily upon Fleming Companies, Inc. v. Equitable Life Ins. Co., 16 Kan. App. 2d 77, 818 P.2d 813 (1991), applied principles of equity and concluded the tenant’s untimely exercise of the option should not cause the lease to terminate.
We conclude equitable relief is not available to Casady. The district court’s decision is reversed, and the case remanded for consideration of the other issues raised at trial but not decided by the court.
At bench trial only Timothy D. Duffy and John T. Casady testified. The ground lease in issue provides the tenant with what is called a “tank farm,” an integral part of Casady’s oil production from six oil and gas leases. The following history of the leases and use of the tank farm is provided in the appellee’s factual statement of the case:
“3. These leases have been producing since the early 1960’s. [Citation omitted.] In all, there are about 80 oil wells, plus 14 injection wells. The leases are in secondary (waterflood) production, producing from the same oil reservoir. [Citations omitted.] Although these leases are not formally unitized, they are operated essentially as a unit. Oil and water produced from the leases is transported in underground lines to a 'tank farm’ located on the Duffy lease. Although all the tanks are located together on the Duffy lease, there are separate tanks for each lease. [Citations omitted.]
“4. The ‘tank farm,’ as well as a shop building, water supply well, and other facilities used in defendant’s lease operations, has been the subject of a surface lease dated June 23,1975, covering a tract 200 feet by 400 feet (about 1.8 acres), the north line of which is on the north line of the Duffy lease. The 1975 surface lease, granted by plaintiffs’ immediate predecessors in title, replaced an earlier surface lease written in 1965. [Citations omitted.]
“5. Defendant’s activities on the surface lease include those directly associated with the pumping and operation of [six oil and gas leases]. The water supply well for the waterflood operation is located on the surface lease. The injection water used in the waterflood on these leases comes from water tanks which are located on the surface lease, and is pumped from the pump house and shop located on the surface lease, near the tank battery. [Citations omitted.]”
The written ground lease states, in material part:
“The term of this lease shall be FIVE YEARS, commencing July 1, 1975, through June 30, 1980, provided, however, that Lessee shall have the option to extend this lease for successive one-year terms upon payment to Lessors, in advance of each July 1 anniversary, the annual rental hereunder.
“The annual rental hereunder, both as to primary term and any renewal term, is $250.00, payable annually in advance of July 1 of each year, commencing July 1, 1975.
“The leased premises shall be used by Lessee exclusively for the installation and maintenance of crude oil gathering tanks, pipe racks, water pumping and treatment equipment, water-supply well and ponds, and oil field equipment storage.
“At the expiration of the primary term or any subsequent renewal term, it will remove all equipment placed thereon and will re-deliver the premises to Lessors in a condition for agricultural operations.”
By its terms, the lease does not expressly provide for an adjustment of rent due to inflation or other circumstances. Although not clear from the evidence, we suspect the Duffys felt somewhat frustrated, as they were seemingly unable to modify the lease so long as Casady exercised the option to extend in a timely manner. This is borne out by the evidence of their unsuccessful attempts in 1985 and 1992 to terminate the lease or force negotiations for an increased lease payment. On each of those occasions, Casady elected to stand on the terms of the written lease and his unconditional right to a 1-year extension upon timely payment of $250. As Casady would discover, the old adage, “what goes around, comes around,” would be given special meaning when he inadvertently failed to make the payment for extension before July 1, 1998.
On July 20,1998, the Duffys gave Casady written notice that the ground lease was terminated and requested he vacate and restore die premises by September 1, 1998. Casady immediately remitted payment on July 22, 1998, and explained that missing the payment was an unintentional omission. On July 27, 1998, the Duffys returned Casady s check, reiterated the lease was terminated, and again requested he vacate the premises.
On or about September 2, 1998, the Duffys sent a third letter demanding Casady vacate the premises. In May 1999, Casady attempted to deliver rent checks for both 1998-99 and 1999-2000.
In July 1999, the Duffys filed this suit for a declaratory judgment that the lease had terminated upon its express terms and requested damages for trespass and lost use of the property. Casady responded, claiming his failure to pay was due to an oversight and termination of the lease would result in unconscionable monetary losses.
At trial, the Duffys’ position was clear—Casady did not proffer the annual rent payment before July 1, 1998; the lease ended on June 30,1998; Casady cannot rely upon equity to resurrect a lease that expired by its express terms.
Conversely, Casady’s position was based entirely upon equitable principles. He testified his normal routine was to write down important payment dates on his desk calendar and he simply failed to do so and inadvertently forgot to make the rent payment. He further gave detailed testimony estimating damages in excess of $90,000 if he were required to vacate the premises and relocate the tank farm.
The district court concluded equitable relief should be afforded to Casady and denied the Duffys’ claims. In reaching its decision, the court relied heavily upon the Fleming holding. We conclude Fleming is distinguishable and the district court erred in its decision.
In Fleming, a written lease provided that lessee was to give a written notice to renew or extend at least 1 year before the lease expired. 16 Kan. App. 2d at 78. The lessee’s renewal was untimely but was exercised within the current term of the lease. 16 Kan. App. 2d at 86. In its analysis, the Fleming court relied heavily upon two earlier cases, Car-X Service Systems, Inc. v. Kidd-Heller, 927 F.2d 511 (10th Cir. 1991), and the seminal case of Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47 (1922).
In Car-X, the lessee’s notice to extend was exercised within the current term of the lease. 927 F.2d at 516. Likewise, in Fountain, the lessee’s belated notice to extend was exercised within the current term of the lease. 97 Conn, at 622.
In deciding Fleming, the court noted: “Kansas courts have not specifically addressed the application of equitable principles to a situation involving untimely renewal of a commercial lease of real property.” 16 Kan. App. 2d at 83. The court then concluded: “Adoption of the Fountain rule, specifically limited to the type of situation involved in the present case, would not unduly render all lease contracts uncertain and their terms questionable.” (Emphasis added.) 16 Kan. App. 2d at 89.
Also persuasive is U Save Foods, Inc. v. Nash-Finch Co., 127 F. Supp. 2d 1307, 1314 (D.Kan. 2001), which holds:
“Fleming Companies v. Equitable Life Ins. Co., 16 Kan. App. 2d 77, 818 P.2d 813 (1991) . . . creates a high burden for a lessor who seeks to prevent a lessee from exercising a renewal option after the date specified in the lease, but within the current term of the lease. In Fleming, the Kansas Court of Appeals held that the renewal would be effective so long as the failure to properly exercise the option was not intentional, or the product of willful or gross negligence.” (Emphasis added.)
We have been unable to find any Kansas case that would extend principles of equity to extricate a lessee from failure to give notice until after the lease has expired.
Finally, we note the somewhat obvious fact that this is not a forfeiture case. As stated in Morton v. Sutcliffe, 175 Kan. 699, 703, 266 P.2d 734 (1954) (quoting with approval Gasaway v. Teichgraeber, 107 Kan. 340, 341, 191 Pac. 282 [1920]):
“ “While forfeitures are abhorred by the law, this is not stricdy a forfeiture, but a mere holding of a party to the contract it has made. There was no need of delaying the payment, and the failure to remit in time was not chargeable to the plaintiffs, and the delay left the defendant in the attitude of calling on the plaintiffs to make or recognize a different contract from the one the parties had voluntarily made.’ ”
We conclude that under Kansas law the Fountain rule is limited to those situations where the untimely notice to extend or renew is given during the term of the lease. Kansas law does not permit the application of equitable principles under the facts of this case, there being no showing of fraud, mutual mistake as to content of the lease, or undue influence. See Squires v. Woodbury, 5 Kan. App. 2d 596, Syl. ¶ 2, 621 P.2d 443 (1980), rev. denied, 229 Kan. 671 (1981).
Under the facts of this case, equity could not be invoked to extend or renew a commercial lease that has already expired by its express terms.
For the sake of completeness, we next address whether there is substantial competent evidence to support the district court’s findings of fact.
In Fountain, the court summarized its holding as follows:
“[I]n cases of wilful or gross negligence in failing to fulfil [sic] a condition precedent of a lease, equity will never relieve. But in case of mere neglect in fulfilling a condition precedent of a lease, which does not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” 97 Conn, at 626-27.
We have previously reviewed the evidence presented at trial. In its findings, the district court found:
1. The failure of Casady to give timely notice was not shown to be the result of intentional, willful, or grossly negligent behavior.
2. Casady will suffer a significant financial loss if the lease is terminated.
3. The Duffys have not shown any change in position suggesting prejudice if the lease is allowed to continue.
We conclude the above findings are supported by substantial competent evidence. However, because equitable principles are not applicable, we reverse the judgment of the district court and remand for further consideration of the Duffys’ claims consistent with this opinion.
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Marquardt, J.:
First Savings Bank, F.S.B., (Bank) appeals the trial court’s ruling that it breached an escrow contract with Darrin E. Frey and Paula L. Kelly-Frey. The Freys cross-appeal the trial court’s ruling on damages and attorney fees. We affirm in part and reverse in part.
In May 1996, the Freys signed an installment contract for the purchase of real estate from the Homes. The contract stipulated that the Freys would make their monthly payments, which would include real estate taxes and insurance to an escrow agent. The Freys chose the Bank as their escrow agent. The escrow agreement provided that the Bank would pay the Freys’ taxes and insurance. The Freys purchased homeowners’ insurance from Farm Bureau Mutual Insurance Company (Farm Bureau).
The Freys did not inform Farm Bureau that the Bank was the escrow agent. The original insurance policy declarations page lists the Freys as policyholders and the Homes as mortgagees. The Bank was not listed on the declarations page.
In May 1997, the Freys received the bill for their homeowners insurance. Paula paid the bill. While she was at Farm Bureau, Paula and the agent filled out a form which directed that all future insurance billings be sent to the Bank.
Paula Frey testified that in May 1998, she and Darrin received a renewal statement, not a bill, from Farm Bureau which listed the Homes’ name in care of the Bank. In June 1998, hail damaged one of the Freys’ cars and the roof of their home. Farm Bureau denied their claim on grounds that the policy had lapsed.
Paula testified that when she called the Bank, the Bank indicated that it did not know if the payment had been made. Upon further investigation, the Bank claimed that it had never received a notice to pay the insurance premium until the expiration notice arrived. The Freys’ insurance policy was reinstated in June 1998. In September 1998, the Bank resigned as the Freys’ escrow agent.
In May 1999, the Freys filed claims against the Bank for reckless, willful, wanton, and deceitful negligence, breach of fiduciary duty, and breach of contract. The Freys asked for actual damages of $2,000 plus attorney fees and punitive damages in the amount of $50,000.
The Bank filed a motion for summary judgment, claiming that under the escrow agreement it did not have potential liability for gross negligence and willful conduct in the case of lack of insurance.
After a hearing and several court orders, the only issue that remained for trial was whether there was a breach of the escrow agreement.
In its final order, the trial court held that the Bank had specifically agreed to make the insurance payment and the agreement took precedence over a general clause absolving the Bank of any liability except for gross negligence or willful misconduct. The trial court held that the Bank had breached’its contract with the Freys by failing to pay the insurance premium. The Freys were awarded $1,603. The Bank and the Freys timely appeal.
Breach of the Escrow Agreement
On appeal, the Bank claims that the trial court’s construction of the escrow agreement nullified three sections of the contract.
The interpretation of written instruments is a matter of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998).
As a general rule, if the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1005, 974 P.2d 569 (1999). It is the duty of the courts to sustain the legality of contracts in whole or in part when fairly entered into, if reasonably possible to do so, rather than to seek loopholes and technical legal grounds for defeating their intended purpose. Weber v. Tillman, 259 Kan. 457, 463, 913 P.2d 84 (1996).
The escrow agreement provided:
“[The Bank’s] duties hereunder shall be limited to the safekeeping of such money, instruments or other documents received by it as such escrowholder, and for the delivery of the same in accordance with these written escrow instructions; it is further agreed that [the Bank] shall in no case or event be hable for the failure of any of the conditions of this escrow or damage or loss caused by the exercise of [the Bank’s] discretion in any particular manner, or for any other reasons, except gross negligence or willful misconduct with reference to the said escrow.”
A portion of the “Rights and Duties” section reads: “[The Bank] shall have no responsibility or liability for lack or insufficiency of insurance or lack of payment of taxes relating to property which is the subject of this escrow.”
On the second page of the escrow agreement, the line entitled “Special Instructions to Escrowholder” instructs the Bank to pay the taxes and insurance. The escrow agreement makes the Bank responsible for paying taxes and insurance for the Freys.
The escrow agreement states that the Bank is not hable for the failure of “any of the conditions of this escrow or damage or loss caused by the exercise of [the Bank’s] discretion in any particular manner, or for any other reasons, except gross negligence or willful misconduct.” No evidence was presented that the Bank intentionally tried to cause the Freys harm or acted in a grossly negligent manner.
The agreement relieved the Bank of liability in the exercise of its discretion unless the Bank was grossly neghgent or was guilty of willful misconduct. The duty to pay taxes and insurance was not a discretionary function of the Bank; it was a duty the Bank agreed to as a condition of the escrow agreement.
The question is whether the failure to pay insurance is governed by the gross neghgence or willful misconduct standard or whether the specific agreement to pay the insurance controls. “Contracts for exemption from liability for neghgence are not favored by the law and are strictly construed against the party relying on them.” Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d 728, 732, 894 P.2d 881, rev. denied 257 Kan. 1096 (1995).
It is important to note that the escrow agreement is on the Bank’s printed form.' The Bank’s name is printed at the top of the first page and again on the bottom of the second page. “It is an elementaiy rule of law that where one party to a contract is privileged to set down in writing the terms to which another party is to give assent, and a controversy arises as to their meaning, the contract should be construed strictly against the writer and liberally toward the other party.” Dillard Dept. Stores, Inc. v. Kansas Dept. of Human Resources, 28 Kan. App. 2d 229, Syl. ¶ 5, 13 P.3d 358 (2000).
The trial court correctly interpreted the escrow agreement. Under the terms of the contract, the Bank was hable for the payment of the taxes and insurance. Accordingly, we find that the trial court did not err when it concluded the Bank breached its escrow agreement with the Freys.
Admission of Evidence
At trial, the Bank sought to admit evidence that billing state ments from Farm Bureau were still being sent to the Bank after the Bank terminated the escrow agreement with the Freys. The trial court refused to admit the evidence on grounds of relevance. On appeal, the Bank claims that the evidence was necessary to prove the credibility of witnesses who testified the Bank did not receive the Freys’ premium notice.
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. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). Except as otherwise provided by statute, all relevant evidence is admissible. State v. Smallwood, 264 Kan. 69, 84, 955 P.2d 1209 (1998). The determination of relevancy is a matter of logic and experience, not a matter of law. Simon v. Simon, 260 Kan. 731, 741, 924 P.2d 1255 (1996).
The evidence the Bank sought to admit concerned insurance for the year 2000. The events being litigated here involve the years 1997 and 1998. Accordingly, Farm Bureau’s practices in 2000 are not relevant. The trial court did not abuse its discretion in failing to admit the evidence.
Sufficiency of Evidence
The Bank contends that the evidence presented at trial showed that Farm Bureau could not prove the premium renewal notice was mailed to the Bank.
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).
The trial court’s decision was based solely on the breach of the contract by the Bank. The Bank agreed to pay the insurance, but it did not do so. The Bank breached its obligation under the contract.
There was conflicting evidence presented at trial on the issue of whether the Bank received a premium renewal notice from Farm Bureau. Resolution of this issue would require this court to find that one witness was more credible than another. This court does not determine the credibility of witness testimony. See Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 56, 913 P.2d 612 (1995). The trial court did not err in not making a specific ruling on the issue of the notice.
The Freys’ Claim for Attorney Fees
The Freys asked for attorney fees in their petition. The trial court dismissed the claim for attorney fees, finding that there was no basis to support such an award. The Freys now appeal this denial as part of their cross-appeal.
The assessment of attorney fees lies within the sound discretion of the trial court and will not be disturbed on appeal ábsent an abuse of that discretion. Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983).
The Freys’ argument on the issue of attorney fees refers this court to their response to the Bank’s motion to dismiss the Freys’ claim for attorney fees. This issue has not been briefed, and we consider it to have been abandoned. See Bergstrom v. Noah, 266 Kan. 847, 873, 974 P.2d 531 (1999).
Punitive Damages
The Freys claim that the undisputed facts clearly show gross and wanton misconduct of the Bank in failing to perform its duties under the escrow agreement. The Freys believe that this misconduct entitles them to punitive damages.
To warrant an award of punitive damages, a party must prove to the trier of fact by clear and convincing evidence that the party against whom the damages are sought acted with willful or wanton conduct, fraud, or malice. Reeves v. Carlson, 266 Kan. 310, 313, 969 P.2d 252 (1998); see K.S.A. 60-3702(c).
The trial court held that the Bank did not act in a grossly negligent manner or engage in willful misconduct. Accordingly, the Freys have not met their burden to support an award of punitive damages. We agree with the trial court’s decision to deny the Freys’ motion for punitive damages.
Amount of Damage Award
The Freys claim that they are entitled to prejudgment interest on their liquidated damages.
Where a trial court has fashioned a remedy to make the injured party whole, the test on appellate review is not whether the remedy is the best remedy that could have been devised, but whether the remedy so fashioned is erroneous as a matter of law or constitutes a breach of trial court discretion. Southwestern Business Systems, Inc. v. Western Kansas Xpress, Inc., 19 Kan. App. 2d 861, 867, 878 P.2d 833, rev. denied 255 Kan. 1003 (1994).
Essentially, it seems that the Freys are angry that the damage award was reduced. The Freys had an estimate performed, and the roofing company believed that it would cost $1,853 to repair their roof. The trial court awarded the Freys $1,603. This figure represents the amount of the estimate minus the Freys’ $250 deductible that would have been paid by the Freys had the policy been in force.
Because the Bank breached its agreement by not paying the insurance, no policy was in force. The trial court abused its discretion by not granting the Freys $1,853 to repair their roof. The damage award is reversed and the Freys are granted $1,853 in damages.
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Bukaty, J.:
Anthony James Betz appeals his convictions of sale of methamphetamine, possession of methamphetamine without a tax stamp, and receiving proceeds derived from violations of the Uniform Controlled Substances Act. We affirm in part and reverse in part.
Betz raises two arguments on appeal. First, the convictions of sale of methamphetamine and unlawfully receiving drug proceeds are multiplicitous. Second, there was insufficient evidence to conclude that he was guilty beyond a reasonable doubt.
The incident giving rise to the charges occurred when a confidential informant (Cl) for the I-70/I-35 Drug Task Force purchased methamphetamine at the home of Brian Loy on June 9, 1998. Prior thereto, the Cl had reported to agents that he had arranged to purchase a half ounce (approximately 14 grams) of the drug from Betz at this location and that he would receive a page when Betz had arrived at the apartment. Betz had previously worked for the task force as a Cl himself. The Cl also relayed to agents that Betz probably would not say much, if anything, during the transaction.
After the Cl received the page, agents searched and fitted him with a body wire, searched his car, and gave him $650 in buy money. They then followed the Cl to the area of Loy s apartment. The audio transmitter allowed them to monitor the transaction, but they could not maintain visual contact once the Cl went into the apartment. They did not do surveillance on the apartment and could not verify who was inside.
The Cl returned without the cash and with two baggies containing what proved to be 9.51 grams of methamphetamine (10.6 grams, including packaging). The packets did not have tax stamps. The Cl reported that Betz, Loy, and Loy’s girlfriend, Linda Mick, were in the apartment. He said he counted out the money, and Betz took the cash and handed him the two baggies from his shirt pocket.
Betz was arrested approximately 6 months later. Agents never recovered the buy money.
At trial, Loy and Mick (by then Loy’s former girlfriend) both testified. Mick testified that Betz was a friend and sometimes vis ited the apartment at the same time as the Cl but denied witnessing the controlled buy. However, she identified her voice as one of the voices on the tape recording of the buy. Loy confirmed in an interview with a task force agent that Betz was present. He also testified to a conversation in which Betz stated he thought the Cl was working for the police and wearing a wire on the occasion of the controlled buy.
The jury returned a verdict finding Betz guilty on all three counts. The court then sentenced him to concurrent sentences with a controlling sentence of 30 months.
Betz first argues that the sale charge and the receipt of proceeds charge are multiplicitous because both charges required proof of the same unlawful act, namely, sale of drugs.
The appellate courts of this state have addressed the issue of multiplicity several times but never as it pertains to these two charges. Multiplicity consists of the charging of a single offense in more than one count of a complaint or information. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998). The issue this raises is that it can result in multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. 266 Kan. at 255. This court’s standard of review is plenary. See 266 Kan. at 255.
The constitutional prohibitions against multiplicity do not always prohibit a single transaction from supporting multiple convictions. Vontress, 266 Kan. at 255-56, states as follows:
“The State may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. However, where the criminal conduct of the defendant supports convictions for more than one crime, K.S.A. 21-3107 provides statutory authority for multiple convictions even though the criminal conduct of a defendant consists of a single transaction. State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
“The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not preclude convictions and sentences for both charges. 265 Kan. at 262-63. Multiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the elements of proof necessary to prove one crime are also necessary to prove the other. 265 Kan. at 263.”
With these principles in mind, we must examine the charging documents. The complaint in Count One, in relevant part, charged Betz as follows:
“Comes now Julie McKenna, Saline County Attorney, for and on behalf of the State of Kansas, and gives the Court to understand and be informed that in Saline County, Kansas, on or about the 9th day of June, 1998, one ANTHONY JAMES BETZ did then and there unlawfully, willfully and feloniously sell a stimulant drug, to wit: methamphetamine. K.S.A. 65-4161 (1997 Supp.) (Sale of Methamphetamine).”
Count three charges in relevant part:
“That in Saline County, Kansas, on or about June 9, 1998, one ANTHONY JAMES BETZ did then and there unlawfully, willfully, feloniously, knowingly or intentionally receive or acquire proceeds or engage in transactions involving proceeds, known to be derived from any violation of the uniform controlled substances act .... K.S.A. 65-4142 (Unlawfully Acquire Proceeds).”
Neither of the statutes under which Betz was charged define the terms “sell” or “proceeds.” Looking elsewhere, we note that to “sell” means: “To transfer (property) by sale.” Black’s Law Dictionary 1365 (7th ed. 1999). “Sale,” then, is defined as: “1. The transfer of property or title for a price. 2. The agreement by which such a transfer takes place.” Black’s Law Dictionary 1337. “Proceeds” are defined as: “The value of land, goods, or investments when converted into money; the amount of money received from a sale.” Black’s Law Dictionary 1222.
The State argues that the charges are not multiplicitous because the receipt of proceeds charge involved in Count Three requires proof of an act not required by the sale of methamphetamine statute involved in Count One, namely, receiving money. We disagree.
The legal definition of proceeds includes more than just the money received from a sale. It also includes within its meaning the value of goods when converted into money. Whether a seller of goods actually receives money or other goods or services or a mere promise of payment at the time of a sale, he or she has received value, and each of these methods of exchange constitutes proceeds. When the evidence proves the crime of illegal sale of drugs, that same evidence necessarily proves the crime of receiving illegal drug proceeds or engaging in transactions involving such proceeds.
Applying these definitions to the above two charges against Betz, we conclude that the elements of proof necessary to prove Count One were also necessary to prove Count Three, i.e., that Betz transferred an illegal controlled substance in return for something of value or the promise to pay something of value. In other words, the same evidence necessarily proved both charges. The evidence at trial established that Betz transferred a quantity of methamphetamine to a confidential informant and received money in the amount of $650. This one transaction cannot provide the basis for the charge contained in Count One and also the charge in Count Three.
Betz next contends that the uncorroborated testimony of a Cl was insufficient to support his convictions. The occurrence of the transaction is undisputed. The only issue is the identity of the seller.
When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of the 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. Johnson, 266 Kan. 322, 326, 970 P.2d 990 (1998).
The testimony of the Cl, Loy, and Mick, if believed, established that Betz was inside Loy’s apartment at the time of a methamphetamine buy, that the Cl gave Betz money, and Betz gave him drugs in return. The evidence allows the inference that Betz did not speak because he was suspicious of the Cl. Loy and Mick’s testimony corroborated that of the Cl in that they confirmed the presence of Betz in the apartment at the time of the buy and that Betz stated that he suspected the Cl of wearing a wire. The procedure of the controlled buy (i.e., the searching of the Cl before he entered the apartment and then when he left) corroborates the testimony of the Cl that a drug sale occurred.
Moreover, the jury was given an instruction on aiding and abetting. All the jury had to believe was that the sale could not take place until Betz arrived. Whether or not Betz accepted the buy money and delivered the methamphetamine to the Cl, the juiy could validly infer that Betz brought it to the apartment and, thus, aided and abetted Loy with the intent of furthering the sale.
The trial court instructed the jury to consider with caution the testimony of an informant who receives benefits from the State. The Cl’s agreement with the State and his prior convictions involving dishonesty were disclosed. The jury still chose to believe the Cl. The evidence that Betz participated in the sale was sufficient when viewed in the light most favorable to the State.
The absence of a tax stamp on the packets was fully supported by the testimony of a task force agent.
The conviction of receiving proceeds from an illegal drug transaction is reversed. The convictions of sale of methamphetamine and possession of methamphetamine without a tax stamp are affirmed.
Affirmed in part and reversed in part. | [
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Wahl, J.:
Larry Hembree appeals the refusal of the district court to give a mode-of-operation instruction in a personal injury suit.
While walking through a Wal-Mart store in Kansas City, Kansas, carrying cat food and dog food, Hembree slipped and fell on the floor. He suffered an injury to his knee that eventually required surgery.
After falling, Hembree notified an employee of his fall. The employee directed Hembree to the customer service desk where he provided a written statement of the incident and returned home.
Hembree filed suit against Wal-Mart, alleging the store was negligent in allowing a substance to be on the floor. During jury trial, Hembree testified that although he did not see any broken bottles or containers in the area where he fell, he believed he slipped on Noxema skin cream because he is familiar with that substance’s odor. He and his wife both testified they noticed a white, creamy substance on the tip of Hembree’s shoe while at the hospital.
Michael Hartley, a Wal-Mart assistant manager, testified he was working the night Hembree fell. He did not speak to Hembree, but he went to the area where Hembree fell and did not see a spill. Hartley stated no employee in the store had reported seeing or cleaning up a spill that evening.
Hartley testified employees would conduct what were called safety sweeps at certain hours each day where employees would walk every aisle of the store and clean up anything that required cleaning. A safety sweep was performed at approximately 7 p.m. on the night of Hembree’s fall. ■
Hembree requested a jury instruction allowing the jury to find Wal-Mart at fault if it determined Wal-Mart “by reason of its mode of operation, could reasonably anticipate that such hazardous conditions would regularly arise from a third party’s actions.” The requested instruction would not require Hembree to prove Wal-Mart had actual notice of the alleged hazardous condition. The trial court refused to give the requested instruction, and the jury found neither party to be at fault.
Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Haskell v. Stauffer Communications, Inc., 26 Kan. App. 2d 541, 542, 990 P.2d 163 (1999). Instructions are to be considered togethér and read as a whole. Hawkinson v. Bennett, 265 Kan. 564, 578, 962 P.2d 445 (1998). If the instructions fairly instruct the jury on the law governing the case and the jury could not reasonably be misled by them, the instructions will be approved on appeal. 265 Kan. at 578.
Hembree argues the trial court erred by not giving a mode-of-operation instruction based upon Jackson v. K-Mart Corp., 251 Kan. 700, 840 P.2d 463 (1992). In that case, Jackson was walking down an aisle in a K-Mart department store when she slipped and fell near a clothing rack. In the middle of the tile floor near the rack was a green liquid that was apparently avocado juice. Jackson did not see the juice or know how it got there or how long it had been there. Jackson later heard a K-Mart employee say a woman had passed through the area where Jackson fell and was accompanied by a small child carrying a can of avocado juice. The store operated an in-store cafeteria and allowed customers to remove food and drink from the cafeteria and carry it onto the shopping floor. Jackson testified the cafeteria sold cans of avocado juice, although K-Mart alleged that an employee found a can of avocado juice near the location of Jackson’s fall bearing a Wal-Mart label.
The district court granted summaiy judgment for K-Mart because Jackson did not establish that K-Mart had either actual notice of the spill or constructive notice based on the length of time the spill existed. The district court further ruled that the general rule in Kansas is that where an individual is injured as a result of a fall caused by a dangerous condition not created by the proprietor but from other persons’ actions, proof is required that the proprietor knew or should have known of the condition.
This court reversed the district court and adopted the mode-of-operation rule, “which allows a customer injured due to a condition inherent in the way the store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition.” 251 Kan. at 702. The case was remanded for a determination of whether the dangerous condition due to K-Mart allowing customers to carry food and drink into the shopping area was reasonably foreseeable and, if so, whether reasonable care had been exercised.
On subsequent review by the Supreme Court, the court noted that the mode-of-operation rule is part of the trend of liberalizing the rules restricting recovery by one injured on the premises of another. 251 Kan. at 706. The court also discussed the rise of self-service marketing where customers are free to browse, examine, and select merchandise for themselves and recognized this method of shopping increases the risk of dangerous conditions being created. 251 Kan. at 707.
The mode-of-operation rule looks to a business’ choice of a mode of operation and not to the events surrounding the plaintiffs accident. A third party’s independent negligence is no longer the source of liability, and the plaintiff is not required to discover the third party’s actions. The proof of a particular mode of operation substitutes for the traditional elements of a prima facie case. 251 Kan. at 709.
The mode-of-operation rule is a limited exception and does not abrogate general liability rules. 251 Kan. at 710. The court cited Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 400-01, 733 P.2d 283 (1987), to illustrate the rule’s application.
“The mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law. A plaintiff could get to the jury in most cases simply by presenting proof that a store’s customer could have conceivably produced the hazardous condition.” Jackson, 251 Kan. at 710.
Accordingly, a proprietor would be hable for a dangerous condition caused by a third party, absent actual or constructive notice of the condition, where, based on the mode of operation, the proprietor could reasonably foresee that the dangerous condition could regularly occur. 251 Kan. at 710.
In the present case, the district court found the mode-of-operation instruction did not fit the facts of the case and that giving the instruction would make Wal-Mart an insurer for anyone who happened to slip and fall in the store. We agree.
The mode-of-operation instruction is properly given only in cases where the evidence establishes that a company’s adoption of a particular mode of operation makes it reasonably foreseeable that a dangerous condition could regularly occur. In Kansas, the rule has its most general application to self-service operations. Kimes v. Unified School Dist. No. 480, 934 F. Supp. 1275, 1280 (D. Kan. 1996). The evidence in the present case was that on the date of the fall, Wal-Mart was the type of store where shoppers were invited to come in and pick up, carry, examine, and purchase merchandise for themselves. There was no evidence presented that Wal-Mart’s mode of operation was unique or created a situation in which dangerous conditions could regularly occur.
The evidence also established that Wal-Mart had a system for checking for dangerous conditions and had implemented the system. It appears the store was making reasonable safety efforts commensurate with any risks involved in the operation of the store.
Instructing on the mode-of-operation rule in cases such as this would result in most establishments being held to a near strict liability standard. Most businesses today operate in a manner that allows customers to serve themselves to some degree. The rule is not intended to uniformly cover all self-service situations. The instructions as given to tire jury in the present case accurately and fully stated the law and did not result in prejudice to any party.
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Wilbert, J.:
Richard B. Aikman appeals after being resentenced for felony possession of marijuana and misdemeanor possession of drug paraphernalia. Initially, Aikman was sentenced to serve 12 months in the county jail for possession of drug paraphernalia, while probation was granted on the felony possession of marijuana charge. Finding the misdemeanor sentence to be oppressive, Aikman appealed both sentences to the Court of Appeals.
A panel of this court vacated Aikman’s original sentences in State v. Aikman, No. 82,621, unpublished opinion filed December 23, 1999, (Aikman I) and remanded to the district court for resentencing. In Aikman 7, we held the sentencing court’s determination that a belt buckle worn by the defendant at sentencing was gang related constituted error. We further held the sentencing court erred in considering unsworn testimony indicating drug usage by the. defendant. Upon remand, the sentencing court imposed a harsher sentence: 12 months in prison and a concurrent sentence of 12 months in the county jail. Not surprisingly, the defendant has once again appealed the sentences imposed.
We reverse both sentences and remand for resentencing.
This court has the authority to correct, modify, vacate, or reverse any sentence that may be illegal or an abuse of discretion. K.S.A. 60-2101(a).
Aikman contends he did not originally appeal the sentence imposed for the felony; therefore, the district court was without authority to resentence him on that charge. The notice of appeal filed in the original case appealed the sentence handed down by the district court without specifying which sentence was being appealed. Aikman’s brief filed in the original case argued the issue of whether sentencing him to the maximum for the misdemeanor when there was also a felony charge violated the policy underlying K.S.A. 21-4601.
Aikman did not specify in his original notice of appeal which sentence he was appealing, and this court vacated the entire sen tence. The district court possessed the authority to resentence on both counts.
Appellate review of a departure sentence is limited to whether 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. K.S.A. 21-4721(d). The district court must state on the record the substantial and compelling reasons for departure. K.S.A. 2000 Supp. 21-4716(a). Whether the factors rehed upon by the court constitute substantial and compelling reasons for departure is a question of law over which this court exercises unlimited review. State v. Jackson 262 Kan. 119, 134, 936 P.2d 761 (1997). “Comments at the time of sentencing, not the written journal entry, govern as to reasons for departure.” 262 Kan. at 135.
The district court’s comments throughout the sentencing hearing made it clear the reason for the departure was the belt buckle Aikman wore, which the court interpreted to mean he was involved with the Sons of Silence. When asked by Aikman’s counsel the reasons for departure, the court stated that the factors were the nature of the crime as a drug case where the original charge involved the sale of marijuana, convictions for drug offenses, and Aikman’s apparel indicating involvement in a gang that sells, manufactures, and distributes drugs. When actually sentencing Aikman, the district court stated:
“The Court finds that based upon the evidence presented, the showing the Court of the displaying the gang colors, Sons of Silence, the case law presented, the opportunity to disavow any interest in that particular group, the Court finds that is sufficient basis to depart for a dispositional, not a durational.”
In the Journal Entry of Sentencing, the court, in the only passage that discusses departure, states: “[T]he Court states that there was sufficient basis and departure for the Sentence had on December 16,1998, and no disavowance for the ‘Sons of Silence’ gang colors.” It is clear the district court was relying on Aikman’s alleged involvement with this gang as its basis for departure. Previous references at Aikman’s original sentencing regarding a positive drug test are not referred to at resentencing. The only logical conclusion that can be drawn is that the court departed based on Aikman’s alleged involvement with the Sons of Silence. A review of the record from the resentencing establishes there is absolutely no evidence to support a finding that Aikman belonged to the Sons of Silence. Merely wearing apparel cannot be interpreted as evidence of membership. Further, evidence of gang membership must be relevant to the issues presented at sentencing. Dawson v. Delaware, 503 U.S. 159, 164, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992).
We also note that during resentencing, the district court asked Aikman if he would like to make a statement denying involvement with the Sons of Silence. Aikman declined.
A sentencing court may not draw an adverse inference from a defendant’s silence in determining facts relating to the circumstances and details of the crime. The normal rule in a criminal case is that no negative inference from a defendant’s failure to testify is permitted. See Mitchell v. United States, 526 U.S. 314, 327-28, 143 L. Ed. 2d 424, 119 S. Ct. 1307 (1999); Griffin v. California, 380 U.S. 609, 614, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965). A sentencing hearing is part of the criminal case, and the concerns mandating the rule against negative inferences at trial apply with equal force at sentencing. This holding is a product not only of Griffin but also of the conclusion in Estelle v. Smith, 451 U.S. 454, 462, 68 L. 2d 359, 101 S. Ct. 1866 (1981), that there is no basis for distinguishing between the guilt and sentencing phases so far as the protection of the Fifth Amendment privilege is concerned. There can be little doubt that the rule against adverse inferences has become an essential feature of our legal tradition. The Government must prove its allegations while respecting the defendant’s individual rights, including the defendant’s exercise of rightful silence. See Mitchell, 526 US. at 329-30.
From the language of the Journal Entry of Sentencing, we note the district court made a negative inference from Aikman’s refusal to disavow affiliation with the Sons of Silence. Under Mitchell, this is impermissible.
In the original sentencing, the district court did not even consider departure for the felony conviction. Upon the first sentence being vacated and remanded for resentencing, the district court announced its intent to depart on the felony, which was presumed probation. The district court’s apparent determination to use Aikman’s apparel, which the district court assumed demonstrated an affiliation with the Sons of Silence, as a basis for departure when there was no other evidence to support such action illustrates prejudice towards the defendant. The record contains no factors which the district court could have used as a basis for a departure in this case.
Last, Aikman asks this court to consider the appropriate end date for a term of probation. Because of our decision upon the other issues in this appeal, we will leave this determination to the district court upon resentencing.
Aikman’s’ sentences are vacated, and we remand for resentencing by the district court to be consistent with this opinion and our opinion in Aikman I. | [
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Gernon, J.:
Joyce Stover and Patricia Gladson appeal the trial court’s decision to grant judgment as a matter of law to Superior Industries International, Inc., (Superior) after a jury returned verdicts in favor of Stover and Gladson.
We reverse and reinstate the jury verdicts.
Stover and Gladson were fired from their employment by Superior. The firing occurred 1 day after a coworker told Stover a rumor concerning a former plant manager and his wife, Leon and Mary Kay Easton. Stover shared the rumor with Gladson, who was a friend of Mary Kay, and suggested that Gladson inform Mary Kay of the rumor.
Gladson called Mary Kay and informed her. Mary Kay was very upset about the call. When Mary Kay finished speaking with Glad-son, she immediately called Linda Scherz-Purselley, Superior s human resource manager in Pittsburg. During the conversation, Mary Kay told Scherz-Purselley that Stover was evil and needed to have her mouth shut.
After being fired, Stover and Gladson filed suit against Superior for wrongful termination. A jury returned verdicts in favor of Stover and Gladson, finding that Superior breached its implied contracts with the plaintiffs and awarding Stover $100,000 and Gladson $80,000 in damages.
Following the jury’s verdict, Superior renewed its motion for judgment as a matter of law and filed an alternative motion for a new trial. The trial court granted Superior’s motion for judgment as a matter of law and granted its motion for a new trial. Stover and Gladson appeal.
Tudgment as a Matter of Law
Stover and Gladson claim the trial court erred in granting Superior’s motion for judgment as a matter of law.
The legislature modified K.S.A. 60-250, renaming a motion for a directed verdict as a motion for judgment as a matter of law. L. 1997, ch. 173, § 26. Accordingly, the same standard of review for a directed verdict applies to a motion for judgment as a matter of law.
When reviewing a trial court’s decision on a directed verdict, an appellate court is required to resolve all facts and inferences reasonably drawn from the evidence in favor of the party opposing the motion. If reasonable minds could reach different conclusions, the motion must be denied. Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 208, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990).
The question is not whether there is no evidence supporting the party opposing the motion. Instead, tire court must determine whether there is evidence upon which a jury could find a verdict for that party. Even when the facts are undisputed, there could be conflicting inferences from those facts. When no evidence is presented or when the evidence is undisputed and reasonable minds may not draw differing inferences and arrive at opposing conclusions, the matter becomes a question of law for the court. 14 Kan. App. 2d at 209.
The trial court did not specify its reason for granting the motion for judgment as a matter of law. The court merely referred to Superior’s arguments in its motion. The trial court concluded, as a matter of law, that the plaintiffs did not present any evidence to support a finding that an implied contract existed.
Generally, Kansas follows the employment-at-will doctrine when there is not an express or implied contract of employment. Ortega v. IBP, Inc., 255 Kan. 513, 516, 874 P.2d 1188 (1994)..Under the employment-at-will doctrine, an employer can terminate an employee for good cause, for no cause, and even for a wrong cause. 255 Kan. at 516.
The employment-at-will doctrine, however, has gradually eroded. Kansas now recognizes two exceptions to this rule. The first exception is for terminations that violate public policy. See, e.g., Murphy v. City of Topeka, 6 Kan. App. 2d 488, 495-97, 630 P.2d 186 (1981). The second exception is for an implied-in-fact contract. See, e.g., Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 139-40, 815 P.2d 72 (1991); Morriss v. Coleman Co., 241 Kan. 501, 513-14, 738 P.2d 841 (1987); Masterson v. Boliden-Allis, Inc., 19 Kan. App. 2d 23, 25-26, 865 P.2d 1031 (1993); Allegri v. Promdence-St. Margaret Health Center, 9 Kan. App. 2d 659, 664-65, 684 P.2d 1031 (1984).
An implied-in-fact contract “recognizes an implied obligation on the employer to not terminate an employee arbitrarily where a policy or program of the employer, either express or implied, restricts the employer’s right of termination at will.” Brown, 249 Kan. at 135.
Stover and Gladson do not claim that the public policy exception applies; they claim their employment with Superior was based on implied-in-fact contracts and that they were terminated in violation of those contracts.
The determination of whether an implied-in-fact contract exists is a question of fact for the jury to decide. The intent of the parties need not be established by direct proof but can be shown by acts, circumstances, and inferences reasonably drawn therefrom. “ ‘ “The understanding and intent of the parties is to be ascertained from their written or oral negotiations, the usages of business, the situation and object of the parties, the nature of the employment, and all the circumstances surrounding the transaction.” ’ ” Allegri, 9 Kan. App. 2d at 663.
In Morriss v. Coleman Co., 241 Kan. 501, two employees, a married man and an unmarried woman, were terminated for traveling together to pick up a company car for a manager. The employees brought a wrongful termination suit, alleging that Coleman had breached an implied-in-fact employment contract to terminate their employment for good cause. To support this claim, the employees relied on a supervisor’s manual which provided that employees would be discharged only for good cause, the company’s policy of progressive discipline, the company’s purpose to treat the employees fairly and uniformly and entitle them to a career with the company, and the communication of the company’s policies by supervisors. The Kansas Supreme Court reversed a summary judgment decision in Coleman’s favor, holding that the employees’ evidence of intent was sufficient to establish a factual question for the jury. 241 Kan. at 514.
The facts in this case are analogous to those in Morriss. Here, Stover and Gladson presented evidence of an employee handbook which articulated Superior’s policy of progressive discipline and defined a 90-day probationary period during which an employee could be terminated for any reason. The employee handbook also stated that Superior endeavored to treat its employees fairly and respectfully and acknowledged Superior’s expectation that employees would enjoy a long and challenging career with it.
Stover and Gladson also presented a supervisor’s manual which articulated Superior’s policy for resolving problems and avoiding the need to terminate employees. Three members of Superior’s management team testified that Superior’s policy was to terminate employees only for good cause.
Superior attempts to distinguish Morriss by highlighting the fact that tibe supervisors communicated the policies to the employees in that case. That fact cannot distinguish the cases. The Morriss employees had to demonstrate that they were aware of the policies before being terminated even though they had not received a copy of the employees’ manual. To establish this fact, the Morriss employees testified that supervisors informed them of the policies.
In this case, both Stover and Gladson received copies of the employee handbook and testified that they were familiar with the policies it articulated. Thus, Stover and Gladson established that they were aware of Superior’s policies without being told by supervisors.
Next, Superior argues that Stover and Gladson did not receive the handbook until after they began working and did not rely on its terms as a basis for accepting employment with Superior. Consequently, Superior contends, the employees could not have formed a contract because there was not a meeting of the minds. This argument is not supported by Kansas case law. None of the cases recognizing an implied-in-fact contract considered whether the employees relied on the employer’s policies as a basis for accepting employment. See, e.g. Brown, 249 Kan. at 137-38; Morriss, 241 Kan. at 513-14; Masterson, 19 Kan. App. 2d at 25-26; Allegri, 9 Kan. App. 2d at 663-64.
Superior relies on Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 173-74, 872 P.2d 252 (1994), for the proposition that there must be mutual assent or additional consideration for an implied contract that supplemented or changed the original employment relationship. In Dickens, the employee had an express written employment contract. The employee claimed that the written contract had been modified to include the implied requirement of good cause for termination. The Dickens court held that the employee failed to present any evidence of mutual modification of the written employment contract. In this case, there is no written employment contract to modify, and Dickens is not on point.
Next, Superior argues that the disclaimer in the employee handbook, the employment application, the confidentiality agreement, and the professional conduct statement clearly evidence its intent not to form a contract with its employees.
A disclaimer, however, does not determine the issue as a matter of law. See Morriss, 241 Kan. at 514. The Morriss court noted that there was no evidence that the disclaimer had been brought to the employees’ attention or that it was intended to create an unqualified employment-at-will relationship, especially in view of the other provisions in the manual and the employer’s statements.
In Masterson, 19 Kan. App. 2d at 25-26, the employer raised the same argument without success. This court held that the disclaimer did not preclude a verdict in favor of the plaintiff because there was no evidence the employee had personal knowledge of the disclaimer and because the employee’s claim was based on a supervisor’s actions in addition to the policy manual. 19 Kan. App. 2d at 26.
Likewise, in this case, there is no evidence that the disclaimer was brought to the personal attention of Stover or Gladson, and their claims were based on more than the policies in the handbook. Superior’s supervisors testified that the company’s policy was to terminate only for good cause.
Considering all of the facts and inferences reasonably drawn from the evidence in favor of the plaintiffs, the trial court erred in holding for Superior as a matter of law. There was sufficient evidence to permit a jury to determine the factual issue of whether implied-in-fact contracts existed between Stover and Gladson and Superior.
Verdict
When a verdict is challenged as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence and all reasonable inferences to be drawn therefrom, when viewed in a light most favorable to the prevailing party, supports the verdict, it will not be overturned on appeal. Masterson, 19 Kan. App. 2d at 24.
Because the evidence is adequate to withstand Superior’s motion for judgment as a matter of law, it follows that the evidence is also sufficient to support the juiy’s verdict. See Brown, 249 Kan. at 140.
Jury Instructions
The trial court granted both the motion for judgment as a matter of law and Superior’s motion for a new trial based on erroneous jury instructions. The motion for judgment as a matter of law would obviously make the new trial ruling moot.
K.S.A. 1999 Supp. 60-250(b) provides:
“A motion for a new trial under K.S.A. 60-259 and amendments thereto may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative. If a verdict was returned the court, in disposing of the renewed motion, may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law.” (Emphasis added.)
Superior proposed certain instructions and argued their merit. The trial court did not grant or deny Superior’s request on the record, and Superior did not object to the trial court’s proposed instructions or object to the omission of their requested instructions.
If an instruction is not clearly erroneous, a party may not claim error in the giving or failure to give an instruction unless the party objects before the jury retires to consider the verdict. Bright v. Cargill, Inc., 251 Kan. 387, 409, 837 P.2d 348 (1992). An instruction is clearly erroneous if the reviewing court reaches a firm conviction that if the error had not occurred, there was a real possibility that the juiy would have returned a different verdict. Jackson v. City of Kansas City, 263 Kan. 143, 148, 947 P.2d 31 (1997). If the instructions as a whole are substantially correct and the jury could not have been misled by them, the instructions will be approved on appeal. Bright, 251 Kan. at 408.
We have reviewed the proposed instructions and conclude there was no dispute as to whether a contract was formed. Therefore, we find no error in the instruction given by the trial court, which followed PIK Civ. 3d 124.03.
Superior also argues that the trial court’s decision to grant a new trial is supported by juror misconduct. The trial court denied Superior’s motion for a new trial based on juror misconduct, finding the issue to be moot. Stover and Gladson did not raise this issue and do not complain of the trial court’s decision.
When rulings on remand may affect the subsequent course of the proceedings, it is necessaiy that a cross-appeal be perfected in order for the appellee to obtain review over such rulings. Vaughn v. Murray, 214 Kan. 456, 462, 521 P.2d 262 (1974). Superior failed to perfect a cross-appeal. Thus, this issue is not properly before this court.
On remand to the district court, however, Superior could renew its motion for a new trial on this ground because no final judgment has been entered in the case. See Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 485, 988 P.2d 755 (1999). To avoid a further appeal, this court will determine the issue.
The juror misconduct alleged by Superior involved the presiding juror s failure to inform the court that she was involved in litigation. During voir dire, the plaintiffs’ attorney questioned the prospective jurors about any litigation they had participated in. Some of the jurors selected for the panel admitted to participating in litigation. Clearly their previous experience with litigation did not preclude their selection for the panel.
Likewise, the presiding juror’s participation in litigation did not alone disqualify her from jury duty. Review of the type of litigation she was involved in fails to establish any bias against Superior. According to the record, the juror was a defendant in several debt collection cases. None of those cases involved a party to this lawsuit.
Appellate courts consistently adhere to the rule in both civil and criminal cases that juror misconduct is not a ground for a reversal, a new trial, or a mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice bears the burden of proof. Hawkinson v. Bennett, 265 Kan. 564, 599, 962 P.2d 445 (1998).
Superior relies on Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 140, 259 P.2d 207 (1953), and Kerby v. Hiesterman, 162 Kan. 490, 496-97, 178 P.2d 194 (1947), for support, arguing that a juror’s failure to disclose participation in litigation requires a new trial. Both of these cases can be distinguished from this case.
In Kaminski, the plaintiff received a verdict for personal injuries resulting from being hit by a bus while bicycling. During voir dire, two jurors responded negatively when asked whether they had been involved in any litigation. Both jurors, however, had been involved in similar tort litigation—one for wrongful death of a daughter and the other for damages for injuries sustained by a spouse in a car accident.
In Kerby, the plaintiff received a verdict for damages from a contract claim. During voir dire, the jury foreman was asked whether the plaintiff s counsel had represented him, and he responded negatively. In fact, the plaintiff s counsel had represented the foreman in a recent case before the county court.
Unlike the jurors in Kaminski and Kerby, the juror in this case had not participated in similar litigation and had not been represented by either party’s counsel. Beyond pointing out the juror’s failure to admit her debt collection problems, Superior fails to demonstrate any evidence of bias by the juror. Accordingly, Superior has failed to demonstrate any prejudice as a result of this juror serving on the jury.
This matter is reversed with instructions that the jury verdicts be reinstated. Superior may file a motion for a new trial. However, the issue of juror misconduct should not be the basis of a favorable ruling for Superior.
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Green, J.:
Cager J. Spates was convicted of aggravated assault and was sentenced to 22 months in prison. On appeal, Spates contends that the trial court imposed an illegal sentence when it calculated his criminal history using a juvenile adjudication. We disagree and affirm.
Spates was charged with attempted voluntary manslaughter and criminal possession of a firearm as a result of events which occurred on February 27, 2000. Under a plea agreement, Spates entered a guilty plea to the charge of aggravated assault under K.S.A. 21-3410(a), and the State dismissed the remaining charges. The trial court accepted Spates’ guilty plea and found him guilty.
A presentence investigation report showed Spates’ criminal history included no adult convictions, but did include a juvenile adjudication for aggravated battery, a person felony. The juvenile adjudication was not decayed.
At sentencing, Spates objected to his criminal history, arguing that the juvenile adjudication should not have been used in calculation of the criminal history score. The trial court found that under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21- 4701 et seq., aggravated assault was a severity level 7 offense, that Spates’ criminal history score was D, and that the sentencing range for prison was 22, 24, and 26 months with presumptive imprisonment because a firearm was used in the commission of the felony. The trial court denied Spates’ motion for a dispositional departure and sentenced him to the mitigated term of 22 months’ imprisonment.
Spates argues that the trial court erred in determining that his criminal history category was D. He insists that his juvenile adjudication should not have been included in his criminal history because it resulted from a proceeding in which he did not have the right to a jury trial. To support this argument, Spates relies upon Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Spates contends his criminal history is category I and his presumptive sentence is 7 to 9 months’ imprisonment under K.S.A. 2000 Supp. 21-4704(a).
Whether a statute is unconstitutional is a question of law subject to unlimited review. State v. Heironimus, 262 Kan. 796, 802, 941 P.2d 1356 (1997). When a statute is challenged as unconstitutional, this court must search for a way to uphold the statute. State v. Gould, 271 Kan. 394, 405, 23 P.3d 801 (2001).
Spates has not specified which statute he is challenging on constitutional grounds. The statute which requires the inclusion of juvenile adjudications in calculating a defendant’s criminal history is K.S.A. 21-4710. The pertinent portion of the statute provides:
“(a) Criminal history categories contained in tire sentencing guidelines grid for nondrug crimes . . . are based on the following types of prior convictions:
. . . person felony juvenile adjudications, nonperson felony juvenile adjudications . . . person misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile adjudications [and] select class B nonperson misdemeanor juvenile adjudications . . . .”
Spates has not specifically articulated how this statute is unconstitutional except to cite Apprendi. We assume Spates is challenging K.S.A. 21-4710 upon the constitutional challenges raised in Apprendi. The issue in Apprendi was “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sen tence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” 530 U.S. at 469. Apprendi relied upon a juvenile case where the United States Supreme Court held that “ ‘the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.’ ” 530 U.S. at 477 (quoting In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 [1970]).
In Apprendi, a state statute authorized a prison term of 5 to 10 years for a second-degree offense of possession of a firearm for an unlawful purpose and a prison term of 3 to 5 years for a third-degree offense of possession of a firearm for an unlawful purpose. Another statute, described as a “hate crime” statute, provided for an increased prison term of 10 to 20 years if the trial judge found by a preponderance of the evidence that the crime was committed with the purpose to intimidate an individual or group because of race, color, gender, handicap, religion, sexual orientation, or ethnicity.
Apprendi was charged with numerous offenses regarding several shootings and the unlawful possession of weapons. None of the offenses referred to the hate crime statute or alleged that he acted with a racially biased purpose. After Apprendi was arrested, he stated he did not want the African-American occupants of the house living in the white neighborhood. Under a plea agreement, Apprendi pleaded guilty to two counts of second-degree possession of a firearm for an unlawful purpose and one count of third-degree unlawful possession of an antipersonnel bomb. At sentencing, Apprendi argued the hate crime statute was unconstitutional because the finding of bias upon which the hate crime sentence was based must be proven to a jury beyond a reasonable doubt pursuant to Winship. After considering the evidence, the judge rejected Apprendi’s constitutional challenge to the statute and concluded his actions were done for the purpose of intimidation and the hate crime statute applied. Apprendi was sentenced to a 12-year prison term on one of the second-degree offenses and to shorter concurrent sentences on the remaining two offenses.
The United States Supreme Court noted that judges have long exercised discretion by taking into consideration various factors relating both to the offense and to the offender when imposing a sentence within the statutory limits of an individual case. 530 U.S. at 481. However, the principles of the right to a jury trial can be lost by erosion when a legislative scheme removes the jury from determining a fact that, if found to exist, exposes a defendant to a penalty exceeding the maximum which a defendant would have received if punished based on the facts reflected only in the jury verdict. 530 U.S. at 482-83. The Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
Our Supreme Court adopted the rationale of Apprendi in Gould, 271 Kan. at 411. Gould was convicted of three counts of child abuse, each a severity level 5 person felony. Because Gould had a criminal history score of I, die sentencing range was 31-32-34 months’ imprisonment. The State moved for an upward departure because the victims were Gould’s children, the abuse to the infant twins was severe, and Gould showed no emotion or remorse until her conviction. The trial court found the aggravating factors were substantial and compelling reasons, granted the motion, and sentenced Gould to two consecutive prison terms of 68 months on the offenses involving the twins and a concurrent prison term of 34 months on the offense involving the third child.
Gould argued K.S.A. 2000 Supp. 21-4716 was flawed because it allowed for an upward departure based upon aggravating factors which were “facts, other than that of a prior conviction, not found by a jury beyond a reasonable doubt, [and] used to justify imposing a sentence beyond the statutory maximum for the underlying crime.” 271 Kan. at 411. This argument mirrored the rationale in Apprendi.
The Gould court determined the jury’s verdict authorized a sentence of 31 to 34 months for each child abuse conviction and the two 68-month sentences exposed Gould to punishment greater than that authorized by the jury’s verdict. It held the scheme for imposing upward departure sentences under K.S.A. 2000 Supp. 21-4716 violated the due process and jury trial rights contained in the Sixth and Fourteenth Amendments to the United States Constitution and vacated Gould’s sentence. 271 Kan. at 414.
Clearly, the courts in Apprendi and Gould limited the requirement for a jury determination to facts other than a prior conviction and Spates’ complaint involves only a prior conviction. However, Spates also relies upon language in Apprendi regarding a prior decision with the same issue involving recidivism. The Apprendi Court stated its decision in Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), was “at best an exceptional departure from the historical practice that we have described.” 530 U.S. at 487.
In Almendarez-Torres, under subsection (a) of a federal statute, an alien who was once deported was prohibited from returning to the United States without special permission, and a conviction under this subsection carried a maximum prison term of 2 years. Under subsection (b)(2) of the same statute, the maximum prison term was 20 years for “ ‘any alien described’ in subsection (a), if the initial ‘deportation was subsequent to a conviction for commission of an aggravated felony.’ ” 523 U.S. at 226.
Almendarez-Torres was charged with violating the statute, but the indictment did not refer to a subsection of the statute or to any prior felony convictions. Almendarez-Torres entered a plea of guilty and admitted he had been previously deported because of three aggravated felony convictions and that he had later returned to tire United States. At sentencing, Almendarez-Torres argued he could not be sentenced to more than 2 years’ imprisonment because the indictment did not set forth ail elements of the crime enunciated in subsection (b). The Almendarez-Torres Court had to determine whether subsection (b) defined a separate crime or authorized an enhanced penalty.
The Court found the relevant statutory subject matter was recidivism, which is a typical sentencing factor. 523 U.S. at 230. It found subsection (b) referred only to punishment for a felon who had been described under subsection (a). The Court stated the reference in subsection (b) to subsection (a) did not import the elements in subsection (a) and set forth a separate crime. The Al mendarez-Torres Court held subsection (b) was a sentencing factor. 523 U.S. at 230-35.
In Apprendi, the Court noted the question in Almendarez-Torres concerned the sufficiency of the indictment and its decision had turned upon the fact that the additional prison sentence was based upon the defendant’s prior convictions of a serious crime. It believed any due process and Sixth Amendment concerns were mitigated by procedural safeguards attached to the prior convictions, and Almendarez-Torres did not challenge the accuracy of his prior convictions. Apprendi, 530 U.S. at 488. The Apprendi Court then stated: “[I]t is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested . . . .”530 U.S. at 489-90. Because Apprendi did not contest the validity of the decision in Almendarez-Torres, the Apprendi Court did not revisit its previous decision in Almendarez-Torres and, instead, treated it as a narrow exception to the general rule that a defendant must be proven guilty beyond a reasonable doubt on all elements of an offense. 530 U.S. at 490.
Even if die United States Supreme Court overruled Almendarez-Torres, the change would not assist Spates’ argument. It would only mean that the prior aggravated battery felony convictions were elements of the current charged offense of illegal reentry into the country which would have to be proven in order to convict on the current offense.
The language in Apprendi about Almendarez-Torres does not affect the result in this case. Here, Spates’ prior juvenile adjudication was not an element of his current offense—aggravated assault. To convict Spates of aggravated assault, the State had to prove that he intentionally placed another person in reasonable apprehension of immediate bodily harm through the use of a deadly weapon. See K.S.A. 21-3408; K.S.A. 21-3410(a). Clearly, these statutes do not require the State to prove Spates had a juvenile adjudication. As a result, Apprendi does not apply to this situation.
Nevertheless, Spates believes the increase in his sentence by 13 months due to the inclusion of his juvenile adjudication in his crim inal history violates Apprendi because he did not have a right to a jury trial when that adjudication was made. Spates contends that the juvenile adjudication should not be included in his adult criminal history because it is not a criminal conviction and he did not have a right to a jury trial. He cites State v. LaMunyon, 259 Kan. 54, 59, 911 P.2d 151 (1996), where the court stated: “It is well established that a juvenile adjudication is not a ‘criminal conviction.’ [Citations omitted.]”
The LaMunyon court also noted juveniles have no constitutional right to a jury trial, citing McKeiver v. Pennsylvania, 403 U.S. 528, 543, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971). 259 Kan. at 62. The LaMunyon court further noted, under K.S.A. 38-1656, a jury trial is allowed in juvenile proceedings only for offenses which would be felony offenses if committed by an adult, citing Findlay v. State, 235 Kan. 462, 463-64, 681 P.2d 20 (1984). 259 Kan. at 62-63. More specifically, Findlay held that granting a jury trial under K.S.A. 38-1656 is entirely at the trial court’s option, is not a statutory right of the juvenile offender or the State, and is not reviewable upon appeal. 235 Kan. at 466.
What Spates ignores is that one of LaMunyon’s issues was whether juvenile adjudications which were not based upon jury trials should be excluded from the KSGA criminal history score. LaMunyon argued that using such juvenile adjudications in his KSGA criminal history score was analogous to using an uncounseled conviction to enhance a sentence imposed for a subsequent crime.
LaMunyon’s argument was flawed because he relied upon Baldosar v. Illinois, 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585 (1980), which was overruled in Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S. Ct. 1921 (1994). Kansas followed Nichols in State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995). See LaMunyon, 259 Kan. at 63-64. Relying upon the rationale of Nichols, the Delacruz court “concluded that the use of an uncounseled misdemeanor conviction which was constitutional [i.e., no jail time was imposed] could be used in determining a defendant’s criminal history under the KSGA even though it has the effect of enhancing a subsequent sentence under the KSGA. [Citation omit ted.]” LaMunyon, 259 Kan. at 64. The result of Delacruz was that “[constitutional] convictions can be used for subsequent proceedings under the KSGA.” LaMunyon, 259 Kan. at 64.
The LaMunyon court explained that although the uncounseled conviction “is used to enhance the present sentence, the sentence imposed for the present crime does not increase the penalty for the prior misdemeanor conviction. Under such circumstances, the defendant is being punished based on the current conviction. [Delacruz,] 258 Kan. at 135-36.” 259 Kan. at 64. If, however, the uncounseled conviction resulted in a sentence of imprisonment, then it was unconstitutional and could not be included in the calculations for the criminal history of a subsequent crime. 259 Kan. at 64-65.
The LaMunyon court held: “[T]he defendant’s juvenile adjudications were constitutional even if he had no right to a jury trial in those proceedings. Because the juvenile adjudications were not constitutionally infirm, they may be used in calculating the defendant’s criminal history score under the KSGA.” 259 Kan. at 65; see also State v. Lanning, 260 Kan. 815, 819, 925 P.2d 1145 (1996) (“The KSGA’s requirement that juvenile adjudications be considered in calculating an offender’s criminal history score is not inconsistent or in conflict with the statement in K.S.A. 38-1601 that a juvenile adjudication shall not be deemed or held to import a criminal act.”).
Although a juvenile does not have a right to a jury trial, other constitutional protections during the adjudicatory stage of a juvenile proceeding are: notice of charges, right to counsel, right of confrontation and examination of witnesses, and the privilege against self-incrimination. Winship, 397 U.S. at 368. The Kansas Juvenile Justice Code (formerly known as the Kansas Juvenile Offenders Code), K.S.A. 38-1601 et seq., requires those same constitutional protections. See K.S.A. 38-1606 (right to an attorney); K.S.A. 38-1612 and K.S.A. 38-1622 (complaint and notice of charges); K.S.A. 38-1633(b)(l)-(6) (before entering plea, juvenile informed of all rights—the nature of the charges, the presumption of innocence, the right to trial and to confront and cross-examine witnesses, the right to subpoena witnesses, the right not to testify, and the sentencing alternatives); K.S.A. 38-1653 (the rules of evidence of the code of civil procedure apply); K.S.A. 38-1654 (standard of proof beyond a reasonable doubt).
Because Spates has not-shown his juvenile adjudication was unconstitutional, the rationale of LaMunyon applies and Spates’ juvenile adjudication was correctly included in his KSGA criminal history score.
Spates further argues that use of his juvenile adjudication is contrary to the Kansas Juvenile Offenders Code. To support his argument, Spates notes that K.S.A. 38-1601 (Furse 1993) provided: “In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile.” Spates contends that because the Kansas Juvenile Offenders Code prohibited any juvenile adjudication from being construed as a criminal act, there should not be any criminal implications from juvenile adjudications and they should not be used to calculate a defendant’s criminal history.
Spates acknowledges that this issue was previously decided by our Supreme Court in LaMunyon. He nevertheless raises the issue in this court to preserve the question for federal review.
The LaMunyon court held:
“Considering a juvenile adjudication in calculating an offender’s criminal history score under the Kansas Sentencing Guidelines Act does not turn that adjudication into a criminal act. The terms ‘criminal act’ and ‘criminal history score’ mean different things. The Kansas Sentencing Guidelines Act’s requirement that juvenile adjudications be considered in calculating an offender’s criminal history score is not inconsistent or in conflict with the statement in K.S.A. 38-1601 that a juvenile adjudication shall not be deemed or held to import a criminal act.” 259 Kan. 54, Syl. ¶ 4.
LaMunyon further held that “[t]he consideration of juvenile adjudications which occurred before the effective date of the Kansas Sentencing Guidelines Act in calculating an offender’s criminal history score under the Act is not a violation of the prohibition against ex post facto laws.” 259 Kan. 54, Syl. ¶ 7.
After the LaMunyon decision was issued, the Kansas Legislature amended K.S.A. 38-1601 to omit the portion of the statute that prohibited any juvenile adjudication from being construed as a criminal act. See L. 1996, ch. 229, § 2.
This court is bound by our Supreme Court’s holding in LaMunyon, We find that the use of Spates’ juvenile adjudication in calculating his criminal history score was not in conflict with the Kansas Juvenile Offenders Code, nor did it violate the prohibition against ex post facto application of the law.
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Green, J.:
Wilbur R. McElroy, a/k/a Wilbert McElroy, appeals his conviction and sentence for attempted rape. On appeal, McElroy argues that the trial court erred when it refused to suppress eyewitness identification evidence. McElroy additionally argues that the trial court’s imposition of an upward durational departure sentence and an upward departure of his postrelease supervision was unconstitutional or, alternatively, that the trial court lacked a substantial and compelling reason to. impose the departures. We affirm in part, reverse in part, and remand for resentencing.
On June 30,1999, L.M. was walking behind an apartment building in Wichita, Kansas, when a man standing at the bottom of stairs to a basement laundry room asked her for a cigarette. When L.M. walked down the stairs to give the man a cigarette, he hit her in the face with a blunt object.
L.M. blacked out from the attack. When she regained consciousness, L.M. was naked from the waist down and the man was on top of her. According to L.M., the man raped her for several minutes before she was able to escape.
L.M. ran to the first open apartment door, where she asked a person there, Warren Dean, to help her. When L.M. told Dean that she had been raped by someone, he asked, “Who Wilbur?” Dean then went to the basement to retrieve L.M/s clothing. The assailant was still in the basement when Dean went down there.
L.M. then went to another apartment to call the police. L.M. described her attacker to the 911 dispatcher as a black male with a mustache and a small or medium Afro. She also stated that he was wearing tan shorts, a white shirt, and blue shoes.
L.M. waited on the scene for the police to arrive. While waiting, L.M. saw the attacker leave the basement and go into one of the other apartments in the building. When the police arrived, they obtained consent to enter that apartment and observed a man matching L.M/s description of the attacker. The suspect was later determined to be McElroy. When L.M. returned from the basement with officers to retrieve her belongings, she observed McElroy being questioned by police. L.M. spontaneously identified McElroy as the individual who raped her.
McElroy was charged with rape, but convicted by a jury of attempted rape. The trial court imposed an upward durational departure sentence of 102 months on the basis that the crime was sexually motivated and was of extreme sexual violence. The trial court also imposed a postrelease supervision departure of 60 months because McElroy committed attempted rape.
Eyewitness Identification
McElroy’s first argument on appeal is that the trial court erred in admitting, over his objection, eyewitness identification evidence because the pretrial identification procedure was unnecessarily suggestive. The admission of evidence lies within the sound discretion of the trial court. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
When assessing the validity of eyewitness identification, an appellate court must first determine whether the procedure used in making an identification was unnecessarily suggestive. If it was, then the next issue is whether, under the totality of the circumstances, the impermissibly suggestive identification led to a substantial likelihood of irreparable misidentification, constituting a denial of due process. See State v. Skelton, 247 Kan. 34, 39-40, 795 P.2d 349 (1990).
Here, L.M.’s identification of McElroy as her attacker is distinguishable from eyewitness identifications addressed in other cases where the police organized a one-person show-up identification. See, for example, Skelton, 247 Kan. 34; State v. Holloman, 17 Kan. App. 2d 279, 282, 837 P.2d 826, rev. denied 251 Kan. 940 (1992). The police in this case did not present McElroy to L.M. for identification. Instead, L.M. spontaneously identified McElroy as her attacker without prompting from police. Because the police did not organize a show-up procedure to obtain an identification of McElroy as the attacker, the procedure could not have been unnecessarily suggestive.
In any event, even if L.M.’s identification of McElroy as the attacker was the result of a suggestive police procedure, the trial court’s admission of the identification evidence was not erroneous. Factors to determine whether an improvident lineup or show-up is violative of due process are:
“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and fhe confrontation.” Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972).
The first and second Biggers factors examine the opportunity the victim had to view the criminal at the time of the crime and the witness’ degree of attention during the attack. Here, L.M. observed McElroy at the base of the stairs and for several minutes while he was attacking her. Although L.M. had been knocked unconscious from the attack, there was no evidence that her judgment or recall was impaired.
The third Biggers factor examines the accuracy of the witness’ prior description of the criminal. L.M. provided the 911 dispatcher with a detailed description of the attacker. This description matched McElroy.
The fourth Biggers factor examines the level of certainty demonstrated by the witness at the confrontation. L.M. testified that at the time of the on-site identification, she was certain McElroy was her attacker.
The final Biggers factor examines the length of time between the crime and the confrontatioii. The record in this case indicates that L.M. spontaneously identified McElroy as her attacker a few minutes after the attack.
In addition to L.M.’s eyewitness identification, Dean, McElroy’s roommate, independently identified McElroy as the individual who was in the basement at the time L.M. was attacked.
After careful consideration of the evidence under the factors stated in Biggers, we find that even if the identification procedure was unnecessarily suggestive, we cannot say under the totality of the circumstances that there was a veiy substantial likelihood of irreparable misidentification. As a result, the trial court did not err in admitting eyewitness identification evidence.
Durational Departure Sentence
McElroy additionally argues the trial court’s imposition of a durational departure sentence is unconstitutional.
In State v. Gould, 271 Kan. 394, Syl. ¶ 3, 23 P.3d 801 (2001), our Supreme Court held that
“[a]n 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 unconsü tutional. The Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face.”
The Gould court rationalized that
“[t]he notice and jury trial guarantees of die 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 die sentence established in the appropriate grid box under K.S.A. 2000 Supp-. 21-4704 be made by a juiy beyond a reasonable doubt.” 271 Kan. 394, Syl. ¶ 2.
We find that the holding in Gould applies to the instant case. As a result, the trial court’s imposition of an upward durational departure sentence was unconstitutional and McElroy must be re-sentenced consistent with Gould. In light of this determination, it is unnecessary to address McElroy’s contention that the sentencing court’s findings of fact justifying an upward durational departure sentence do not constitute a substantial and compelling reason for the departure.
Postrelease Supervision Departure
McElroy additionally contends that the trial court erred in imposing an upward departure of his postrelease supervision. Because McElroy had been convicted of a severity level 3 nondrug offense, he was required to serve 36 months on postrelease supervision under K.S.A. 1998 Supp. 22-3717(d)(l)(A). The provision for increasing the term of postrelease supervision was K.S.A. 1998 Supp.
22-3717(d)(l)(C)(i). The statute provides that a postrelease supervision departure may be imposed if “the judge finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction was sexually violent or sexually motivated. In that event, departure may be imposed to extend the postrelease supervision to a period of up to 60 months.” As used in the statute, “sexually violent crime” includes attempted rape. K.S.A. 1998 Supp. 22-3717(d)(2)(A) and (K).
An increase in postrelease supervision was recently addressed by this court in State v. Elms, No. 85615, filed September 21, 2001. The Elms court held that the trial court’s imposition of an increased period of postrelease supervision was an unconstitutional durational departure under Apprendi and Gould because the aggravating facts were not submitted to a jury and proved beyond a reasonable doubt.
Nevertheless, we hold that no error occurs under Apprendi and Gould where a factual determination is used to increase the period of postrelease supervision beyond the prescribed statutory maximum under K.S.A. 1998 Supp. 22-3717(d)(l)(A), provided that the fact used to exceed the prescribed statutory maximum has been submitted to a juiy and proved beyond a reasonable doubt.
The instant case, however, is distinguishable from Elms because the aggravating fact was submitted to a jury and proved beyond a reasonable doubt. The trial court imposed 60 months of postrelease supervision because McElroy committed attempted rape. Because the jury convicted McElroy of attempted rape, the fact relied on by the trial court in imposing the increased period of postrelease supervision was submitted to a jury and proved beyond a reasonable doubt. Moreover, we find that McElroy’s act of attempted rape constituted a substantial and compelling reason to impose the postrelease supervision departure. As a result, the postrelease supervision portion of McElroy’s sentence is affirmed.
The conviction is affirmed; the sentence is affirmed in part and reversed in part, and the case is remanded for resentencing. | [
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Schiffner, C.J.:
Salon Enterprises, Inc., d/b/a Par Exsalonce Hair Salon (Par Exsalonce) appeals from the ruling of the trial court that Par Exsalonce violated the Kansas Wage Payment Act (KWPA), K.S.A. 44-312 et seq., and the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 (1994) et seq.
Joan and Ronald Sandstrom are the owners and directors of Par Exsalonce. In November 1992, Par Exsalonce hired Topaze Lang-ford as a hairstylist. No written employment agreement was entered into although Langford signed a form prepared pro se by Par Exsalonce agreeing not to work within 5 miles of Par Exsalonce for a 2-year period in the event she terminated her employment.
Pursuant to the oral agreement of the parties, Par Exsalonce was to deduct a 6% overhead from the total amount of money generated by Langford and then pay her a 50% commission on the balance. The overhead amount was later reduced to 5%. Langford also received a 10% commission on her retail product sales.
In January 1994, Par Exsalonce modified its pay plan. Under the new plan, Langford’s compensation was calculated weekly, and she received commissions on retail and service revenues pursuant to a graduated scale. The commissions ranged from 50% to 60% after 5% for overhead expenses was subtracted from the total dollars she generated. Her retail product sales commission ranged from 10% to 15%, depending on the dollar level of her retail sales. Langford signed a document on January 15, 1994, entitled “Compensation Schedule” that contained the terms of the new pay plan but provided for nothing else.
Because of the increasing costs for retail hair products, Par Exsalonce instituted a new pay plan in June 1997 for all of its stylists. The 1997 plan increased the overhead percentage from 5% to 10% if a stylist failed to sell retail products amounting to at least 15% of his or her gross amount of revenue generated from services for the entire month. The commission was calculated monthly. Par Exsalonce reverted to its previous pay plan in January 1998.
Par Exsalonce informed the affected stylists of the new pay plan prior to its implementation and prior to the earnings by the stylists of any commissions affected by the plan. The plan was not in writing, and although Langford continued to work for Par Exsalonce, she objected to the plan, claiming that it was unfair and that a 10% deduction from gross service revenues was excessive.
Langford left Par Exsalonce in February 1998 and began working at another salon within 5 miles of Par Exsalonce. Par Exsalonce filed suit against Langford for breach of contract and against her new employer for tortious interference with a business relationship. Langford asserted counterclaims alleging Par Exsalonce had wrongfully withheld wages in violation of the KWPA and had failed to pay her overtime in violation of the FLSA.
The trial court dismissed Par Exsalonce’s claim against Lang-ford’s employer with prejudice. Following a bench trial, the trial court denied Par Exsalonce’s breach of contract claim, finding the covenant not to compete to be unenforceable.
The trial court found Par Exsalonce had wrongfully withheld wages of $369.80. It found that the withholding was intentional and that Langford was entitled to $739.40 in damages under K.S.A. 44-315(b). The trial court also found Par Exsalonce had violated the FLSA. However, because Langford failed to prove the number of overtime hours she had worked, it awarded Langford nominal damages of $1 and an amount for attorney fees to be assessed after a separate hearing. Langford was subsequently awarded $1,000 in attorney fees for the FLSA violation. Par Exsalonce timely appealed.
Par Exsalonce first argues the trial court erred in concluding it violated the KWPA, citing Alkire v. Fissell, 23 Kan. App. 2d 487, 932 P.2d 1034 (1997), which held that the KWPA does not address wage or pay cuts for at-will employees. Langford asserted at trial that Par Exsalonce unilaterally modified the terms of her compensation structure and wrongfully withheld her wages in violation of the KWPA. This case involves the interpretation of statutes, and this court’s review is unlimited. See Hamilton v. State Farm Fire & Cos. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
Langford relies upon K.S.A. 44-319(a), which states:
“No employer may withhold, deduct or divert any portion of an employee’s wages unless: (1) The employer is required or empowered to do so by state or federal law; (2) the deductions are for medical, surgical or hospital care or service, without financial benefit to the employer, and are openly, clearly and in due course recorded in the employer’s books; or (3) the employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee.”
The basic issue in this case is in the determination of what constituted Langford’s “wages” and, therefore, whether Par Exsalonce’s 1997 pay plan constituted a wage or pay cut for an at-will employee per Par Exsalonce’s argument or wrongfully withheld Langford’s wages in violation of the KWPA per Langford’s argument.
K.S.A. 44-313(c) provides: “ “Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.”
The facts are not in dispute. Langford was an at-will employee as was determined by the trial court. Langford’s wage was commission based. Her wage constituted the commission she was paid on the balance of the gross revenues she generated less an overhead percentage. The 1997 pay plan was announced before any wages were earned. Changing the amount of the overhead percentage constituted a wage or pay cut as opposed to a wrongful withholding of wages. K.S.A. 44-319(a) does not prohibit at-will employee pay cuts announced before wages are earned; therefore, Par Exsalonce’s 1997 pay plan was not violative of the KWPA. The trial court’s findings on this point are not supported by the record, and its legal conclusion is incorrect.
Par Exsalonce next argues the trial court erred in concluding it violated the FLSA. It argues the evidence was insufficient to establish Langford worked more than 40 hours per week. It also argues it was not required to pay Langford overtime under 29 U.S.C. § 207(i).
29 U.S.C. § 207(a)(1) states:
“Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
In ruling from the bench that Par Exsalonce had violated the FLSA, the trial court stated:
“[T]he lunch hours count . . . [T]he testimony is if you’re having lunch and someone walks in, you get up and go cut their hair .... I don’t know how you do operate one of these places unless you make people leave the shop for lunch hour. And it -1 mean, frankly, it just doesn’t malee sense because in many instances the hairstylist would probably rather work through the lunch hour and make the money than they would have lunch. . . .
“With respect to this overtime issue, I’m going to find that the evidence, by a preponderance of the evidence, establishes that [Langford] in this case at various times worked in excess of 40 hours per week and was not compensated in compliance with the federal regulations.”
The trial court stated the following in its journal entiy:
“D. The Plaintiff paid the Defendant in part by commission (for products sold) and in part by task or piece-meal.
“E. The Plaintiff, by making its employees available to work over lunch, even though not always requiring them to do so, violated the [FLSA] by failing to pay any overtime compensation.
“F. By a preponderance of the evidence, the Court finds that Defendant worked more than 40 hours in a workweek and was not compensated for such overtime work.”
Langford asserted at trial that on occasion she had worked extra hours before and after her scheduled shifts as well as during her meal breaks. Nevertheless, the trial court’s ruling was clearly based on evidence relating to the time Langford worked during her meal breaks.
The trial court erred in stating that Par Exsalonce violated the FLSA “by making its employees available to work over lunch, even though not always requiring them to do so.” Recently, in Powell v. Simon Mgt. Group, L.P., 265 Kan. 197, 960 P.2d 212 (1998), the Supreme Court set forth the applicable test for determining whether a meal break period is compensable under the FLSA. It quoted the pertinent federal regulation as follows:
“29 C.F.R. § 785.19 (1997), which governs § 207(a)(1) employees, states in pertinent part:
“ ‘(a) . . . Bona fide meal periods are not worktime .... The employee must be completely relieved from duty for the purposes of eating regular meals . . . .The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. . . .
“ ‘(b) . . . It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.’ ” 265 Kan. at 203.
Based on interpretation of the statute and regulation by federal courts, the Supreme Court adopted the predominant benefit test: “The test to determine if meal break periods are compensable under the Fair Labor Standards Act is whether the employee’s time is spent predominantly for the employer’s benefit or for the employee’s.” 265 Kan. 197, Syl. ¶ 1. The employees in Powell (security officers and a maintenance worker) were required to provide some service for their employer during meal breaks by monitoring their radios and malting themselves available to respond to calls. In affirming the district court’s conclusion that the employer had not violated the FLSA by not paying overtime for meal periods, the court stated:
“Providing the service, however, does not seem to have eclipsed the central purpose of the break as a time for the employees to relax and eat. On occasions when the employees wfere deprived of their time to relax and eat because they responded to calls, they were eligible for compensation and needed only to make note the occasion on the time card. Thus, it would appear that the employees, rather than the employer, predominantly benefited from how they spent their meal break time.” 265 Kan. at 211.
Thus, an employer who merely requires an employee to be available for work during a meal break does not violate the FLSA. Further, the evidence did not establish that Langford was required to be available during her meal break. Joan testified Langford was given time for meal breaks and any time Langford worked during her breaks was by choice. Langford’s testimony merely indicated she was available to work during her meal break and, at times, she cut hair during her break. Like the employees in Powell, Langford was compensated for the occasions she worked during her lunch break and thus benefited from how she spent that time.
Moreover, the evidence did not establish that Langford worked more than 40 hours per week because she was deprived of her break time. Langford testified that, on occasion, she worked more than 40 hours in a week. She stated that prior to May 1997, there were many instances when she worked more than 40 hours in a week. She attributed the extra hours to time spent conducting educational classes, attending meetings, performing clean-up work, and cutting hair for walk-ins during lunch or after the end of her shift. However, the record does not establish that Langford was scheduled to work a set number of hours per week, and the length of her mealtime bréale apparently varied on a daily basis.
For example, Langford presented the trial court with a work schedule for hours she worked over a 2-week period in December 1997. During the first week, she worked 36 hours with daily shifts ranging from 8 to 10 hours a day. For the second week, the schedule showed Langford worked 42 hours with daily shifts ranging from 8 to 9 hours. She testified that on 2 of the days, she worked during her meal breaks. On the other days, her breaks lasted 45 minutes to an hour. After subtracting time taken for meal breaks, Langford worked 38 hours during the second week. No other evidence was presented relating to the specific number of hours Langford worked each week or the number of hours worked during her meal breaks. Thus, it is not possible to ascertain if work during meal breaks caused Langford to work more than 40-hour weeks.
To support a claim for overtime compensation under the FLSA, the employee must show that he or she “actually worked overtime, that the amount of overtime was shown by justifiable and reasonable inference, and the employer had actual or constructive knowledge of the overtime.” Slattery v. HCA Wesley Rehabilitation Hosp., Inc., 83 F. Supp. 2d 1224, 1230 (D. Kan. 2000). Further,
“[a] complaint for unpaid wages should state both the workweeks for which compensation is claimed and the number of hours worked per week in sufficient detail to permit the defendant to properly prepare responsive pleadings. A plaintiff who is unable to state sufficient detail must state the reason for his inability to do so.” 48A Am. Jur. 2d, Labor and Labor Relations § 4578, p. 1098.
Langford’s testimony that, in general, she had worked more than 40 hours during unidentifiable workweeks was insufficient to establish Par Exsalonce had violated the FLSA. The record does not show that she posited any reason for her inability to establish a proper claim.
The trial court’s findings on this point are not supported by the record, and its legal conclusion is incorrect.
In its closing argument, Par Exsalonce argued it was not required to pay Langford overtime under 29 U.S.C. § 207(i) since Langford was a commission employee and her regular rate of pay exceeded the statutory requirement for exemption. 29 U.S.C. § 207(i) states:
“No employer shall be deemed to have violated subsection (a) of this section by employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified therein, if (1) the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable to him under section 206 of this title, and (2) more than half his compensation for a representative period (not less than one month) represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee.”
The employer bears the burden of showing the employee falls under an exemption of the FLSA, and courts must narrowly construe the exemption. Szymula v. Ash Grove Cement Co., 941 F. Supp. 1032, 1037 (D. Kan. 1996); Bush v. Wilson & Co., 157 Kan. 82, 89, 138 P.2d 457 (1943).
Presumably, the trial court did not discuss § 207(i) at trial or in its journal entry because it found Langford was paid in part by task or piece meal. The trial court apparently distinguished commissions Langford received for her retail product sales from her receipt of commissions for her performance of services and concluded her income received from the performance of services was not a “commission” under 29 U.S.C. § 207(i).
Federal regulations provide “guiding principles for determining whether an employee’s employment and compensation meet the conditions set forth in section 7(i).” 29 C.F.R. § 779.410 (2000). The regulations indicate that the exemption includes earnings generated by employees who perform and sell services. One regulation states:
“Although typically in retail or service establishments commission payments are keyed to sales, the requirement of [§ 207(i)(2)] is that more than half the employee’s compensation represent commissions ‘on goods or services,’ which would include all types of commissions customarily based on the goods or services which the establishment sells, and not exclusively those measured by ‘sales’ of these goods or services.” 29 C.F.R. § 779.413(b) (2000).
Another regulation describes a “bona fide commission rate” as one that “var[ies] in accordance with the employee’s performance on the job.” 29 C.F.R. § 779.416(b) (2000). Further, federal courts have interpreted the statute as including commissions for performance of services. See Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1177 (7th Cir. 1987).
A plain reading of the term “commission on . . . services” includes earnings generated by employees who perform and sell services. Black’s Law Dictionary 1167 (7th ed. 1999), defines “piecework” as “[w]ork done or paid for by the piece or job.” Although Langford’s rate of pay was tied to the number of haircuts performed, she was not paid a flat rate for each haircut. Rather, her compensation was based on a percentage of revenues generated from services she performed. There was no evidence that she generated the same revenue from each customer. The trial court incorrectly found Langford was paid on a piece rate basis.
As indicated, Par Exsalonce had the burden to establish that the exemption was applicable. In order for the exemption to apply, the employee must be employed by a retail or service establishment. Beauty shops and barber shops are recognized as having the characteristics of a retail or service establishment. See 29 C.F.R. § 779.318(a) (2000); 29 C.F.R. § 779.320 (2000). A retail or service establishment is defined as “an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.” 29 C.F.R. § 779.411 (2000).
Ronald testified that all revenues at Par Exsalonce were generated by the services provided to customers and the sale of retail products. Thus, under § 207(i), the trial court was required to determine whether Langford’s regular rate of pay was in excess of lVz times the minimum hourly rate applicable under the minimum wage provisions of § 206. In its argument to the trial court, Par Exsalonce’s attorney looked to the week in December 1997 where Langford claimed to have worked 42 hours. He stated the applicable rate of pay was $5.15 an hour, which would equate to $206 for a 40-hour week. The attorney multiplied $7.73 for the 2 hours of overtime, for a total of $221.46. Since Langford had earned $562.57 that week, he argued the exemption applied.
The method of calculating Langford’s regular rate of pay used by Par Exsalonce’s attorney was incorrect. Under the statute, if Langford’s minimum rate of pay was $5.15 an hour then her regular rate of pay must be more than lVz times that amount or $7.73 an hour in order to qualify for the exemption. See 29 C.F.R. § 779.419(b) (2000). Based on the $562.57 weekly earnings figure, Langford’s rate of pay was $13.39 an hour, which was clearly in excess of the exemption requirement.
The evidence showed Par Exsalonce was not required to pay Langford overtime for a particular week under the exemption, and it is likely that Par Exsalonce was not required to pay Langford overtime under 29 U.S.C. § 207(i) for the duration of her employment. As noted by the trial court, Langford failed to establish when she had worked overtime during her 5-year tenure at Par Exsalonce and the number of overtime hours she had worked. Because of this failure, it was not possible for Par Exsalonce to show Lang-ford’s regular rate of pay for a certain period exceeded lVz times the applicable minimum hourly rate.
The trial court’s ruling that Par Exsalonce violated the FLSA should be reversed as should its order awarding Langford $1,000 in attorney fees based on the FLSA violation.
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Beier, J.:
This case arises out of a dispute between Terry Lee and his former employer, Farmers Group, Inc., and its related entities (Farmers). It requires us to decide whether Kansas public policy permits an employer to buy a former employee’s silence about nonconfidential matters and thus prevent the employee from testifying on behalf of or otherwise assisting third parties who bring claims against the employer.
Lee worked for Farmers as a branch claims manager and a regional liability claims manager. At the time Lee left the company in spring 1994, he dismissed a charge against Farmers pending before the Equal Employment Opportunity Commission and signed a severance agreement in exchange for a payment in excess of $100,000. In the severance agreement, Lee agreed not to participate voluntarily in litigation against Farmers and to notify it immediately if anyone attempted to compel his testimony in any litigation “regarding Farmers’ business and employment practices.”
The severance agreement also contained confidentiality clauses and a liquidated damages provision, and it required Lee to share and review information or participate in litigation on Farmers’ behalf. It stated in pertinent part:
“10. Lee agrees that he will not disclose and will do everything possible to maintain in confidence a) the terms of this Agreement and b) the facts and circumstances of any alleged discrimination, defamation, harassment, breach of contract, tort or violation of any law by Farmers against Lee or any agent or employee of Farmers.
“12. If Lee breaches any or all of the terms of [the confidentiality clause in Paragraph 10 or the litigation provision in Paragraph 11] of this Agreement, Lee shall not receive any monies which have not been paid to him under this Agreement. If all monies due under this Agreement have been paid to Lee, Lee shall pay Farmers $20,000. Lee agrees that the $20,000 is fair and reasonable in light of the nature and extent of the damages to Farmers^] business and reputation in the event of a breach and in light of the time, expense and difficulty involved in proving the damages.
“13. Lee agrees that he shall not disclose or utilize any trade secrets, confidential information, or other proprietary information acquired during the course of his employment with Farmers, including without hmitation, internal Farmers financial information, operational procedures, or business plans. . . . Lee agrees that, upon Farmers’ request, he will cooperate with Farmers in providing information regarding Farmers’ business and employment activities in which he was involved; if requested in writing by Farmers, Lee’s cooperation will include, without hmitation, meetings, review of records and preparation for and presentation of testimony.”
When Lee began voluntarily participating in litigation against Farmers a few months later, Farmers filed this action. Lee participated in the ensuing proceedings only haphazardly, and Farmers obtained a permanent injunction at an ex parte nonevidentiary hearing. The injunction provided in pertinent part:
“Defendant and all those persons acting in concert with him are permanently enjoined from committing or attempting to commit the following acts:
“A. participating or assisting in the prosecution of any claims against Farmers ....
“B. disclosing or utilizing any trade secrets, confidential information, or other proprietary information acquired during the course of his employment with Farmers Insurance Exchange, including internal financial information, operational procedures, or business plans ....
“E. engaging in any other conduct or communication which violates the Agreement.”
On several occasions before and after the entry of the permanent injunction, the same district judge who issued it found Lee in contempt for violating its restrictions or those of predecessor temporary orders. On one of these occasions, Lee appealed to this court, arguing that Farmers had an adequate remedy at law. We rejected the appeal on the procedural ground that Lee had failed to raise that argument in the district court. Farmers Group v. Lee, Case Nos. 73, 592, 74,242, and 75,086, unpublished opinion filed June 28, 1996. Lee never otherwise appealed or challenged the scope or language of the injunction.
Approximately 5 years after the filing of the injunction, it came under fire from a new direction. Carol N. Arnold, Maurice W. Bourquin, Dawn R. Lansing, and Douglas A: Lansing moved to intervene and to modify or set aside the injunction, arguing that Lee should be permitted to testify as their expert in a pending action against one of the Farmers companies. The district court granted them relief, stating from the bench:
“The Court finds that the injunction previously entered against Mr. Lee must be modified from this date forward to omit the order that he not participate or assist in the prosecution of any claims against Farmers. Those portions of the injunction that pertain to legitimate trade secrets, confidential information and proprietary information remain intact. However, the Court finds that testimony as to Farmers’ ordinary claims procedures are not trade secrets or proprietary information, and therefore he may be called as a witness by the intervenors to testify regarding Farmers’ claims procedures.”
Farmers appeals from the modification of the injunction, arguing that the district court erred in allowing the intervention, in holding that an injunction forbidding Lee from testifying against Farmers violated public policy, and in concluding that Farmers’ ordinaiy operating procedures were not proprietary and confidential. Intervenors cross-appeal, arguing that all of the previous contempt citations of Lee also should be set aside and that the liquidated damages provision in the agreement constituted Farmers’ sole remedy against Lee for breach. Lee failed to perfect a cross-appeal, and his attempt to raise an additional issue will not be addressed.
Intervention
Farmers claims the trial court lacked authority to permit intervention. To the extent we must construe the rules pertaining to intervention, our review is de novo; the district judge’s decision to permit intervention based on those rules and the facts before it is subject to review for abuse of discretion. See State Bd. of Nursing v. Ruebke, 259 Kan. 599, 611, 913 P.2d 142 (1996); Mohr v. State Bank of Stanley, 244 Kan. 555, 770 P.2d 466 (1989) (denial of motion to intervene discretionary).
K.S.A. 60-224 provides:
“(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the dis position of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
“K.S.A. 60-224(a) should be liberally construed in favor of intervention.”' Roberts v. Krupka, 246 Kan. 433, 443, 790 P.2d 422 (1990). The court should consider whether the party timely applied, whether the party had a substantial interest in the subject matter, and whether the party could otherwise adequately protect his or her interests. Herrmann v. Board of Butler County Comm’rs, 246 Kan. 152, 155, 785 P.2d 1003 (1990).
Intervenors’ effort to become involved in this action was timely, as it appears to have been pursued when they learned the injunction raised an obstacle to Lee’s testimony in their case. See Krupka, 246 Kan. at 443-44 (party not required to intervene until interests implicated).
Further, intervenors assert that their due process right to secure the services of Lee as an expert is threatened by the injunction. “The right to examine and cross-examine witnesses testifying at any judicial or quasi-judicial hearing is an important requirement of due process.” Santee v. North, 223 Kan. 171, 173, 574 P.2d 191 (1977). Potential violations of constitutional rights can warrant intervention. See Johnson v. Mortham, 915 F. Supp. 1529, 1536 (N.D. Fla. 1995) (registered voters have standing to intervene, challenge voting district in which registered). We are satisfied that the district judge did not err in arriving at the conclusion that intervenors had a substantial interest in the subject matter of this action.
We also can imagine no comparably efficient and effective method for protecting intervenors’ interests. They adopted the most direct strategy: Ask the district judge responsible for the injunction to consider modifying or dissolving it.
KS.A. 60-910(b)
The district judge found that intervenors satisfied the requirements of K.S.A. 60-910(b), which provides that any interested party may petition to have a judgment of permanent injunction vacated or modified upon a showing of changed conditions and an adverse effect on the party’s interests. Farmers argues that intervenors demonstrated no change of conditions. Intervenors respond that the later-developing effect of the injunction on their personal right to call Lee as a witness in their case is change enough to satisfy the statute.
We agree with intervenors. When the injunction was put in place, intervenors were not yet on the scene. The district judge did not have the benefit of any arguments they might make regarding the effect of the injunction on their ability to pursue their cause of action.
Our holding on K.S.A. 60-910(b) eliminates the need for us to address the potential applicability of K.S.A. 60-260(b)(6) to intervenors. That section permits a court to vacate or amend an order for any reason justifying relief from the order’s operation. We view the district judge’s decision to permit intervention to question the injunction in this case as sound. It needs no further support.
Public Policy
After ruling that intervention was appropriate and that intervenors qualified to challenge the injunction, the district judge modified the injunction on public policy grounds. Her conclusion that the agreement as incorporated in the injunction violated Kansas public policy is reviewable de novo. See Weber v. Tillman, 259 Kan. 457, 461-62, 913 P.2d 84 (1996) (decision whether noncompetition covenant in employment contract contravenes public policy subject to de novo review).
Generally speaking, Kansas enforces written agreements between capable parties. See Puritan-Bennett Corp. v. Richter, 8 Kan. App. 2d 311, 316, 657 P.2d 589, rev. denied 233 Kan. 1092 (1983) (remanding with directions to the trial court to enforce non-compete agreement through appropriate equitable remedy). In order to qualify for an exception to this basic rule, intervenors must show a similarly compelling policy entitling them to develop and present the sort of testimony Lee originally agreed to refrain from presenting.
Other jurisdictions have addressed the public policy considerations affecting agreements such as the one before us when prompted by the behavior of another roving ex-employee witness, Ronald Elwell. Elwell has testified on behalf of third parties with claims against his former employer, General Motors Corp. (GM), see Baker et al. v. General Motors Corp., 522 U.S. 222, 226, 139 L. Ed. 2d 580, 118 S. Ct. 657 (1998); the continuing development of case law governing his activities constitutes another change of circumstances justifying the district judge’s reconsideration of the injunction in this case.
In Smith v. Superior Court, 41 Cal. App. 4th 1014, 49 Cal. Rptr. 2d 20, reh. denied (February 5,1996), rev. denied (April 18,1996), the court found that enforcement of a Michigan injunction designed to muzzle Elwell would violate the public policy of California. It noted that counsel for the third parties attempting to use Elwell’s testimony had submitted declarations showing Elwell was a crucial witness and that GM’s efforts to rebut these declarations were ineffective. The court also noted that the scope of the evidence suppressed by the injunction was far broader than that covered by the attorney-client privilege, work product doctrine, or trade secrets law. Further, the third parties’ interests were not before the Michigan court that had issued the injunction. 41 Cal. App. 4th at 1021-22. The court concluded:
“The Michigan injunction, derived exclusively from a voluntary agreement between Elwell and GM, results in the suppression of highly relevant, discoverable evidence most probably very damaging to GM’s position ....
“The agreement and resulting injunction not only violate our fundamental public policy against suppression of evidence, but recognition of the injunction would undermine the fundamental integrity of this state’s judicial system. We can imagine no stronger instance compelling application of the public policy exception to the full faith and credit clause.” Cal. App. 4th at 1026.
Likewise, in Williams v. General Motors Corp., 147 F.R.D. 270 (S.D. Ga. 1993), a federal district court in Georgia refused to enforce the Michigan injunction to prevent Elwell’s testimony on nonconfidential matters:
“[T]he Michigan injunction on its face—and as GM seeks to apply it here— extends far beyond matters that might legitimately qualify for protection under an attorney-client or work-product privilege, or which disclosure would qualify as misappropriation of trade secrets. ... [As such,] the Michigan order . . . violates Georgia public policy. . . .
. . . Any interest GM might have in silencing Elwell as to unprivileged or non-trade-secret matters is outweighed by the public interest in full and fair discovery.” 147 F.R.D. at 272-73.
See also Meenach v. General Motors Corp., 891 S.W.2d 398, 401-02 (Ky. 1995) (Kentucky court may, on public policy grounds, modify Michigan injunction to limit Elwell’s testimony to only nonconfidential relevant facts; neither Full Faith and Credit Clause nor rule of comity compel recognition of broader restrictions).
An Arizona federal district court took a similar position in Hannah v. General Motors Corp., 969 F. Supp. 554, 559-60 (D. Ariz. 1996), holding that its state’s public policy would be violated by enforcing the blanket Michigan prohibition on Elwell’s testimony:
“Arizona . . . has a strong, clearly defined policy of encouraging full, fair, open disclosure of all relevant, material evidence within a case. . . .
“Furthermore, the question of what evidence can be heard in a court of law touches upon fundamental issues concerning the judiciary’s very existence. This court, indeed every court throughout the nation, exists to serve the ends of justice. When a case cannot be resolved through motion practice this job invariably turns from an analysis of legal principles to a search for the truth. At that point the court must serve as a gatekeeper of evidence; allowing in all that conforms to the web of procedural and evidentiary rules that govern modem litigation. These rules have evolved over time to ensure that the facts presented to the jury are untainted by prejudice or bias . . . .The Michigan injunction usurps these mies by keeping out all of Elwell’s testimony. This in turn prevents the jury from making a determination based upon all the relevant, admissible evidence. The effect is an obscured search for truth.”
Most recently, the United States Supreme Court has reviewed the Elwell injunction, holding that a Missouri court’s refusal to enforce it in a suit brought by third parties against GM would not run afoul of the Full Faith and Credit Clause. See Baker, 522 U.S. at 235-41. The Supreme Court disclaimed a public policy basis for its holding, stressing that the Michigan court lacked authority over the third-party plaintiffs and their cause of action.
Here, of course, we are not faced with a Full Faith and Credit Clause complication. The district judge was reevaluating the merit of her own injunction, which she was certainly empowered to do. We need only decide whether we agree with her conclusion that the original injunction incorporating the parties’ agreement contravened Kansas public policy.
We agree that the original injunction overstepped. Kansas law is clear that an ex-employee may be enjoined from disclosing confidential material and trade secrets gained in the course of his or her employment. See K.S.A. 60-3321(a); Koch Engineering Co. v. Faulconer, 227 Kan. 813, 610 P.2d 1094 (1980). Moreover, our libel, slander, false light invasion of privacy, and tortious interference precedents serve to deter untruthful and unprivileged statements by the merely malicious, including former employees. See Dominguez v. Davidson, 266 Kan. 926, 974 P.2d 112 (1999) (false light invasion of privacy); Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 998 P.2d 114 (2000) (libel and slander); Drake v. Benedek Broadcasting Corp., 26 Kan. App. 2d 289, 983 P.2d 274, rev. denied 268 Kan. 886 (1999) (tortious interference with a contract).
The problem is that the agreement and the injunction under scrutiny here purported to prevent Lee from disseminating even nonconfidential, truthful information when called upon to do so in connection with a claim against his former employer. We agree with the California, Georgia, and Arizona courts quoted above: Permitting employers to silence former employees in such a manner ultimately undermines not only individual third-party plaintiffs’ abilities to vindicate their rights but the judicial system itself.
As is often stated, “the public has a right to every man’s evidence.” Berst v. Chipman, 232 Kan. 180, 188, 653 P.2d 107 (1982) (citing 8 Wigmore on Evidence § 2192, p. 70 [McNaughton rev. 1961]); accord United States v. Bryan, 339 U.S. 323, 331, 94 L. Ed. 884, 70 S. Ct. 724 (1950). “Any exceptions to the demand for every man’s evidence are not lightly created nor expansively construed since they are in derogation of the search for truth.” Kansas Gas & Electric v. Eye, 246 Kan. 419, 427, 789 P.2d 1161 (1990) (citing United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 [1974]); see also Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 172-74, 955 P.2d 1169 (1998) (holding plaintiffs’ interests in pursuing remedy for injury, obtaining discovery of relevant facts, can outweigh statutory peer review privi lege). The district judge was correct in limiting the reach of the agreement and the injunction on public policy grounds.
Operating Procedures as Confidential Material
Farmers also argues that the district judge erred in permitting testimony about its ordinary operating procedures because Lee specifically agreed not to disseminate this confidential information. The agreement provided that Lee would not “disclose or utilize any trade secrets, confidential information, or other proprietary information acquired during the course of his employment with Farmers, including without hmitation, internal Farmers financial information, operational procedures, or business plans.” Thus the only operating procedures that may not be disclosed under the agreement are those that are trade secrets, confidential, or proprietary.
Because the district judge preserved those aspects of the original injunction that prevented the disclosure of confidential information or trade secrets, Farmers should be adequately protected. We interpret the district judge’s order to mean that Lee may testily about only those ordinary operating procedures that are not covered by the agreement or the injunction, i.e., nonconfidential ordinary operating procedures.
Previous Contempt Citations and Liquidated Damages
Intervenors also argue that Lee should be relieved from the consequences of the previous contempt orders and that the liquidated damages provision in the agreement gave Farmers an adequate remedy, foreclosing injunctive relief. These are not intervenors’ issues to raise, and Lee is foreclosed from raising them by his previous inaction and procedural defaults.
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Paddock, J.:
Sandra R. Floyd appeals her conviction of aggravated failure to appear.
We affirm.
Floyd was charged with drug and tax stamp violations. Her trial on these charges was set for November 15,1999. She was released from custody on an appearance bond and ordered to report to pretrial services as directed. The conditions of Floyd’s bond stated failure to comply was a violation of the bond and could result in a bench warrant for her arrest.
Floyd met her reporting obligations until September 22, 1999, when she failed to report to pretrial services as ordered and did not report at any time thereafter. Bond forfeiture proceedings were initiated, and her bond was forfeited and a warrant was issued for her arrest on October 5, 1999.
Floyd was arrested in Arizona on November 16, 1999, and returned to Kansas on December 2, 1999. She was charged with aggravated failure to appear and was brought to trial on that charge on July 27, 2000.
At trial, it was shown that Floyd’s bond had been forfeited on October 5, 1999, and, therefore, the date upon which the crime of aggravated failure to appear occurred was 30 days later or November 4, 1999. At a bench trial, Floyd was found guilty as charged. Floyd timely appealed.
On appeal, Floyd claims the district court should have sustained her motion to dismiss the charges against her. She argues that reporting to pretrial services while released on an appearance bond is equivalent to probation. Thus, Floyd contends missing an appointment with pretrial services cannot constitute aggravated failure to appear. In support of her contention, she cites State v. Miller, 15 Kan. App. 2d 566, 811 P.2d 1256 (1991). In order to resolve the issue, we must interpret K.S.A. 21-3814, which defines the crime of aggravated failure to appear. In determining issues involving statutory interpretation, 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. 21-3814(a) states:
“Aggravated failure to appear is willfully incurring a forfeiture of an appearance bond and failing to surrender oneself within 30 days following the date of such forfeiture by one who is charged with a felony and has been released on bond for appearance before any court of this state, or willfully incurring a forfeiture of an appearance bond and failing to surrender oneself within 30 days after oneselfs conviction of a felony has become final by one who has been released on an appearance bond by any court of this state.”
Floyd incorrectly interprets Miller. The Miller court concluded K.S.A. 21-3814 did not apply to defendant’s failure to appear for a probation revocation hearing. 15 Kan. App. 2d at 571. The court reasoned that the original charge against defendant reached final judgment when she was sentenced and placement of defendant on probation did not affect that finality. Thus, that conviction could not serve as the underlying felony for a charge of aggravated failure to appear. 15 Kan. App. 2d at 571. The court also noted that because a probation revocation hearing is a quasi-civil procedure, failure to appear at such a hearing is not a criminal offense and, therefore, does not meet the statutory requirement of an underlying felony charge for which defendant failed to appear. 15 Kan. App. 2d at 571.
Here, Floyd failed to attend a meeting with pretrial services, which was a condition of her bond. This failure to attend caused a forfeiture of her bond and a warrant to be issued for her arrest. Unlike Miller, Floyd’s crime was predicated on a preconviction violation of her bond. The underlying felony charge was possession of methamphetamine. The facts and reasoning in Miller are not applicable to the instant factual situation. Failure to meet with pretrial services is not the functional equivalent of failure to appear for a probation revocation proceeding and will support a charge of aggravated failure to appear pursuant to K.S.A. 21-3814.
Next, Floyd argues the 30-day grace period necessary for conviction of aggravated failure to appear can only be triggered by a missed court appearance. She contends the earliest she could have committed that crime was December 15, 1999, 30 days after her scheduled court appearance on November 15, 1999, for trial on the drug charges. She cites no authority for her contention.
K.S.A. 21-3814 states that one who is charged with a felony and “willfully incurs a forfeiture of an appearance bond and fail[s] to surrender onself within 30 days following the date of such forfeiture” is guilty of aggravated failure to appear.
Floyd’s underlying charge was possession of methamphetamine, a felony. She does not claim her forfeiture was not willful nor does she claim the bond forfeiture was not proper. Her sole argument is that the 30-day grace period does not start until a missed court appearance.
K.S.A. 21-3814 is clear and unambiguous in that the crime of aggravated failure to appear accrues 30 days after the date of the bond forfeiture. Here, Floyd failed to report to pretrial services on September 22, 1999, as required. The bond was forfeited, and a warrant for her arrest was issued on October 5, 1999. Floyd did not return to Kansas until December 2, 1999, more than 30 days after the date of the bond forfeiture. Floyd’s argument lacks merit.
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Pierron, J.:
Wayne Stewart appeals the district court’s summary dismissal of his petition for writ of habeas corpus filed pursuant to K.S.A. 2000 Supp. 60-1501. Stewart’s petition concerns his complaint that prison officials refused to properly process his request for disposition of a certain detainer. The district court held that Stewart had refused to verify his petition as required by K.S.A. 2000 Supp. 60-1502, and, therefore, he did not comply with the Kansas Code of Civil Procedure.
It is not clear when Stewart initially mailed his petition to the district court. However, the petition was not verified as required by K.S.A. 2000 Supp. 60-1502. Stewart states that on June 21,2000, he received his unfiled petition in the mail with a copy of 60-1502 and a note from the clerk of the court stating: “Petition is not verified (by notary).” On June 23, 2000, Stewart sent his petition back to the court with a note stating:
“Please file my petition I’m returning. Please read Taylor v. McKune, 25 Kan. App. 2d 283, 962 P.2d 566 (1998), and Houston v. Lack, 487 U.S. 266, 101 L. Ed. 2d 245,108 S. Ct. 2379 (1988). In these cases the Kan. App. Court concluded that none of the deficiencies or omissions deprive the district court of jurisdiction.
“I’m returning my petition to you on this 21st day of June 2000. If you still feel lack of Notary is reason to return my petition again please enclose an Order of Non-Compliance for such, instead of the note I received today 21 June 00.”
Stewart’s unverified petition was filed on June 23, 2000. The district court entered its order of dismissal on July 12, 2000, and held:
“The problem now appears that Stewart, in like manner, is refusing to verify his petition for writ of habeas corpus herein after his omission was called to his attention by the Clerk. The law requires that applications for writs be signed and properly verified. It is also true that inadvertent oversights or omissions in the preparation or signing of pleadings does not deprive this court of jurisdiction as Stewart correctly points out. The distinguishing feature here and what sets this case apart from those cited in petitioner’s pleading is that here petitioner is, for whatever reason, refusing to properly prepare or verify his habeas corpus pleadings. Unintentional oversight is one thing. Deliberate refusal to comply with the rules of civil procedure is quite another.”
The district court was correct in its analysis.
Stewart bases his arguments on Taylor v. McKune, 25 Kan. App. 2d 283, 962 P.2d 566 (1998).Tn Taylor, the plaintiff timely filed a habeas corpus petition but failed to include verification, the proper fee, a poverty affidavit, or a list of prior civil actions. The district court did not file the plaintiff s petition, but sent it back to him requesting a correction of the problems or it would not file his petition. The plaintiff immediately remedied the deficiencies and the court filed his petition. Although the plaintiff s deficient petition was timely given to prison authorities for mailing to the district court, the court did not receive his petition until outside the 30-day requirement. The Taylor court held the delivery of a pro se habeas petition to prison authorities for mailing to the clerk of the district court constituted a filing within the meaning of K.S.A. 60-1501(b) and tolled the 30-day statute of hmitations. 25 Kan. App. 2d 283, Syl. ¶ 1.
Stewart relies on Taylor for the court’s discussion of the plaintiff s initial deficient petition.
“We have noted Taylor’s petition was initially filed with no verification, no list of prior civil actions, no filing fee, and no poverty affidavit. While Taylor quickly remedied those deficiencies upon receiving the district court’s order of noncom pliance, the question remains whether any of the deficiencies prevented the petition from being accepted by the clerk of the district court upon receipt. We conclude the answer is no; none of the deficiencies or omissions deprived the district court of jurisdiction. See Avco Financial Services v. Caldwell, 219 Kan. 59, 62-63, 547 P.2d 756 (1976) (jurisdiction is unaffected by the timing of the payment of a docket fee); Patterson v. Patterson, 164 Kan. 501, 504, 190 P.2d 887 (1948) (imperfect verification or lack of verification does not oust the court of jurisdiction).” 25 Kan. App. 2d at 288.
We understand the district court’s attempts at screening petitions for writ of habeas corpus prior to filing in what appears to be an attempt to obtain complete statutory compliance or to save administrative costs. However, according to Taylor, the lack of a proper verification of a petition for writ of habeas corpus is not a jurisdictional defect. 25 Kan. App. 2d 283, Syl. ¶ 2. The clerk should have filed Stewart’s unverified petition and then asked the court to send an order to correct the deficiencies. The court could then have instructed Stewart that if he did not correct the deficiencies set forth in the order of noncompliance, the case would be dismissed. In this way, the verifiction requirements of K.S.A. 2000 Supp. 60-1502 could have been complied with and the K.S.A. 2000 Supp. 60-1501 petition properly considered.
However, under the facts of this case, we have a different situation than we had in Taylor. Taylor, upon being informed of the deficiencies in his petition, corrected them. In the instant case, Stewart was informed of the deficiencies and refused to correct them. As stated above, the 60-1501 petition should have been filed and Stewart should have been given an opportunity to correct the deficiencies. However, since he refused to take the necessary steps after being informed of what he needed to do, under the facts of this case, the timing of the actual dismissal of his petition was not critical. The timing was important in Taylor as the statute of limitations had run between the time Taylor filed his original request and when he complied with the notice of the deficiencies. Here, there has been no compliance at all.
Since notice of the deficiencies was given to Stewart by the clerk, a formal order of noncompliance was not necessaiy. Had Stewart corrected the deficiencies after receiving the notice, Taylor would have applied.
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Lewis, J.:
In 1995, Billy Litdejohn, Jr., was convicted of aggravated kidnapping, aggravated battery, and criminal possession of a firearm. The convictions were affirmed on direct appeal. See State v. Littlejohn, case No. 74,935, unpublished opinion filed April 18, 1997. He was represented by counsel at trial and on direct appeal. He filed the instant K.S.A. 60-1507 motion, claiming he received ineffective assistance of appellate counsel. The trial court denied his motion, and this appeal follows.
We affirm.
Most of the facts of the movant’s convictions are irrelevant to this appeal. What is relevant is that prior to trial, he filed a motion to suppress physical evidence, a knife and a handgun, taken from his jacket during a warrantless search of his residence. The trial court denied the motion. Defense counsel, at trial, did not object to the introduction of the evidence which formed the basis of the motion to suppress.
On appeal, the movant’s appellate counsel did not brief the suppression issue. In the current 60-1507 motion, movant argues that the brief filed by his appellate counsel did not meet consti tutional standards for effective assistance of counsel and that he did not have effective assistance of counsel on his appeal. The parties agreed at the trial court level that no evidentiary hearing was necessary.
The trial court denied the movant’s motion, finding the suppression issue was not preserved for appeal and that his appellate counsel had no obligation to brief that issue or to raise it as an issue on appeal.
We agree with the trial court.
When a trial court considers a claim of ineffective assistance of counsel, it must apply the two-prong test of Strickland, v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). First, a movant must show' that the representation fell below an objective standard of reasonableness, and second, the movant must show that unprofessional errors were sufficient to undermine confidence in the result of the proceeding. Graham v. State, 263 Kan. 742, 755, 952 P.2d 1266 (1998). Counsel is strongly presumed to have exercised reasonable professional judgment in making all significant decisions. An appellate court must apply the same test when considering a claim of ineffectiveness of appellate counsel. Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 (1988). Both prongs of the inquiry are mixed questions of fact and law and must be reviewed de novo. State v. Orr, 262 Kan. 312, 321, 940 P.2d 42 (1997).
The issue which the movant insists his counsel should have briefed was obviously and totally without merit. The Supreme Court and this court have said repeatedly that where a pretrial motion to suppress has been denied, the moving party must object to the introduction of the evidence at trial in order to preserve the issue for appeal. Where there was no contemporaneous objection at trial, the Kansas appellate courts have uniformly refused to consider the issue. Examples of cases which apply that rule are State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999), and State v. Cellier, 263 Kan. 54, Syl. ¶ 2, 948 P.2d 616 (1997).
In Baker v. State, the Supreme Court addressed a claim that appellate counsel was ineffective in failing to raise an issue. The court rejected that claim and stated that appellate counsel has no professional duty to raise all colorable issues, even if requested by the client to argue a particular issue. Rather, experienced counsel must determine the central issues and winnow out the weaker arguments.
We see no reason why appellate counsel should be required to raise and brief issues on appeal which have not been preserved for appeal and which are totally without merit on appeal. The interests of the sound administration of justice require that counsel use good professional judgment and raise only those issues on appeal which have been properly preserved for appeal.
We hold that a litigant may not base a claim of ineffective assistance of counsel on the fact that his or her appellate counsel failed to brief or raise an issue on appeal which had not been preserved for appeal in the manner required in Kansas.
Accordingly, we affirm the trial court’s decision to the effect that the movant’s appellate counsel was not ineffective for refusing to raise a suppression issue which had not been preserved for appeal.
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Elliott, J.:
Farmland Industries, Inc. (Farmland), Vulcan Materials Company (Vulcan), and Kansas Industrial Consumers (KIC) (collectively petitioners) filed separate appeals challenging several orders issued by the Kansas Corporation Commission (KCC) allocating refunds that local distribution companies (LDCs) received from upstream participants in the natural gas industry to qualified low-income residential consumers.
We heard arguments on the two cases on the same day, and we are filing one opinion to dispose of both appeals. We affirm.
The Natural Gas Policy Act of 1978 (NGPA), 15 U.S.C. § 3301 et seq. (1994), allowed producers to charge an amount in excess of tire statutory maximum price in order to recover the cost of State severance taxes. 15 U.S.C. § 3320(a)(1) (repealed effective 7/26/ 89). Prior to the NGPA, the federal regulatory agency had permitted producers to include in their prices the cost of Kansas ad valorem taxes. See Federal Power Commission Opinion No. 699-D, 52 F.P.C. 915 (1974).
Commencing in 1983, numerous parties filed pleadings with the Federal Energy Regulatory Commission (FERC) challenging producers’ actions in using the cost of Kansas ad valorem taxes to exceed the maximum NGPA price. Initially, FERC ruled the practice to be lawful under the NGPA. Sun Exploration 6- Production Co., 36 FERC ¶ 61,093 (1986); see Northern Natural Gas Co., 38 FERC ¶ 61,062 (1987). Thus began the long and tortured history of this litigation.
After considerable delay, FERC changed its position and ruled the Kansas ad valorem tax was not a “severance tax” under NGPA; FERC ordered the producers to refund the excess charges and also ordered the pipelines to flow through the refunds to their customers, the LDCs. Colorado Interstate Gas Co., 65 FERC ¶ 61,292, at 62,374 (1993). Three years later, the D.C. Circuit Court affirmed FERC’s ruling that Kansas ad valorem taxes were not “severance” taxes under federal law. Public Service Co. of Colorado v. F.E.R.C., 91 F.3d 1478, 1484-86 (D.C. Cir. 1996), cert. denied 520 U.S. 1224 (1997).
Between 1983 and 1988, tariffs filed by LDCs in Kansas all contained purchased gas adjustment clauses (PGA) or cost of gas riders (COGR) permitting the LDCs to pass on their natural gas commodity cost (selling price from pipeline to LDC) to their customers. Based on the clauses, Kansas ad valorem taxes were passed on to retail customers.
After 1988, the KCC permitted commercial and industrial customers in Kansas to purchase natural gas directly from producers and marketers and pay only transportation costs to pipelines and LDCs for delivery of the gas. As a result, these LDCs’ current “sales” customers are a small number of commercial customers and residential users.
Under the tariffs on file with the KCC in 1988, LDCs were not permitted to keep the refunds they were receiving from pipelines. The tariffs required any refunds received to be passed on through PGA or COGR provisions. The tariffs also contained general language allowing the KCC to make case-by-case determinations for the distribution of supplier refunds.
In May 1998, the KCC opened a generic investigation to establish general policies for the handling of tax refunds the Kansas LDCs were receiving from the pipelines, concluding it had jurisdiction to require LDCs to pass the refunds on to customers, to the extent the customers were not under FERC jurisdiction. Separate dockets were opened for each LDC.
Between 1984 and 1988, Vulcan was a retail customer of Peoples Natural Gas Company (PNG), a division of UtiliCorp. After 1988, Vulcan ceased buying gas from PNG and commenced purchasing and transporting gas directly from a pipeline.
During the 1983 to 1988 time frame, Farmland purchased gas for its various facilities in Kansas from United Cities Gas Company (now Greeley Gas Company [Greeley]), PNG, and Kansas Gas Service Company, a division of ONEOK, Inc. (KGS).
KIC is a group including Cargill, Inc., General Motors Corporation, Owens-Coming Fiberglas Corporation, Procter & Gamble, and the University of Kansas Medical Center, all of whom are former sales customers of KGS.
At one point, the KCC determined that a portion of the overcharge refunds would be distributed to large industrial and commercial consumers who were sales customers of the LDCs between 1983 and 1988. The KCC stated that sales customers who actually paid the excess charges had an “equitable interest” in the refunds and should, therefore, receive refunds to the extent possible. Each of these separate KCC orders, however, stated no refunds would be made until other legal issues were resolved.
Natural gas prices began to rapidly increase in late 2000, and the KCC established a task force to address methods for mitigating expected increasing gas prices during the upcoming winter. KGS and other LDCs sought to amend their refund distribution plans in light of the increasing gas prices, to allocate a portion of the refund accounts to present sales customers to alleviate the consequences of a harsh winter.
In January 2001, the KCC issued an order permitting KGS to refund $5.6 million to existing sales customers via its COGR, but requiring KGS to retain in escrow the funds allocated to the former large industrial customers.
Later in January 2001, the Kansas Senate and Kansas House passed resolutions urging the KCC to pass on the ad valorem tax refunds to residential consumers “to the extent allowed by law.” S. Res. 1808 and H. Con. Res. 6006.
The Citizens’ Utility Ratepayer Board (CURB) then sought residential ratepayer relief, requesting immediate distribution of all ad valorem tax refunds in accordance with the House and Senate resolutions. The KCC granted reconsideration of its prior order and set a schedule for evidentiary hearings on the overcharge distribution plans. No evidentiary hearings had been held in 1999, but die KCC -ruled that changed circumstances—including the prior winter’s harsh weather, the significant increase in gas prices, and the increase in refunds received by the LDCs—warranted such hearings. The KCC indicated it would reconsider the plans previously approved in 1999, in light of the changed circumstances. The KCC also consolidated the separate dockets for the various LDCs into a single docket.
The KCC then issued its initial order finding residential customers were the least able to absorb the increases in gas costs which occurred in 2000 to 2001. The KCC also noted that most of the large industrial consumers left the LDC systems as sales customers after 1988, requiring LDC costs to be spread among smaller customers.
Accordingly, the KCC determined the claims of the large industrial consumers failed to justify a continuation of the prior distribution plans and ordered the LDCs to submit new plans for the distribution of refunds to their current low-income customers. The eligible customers were defined as at or below 300% of federal poverty level.
Several motions for reconsideration were filed, and KCC staff moved for a clarification. The KCC issued an order denying all the parties’ motions for reconsideration and clarifying its May 3, 2001, order. The KCC acknowledged it had previously recognized petitioners’ equitable claims and noted petitioners’ decision to become transportation only customers created economic tradeoffs: Petitioners can now buy gas directly from producers at reduced rates, but gave up any automatic right to potential future refunds under the PGAs or COGRs.
Petitioners primarily attack the KCC order allocating refunds by claiming they have a vested property interest in the refunds under federal and/or state law. Petitioners claim the KCC cannot take their property and allocate it to other LDC customers.
A right is “vested” when.-a party has a clear present interest or right; a mere expectation of a future benefit or a contingent interest founded on anticipated continuance of existing laws is not a vested right. Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, 473-74, 618 P.2d 778 (1980); Stockman v. Unified Gov’t of Wyandotte County/Kansas City, 27 Kan. App. 2d 453, 461, 6 P.3d 900 (2000). For a right to be vested, there must exist an expectation of permanency. U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 94, 966 P.2d 68 (1998). If a right is vested, it cannot be taken away by retroactive legislation since that would constitute a taking without due process. Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 873, 936 P.2d 297, rev. denied 262 Kan. 962 (1997).
Rights under federal law
Petitioners claim a vested right under federal law because the upstream charges were unlawful under the NGPA and those charges were paid by themselves as end users. They also rely on various FERC and federal court rulings, claiming those rulings require the refunds to be directed to them.
Petitioners’ arguments are certainly not without appeal, but- are unsound. The FERC and federal court rulings on which they rely specifically dealt only with the relationships between producers and pipelines—controlled by the NGPA—and between pipelines and LDCs—which are controlled by the Natural Gas Act (NGA), 15 U.S.C. § 717(b) (1994). Nothing in those opinions extends a clear present right to refunds to retail sales customers.
In various cases involved in the history of this litigation, FERC and the courts mentioned that refunds must be returned to the “customer.” For example, in Public Service Co. of Colorado v. F.E.R.C., 91 F.3d 1478, the court upheld FERC’s ruling that Kansas ad valorem taxes were not severance taxes under the NGPA. 91 F.3d at 1486. The circuit court also noted FERC’s order required the producers to make refunds to the pipelines and for the pipelines to “channel those refunds to their customers.” 91 F.3d at 1480. (Emphasis added.)
Petitioners also cite to language in Public Service Co. of Colorado, et al., 80 FERC ¶ 61,264 (1997), discussing a procedure to ensure refunds are made to “customers who overpaid the pipelines.” 80 FERC ¶ 61,264, at 61,954. The “customers” making the arguments about the refund procedure were LDCs—Public Service Company of Colorado and Cheyenne Light, Fuel and Power Company. 80 FERC ¶ 61,264, at 61,949.
In Anadarko Petroleum Corp. v. F.E.R.C., 196 F.3d 1264 (D.C. Cir. 1999), cert. denied 530 U.S. 1213 (2000), the court noted that the equities between the producers and “their customers” did not justify a blanket waiver of interest because of FERC’s delays in deciding the issue. 196 F.3d at 1268.
In all these cases, FERC and the courts were discussing the producers, the pipelines, and their customers. Here, however, petitioners were not customers of the producers or the pipelines; at relevant times, they were customers only of the LDCs. And petitioners do not dispute that the relationship between the LDCs and their customers (including petitioners) was within the exclusive jurisdiction of the KCC. It would be unreasonable to presume the federal decision makers were referring to the ultimate retail customer (who would be outside FERC jurisdiction) absent a clear indication to the contrary.
Further, there is a long history of limiting the effect of federal regulatory agency orders. See Central States Co. v. Muscatine, 324 U.S. 138, 143-44, 89 L. Ed. 801, 65 S. Ct. 565 (1945) (while the purpose of NGA was to protect ultimate consumer, the means available to the Federal Power Commission (FPC) to achieve that purpose was to regulate costs at wholesale and leave to states the function of regulating intrastate distribution or sale of the commodity). This standard was later relaxed, relying on federal courts’ equity jurisdiction. See Power Comm’n v. Interstate Gas Co., 336 U.S. 577, 580, 93 L. Ed. 895, 69 S. Ct. 775 (1949).
This earlier federal case law did not mandate the refund of excess charges to the end consumer. At best, it gave federal courts equitable power to do so when a court holds funds paid in as a condition of a stay of a rate appeal. Petitioners cite to no federal statute which otherwise requires FERC to directly allocate refunds to end users.
Washington Urban League v. F.E.R.C., 886 F.2d 1381 (3d Cir. 1989), is also instructive. There, an LDC received a refund from a pipeline. The Urban League, on behalf of retail consumers, petitioned FERC to order those refunds to be passed on to end consumers. FERC rejected the claim. 886 F.2d at 1384. On appeal, the circuit court held that refunds by pipelines were not required to be returned to end consumers and FERC was not required to order LDCs to flow through the refunds. 886 F.2d at 1386, 1388, 1390. The court also rejected arguments that FERC orders requiring refunds to “customers” referred to end-user consumers rather than the pipeline’s direct customers. 886 F.2d at 1389. In fact, the court held it was reasonable for FERC to handle refunds so as to “leave decisions for the apportionment of such funds to the individual PGAs and tariffs of downstream entities.” 886 F.2d at 1390. And finally, the court rejected Urban League’s claim that failing to allocate a refund to its members was fundamentally unfair. 886 F.2d at 1390.
Similarly, FERC has recently rejected arguments in a related proceeding that its orders should specifically require LDCs to pass on any Kansas ad valorem tax refunds to their retail customers. Williams Gas Pipelines Central, Inc., 95 FERC ¶ 61,055 (2001). There, Midwest Gas Users’ Association (MGUA) objected to a settlement agreement because it did not “give assurance to Kansas ratepayers that they will ultimately receive their appropriate share of the refunds.” 95 FERC ¶ 61,055, at 61,135.
FERC rejected MGUA’s objections and specifically refused MGUA’s request to order refunds to be paid directly to former retail customers because “the distribution of refunds by an LDC is a matter within the purview of state and local regulatory authorities.” 95 FERC ¶ 61,055, at 61,138.
While MGUA has appealed the order to the D.C. Circuit, FERC’s order is consistent with the authorities cited above.
Petitioners have no vested right under federal law to the refunds at issue.
Rights under state law
Petitioners also claim they have a vested right to the refunds under state law, relying on three theories. First, they claim that because federal law mandates return of refunds to end users, the KCC is required to do so under federal preemption rules and K.S.A. 66-1,185. Since we have rejected petitioners’ claims that federal law mandates refunds to the end users, this theory fails.
Second, petitioners rely on Sunflower Pipeline Co. v. Kansas Corporation Commission, 5 Kan. App. 2d 715, 624 P.2d 466, rev. denied 229 Kan. 671 (1981), where we upheld a KCC order requiring a pipeline to provide refunds. Applying the “filed rate doctrine” implied from K.S.A. 66-108 (1980 Ensley) (now K.S.A. 66-101c), we held it was unlawful for the pipeline to charge in excess of the filed rates, even if those filed rates became unreasonably low after the tariff was filed. 5 Kan. App. 2d at 718-19. We also held the KCC had implied authority to order refunds under K.S.A. 66-101. 5 Kan. App. 2d at 719. And finally, we rejected the pipeline’s claim that less than full restitution should be ordered on equitable grounds, reasoning that allowing the pipeline to refund less than 100% of the overcharges would constitute retroactive rate making. 5 Kan. App. 2d at 722.
Petitioners’ reliance on Sunflower is misplaced, as it is factually distinguishable in several important respects. Here, petitioners were required to pay additional charges to their LDCs because the LDCs passed on the ad valorem tax charges passed on to them by the pipelines and producers. Unlike the utility in Sunflower, petitioners here were not initially charged an amount in excess of the filed tariff.
Between 1983 and 1988, the rates paid by petitioners were prima facie valid. In fact, FERC specifically found the charges lawful under the NGPA. Sun Exploration & Production Co., 36 FERC ¶ 61,093 (1986). It was not until 1993 that FERC determined the charges were unlawful and, thus, ordered a refund.
Prior to 1988, the rates petitioners were charged under the LDCs’ tariffs were prima facie lawful. In fact, the KCC could not refuse to allow the LDCs to pass on their cost of gas without running into federal preemption problems and perhaps violating K.S.A. 66-1,185. Federal courts have consistently prohibited state utility regulators from issuing rate orders which are inconsistent with FERC-approved rates. See, e.g., Nantahala Power & Light v. Thornburg, 476 U.S. 953, 966, 90 L. Ed. 2d 943, 106 S. Ct. 2349 (1986); Public Service Co. of New Hampshire v. Patch, 221 F.3d 198, 202-03 (1st Cir. 2000), cert. denied 531 U.S. 1145 (2001).
Further, to the extent FERC determined, prior to 1993, that the ad valorem tax charges were proper, the KCC was required to recognize the FERC order and to permit the LDCs to pass those charges on to their customers, including petitioners. K.S.A. 66-1,185. While those charges were determined much later to be unlawful, those charges were lawful at the time they were initially passed through to petitioners.
KIC correctly notes that until judicial review is completed, utilities are subject to refund orders if the rates are ultimately determined to be unlawful. See Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, Syl. ¶ 9, 941 P.2d 390, rev. denied 262 Kan. 961 (1997). However, whether the rates were final does not mean petitioners had a “vested” right to a part of the refunds. Significantly, Kansas Pipeline Partnership did not address the mechanisms to utilize when refunding overcharges or involve the prolonged delay as is present in tire case at bar.
Finally, in Sunflower, we specifically noted our ruling might be different if increased rates were collected under an interim rate made or based on regular orders which were later found to be unlawful. 5 Kan. App. 2d at 722. In short, Sunflower clearly recognized that a utility’s obligation to make refunds might differ if the overcharges were collected based on a KCC order allowing the rate increase. That is the situation here. There is no claim the LDCs collected amounts from petitioners that exceeded what, at the time, had been found to be lawful by FERC and the KCC.
Sunflower does not create a vested right in petitioners to refunds of charges subsequently determined to be unlawful.
The present case is not unlike Arco v. Utils. & Transp. Comm’n, 125 Wash. 2d 805, 888 P.2d 728 (1995). In Arco, several former industrial consumers sought review of the commission’s order denying them a portion of a refund of overcharges incurred while they were retail customers of an LDC. There, as here, the industrial consumers had chosen to become transportation-only customers.
There, as here, while they were still retail customers, their LDC passed on some increased rates from its pipeline supplier. Later, when the final approved rates were lower, the pipeline paid refunds to the LDC. There, the commission, after the industrial consumers ceased being retail customers, ordered the LDC to pass a portion of the refund on to current retail customers through a prospective rate reduction. The former industrial consumers were not allowed to share the prospective reduction unless they returned to the LDC as retail customers.
There, as here, the former customers appealed, arguing they had a protectable property right to the refunds. And there, the court ruled the former customers had no reasonable expectation they would receive a refund of the rates at the time they paid them to the LDC. The court ruled the former customers were not “overcharged” during the time the interim rates were temporarily allowed. 125 Wash. 2d at 812-13. The court also held there was no clear expectation there would be any refunds since the rates could have been approved in full. 125 Wash. 2d at 812-13.
We adopt the Arco reasoning. As in Arco, the petitioners in the present case had no reasonable expectation to a refund during the time they were retail customers of the LDCs. Prior to their departure from the system as sales customers, there were no over charges under the filed tariffs. At best, they had nothing more than contingent expectations the ad valorem charges passed on to them by the producers, pipelines, and -LDCs might be held unlawful in the future. Their interest was contingent upon (1) FERC holding the charges unlawful; (2) FERC ordering pipelines to refund the overcharges to the LDCs; and (3) the KCC ordering LDCs to pass on those refunds to all of their customers, past and present. None of these events occurred prior to petitioners choosing to abandon their positions as retad customers. Petitioners had no vested interest in any future refunds the LDCs might receive.
For their third theory, Farmland and Vulcan argue, in cursory fashion, the KCC orders in late 1999—which allocated a portion of the refunds to them—became final when no one moved for reconsideration of those orders. Accordingly, they claim their rights to refunds vested at that time. But Farmland and Vulcan, in their post-hearing brief to the KCC, specifically stated they were not making a claim based on the 1999 orders.
Farmland and Vulcan are precluded from raising this issue because they failed to include the issue in their motions for reconsideration. See K.S.A. 2000 Supp. 66-118b. The issue was raised by KIC in its motion for reconsideration, but KIC has not briefed it. Since this issue was raised in such a cursoiy fashion, it is deemed abandoned. See Campbell v. City of Leavenworth, 28 Kan. App. 2d 120, 126, 13 P.3d 917 (2000), rev. denied 270 Kan. 897 (2001).
Petitioners also argue they have a claim to a share of the refunds under applicable tariffs. Absent a vested right under federal or state statutes or court rulings, the question becomes whether petitioners have any other enforceable rights to the refunds under other law or theories. Other than equitable claims, the only other potential source of a claim to refund would be based on the LDC tariffs.
Here, petitioners’ arguments are less than clear. Farmland and Vulcan claim the KCC misconstrued current tariffs and argüe the tariffs, by their terms, do not apply to refunds generated in the 1980s. They also seem to imply they may have a claim under current tariffs as transportation customers.
KIC argues the refunds cannot legally pass through current tariffs, primarily based on a retroactive rate making claim. Alterna tively, KIC argues the KCC abused its discretion in rejecting its equitable claim and allocating all the refunds to low-income residential customers. KIC, however, seems to concede that under KGS’s current tariffs, it has, at best, only an equitable claim to the refunds.
Tariffs contain those terms and conditions which govern the relationship between a utility and its customers. Tariffs duly filed with the regulatory agency are generally binding on both the utility and its customers. Grinsted Products, Inc. v. Kansas Corporation Comm’n, 262 Kan. 294, 309, 937 P.2d 1 (1997). Legally established tariffs are construed in the same manner as statutes. 262 Kan. at 310. And the interpretation of a “statute” by an agency charged with responsibility of enforcing the “statute” is entitled to judicial deference. McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 645, 983 P.2d 853 (1999).
PGAs (and COGRs) are permitted under FERC regulations and allow pipelines and sellers for resale to pass through increases to their customers without obtaining regulatory approval. FERC also requires cost decreases to be passed through in the form of reductions. See East Tennessee, Etc. v. Federal Energy Reg., 631 F.2d 794 (D.C. Cir. 1980); see Consolidated Edison v. F.E.R.C., 958 F.2d 429, 435 (D.C. Cir. 1992). The PGA/COGR clauses involved in the present case all seem to pass supplier refunds regardless of source to current sales customers.
The KCC interpreted all the tariffs as requiring refunds, as received by the LDCs, to be passed on to current sales customers under the PGA/COGR provisions. While Greeley’s and UtiliCorp’s refund provisions refer to “such customers,” reading the tariff as a whole, this reference does not seem to contemplate the actual retail customers who paid the overcharge, but only the utility’s current customers. Nothing in the tariffs indicates the refund mechanisms were tied to when the overcharges were actually paid rather than when the LDC received the refund. Moreover, the fact that “certain” provisions of KGS’s COGR “may” apply to transportation service does not negate the supplier refunds provisions’ reference to customers, later defined as residential, commercial, and industrial sales customers.
Reading the tariffs as a whole, the KCC’s interpretation of them is not contrary to the clear language of the “statutes” and is not erroneous as a matter of law. Under the doctrine of operative construction, we must defer to the KCC’s interpretation of the tariffs.
An inherent problem with PGA/COGR clauses is that they have a built-in delay factor. They permit LDCs to pass along price increases and decreases to current customers. But when the increases or decreases are due to atypical events, they do not provide a mechanism for allocating surcharges or refunds to those who were customers when the unusual event actually occurred. Courts generally permit the surcharges/refunds to be passed on to current customers for pragmatic reasons: It is simply too burdensome to maintain records to track when customers join and leave the system in the event these unusual events occur. Petitioners cite no cases which clearly mandate allocation of refunds to former customers.
When a wholesaler of natural gas receives a refund from upstream producers or pipelines, FERC generally has interpreted PGA/COGR clauses to require those refunds to be passed on to the wholesaler’s current customers. E.g., East Tennessee, 631 F.2d at 802. But see Panhandle Eastern Pipe Line v. Federal Energy, 95 F.3d 62, 73-74 (D.C. Cir. 1996), where a pipeline was ordered to reimburse customers, some of whom no longer contracted with the pipeline. However, the former customers in that case were LDCs. Thus, the customer relationship was within FERC’s jurisdiction.
In other contexts, courts have recognized that delays in ordering refunds can prevent refunds from reaching those who actually paid the overcharges due to the transient nature of our society. See F.P.C. v. Tennessee Gas Co., 371 U.S. 145, 154-55, n.9, 9 L. Ed. 2d 199, 83 S. Ct. 211 (1962), cf. Tennessee Valley Mun. Gas Ass’n v. Federal Power Com’n, 470 F.2d 446, 452-53 (D.C. Cir. 1972).
In a different context, we have held that passing refunds through mechanisms other than current cost adjustment clauses in tariffs is retroactive rate making. Kansas Gas & Electric Co. v. Kansas Corp. Comm’n, 14 Kan. App. 2d at 527, 532-37, 794 P.2d 1165, rev. denied 247 Kan. 704 (1990). Other states have also recognized that their statutes give utility commissions power to issue refunds to current customers for refunds/surcharges passed on after considerable delay. E.g., Assembly v. Public Utilities Com., 12 Cal. 4th 87, 100-02, 48 Cal. Rptr. 2d 54, 906 P.2d 1209 (1995); In re Northern Indiana Public Service Co., 157 Pub. Util. Rep. 4th (PUR) 206, 229-31 (Ind. 1994); Archer Daniels Midland v. State, 485 N.W.2d 465 (Iowa 1992) (take-or-pay surcharge to LDC was current cost rather than a past loss and could be passed on to current customers).
Further, allowing refunds from prior overcharges to pass under current tariffs makes common sense. Requiring utilities to trace overcharges back to the original customers who might have paid all or part of the overcharges is inefficient and difficult. As noted by the Washington Supreme Court in Arco:
“This result reflects the commonsense rule that expenses and savings are passed along to customers when they are realized. Businesses do not normally try to determine the point of origination of the expense or saving, and then track down the customers that existed at the time. For example, if a merchant incurs a large liability as a result of a lawsuit that arose from an accident on the premises several years earlier, the merchant would not try to charge extra to those who made purchases the day of the accident. The expense would instead be passed along to the merchant’s current'customers. ... It is reasonable for the Commission to approve a plan that accomplishes what would essentially occur in an unregulated business enterprise.” 125 Wash. 2d at 815 n.5.
In the present case, no one disputes the LDCs should not be required to track down all the residential customers on their systems between 1983 and 1988 and pay them a pro rata portion of the ad valorem overcharges. Petitioners, however, argue they should receive a portion of the refunds simply because they kept better records or because information regarding their proportionate purchases was generated in the Wyoming Tightsands antitrust litigation—which was proceeding during the relevant time frame. The availability of this information, however, does not make petitioners’ rights vested and does not otherwise entitle them to refunds under current tariffs.
Petitioners also argue that if the refunds are not returned to the retail customers who actually paid the overcharges, the allocation would constitute unlawful retroactive rate making.
Previously, the Supreme Court held that due process requires that a regulated utility be allowed a reasonable return on the value of its property at the time it is being used for public service. Accordingly, profits a company may have earned in the past cannot be used to sustain confiscatory rates for the future. Board of Commrs v. N.Y. Tel Co., 271 U.S. 23, 32, 70 L. Ed. 808, 46 S. Ct. 363 (1926).
Petitioners also rely on Sunflower to assert retroactive rate making has occurred. While Sunflower stated that allowing a utility to avoid a full refund could constitute retroactive rate making, the case is clearly distinguishable, as we have previously discussed. Further, federal preemption rules discussed above establish that the rates paid by petitioners at the time they were paid were lawful.
While the parameters of retroactive rate making are not always clear, the consensus among utility commissions and courts is that refunds like those involved in the present case do not raise retroactive rate-making concerns. Courts have recognized that using PGA/COGR clauses to pass credits on to a wholesaler s current customers is not retroactive rate making; it simply enforces tariffs as they exist at the time of the credit. East Tennessee, 631 F.2d at 800. A present refund on past payments simply “reflects how the passage of time can alter the appropriate form of the pass through that was mandatory under tariffs already in effect when the payments were made.” 631 F.2d at 800. And cf. Natural Gas Clearinghouse v. F.E.R.C., 965 F.2d 1066, 1073 (D. Cir. 1992).
Other states have also noted surcharge and refund proceedings are separate from base-rate proceedings and do not constitute retroactive rate making. E.g., UGI Utilities v. Pennsylvania Public Util, 677 A.2d 882, 887 (Pa. Commw. 1996).
Accordingly, allocating refunds to current customers under current PGA/COGRs rather than to former customers who may have actually paid the overcharges does not violate the ban against retroactive rate making.
Petitioners also contend the allocation of all the refunds to a Hmited class of ratepayers was unlawful, discriminatory, and unduly preferential.
As a general rule, one class of consumers cannot be burdened with costs created by mother class. Jones v. Kansas Gas and Electric Co., 222 Kan. 390, Syl. ¶ 10, 565 P.2d 597 (1977); Midwest Gas Users Ass’n v. Kansas Corporation Commission, 5 Kan. App. 2d 653, 660, 623 P.2d 924, rev. denied 229 Kan. 670 (1981). On the other hand, we have rejected the notion this principle requires that rate design allocation be limited to cost of service factors. Midwest Gas, 5 Kan. App. 2d at 661. In reviewing rate design issues, a structure imposing different rates on different classes will be upheld if there is a reasonable basis to support it. 5 Kan. App. 2d at 663.
As noted, the KCC has broad discretion in making decisions in rate design types of issues. Since petitioners (1) had no vested right to refunds, and (2) were not entitled to claim refunds under applicable tariffs, at most they have only an equitable claim as former customers. Accordingly, even though the KCC allocated the refunds to current customers (or even a small subclass of current customers), petitioners cannot show they have been burdened with costs created by another class; they would be unable to obtain refunds under the tariffs, even if the KCC had not modified the refund provisions.
Petitioners’ reliance on K.S.A. 2000 Supp. 66-1,202 and K.S.A. 2000 Supp. 66-1,204 is misplaced. The parties provide little guidance in defining what is “unreasonably” discriminatory or “unduly” preferential. To the extent the KCC is making allocations based on current versus former customers, the order is not unduly or unreasonably discriminatory or preferential. The cases discussed above demonstrate it is a well-established process to flow through refunds to current customers through PGA/COGR clauses, regardless of the source of the original overcharges. These same arguments, under similar Washington statutes, were rejected in Arco. 125 Washington 2d at 816-17.
To the extent petitioners contend the KCC orders are unduly discriminatory or preferential because they favor one subclass of current customers rather than all current customers, the question is a close one. The KCC allocated most, if not all, of the refunds to low-income residential customers. The bulk of current custom ers otherwise entitled to receive refunds are statutorily represented by CURB. See K.S.A. 66-1223(a). Yet CURB initiated the proceedings resulting in the orders at issue here. At oral argument, CURB counsel informed us that while they received a few phone calls expressing disappointment, no calls protested the position taken by CURB.
Since current residential and small commercial customers are represented by CURB, petitioners are precluded from claiming the KCC order unfairly discriminates against other current sales customers. We must limit our consideration to the equities between petitioners and the current low-income customers.
In their briefs, petitioners have not challenged the KCC’s factual findings that (1) by leaving the LDC systems as sales customers in 1988, petitioners caused substantial operational costs to be spread among residential and small commercial customers (although the industrial customers may have carried an unfairly heavy burden of those costs before 1988); (2) petitioners had more mechanisms available between 1983 and 1988 to spread the cost of gas caused by the ad valorem overcharges than did residential consumers; (3) the winter weather in 2000-2001 was unusually harsh; (4) natural gas prices were unusually high during that winter; and (5) many residential consumers were disproportionally harmed by the harsh winter and the unusually high gas prices. Petitioners’ claim of undue discrimination fails; the KCC order was not so “wide of the mark” to be reversible. See Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, 941 P.2d 390, rev. denied 262 Kan. 961 (1997).
Petitioners rely on a recent decision from the Missouri Public Service Commission to support this argument. See In re Missouri Gas Energy’s Application for Variance, No. GE-2001-393 (March 15, 2001) (MGE). However, MGE dealt with a finding that using refunds to fund social engineering-type programs was unlawful; the dispute arose because current customers were subjected to discrimination by the Commission’s decision. Petitioners, not otherwise entitled to refunds under current-filed tariffs, cannot find comfort in relying on MGE.
Finally, petitioners claim the KCC order denying them a portion of the refund was unreasonable, arbitrary, and capricious; their arguments refer in part to the tariff, discrimination, and retroactive rate-malting arguments addressed above. Those arguments have failed.
KIC also argues it is arbitrary and capricious to deny their equitable claim in order to benefit a very limited class of current customers. Frankly, if we were the KCC, we might well have decided this case differently. But we are not permitted to substitute our judgment for that of the KCC. Hence, according to Kansas Pipeline Partnership, we
“may not set aside an order of tire commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it.” ’ ” 24 Kan. App. 2d at 48-49.
Allocating refunds is analogous to a rate design order, which allocates revenue requirements among different classes of customers. We have routinely recognized rate design entails distinct considerations. E.g., Midwest Gas Users Ass'n v. Kansas Corporation Commission, 5 Kan. App. 2d 653.
Here, the KCC was faced with evidence requiring it to weigh petitioners’ equitable claims to refunds against evidence of the present need of some current retail sales customers. Another body might well have weighed those concerns differently tiran did tire KCC. Other rational minds could reasonably conclude the present solution was nothing more than an expedient resolution of various social welfare issues. But because the KCC is permitted to make pragmatic adjustments when reconciling diverse interests, we are unable to state the KCC was “so wide of the mark” that we can nullify the KCC order. Kansas Pipeline Partnership, 24 Kan. App. 2d at 48-49.
We also note a similar argument was considered and rejected in Arco:
“The evidence in the record regarding the burdens, the responsibility for which [the former customers] avoided by leaving the [LDC’s] system, is enough to constitute substantial evidence upon which the Commission could have decided that it is just and reasonable that they should not share in tire benefit of the refund allocation. Similarly, the distinction between current customers and former customers is enough to support the Commission’s order under the arbitrary and capricious standard.” 125 Wash. 2d at 812.
Petitioners’ argument that the KCC order was arbitrary and capricious fails.
We must, therefore, affirm the KCC order.
The stay order and bonds previously ordered shall remain in force and effect until this opinion becomes final and a mandate is issued. | [
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Knudson, J.:
Ronald V. Gatlin brought this civil action against his former spouse’s law firm, Hartley, Nicholson, Hartley & Arnett, P.A., in a 17-page petition containing incomprehensible and convoluted allegations. Rather than grant the defendant’s motion to dismiss the petition for failure to state a claim, the district court directed Gatlin to file an amended petition with allegations and claims to be concisely stated. The court also ordered
“that plaintiff include in his amended petition the relief being sought on his claims of defamation, abuse of process and conflict of interest, as well as legal arguments and authority on the issue of whether the Court has the power to grant the re quested relief. The Court stated [;sic] that if the amended petition ... did not contain all of the elements listed above, plaintiff s action would be dismissed.”
Although the court gave no statutory citation in support of its order, we conclude the court’s order was appropriate under K.S.A. 60-212(e), which states:
“If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, such party may move for a more definite statement before interposing such parly’s responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the judge is not obeyed within 10 days after notice of the order or within such time as the court may fix, the judge may strike the pleading to which the motion was directed or make such order as the judge deems just.”
Gatlin’s amended petition was a rehash of the allegations in the original petition, and there was no effort to provide legal arguments or authorities to support his amorphous claims. The district court dismissed Gatlin’s petition for failure to state a claim upon which relief can be granted, pursuant to K.S.A. 60-212(b)(6). Gatlin appeals. We affirm.
Gatlin fails to provide this court with an appropriate standard of review as required under the rules of appellate practice. See Supreme Court Rule 6.02(e) (2000 Kan. Ct. R. Annot. 35). The defendant contends abuse of discretion to be our standard of review. We disagree. The correct standard is clearly set out in Grindsted Products, Inc. v. Kansas Corporation Comm'n, 262 Kan. 294, 302-03, 937 P.2d 1 (1997):
“[T]he question must be decided from the well-pleaded facts of plaintiffs complaint. 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. [Citations omitted.]”
In its order dismissing plaintiff s action, the district court stated:
“Upon hearing oral arguments and considering the submissions from both parties, die Court finds that plaintiff has not complied with the March 7,2000 Order. Although the Amended Petition was timely filed, it does not include the specific remedies being sought by the plaintiff, nor does it include any persuasive authority to support the plaintiff s claims. On the claim of conflict of interest, plaintiff cites to die Model Rules of Professional Conduct. However, Kansas case law holds that an alleged violation of the professional conduct rules does not create a private cause of action against an attorney in favor of a third party. On the defamation claim, plaintiff has failed to provide any authority as to how he could overcome the privilege that exists in Kansas for communications made in the course of litigation or related to judicial proceedings. Likewise, plaintiff has failed to provide the requested relief and specific authority for his abuse of process claim. Furthermore, plaintiff has not provided any allegations sufficient to state a cause of action for abuse of process.”
The district court’s findings and conclusions are well founded.
Violation of the Model Rules of Professional Conduct does not create a cause of action against an attorney in favor of an adverse party. OMI Holdings, Inc. v. Howell, 260 Kan. 305, Syl. ¶ 1, 918 P.2d 1274 (1996).
The elements of defamation are: (1) false and defamatory words, (2) communicated to a third party, (3) which result in harm to the reputation of the person defamed. Dominguez v. Davidson, 266 Kan. 926, 930, 974 P.2d 112 (1999). In the present appeal, the plaintiff first complains of a statement the advérse party’s attorney made to him. That statement cannot form the basis of a defamation claim because it was not communicated to a third parly. Second, plaintiff complains of a statement in a letter from the attorney to one of the plaintiff s attorneys. The statement was a privileged communication, see Restatement (Second) of Torts § 586 (1976), and, in any event, does not contain any defamatory words that would support a cause of action. Finally, plaintiff alleges the attorney told a third party, “ ‘[Gatlin] isn’t . . . totally innocent in all this, there are things about him you don’t know.’ ” This statement constitutes personal opinion and hyperbole, not defamation. See Liqui-Box Corp. v. Stein, 98 Ohio App. 3d 481, 484, 648 N.E.2d 904 (1994).
Plaintiff s representation of a claim for abuse of process is also facially deficient. An abuse of process claim concerns the improper use of process after it has been issued. Jackson & Scherer, Inc. v. Washburn, 209 Kan. 321, 331, 496 P.2d 1358 (1972). Plaintiff does not assert any misuse of the divorce court’s power. The process employed was that intended by law.
We conclude plaintiffs amended petition fails to state a claim upon which relief can be granted; thus, the district court did not err in its dismissal of the action.
There is another substantial reason the district court’s action was proper under the specific averments of plaintiffs petition and amended petition. K.S.A. 2000 Supp. 60-208(a)(l) requires that a petition set forth “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” K.S.A. 2000 Supp. 60-208(e)(1) provides “[e]ach averment of a pleading shall be simple, concise and direct.” K.S.A. 2000 Supp. 60-208 is similar to Fed. R. Civ. Proc. 8.
In Levine v. County of Westchester, 828 F. Supp. 238, 241 (S.D.N.Y. 1993), the court explained: “ ‘[C]omplaints which ramble, which needlessly speculate, accuse and condemn, and which contain circuitous diatribes far removed from the heat of the claim do not comport with these goals and this system’ and must be dismissed.”
So it was with the petition and amended petition before the district court in this proceeding. Those pleadings contained conclusoiy, rambling, and incoherent allegations defying reason or logic. The plaintiff s failure to reasonably meet the liberal dictates of K.S.A. 2000 Supp. 60-208(a)(l) and (e)(1) also justifies the district court’s dismissal of the underlying lawsuit.
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Pierron, J.:
Randy T. Armstrong appeals from the sentence imposed following a no contest plea to reduced charges. Finding no error, we affirm.
In May 2000, Armstrong entered pleas of no contest to two counts of attempted aggravated indecent liberties with a minor, severity level 5 felonies. In the plea agreement, Armstrong acknowledged his criminal history score would likely be “A.” At the plea hearing, Armstrong acknowledged he might be subject to classification as a persistent sex offender.
A presentence investigation (PSI) report was prepared which reflected that Armstrong had six prior convictions for statutory rape 2 and one conviction of statutory rape 3 from the State of Washington. The persistent sex offender rules of the Kansas sentencing guidelines applied. See K.S.A. 2000 Supp. 21-4704(j). After the report was prepared, Armstrong objected to the criminal history score. Armstrong argued his prior convictions were being used to enhance his sentence as a persistent sex offender and therefore could not also be included in his criminal history score.
At sentencing, Armstrong admitted the PSI report correctly reflected his prior convictions, but renewed his objection to including those convictions in his criminal history. The State argued that two of Armstrong’s prior convictions could be used to classify Armstrong as a persistent sex offender and the remaining five convictions could be included in his criminal history. The trial court overruled Armstrong’s objections and assigned him a criminal history score of “A.” On Count I, the court imposed a 272-month sentence, double the standard presumptive sentence for grid box 5-A, pursuant to K.S.A. 2000 Supp. 21-4704(j). A concurrent sentence, using a criminal history score of “I,” of 34 months was imposed on Count II.
The sole issue on appeal is whether the court was barred under K.S.A. 21-4710(d)(ll) and K.S.A. 2000 Supp. 21-4704(j) from including any of Armstrong’s prior sex crimes in his criminal history because he was found to be a persistent sex offender. This issue calls for interpretation of the sentencing statutes and is subject to unlimited review by this court. See State v. Hildebrandt, 270 Kan. 1, 4, 12 P.3d 392 (2000). Criminal statutes must be strictly construed in favor of the accused. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and effect legislative intent. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). In construing statutes, the intent of the legislature is paramount, and we must consider the entire act, with our duty being to reconcile the various provisions to malee them harmonious, consistent, and sensible. Hildebrandt, 270 Kan. at 4.
In this case, the trial court doubled Armstrong’s presumptive sentence pursuant to K.S.A. 2000 Supp. 21-4704(j). That statute provides:
“The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. . . . Except as otherwise provided in this subsection, . . . ‘persistent sex offender means a person who: (1) Has been convicted in this state of a sexually violent crime . . . and (2) at the time of the conviction under subsection (1) has at least one conviction for a sexually violent crime, ... in this state or comparable felony under the laws of another state . . . .” (Emphasis added.) K.S.A. 2000 Supp. 21-4704(j).
Armstrong does not challenge the number or nature of his prior convictions. However, he contends that pursuant to K.S.A. 21- 4710(d)(ll) and State v. Taylor, 27 Kan. App. 2d 62, 998 P.2d 123, rev. denied 269 Kan. 940 (2000), none of his prior convictions could be included in his criminal history score. We find Taylor to be of little assistance in this case.
In Taylor, the defendant was sentenced as a persistent sex offender based on his current crime of conviction (aggravated indecent liberties) and his one prior conviction of indecent liberties. 27 Kan. App. 2d at 63. In interpreting various sentencing statutes, this court compared the persistent sex offender statute—K.S.A. 2000 Supp. 21-4704(j)—with the predatory sex offender statute— K.S.A. 2000 Supp. 21-4716(b)(2)(F)(ii)(a). 27 Kan. App. 2d at 65-66. Because the predatory sex offender statute was specifically exempted from K.S.A. 21-4710(d) and specifically provided for including prior sex crimes in criminal histoiy, this court concluded the absence of similar language in the persistent sex offender statute indicated such offenders were to be treated differently. 27 Kan. App. 2d at 66-67. Because the defendant in Taylor had only one prior conviction, this court held that prior conviction could not be included in Taylors criminal history score under K.S.A. 21-4710(d)(ll). 27 Kan. App. 2d at 68.
Because the defendant in Taylor had only one prior conviction for a sexually violent crime, that court did not address the question presently before us—whether the court may classify a defendant as a persistent sex offender based on one prior sex offense and include other prior sex offenses in the defendant’s criminal history score. We are persuaded another Taylor case, State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), provides appropriate guidance in these circumstances.
In Taylor, 262 Kan. 471, the defendant was convicted in various cases and was sentenced to probation. Several months later, he was charged with aggravated escape from custody. In the complaint, the State alleged the defendant was in custody on a felony cocaine possession charge from one of the cases. The defendant pled guilty to escape and a dispute arose at sentencing as to the proper calculation of the defendant’s criminal history that was based upon whether defendant’s other convictions from the same case as the possession of cocaine conviction could be included in his criminal history score. After reviewing the complaint and various sentencing statutes, the Supreme Court concluded all the prior convictions, except the single conviction of possession of cocaine, should be included in the criminal history. 262 Kan. at 479.
The same rationale applies in this case. The sentencing guidelines specifically provide that all prior convictions are to be considered in a defendant’s criminal history score unless otherwise excluded. K.S.A. 21-4710(c). One statutory exception prohibits including prior convictions of any crime “if they enhance the severity level or applicable penalties, ... or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” K.S.A. 21-4710(d)(ll).
In this case, a defendant may be sentenced as a persistent sex offender if he or she “has at least one conviction for a sexually violent crime.” K.S.A. 2000 Supp. 21-4704(j). By the plain terms of the statute, only one prior conviction of a sexually violent crime is necessary to support an enhanced sentence as a persistent sex offender. When read in conjunction with K.S.A. 21-4710(c) and K.S.A. 21-4710(d)(ll), the trial court is required to include in the criminal history any other convictions beyond that necessary to trigger the enhancement.
For these reasons, the trial court did not err in calculating Armstrong’s sentence. The court used one of Armstrong’s prior statutory rape convictions to trigger the persistent sex offender enhancement and excluded this conviction from Armstrong’s criminal history score. Armstrong’s other prior convictions were sufficient to give Armstrong a criminal history of “A.”
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Pierron, J.:
Dennis J. Mulroy sued Duane L. Olberding and Western Resources, Inc. (Western) alleging that on April 15,1997, Olberding operated his vehicle while under the influence of alcohol, causing an automobile accident and resulting in personal injuries and damages to Mulroy. Mulroy claimed Olberding was an employee of Western and that at the time of the accident, Olberding was working within the scope of his employment with Western. Olberding admitted in his answer that at tire time of the accident, he was working within the scope of his employment with Western. Western denied this allegation in its answer and averred Mulroy’s injuries and damages were proximately caused by his own negli gence. Western and Mulroy both filed motions for summary judgment on whether the doctrine of respondeat superior applied. The uncontroverted facts from both motions are as follows.
Olberding normally worked in a laboratory at Western’s facility known as the Jeffrey Energy Center in St. Mary’s, Kansas. On the night before the accident, Olberding took a Valium and went to a bar, where he consumed beer for several hours. When he awoke the next morning, Olberding told his wife that he was going to call Western and tell them he was sick. She advised him that he was not going to call in sick for a hangover. That morning, Olberding was to report to Western’s facility located in Lawrence, Kansas.
As Olberding drove toward Lawrence, his vehicle hit the rear end of Mulroy’s vehicle. Olberding asked Mulroy if he was okay, After Mulroy asked Olberding to call the police twice and then got out of his car, Olberding got in his vehicle and left. Olberding then drank 2 to 3 ounces of bourbon and Pepsi Cola which was in his vehicle. The highway patrol stopped Olberding; the results of Olberding’s blood alcohol test was .10.
After the accident, Olberding called and advised his supervisor that he had been involved in an accident and wanted to take a sick day. When Olberding denied being hurt, he then requested a vacation day. Western had a policy that possession or consumption of alcohol or drugs not medically authorized while at work, or reporting to work under the influence of alcohol or nonmedically authorized drugs, was prohibited. Olberding was aware of Western’s policy. Western terminated Olberding because on April 15, 1997, Olberding was “under tire influence of alcohol in a vehicle during working hours; [Olberding] was involved in a motor vehicle accident.”
Western’s motion also averred that Olberding told Iris supervisor and the operations superintendent at Western that he was not on his way to work when the accident occurred; rather, he was going to St. Francis Hospital to see his drug/alcohol rehabilitation counselor. In his response, Mulroy admitted Olberding made this statement, but it was inconsistent with other portions of his testimony and was not dispositive of the issue. Olberding responded that he made the statement, hoping it would help him keep his job with Western.
Mulroy s motion also averred that if Western had not specifically directed Olberding to report to its Lawrence Energy Center on the morning of the accident, Olberding would not have been in the location where the accident took place. The district court asked Western’s counsel at the hearing if Olberding’s employment was terminated because he was under the influence of alcohol while driving the vehicle during his working hours, violating company policy, and if Western had directed Olberding to report to work in Lawrence. Western’s counsel responded, “Yes, Sir.”
The district court found Olberding did not take the day off until .after the accident occurred; Olberding was terminated from his employment with Western because he was operating a vehicle while under the influence of alcohol during working hours and involved in an automobile accident; Western had control of Olberding at the time of the accident because it directed him to travel to work at a place other than his normal place of employment; and Olberding was on company time at the time of the accident. It concluded Olberding was acting in the course of his employment at the time of the accident, denied Western’s motion for summary judgment, and granted Mulroy’s motion for partial summary judgment.
Olberding filed a motion in limine admitting fault for the accident and requesting the district court to exclude evidence at trial of his being under the influence of alcohol, leaving the scene of the accident, receiving treatment for alcohol abuse, and receiving coverage from liability insurance. Olberding argued such evidence was not relevant as he was admitting 100% fault. Olberding contended the only remaining issue was the nature and extent of Mulroy’s claimed damages.
Western advised it was not stipulating to fault, but it did not plan to get into negligence evidence because it would “be very foolish” to do so. Mulroy argued against the motion because Western was maintaining its position on comparative fault, making all evidence for causation of the accident relevant and admissible.
The district court stated it did not appear comparative negligence would be an issue before the jury. However, the court stated that if Olberding’s and Western’s positions were different at trial, it would reconsider the matter. The district court granted Olberding’s motion in limine. It also ordered Western to notify Mulroy 5 days prior to trial of its intention to rely upon comparative fault as a defense.
A hearing was held a day before the trial to discuss jury instructions. Mulroy’s attorney reminded the district court it had excluded evidence of Olberding’s alcohol use and advised that Olberding had not yet filed a stipulation of fault, nor had Western notified him that it was defending the case on the basis of comparative fault. Thus, he understood the trial would not encompass comparative fault, and he objected to a jury verdict form for comparative fault. The district court advised it had prepared an instruction pursuant to PIK Civ. 3d 106.01, stating that Olberding admitted the accident occurred as a result of his negligence.
On the day of trial, the district court advised that the PIK Civ. 3d 107.04 instruction regarding agency which Mulroy had requested earlier would only be given if an issue of comparative fault was before the jury. Mulroy stated the juiy should be told as a matter of law Western was responsible for liability. Western’s counsel then stated, “Judge, [Mulroy] could dismiss Mr. Olberding.” Olberding’s counsel agreed, saying, “Take him [Olberding] out of the case. Then they get their instruction.”
When court reconvened after the noon recess, Mulroy reminded the district court that Olberding and Western suggested dismissing Olberding because they had “all now admitted liability.” Mulroy believed it was appropriate to dismiss Olberding from the case under Kansas law and asked the district court to do so. Olberding had no objection to Mulroy’s motion to dismiss if it was with prejudice. Mulroy advised he would proceed against Western only. When the district court asked for Western’s comments, Western’s counsel cryptically stated, “After you’ve ruled, Judge, I’ll have some comment.” The district court granted the motion to dismiss Olberding with prejudice.
Immediately thereafter, Western moved for a dismissal of itself. It argued Mulroy could not proceed with its claim for vicarious liability against Western because Mulroy had dismissed Western’s agent with prejudice. Western relied upon York v. InTrust Bank, N.A., 265 Kan. 271, 962 P.2d 405 (1998), and Atkinson v. Wichita Clinic, P.A., 243 Kan. 705, 763 P.2d 1085 (1988). Mulroy argued his motion was made for the specific reason to proceed against Western and remove the issue of agency which was discussed earlier. The district court, however, agreed with Western and granted its motion to dismiss.
Mulroy then asked the district court to reconsider its order dismissing Olberding because the intent of his motion to dismiss Olberding was not the same intent present in Atkinson. For some reason, Olberding advised the court there was no conspiracy between himself and Western. When Mulroy had offered to dismiss Olberding, the only discussion was of Olberding’s testimony as a witness. Mulroy, by the tenor of the earlier discussions, believed he could proceed against Western on the theory that liability had been admitted. Western advised it was not consulted about Mulroy’s decision to dismiss Olberding. The district court denied Mulroy’s motion to reconsider the dismissal.
Mulroy filed a motion to amend “the judgment of dismissal of Western Resources set forth in the Journal Entry of Dismissal,” pursuant to K.S.A. 60-259(f), requesting reinstatement of Western as a defendant.
The district court believed this case illustrated the rule that release of an active tortfeasor has the effect of releasing one who is only vicariously hable under the respondeat superior theory; if not, an active tortfeasor without funds or resources to satisfy a judgment can stipulate to liability regardless of the effect on the passive tortfeasor. The district court held Mulroy’s dismissal with prejudice of his claim against Olberding extinguished his claim against Western based upon the theory of respondeat superior and denied Mulroy’s motion to amend.
Mulroy appeals from the district court’s denial of his motion to amend the judgment of dismissal. Western cross-appeals the dis trict court’s orders denying its motion for summary judgment and granting Mulroy’s motion for partial summary judgment.
As a preliminary matter, Olberding argues this court does not have jurisdiction to consider the dismissal with prejudice in his favor. He believes Mulroy has tried to raise this dismissal as an issue on appeal, because in his brief, Mulroy comments that the district court should have granted Mulroy’s motion to set aside the prior dismissal of Olberding because he did not anticipate the possible effect of the dismissal.
In his notice of appeal, motion to amend the judgment, and brief, Mulroy has not appealed or raised the dismissal of Olberding. Rather, Mulroy contends the district court erred in dismissing Western because it was not just, under K.S.A. 2000 Supp. 60-241(a)(2), to dismiss Western when such a result was not a condition for dismissing Olberding. Although both dismissals are intertwined and must be discussed, only the dismissal of Western is an issue in Mulroy’s appeal.
This brings us to our first issue: What was the effect of the dismissal of Olberding?
Mulroy claims the dismissal of Olberding did not terminate his claim against Western because Olberding was not a necessary party and Western’s derivative liability was not destroyed. He cites numerous cases from other jurisdictions to support his arguments. However, the determinative issue is whether the dismissal of Olberding had the effect of a covenant not to sue Olberding or a general release of Olberding and Western.
The distinction between a covenant not to sue and a release of a tortfeasor can be obscure and troublesome to define, yet courts recognize and enforce the rights of parties based upon this distinction. Western Spring Service Co. v. Andrew, 229 F.2d 413 (10th Cir. 1956). The distinction is stated as follows:
“ ‘(1) A valid release of one tortfeasor from liability for a harm, given by the injured person, discharges all others liable for the same harm, unless the parties to the release agree that the release shall not discharge the others and, if the release is embodied in a document, unless such agreement appears in the document.
“ ‘(2) A covenant not to sue one tortfeasor for a harm does not discharge any other hable for the harm.’ ” 229 F. 2d at 418 (quoting 4 Restatement, Torts § 885).
Whether an injured party has given a release or a covenant not to sue to one of the tortfeasors is a legal question over which an appellate court has unlimited review. York, 265 Kan. at 283. As we state below, since Kansas follows the “specific identity rule,” and has rejected the “strict bar rule” in negligent torts, we find there was no general release.
Because of the unusual facts of this case, our analysis begins with a review of the different theories of liability between multiple tortfeasors.
Under joint and several liability, an individual who participates in a tort does not escape liability by showing that another individual is Hable also. In other words, another person’s cooperation does not justify the misconduct of a defendant. Thus, a tort which is committed jointly by several can be treated as joint or several at the election of the injured party. 74 Am. Jur. 2d, Torts § 61. In the absence of statutory authority, compensatory damages may not be apportioned in a judgment establishing liability of the joint tortfeasors, regardless of the degree of culpability. A person injured by joint tortfeasors, however, has' only one full satisfaction for any damages sustained, and once satisfaction is obtained, further proceedings are barred. 74 Am. Jur. 2d, Torts § 69.
The Kansas Legislature enacted the comparative negligence statute in 1974. L. 1974, Ch. 239, § 1; see K.S.A. 60-258a. Thus, joint and several liability is not followed for negligent torts. In comparative negligence cases, the issue involves the percentages of causal responsibility, “ ‘and distinctions between primary, secondary, active and passive negligence lose their previous identities. The nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation, and the “all or nothing” concepts are swept aside.’ [Citation omitted.]” Luther v. Danner, 268 Kan. 343, 346, 995 P.2d 865 (2000).
In Kansas, the liability of a master for the tortious acts of his or her servant is based upon the doctrine of respondeat superior.
“Under that doctrine the liability of the master to a third person for injuries inflicted by a servant in the course of his employment is derivative and secondary and that of the servant is primary. Where the liability of the master is not predicated on any delict on his part, but solely on his secondary liability under the doctrine of respondeat superior, the exoneration of the servant removes the foundation upon which to impute negligence to the master.
“[Wjhile a master whose liability is predicated solely on the doctrine of respondeat superior and not on any wrong on his part may be sued jointly with his servant for a tort committed by the [servant] within the scope of his employment, they are not joint tortfeasors in the sense they are equal wrongdoers. Where a master becomes liable to a third person for personal injuries caused solely by the act of his servant, under the doctrine of respondeat superior, and is required to respond to such third person in damages by reason of such liability, he will be subrogated to the rights of the injured third person and may recover over from his servant who is primarily liable.” Simpson v. Townsley, 283 F.2d 743, 746 (10th Cir. 1960).
The general rule is that liability premised upon the doctrine of respondeat superior may not be apportioned. This is based upon the principle that the master may be entitled to contribution from the servant, but a servant has no right of contribution against the master. 74 Am. Jur. 2d, Torts § 77.
Even though it is not clearly enunciated in these authorities, it is clear the doctrine of respondeat superior is based upon the general concept of joint and several liability. With this background, we now turn to the effect of the dismissal of Olberding.
There are three different viewpoints towards general releases which were well discussed in Justice Allegrucci’s opinion in Luther, which was not cited by either party.
Courts adopting the “flat bar rule” believe “ ‘that language such as “all other persons, firms or corporations hable” is unambiguous and discharges all potential tortfeasors from liability. [Citations omitted.] . . . Flat bar courts thus look only to tire four comers of the release document and do not allow consideration of extrinsic evidence.’ ” Luther, 268 Kan. at 346-47. This rule began in the common-law “ ‘unity of discharge’ rule that release of one joint tortfeasor discharges all others [which] was based on the concept of the indivisible wrong of joint and several liability.” 268 Kan. at 347-48. A majority of the states have rejected the flat bar rule when comparative negligence has replaced the concept of indivisible wrong. 268 Kan. at 348.
Courts adopting the “specific identity rule” conclusively presume that the liability of a party which is not named or specifically identified or described by the terms of the release is not released. 268 Kan. at 347. The specific identity rule arises, in part, from Section 4 of the Uniform Contribution Among Tortfeasors Act, 12 U.L.A. 185 (1939). It provides that a release of one joint tortfeasor by the injured person only discharges the other tortfeasors if it specifically states so. These courts are divided into two categories: (1) parol evidence of the parties’ intent in an action by a party to a release and a stranger to that release is admissible even if the terms of the release are facially unambiguous, and (2) parol evidence of the parties’ intent is admissible only if the court determines that the release agreement terms are ambiguous. 268 Kan. at 347.
The third viewpoint is the intent rule, which emphasizes the contract principle that the parties’ intent governs. This rule is a middle ground “between the plaintiff-oriented specific identity rule and the defendant-oriented flat bar rule” whereby the parties’ intent governs. 268 Kan. at 348.
In 1979, this court adopted the specific identity rule for actions brought under K.S.A. 60-258a. In comparative negligence actions, releases utilizing general release language no longer extinguish the potential liability of codefendants unless they are specifically named in the release. Geier v. Wikel, 4 Kan. App. 2d 188, 190, 603 P.2d 1028 (1979). The Kansas Supreme Court in Luther rejected the flat bar rule and adopted the specific identity rule set forth in Geier. 268 Kan at 351-52.
“Once comparative fault principles replaced those of joint and several liability, the earlier rules that ‘boilerplate universal release language’ could extinguish rights no longer fit the theory of wrongdoing. Because the boiler-plate language continued to appear in release instruments, our courts formulated an approach that harmonizes with the current tort theory. The approach, moreover, affords protection to the settling party by creating a presumption against wholesale discharge and affords protection to the nonsettling tortfeasors by making it rebuttable.” 268 Kan. at 351-52.
The unnamed party claiming inclusion in the release bears the burden of rebutting the presumption. 268 Kan. at 352.
Western, in essence, is arguing the dismissal with prejudice of Olberding is a general release of all tortfeasors. Such an interpretation attempts to breathe life back into the flat bar rule in comparative negligence cases. Although the liability of Western is premised upon respondeat superior, the controlling fact in Mulroy s cause of action was the comparative negligence of Olberding and Mulroy. Thus, the specific identity rule for releases in comparative negligence cases applies. The dismissal of Western was, therefore, inappropriate, and we reverse that action.
We also believe the instant case is factually distinguishable from York, 265 Kan. 271, and Atkinson, 243 Kan. 705. In those two cases, there were actual settlements on claims with the released tortfeasors. In our case, the plaintiff did not receive anything from Olberding for the dismissal by way of settlement.
The other issue in this appeal is whether the district court erred by granting Mulroy s motion for partial summary judgment and denying Western’s motion for summary judgment.
“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):
Western argues Olberding was driving his own vehicle to go to work; he was not already at work. As such, Western contends, the' doctrine of respondeat superior does not apply. It relies primarily upon Girard v. Trade Professionals, Inc., 50 F. Supp. 2d 1050 (D. Kan. 1999).
Western’s references to certain portions of Girard are misleading because Western’s cites oversimplify the “going and coming rule.” Western focuses on language that respondeat superior does not apply to negligent acts of an employee which occur while the employee is traveling to or from the work place. Western cites this case because “the Kansas Supreme Court has not expressly used the phrase ’going and coming rule’ in the context of vicarious tort liability” as it has in workers compensation cases. 50 F. Supp. 2d at 1053. The Girard court concluded the Kansas Supreme Court would apply the going and coming rule to the facts of its case. The Girard court reached this conclusion because the Kansas courts’ application of the doctrine of respondeat superior was consistent with the going and coming rule. 50 F. Supp. 2d at 1053. It found Kansas courts applied the following rule to respondeat superior cases:
“ ‘Under Kansas law, a principal’s liability for his agent’s negbgence is determined by asking whether, at the time in question, the agent was engaged in the furtherance of the principal’s business to such a degree that the principal had the right to direct and control the agent’s activities. The primary factor to be considered is the control which the principal had over the agent. If the principal had no right to direct and control the agent at the time in question, the principal is not vicariously hable to third parties for the agent’s negligence. [Citations omitted.]’ ” 50 F. Supp. 2d at 1053.
However, the important issue in the going and coming rule is not necessarily whether the employee has reached the location of his employment. Rather, the test for whether respondeat superior applies in travel situations is whether the employee, while traveling to or from the workplace, was under the control of the employer. Girard, 50 F. Supp. 2d at 1053-54. See also Major v. Castlegate, Inc., 23 Kan. App. 2d 694, 697, 935 P.2d 225, rev. denied 262 Kan. 961 (1997) (the test to decide the existence of agency, so that the liability for an employee’s negligence will be imputed to the employer, is the right to control the employee).
Olberding, with his union representative, was interviewed about the accident by three Western supervisors in June 1997. Olberding admitted that at the June meeting he gave a written statement to Western advising he was going to St. Francis to get help when the accident occurred. He said he made the statement because his union representative had advised him that such a statement would help him keep his job. Olberding testified the truth was that he was on the way to the Lawrence Energy Center, which was within the course of his duties, when the accident occurred. Olberding was going to go to St. Francis after the accident occurred but did not arrive because he was arrested. His employment was terminated on the day of the meeting.
Western’s policy required employees to report to law enforcement any motor vehicle accidents involving the public while at work. Olberding testified it was his understanding that Western could not terminate his employment for being intoxicated or not reporting a motor vehicle accident outside of his work hours. Olberding testified he is not paid for travel time to and from his home and the Jeffrey Energy Center, but when he travels from his home to another location, he is paid. The accident occurred on his way to the Lawrence Energy Center, and he was being paid by Western. Copies of the affidavits by Olberding’s supervisor and the operations superintendent and Western’s written policy, all specify that Western prohibited employees working while under the influence of alcohol. An admission by Western and a copy of Olberding’s termination notice from Western, attached to Mulroy’s motion, clearly state Olberding was discharged because he was under the influence of alcohol during working hours.
The evidence shows Olberding was working for Western and Western had tire right to control, and did control, Olberding at the time of the accident. Western controlled Olberding because, under its policies, it had cause to terminate Olberding’s employment at the time of the accident. If Olberding had not been under Western’s control, under its policies, it could not have terminated his employment for being under the influence and failing to report an accident while traveling to the Lawrence facility. Controlling employees’ consumption of alcohol or requiring employees to report an automobile accident while working benefits Western—it increases employee safety and decreases risk of injury and liability. As Olberding’s union representative apparently knew, if Western could not control Olberding’s activities at the time of the accident, its policies did not provide cause for his dismissal.
The evidence completely supports the district court’s factual findings and its conclusion that Olberding was under the control of Western when the accident occurred. The only real contrary evidence was Olberding’s earlier statement which he later recanted. Western obviously did not believe the earlier statement, as its actions showed.
We reverse the dismissal of Western and affirm the orders regarding summary judgment. The matter is remanded for further proceedings.
Affirmed in part, reversed in part, and remanded. | [
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Gernon, J.:
The Crime Victims Compensation Board (Board) appeals a district court’s determination that its subrogation lien should be reduced proportionally to adjust for attorney fees paid by the claimant in recovering damages from the offender.
Ronald S. Herron, a pedestrian, was injured when a vehicle driven by Lyle D. Frazee and owned by Gabby’s Goodies struck him. Frazee was driving while intoxicated. Herron sued Frazee and Gabby’s Goodies and applied to the Kansas Crime Victims Compensation Board for compensation. He was awarded $25,000.
Herron later settled his lawsuit for $178,925. After all expenses and attorney fees were paid, he had $36,390.30 remaining. The Board made demand, Herron requested a reduction of the hen, and the Board agreed to accept half of Herron’s net recovery, or $18,195.15, which was a waiver, in its view, of any monies it received less than the $25,000 it had awarded.
Herron, not satisfied with the compromise, filed a motion for determination of the lien, arguing that the Board should shoulder some of the expense of recovering damages and that the district court had equitable powers to allocate attorney fees. The Board responded that the applicable statute, K.S.A. 74-7312, allowed attorney fees only when the claimant proceeds as trustee of the State at the Board’s request. The district court, reading the statute to permit an allowance of attorney fees, ordered the Hen reduced to 65 percent of the original $25,000, or $16,250, with the balance considered the Board’s share of attorney fees. The Board appeals.
By statute, the Board is subrogated to a claimant’s rights to recover benefits from a collateral source to the extent of an award. See K.S.A. 74-7312. The Board contends the district court erred in reducing its subrogation interest to allow for Herron’s attorney fee expenses in recovering a judgment against the defendants. The Board argues that subrogation rights are defined by statute, and the statute explicitly provides for allowance of attorney fees when the Board requests that the victim bring suit on behalf of the State. Consequently, the Board argues the statute precludes shifting of attorney fees under other circumstances. The district court ruled that the Board’s lien could be reduced by its share of attorney fees because the statute does not state that attorney fees are not allowable under other scenarios. We agree with the Board and reverse.
Interpretation of a statute is a question of law over which this court’s review is unlimited. Walker v. State, 26 Kan. App. 2d 410, 411, 988 P.2d 283, rev. denied 268 Kan. 896 (1999). The intent of the legislature governs if that intent can be ascertained. When a statute is unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law ought to be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). K.S.A. 74-7312 provides:
“(b) As a prerequisite to bringing an action to recover damages related to criminally injurious conduct upon which compensation is claimed or awarded, the claimant must give the board prior written notice of the proposed action. After receiving the notice, the board shall promptly: (1) Join in the action as a party plaintiff to recover compensation awarded; (2) require the claimant to bring the action in the claimant’s individual name, as a trustee in behalf of the state, to recover compensation awarded; or (3) reserve its rights and do neither in the proposed action. If, as requested by the board, the action is brought bij the claimant as trustee and the claimant recovers compensation awarded by the board, the claimant may deduct from the compensation recovered in behalf of the state the reasonable expenses, including attorney fees, allocable by the court for that recovery.” (Emphasis added).
The inclusion of one thing implies the exclusion of another, so we can presume that when the legislature expressly includes certain items, it intends to exclude any items not included. Killman, 264 Kan. at 42. Accordingly, we can presume that by expressly providing for the allowance of attorney fees under one circumstance, the legislature intended for the claimant to bear the litigation expenses under other circumstances. Thus, the district court erred in ruling that the statute permitted the allowance of attorney fees.
Herron cites Quesenbury v. Wichita Coca Cola Bottling Co., 229 Kan. 501, 504, 625 P.2d 1129 (1981), as authority for the proposition that he is entitled to an equitable allowance for attorney fees on the subrogated portion of the judgment in the absence of an express statutory prohibition. Quesenbury holds that an equitable allowance of fees attributable to a subrogated interest may be appropriate where the facts justify it. It also suggests that equitable apportionment is not appropriate on the facts of this case.
Although the Quesenbury court concluded that equity might permit such an allowance, it reversed the trial court’s order requiring the insurance company to pay the attorney fees attributable to its subrogated interest. Consistent with the principles of equitable relief, the party seeking equity has die burden of establishing sufficient facts to justify the allowance. 229 Kan. at 504.
Here, the Board undisputedly did not participate in the action. K.S.A. 74-7312(b) requires the recipient of an award to give notice before filing suit. At that point, the Board can elect to join in the suit, require the claimant to bring the suit as trustee on behalf of the State, or reserve its rights and do nothing. K.S.A. 74-7312(b). Where the State has been given the option of joining and instead opts to allow the claimant’s attorney to proceed on its behalf, the Board has effectively employed the claimant’s attorney and allocation of fees makes sense.
Herron concedes that he did not comply with the statute by giving the Board notice before filing suit. He explains that he could not have done so because he filed suit before the Board took note of his claim. Herron attaches a copy of the application as an appendix to his brief. Documents included in an appendix will not substitute for the record on appeal. See Zeferjohn v. Shawnee County Sheriffs Dept., 26 Kan. App. 2d 379, 383, 988 P.2d 263 (1999).
Herron further notes that the Board had notice from the application that he was represented by counsel. Regardless of his having counsel, Herron’s failure to give the Board notice before filing suit effectively prevented the Board from asking Herron to proceed as trustee of die State and hindered the Board’s ability to protect its own interest early on. While the Board obviously became aware of the suit months before the settlement and might have been able to intervene, Herron is clearly not innocent of error or wrongdoing. He is in a weak position to seek equity when his omission has deprived the Board of the option to protect its own interest from the beginning.
Furthermore, the argument may be made that the 35 percent contingency fee Herron’s attorneys are claiming is disproportionate to the work required to recover a judgment for insurance policy limits, particularly where the tortfeasor’s conduct was criminal and where Herron’s economic losses alone far exceed the settlement.
The Board made an interest-free loan with no guarantee of repayment and seeks to recover the money in order to make it available to another crime victim in need. Instead of accepting a compromise from the Board which reduced the recovery the Board might be entided to, Herron placed the compromise aside and decided to risk putting the Board in a position in which it was forced to argue that the statute is plain and should be strictly construed. The risk to Herron was that the Board would recover the entire amount of the award, $25,000. Since we agree with the Board’s interpretation of the statute, the risk of appeal is going to fall harshly on Herron.
Reversed and remanded for determination of the amount of the Board’s Hen. | [
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Lewis, J.:
Savannah Campbell died at her home on February 29,1996, at the age of 2 years. Her mother, the defendant Trennie Campbell, was subsequently convicted of unintentional second-degree murder in the death of Savannah, along with four other counts of endangering a child. Trennie was sentenced to a controlling term of 77 months’ incarceration. The trial judge then made a dispositional departure and placed Trennie on probation. This is a direct appeal by Trennie from her convictions and sentence.
Savannah was bom in November 1993 to Trennie and Flint Campbell. She was their fourth child and, at the time of her death, all four children were under 8 years of age. Trennie and Flint originally lived in Arnold, Kansas, near other family members and friends.
Trennie’s involvement with the State Social and Rehabilitation Services Department (SRS) began only a few weeks after Savannah was bom. Savannah was initially labeled by the hospital as a child who was failing to thrive as a result of abuse and neglect. Because of this labeling by the hospital, SRS had begun to look over Trennie’s shoulder—into her home life, her housekeeping, etc. It developed that the hospital was absolutely wrong in labeling Savannah as a child who was failing to thrive as a result of abuse and neglect. Savannah was a very sick little girl who was evaluated by at least nine specialists who finally diagnosed her problem as Brandelaise Syndrome, an extremely rare blood disorder. It appears that at the time this diagnosis was made, there was only one other known case of Brandelaise Syndrome.
Savannah’s failure to thrive was a result of her extremely rare disease and not because of neglect on the part of Trennie and Flint. A child with Brandelaise Syndrome has actin, a muscle fiber, present throughout his or her body’s cells. Actin is a substance which nature intends to be located only in muscle tissue. When it is present in other cells, it interferes with the proper functioning of those cells. In particular, actin interferes with the ability of white cells to fight infection, and when it is present in platelets, it causes bleeding problems and can cause anemia if it is present in red blood cells. The specialist examining Savannah found actin throughout her body and not only in her muscle tissue.
The disease condition had a devastating effect on the child and her entire family. Savannah had excessive scarring in her throat caused by this disease. As a result of this scarring, she could only breathe through a trachea tube. She was fed with a gastronomy tube. The disease caused Savannah to have episodes of bloody diarrhea, excessive bruising, rashes, and an enlarged liver and spleen. Savannah required blood and platelet transfusions in order to survive and was developmentally delayed due to the disease.
Flint and Trennie were not wealthy people, and while Flint worked at a job, he barely made a living to support his family. With four children under 8 years of age at home, Trennie did not, and in fact could not, work outside of the home. Savannah’s rare disease made working outside of the home impossible and caused serious hardships for the family. In order for Savannah to he closer to a large hospital, the family moved from Arnold to an apartment in Newton. The original apartment had only two bedrooms and no washer and dryer. Flint’s new job in Newton kept him away from home for extended periods of time, and the job of raising the four small children fell almost exclusively on Trennie’s shoulders. After a period of time, the family moved from the two-bedroom apartment into a three-bedroom home. This move simply compounded their financial difficulties. They could not afford their utilities and could not run the air conditioner in hot weather. Their telephone was disconnected for nonpayment of the bill on a number of occasions.
Trennie was not a good housekeeper, and we suspect that the presence of four young children undoubtedly exacerbated this problem. Toys and clothing were often scattered about the house, dirty dishes were left in the kitchen, and the bathroom was not always maintained in a sanitary condition. The SRS employees who came in and out of the home with regularity did not hesitate to point out these conditions to Trennie on an almost daily basis.
Keeping Savannah at home was a daunting task which required not only considerable medical equipment but the know-how to operate this equipment. Trennie was primarily responsible for Savannah’s care and was trained to operate the medical equipment and deal with Savannah’s medical problems by Wesley Hospital. She was trained to use the pulse oximeter, to suction, and to operate the oxygen and feeding machines.
As a result of her tracheotomy and the scar tissue in her throat, Savannah could not breathe without her trachea tube. If the tube somehow became blocked, it adversely affected her breathing. The result is that it was necessary to suction the tube with regularity to keep it from becoming blocked. This task fell principally on Trennie. Savannah had to be fed at least five times per day, and the oxygen level of her blood had to be monitored with regularity. This also was principally Trennie’s responsibility.
For a number of reasons, SRS maintained a constant presence in Trennie’s home. Earn Grunden was Savannah’s SRS case worker, and she had told Trennie that she had to cooperate with her and SRS or a petition alleging medical neglect would be filed. There were several nurses in and around the home placed there by SRS. These nurses assisted in the care of Savannah and were also generally critical of Trennie and her housekeeping. The testimony indicates that Trennie resented the SRS intrusion into her home and family life and wanted very much to return to her former home in Arnold, where her extended family was located.
On the morning of February 29, 1996, Trennie found Savannah dead in her crib. The trachea tube had been removed, her airway was obstructed, and Savannah suffocated. Trennie called for Flint to come and help. Flint came down the stairs and CPR was administered, but it was to no avail.
A long arduous investigation into Savannah’s death followed. Ultimately, both Trennie and Flint were charged with murder. For reasons that are not immediately apparent from the record, the charges against Flint were dropped. Trennie was placed on trial for second-degree intentional murder and six counts of endangering a child. As pointed out above, she was convicted of unintentional second-degree murder and four of the six endangering counts. Flint did not testify at the trial and, in fact, invoked his Fifth Amendment rights.
As noted, the trial judge departed dispositionally and placed Trennie on probation. He indicated that he did so because she had three other young children in addition to Savannah, and he believed she was stressed and depressed at the time of Savannah’s death. The trial court also noted the rare and high maintenance disease from which Savannah suffered, along with the fact that Trennie was forced to live away from her extended family, and ultimately concluded that Trennie was not a risk to the other children.
There are other factual issues in this case, and those facts will be discussed as necessary to the determination of the issues.
On appeal, Trennie raises several issues. As will be seen, we reverse her conviction and remand the matter for a new trial. Accordingly, we will discuss the issues in this opinion in the order of their importance to our decision to reverse her conviction.
PROSECUTORIAL MISCONDUCT
We reverse the defendant’s convictions because we conclude that the prosecutor in this case was guilty of serious misconduct which denied the defendant a fair trial.
The question of whether a particular prosecutor has been guilty of misconduct in the trial of a criminal case is the subject of some relatively controversial recent decisions by our Supreme Court and by this court. The claim of prosecutorial misconduct is one that is being made with increasing frequency by defendants on appeal -from their convictions. In most of the cases, the misconduct alleged has occurred during the final argument to the jury. One of the better-reasoned and well written decisions by the Kansas Supreme Court is State v. Pabst, 268 Kan. 501, 996 P. 2d 321 (2000). In Pabst, a defendant’s murder conviction was reversed because the prosecutor repeatedly referred to the defendant as a liar during final argument. We would agree that the question of what is and is not fair closing argument is one being hotly debated, and not everyone agrees that calling the defendant a liar is necessarily misconduct. However, the Pabst decision provides some guidelines to use in defining prosecutorial misconduct.
In this case, we conclude that the misconduct by the prosecutor was so egregious that it denied the defendant her constitutional right to a fair trial, and it leaves us with no option other than to reverse her conviction.
It is true that a criminal trial remains an adversarial matter under our system of criminal justice. Despite that fact, a prosecutor’s role in a prosecution is much more than that of an adversary for the State of Kansas. The criminal justice system demands that the prosecutor not take an approach which we will describe as “winning at all costs.” It appears that some prosecutors lose sight of what is at stake in a criminal prosecution and are motivated by a desire to win rather than a desire to achieve a just result. The prosecutor in this case seems to have been so motivated. In the Pabst decision, Justice Six defined the prosecutor’s role in the following language:
“A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas. Instructional materials abound on this topic. Sixty-five years ago the United States Supreme Court said that the prosecutor represents
‘a sovereignly whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall tain a case, but that justice shall be done.’ Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).”
(Emphasis added.) State v. Pabst, 268 Kan. at 510.
We approach the issue of prosecutorial misconduct in this case in the spirit of the law as set forth above.
One of the key issues in this prosecution involved Savannah’s time of death. Trennie told one of the police investigators that she had checked on Savannah some time after 4 a.m. and had suctioned the secretions from Savannah’s trachea tube. She went on to say that she checked on Savannah at 6 a.m. and that Savannah was alive at that time, but that when she went into the room at 7 a.m., Savannah was not breathing and the tracheal tube had been removed. It is quite obvious that any medical evidence that Savannah’s death occurred significantly earlier than 6 a.m. would be devastating to the defense.
In February 1998, the defendant filed a motion for discovery seeking “[t]he results of any and all physical, scientific, or chemical tests which the prosecution will seek to introduce in the trial of this matter . . . . ”
In May 1998,. the trial court held a pretrial conference. At that pretrial conference, the following discussion took place between Richard M. Blackwell, who represented the defendant, and the prosecutor, Mary McDonald.
“MR. BLACKWELL: Well, Judge, we just want to, for the record, confirm the status of discovery, if I could, that the—we have an assertion from the—or agreement from the State that we’ve been provided with any and all records of any witnesses that they have and that if they interview additional witnesses between now and the time of trial, we would be immediately provided with any records. If there’s any additional witnesses they intend to call, then we ask that, you know, a formal motion be filed so that we have time to interview these witnesses. It’s a serious matter and we’d certainly need to do that to be prepared for trial. And there’s one specific concern we have and that was that the autopsy report does not show the time of death and if there is a time of death, we’d like to be informed of that; if not, we’d like to be informed that there is no indication that there is a time of death. But I think that just goes along with a part of the discovery motion— motions and orders, Judge.”
“MS. MCDONALD: Judge, I really can’t believe this comment being made because as this Court knows and as Mr. Loeffler knows and Mr. Struble knows, that any documents I’ve had, I have turned those over and they’ve been turned over for weeks and weeks now. And I also know that the Court has a rule that late endorsement of witnesses is 24 hours prior to the time that that starts, and we do that by motion and we do that properly. So I guess I feel kind of blindsided here. I don’t know if—if Mr. Blackwell thinks that there’s something that I have that I haven’t turned over to him or-—or what the deal is. But, quite frankly, I don’t think I’m too hard to work with as far as discovery is concerned.
“THE COURT: Well, I think—
“MR. BLACKWELL: That wasn’t the question, Judge. I’ve got a client charged with murder. I am not making a shot at the County Attorney’s office and she didn’t answer the question. The question was whether we have everything and whether we’ll—and that’s ah it was, Judge. This is a serious matter and I need to know it for the record.” (Emphasis added.)
It is apparent based upon the representations of the prosecution that it had no evidence concerning the time of Savannah’s death, and the defense approached the trial of the case with the belief that no such evidence existed. It develops that the defense was wrong.
The trial of this case took place in February 1999, and at that trial, Dr. Audrey Roberts, Savannah’s pediatrician, testified as a witness for the State. She testified that in her opinion, Savannah had been dead between 4 and 10 hours when she was brought into the emergency room at 7:50 a.m. The testimony of Dr. Roberts placed the time of death somewhere between 9:40 p.m. the previous evening and 3:50 a.m. on the date of death. This testimony is obviously inconsistent with the statements made by Trennie as to when she discovered the child had died.
On cross-examination, Dr. Roberts testified that she had done her research on determining the time of death in August or September 1998, and the following discussion then took place:
“Q. And the studies that you refer to about the potassium and the research that you have done on the internet, when did you do that research?
“A. Um, I do iiot recall saying I researched the potassium, I researched the core temperature and how that plays a role in, um, determining time of death. The potassium is more based on clinical experience with other code situations and the two years I dealt on the Child Death Review Board.
“Q. Core temperature then, I’m curious, when did you perform your internet research on that?
“A. Uh, it would have been, I don’t know, the last time that trial was scheduled. Which was that August, September of ’98.
“Q. Did you ever generate any kind of report or provide anyone with any information regarding these studies?
“A. Um, I had talked to Detective Walton about it and Mary McDonald.
“Q. So, you discussed with Mr. Walton this core temperature theory?
“A. He asked my opinion on it, yes.
“Q. And where does that conversation taire place?
“A. Um, at my office.
“Q. And you say the last time this was scheduled for trial. Do you have any recollection the month that might have been?
“A. I would have to look at my calendar at home to know the exact date. It was the week before it was scheduled to go to trial.
“Q. That would have been in the fall of last year?
“A. Yeah.
“Q. And your office notes, in concluding the file on Savannah, made for reference to this, these two things which you had done?
“A. What two things that I had done?
“Q. The potassium and the core temperature?
“A. No.
“Q. And if I understand correctly from your testimony on Friday, your estimate as to the time of death was not made until sometime last fall, 1998?
“A. I was never asked that question until then.
“Q. And you never put it in your notes in anyplace?
“A. No.”
It is clear to us from the record on appeal that the prosecutor in this case had information concerning the time of the death of Savannah approximately 7 months prior to the date of trial and failed to disclose this information to defense counsel. In fact, at the time of pretrial as is shown above, the prosecutor expressed exasperation over the fact that the defense counsel could even believe that she had information concerning the time of death which had not been disclosed. The prosecutor’s failure to disclose is exacerbated by the fact that she deliberately misled defense counsel. The truth is, we feel that she lied to defense counsel and to the court in denying that she had time of death evidence.
In a posttrial hearing on defendant’s motion for a new trial, the prosecutor admitted that Dr. Roberts had determined the time of death at her request and that she had the evidence prior to trial and did not disclose it. The justification by the prosecutor for this outrageous conduct shows her lack of regard for due process and her lack of understanding as to her proper role in our system of criminal justice. The prosecutor attempts to justify her conduct in failing to disclose this information by arguing that Dr. Roberts’ opinion was not in writing. In this regard, the record shows that the prosecutor responded in the posttrial hearing as follows:
“[MS. MCDONALD:] The third thing is the newly discovered evidence. And they claim—well, I’m sorry, the third thing is the new information sprung on them at trial and that’s— that’s a pretty good word, sprung on them at trial.
“What—what Mrs. Campbell complains about is that at one point in time Doctor Roberts testified that she had calculated time of death within a certain number of hours based upon core temperature. As I told the Court at the time that we took this up, and there was an objection made and the Court ruled again, at the time, that this information was admissible, as I told the Court at the time, this information came up in a pretrial conference with Doctor Roberts.
“This case was originally set for October. Detective—
“THE COURT: You mean between you and Doctor Roberts?’
“MS. MCDONALD: That’s correct. Detective Walton was present, Doctor Patron was present and we were getting them ready to go to trial, to tell them what was involved, what they needed to do, what time they needed to come in. And at that point in time, I asked Doctor Roberts to tell me if she had any idea or could tab some sort of time of death. At that point in time, she, in preparation for trial said, well, I think this is what it would be.
“After that, and without any requests from the State, she researched the issue a little bit more so that she could be absolutely certain at the time of trial that what she had originally quoted was, in fact, based upon medical certainty.
‘Well, this is not the subject of any type of report, it was never put down into any type of report, it was the topic of a pretrial conference where we were just getting our doctors ready to go to trial the first time it was set.
“Certainly, Doctor Roberts would have been more than happy to talk to Mr. Struble if he had called and said, you know, I would like to talk, sit down and talk to you, pretrial so that I can discuss that with you. If they had called my office and said, I would like to interview Doctor Roberts, I certainly would have made her available so they could ask the same questions that I asked.
“The State is not, is not, obligated to go out and investigate the case for the defense. The State is only obligated to give the reports that are in our possession over to the defense. We are not obligated to go out and have the topic of pretrial conferences reduced to writing so that the defendant can have it, with one exception. And that exception is for Brady material; exculpatory evidence. Time of death in this case didn’t exculp her from the crime. That was inculpatory evidence and the State is not, is not, required to provide inculpatory evidence discovered in a pretrial conference.
“Now, if Doctor Roberts would have said, well, the time of death is outside the time that this defendant could have committed the crime, that would have been Brady material and at that point, the State has a duty to have that reduced to writing or to place a phone call to Mr. Struble to say, hey, in our pretrial conference, we found some exculpatory material and we are under a duty to produce that. This was inculpatory all down the line. Not the topic of any reports.
“Had Doctor Roberts written me a report that said, this is the time of death and these are the studies I considered, produced it to me so that I had it in my possession, as part of my open file policy, I would have provided a copy to Mr. Struble. But that was never reduced to writing.
“Mr. Struble certainly had every last medical report that I had in this case. And Mr. Struble can ask the same types of questions that I ask in preparing for trial. He can go get his own doctors and say this is what the core temperature was, this is what the baby was like when she was brought in, you give me an estimate of time of death. He could have done that to Doctor Roberts, just like I did. So, he had everything that I had. I went one step further and personally interviewed my witness prior to putting her on the stand.
“I want to point out to the Court that Mr. Struble at the time Doctor Roberts testified, I don’t recall if he objected or not, I think he did, but when he objected, the Court allowed liberal cross-examination of Doctor Roberts as to how she came across that figure. And she talked about the studies she had looked [sic], at the internet studies she had done and I believe at the time she was being cross-examined by Mr. Struble, he was intentionally cross-examining her about finding studies on die internet and how could she be certain about tire potassium levels and tilings like that. So, that point was fully explored through Doctor Roberts’ testimony.
“Again, Mr. Struble had the absolute right to talk to any witnesses pretrial and certainly, if the request had been made, I would have made her available for interview. That was not done. We are not required to have each and every witness put each and every thing that they say down in pretrial conference or preparation conference for trial, into writing. Only if it is Brady and it wasn’t Brady.” (Emphasis added.)
The comments of the prosecutor indicate to us that she approached the case with a “win at all costs” frame of mind. Indeed, we doubt if even today the prosecutor realizes the seriousness of her misrepresentations and of her misconduct.
The defense had been assured by the prosecution that it had the entire contents of the prosecutor’s file and that it had no time of death evidence which would be offered at trial. At the time these comments were made by the prosecutor, they were deliberate falsehoods. We cannot condone lying perpetrated by a member of the bar of this state in order to “win” an action involving the life and freedom of another human being. We have every right to expect more from attorneys in this state and certainly from prosecutors who have a compelling obligation to see that justice is done in eveiy criminal prosecution and who have no right to engage in “win at all costs” conduct.
This case has some similarity to the decision State v. Lewis, 238 Kan. 94, 708 P.2d 196 (1985). In that case, the Supreme Court reversed a criminal conviction because of misconduct of the prosecutor similar to that involved in this case. In the Lewis case, the prosecutor had delivered defense counsel a written report by her expert witness which indicated that the expert had found no blood on either knife involved in the prosecution. The prosecutor failed to disclose to defense counsel that subsequent to the written report, the State’s expert did find blood on the knife and would so testify at trial. The expert witness testified at trial that she had changed her opinion as stated in the written report and that she had found blood on one of the knives. The Supreme Court, in reversing the defendant’s conviction, said:
“In this case, however, both defense counsel had based their defense strategies partially on the belief that the State’s expert witness would testify that her examination determined that there was no blood on either knife. In opening statements each defense counsel emphasized this glaring fact to the jury. If Gardner had been cut by a knife, as he claimed, blood would be found on the knife used to attack Gardner. After opening statements were made, during the trial and in the presence of the jury, the State used the corrected report to defeat the defense theory. Such a disclosure could hardly go unnoticed by the jury.
“Prosecutorial misconduct occurs when the county attorney fails to disclose to both the trial judge and the defense counsel that he intends to introduce into evidence a report which he failed to inform the defense counsel had been corrected. If the corrected statement changes the theory of defense as presented to the jury in opening statement, then neither admonition nor instructions by the trial judge can cure the resulting prejudice. The trial court abused its discretion when it failed to grant each defendant a new trial. Neither admonition nor instruction by the trial judge could insure that the defendants would receive a fair trial. It was necessary for the judge to protect the defendants’ fundamental rights by granting a new trial.” 238 Kan. at 99.
Our sentiments are in line with the comments by the Supreme Court set forth above.
We hold that a prosecutor is guilty of serious misconduct when he or she leads a defendant to believe that there is no evidence, expert or otherwise, written or oral, on a particular fact in controversy when, at the time of such representation, the prosecutor does have evidence on such fact whether in written form or otherwise and such evidence is offered and admitted at the time of the trial.
We have determined that the prosecutor was guilty of misconduct. In this state, three factors are to be considered in determining this issue. First, was the prosecutorial misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, do the statements show ill will by the prosecutor? Third, is the whole evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor s prejudicial conduct changed the result of the trial? State v. Follin, 263 Kan. 28, 45, 947 P.2d 8 (1997).
In this case, we answer the first two questions in the affirmative and the third question in the negative. Defense counsel specifically asked for information regarding time of death in order to prepare for trial. The State deliberately and willfully withheld that information. This conduct was gross and flagrant and showed deliberate ill will. The evidence against Trennie was not overwhelming, and if defense counsel had been able to prepare for the time of death evidence offered by the State, the result of the trial may have been different. In short, the prosecutorial misconduct in this case requires that we reverse Trennie’s conviction and remand for a new trial.
The prosecution has also argued that the defense failed to object to the time of death testimony when it was given during the trial. We do not consider this to be relevant since the State’s failure to disclose the information was willful misconduct which denied Trennie’s right to confrontation and to a fair trial. We apply the plain error rule and conclude that the absence of an objection by the defense does not affect our decision to reverse the conviction.
HEARSAY EVIDENCE
Trennie argues that in one instance the trial court erred when it refused to admit certain hearsay evidence and in another instance when it erred in admitting such evidence. After reviewing the record, we agree with Trennie’s position in this matter. Our decision is based on the same rationale which we used in the case of State v. Brickhouse, 20 Kan. App. 2d 495, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995). In that case, we reversed a defendant’s conviction because the application of the hearsay rules had rendered his trial fundamentally unfair and had deprived him of due process of law. In reaching our decision in Brickhouse, we relied on the United States Supreme Court decision of Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed 2d 297, 93 S. Ct. 1038 (1973), in which that Court said that “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” 410 U.S. at 302. In the instant matter, we do not directly indicate that the hearsay rule was mechanistically applied as such. However, we believe that it was applied in such a manner that it affected Trennie’s constitutional rights and directly affected the ascertainment of her guilt to an extent that it defeated the ends of justice and violated her due process rights.
The first instance deals with a statement made by Flint. Flint was originally made a codefendant along with Trennie, and he was in the home the evening before and the morning of Savannah’s death. The evidence indicated that Flint had, somewhat uncharacteristically, spent the day before Savannah’s death at home and that he spent a great deal of time taking pictures of her with a new camera which he had obtained. It is obvious that Flint had equal access to Savannah’s room on the night before and the morning of her death. It is further obvious that Savannah’s illness had a significant and negative impact on Flint. In view of the absence of clear evidence as to what caused Savannah’s death, we understand why the State charged Flint as a codefendant. We do not understand why those charges were dismissed.
It is obvious that Trennie’s best interests lie in at least inferring to the jury that Savannah’s death was due to Flint’s actions. Flint refused to testify at the trial and claimed his Fifth Amendment rights. However, at the trial, Jimmy Skinner, Trennie’s brother, testified that on the day of Savannah’s death, Flint said, “At 6:00 or 7:00 I had a daughter and now she’s dead and I’m going to prison.”
The record indicates that while he was in jail, being held as a suspect in Savannah’s death, Flint told another jail inmate by the name of Oscar Henry that he had killed Savannah. After Flint had confessed to Henry, Henry made a statement to Detective T. Wal ton in which he gave significant details about Savannah’s death. He advised Detective Walton that Flint had told him that he got fed up with all of it and got drunk. He went on to say that he took pictures of Savannah the day before she died so he could remember her that way. He told Henry that he put Savannah to bed and decided to let her go in the night. He indicated that Savannah was a burden and that he wanted to get rid of SRS’s involvement in their family. At the trial, Trennie attempted to introduce, through Detective Walton, Hemy’s recollection of what he was told by Flint. At the time the evidence was offered, Detective Walton was in court, Heniy was available to testify, and Flint had indicated that he was relying on his Fifth Amendment rights. The trial court refused to allow Detective Walton to testify about Flint's confession to Henry. Henry was available to testify and did appear in court; however, Henry could not remember the details of his statement to Detective Walton, and the trial court ruled that Heniy was an unavailable witness and precluded the defense from using any part of his statement at trial.
We hold that the trial court erred in refusing to admit Detective Walton’s testimony concerning the statement Flint made to Henry, and we conclude that the error is reversible error which will require a new trial.
This particular incident also illustrates the “win at all costs” attitude taken by the prosecutor in this case. The statement made to Detective Walton was apparently considered reliable by the State because it used that statement to get Trennie to plead and it also used it to urge the court to sever Flint’s charge so that his confession could be used. The State, in using Henry’s statement to Detective Walton, indicated that no threats, promises, or deals were made to secure the statement. Despite the fact that the State was at almost all times the proponent of this statement and used it for its own purposes, the prosecutor objected to its admission at Trennie’s trial when Trennie sought to use the statement in her own defense.
At the close of its case, the State moved to exclude Hemy’s testimony as well as his statement to Detective Walton on die grounds that Henry was unavailable as a witness. The argument was made that Henry was unavailable because he could not remember the content of his statement to police. This led the State to the conclusion that since Henry was unavailable, his statement to Detective Walton was inadmissible hearsay.
The evidence of Henry was proffered, and during the proffer, Henry took the stand. He told die court that he was housed in jail with Flint and that he remembered talking with Flint about the charges pending against him. Henry also testified that he remembered talking to Detective Walton. When asked about the content of his statement to Detective Walton, Henry said, “I really don’t recall anything that was—was said. It was over a year ago and I don’t have a very good memory.” The trial court held that Henry was unavailable as a witness and excluded all evidence relating to Flint’s confession to Henry as hearsay. Flint, of course, was unable to be questioned about the confession because he had invoked his rights against self-incrimination.
A trial court is given considerable discretion in admitting statements under the hearsay exception for unavailable witnesses. State v. Stafford, 255 Kan. 807, 810, 878 P.2d 820 (1994). When unavailability is an issue, whether the witness is available is a question of law. State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995).
Henry was present and available to testify at trial. The real issue is whether his lack of memory as to the details of the confession are sufficient to brand him as an unavailable witness. A witness is not unavailable simply because he or she claims he or she cannot remember the incident. State v. Todd, 24 Kan. App. 2d 796, 801, 954 P.2d 1 (1998). In order for the trial court to make a finding of unavailability, it must distinguish between a witness who, in bad faith, feigns memory loss and a witness who, in good faith, is unable to testify because of genuine memory loss. State v. Lomax & Williams, 227 Kan. 651, 661-62, 608 P.2d 959 (1980).
Henry did not refuse to testify in this case. In fact, he testified that he remembered Flint making the statement to him and that he made a statement to Detective Walton. He just did not remember the details of that statement. We conclude that inasmuch as Henry remembered talking to Flint and remembered providing the statement to the detective, this is a sufficient basis for cross-ex amination. We hold that the trial court abused its discretion in declaring Henry unavailable as a witness.
Flint’s confession should have been admitted under K.S.A. 2000 Supp. 60-460(a), which permits hearsay evidence based on previous statements of persons present. If Henry had taken the stand and testified that Flint had confessed to him, it would be admissible as a declaration by Flint against interest. K.S.A. 2000 Supp. 60-460(j). The fact that Henry did not remember all of the details of the statement did not make him unreliable as a witness, but could have been exploited by the State in placing his credibility in question in front of the jury.
The next hearsay issue involves Flint’s statements to Detective Walton which were admitted by the trial court. Trennie suggests that the trial court erred in admitting those statements as res gestae evidence.
Wide latitude is given to the trial court in determining whether evidence is part of the res gestae. State v. Sanders, 258 Kan. at 423. Res gestae allows evidence of actions done, as well as declarations made, before, during, or after the occurrence of the principal event. The acts of declarations become admissible res gestae if they are so closely connected with the occurrence as to become a part of the occurrence. Res gestae acts can be separated from the primary occurrence by lapse of time but are illustrative of the primary act. Res gestae acts can be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. State v. Edwards, 264 Kan. 177, 200, 955 P.2d 1276 (1998).
In Edwards, the court indicated that declarations made as a part of the res gestae are not admitted into evidence without limitation but are governed by the rules of evidence. Thus, the court held, in order to be admissible, res gestae evidence must still conform to the requirements of 60-460. 264 Kan. at 200. As a result, the evidence must still meet an exception in order to be admitted. The State seems to believe that res gestae is treated as independent of the hearsay rule, and we conclude that this is an erroneous belief. In fact, in State v. Drach, 268 Kan. 636, 648-49,1 P.3d 864 (2000), Justice Six stated in a concurring opinion that “[r]es gestae, as an independent evidentiary concept, deserves a proper burial.” 268 Kan. at 651-52. We acknowledge that Justice Six’s statement was in a concurring opinion and does not constitute a binding ruling of the Supreme Court. However, it indicates the direction in which the court may be moving, a direction with which we agree.
On the morning of Savannah’s death, Detective Walton interviewed Flint. According to the testimony of Detective Walton, Flint identified a certain trachea tube as the tube he found in Savannah’s crib. The trachea tube was important because the ties were too short to go around Savannah’s neck and appeared to have been cut. The theory was that if it was indeed the trachea tube that was inserted into Savannah the night before, someone must have cut the ties.
Flint was certainly not available for cross-examination and was not available as a witness, having claimed his Fifth Amendment rights. For that reason, this evidence is pure hearsay and does not come in under any hearsay exception of which we are aware. We conclude that the trial court erred in admitting this evidence under the hearsay rule.
CROSS-EXAMINATION OF TRENNIE
Trennie argues that the comments of the prosecutor during cross-examination constitute prosecutorial misconduct and denied her right to a fair trial. Since we have previously visited that issue, we see no need to discuss again the elements of prosecutorial misconduct. In short, when a prosecutor’s comments are so prejudicial to rise to the level of a constitutional violation, that violation results in plain error and no contemporaneous objection is required. State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 (1999).
In this case, Trennie was forced by the State on cross-examination to comment on the credibility of other witnesses. Although a contemporaneous objection was not made on the grounds that it was improper to force the witness to comment on the credibility of other witnesses, defense counsel did object to the use of the term “liar” as used by the prosecutor, and the objection was sustained.
We point out the following exchange:
“Q. Are you telling me Sandy Elliott has come in here and made all this stuff up, so we could listen to it?
“A. I don’t know if she made it—made it all up or what, but I don’t know what she was seeing, but that never happened.
“Q. Are you telling me that Sandy Elliott is a liar in relation to that?
“MR. STRUBLE: Objection, Your Honor, I don’t think that is appropriate.
“MS. MCDONALD: Sure it is, Judge, I can use that term, to accuse somebody of being a liar.
“THE COURT: I am going to sustain the objection.”
After the trial court sustained Trennie’s objection to the prosecutor’s tactics, the prosecutor simply eliminated the word “liar” from her questions, but continued to ask Trennie to comment on the credibility of the State’s witnesses. She asked Trennie if all the State’s witnesses were making their testimonies up. Later, she again asked if the testimonies of the State’s witnesses were misstatements.
We consider the State’s tactics on cross-examination to once again be illustrative of its “win at all costs” attitude. Although there is no question that the State is allowed to ask a witness about inconsistencies in her own testimony, this cross-examination went beyond that and asked her to comment upon the veracity of the other witnesses offered by the State. This did not occur just once, but several times. We conclude that this technique should not and will not be tolerated. It is possible that if this were the only error in this case, it might not constitute reversible error. However, when it is coupled with the other errors in this trial, the effect is cumulative and, again, we base our reversal of Trennie’s conviction on prosecutorial misconduct in questioning her concerning the veracity of the State’s other witnesses.
OTHER ISSUES
It is obvious from what was said earlier in this opinion that Trennie’s conviction is reversed and that a new trial will be required. We have attempted to comment upon those issues which necessitated our reversal of the defendant’s conviction. There are other issues raised in the briefs which are basically moot. However, we will comment briefly on those issues in the event that they should come to light in the proceedings for a new trial.
Trennie argues that Dr. Roberts should not have been allowed to testify concerning Savannah’s time of death because the necessary foundation to establish that she had the requisite skill, training, and professional experience to give this testimony was not laid.
Although the issue is close, we do not believe the trial court abused its discretion in allowing the expert witness to testify as to the time of Savannah’s death. There is no question about Dr. Roberts’ knowledge pertaining to the death, and we cannot say that no reasonable person would agree with the trial court’s decision to admit the testimony. We would hope that a better and more complete foundation is laid in the event of a new trial, but we do not find sufficient error in this regard to reverse the defendant’s conviction.
On closing argument, the prosecutor argued an aiding and abetting theory to convince the jury of Trennie’s guilt when, in fact, the jury had not been instructed on that theory.
Unfortunately, there was no contemporaneous objection to the State’s comments in this case. If there had been, we suspect the trial court might have sustained an objection and instructed the jury to ignore the prosecutor’s aiding and abetting comments. The failure to make a contemporaneous objection to the argument at the time the comments were made is fatal to the issue on appeal.
DISPOSITIONAL DEPARTURE SENTENCE
The State argues the trial court erred in making a dispositional departure in this case and placing Trennie on probation. We disagree.
We think the record in this case contains ample reason to support the trial court’s dispositional departure. An example of the attitude of the prosecution in this case might be found in the fact that it asked the court to double her presumptive sentence of imprisonment and to run the convictions of child endangerment consecutive to the unintentional second-degree murder conviction. With this attitude, it is no wonder that the State was upset when tire trial court placed Trennie on probation.
We see no reason to expand this opinion on the issue at hand. We hold that the mitigating factors relied upon by the court during sentencing are supported by the record and are substantial and compelling and that the trial court did not err in granting the dis-positional departure and placing Trennie on probation.
We close this opinion by commenting upon the defendant’s conviction of four counts of child endangerment. It is possible that under other circumstances we would allow the child endangerment convictions to stand. However, we have concluded that this case is so full of error and so permeated by prosecutorial misconduct that the entire trial was skewed and did not comport with our concept of what a constitutionally fair trial ought to be. For that reason, we reverse all of Trennie’s convictions.
We reverse the defendant’s convictions and remand the matter for a new trial consistent with the requirements of this opinion.
Reversed and remanded. | [
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Elliott, J.:
Defendant David P. Dreier appeals the revocation of his probation. We affirm in part, reverse in part, and remand with directions.
Dreier s contentions require interpretation of statutes over which we have unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
Dreier first contends, based on K.S.A. 2000 Supp. 22-3716(b), the district court was mandated by statute to assign him to a community correctional services program instead of imposing tire sentence originally imposed upon revocation of his probation. He bases his argument on K.S.A. 2000 Supp. 22-3716(b) effective May 25, 2000, which provides in relevant part: ?
“Except as otherwise provided, no offender for whom a violation of conditions of release or assignment or a nonprison sanction has been established as provided in this section shall be required to serve any time for the sentence imposed or which might originally have been imposed in a state facility in the custody of the secretary of corrections for such violation, unless such person has already at least one prior assignment to a community correctional services program related to the crime for which the original sentence was imposed, except these provisions shall not apply to offenders who violate a condition of release or assignment or a non-prison sanction by committing a new misdemeanor or felony offense.”
Dreier s crime occurred on August 8, 1997. Thus, in order for K.S.A. 2000 Supp. 22-3716(b) to control this case, that statute must operate retroactively. See State v. Mayberry, 248 Kan. 369, Syl. ¶ 15, 807 P.2d 86 (1991) (criminal penalties in effect at time of offense controls).
The fundamental rule is that a statutory change operates prospectively except when (1) its language clearly indicates the legislature intended retroactive application, or (2) the statutory change does not prejudicially .affect the substantive rights of the parties and is merely procedural or remedial in nature. State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991).
There is nothing in the language of K.S.A. 2000 Supp. 22-3716(b) which clearly indicates the legislature intended it to operate retroactively. Thus, the question becomes whether the statute is substantive criminal law which either defines a crime or involves the length or type of punishment. Sutherland, 248 Kan. at 106.
In State v. Freeman, 249 Kan. 768, 771, 822 P.2d 68 (1991), our Supreme Court considered a previous amendment to K.S.A. 22-3716(b) and held “[application of the amended version of22-3716 in the circumstances of the present case would alter the punishment itself’ and, thus, the statute was substantive, not procedural. This same reasoning applies to K.S.A. 2000 Supp. 22-3716(b) because the statute in effect at the time of Dreier’s crime, K.S.A. 22-3716(b) (Furse 1995), does not mandate the district court assign a defendant to a community corrections program before ordering that the defendant serve the original sentence imposed.
Even if K.S.A. 2000 Supp. 22-3716(b) did apply, the district court did not err. K.S.A. 2000 Supp. 22-3716(b) allows the district court to order the defendant to serve the original sentence imposed without a prior assignment to a community correctional services program “if the court finds and sets forth with particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by such assignment to a community correctional services program.” In this case, the sentencing court made the finding that the “public safety requires defendant to be committed directly to the Department of Corrections.”
Under the facts of this case, the district court did not err in ordering that Dreier serve the original sentence instead of assigning him to a community correctional services program.
We next turn to Dreiers contention that the district court erred in failing to consider placement at Labette Correctional Conservation Camp (Labette).
A district court cannot impose a prison term without first considering placing the defendant at Labette when the offender is classified in a presumptive nonprison, nondrug grid box. K.S.A. 2000 Supp. 21-4603d(a). Dreiers criminal histoiy and crime severity level placed him in a presumptive probation block on the nondrug sentencing grid.
The transcript of the sentencing proceeding reveals the district court did not state on the record that it had considered but rejected Labette as placement for Dreier.
This court has on several occasions held that the failure of a trial court to consider placing defendant at Labette as required by K.S.A. 2000 Supp. 21-4603d(a) requires the sentence imposed be vacated and the matter remanded for resentencing. See, e.g., State v. Schick, 25 Kan. App. 2d 702, 971 P.2d 346 (1998), rev. denied 266 Kan. 1114 (1999); State v. Billington, 24 Kan. App. 2d 759, Syl. ¶ 5, 953 P.2d 1059 (1998); State v. Williams, 24 Kan. App. 2d 447, Syl., 946 P.2d 98 (1997); cf. State v. Adams, 29 Kan. App. 2d 589, 30 P.3d 317 (2001) (holding court need not consider Labette when felony crime, though falling in presumptive probation non-drug grid box, was committed while on assignment to a community correctional services program in another case).
The State sets forth two responsive arguments. First, it argues the trial court implicitly considered Labette when it stated: “[F]or the protection of the community I believe a placement at the Department of Corrections is a proper one for the sentence to be served as originally ordered.” The State argues this statement implies the trial court considered but rejected Dreier’s placement at any other facility under the jurisdiction of the Secretary of Corrections, other than imprisonment.
We have previously held “K.S.A. 1996 Supp. 21-4603d(a) is very clear concerning the district court’s duty to consider Labette in appropriate situations and to note its consideration on the record.” Schick, 25 Kan. App. 2d at 704. Even if we accept the State’s argument that the district court implicitly considered and rejected Labette, such implicit consideration is not in compliance with the statute and we must, therefore, reject the State’s argument.
Second, the State maintains that even if this court concludes the trial court did not consider placement at Labette, the error was harmless because Dreier’s crime was one of a violent nature (severity level 7 aggravated battery) and Dreier suffers from a diabetic condition and depression.
In Schick, the State argued the defendant “failed to prove that space was available at Labette and that he met all the placement criteria,” and, thus, the district court’s error was harmless. Schick, 25 Kan. App. 2d at 703. We rejected the State’s argument, stating “[t]he statute does not require the defendant to provide the information suggested by the State before the district court considers Labette.” 25 Kan. App. 2d at 703. The court went on to state: “[Sjtrict compliance with K.S.A. 1996 Supp. 21-4603d(a) is mandated .... Any change in this procedure must come from the legislature.” Schick, 25 Kan. App. 2d at 704.
We agree. The statute requires the trial court to consider Labette on the record. It did not, and in accordance with prior decisions of this court, we must set aside Dreier’s sentence and remand for resentencing for the district court to consider Labette.
Affirmed in part, reversed in part, and remanded. | [
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Beier, J.:
Clinton McDonald appeals the district court’s denial of his motion to withdraw his guilty plea, filed after sentencing for possession of drug paraphernalia. We affirm the denial of the motion to withdraw plea but remand for resentencing.
McDonald was charged with possession with intent to sell, deliver, or distribute methamphetamine and possession of drug paraphernalia. Initially represented by Jason King, McDonald entered into a plea agreement. He agreed to plead guilty to the paraphernalia charge in exchange for the State’s dismissal of the other charge and its recommendation that the standard term of incarceration be suspended in favor of 24 months’ probation consecutive to his sentence for parole violation.
McDonald’s written plea agreement listed the potential penalties for the charge, stated that he had received a copy of the sentencing guidelines grid, and confirmed that he understood his sen tence would be determined based upon his prior criminal history. The agreement also stated that McDonald understood the district court was not bound to accept the recommendation and that no one had promised McDonald would receive a lighter sentence or probation. Further, even if such a promise had been made, the agreement stated it was not binding on the court.
At the plea hearing, the district court told McDonald the range of penalties for possession of drug paraphernalia was 10 to 42 months’ imprisonment, depending upon criminal history. The court further explained in detail that, if McDonald had one or more prior person felonies, it was presumed he would go to prison; if he had two or three prior nonperson felonies, he would be in a border box; and if he had one or two misdemeanors or one nonperson felony, there would be a presumption for probation. McDonald told the court he understood and had reviewed and understood the written plea agreement. The judge also told McDonald that he did not have to follow the plea agreement, and McDonald said he had not received any threats or promises to persuade him to plead guilty. After McDonald told the court he had possessed a digital scale for weighing marijuana and methamphetamine, the court accepted McDonald’s plea of guilty to felony possession of drug paraphernalia.
At sentencing, McDonald was represented by another attorney, Tod Davis. The State was represented by Greenwood County Attorney Mary Ann Shirley. The district court considered McDonald’s motion for downward dispositional departure, as the defendant fell within the presumptive prison 4-C grid block under the Kansas Sentencing Guidelines. The following exchange then occurred:
“Mr. Davis: Judge, we are asking the Court to impose the standard sentence, but we are asking the Court to suspend that sentence right now. The standard sentence would be like—would most likely be 30 months. That under the terms of the plea agreement that may not be a joint recommendation, but the State will not object to the granting of a downward dispositional departure. And we are asking the Court to do so at this time.
“THE COURT: Ms. Shirley.
“MS. SHIRLEY: Your Honor, I believe that what defense counsel has stated is correct. I have agreed not to oppose the motion. But I believe the Court still has the duty and obligation to find substantial and compelling reasons to depart. And I would like to know more about what the alternatives to his—his dispositional departure would be. If there is—if he has a proposed rehabilitative program. I’m not seeing there is one. What the plan is that would show there are alternatives available.”
The district court found no substantial and compelling reasons to depart existed and sentenced McDonald to 28 months’ imprisonment. McDonald immediately told the court he felt he “was tricked into this plea bargain,” because his previous attorney had “all but guaranteed me probation.” The court told McDonald that he should discuss the possibility of filing a motion to withdraw his plea with his attorney.
At the hearing on that motion, McDonald was represented by a third attorney, Monte Miller. McDonald testified that his first attorney showed him a guidelines grid and told him that he was in the 4-C box. However, after talking with the county attorney, King penciled in his 4-C box as a border box and told McDonald that the county attorney agreed to make it a border box for him. McDonald stated that King assured him he was not going to prison and that King told him he had never seen a case where the judge had gone against the joint recommendation of the State and the defense. McDonald admitted he could not remember whether King ever discussed departure motions with him.
King testified that he told McDonald he fell into a presumptive prison box, but that the State would recommend probation if he took the plea agreement. King admitted he told McDonald he had never seen a judge act contrary to a plea agreement. He also confirmed he told McDonald he would be rolling the dice if he went to trial, because he would go to prison if convicted. King further testified that he explained to McDonald they would have to demonstrate the availability of a treatment program to satisfy the statutory requirements for a departure.
The district court denied the motion to withdraw plea.
K.S.A. 2000 Supp. 22-3210(d) provides in relevant part: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” The denial of a motion to withdraw a plea lies within the sound discretion of the district court, and this court will not disturb that decision absent an abuse of discretion. State v. Shaw, 259 Kan. 3, 13, 910 P.2d 809 (1996). “Judicial discretion is abused when judicial action is arbitraiy, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.” State v. Jasper, 269 Kan. 649, 653, 8 P.3d 708 (2000).
McDonald first argues the district court abused its discretion because he had not understood that he would be required to show substantial and compelling reasons in order to be placed on probation. The record does not support this argument. McDonald admitted that he knew he fell into a presumptive prison block, and he could not remember whether King told him that they would have to file a motion for dispositional departure. King testified that he and McDonald discussed the necessity of showing the existence of an alternative treatment program for departure. The district court did not abuse its discretion in denying McDonald’s motion on this basis.
McDonald next argues the district court abused its discretion because the prosecutor did not comply with the plea agreement at the plea hearing. It should first be noted that this argument was not raised before the district court. Ordinarily an issue not raised below will not be considered for the first time on appeal. State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). This court may consider an issue for the first time on appeal, however, if it is necessaiy to serve the ends of justice or to prevent a denial of fundamental rights. State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). Breach of a plea agreement denies the defendant due process. State v. McDaniel, 20 Kan. App. 2d 883, Syl. ¶ 1, 893 P.2d 290 (1995).
In Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), the prosecutor agreed to make no sentence recommendation under the plea agreement but later recommended a maximum sentence. The sentencing court overruled the defense objection and sentenced the defendant to the maximum term, say ing it did not rely upon the recommendation in doing so. The United States Supreme Court ruled that the State’s promises must be fulfilled and remanded to state court, giving it the option of imposing specific performance of the agreement before a different judge or allowing the defendant to withdraw his plea. 404 U.S. at 262-63.
■ In State v. Hill, 247 Kan. 377, 378, 799 P.2d 997 (1990), the defendant agreed to plead in exchange for the State’s promise to recommend that he receive a controlling term of two consecutive life sentences. At sentencing, the State referred the court to the presentence investigation report, which set out the recommendations of the plea agreement, but also noted that no amount of time could compensate the victims for the damage they had suffered. When appealing the district court’s denial of a later motion to withdraw his plea, the defendant relied on Santobello to argue that the State did not comply with the plea agreement. The Kansas Supreme Court distinguished Santobello, because the same judge presided at all the hearings and was aware that the State had agreed to recommend a controlling term of two consecutive life sentences. The court found the State’s additional comments were not tantamount to making a recommendation contrary to the plea agreement. 247 Kan. at 386.
McDonald’s case appears more analogous to Santobello than to Hill. The same judge did not preside at both the guilty plea and sentencing hearings; thus court knowledge of the plea agreement was not certain. Indeed, it appears the sentencing judge was not informed of the specifics of the plea agreement—that the State would recommend a suspended sentence in favor of 24 months’ probation—until the defendant read the agreement to him after sentencing. Before then, the State had not followed through on its obligation. A statement that it would not oppose a downward dis-positional departure with a reminder of the high statutory burden is not the same thing as making a recommendation of a suspended prison sentence and probation.
In McDaniel, this court applied a constitutional harmless error standard to cases involving breach of a plea agreement. Under that standard, the breach is harmless only if this court can conclude beyond a reasonable doubt that McDonald would not have pleaded guilty but for the State’s agreement to recommend probation. 20 Kan. App. 2d at 888-89. It is clear from the record in this case that McDonald pleaded guilty in this case only to attempt to avoid imprisonment. The State’s breach of the plea agreement was not harmless error, because it may have thwarted that attempt. We believe the appropriate remedy under Santobello is to remand for a new sentencing before a different judge with directions that the State deliver on its promise.
We affirm the denial of McDonald’s motion to withdraw plea, because we are satisfied that he fully understood the potential consequences of it. However, we reverse and remand for new sentencing before a different judge with directions that the State specifically perform its agreement to recommend the standard term of incarceration be suspended in favor of 24 months’ probation consecutive to McDonald’s sentence for parole violation. The routing of this case should be interpreted only as an action consistent with Santobello and not as a comment critical of the district judge’s performance.
Affirmed in part, reversed in part, and remanded with directions. | [
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PlERRON, J.:
This is an appeal by Southwestern Bell Telephone (SWBT) from an order of the Kansas Corporation Commission (Commission) relating to nonrecurring rates for unbundled network elements (UNE). Specifically, SWBT argues the Commission could not make its order retroactive under K.S.A. 66-1181, which provided that the Commission’s orders became effective 30 days after any motion for reconsideration was denied or ruled upon. SWBT also argues the Commission could not use K.S.A. 2000 Supp. 66-1181 to make its order retroactive because the 1999 statutory change was not effective until 5 months after the Commission’s initial order on February 19, 1999.
On September 11, 1996, Sprint Communications Company, L.P., and the four United Telephone Companies providing local exchange service in Kansas filed an application asking the Commission to open a generic proceeding to examine SWBT’s costs and to determine the rates SWBT could charge under the Tele communications Act of 1996, 47 U.S.C. § 252 (Supp. V1999), and the FCC’s rules for interconnection, unbundled elements, transport and termination, and wholesale services available for resale. The Commission initiated such a docket later that year. This case is an appeal from that docket.
Pertinent to this appeal is the Commission’s order of February 19, 1999, which set recurring and nonrecurring costs and prices for UNEs. On March, 9, 1999, SWBT filed a petition for reconsideration of the February 19, 1999, order specifically asking the Commission to reconsider the costs and prices set for both the recurring and nonrecurring UNEs.
On September 17, 1999, the Commission issued an order revising the monthly recurring UNE prices, as set forth in Attachment A of the order, and ordered SWBT to rerun its nonrecurring cost study using certain criteria outlined by the Commission. In the interim, the Commission ordered that either the nonrecurring costs established by the interconnect agreements with the competitive local exchange carriers (CLECs) or the prices listed in Attachment B of the February 19,1999, order would apply. SWBT was also ordered to submit a “Master List” of UNEs and their definitions. The Commission ruled that this order was effective upon service pursuant to K.S.A. 2000 Supp. 66-118? and K.S.A. 77-530(a).
On October 1, 1999, SWBT filed motions to reconsider and to clarify certain parts of the Commission’s September 17, 1999, order. It also asked that the Commission stay the effective date of the order because requiring SWBT to offer rates as set out in the order would cause undue hardship to both SWBT and the CLECs. SWBT claimed that if the prices were put into effect, SWBT would be put in the position of charging rates that did not meet the statutory requirements for UNE rates and the order would require the CLECs, which had availed themselves of these rates, to “true up” the sums based on subsequent Commission orders. In the alternative, SWBT asked that the September 1999, rates be deemed interim rates subject to a final unappealable order and require the CLECs to true up based on the final rates.
The Commission denied SWBT’s motion to stay the effective date of the order and held the prices associated with recurring costs, Attachment A, were effective upon service of the order of September 17, 1999, and would remain effective pending the Commission’s decision on SWBT’s motion for reconsideration. With respect to nonrecurring costs, the prices established in the interconnect agreements would apply. However, to the extent the interconnect agreements did not set prices for the UNEs, the prices listed in Attachment B of the February 1999 order would apply, subject to true up based on the final rates established in this proceeding. The Commission also ordered SWBT to file a master list of recurring and nonrecurring prices for UNEs as established in the February and September 1999 orders.
After a number of intervening motions and orders not critical to the analysis here, the Commission, on November 3, 2000, issued an order determining nonrecurring prices for UNEs. In this order the Commission stated that the prices as set forth were the final prices for nonrecurring UNEs and ordered SWBT to immediately implement rates established in the order.
In response, ATT, SWBT, and Birch Telecom filed motions to reconsider and clarify. Specifically, Birch requested that the nonrecurring prices included in the November 3, 2000, order be used to true up the nonrecurring rates back to the February 19, 1999, order. ATT asked that SWBT be required to refund amounts paid for UNEs in excess of Total Element Long Run Incremental Cost (TELRIC) rates.
The Commission issued its order on the various petitions for reconsideration on December 21, 2000, finding that the effective date of the nonrecurring price order was February 19, 1999, and the prices revised in subsequent orders were effective on February 9, 1999. SWBT was ordered to true up rates back to the effective date of the order, February 19, 1999. SWBT filed a petition to reconsider. The motion was subsequently denied.
SWBT then perfected this appeal.
The parties have briefed two primary questions: (1) Did the Commission have the authority to make its order on UNE prices effective retroactive to February 19,1999, before the 1999 amend ment to K.S.A. 66-118Z and (2) could K.S.A. 2000 Supp. 66-118Z be applied to make the final order on UNE prices effective February 19, 1999? As we find the answer to the second question dispositive, we will answer it first.
Under K.S.A. 2000 Supp. 66-118a(b), the Court of Appeals has exclusive jurisdiction to review any agency action of the Commission arising from a rate hearing requested by a public utility or requested by the Commission when a public utility is a necessary party. Pursuant to K.S.A. 66-118c, orders by the Commission are subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.
The applicable standard of review is set forth in K.S.A. 77-621. Under K.S.A. 77-621(a)(l), the burden of proving the invalidity of the Commission’s action is on SWBT, the party asserting invalidity. Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 24 Kan. App. 2d 63, 67, 941 P.2d 424 (1997). SWBT argues pursuant to K.S.A. 77-621(c)(4) that the Commission has erroneously interpreted or applied the law.
The issue in this case is, when does an order of the Commission become effective? This in turn is controlled by how K.S.A. 2000 Supp. 66-118Z is interpreted.
The interpretation of a statute by an administrative agency which is charged with the responsibility of enforcing that statute is generally entitled to judicial deference. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the court finds that the agency’s interpretation is erroneous as a matter of law, the court should take corrective steps. The decision of an administrative agency as to questions of law is not conclusive and, while persuasive, is not binding on the courts. McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 645, 983 P.2d 853 (1999).
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). “ ‘ “As a general rule, statutes are construed to avoid unreasonable results. [Citation omitted.] There is a presumption that the legislature does not intend to enact useless or meaningless legislation. [Citation omitted.]’ ” [Citation omitted.]” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
In February of 1999, when the Commission’s order in question was issued, K.S.A. 66-118Í read:
“All orders or decisions of the commission shall become operative and effective 30 days after the service of the order or decision as provided by law, except that if a petition for reconsideration is filed, the order of decision shall become operative and effective 30 days after the order or decision of the commission denying the petition or if the petition be granted the order or decision as originally entered or as modified shall become operative and effective 30 days after the service of the order or decision of the commission on reconsideration.”
On July 1 of 1999, pursuant to L. 1999, ch. 52 §2, the statute was amended to read:
“All orders or decisions of the commission shall become operative and effective upon service of the order or decision, in accordance with the provisions of subsection (a) of K.S. 77-530 and amendments thereto, unless otherwise ordered by the commission or a stay is granted. The commission may grant a stay or suspend, in whole or in part, the operation of any order or decision of the commission in accordance with the provisions of K. S. A. 77-528 and amendments thereto. After the lapse of the time period in which judicial review of such order may be taken, such determinations and orders shall be held to be conclusive as to the matters involved in any suit to enforce such order or in any collateral suit or proceedings.”
K.S.A. 77-530 reads:
“(a) Unless a later date is stated in a final order or a stay is granted, a final order is effective upon service.
“(b) Unless a later date is stated in an initial order or a stay is granted, an initial order shall become effective and shall become the final order: (1) When the initial order is served, if administrative review is unavailable; (2) when the agency head serves an order stating, after a petition for review has been filed, that review will not be exercised; or (3) 30 days after service if no party has filed a petition for review by the agency head, the agency head has not given written notice of its intention to exercise review and review by the agency head is not otherwise required by law.
“(c) This section does not preclude a state agency from taking immediate action to protect the public interest in accordance with K.S.A. 77-536 and amendments thereto.”
According to the Commission:
“K.S.A. 66-1181, as originally enacted, established when a valid Commission order would be final and non-appealable. The July 1, 1999, amendment clarified a Commission decision would be effective, unless stayed, and removed the 30-day lag before an order would be deemed final and non-appealable. This is a remedial change that clarified the procedural rights in matters before the Commission. The July 1, 1999 amendment did not create or abrogate any substantive right.”
The Commission argues that the legislative history shows that the legislature intended for the statute to be procedural and to apply retroactively.
SWBT argues that there is no indication the legislature meant for the 1999 amendments to operate retroactively, and thus the statute must be construed to only operate prospectively. It also argues that the statute cannot be applied retroactively because it would adversely affect SWBT’s substantive rights. The substantive rights SWBT is apparently referring to are interconnect agreements that contain true up provisions. According to SWBT, the Commission’s order could create a liability for SWBT that would not exist but for the fact that the Commission’s order was made effective on February 9,1999. SWBT argues it has a vested interest in the nonrecurring prices for UNEs which were negotiated in the interconnect agreements with several CLECs and because the Commission’s order alters those prices, it adversely affects SWBT’s substantial rights.
The general rule is that statutes operate prospectively unless the language clearly indicates the legislature intended them to operate retrospectively. An exception to this rule has been recognized where a statutory change is procedural or remedial in nature. In re Tax Appeal of Alsop Sand Co., Inc., 265 Kan. 510, 523-24, 962 P.2d 435 (1998). “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. 407, 414, 799 P.2d 1011 (1990).
Procedural statutes generally concern the manner and order of conducting lawsuits, while substantive statutes establish the rights and duties of the parties. See Ryco Packaging Corp. v. Chapelle Int’l, Ltd., 23 Kan. App. 2d 30, 43, 926 P.2d 669 (1996), rev. denied 261 Kan. 1086 (1997). If an amendment to a procedural statute does not prejudice the substantive rights of a party, all actions generally will be subject to the new procedure whenever they accrued or were instituted. See Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 191, 883 P.2d 1177 (1994). A remedial statute is legislation providing the means or method whereby causes of action may be effectuated, wrongs redressed, and relief obtained. Remedial legislation is liberally construed to effectuate the purpose for which it was enacted. Midwest Properties v. Harvey, 23 Kan. App. 2d 524, 526-27, 934 P.2d 154 (1997).
The difference between a procedural statute and a substantive statute is often difficult to discern, because a change in procedure can often significantly affect the outcome of a proceeding. The legislature can obviate the need for some judicial review on the question of prospective or retrospective analysis by clearly stating its intent in the statute or the legislative history. Without these indications, the courts must analyze a number of factors to tiy and divine legislative intent.
Substantive laws affect vested rights, and as such they are not subject to retrospective legislation which would constitute the taking of properly without due process. See Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992).
There is legislative history that supports the Commission’s position.
The 1999 amendment to K.S.A. 66-118Í was made in Senate Bill 123. In testimony before the Senate Utilities Committee, David J. Heineman, Executive Director of the Commission, presented testimony indicating the purpose behind amending K.S.A. 66-1181 was to make it consistent with the provisions in Kansas Administration Procedures Act, K.S.A. 77-501 et seq., and to prevent parties from delaying the effective date of an order by filing motions for reconsideration on the Commission’s order on motions to reconsider. “The effective date of an order or decision can be further delayed by a party or intervener filing a motion for reconsideration and even longer, as the Commission is beginning to see more of, by the filing of a motion to reconsider the order on reconsidera tion.” The testimony before the Senate Utilities Committees indicates that the intent of the change was to speed up the process and prevent a party from using procedural technicalities to delay Commission action. See Minutes of the Senate Utilities Committee, February 16 and 22, 1999.
From the above legislative history it is fairly clear that the 1999 amendment to K.S.A. 66-118Z was meant to foreclose a situation like that which is presented here. It is procedural in that it only operates when an order becomes effective. The question remains whether it affects SWBT’s substantive rights.
SWBT points to the September 1999 order which did two things: First, it ordered SWBT to rerun its cost studies relating to the UNEs and file those studies with the Commission, and, second, it ordered that, in the interim, the nonrecurring UNE costs established by interconnection agreements between SWBT and the CLECs or those in the,February 19, 1999, pricing order would apply. SWBT argues that pursuant to the language in the September 1999 order, it became effective when served on the parties and, therefore, SWBT had a right to rely on those prices when negotiating interconnect agreements with the CLECs. As indicated above, SWBT argues it has a vested interest in the nonrecurring prices of UNEs negotiated in the interconnect agreements. Further, it claims, to the extent it is a party to interconnection agreements that contain true-up provisions, the retroactive application of the statute would create liabilities for SWBT that would not exist but for the Commission’s actions.
SWBT’s argument is somewhat inconsistent. On one hand it argues it had a right to rely on the Commission’s orders of February and September 1999, as those orders were final, yet it also argues that the rates or prices established in this docket are not final until any motions to reconsider were ruled on. Thus the Commission could not order a “true up” of prices until after the decision, or lack thereof, on any motions to reconsider under K.S.A. 2000 Supp. 66-118Z.
Substantive laws establish the rights and duties of parties. In re Tax Grievance Application of Kaul, 269 Kan. 181, 184, 4 P.3d 1170 (2000). Substantive laws have been described as laws which give or define rights, laws which give rights or denounce wrongs, and laws which create any liability against a defendant for committing a tort. Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, 873, 936 P.2d 297, rev. denied 262 Kan. 962 (1997). “There is no vested right in any particular remedy or method of procedureC Jones v. Garrett, 192 Kan. 109, Syl. ¶ 6,386 P.2d 194 (1963). “ ‘Vested rights’ is a term that is used to describe rights that cannot be taken away by retroactive legislation. [Citation omitted.] Retroactive legislation affecting vested rights would constitute the taking of property without due process. [Citation omitted.]” Gardner v. Gardner, 22 Kan. App. 2d 314, 317, 916 P.2d 43, rev. denied 260 Kan. 992 (1996). However, 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. The rule is particularly applicable to procedural changes in the law. Gleason v. Samaritan Home, 260 Kan. 970, 987, 926 P.2d 1349 (1996). See State ex rel. Schneider v. Liggett, 223 Kan. 610, 613, 576 P.2d 221 (1978).
From our review of the record it appears the Commission’s order only affects those interconnection agreements between SWBT and the CLECs which have true-up provisions. “A ‘true-up’ is a payment made to offset the difference between an earlier estimated payment and actual costs.” Stow Municipal Electric Department v. Department of Public Utilities, 426 Mass. 341, 350 n. 5, 688 N.E.2d 1337 (1997). Pursuant to 47 U.S.C. § 252(a) and (e), it appears that the Commission could not order those interconnection agreements which do not contain true-up provisions to be modified absent a finding that the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement or that the implementation of such agreement or portion is not consistent with the public interest, convenience, and necessity. No such findings have been made in any of the Commission’s orders. In the December 21, 2000, order on the petitions to reconsider, the Commission expressly noted that it did not have the authority to reform any negotiated agreement between SWBT and a CLEC that did not contain a true-up provision. Indeed, if the Commission could not order the prices effective to a prior date, we fail to see the purpose of the true-up provision in any of the interconnection agreements.
It appears that SWBT’s interests in the prices for nonrecurring UNEs as contained in the interconnection agreements would not be vested, since the true-up provision would necessitate that those prices be adjusted and amounts refunded, or additional amounts collected, depending on the final order of the Commission. Thus, the retroactive application of this procedural, remedial statute does not appear to prejudice any of SWBT’s substantive rights.
As a subissue, SWBT argues that the Commission could not apply K.S.A. 2000 Supp. 66-1181 retroactively because “even procedural statutes are not retroactively applied to proceedings that have already taken place,” quoting State v. Lieurance, 14 Kan. App. 2d 87, 89, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990). The answer to this claim is that the rates established in any order of the Commission are never “final,” to the extent they cannot be modified, until the time for appellate review has expired. Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, Syl. ¶ 6, 941 P.2d 390, rev. denied 262 Kan. 961 (1997).
We find, therefore, that the Commission did not err in its application of K.S.A. 2000 Supp. 66-1181. For this reason we need not reach the question of whether the Commission could make its order effective on a prior date under the statute as it read in February of 1999. We do note, however, that the decision in Kansas Pipeline Partnership, 24 Kan. App. 2d at 42, would appear to support the Commission’s position.
Finally, SWBT argues the Commission’s orders which made the prices for nonrecurring UNEs effective February 19, 1999, but made the effective date for recurring or monthly UNEs effective September 17,1999, were unreasonable, arbitraiy, and capricious. See K.S.A. 77-621(c)(8). It claims the Commission’s actions were unreasonable because it accords disparate treatment between recurring and nonrecurring UNE rates.
The Commission responds that this issue was not properly preserved for appeal because it was not included in SWBT’s petition to reconsider.
The Commission is correct. Nothing in SWBT’s motion to reconsider the December 21, 2000, order argues that the different effective dates for recurring and nonrecurring charges were somehow unreasonable, arbitrary, or capricious. From a review of all the orders and SWBT motions to reconsider filed subsequent to September 17, 1999, SWBT has not, prior to the argument in its appellant’s brief, argued that setting different effective dates for recurring versus nonrecurring UNE costs and prices was unreasonable, arbitrary, or capricious. “Any ground not set forth in the application for rehearing cannot be relied upon in judicial review proceedings.” Peoples Natural Gas v. Kansas Corporation Commission, 7 Kan. App. 2d 519, 526, 644 P.2d 999, rev. denied 231 Kan. 801 (1982). SWBT’s failure to raise this issue in its motion to reconsider bars it from raising it here. In any event, we see no basis for the argument based on the record before us.
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Knudson, J.:
Plaintiff Cindy Parks appeals the district court’s ruling that an exclusionary clause in a policy issued by garnishee Farmers Insurance Company (Farmers) is valid and enforceable. We affirm.
Following the entry of judgment in the underlying personal injury case, a dispute remained as to whether Farmers, the defendant’s automobile liability insurance company, was obligated to provide liability coverage in excess of the statutory minimum liability limit despite a policy exclusion. Parks attempts to collect from Farmers through this garnishment action.
The parties stipulated that Endorsement s0404 controls the outcome of the garnishment action. The endorsement excludes coverage arising from “[t]he liability of any insured person while operating your insured motor vehicle for bodily injury to you or a family member, in excess of the limits of liability required by the Financial Responsibility Law.” (Emphasis omitted.) If enforceable, this exclusion would afford coverage of $25,000 for the plaintiff rather than policy limits of $100,000.
Following briefing and oral argument, the district court ruled that the step-down provision was valid and enforceable. Parks appeals.
Parks argues the policy exclusion is ambiguous and, thus, unenforceable because it does not specifically designate the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., or state the dollar amount of liability coverage under the step-down provision.
Whether an instrument is ambiguous is a matter of law to be decided by the court. In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996). An appellate court has unlimited review of the interpretation and legal effect of a contract. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 153, 959 P.2d 894 (1998).
Every motor vehicle liability insurance policy issued to a resident of Kansas must contain an agreement or endorsement that the insurance is provided as required under the KAIRA. K.S.A. 40-3107(d). The KAIRA requires minimum “stated limits of liability” of $25,000 per person and $50,000 per accident for bodily injury or death. K.S.A. 40-3107(e). If a policy purports to meet the requirements of the KAIRA, any omitted or inconsistent language shall be construed to obligate the insurer to meet all of the mandatory requirements of the act. K.S.A. 40-3I07(g).
A step-down exclusion that limits coverage under specific circumstances to the minimum liability coverage required by the KAIRA is permissible. See DeWitt v. Young, 229 Kan. 474, 480, 625 P.2d 478 (1981); Universal Underwriters Ins. Co. v. Hill, 24 Kan. App. 2d 943, 951, 955 P.2d 1333 (1998). Consequendy, Parks is reduced to arguing the provision is ambiguous. She first questions the term “Financial Responsibility Law.” In DeWitt, 229 Kan. at 480, the court stated: “Generally, it is held that exclusions in liability insurance policies are valid and enforceable as to amounts exceeding coverage required in financial responsibility laws.” (Emphasis added.) For a Kansas policy covering a Kansas resident, that standard is only set under the KAIRA. We conclude Parks’ argument is without merit.
Parks next objects that the policy does not specify the applicable minimum coverage limit required by law. Currently, that minimum is $25,000. Farmers’ failure to specify that required minimum amount within the exclusion does not violate the KAIRA’s requirement of stated limits for the overall policy or render the exclusion ambiguous. Even though the limit is omitted, it is imposed by law under K.S.A. 40-3107(g). See Hill, 24 Kan. App. 2d at 951.
Parks also argues the phrase “limits of liability required by the Financial Responsibility Law” does not satisfy the “stated limits” requirement of K.S.A. 40-3107(e) and is, therefore, void and unenforceable. This argument is without merit. The basic limits under the policy are stated; only the reduced amounts under the step-down exclusion must be determined based upon the mandatory minimum liability requirements of K.S.A. 40-3107(e).
We conclude the district court’s ruling should not be disturbed.
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Lewis, J.:
This lawsuit was filed by Ina Knorp against Steven E. Albert, D.O., to recover damages caused when Albert allegedly misdiagnosed her condition as a diabetic episode when she had, in fact, suffered a stroke. The trial court granted summary judgment in favor of Albert, finding that Knorp had failed to give notice under K.S.A. 2000 Supp. 12-105b(d) to Albert’s employer. Knorp appeals from the decision granting summary judgment in favor of Albert.
The controlling issue on appeal is whether Albert was an employee of the Harper Hospital District or an independent contractor. If he was an employee of the hospital, the trial court was correct. If, on the other hand, Albert was an independent contractor, the trial court’s holding was erroneous. The question of Albert’s negligence and the details of his treatment of Knorp are irrelevant on appeal, and those facts will not be reviewed.
Our focus is on the procedural course this case has taken. That course is somewhat complex and is of substantial importance in resolving the issues presented. Knorp filed two lawsuits. The first action was filed in 1998 and will be referred to as the “1998 lawsuit.” The second action was filed in 1999 and is the action on appeal to this court. That action will be referred to as the “1999 lawsuit.”
The issues on appeal cannot be resolved without turning our attention first to the 199,8 lawsuit. Among the allegations set forth in that action was the following:
“10. Harriet Fox, Phyllis Shirk, Tom Giggy, Ken Salters and Kenna Teal, as directors and on behalf of Hospital District No. 5 of Harper County, Kansas, that entity is the employer of Dr. Steven E. Albert, and is responsible in response of superior [sic] for all damages caused by the fault of Dr. Steven E. Albert. In addition, these Defendants were negligent in ensuring that Dr. Steven E. Albert in a timely fashion examined all patients admitted to the Harper Hospital Medical Clinic on an emergency basis and that he was a competent physician.” (Emphasis added.)
Obviously, the 1998 action was premised on the basis that Albert was an employee of the hospital. It named the directors of the hospital as defendants and sought recoveiy against the hospital via the doctrine of respondeat superior or on the theory of negligent supervision. The hospital, in responding to Knorp’s allegations, alleged in its answer: “5. Answering the allegations contained in paragraphs 5, 6, 7, 9 and 10, of plaintiff s Petition, the same are expressly denied. These defendants expressly deny that they were negligent in any regard.”
Albert filed a motion to dismiss the 1998 lawsuit on the ground that Knorp had failed to give the required notice to the hospital under K.S.A. 2000 12-105b(d). That statute refers to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., and requires that prior to filing suit against a municipality based on the negligence of one of its employees, written notice must be given to the municipality at least 120 days prior to the filing of a lawsuit. The parties appear to agree that the hospital was a municipality under K.S.A. 12-105a(a) and that Knorp had failed to give it the notice required by 12-105b(d).
Knorp apparently realized the error of her ways and before the trial court had an opportunity to act on the motion to dismiss, moved the court for an order dismissing the 1998 action without prejudice. This motion was granted, and Knorp filed the 1999 lawsuit within the 6-month period required by K.S.A. 60-518.
In 1999, Knorp filed the current action. Unaccountably, Knorp again made no effort to comply with 12-105b(d). Instead, she redrew her action, eliminated the directors of the hospital as defendants, and named Albert in his individual capacity only, inferring that he was an independent contractor of the hospital and not an employee. Albert again moved the court for summary judgment, contending that he was, in fact, an employee of the hospital and that no notice had been given under 12-105b(d). In response, Knoip argues that no notice was necessary since Albert was an independent contractor. She further maintained that Albert had either waived the right to raise the failure to give notice or was estopped to raise that issue because of the position he had taken in the 1998 litigation.
The trial court found neither of Knorp’s arguments persuasive and granted Albert’s motion for summary judgment. The propriety of granting summary judgment to Albert is the subject of this appeal.
WAS ALBERT AN EMPLOYEE OF THE HOSPITAL OR AN INDEPENDENT CONTRACTOR OF THAT ENTITY FOR THE PURPOSES OF THE KANSAS TORT CLAIMS ACT?
Our standard of review for summary judgment in cases of this nature is well established:
“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). 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.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
The specific issue argued by Knorp is that the trial court erred in determining that Albert’s written contract with the hospital made him an employee rather than an independent contractor. In this context, an appellate court may independently construe a written agreement to determine its legal significance. Anderson v. Employers Mutual Casualty Ins. Co., 27 Kan. App. 2d 623, 629,6 P.3d 918 (2000). There are at least two Kansas Supreme Court cases holding that the question of whether one is an employee or independent contractor is generally a question of fact. See Mitzner v. State Dept. of SRS, 257 Kan. 258, 261, 891 P.2d 435 (1995); Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104 (1991). However, in this case, an unambiguous written contract* controls the employment relationship, and we conclude the interpretation of that agreement is properly a matter of law subject to unlimited review.
As we indicated earlier, no one seriously questions whether the hospital is a municipality under K.S.A. 12-105a(a). That being the case, a tort claimant against a municipality on a claim covered by the KTCA must give the municipality notice of the claim and 120 days to either settle or deny the claim. On its face K.S.A. 2000 12-105b(d) only applies to municipalities and says nothing about having application to the employees of the municipalities. Despite this fact, we held in King v. Pimentel, 20 Kan. App. 2d 579, 589, 890 P.2d 1217 (1995), that 12-105b(d) requires notice to the municipality even when the lawsuit only names municipal employees acting within the scope of their employment. The KTCA applies to both municipal entities and employees of municipal entities acting within the scope of their employment. K.S.A. 2000 Supp. 75-6104.
Certain claims which are based on the rendering or failure to render professional services by health care providers are excluded from coverage under the KTCA by K.S.A. 75-6115. However, there are five exceptions to this exclusion, and one of those exceptions is applicable to this case and that is “a hospital owned by a municipality and the employees thereof.” K.S.A. 75-6115(a)(2). The KTCA has full applicability in the instant matter and includes a “governmental entity or an employee acting within the scope of the employee’s employment.”
Obviously an independent contractor is not an employee. Indeed, the KTCA definition of employee excludes independent contractors. K.S.A. 2000 Supp. 75-6102a(d). The result is, as pointed out earlier, if Albert is or was an independent contractor, then the KTCA does not apply to him, and the trial court’s decision was erroneous.
On the issue of Albert’s status, the trial court held that he was an employee within the definition of K.S.A. 2000 Supp. 75-6102a(d). In general, the test to be applied was set out by the Supreme Court in Falls v. Scott, 249 Kan. at 64 as follows:
“An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. [Citation omitted.]”
In addition to the general rule, the Restatement (Second) of Agency § 220(2) sets out several relevant factors to be considered in deciding whether one is an employee or an independent contractor:
“(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
“(b) whether or not the one employed is engaged in a distinct occupation or business;
“(c) the land of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
“(d) the skill required in the particular occupation;
“(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
“(f) the length of time for which the person is employed;
“(g) the method of payment, whether by the time or by the job;
“(h) whether or not the work is a part of the regular business of the employer;
“(i) whether or not the parties believe they are creating the relation of master and servant; and
“(j) whether the principal is or is not in business.”
The Kansas Supreme Court has indicated that the Restatement factors quoted above should be considered in determining the issue in question. See Brillhart v. Scheier, 243 Kan. 591, 597, 758 P.2d 219 (1988).
In her argument that Albert was an independent contractor, Knorp seems to rely almost exclusively on the following paragraph in the written employment agreement between Albert and the hospital:
“5. Professional Standards. In the areas of diagnosis and treatment of patients, Physician’s professional responsibility shall be complete and [the hospital] shall not direct, supervise, or control Physician in his professional care of any individual patient. Physician hereby promises to engage in the practice of his profession on [the hospital’s] behalf to the best of his ability and in accordance with the generally accepted community standards of his profession and to faithfully adhere to the standards as set by the licensing board of the State of Kansas and the rules and regulations of [the hospital].” (Emphasis added.)
We hold that standing alone, the mere fact that the hospital had no right to control or supervise Albert in his “professional care of any individual patient” was not sufficient to create an independent contractor relationship.
First, it appears there may be some medical ethical provisions which require the language in paragraph 5 to be in any physician s employment contract. This is suggested by two federal circuit court decisions. See Quilico v. Kaplan, 749 F.2d 480, 483-84 (7th Cir. 1984); Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983). If, as we conclude, physicians are required to either put such a clause in their employment contract or are required to in fact utilize their independent judgment regardless of what the contract says, then it would follow that a physician could never be an employee but would always be an independent contractor. We do not believe that such a position is supported by the law in this state and certainly would be contrary to the intent of the parties. We conclude that rather than relying on certain isolated provisions in the agreement, the status of a physician should be determined by careful attention to the entirety of the contractual agreement and to the intent of the parties.
The Georgia Court of Appeals, in Newton County Hosp. v. Nicholson, 132 Ga. App. 164, 167, 207 S.E.2d 659 (1974), held:
“Although the hospital administrator averred that no hospital employee or staff member had the right to control the medical techniques or judgment of the physicians in command of the emergency room, this averment alone is insufficient to demonstrate unequivocally that Dr. Feinfeld was an independent contractor. Other affidavit averments indicate that this doctor came within the category of being a servant of the hospital as he was paid an hourly wage and his schedule was arranged by the hospital.” (Emphasis added.)
We prefer to construe the employment agreement in this case by the totality of all of its provisions and to give considerable weight to the intent of the parties. We also believe that a modicum of common sense should be a factor in reaching a decision.
While the agreement does not give the hospital control over the details of the treatment of patients, it gives Albert precious little control over any other area of his life as a physician. For instance, the agreement requires Albert to provide services to those patients “who present themselves or who are presented to [the hospital] for treatment.” This indicates that Albert was not entitled to refuse service to anyone. He was required to serve those patients who came into the hospital in which he worked. It appears to us that a physician working as an independent contractor would have the authority to decide whom he or she would treat and whom he or she would not treat.
If one analyzes the agreement with regard to the factors stated in the Restatement (Second) of Agency, certainly more of those factors point to the existence of an employer/employee relationship than point to an independent contractor relationship. In particular, we cite the following:
(a) Control over details. Although Albert was to have independence with respect to the details of the treatment of his patient, the hospital had the right to exercise enough control over him to see that his treatment fell within the standards of the profession and standards as set forth in the hospital rules and regulations. The times he was required to be at the hospital were set by the hospital and not by Albert.
(b) Who supplies the instrumentalities, tools, and place of work. The employment contract required the hospital to provide “such facilities, equipment, and supplies as it seems necessary for Physician’s performance of professional duties.” The hospital was responsible for purchasing malpractice insurance arid gave Albert an allowance for professional meetings, professional dues, and license dues. These were items which, if Albert were an independent contractor, he would be paying for himself.
(c) Length of contract. The first agreement between Albert and the hospital was from April 1995 until April 1996. The agreement in effect at the time Knorp’s cause of action arose was in effect from July 1996 until June 1998. Albert was prohibited under the employment agreement from working for anyone else during the period of time he was employed by the hospital.
(d) Method of payment. The employment agreement required the hospital to pay Albert a salary based upon his time. He was compensated in the same manner and in the same fashion as any other employee.
(e) Intent of the parties. As we read the agreement, the parties clearly intended that Albert should be considered an employee of the hospital. The words “independent contractor” do not appear in the employment agreement. If the hospital had intended to create an independent contractor relationship so as to avoid vicarious liability, we suspect the agreement would have expressly said so. There is nothing in the agreement to hint that the parties intended an independent contractor relationship.
We conclude that when viewed in its entirety, the agreement reveals an intent by the parties that Albert be considered an employee of the hospital. It also contains a sufficient number of provisions to overcome the fact that tire hospital was not able to control Albert in his care of the patients. We hold the trial court did not err in concluding that Albert was an employee of the hospital and that notice was required to be given under the Kansas Tort Claims Act.
TUDICIAL ESTOPPEL
In order to save her action, Knorp attempts to make an equitable estoppel argument which we consider not only to be disingenuous but inconsistent with the manner in which Knorp has proceeded in this litigation. Knorp suggests that Albert is either estopped from arguing or has waived the right to argue that he is an employee of the hospital. This argument is premised on the fact that in the 1998 lawsuit, Albert and the hospital denied that he was an employee,. and it is the position of Knorp that having denied it in the 1998 lawsuit, Albert should not be permitted to claim it in the 1999 lawsuit.
We disagree.
The first thought that comes to mind is that Knorp has totally changed her approach from the 1998 lawsuit to the 1999 lawsuit. In 1998, she claimed that Albert was an employee. In 1999, she inferred that he was an independent contractor. If Knorp was not estopped from changing her theory of recovery, then we cannot imagine how Albert could be estopped from changing his theory of defense.
A party can assert judicial estoppel when four elements are satisfied: (1) a position taken must contradict a declaration in a prior judicial action; (2) the two actions must involve the same parties; (3) the party asserting the theory must have changed its position; and (4) the changed position must have been in reliance on the prior statement. See Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 151, 927 P.2d 958 (1996), rev. denied 261 Kan. 1084 (1997).
One reason why judicial estoppel is not appropriate is that the same parties are not involved in this action as were involved in the 1998 action. The hospital directors were involved in the 1998 lawsuit but not in the 1999 lawsuit. The law would not hold Albert to pleadings made largely at the direction of the directors of the hospital in the 1998 lawsuit.
The reasons stated above, among others, compel us to hold that Albert was not estopped to take the position that he took in the 1999 lawsuit.
The trial court correctly concluded that neither judicial estoppel nor waiver was applicable in this case.
We affirm the trial court’s decision granting summaiy judgment in favor of Albert.
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Elliott, J.:
In this trespass action, Jack Holmes appeals the summary judgment in favor of Sprint United Telephone of Kansas (Sprint) and Elizabeth Killion.
We affirm.
At some time in the past, Sprint installed aerial cable in the alley adjacent to what is now Holmes’ property in the City of Melvern. In 1988, the City passed an ordinance (1988 ordinance) pertaining to the alley in question which included the following language: “That portion of the alley ... be vacated as provided by law. Land reverting equally back to owners on each side. The City of Melvern to retain exclusive rights to existing utilities.”
In 1996, the City passed another ordinance (1996 ordinance) granting Sprint the following franchise:
“[Sprint is] hereby granted the right ... to construct, install, maintain, and repair all the necessary poles, wires, cables, pole and wire fixtures, telephone plant, and telephone apparatus of whatsoever nature ... to erect, maintain, and repair such telephone poles and string the same with wire and cable along, upon, across or below the streets . . . and other public places of the City of Melvern; and to construct, lay, maintain, and repair such cable as [the City of Melvern] . . . may require, under those streets . . . and other public places ....’’
From September 1999 till January 2000, agents of Sprint dug a trench in Holmes’ property along the vacated alley to bury the aerial line. Holmes claims Sprint entered his property—without legal authority—to bury cables, and in doing so also removed foliage and damaged his property. The trial court granted Sprint’s motion for summary judgment.
The propriety of granting summary judgment is as stated in Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999). This case involves the interpretation of statutes and written documents over which we have unlimited review. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998); Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
The trial court was correct in determining Sprint had a legal right to enter Holmes’ property. First, United Tel. Co. of Kansas v. City of Hill City, 258 Kan. 208, 220, 899 P.2d 489 (1995), held K.S.A. 17-1901 and K.S.A. 17-1902 authorize telephone companies “to build and construct their lines along public rights-of-way in the state.” K.S.A. 17-1901 states:
“Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters.”
The rales applicable to telegraph companies are also applicable to telephone companies. K.S.A. 17-1902.
K.S.A. 17-1901 justifies Sprint’s presence in the alley in 1979, and its continued presence is justified despite the vacation of the alley by the two city ordinances. The 1988 ordinance retained to the city the “exclusive rights to existing utilities.” The 1996 ordinance assigned the right retained by the 1988 ordinance to Sprint.
Holmes’ reliance on K.S.A. 12-2001(b)(l) is misplaced. That statute does require the granting of a franchise to be done by or- • dinance, and the record on appeal contains no such ordinance in the 1979 era. But the 1996 ordinance was worded as a franchise allowing Sprint “to continue to conduct the business,” clearly implying Sprint had authority for what it had done in the past.
Further, the facts of United Telephone show it is not unprecedented for a telephone company to operate in a city without a formal franchise. 258 Kan. at 213. United Telephone is a complex opinion which balances the interests of the Kansas Corporation Commission, municipalities, and utility providers. 258 Kan. at 223. United Telephone cannot be read to hold Sprint lacked any legal authority to install aerial cables in 1979. We conclude Sprint had a valid right to install the aerial lines in 1979.
Since Sprint derived its rights through the city’s “ownership” of the alley, the reservation in the 1988 ordinance preserved Sprint’s rights.
Holmes interprets the reservation in the 1988 ordinance as not including whatever right Sprint may have had at that time to maintain its telephone lines in the city, relying on K.S.A. 2000 Supp. 12-505 which requires an order vacating an alley to reserve the rights for utility facilities “then in existence and use.”
K.S.A. 2000 Supp. 12-505 does not support Holmes’ argument. First, the statute merely provides what an ordinance vacating public property must reserve; there is no directive in the statute preventing a city from reserving more.
Second, Holmes fails to demonstrate Sprint’s use does not fall within the “then in existence and use” language. On the contrary, Sprint’s telephone lines and poles fall precisely within the definition of “then in existence and use.”
In effect, K.S.A. 17-1901 was incorporated into the language of “easement or public reservation then in existence and use” in the 1988 ordinance. By the 1988 ordinance, the city reserved any easement held by authority of K.S.A. 17-1901; that reservation surely included Sprint’s rights.
Holmes also argues Sprint, at most, had a legal right only to maintain what already existed on the property and, therefore, Sprint exceeded that right when it buried the cable, creating a surcharge.
Generally, the use of an easement must be consistent with the purpose of the easement at the time of its creation, and the use must also be reasonable. See Spears v. Kansas City Power & Light Co., 203 Kan. 520, 529, 455 P.2d 496 (1969). The United Telephone court specifically held K.S.A. 17-1901 and K.S.A. 17-1902 permit telephone companies to bury cable: “We find nothing in the two statutes involved which would limit telephone companies’ right to bury cable.” 258 Kan. at 224.
The question becomes how to interpret “existing utilities” as used in the 1988 ordinance. Did the 1988 ordinance mean “existing utilities” to refer only to infrastructures already in place, or does the phrase refer generally to existing rights, in this case rights found in K.S.A. 17-1901. Common sense requires us to interpret “existing utilities” to include the rights, not just the physical infrastructure already in place. At the time of thq 1988 ordinance, Sprint already had the right to bury cable in the alley pursuant to K.S.A. 17-1901 and K.S.A. 17-1902, as would be later interpreted by the Supreme Court in United Telephone.
Sprint did not create a surcharge because burying cable is a reasonable use of the easement created by statute.
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Pierron, J.:
Johnson Controls, Inc., (Johnson) appeals the order of the Workers Compensation Board (Board) finding Collette Watson was entitled to a 50% work disability. We affirm.
Watson started working for Johnson in 1994 as a materials handler, using her hands and arms frequently to straighten bottles and lay tear sheets. In April 1995, she developed problems with her right elbow, right wrist, and her left side. Watson reported to her supervisor and saw a company doctor for treatment. She was referred to Dr. Harris, -'"ho gave her a sling and released her to one-handed duty in May 1995. When her left arm started to have problems, she went to see Dr. Carabetta, who gave her an injection in both elbows and ordered her to get physical therapy.
Watson went back to work subject to restrictions that Dr. Carabetta gave her. She was laid off in November 1995 and received unemployment benefits. She was called back in January 1996, but declined to return to work.
In September 1996, Dr. Lynn Ketchum examined Watson, diagnosed bilateral epicondylitis, and recommended she wear hinged elbow braces when she returned to work. Dr. Ketchum also recommended that Watson should not do any repetitive gripping activities for 6 months and should be on a stretching program through physical therapy.
In October 1996, Watson obtained a full-time job at J.C. Penney through a temporary service. In December 1996, she quit working at J.C. Penney because she “[j]ust couldn’t do it any more.”
In January 1997, Watson was called back for a cleanup job at Johnson. The job involved sweeping the floor and pushing the trash cans after they were filled in order to keep the place clean. Watson worked only 1 full day and some hours the next day and eventually resigned from Johnson.
Following her resignation from Johnson, Watson worked for a few days at a grocery store owned by her friend, earning $6.50 per hour. She also worked in a laundromat at minimum wage, cleaning, sweeping, and doing some laundry, but she only stayed on the job for 3 hours. At the time of the hearing, Watson was babysitting at home for up to 4 days a week and earning $50 a week.
In February 1999, Dr. Ketchum examined Watson and concluded she was ready to return to work with the restrictions that she not have overhead work and not stay in the same posture around her shoulder girdle for prolonged periods. Dr. Ketchum rated Watson as having a 3% permanent partial impairment of both upper extremities for an impairment rating of the body as a whole of 4%, based on the diagnoses of mild left lateral humeral epicondylitis and bilateral myofascitis.
Dr. Jennifer Finley examined Watson on one occasion at the request of Watson’s counsel and rated Watson as having a 15% impairment of the body as a whole caused by fibromyalgia. Her opinion was that Watson’s fibromyalgia was caused by the injury sustained at Johnson.
Michael J. Dreiling, a vocational rehabilitation counselor, evaluated Watson’s employability and stated:
“Considering the land of work she performed in the past, her limited educational background and tire significant medical restrictions that have now been given to her, I am not overly optimistic about her ability to return to work in the labor market and earn a comparable salary.
“It is my opinion that Ms. Watson will need very selective job placement assistance to find work that would allow her to stay within her medical restrictions and would be consistent with her educational background, work experience and skills.
“In summary, it appears that Ms. Watson always relied on her good physical capabilities, especially the use of her upper extremities, to perform work in the labor market, which is now contraindicated by her restrictions. She will experience a significant loss in terms of her ability to perform job tasks as a result of her medical restrictions.”
A vocational rehabilitation consultant called by Johnson, Gary Weimholt, testified Watson could be making approximately $240 to $320 a week in the open labor market. He was of the opinion that Watson did not conduct an effective job search after her injury.
The administrative law judge (ALJ) found that Watson had a 9.5% functional impairment to the body as a whole, a 23.5% task loss, and a 40% wage loss, which were averaged together to be a 31.75% work disability. The ALJ imputed an amount of $290 a week as the wages that Watson would be capable of earning.
Watson appealed the order of the ALJ, and the Board modified the ALJ’s award by finding Watson was entitled to a 50% permanent partial general disability. The Board affirmed the ALJ’s finding that Watson sustained a 9.5% whole body permanent functional impairment as a result of her work-related injuries. The Board found a 60% task loss (averaging Dr. Finley’s 78% and Dr. Ketchum’s 42%) and a 40% wage loss, reaching a 50% work disability. The Board affirmed the $290 imputed post-injury average weekly wage.
This court must review the Board’s findings to determine whether they are supported by substantial competent evidence. Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 775, 955 P.2d 1315 (1997). Substantial competent evidence is evidence that furnishes a substantial basis in fact from which the issues presented can be reasonably resolved. 24 Kan. App. 2d at 775. The determination of whether the Board’s findings are supported by substantial competent evidence is a question of law. Roberts v. J. C. Penney Co., 263 Kan. 270, 274, 949 P.2d 613 (1997).
First, Johnson argues that Watson’s workers compensation award should have been limited to benefits for a functional impairment because she voluntarily resigned from the accommodated position at Johnson. Next, Johnson claims the Board made mistakes in computing an imputed average weekly wage of $290; it contends that Watson’s average weekly wage should have been $320 and that her task loss of 60% should have been 42%. Last, Johnson argues Watson did not sustain her burden of proof of functional permanent partial impairment.
An appellate court, in reviewing a workers compensation case, is required to view the evidence in a light most favorable to the prevailing party. Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 513, 949 P.2d 1149 (1997). Johnson wants the Court of Appeals to accept certain evidence over other substantial conflicting testimony and pass on tire credibility of the witnesses contrary to the findings of the Board. This is exactly what this court cannot do. See Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).
The evidence indicates Watson was offered another position for cleanup duty by Johnson; however, she had difficulty in performing the duty because of her medical problems. The ALJ and the Board imputed an average weekly wage of $290 for Watson, based on the testimony that she could be making approximately $240 to $320 a week in the open labor market. This is not an arbitrary finding by the Board. Findings supported by substantial evidence will be upheld by an appellate court even though evidence in the record would have supported contrary findings. Copeland v. Johnson Group, Inc., 26 Kan. App. 2d 803, 806, 995 P.2d 369 (1999), rev. denied 269 Kan. 931 (2000) (Copeland II).
Furthermore, this court cannot disregard the testimony by Dreiling and should not give greater weight to Weimholt’s analysis on the issue of task loss, even though Johnson strongly urges us to do so.
Johnson further argues that Watson failed to bear the burden of proof because of the weak medical testimony. However, there is more than sufficient evidence to support the Board’s finding that Watson suffered from medical conditions that were caused by the work-related injuries sustained at Johnson, and Watson was entitled to compensation for her permanent partial impairment.
Johnson also asks this court to “refine” the standards for determining a disability award that have been developed through Copeland II, 26 Kan. App. 2d 803; Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 944 P.2d 179 (1997)(Copeland I); and Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Specifically, Johnson appears to be asking for stricter penalties for not making a bona fide search for employment. We see no need for this. Under Copeland T. “If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages.” 24 Kan. App. 2d at 320.
This is precisely what the Board did. A failure to make a good faith effort simply allowed the Board to make its decision on facts which may be less favorable to the claimant had a good faith effort to find employment been made.
Substantial competent evidence supports the Board’s findings.
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Lewis, J.:
Dr. James M. Donnell had been employed by HCA Health Services of Kansas, Inc., (HCA) for many years. He, along with a group of other physicians, served as a member of a steering committee whose purpose it was to help write the employment contracts between the physicians and HCA. The group of family practice physicians was formed in order that HCA might compete with other hospitals in the Wichita area which already had established clinics. We taire it that Dr. Donnell served well and with distinction in his role on the committee and as a physician for a number of years.
It appears that the problems which culminated in Dr. Donnell’s termination began with a patient by the name of Golda Marie Long. This patient had been observed and treated in the emergency room at Wesley Medical Center (Wesley). When Dr. Donnell saw her later, he diagnosed her condition as pancreatitis. This diagnosis was consistent with that made by the emergency room physicians. After making the diagnosis, he ordered, among other things, a CT scan. The CT scan revealed that the patient was suffering from an esophageal perforation. This was considered to be a serious medical situation which required immediate attention. The testimony as to whether Dr. Donnell was verbally advised of the results of the CT scan is disputed.
Dr. Donnell referred the patient to Dr. Waswick, a surgeon. The surgeon performed surgery on Long to repair the rupture, but her condition deteriorated, and, approximately 2 weeks later, she died.
Apparently every death in the hospital is reviewed by the executive committee of the Wesley staff. Such review was conducted after Long’s death. The procedures provided for carrying out peer review, physician corrective action, and discipline are contained in Wesley’s staff bylaws and in the corrective action and fair hearing plan manual. The chairman of the committee, which was given the obligation to investigate the death, was defendant Dr. Rolland K. Enoch. The risk manager, Carla Walker, assisted in the investigation. Walker presented her findings to Dr. Enoch and the committee. After they received the findings of the risk manager, Dr. Donnell was invited to come to a committee meeting to discuss the concerns the committee had about his treatment of the patient.
Dr. Donnell attended tire next committee meeting and, according to him, only two questions were asked of him and he was given approximately 15 minutes before the committee. After the meeting, the committee decided that Dr. Donnell’s actions amounted to a “Level 4” violation of the standard of care of a patient, and the committee decided that a review should be undertaken of all of Dr. Donnell’s medical charts to see if any pattern could be identified similar to the Long case.
Apparently, Dr. Enoch conducted his own investigation and reported on the results of that to the committee. He expressed concern about Dr. Donnell’s inability to immediately respond to the emergency situation revealed in the patient’s condition. At the same time, Dr. Enoch admitted that he did not know whether Dr. Donnell had been told about the esophageal perforation, which was the condition which led to Long’s death. Dr. Enoch did not interview any of the other physicians involved in Long’s case. He indicated that his investigation consisted of information provided by the risk management personnel in determining whether Dr. Donnell provided adequate health care to the patient.
As noted above, Dr. Donnell’s medical records were examined, and there were concerns expressed about his record-keeping practices. However, the doctor was apparently never notified that his record-keeping practices were considered deficient.
There was an investigation into Long’s death by the Medicaid/ MediKan Foundation. The Foundation concluded that Long’s death probably would have occurred even if Dr. Donnell had acted differently. The report concluded there were internal communication problems which existed in the circumstances surrounding Long’s death.
Ultimately, a second peer review procedure was held, and Dr. Donnell’s staff privileges with Wesley were suspended. Dr. Donnell was advised that his employment contract with HCA would be terminated because his staff privileges with Wesley had been suspended due to deficiencies in handling the Long case. At the time of his suspension, Dr. Donnell was requested to obtain psychological and neurological evaluations but was not told he was considered impaired or that anyone thought he was impaired.
Dr. Donnell then obtained a psychological evaluation from Dr. Fred DeWitt and a neuropsychological evaluation from Dr. Mitchel Woltersdorf. The reports obtained indicated he was functioning at a superior range of intelligence and was fit to practice medicine, However, Dr. Donnell failed to obtain the neurological exam by the physician which had been specified by the peer review committee.
After reviewing the reports from the physicians whom Dr. Donnell had consulted, the committee continued his suspension because he failed to get the requested neurological examination.
Dr. Donnell appealed from the continuation of his emergency suspension, and a second hearing was held. After the second hearing was concluded, the committee voted to continue the suspension, and Dr. Donnell’s employment remained suspended.
The next step was the filing of the instant action that is now being considered by this court on appeal. In this action, among other things, Dr. Donnell alleges that Dr. Enoch was negligent in investigating the claims which ultimately resulted in the suspension of Dr. Donnell’s medical staff privileges.
Shortly after the action was filed, Dr. Donnell filed a motion to amend the pleadings to include a claim for punitive damages and a motion to add tort claims to the petition. The tort claims to be added included tortious interference with a business relationship, fraud, slander, and libel. He also contended that the evidence would show wanton misconduct on the part of Dr. Enoch and Wesley in the peer review process, which would support his claim for punitive damages. The trial court granted the motions to amend.
After discovery had been completed, all the defendants filed a motion for summary judgment. The trial court found there were no controverted facts, only “different spins on the same set of facts.”
In ruling on the summary judgment motion, the trial court considered whether Dr. Donnell would be required to produce expert testimony regarding negligence in the peer review process. The trial court concluded that the standard involved in that allegation was ordinary care, and no expert was required. The court also found that for the purposes of summary judgment, it would accept as true that the peer review was conducted in a “sloppy” or “grossly negligent” manner as alleged by Dr. Donnell.
The trial court granted summary judgment in favor of the defendants, holding that the contract had been terminated for just cause. It also concluded that the defendants were clothed with immunity from liability in an action of this nature in the absence of proof that they acted maliciously and in bad faith. The court went on to conclude that both Wesley and Dr. Enoch were protected by immunity from liability for damages.
Wesley and Dr. Enoch cross-appeal the court’s denial of summary judgment on the question of whether Dr. Donnell was to produce expert testimony in order to support his claim of negligence in the peer review process. Dr. Donnell appeals from the entry of summary judgment in favor of the defendants.
Our standard of review in a case where summary judgment is granted is well known:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
We also point out that “[a] party opposing a [motion for] summary judgment may not rest merely on allegations, but must provide some affirmative evidence to supports its position. K.S.A. 1998 Supp. 60-256(e).” Bi-State Dev. Co., Inc. v. Shafer, Kline 6- Warren, Inc., 26 Kan. App. 2d 515, 517, 990 P.2d 159 (1999).
There are a number of issues raised on appeal.
DID THE TRIAL COURT ERR IN FINDING THE FACTS WERE NOT CONTROVERTED?
Dr. Donnell argues there are material controverted issues of fact which still exist and that the trial court erred in granting summary judgment to the defendants. We diságree and affirm the trial court’s decision in that regard.
It appears the trial court rather carefully edited the facts to come up with an appropriate statement of uncontroverted facts. The editing by the trial court consisted of word changes, additions, or issues that did not affect the outcome of the case before the court. For example, Dr. Donnell argues it was a controverted question of fact whether he knew about the results of the CT scan in the Long case. That could very well be true, but it is not a critical or a material question of fact in the instant matter. The question in this case is how the defendants handled the peer review investigation and eventual termination of employment. Any factual controversy surrounding Dr. Donnell’s handling of the Long case is simply not material to the issues on which this action needs to be decided.
Additionally, Dr. Donnell contends there was a material issue of fact as to whether the peer review proceedings were conducted appropriately. Once again, we do not agree. The court accepted as true, for the purposes of deciding the summary judgment motion, the allegations of Dr. Donnell that the peer review was done in a sloppy, negligent manner. Even making this assumption, Dr. Donnell does not contend, nor were there facts to show, that the defendants were guilty of bad faith or malice in conducting the peer review proceedings. As a result, those facts are not material to the issues in this action.
We hold the trial court was correct in determining that the material issues of fact in this case were, in fact, uncontroverted. The trial court further reviewed those facts in the light most favorable to Dr. Donnell, which is in accordance with the law.
WERE THE DEFENDANTS IMMUNE FROM LIABILITY UNDER THE PROVISIONS OF FEDERAL AND STATE LAW?
The real issue in this action is not how Dr. Donnell may or may not have treated patient Long. The question is whether the defendants in this case are immune from liability for damages in a civil action. The trial court concluded they were immune from liability under both state and federal statutes and, as a result, granted the defendants’ motion for summary judgment. We agree with the trial court’s decision.
The federal act which governs immunity under these circumstances is 42 U.S.C. § 11111 et seq. (1994), and is known as the “Health Care Quality Improvement Act” and we shall refer to it as HCQIA. Congress enacted HCQIA to improve the quality of health care and to reduce the number of incompetent physicians through effective peer review. 42 U.S.C. § 11101 (1994). The HCQIA eliminates deterrents to effective peer review by granting to groups conducting that review immunity from suit. 42 U.S.A. § 11111(a)(1) (1994). Under the federal statutes, so long as the peer review group provides adequate due process to the physician in question and so long as the action is taken with a reasonable belief that it will further quality health care, the peer group conducting a review is entitled to immunity. 42 U.S.C. § 11112 (1994).
While we conclude there would be immunity for the defendants under the federal enactment, we do not believe that enactment applies to the instant matter. Our decision will be based upon Kansas statutes, which we believe take precedence under the circumstances shown in this action.
K.S.A. 65-442 grants immunity in peer review processes in an effort to “encourage hospitals to actively engage in peer review of staff physicians.” Lemuz v. Fieser, 261 Kan. 936, 950, 933 P.2d 134 (1997). This legislation was enacted under the belief that with the threat of liability removed, the effective use of peer review would increase and be promoted. 261 Kan. at 951. Under Kansas law, immunity exists as long as the actions by the peer review group were taken in good faith and without malice. Smith v. Farha, 266 Kan. 991, 994, 974 P.2d 563 (1999).
K.S.A. 65-442 states:
“(a) There shall be no liability on the part of, and no action for damages shall arise against, any duly appointed member of the governing board or the duly appointed member of a committee of the medical staff of a licensed medical care facility for any act, statement or proceeding undertaken or performed within the scope of the functions and within the course of the performance of the duties of such committee of the medical staff if such member acted in good faith and without malice, and the medical staff operates pursuant to written bylaws that have been approved by the governing board of the medical care facility.
“(b) There shall be no liability on the part of and no action for damages shall arise against any licensed medical care facility because of the rendering of or failure to render professional services within such medical care facility by a person licensed to practice medicine and surgery if such person is not an employee or agent of such medical care facility.”
The protection for good faith participation in the peer review process also exists in K.S.A. 65-2898(b) and K.S.A. 65-4909(a). K.S.A. 65-2898(b) states:
“(b) Any state, regional or local association composed of persons licensed to practice a branch of the healing arts and the individual members of any committee thereof, which in good faith investigates or communicates information pertaining to the alleged incidents of malpractice, or the qualifications, fitness or character of, or disciplinary action taken against, any licensee, registrant or certificate holder to the state board of healing arts or to any committee or agent thereof, shall be immune from liability in any civil action, that is based upon such investigation or transmittal of information if the investigation and communication was made in good faith and did not represent as true any matter not reasonably believed to be true.”
Similarly, K.S.A. 65-4909(a) provides:
“(a) There shall be no liability on the part of and no action for damages shall arise against any: (1) State, regional or local association of health care providers; (2) state, regional or local association of licensed adult care home administrators; (3) organization delegated review functions by law, and the individual members of any committee thereof (whether or not such individual members are health care providers or licensed adult care home administrators); or (4) individual or entity acting at the request of any committee, association or organization listed in subsections (1) through (3), which in good faith investigates or communicates information regarding the quality, quantity or cost of care being given patients by health care providers ... for any act, statement or proceeding undertaken or performed within the scope of the functions and within the course of the performance of the duties of any such association, organization or committee if such association, organization or committee or such individual member thereof acted in good faith and without malice.”
We conclude, without question, that these statutes apply to the instant matter and that they are a clear indication that public policy, both state and federal, protects individuals and groups involved in the peer review process by providing qualified immunity when that process is conducted in good faith and without malice. The immunity under the facts shown applies to Wesley and to Dr. Enoch because their actions were in good faith, without malice, and they did not represent as true any matter which they did not reasonably believe to be true. The net result is that these defendants were immune from liability, and the trial court did not err in granting them summary judgment.
Dr. Donnell continues to argue that the defendants were sloppy and negligent in the manner in which they conducted the review in this case. Those allegations may veiy well be true, and in fact the trial court assumed those facts to be true in reaching its decision. The problem from Dr. Donnell’s standpoint is that these defendants are immune under state law from liability even if they were sloppy, even if they were negligent, and, indeed, even if their conclusions were wrong. Dr. Donnell would be successful in recovering damages from these defendants only by showing that the defendants acted in bad faith and with malice. As near as we can determine, Dr. Donnell does not even contend that the defendants acted in bad faith and with malice, and there is absolutely no evidence in the record which would indicate that the defendants acted in bad faith and maliciously. Accordingly, the defendants were immune from liability, and the trial court did not err in granting summary judgment in favor of the defendants.
Dr. Donnell argued that his claim for punitive damages was based on a theory of “wanton” conduct and that the issue of malice was also premised on a theory of economic motives for his termination. Once again, we agree that his argument may very well be true. His problem again is that the allegation of bad faith was never backed up with specific evidence. The trial court correctly concluded there was no factual dispute as to the lack of bad faith and malice and, as a result, immunity applied. We conclude that in this action, summary judgment was appropriate.
The only issue remaining on appeal is the issue cross-appealed by the defendants as to whether Dr. Donnell would need expert testimony to survive a motion for summary judgment on an action against the defendants for negligence. Since we have affirmed the decision of the trial court in granting summary judgment to the defendants, the cross-appeal is rendered moot, and we do not reach that issue.
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Knudson, J.:
Great Northern Insurance Company (Great Northern) appeals from an adverse judgment of $6,885 entered in favor of Central Solutions, Inc. (Central). The issues on appeal are limited to whether the trial court erred in holding ambiguous the pollution exclusion clause within the underlying insurance policy and awarding attorney fees to indemnify Central.
We reverse the trial court’s judgment because the pollution exclusion clause is unambiguous and precludes coverage under the uncontroverted facts of this case.
The underlying facts are: Atlantic Avenue Associates (Atlantic) owns a commercial property at 3122 Brinkerhoff Road, Kansas City, leased to Central. Central manufactures a variety of topical and hard surface cleaners, including body lotions, shampoos, and other cleaning products that it sells to end users.
A 55-gallon drum containing liquid cement cleaner called “Form Cleaner” developed a small stress fracture while it was being stored on the premises. George Derra, a facility manager for Central, discovered the leak and transferred the remaining product from the leaking drum to 5-gallon pails. He then spread an absorbing compound over the product that had leaked onto the floor, swept it into a fiber drum, added soda ash to the fiber drum, and disposed of the product.
Atlantic brought an action against Central for damages to the leased premises in the amount of $39,219.83 including weakened top surface of the concrete and permanent damage to the slab. Central filed a third-party action against its insurer Great Northern, claiming Great Northern breached the terms of the insurance contract with Central.
In bifurcated proceedings, the trial court first considered Atlantic’s claims against Central and awarded Atlantic damages in the amount of $19,618.94, including $7,500 for attorney fees. That judgment is also pending on appeal.
The trial court then tried the indemnification issues within the third-party litigation between Central and Great Northern. The trial court held the insurance policy’s pollution exclusionary clause unenforceable and granted Central an indemnification judgment of $6,885, which included $3,500 for attorney fees previously awarded to Atlantic.
Under the liability policy issued by Great Northern, it must pay the indemnification award unless the following exclusionary clause within the policy applies:
“POLLUTION
“A. This insurance does not apply to bodily injury, property damage, advertising injury, or personal injury arising out of the actual, alleged, or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants:
1. at or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured; . . .
Pollutants are specifically defined within the policy as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”
The material safety data sheet which complies with the Occupational Safety and Health Administration’s (OSHA) Hazard Communication Standard prepared by George Derra reveals the cement cleaner contains 85% phosphoric and 38% hydrochloric acid, and it “[rjeacts with active metals, mild steel, fine aluminum and basic material, soda ash, caustic soda, and chlorine bleach.” Contact with eyes “may produce serious chemical bums,” inhalation of “vapor or mist can cause damage to nasal and respiratory passages,” and ingestion may cause “irritation and damage to mucous membranes.” Furthermore, steps to be taken in case of spill are: “Absorb spills with dry sand or earth, then place chemical in waste container for disposal. Neutralize washings with base, such as soda ash or lime.” As control measures for protection it is recommended to use NIOSH/MSHA approved respiratory protection, rubber gloves, safety glasses, and a rubber apron.
The material safety data sheet is “written or printed material concerning a hazardous chemical which is prepared in accordance with paragraph (g) of this section.” 29 C.F.R. § 1910.1200(c) (1999). Section (g) states: “Chemical manufacturers and importers shall obtain or develop a material safety data sheet for each hazardous chemical they produce or import.”
The trial court gave the following explanation for its decision:
“After much consideration the Court finds that the contract at issue is ambiguous. The definition of the exclusion is so broad that, if applied to materials stored in the warehouse of the insured, there is no substance not covered by the exclusion. The cases make it clear that the facts must determine whether or not the exclusion is ambiguous. While the [City of Salina, Kan. v. Maryland Cas. Co., 856 F. Supp. 1467 (D. Kan. 1994)] case makes it clear that substances such as strong acids can be viewed as an irritant or a contaminant when the' substances are released into the environment, that is not the facts [sic] here. The [Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 934 P.2d 65 (1997)] case requires that the Court look at what a reasonable insured would have expected and the Court cannot find that Central Solutions would have paid money for no coverages. The Court is not convinced by the language of the insurance contract that the exclusion should be applicable when materials stored at a warehouse merely leak onto the floor where they are stored, and this would constitute ‘pollution.’ The Court is convinced that the exclusion does not apply in the facts of this case.”
Great Northern argues the trial court erred in concluding the exclusionaiy clause regarding pollution was ambiguous and did not apply under the facts of the case. Construing or interpreting Great Northern’s policy affords an appellate court unlimited review. See Elliott v. Farm Bureau Ins. Co., Inc., 26 Kan. App. 2d 790, 793, 995 P.2d 885 (1999), rev. denied 269 Kan. 932 (2000).
The general rule is that exceptions, limitations, and exclusions to insuring agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, Syl. ¶ 2, 840 P.2d 456 (1992). Where the language of a contract is clear, the court must enforce the terms as written and not look for meanings that do not appear on the instrument’s face. Crescent Oil Co. v. Federated Mut. Ins. Co., 20 Kan. App. 2d 428, 431, 888 P.2d 869 (1995).
Central argues the Form Cleaner is a finished consumer product sold to the end users and it is not a “pollutant.” The trial court agreed with the arguments of Central and ruled that the exclusionary clause did not apply because the cement form cleaner was a finished product, not raw material, stored in the warehouse which leaked only within the warehouse and, therefore, it was not a “pollutant.” The court held that Central would have been basically uninsured if the exclusionary clause applied to the facts of the case, as all of Central’s products could fall within the broad definition of pollutant.
There are two Kansas cases which discuss the application of a pollution exclusion clause in an insurance policy. In Crescent, gasoline from the underground storage tanks leaked into the basement of a building on the adjoining property. The insurance policy included a products-completed operations hazard endorsement and an absolute pollution exclusion, and the trial court found no coverage because of the pollution exclusion. The absolute pollution exclusion provided the policy would not cover:
“ ‘f. (1) “Bodily injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, release or escape of pollutants at any time.
(2) Any loss, cost or expense arising out of any request, demand or order that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in anyway respond to, or assess the effects of pollutants.’ ” 20 Kan. App. 2d at 430.
The policy provided its own definition of pollutants as “ ‘one or more solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.’ ” 20 Kan. App. 2d at 431. This definition is very similar to the definition of pollutant in the Great Northern policy.
The Court of Appeals, affirming the trial court, stated:
“This is not a case where the language permits multiple conflicting interpretations. We will not create ambiguity where none exists. Limiting the definition of pollution to intentional industrial pollution has no basis in the language of the policy. We hold the policy definition of ‘pollutants’ includes gasoline which has escaped and caused contamination to neighboring property.” 20 Kan. App. 2d at 433.
In the instant case, just as in Crescent, we need not search for a definition of “pollutant,” because Great Northern’s insurance policy defines it as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”
Central argues the damage to the surface area of the concrete floor was caused by the leakage of one of Central’s finished consumer products that it sells to the public and the finished consumer products is not a pollutant. However, there is no exception made for finished consumer products from the list of the pollutants. Our duty to narrowly construe an exclusionary clause within an insurance policy does not permit us to create an exception out of whole cloth.
Central also argues the definition of pollutants is so broad to render the entire exclusion ambiguous. The president of Central in testimony given by affidavit noted that thousands of consumer products contain acids, including orange juice; however, that does not make the finished consumer product an acid. We find this argument unpersuasive under the uncontroverted facts of this case.
It is difficult to imagine orange juice and low foam acid cleaner in the same category of products. Orange juice will not cause serious chemical bum by contact with eyes or irritation and damage to mucous membranes in case of ingestion. Central argues the definition of pollutants is so broad it practically included everything that Central produces and the insurance policy would offer no coverage if the exclusion clause applies. However, Central’s other products such as body lotions and shampoos would not have caused the particular kind and extent of damages to the concrete floor of the warehouse, and they would not be defined as pollutants.
In its decision, the trial court considered two cases that addressed somewhat similar issues to the issue now presented. In Americold Corp., plaintiffs’ food products stored in a warehouse were contaminated with smoke and toxic substances from a hostile fire. The insurance policy’s pollution exclusion eliminated coverage for “ ‘ “property damage” arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants,’ ” which included “smoke” and “soot.” 261 Kan. at 821. The insurance policy also contained a “hostile fire” endorsement called “Amendment of Pollution Exclusion,” which provided: “ ‘[The pollution exclusion provisions] do not apply to “bodily injury” or “•property damage” caused by heat, smoke or fumes from a hostile fire.’ ” 261 Kan. at 821.
The Supreme Court found the pollution exclusion language in the policy was ambiguous when applied to the facts and was interpreted to include coverage for damage caused by smoke from a hostile fire. 261 Kan. at 825. However, Americold Corp. dealt with an insurance policy which contained an amendment limiting the scope of the pollution exclusion and provisions of doubtful or conflicting meaning, which made the policy ambiguous. Here, the exclusionary clause of Great Northern’s policy does not contain terms of doubtful meaning or conflicting provisions.
In City of Salina, the issue was whether the insured should be required to indemnify the city for damages caused by the backup into a residence of highly alkaline wastewater from the city’s sewer. The city argued the exclusion’s definition of pollutants was so broad as to render the entire exclusion ambiguous. After examining the insurance contract and the undisputed facts, the court concluded that the “pollution exclusion” was unambiguous. 856 F. Supp. at 1477.
As previously noted, the trial court found City of Salina distinguishable because the wastewater was released into the environment. We readily recognize the distinction but fail to understand how it is relevant to an analysis of whether the exclusionary clause of the Great Northern policy is ambiguous. As stated in appellant’s brief:
“In City of Salina, the court considered a Pollution Exclusion Clause that is virtually identical to the pollution exclusion clause in the present case. The court first determined that the exclusion was unambiguous. [Citation omitted.] The court then noted that the damage causing substance in that case was a highly caustic substance and under any circumstances would be considered an ‘irritant or contaminant’ as required by the definition of‘pollutant.’ [Citation omitted.] In making this determination, the court relied upon the Environmental Protection Agency’s classification of the chemical as a ‘hazardous substance’ and its designation as a ‘hazardous substance’ under § 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 pursuant to 40 C.F.R. § 302.4(a). The court also found it relevant that the MSDS produced by the manufacturer had warned about the harmful effects of alkaline wastewater. [Citation omitted.]”
We agree with the appellant’s summary of City of Salina and do not agree discharge of the pollutant into the public environment was an important fact in the federal court’s interpretation of the pollution exclusionary clause.
After fully considering the language of the exclusionary clause and the definition therein of a pollutant, we conclude the trial court erred in its ruling. The exclusionary clause is unambiguous and does not make any exception for pollutants that are finished consumer products stored on leased premises. The policy definition of pollutants includes Central’s cement foam acid cleaner “Form Cleaner,” which leaked causing damage to Atlantic’s property. Our decision makes unnecessary a specific discussion of whether attorney fees should have been included within the judgment. We re verse the judgment of the trial court and remand with directions to enter judgment in favor of Great Northern.
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Knudson, J.:
John W. Partridge, Jr., appeals his conviction for driving while suspended under K.S.A. 2000 Supp. 8-262. Partridge contends the stop of his vehicle on a public highway was not based upon reasonable suspicion of a traffic violation and the trial court erred in denying his motion to suppress the vehicle stop, including his arrest and subsequent inculpatory statements.
We affirm because the arresting officer did have reasonable suspicion to stop Partridge’s vehicle.
At approximately 7:35 p.m. on March 6, 2000, Deputy Brad Good of the Butler County Sheriffs Department received a call from the department’s dispatcher reporting a reckless driver southbound on Highway 196 between Potwin and El Dorado. The dispatcher told Good a motorist used her cell phone to call and report following a reckless driver in a gray passenger car with Kansas license tag number NZU 155. The suspect car was in a group of vehicles. Although not known by Good at the time of the stop, the caller had given the dispatcher her name, Darla Casper, and stated she was calling from her car phone.
In addition to the information given by the dispatcher, Good testified to earlier radio traffic on his police scanner from the Harvey County Sheriff s Department with a similar report of a possible reckless driver southbound on Highway 196 entering Butler County.
Deputy Good pulled off on the side of the road at Northwest 20th and Highway 196 and waited for the car to pass. Sergeant Miller, who was located in another patrol car north of Good on Highway 196, radioed Good that the suspect car had just passed his location. When the car passed Good’s location, he proceeded in pursuit. The car matched the description given by dispatch, both in color and the license plate number. Good did not personally observe any traffic violation.
Good stopped the car, whose sole occupant was John W. Partridge, Jr. When asked for his license, registration, and proof of insurance, Partridge said his driver’s license was suspended. Deputy Good confirmed the suspension through dispatch and learned Partridge also had a warrant from Butler County. Deputy Good placed Partridge under arrest for the warrant and transported him to jail. Deputy Good also issued Partridge a notice to appear for driving while suspended.
Partridge proceeded to a bench trial on the amended charge of driving while suspended, a class B misdemeanor, and was convicted. He now appeals.
Partridge argues the trial court erred in denying his motion to suppress because Good lacked reasonable suspicion to justify the stop of his vehicle.
The sole issue on appeal is whether Good was legally justified in stopping Partridge’s car. Because the controlling facts are undisputed, the question of whether to suppress is a question of law subject to unlimited review. See State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).
In State v. Slater, 267 Kan. 694, 696, 986 P.2d 1038 (1999), the Supreme Court framed the issue on appeal to be:
“The question raised by this appeal is whether the anonymous tip of a ‘possible drunk driver’ at a specific location, together with a specific description of the vehicle, license tag number, and address of the registered owner is alone sufficient to provide an articulable and reasonable suspicion that a crime is being committed.”
The court held, under the totality of the circumstances involved in the case, the information given by the anonymous caller, when combined with the officer’s corroboration of the description and license plate number of the vehicle before the invesügatoiy stop, was sufficiently reliable to provide the officer with reasonable suspicion of criminal activity. 267 Kan. at 706.
In the present case, Deputy Good testified he stopped Partridge’s car for safety reasons. When denying Partridge’s motion, the trial court recognized the risk to public safety that a reckless driver posed. Factually, this case is remarkably similar to Slater, except in this appeal the State’s evidence is stronger because the caller is not anonymous and she gave the dispatcher an explanation supporting the reliability of the information (she was following Partridge on the highway and personally saw his erratic driving).
In State v. Tucker, 19 Kan. App. 2d 920, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994), the police dispatcher received an anonymous tip that a vehicle was being driven erratically by a possibly intoxicated driver and running other vehicles off the roadway. The tip was verified as to the description of the vehicle, description of the driver, and the highway on which the vehicle was traveling. We held there was a sufficient basis to stop the vehicle for the safety of the driver and the motoring public (Green, J. dissenting). 19 Kan. App. 2d 920, Syl. ¶ 7.
In both Slater and Tucker, the initial information was from an anonymous informant. Conversely, in this appeal, we have a citizen-informant who steps forward with firsthand information that a serious traffic violation is occurring in her presence and as she is speaking to the dispatcher. Ordinarily, these circumstances weigh in favor of finding the information to be reliable and truthful. In Kaysville City v. Mulcahy, 943 P.2d 231, 235 (Utah App. 1997), the Utah Court of Appeals explained:
“In contrast [to an anonymous caller], an identified ‘citizen-informant’ is high on the reliability scale. [Citations omitted.] The ordinary citizen-informant needs no ‘independent proof of reliability or veracity.’ [Citations omitted.] We simply assume veracity when a citizen-informant provides information as a victim or wit ness of crime. [Citations omitted.] ‘This is because citizen informers, unlike police informers, volunteer information out of concern for the community and not for personal benefit.’ [Citations omitted.]”
Partridge looks to Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d 254, 120 S. Ct. 1375 (2000), for support of his position. In J.L., an anonymous caller told the police a young black male wearing a plaid shirt and standing at a certain bus stop was carrying a gun. In response to the tip, police officers arrived at the bus stop, where they saw three black males “ just hanging out [there].’ ” 529 U.S. at 268. One of the males (J.L.) was wearing a plaid shirt. He was frisked and a gun seized from a pocket.
The State charged J.L. with carrying a concealed firearm without a license and possessing a firearm while under 18 years of age. J.L. moved to suppress the gun as the fruit of an unlawful search. The trial court granted the motion but was reversed by the intermediate appellate court. The Florida Supreme Court then held that the search was, indeed, invalid under the Fourth Amendment to the United States Constitution because the anonymous tip was not accompanied by specific indicia of reliability and, as such, could not form the basis for reasonable suspicion.
The United States Supreme Court affirmed the decision of the Florida Supreme Court. 529 U.S. at 274. In concluding the officers did not have reasonable suspicion, Justice Ginsburg explained:
“In the instant case, the officers’ suspicion that J. L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, 146-47[, 32 L. Ed. 2d 612, 92 S. Ct. 1921] (1972), ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,’ Alabama v. White, 496 U.S. [325], 329[, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990)]. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ [496 U.S.] at 327. The question we here confront is whether the tip pointing to J. L. had those indicia of reliability.” 529 U.S. at 270.
The Court recognized the limited reliability of an anonymous informant’s description of a subject’s readily observable location and appearance, in that it helped officers correctly identify the suspect. The Court explained, however, that such a tip did not demonstrate the informant’s knowledge of criminal activity. “The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” 529 U.S. at 272.
In the present appeal, Partridge argues the tip leading to his stop was the kind rejected in J.L., requiring reversal of die trial court’s decision. We do not agree. The holding in J.L. has no application under the facts presented. Here, there was a citizen-informant who identified herself and gave firsthand contemporaneous information of Partridge’s erratic driving upon a public highway. Further, we have previously stated that in the case of stopping “a mobile automobile, the requirements to justify a stop or search or arrest are lessened.” Tucker, 19 Kan. App. 2d at 923.
Under the facts of this appeal, where a motorist calls a law enforcement agency, identifies herself, and gives firsthand information she is following a car being driven at that very moment on a public highway in such a manner as to endanger the lives of the caller and other motorists, there is an adequate. showing of the informant’s basis of knowledge and veracity to support reasonable suspicion justifying the stop for further investigation. We hold the trial court did not err in overruling Partridge’s motion to suppress.
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Knudson, J.:
The Kansas Department of Revenue’s Division of Property Valuation (PVD) and the Board of County Commissioners of Sedgwick County, Kansas (County), appeal from the grant of summary judgment by the Kansas Board of Tax Appeals (BOTA) to Allen, Gibbs & Houlik, L.C. (taxpayer). BOTA concluded the taxpayer is entitled to a property tax exemption for 43 computer keyboards purchased to replace defective keyboards. We affirm BOTA’s decision.
PVD and the County contend a replacement computer keyboard is a component part of a computer and not an “item” as that word is used in K.S.A. 2000 Supp. 79-201w. In a unanimous decision, BOTA disagreed and found a replacement computer keyboard is an “item” and the keyboards are exempt from taxation.
Two issues are raised on appeal: (1) whether summary judgment was proper, and (2) whether BOTA correctly interpreted K.S.A. 2000 Supp. 79-201w.
K.S.A. 2000 Supp. 79-201w states, in material part:
“The following described property, to the extent specified by this section, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“(a) Any item of machinery, equipment, materials and supplies which, except for the operation of the provisions of this section, would be required to be Usted for the purpose of taxation pursuant to K.S.A. 79-306, and amendments thereto, and which is used or to be used in the conduct of the owner’s business, or in the conduct of activities by an entity not subject to Kansas income taxation pursuant to K.S.A. 79-32,113, and amendments thereto, whose original retail cost when new is $250 or less.”
PVD’s contention that the keyboards are not exempt is based upon PVD Directive No. 95-030, which was issued for the benefit of county appraisers. See K.S.A. 79-505. The directive provides, in material part:
“The purpose of this directive is to define the term ‘item’ for purposes of the new exemption. The Director takes the position that an interpretation of an ‘item’ should begin with the Tangible Personal Property Ad Valorem Tax Return (Form PV-PP-2E, hereinafter referred to as a ‘rendition’), which was an express concern of the legislature.
“The Director takes the position that as a general rule, a Une-item on an acceptably filed rendition is the equivalent of an item for purposes of the new exemption. However, the Director recognizes that taxpayers vary in reporting practices due to differing purchasing procedures and styles.
“Consequently, some adjustments to this general rule must be made in order to place taxpayers on more equal footing.”
The directive then provides rules and illustrations as to what is or is not an “item,” including:
“Second, if a single line-item represents a good that must be used in conjunction with other goods in order to serve its purpose or function, the line-item is not an item. Rather, the line-item represents only part of an item. For example, if a taxpayer lists a computer keyboard’ as a line-item on the rendition, the line-item does not constitute an entire item. The computer keyboard cannot serve its purpose or function without the remainder of the computer system; therefore, the keyboard is part of a computer system. The computer system is the item. The keyboard and its other components, even though they may be separately identified and listed on the rendition, are merely parts of an item.”
The taxpayer takes issue with PVD’s definition of “item.” The taxpayer contends K.S.A. 2000 Supp. 79-20lw is unambiguous and that the plain meaning of “item” includes distinct property that becomes part of a whole.
In granting the taxpayer s motion for summary judgment, BOTA stated:
“6. The applicant purchased the computer keyboards to replace defective keyboards in the applicant’s possession. The applicant purchased these keyboards separately from any computer system. The applicant listed these keyboards on the personal property rendition as exempt items. The retail cost when new of the keyboards is $250 or less. The County, relying upon PVD Directive No. 95-030, informed the applicant that the keyboards were not exempt. Neither the County, nor PVD dispute these facts.
“7. There do not appear to be any facts in dispute as to the cost of the personal property. The only issue before the Board is whether or not the computer keyboards are ‘items.’ PVD Directive No. 95-030 attempts to define the term ‘item.’ The directive indicates that a piece of personal property is not an ‘item’ if it can not perform its function independently without use of another good. The directive provides the example of how a computer keyboard is not an item because the keyboard can not perform its function without the remainder of the computer system. The Board finds the parties have presented a question of law, so the applicant’s motion for summary judgment is ripe.
“8. The applicant asserts that the computer keyboards are items. The applicant notes that the term ‘item’ is not defined in K.S.A. 79-201w, and amendments thereto. However, the applicant did cite to a definition of the term ‘item’ from Webster’s New International Dictionary, Unabridged. All of the definitions provided by the applicant appear to indicate that an item is merely a part of the aggregate. The applicant asserts that statute is unambiguous. Therefore, the applicant asserts, the Board need not look at the legislative history, but rather the plain meaning of the words. The applicant requests that the Board look at the plain meaning of the term ‘item.’
“9. The applicant asserts that PVD’s directive is too broad and would have a disparate impact on the merchant’s and manufacturer’s inventory exemption granted pursuant to K.S.A. 79-201m, and amendments thereto. The applicant notes that K.S.A. 79-201m, and amendments thereto, grants an exemption for ‘items’ of personal property held as inventory. The applicant asserts that if the Board applies PVD’s definition of the term ‘item,’ then merchants and manufacturers who sell computer keyboards must report those keyboards on their rendition.
“10. The applicant finally asserts that the Board has already rejected PVD Directive No. 95-030. See In the Matter of the Application of TCI of Overland Park, Inc., Docket No. 1997-4756-TX; In the Matter of the Application of Chronicle Broadcasting of Wichita, Docket No. 1999-4377-TX. The applicant asserts that the facts in the TCI application are analogous to the current application. The applicant notes that TCI was requesting an exemption for converter boxes used to decode signals for cable television. The applicant notes that in TCI the Board rejected the County’s argument that tangible personal property was not an ’item’ if it was a component of a system.
“11. PVD asserts that when interpreting a statute, the parties must try to determine what the Legislature was thinking when the statute was drafted. PVD asserts that there were two reasons the Legislature passed K.S.A. 79-201w, and amendments thereto. First, the statute was to be taxpayer friendly. The statute would not require taxpayers to render such items as paper clips, tape dispensers, etc. The second reason was that the Legislature believed the statute would be revenue neutral. The belief was that if taxpayers were not required to render paper clips and tape dispensers, the counties would have to perform few audits.
“12. PVD asserts the legislative history of the statute indicates an amendment was proposed that would define ‘item’ as the applicant has proposed to define the term. PVD notes the amendment was not passed. PVD asserts there is an inference that if the amendment was not passed, then the Legislature did . not intend to [define] ‘item’ in the manner suggested by the applicant. PVD asserts that if the Legislature does not define the term, then the parties who enforce the statute are expected to define the term.
“13. PVD asserts that if the Board adopts the applicant’s definition of‘item,’ then taxpayers will break down the item as far as possible to report the ‘item.’ PVD notes taxpayers will not render a computer system, but rather will render a monitor, a keyboard, etc. PVD asserts that such an interpretation would not be revenue neutral, as the Legislature had intended the statute to be. PVD asserts that the Legislature feared taxpayers would break down . ' ‘items’ in terms of component parts to the point of nuts and bolts. The end result would be taxpayers would have no personal property to render for taxation purposes.
“16. The Board notes that:
The law in Kansas is well settled that interpretation of statutes is a question of law and this court’s review of questions of law is unlimited. The overriding principle of statutory construction is that the intent of the legislature governs if that intent can be ascertained from the plain language of the statute. When the statute is plain and unambiguous, the court must give effect to the intent of the legislature. If, however, the interpretation of one section of an act based on its plain meaning would contravene the purpose of the legislature, the entire act should be construed according to its spirit and reason. When an act is clear on its face, there is no need to consult legislature history or extrinsic materials. Gehring v. State, 20 K.A.2d 246, 248, 886 P.2d 370 (1994) (citations omitted) review denied (February 8, 1995).
“17. The Board finds that it is unnecessary to examine the Legislative history of K.S.A. 79-201w, and amendments thereto. The Board notes that it agrees with PVD’s assertion that if the Legislature does not define a term, then the agency responsible for enforcing the statute would define the term. However, the Board, as the highest administrative tribunal in the State of Kansas, finds that it is the agency responsible for ultimately defining the term ‘item’ because the Board has jurisdiction over all tax exemption requests. See 79-213, and amendments thereto.,
“18. The board also agrees with PVD that when defining a term in a statute, deference must be given to what the Legislature intended. As PVD noted, the statute was intended to be taxpayer friendly and revenue neutral. The Board disagrees, however, with PVD’s assertion that defining the term ‘item’ in the manner proposed by the applicant is inconsistent with the Legislature’s intent. Furthermore, the Board is not persuaded by PVD’s assertion that taxpayers will begin to break down personal property down to nuts and bolts. First, the taxpayer would have no evidence to support such claims of cost. For example, a taxpayer would have a difficult time demonstrating the cost of each piece of his or her $1,000 desk. Second, such a cost breakdown, if it could be demonstrated, would appear to be cumbersome and expensive.
“19. If the purpose of K.S.A. 79-201w, and amendments thereto, is to be taxpayer friendly and reduce the need for audits, the applicant’s definition of ‘item’ appears to meet that goal. It would be difficult for taxpayers to report the component parts on the rendition or be able to determine if the county had correctly determined the value. Typically, an item of personal property is depreciated for a set number of years. After the item has been depreciated for the term of years, the item is left on the assessment rolls at 20 percent of its original value. However, if the Board were to adopt PVD’s analysis, a taxpayer could be subject to double taxation. For example, a taxpayer with a complete computer system, including the CPU, monitor, and keyboard, would not be forced to report the newly purchased replacement keyboard. The retail cost when new of the keyboard would be added to the remaining value of the computer system. It would appear, though, that the cost of the original keyboard should be subtracted from the value of the computer system. If the computer system was purchased as a package deal, i.e. there was no price listed for each component part, then the taxpayer would not be able to provide that information to the County for the appropriate subtraction. In essence, the taxpayer would be taxed for two keyboards. If that were to occur, taxpayers may start underreporting the costs of certain component parts to compensate the possible double taxation.
“20. The Board finds no support for PVD Directive 95-030 in this exemption request. The term ‘item’ is not an ambiguous term that requires an extensive research into the legislative history. Furthermore, the legislative history appears to support the applicant’s request. The applicant’s interpretation of K.S.A. 79-201w, and amendments thereto, is very taxpayer friendly and would remain revenue neutral. The Board is not persuaded that taxpayers would begin to break down tangible personal property into screws, nuts, and bolts. Such action could not be documented for reporting, nor would be cost-effective. Finally, the request by the applicant in this matter is not unreasonable. In this instance, the applicant can demonstrate that the retail cost when new of the keyboard is $250 or less. The keyboard is a separately sold item with a defined cost.”
Motions for reconsideration were considered and denied by the Board. Both PVD and the County have made a timely appeal. We have jurisdiction under K.S.A. 2000 Supp. K.S.A. 74-2426(c)(3).
Ripeness For Summary [udgment
The PVD and the County claim there are facts in dispute, they were denied a hearing that is required by statute, and the PVD claims it had not had an opportunity to commence discoveiy; therefore, summary judgment was not proper.
“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).
“Ordinarily, summary judgment should not be granted when discovery is incomplete.” Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 498, 827 P.2d 758 (1992). However, if the facts pertinent to the material issues are not controverted, summary judgment may be appropriate even when discovery is unfinished. See Parker v. Farmway Credit Union, 11 Kan. App. 2d 223, 227, 718 P.2d 643, rev. denied 239 Kan. 694 (1986). A case is ripe for adjudication when the disagreement has taken a final shape and the court can see the legal issues it is deciding, including the impact of the decision upon the adversaries. Department of Revenue v. Dow Chemical Co., 231 Kan. 37, 41, 642 P.2d 104 (1982).
The PVD and the County allege there is a material question of fact regarding the original cost of the keyboards. The County raised this concern in its response to Taxpayer’s motion for summary judgment, but by the time oral arguments were held, the County agreed that the keyboards were subject to exemption, depending upon the legal interpretation of the word “item.” The County stated:
“As far as whether this is ripe for summary judgment, Jerry did provide information that cleared up some of my issues. And my other concerns were that I could not match up—we could not match up some invoice numbers with—with the descriptions that he—he gave in his application. But I—I think if that is the only remaining issue then as long as we can match up the invoice to the item in the application, I’m not going to have a problem with that. We just—we will just have to apply and those—review those invoices and if we could not match—if after getting together we could not match them, we’ll get an explanation or get clarification then I suppose we would have to come back to the Board on that. But I think most of my concern has been addressed regarding the additional discovery.”
Taxpayer added: “I’ve tried to resolve the factual differences. Although the factual issues do not preclude summary judgment on the legal issues that we presented. We can hammer out factual issues later. The legal issue is—is the one that’s of paramount importance at this time.”
There is no indication in the record that any further information was sought. “[I]n opposing a motion for summary judgment, the adverse party must come forward with some evidence to establish a material dispute of fact.” Schultz v. Schwartz, 28 Kan. App. 2d 84, 87, 11 P.3d 530, rev. denied 270 Kan. 900 (2000).
In its reply to the motion for summary judgment, the PVD alleged controverted facts existed because it had not commenced pretrial discovery. It did not bring forth any conflicting evidence. BOTA set a telephone conference to discuss discoveiy, witnesses, and other matters. There is no record of that conference, but after the hearing, BOTA issued a memorandum clearly stating the parties had agreed “that only a legal issue remains for the applications.” At oral arguments, counsel for PVD stated: “I think the issue that’s before the Board clearly is a question of law.” Based on the record, there was no actual dispute between the parties that the keyboards were purchased for less than $250, and this finding was reflected by BOTA’s order. The PVD did not make any specific discoveiy requests on the record and agreed only a legal argument existed for the hearing. It must be precluded from claiming it was denied discoveiy. The County also abandoned its claim and is also precluded from raising the issue. See Catholic Housing Services, Inc. v. State Dept. of SRS, 256 Kan. 470, 476, 886 P.2d 835 (1994).
The PVD also argues it was denied a hearing under K.S.A. 2000 Supp. 79-213(g). This statute provides:
“After examination of the request for exemption, and the county appraiser’s recommendation related thereto, the board may fix a time and place for hearing, and shall notify the applicant and the county appraiser of the time and place so fixed. ... In any case where a party to such request for exemption requests a hearing thereon, the same shall be granted. Hearings shall be conducted in accordance with the provisions of the Kansas administrative procedure act. In all instances where the board sets a request for exemption for hearing, the county shall be represented by its county attorney or county counselor.” (Emphasis added.)
In the initial application, the county appraiser did not request a hearing on the exemption request. Taxpayer specifically stated it did not request a hearing on the matter. The PVD admits it did not request a hearing, yet it argues it did not waive a hearing. K.S.A. 2000 Supp. 79-213(g) clearly requires a party in an exemption proceeding to request a hearing. Neither PVD, Taxpayer, nor the County requested a hearing in any of their motions or responses contained in the record. Additionally, it is apparent to us that the parties were granted an appropriate hearing if summary judgment was a proper remedy. Because we believe that it was, PVD’s claim of being denied a hearing rings hollow.
Interpretation of K.S .A. 2000 Supp. 79-201w
The resolution of this appeal involves the interpretation of K.S. A. 2000 Supp. 79-201w. An interpretation of a statute is a question of law, and this court’s scope of review is unlimited. See In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1,930 P.2d 1366 (1997).
“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).
“ ‘The rule of strict construction means that ordinary 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) (quoting Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 [1984]). Constitutional and statutory provisions exempting property are to be strictly construed. Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 751, 973 P.2d 176 (1999).
BOTA is a specialized agency that is charged with the duty to decide taxation issues. Its decisions are ordinarily given great weight and deference when it is acting within the scope of its expertise. See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. at 749. If there is a rational basis for the Board’s interpretation of a statute within its field of expertise, it should ordinarily be upheld on review. McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 645, 983 P.2d 853 (1999). However, here we have disagreement between two administrative agencies as to the interpretation of K.S.A. 2000 Supp. 79-201w. Under these circumstances, we respect the position of each agency but recognize the final construction of a statute rests with the judiciaiy. In re Tax Appeal of Alsop Sand Co., Inc., 24 Kan. App. 2d 527, 530, 948 P.2d 667 (1997), aff'd 265 Kan. 510, 962 P.2d 435 (1998).
We have quoted at length from the Board’s final order that supports the taxpayer’s interpretation of “item.” Essentially, the Board found that notwithstanding the lack of a statutory definition, “item” has an ordinary meaning that is readily understood. We agree. An “item” is defined as “one of the distinct parts of a whole.” Webster’s Ninth New Collegiate Dictionary 643 (1984). Likewise, in Black’s Law Dictionary, “item” is defined as “[a] piece of a whole, not necessarily separated.” Black’s Law Dictionary 837 (7th ed. 1999). We adopt the Board’s conclusion that a review of nebulous législative history is not necessary to provide us with a common and readily understood definition of “item.” We .conclude the Board correctly interpreted K.S.A. 2000 Supp. 79-201w.
The PVD makes a rather tepid and confusing argument that the Board’s interpretation of the statute results in partial tax exemptions, which are unconstitutional. See State ex rel. Stephan v. Parrish, 257 Kan. 294, 311, 891 P.2d 445 (1995). It claims that under BOTA’s definition, some computers are partially exempt and others are fully taxable. This is not correct. BOTA’s interpretation allows an exemption for any piece of personal property that may or may not constitute a whole mechanism. In other words, if a computer system is purchased as one piece and the individual components are not selected individually and the system is one complete package and invoiced as one price, then, unless the total cost of the entire system is less than $250, the taxpayer is not entitled to an exemption. But, if the system is purchased as most systems are, by individually selecting a monitor, keyboard, mouse, etc. separately with itemized invoicing, then each item under $250 would be exempt. Further, in this particular case, the keyboards were replacement keyboards; they were purchased totally separate from the original system and were properly granted exempt status.
Finally, a review of legislative history is not persuasive evidence that the Board’s interpretation of the statute is erroneous. As we have already suggested, the legislative history, such as it is, can be read to support nearly any interpretation one wishes to advance. Nevertheless, in the interests of completeness, we will briefly consider the statute’s genesis.
K.S.A. 2000 Supp. 79-201w began as House Bill 2108. The bill was created as a result of reactions to a 1993 memorandum sent by the PVD to all the county appraisers suggesting they check personal property tax renditions to ensure proper tax collection. As a result of the memo, counties realized taxes had not been collected properly and some taxpayers were found to be delinquent, resulting in significant penalties and interest. The delinquencies were traced to nonreporting of small, insignificant items, such as paper clips, rubber bands, and the like. The stated purpose of the bill was to greatly simplify operations for small businesses across the state by establishing a “de minimis amount or threshold” amount that would be subject to exemption. The bill was intended to alleviate “some of the reporting burden imposed upon taxpayers who must file a rendition for ad valorem tax purposes.” Initially, the exemption threshold was set at $2,500. This number was lowered because of the negative economic impact such a large exemption would have on the tax base.
Bob Corldns, representing the Kansas Chamber of Commerce and Industry, explained the administrative burden on small business is “unrealistic, overwhelming, and even counterproductive from a tax collection perspective when [small business owners] are forced to track items of negligible value.” Corkins noted the bill did not define the term “item” and presented a proposed balloon amendment which included a definition. That definition reads:
“As used in this section, an ‘item’ of property shall, in the case of machinery and equipment, consist of any mechanism and those of its components which play a direct, integral, and essential part in the mechanism’s operation in a commercially useful or productive application. In the case of materials and supplies, an ‘item’ of property as used in this section may consist of any collection of like materials or supplies in any such quantity that is ordinarily made available for sale.”
This definition considers the mechanism and its parts to be an “item.” The PVD incorrectly argues this definition is identical to the one suggested by Taxpayer and adopted by BOTA. The use of the conjunction “and” requires both the mechanism and the component parts to be considered as a whole, not as individual items. The legislature chose not to adopt this definition after hearing testimony that included a discussion of purchasing a computer system through several invoices in order to qualify for the exemption. Therefore, it can be inferred that the legislature envisioned the definition of “item” to be a distinct part of a whole, which is the plain meaning of the word. See State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 284-85, 894 P.2d 777 (1995).
Moreover, in written testimony to the Senate Assessment and Taxation Committee, the Director of PVD, in noting the fiscal note of the legislation, said, in part:
“Taxpayers that currently report items with component parts as a single item will have the incentive to break the item down as far as possible in order to taire full advantage of the new exemption. For example, a computer may be broken down into a monitor, keyboard, etc. The impact of this occurrence cannot be quantified but is likely substantial.” (Emphasis omitted.)
We confess our excerpts of legislative history have been selective; however, we have only wished to make the point that legislative history can be invoked to support the Board’s interpretation as readily as the interpretation the PVD urges.
For the reasons stated, we are disinclined to overrule the Board’s interpretation of K.S.A. 2000 Supp. 79-201w.
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Per Curiam:
This is a post-judgment proceeding in a divorce action between Rex Kasper and Tamalyn J. Ludlow, formerly Kasper. Tamalyn appeals the district court’s decision that the emancipation of the parties’ son did not automatically terminate her current child support obligation and/or result in a termination of the offset of the current child support obligations under the divided custody arrangement. ■
The facts are not in dispute. The parties were married in 1977 and had two children: Ty, bom October 30, 1980, and McKenzi, bom May 28, 1983. The parties were divorced in August 1995. Following the divorce, the parties were granted joint divided custody of both children: Ty resided with Rex and McKenzi resided with Tamalyn. Rex was ordered to pay Tamalyn $95 per month child support commencing September 1, 1995.'
Rex filed a motion to modify child support in April 1996. The parties appeared at a hearing on April 16,1996. However, the order journalizing that hearing was not filed until April 4,1997, where it appears several changes were made before filing. The parties continued to have joint divided custody and Rex’s child support obligation was modified as follows: “April of 1996 -$55.00; May of 1996 -$55.00; June of 1996 -$99.00; July of 1996 -$99.00; August of 1996 -$99.00; September of-1996 -$99.00; October of 1996 '-$55.00; November of 1996 and beyond -$12.00.”
According to the record, Ty turned 16 years old on October 30, 1996, and the child support obligations of the parties were refigured. Rex’s child support obligation was set at $356 per month for McKenzi and Tamalyn’s child support obligation was set at $344 per month for Ty. Deducting Tamalyn’s lower child support obligation from Rex’s higher support obligation resulted in die $12 per month support payment for Rex commencing “November of 1996 and beyond.” The child support issues lay relatively quiet for the next several years. During that time period, Ty turned 18 years old on October 30, 1998, but was still attending high school.
On February 7,2000, Rex filed a motion for modification.of child support and determination of certain dental and vision expenses. On February 8, 2000, Tamalyn filed a motion to determine past child support owed by Rex and for an order that the divided custody offset ended on June 30, 1999, the date established by K.S.A. 2000 Supp. 60-1610(a)(l)(B) (.until June 30 of the.school year during which the child becomes 18 years of age). After a full hearing on the motions, the court entered an order rejecting Tamalyn’s argument as follows:
“Pursuant to the Court’s order dated April 16, 1996, filed April 4,1997, page 3, the Respondent [Rex] was ordered to pay current child support based on a split custody arrangement. The Respondent was ordered to pay $12.00 per month “November of 1996 and beyond”. The court finds that this language means that the current child support obligation of the Respondent continued to be $12.00 per month from November 1996 through February 2000 when the Respondent filed his motion to modify the child support obligation. The court finds that the emancipation of the parties’ son, Ty Kasper, on June 30,1999, did not automatically terminate the mother’s current child support obligation for her son and/or result in the offset of the current child support obligations under the split custody arrangement to terminate leaving only the father’s current child support obligation for the parties’ child] McKenzi.”
However, the district court granted judgment in Tamalyn’s favor in a reduced amount of $474.19 for past due child support and medical judgment. Tamalyn appeals.
Tamalyn argues the district court erred in finding her support obligation for Ty did not terminate on June 30, 1999, and should have held the only child support obligation remaining after that date was Rex’s $356 child support payment for McKenzi. Tamalyn argues Rex had a past-due support obligation of $3,237 as of February 8, 2000.
The issue Tamalyn presents requires interpretation of the child support guidelines and the divorce and maintenance provisions of the code of civil procedure. The interpretation of statutes is a question of law. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). An appellate court’s review of questions of law is unlimited. In re Marriage of Sedbrook, 16 Kan. App. 2d 668, 676, 827 P.2d 1222, rev. denied 251 Kan. 938 (1992).
The Kansas Child Support Guidelines (KCSG), as set forth by Supreme Court Administrative Order No. 128 (2000 Kan. Ct. R. Annot. 97), specifically address computation of a support payment in a divided custody situation. A child support worksheet is required for each household. Then, the lower net parental child support obligation is subtracted from the higher amount and the parent with the higher support obligation pays the difference to the parent with the lower obligation. 2000 Kan. Ct. R. Annot. 101,103. There are no arguments presented in this case that the district court incorrectly computed the two child support obligations in this divided custody arrangement.
The KCSG does not address termination of a child support obligation, but only addresses a court’s continuing jurisdiction to modify a child support order based on a material change in circumstances. 2000 Kan. Ct. R. Annot. 113. Termination of a child support obligation is found in K.S.A. 2000 Supp. 60-1610(a)(l), which provides in relevant part:
“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: (A) The parent or parents agree, by written agreement approved by the court, to pay support beyond the time the child reaches 18 years of age; (B) the child reaches 18 years of age before completing the child’s high school education in which case the support shall not terminate automatically, unless otherwise ordered by the court, until June 30 of the school year during which the child became 18 years of age if the child is still attending high school; or (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 a bona fide high school student and the parents jointly participated or knowingly acquiesced in the decision which delayed the child's completion of high school.”
The law is clear in statutoiy and caselaw authority that child support for Kansas children stops on the date a child reaches the age of 18 or, if the child turns 18 before completing high school, on June 30 after the child graduates from high school. This support obligation automatically terminates and does not require a court order to relieve the obligation. The court in Brady v. Brady, 225 Kan. 485, Syl. ¶ 4, 592 P.2d 865 (1979), stated:
“Under K.S.A. 1978 Supp. 60-1610(a) any order requiring either parent or both parents to pay for the support of any child until the age of majority shall terminate when such child attains the age of eighteen (18) years, unless by prior written agreement approved by the court such parents or parents specifically agreed to pay such support beyond the time such child attains the age of eighteen (18).”
In discussing whether marriage of a minor child was a circumstance allowing for unilateral termination of child support, the court in In re Marriage of Schoby, 269 Kan. 114, 116, 4 P.3d 604 (2000), recently stated: “Kansas has no statute which specifically terminates the duty to pay child support upon the marriage of a minor. The only automatic terminating events in Kansas are the child reaching the age of majority, the death of the child, or the death of the payor parent.” The automatic termination rule also applies to permanent changes of residence by a child. In Brady, the court held that when a child attains the age of majority, or when a child goes to live with the other parent, or when a child dies, the support obligation automatically terminates. 225 Kan. at 491. Brady was clarified in In re Marriage of Peak, 244 Kan. 662, 664-65, 772 P.2d 775 (1989); Brady applies only to permanent changes of the child’s residence.
We understand Rex’s concern that allowing automatic termination of child support in some situations might unnecessarily complicate a divided custody situation where one of the parents has custody of two or more children and one of those children is eman cipated at age 18 or, if he or she turns 18 while still in high school, on June 30 after he or she graduates. In that situation, the amount of support for the child or children remaining in the house will change based on the required use of different child support schedules where there is more than one child in the home. However, we are not faced with such a situation today. The parties’ knew their respective child support obligations during the offset period. The April 4, 1997, order required Rex to pay $356 per month to Tamalyn for the support of McKenzi and required Tamalyn to pay $344 per month to Rex for the support of Ty. See In re Marriage of Cranston, 23 Kan. App. 2d 350, 929 P.2d 820 (1997) (The KCSG requires a district court to compute child support using two child support worksheets in a divided custody situation.) The only fact that changed after Ty’s emancipation was that Tamalyn’s obligation to support Ty terminated and there was no amount of child support to offset. Rex’s child support obligation of McKenzi did not change.
Neither the legislature nor the courts have made a specific exception to the automatic termination rule in K.S.A. 2000 Supp. 60-1610(a)(1) where the parties are involved in a divided custody arrangement. In fact, the legislature has indicated the rule applies in all custody situations. K.S.A. 2000 Supp. 60-1610(a)(l) provides the rule is appropriate, “[rjegardless of the type of custodial arrangement.” We will apply the rule in the case at bar and find that the child support obligation for Ty terminated on June 30, 1999.
Additionally, we find the district court erred in finding the parties had a written agreement extending any support obligation beyond the time Ty turned 18 or June 30 after his high school graduation year. The language in the April 4, 1997, order indicating Rex’s $12 support obligation commenced “November 1996 and beyond” is not a written agreement to extend the obligation past Ty’s emancipation until one of the parties files a motion to modify. This vague language cannot be used to override the law of automatic termination of child support payments when a child reaches the age of majority or other conditions set forth in K.S.A. 2000 Supp. 60-1610(a)(l).
The language in the present case is similar to that found in Brady. There, the district court’s order included language that child support would “continue thereafter until further order of the court.” The Brady court stated a divorce court has no power to continue a provision for support of a child after the child attains the age of majority and the language “until further order of the court” did not mean that payments would accrue after the child becomes of age until the court makes a further order. “The order terminates when the child attains majority without further order. [Citations omitted].” 225 Kan. at 492.
We reverse and remand to the district court for an order determining Rex’s past-due child support obligation based on Ty’s emancipation on June 30, 1999, the ekmination of Tamalyn’s support obligation for Ty on that date, and Rex’s continued $356 support obligation for McKenzi beginning July 1, 1999.
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Rogg, J.:
This case concerns the computation of child care expenses under the Kansas Child Support Guidelines. In particular, we consider what are “special needs” and “normal expenses” under the guidelines. The question we answer is: “How are extracurric ular activity expenses to be considered under the guidelines?” Jack A. Ronen appeals from an adverse child support ruling in favor of Gwen S. Ronen, the primary custodial parent of their children. We reverse.
Jack and Gwen had three children during their marriage, ages 4, 6, and 9 at the time their divorce action was filed in Januaiy 1999. In November 1999, this matter came on for hearing and the court'ruled, inter alia: (1) Jack’s child support obligation was $1,151 per month in accordance with the child support worksheet submitted by Gwen, and (2) the children’s extracurricular activities, including baseball, basketball, soccer, and Boy Scouts, equated to “special needs” of the children, and the parties were ordered to pay, on a pro rata basis, such sums as necessary for the children to remain in these activities.
According to the court’s statements at the hearing, pro rata basis meant the parties were to pay proportionate to their income, making Jack liable for 77% and Gwen liable for 23%. This amount was in accordance with the child support worksheet. However, the final adjusted child support obligation on the worksheet reflected Jack was hable for 66% of the children’s support while Gwen was liable for the remaining 34%. The child support worksheet, as approved by the court, also had no amount listed under the special needs category.
In a subsequent journal entry, the court ordered that the parties be granted joint custody of the children. Primary residential placement of the children was with Gwen, with Jack having liberal and reasonable visitation. The court revised the previous amount of child support paid by Jack to $1,135 per month.
Extracurricular activities are not guideline special needs
Special needs are described under the guidelines as “items which exceed the usual and ordinary expenses incurred, such as ongoing treatment for health problems, orthodontist care, special education, or therapy costs which are not considered elsewhere in the support order or in computations on the worksheet.” Administrative Order No. 128, V E.4. (2000 Kan. Ct. R. Annot. 110-11). On the child support worksheet, special needs are a line item under the general heading of “child support adjustments.” Administrative Order No. 128, Appendix I,E. (2000 Kan. Ct. R. Annot. 120-21).
A district court’s order determining the amount of child support will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Scott, 263 Kan. 638, 645, 952 P.2d 1318 (1998). This issue, however, involves interpretation of the term “special needs” as used in the guidelines. Interpretation of the guidelines is a question of law over which this court exercises unlimited review. In re Marriage of Jones, 23 Kan. App. 2d 858, 860, 936 P.2d 302 (1997).
There appears to be no Kansas case law directly on point with this issue. However, the Kansas Supreme Court has provided the following guidance when interpreting the guidelines. Although the guidelines are not statutes and were not developed by the legislature, the following rules of statutory construction are equally as applicable in interpreting the guidelines. See In re Marriage of Hoffman, 28 Kan. App. 2d 156, 12 P.3d 905 (2000), rev. denied 270 Kan. 898 (2001).
“The maxim expressio unius est exclusio altenus, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. [Citation omitted.] Under this rule, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. [Citation omitted.]
“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).
Special needs are items above and beyond the ordinary expenses of raising children and are only those expenses not considered elsewhere in the support order or on the computation worksheet. Items that qualify as, special needs include ongoing treatment for health problems, orthodontist care, special education, and therapy costs. Administrative Order No. 128, V.E.4. Unlike normal extracurricular sports and activities, special needs are items that are not prevalent in the general population. Interpreting the category of special needs to include ordinary extracurricular activities would read intent into the guidelines that is neither readily apparent nor particularly sensible. If ordinary extracurricular activities fell under the category of special needs, it is hard to imagine an item other than a necessity such as food, clothing, or shelter, that could not be included in this category.
The district court found “activities such as baseball, basketball, soccer, and Boy Scouts are activities that are frequently engaged in by normal, healthy children all across the state of Kansas.” This finding was a concession these extracurricular activities were usual and ordinary. The district court’s final ruling that these activities were special needs is in contradiction to this statement.
Realizing the district court has wide discretion to determine the amount of child support, it must do so within the guidelines. Activities such as soccer, basketball, baseball, and Boy Scouts are not the type of activities contemplated under the category of “special needs.” Special needs is not the proper category to account for monies spent on normal extracurricular activities of children.
Having determined the district court erred in finding the children’s extracurricular activities were special needs, we need not address Jack’s argument the district court did not make the appropriate findings, did not order a specific amount, and erred in making the adjustment off the worksheet. See Administrative Order No. 128, Section I of the guidelines as it pertains to Section E of the worksheet relating to listing all relevant adjustments to the child support. If the court makes adjustments here, it must make written findings included in the journal entry for its reasons for any deviation from line D.9. Pursuant to 45 C.F.R. 302.56 (2000), the findings that rebut the guidelines shall state the amount of support that would have been required; how the order varies from the guidelines, including the value of other support awarded in lieu of support presumed by the guidelines; and the justification of how the findings serve the best interests of the child. Use of Section E shall constitute sufficient written findings to comply with this requirement. Administrative Order No. 128, I. (2000 Kan. Ct. R. Annot. 97). Here, the court did not use Section E to make the adjustments for extracurricular activities and did not order a specific amount.
Net parental support obligation
Section II.A. of the guidelines states that the purpose of child support is to provide for the needs of the child. Needs are not limited to direct needs for food, clothing, school, and entertainment. Child support is also to be used to provide for housing, utilities, transportation, and other indirect expenses related to the day-to-day care and well-being of the children. Administrative Order No. 128, II.A. (2000 Kan. Ct. R. Annot. 97-98). Section II.C. of the guidelines details that the child support schedules are based upon national data regarding average family expenditures for children, which vary depending on the parentis combined income, the number of children in the family, and the ages of the children. The schedules assume a reduction in average expenditures per child, particularly at lower income levels because of the financial impact on the family of maintaining two households after the dissolution of the family unit. Administrative Order No. 128, II.C. (2000 Kan. Ct. R. Annot. 98).
The child support schedules used to determine the net parental support obligation were based upon national data regarding average family expenditures for children. Administrative Order No. 128, II.C. To state the obvious, most children with means, in this' day and age, participate in some form of extracurricular activity. As reflected in the district court’s findings, baseball, basketball, soccer, and Boy Scouts are some of the activities that are frequently engaged in by children. By definition, the cost of these activities would be included in the data regarding average family expenditures for children, much like food, school supplies, transportation, and clothing. In turn, the amounts in the child support schedules would also reflect money spent on these activities.
Money spent on extracurricular activities such as baseball, basketball, soccer, and Boy Scouts are normal expenditures already accounted for in the child support schedules. We recommend that the parties seek to agree between themselves on whether the expense of extracurricular activities will be shared in some way.
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Wahl, J.:
IBP, Inc., appeals the decision of the Workers Compensation Board (Board) finding an expert’s opinion admissible and awarding Martha Castro a sum for permanent partial general disability.
The appellant argues that the Board improperly interpreted K.S.A. 1999 Supp. 44-510(c)(2). Interpretation of a statute is a question of law which this court can review de novo. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. Auten v. Kansas Corp. Comm’n, 27 Kan. App. 2d 252, 254, 3 P.3d 86, rev. denied 269 Kan. 931 (2000). When the agency is one of special competence and experience, its interpretation of a statute may be entitled to controlling significance. If there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. In re Application of Zivanovic, 261 Kan. 191, 193, 929 P.2d 1377 (1996). Ultimately, however, the court must exercise de novo review.
The primary dispute is whether Castro violated K.S.A. 1999 Supp. 44-510(c)(2) when she obtained a follow-up, self-paid, functional impairment opinion from the same physician IBP previously paid $500 to examine and diagnose her condition. If Castro violated the statute, then any opinion rendered by Dr. Prostic would be inadmissible in the claim proceedings. The statute provides:
“(2) Without application or approval, an employee may consult a health care provider of the employee’s choice for the purpose of examination, diagnosis or treatment, but the employer shall only be liable for the fees and charges of such health care provider up to a total amount of $500. The amount allowed for such examination, diagnosis or treatment shall not be used to obtain a functional impairment rating. Any medical opinion in violation of this prohibition shall not be admissible in any claim proceedings under the workers compensation act.” (Emphasis added.) K.S.A. 1999 Supp. 44-510(c)(2).
Castro scheduled an appointment with Dr. Prostic for November 6, 1996. The doctor examined Castro and provided an opinion on relevant work restrictions and need for additional medical treatment. The engagement letter from Castro’s attorney to Dr. Prostic specifically instructed him not to provide a functional impairment rating.
The total cost of services provided was $535 of which $500 was paid by IBP pursuant to the statutory allowance. The bill itemized a $375 exam and two x-rays. Dr. Prostic issued a report of his findings and testified his sole purpose in meeting with Castro was for an “examination and evaluation and recommendations for treatment.”
On March 7, 1997, Castro’s attorney contacted Dr. Prostic and requested a functional impairment opinion. Without reexamining Castro, Dr. Prostic issued a separate written functional impairment opinion. The entire cost of $25 was paid by Castro’s attorney and not out of the $500 statutory medical allowance. At Dr. Prostic’s deposition, Castro did not request Dr. Prostic to express his opinion on functional1 impairment, and that opinion is not part of the record. Evidence of functional impairment was provided by Dr. Harris, who was appointed by the administrative law judge to provide such a rating.
IBP contends Castro violated the statute because the functional impairment rating obtained at a later date was based on services previously paid for by IBP and this was an abuse by Castro. IBP argues the last two sentences of that statute require that once a functional impairment rating is obtained from the examining physician, the statutory prohibition applies and any medical opinion from this physician is inadmissible.-
The Board concluded that Castro did obtain a functional impairment rating from Dr. Prostic, but the rating was not paid for by the $500 medical allowance provided by IBP. The functional impairment rating report was paid for by Castro almost 4 months later and almost 2 months after the administrative law judge appointed Dr. Harris to provide a rating. The Board also concluded that
“[a] claimant, if he or she so desires, may obtain a functional impairment rating from an examining physician and pay for such a rating separately. The claimant can then choose whether or not to enter the functional impairment rating into the record and this would not violate the provisions of K.S.A. 44-510(c)(2).”
The Board’s interpretation of the statute is rational. If the statute was meant to be applied as IBP suggests, it would require the statute to contain additional language that would preclude the “results” of the exam from being subsequently used to obtain an impairment rating. IBP conceded the statute was “technically” complied with, but Castro violated the spirit of the statute. However, it is a legislative, not a judicial, function to rewrite the statute.
We conclude that the more obvious and simple conclusion is that Dr. Prostic did not testify as to the functional impairment of Castro, Dr. Harris did. Dr. Harris was appointed by die administrative law judge and Dr. Prostic’s work-task loss opinion was not given in violation of K.S.A. 1999 Supp. 44-510(c)(2).
IBP contends the permanent partial disability benefit based on work disability should be remanded for further findings as to the effect of Castro’s refusal of vocational and educational assistance, including her failure to obtain her GED in determining the post-injury wage. The Board found Castro did not look for work in good faith and that she could work 40 hours per week instead of the 22-29 hours she was working. The Board used Castro’s then current wage rate of $5.60 per hour and a 40-hour work week to impute a 45% wage loss.
To argue Castro categorically or absolutely rejected IBP’s offer of vocational and educational assistance simply misconstrues the record. Castro refused assistance while she was still being treated for her injuries and before she was released at maximum medical improvement. She did indicate she would be agreeable to assistance when the treating physician determined she had reached maximum medical improvement. IBP’s vocational expert simply closed his file in August 1995, almost 1 year prior to Castro’s release from medical care, and IBP made no further offers of assistance.
The hourly wage rate, though equivalent to Castro’s actual wage rate at the time of her deposition, was also an imputed rate. If a claimant fails to make a good faith effort to find employment, a wage will be imputed to the claimant based on what the claimant should be able to earn. Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997). Whether the imputed wage rate of $5.60 per hour is appropriate is really an issue of whether there was substantial competent evidence to support the 45% wage-loss computation.
IBP argues that there was no substantial competent evidence to support the findings of 69% work-task loss or 45% wage loss. In reviewing the Board’s orders, the appellate court is required to view the evidence in the light most favorable to the party prevailing below and determine whether the Board’s findings are supported by substantial competent evidence. Woodward v. Beech Aircraft Corp., 24 Kan. App. 2d 510, 513, 949 P.2d 1149 (1997). Substantial evidence is that evidence “possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved.” Shields v. J.E. Dunn Constr. Co., 24 Kan. App. 2d 382, 385, 946 P.2d 94 (1997).
As to the work-task loss finding of 69%, IBP again argues that Dr. Prostic’s opinion was improperly admitted on this issue. We have already concluded that Dr. Prostic’s work-task loss opinion was admissible, so there is substantial competent evidence to support the Board’s finding of a 69% task loss. This determination was based on Dr. Prostic’s opinion which the Board concluded was more persuasive and credible than the 0% task loss opinion of Dr. Hearon.
Concerning the 45% wage loss, the essence of IBP’s argument is that there is no substantial competent evidence to support using the $5.60 hourly wage rate. The Board found that Castro did not look for work in good faith and that there is nothing to restrict her from working 40 hours per week. As for the wage rate, the Board used the rate derived by a vocational assessment expert which is uncontroverted in the record. The expert testified that Castro has “basically always done . . . entry level type work” and “get[ting] her GED was not going to significantly improve her ability to access the labor market.” The $5.60 wage rate is uncontroverted in the record and, thus, is conclusive. IBP’s complaints about Castro’s refusal of services and her failure to pursue her GED do not render the evidence improbable, unreasonable, or untrustworthy. See Overstreet v. Mid-West Conveyor Co., Inc., 26 Kan. App. 2d 586, 589, 994 P.2d 639 (1999).
Utilizing the $5.60 wage rate and a 40-hour work week, the Board imputed a post-injury wage of $224 which it compared to the stipulated $411 preinjury wage to arrive at a 45% wage loss. It then applied K.S.A. 1999 Supp. 44-510e and correctly averaged the 45% wage loss with the 69% work-task loss to arrive at a 57% work disability. Since both the wage loss and the work-task loss figures are supported by substantial competent evidence, the Board’s decision is affirmed.
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Johnson, J.:
The plaintiffs, Richard and Sandra Moore, appeal the district court’s dismissal, with prejudice, of their civil lawsuit against the alleged tortfeasor, Glen Luther. We affirm in part, reverse in part, and remand with instructions to dismiss the lawsuit without prejudice.
This case began rather routinely as an automobile collision case. On March 31,1997, Sandra Moore sustained personal injuries and the vehicle she co-owned with her husband, Richard, sustained physical damage when she swerved to avoid colliding with tire vehicle in which Glen Luther was effecting a U-tum on an interstate highway. Moore unsuccessfully sought recompense from Luther s insurer, State Farm Insurance Company. On March 26, 1999, 5 days prior to the statute of limitations deadline, the Moores filed their lawsuit against Luther. The petition initially named another defendant, but that fact has no bearing on this appeal.
The plaintiffs attempted to serve Luther, who was an Iowa resident, by certified mail, addressed to the residence he had provided at the time of the accident. The return receipt for the summons and petition indicated someone at that address signed for the documents on April 8, 1999, albeit the signature is illegible.
Unbeknown to the plaintiff, Glen Luther had died of unrelated causes on September 5, 1997. A week later, an Iowa court had appointed Luther’s widow, Virginia, as executor of his probate estate. The Moores were not given notice of the probate proceedings in Iowa. The estate closed January 30, 1998, and Virginia was discharged as executor. Thus, when plaintiffs’ petition was filed, Glen Luther had died and his Iowa probate estate had ceased to exist.
Luther’s insurer referred the petition to Bradley Russell, an Overland Park attorney. Despite knowing of Luther’s death, Russell entered his appearance and filed an answer on Glen Luther’s behalf in May .1999, specifically stating that he and his firm were “Attorneys for Defendant.” The answer denied that Luther lived at the address on the service of process and asserted a number of affirmative defenses, including lack of subject matter and personal jurisdiction, lack of capacity to be sued, and insufficient process. Plaintiffs neglected to investigate the basis for the affirmative defenses. Russell perpetuated the charade by serving discovery documents upon the plaintiffs, ostensibly propounded by the deceased defendant.
The plaintiffs first learned of their problem after Russell filed ■ suggestions of death on July 23, 1999. Three days later, Russell moved to dismiss the lawsuit, arguing that Luther was not á proper party and plaintiffs did not (and could not) obtain proper service of process.
Plaintiffs attempted to substitute Virginia Luther, as executor of Glen Luther’s estate, pursuant to K.S.A. 60-225. Defense counsel opposed the motion, arguing that Luther’s estate was closed. The trial court agreed and denied the substitution. Russell exacerbated the situation by informing the trial court that, pursuant to Kent v. Chase, Special Administrator, 1 Kan. App. 2d 251, 563 P.2d 1103 (1977), the only proper party would be a special administrator appointed by an Iowa probate court. The trial court, apparently unaware that the 1980 amendments to K.S.A. 59-805 (see L. 1980, ch. 166, § 5) effectively overruled the Kent case, withheld ruling on the dismissal motion to give plaintiffs an opportunity to obtain an Iowa special administrator.
After the case languished for several months, defense counsel renewed the motion to dismiss. The trial court dismissed the action with prejudice, finding the plaintiffs’ claims were barred by the 2-year statute of limitations.
Plaintiffs attempted to save the case with a motion to alter or amend judgment based on: (1) defense counsel’s misconduct in filing an answer for a nonexistent defendant; (2) newly discovered evidence; and (3) the argument that dismissal with prejudice was contrary to the law. At hearing, plaintiffs added the argument that the defense’s concealment of Glen Luther’s whereabouts tolled the statute of limitations pursuant to K.S.A. 60-517.
The trial court found 60-517 inapplicable because there was no evidence that defendant was out of state when the cause of action arose or that defendant absconded or concealed himself. It also found defense counsel had not engaged in misconduct. Thus, the trial court denied the motion to alter or amend.
Although the parties present the case as a statute of limitations issue, the immediate problem is more basic: The trial court lacked subject matter jurisdiction. “An objection based on lack of subject matter jurisdiction may be raised at any time, whether it be for the first time on appeal or even upon the appellate court’s own motion. [Citation omitted.]” Kincade v. Cargill, Inc., 27 Kan. App. 2d 798, 800, 11 P.3d 63, rev. denied 270 Kan. 898 (2000).
There is currently no party defendant. A decedent does not have the capacity to be sued. 59 Am. Jur. 2d, Parties § 42, p. 439; see Egnatic v. Wollard, 156 Kan. 843, 856, 137 P.2d 188 (1943). Therefore, Glen Luther is not a proper defendant. The plaintiffs have not effected the appointment of a special administrator to proffer as a substitute. Without adversarial parties, the trial court lacked subject matter jurisdiction over the case. “In a suit or proceeding in personam of an adversary character, the court can acquire no jurisdiction for the purpose of trial or judgment until a party defendant is brought before it who actually or legally exists and is legally capable of being sued.” 59 Am. Jur. 2d, Parties § 41, p. 438. A dismissal based upon the statute of hmitations “operates as an adjudication upon the merits.” K.S.A. 2000 Supp. 60-241(b)(l); see Taylor v. International Union of Electronic Workers, et al., 25 Kan. App. 2d 671, 677, 968 P.2d 685 (1998). With no defendant in the lawsuit, the trial court lacked jurisdiction to make a ruling on the merits of the case. Therefore, we reverse the district court’s ruling that plaintiffs’ claims were barred by the 2-year statute of hmitations and, correspondingly, that plaintiffs’ case should be dismissed with prejudice.
When the trial court dismissed the action, plaintiffs were attempting to reopen the Iowa probate proceedings to obtain a personal representative for Glen Luther in order to file another motion for substitution under K.S.A. 60~225(a)(l). Plaintiffs had argued to the district court that 60-225 grants them a reasonable time to make their motion for substitution and, under the circumstances, they were moving with appropriate dispatch to obtain an appropriate party to substitute. Apparently, plaintiffs were unaware that K.S.A. 59-805(b) provides a means to obtain appointment of a Kansas administrator for an insured nonresident tortfeasor. Nevertheless, the parties and the trial court apparently overlooked the question of whether substitution under K.S.A. 60-225 is appropriate when a named litigant dies before the filing of the cause of action.
K.S.A. 60-225(a)(l) states:
“If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in K.S.A. 60-205, and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within a reasonable time after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.”
The interpretation of a statute is a question of law, and an appellate court’s review is unlimited. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998).
Until now, Kansas appellate courts have only discussed this statute when one of the parties has passed away after proceedings have commenced. See In re Estate of Rains, 249 Kan. 178, 815 P.2d 61 (1991); Shepard v. Dick, 203 Kan. 164, 453 P.2d 134 (1969); Livingston v. Estate of Bias, 9 Kan. App. 2d 146, 673 P.2d 1197 (1984); Buettner v. Unruh, 7 Kan. App. 2d 359, 642 P. 2d 124 (1982); Livingston v. Bias, 7 Kan. App. 2d 287, 640 P.2d 362 (1982); Long v. Riggs, 5 Kan. App. 2d 416, 617 P.2d 1270 (1980); Gatewood v. Bosch, 2 Kan. App. 2d 474, 581 P.2d 1198 (1978). Whether a litigant can use this statute to save a cause of action filed against a decedent is a matter of first impression in Kansas.
Because our rules of civil procedure are patterned after the federal rules, Kansas appellate courts often turn to federal case law for persuasive guidance. See e.g., In re Marriage of Larson, 257 Kan. 456, 462-63, 894 P.2d 809 (1995) (citing support for interpretation of K.S.A. 60-260[b] in federal case law); King v. Pimentel, 20 Kan. App. 2d 579, 584, 890 P.2d 1217 (1995) (looking to federal case law for help in interpretation of K.S.A. 60-215). We note that Fed. R. Civ. Proc. 25 is not identical to its counterpart at K.S.A. 60-225. The federal rule says that the court “may” order substitution, while the state statute requires the court to substitute the proper parties on a motion. Further, the federal rule requires dismissal of the action upon failure to substitute within 90 days, while the state statute measures the time by reasonableness. See 1 Gard’s Kansas C. Civ. Proc. 3d Annot. § 60-225 (1997). However, the differences between the rules do not affect the persuasiveness of federal case law on this issue.
A federal court would not permit substitution in this case even if the plaintiffs had succeeded in appointing and serving a special administrator. Commentators have observed: “The rule presupposes that substitution is for someone who was a party to a pending action. Substitution is not possible if one who was named as a party in fact died before the commencement of the action.” 7C Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1951 (1986). The federal courts have uniformly followed this interpretation. See Mizukami v. Buras, 419 F.2d 1319 (5th Cir. 1969) (case dismissed when defendant died before lawsuit initiated); Banakus v. United Aircraft Corporation, 290 F. Supp. 259, 260 (S.D.N.Y. 1968) (lawsuit filed 35 minutes after defendant’s death “cannot be given life by substituting parties”); Moul v. Face, 261 F. Supp. 616 (D. Md. 1966) (wrongful death suit brought after plaintiff died void); Chorney v. Callahan, 135 F. Supp. 35, 36 (D. Mass. 1955) (substitution of administrator ineffectual when defendant died before suit was brought because purported action was a “nullity”). Other states having statutes or rules similar to the federal rule have held likewise. See Gregory v. DiCenzo, 713 A.2d 772 (R.I. 1998) (lawsuit brought on behalf of deceased plaintiff void); Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo. App. 1990) (no jurisdiction over case involving predeceased defendant).
The rationale is that because a decedent does not have the capacity to be sued, an action filed against a decedent is void at its inception and is incapable of being amended by a substitution of parties. See Banakus, 290 F. Supp. at 260.
The Colorado case of Jenkins, 800 P.2d 1358, is factually similar and instructive. There, Jenkins filed suit against Thomas for personal injuiy more than a year after Thomas had died and his estate had been closed. Jenkins served the former personal representative of Thomas’ estate without taking any steps to reopen the estate. Jenkins then moved to substitute Thomas’ estate pursuant to Colorado’s version of Fed. R. Civ. Proc. 25. The trial court dismissed Jenkins’ claim with prejudice because he had not substituted a party defendant within the appropriate period of time. The Colorado Court of Appeals disregarded the parties’ arguments on the merits of the case and determined that substitution was not applicable to the facts because the decedent had died before the action was instituted. The court then considered whether the district court had properly dismissed the action and stated:
“Because decedent, the alleged tortfeasor, was dead at the time the action was filed, and because the personal representative [of his estate] had been discharged, there was no legal entity named as a party defendant. Accordingly, since there was no controversy between legal entities, there was no subject matter to be litigated, and the court was without jurisdiction to proceed. [Citation omitted.] Thus, the trial court properly dismissed the action.” 800 P.2d at 1359.
However, the Colorado Court of Appeals reversed the trial court’s dismissal of the action with prejudice. It held that because of the absence of a proper party, there was no adjudication on the merits, and the action should have been dismissed without prejudice. 800 P.2d at 1359-60.
We find that if a named defendant is dead at the time of the filing of the cause of action, the trial court is without jurisdiction to proceed and the action must be dismissed without prejudice. Substitution of a special administrator or other personal representative under K.S.A. 60-225(a)(l) is inapplicable where the defendant dies prior to commencement of the action. The district court properly dismissed plaintiffs’ case and properly denied their motion to alter or amend. However, the matter is remanded with instructions to dismiss for lack of jurisdiction, without prejudice, pursuant to K.S.A. 2000 Supp. 60-241(b)(l).
The issue of the tolling of the statute of limitations was not properly before the district court and, thus, not properly before this court. However, we note with approval Syllabus 3 of Judge Beier’s opinion in Yoh v. Hoffman, 29 Kan. App. 2d 312, 27 P.3d 927 (2001):
“Knowingly filing an answer on behalf of a dead person as though he or she is still alive is fraud. It is analogous to concealing oneself under K.S.A. 60-517 and tolls the statute of limitations. It also would excuse noncompliance with the otherwise jurisdictional time limit of the Kansas nonclaim statute.”
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Elliott, J.;
This case revolves around the sale of a defective planter. Plaintiffs allege numerous violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., and of the Uniform Commercial Code, Article 2—Sales, K.S.A. 84-2-101 et seq. The trial court granted defendants summaiy judgment on all counts. Only plaintiffs Tim Beim and Interior Farms, L.L.C., appeal.
We affirm.
Our standard of review is as stated in Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999). When a summary judgment is based on undisputed facts, it becomes reviewable de novo on appeal. Ekan Properties v. Wilhm, 262 Kan. 495, 501, 939 P.2d 918 (1997).
The undisputed facts relevant to our review follow. Prior to 1994, Tim Beim farmed with his father, at which time Beim’s father’s farming company, JMP Enterprises, declared bankruptcy. Beim decided to start his own farming company and agreed to lease 2,000 acres from Limestone Farms, Inc., on a cash rent basis.
Beim wanted to plant com for the 1995 season; the seed needed to be in the ground no later than early May. In order to achieve this goal, Beim wanted to buy his father s machinery and get a farm loan for a new planter at the same time, but the father’s bankruptcy proceedings were still pending.
Although Beim had decided to set up his own farming company, this had not been achieved in time for that new company to purchase a planter. For these reasons, Beim approached his landlord, Limestone Farms, Inc., to purchase the planter. Beim planned on paying Limestone Farms when he was able to purchase his father’s equipment from the bankruptcy court. Limestone Farms agreed to this plan.
Beim approached Smith County Implement, Inc., d/b/a Phillips County Implement (PCI) to select a planter. After negotiations, Beim settled on a John Deere planter he thought to be no more than a year old, along with various attachments that were not manufactured by Deere. The purchase order listed Limestone Farms as the buyer and the date of purchase was May 3, 1995. The purchase agreement was signed by Limestone Farms’ attorney-in-fact, and the purchase price was paid by a check drawn on Limestone Farms’ account.
Beim’s farm company, Interior Farms, L.L.C., was not formed until July 1995. Interior Farms then paid Limestone Farms for the planter in a somewhat unusual manner. On July 27,1995, Interior Farms bought the father’s farm equipment from the bankruptcy court. Included in the money paid the bankruptcy court was the cost of the planter, which the bankruptcy clerk then paid to Limestone Farms.
Once Beim took possession of the planter purchased by Limestone Farms, it soon became apparent the planter did not operate properly—-for reasons not here pertinent. After attempting repair through PCI, Beim got the planter back sometime in May 1995 but could not begin planting com until early June due to rains. As a result, Beim was unable to plant a full crop and that which did get planted produced a little over 50% of the anticipated yield. Further, the inability of the planter to perform properly caused his milo crop to fail that year. The planter continued to operate deficiently for at least the next 2 years.
We shall deal with the various claims for relief in turn.
Plaintiffs’ claims PCI and Deere breached express warranties (KS.A. 84-2-313)
In the amended petition, Beim and Interior Farms claimed PCI and Deere & Company (Deere) breached oral and written express warranties contained in the purchase agreement.
The trial court dismissed Beim’s express warranty claims because he was not the owner of the planter and he had suffered no economic loss; the trial court found Interior Farms’ claims were barred because it was not the original purchaser of the planter.
Any “affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” K.S.A. 84-2-313(a). As used in that section, a “buyer” is one who buys or contracts to buy goods. K.S.A. 84-2-103(l)(a). It is undisputed that neither Beim, as an individual, nor Interior Farms bought or contracted to buy the planter from PCI. Thus, neither plaintiff is a “buyer” as that term is used in K.S.A. 84-2-313(a).
Plaintiffs urge us to look to parol evidence to find they “bought” the planter from defendants. While there is evidence from which a jury could find the purchase of the planter by Limestone Farms was to benefit plaintiffs, there is no evidence from which a jury could conclude the plaintiffs actually bought the planter from defendants. Further, Beim testified in his deposition that he had no individual interest in the planter.
On these undisputed facts, it is clear Beim and/or Interior Farms did not buy the planter from PCI and/or Deere.
In response, Beim claims the KCPA allows him to maintain his warranty claim against PCI and Deere regardless of privity. K.S.A. 50-639(b) provides that no action for breach of warranty with respect to property, the subject of a consumer transaction should fail due to a lack of privity between the claimant and the party against whom the claim is made.
But the planter was not “property subject to a consumer transaction” as defined by the KCPA. As used in the KCPA, and as applied to this case, a “consumer” is one who is an individual or sole proprietor and acquires property for personal, family, business, or agricultural purposes. K.S.A. 50-624(b). A “consumer transaction” includes a sale of property within the state to a consumer. K.S.A. 50-624(c).
Here, the facts are undisputed: the planter was first purchased by a corporation, Limestone Farms, and then sold to a limited liability company, Interior Farms. No “consumer,” as that term is defined in the KCPA, bought the planter, and, therefore, the planter could not have been the subject of a consumer transaction. Beim’s argument fails.
Additionally, Beim testified in his deposition that he suffered no damages. Proof of damages is an essential element in an action for breach of express warranty. See PIK Civ. 3d 128.12 (seller who breaches an express warranty is liable to an injured person). Beim sought to avoid the consequences of this testimony by submitting ■ an affidavit directly contradicting his sworn deposition testimony.
■ But questions of fact cannot be created by the use of an affidavit which contradicts prior deposition testimony in response to a motion for summary judgment. Gassman v. Evangelical Lutheran Good Samaritan Society, Inc., 261 Kan. 725, 731, 933 P.2d 743 (1997).
■ The trial court properly granted defendants summary judgment on the breach of express warranty' claims.
Plaintiffs’ claims PCI and Deere breached implied warranties (K.S.A. 84-2-314 and K.S.Á. 84-2-31.5)
Plaintiffs alleged both defendants breached the implied warranties of merchantability, K.S.A. 84-2-314, and of fitness for a particular purpose, K.S.A. 84-2-315. The trial court dismissed these claims for the same reasons it dismissed the express warranty claims.
Implied warranties arise by operation of law and not by agreement of the parties, their purpose being to protect a consumer from loss where merchandise fails to meet normal commercial standards. Corral v. Rollins Protective Services Co., 240 Kan. 678, 685, 732 P.2d 1260 (1987).
Pursuant to K.S.A. 84-2-314(2)(c), for a product to be merchantable, it must be “fit for the ordinaiy purposes for which such goods are used.” To establish a breach of this implied warranty, a buyer must show the goods were defective and the defect existed at the time of the sale. Black v. Don Schmid Motors, Inc., 232 Kan. 458, Syl. ¶ 4, 657 P.2d 517 (1983).
When a seller, at the time of contracting for a sale, has reason to know of a particular purpose for which a product is required, and the buyer is relying on the seller s skill and judgment to furnish suitable goods, there is an implied warranty the product will be fit for that purpose. Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 320, 607 P.2d 1339 (1980).
Kansas law is clear: the “implied warranties of fitness and merchantability are not extended to a remote seller or manufacturer of an allegedly defective product, which is not inherently dangerous, for only economic loss suffered by a buyer who is not in contractual privity with the remote seller or manufacturer.” Professional Lens Plan, Inc. v. Polaris Leasing Corp., 234 Kan. 742, 755, 675 P.2d 887 (1984).
Assuming Beim and/or Interior Farms bought the planter, any implied warranties cannot extend to the remote seller, PCI, or the remote manufacturer, Deere.
Plaintiffs argue they were intended third-party beneficiaries of the contract for sale of the planter and, thus, are the proper plaintiffs on the implied warranties claims. But implied warranties do not arise from the contract; they arise by operation of law now codified at K.S.A. 84-2-314 and K.S.A. 84-2-315. See Professional Lens Plan, 234 Kan. at 747-48. As such, the Commercial Code sets limits on who may assert breach of implied warranty claims. See K.S.A. 84-2-318 which extends express or implied warranties to natural persons who may reasonably be expected to use the goods and who suffer personal, as opposed to economic, injury. Interior Farms is not a natural person, and neither Interior Farms nor Beim claim any personal injuries. They cannot claim third-party beneficiary status.
The trial court properly denied the implied warranty claims.
Beim’s claims defendants breached the KCPA (KS.A. 50-623 et seq.)
Plaintiff Tim Beim alleged both defendants committed deceptive and unconscionable acts and practices in violation of the KCPA, K.S.A. 50-626(a)(l)(C) (deceptive acts), and K.S.A. 50-627(7) (unconscionable acts). The trial court found Beim had no legal interest in the planter and suffered no damages.
As used in the KCPA, a consumer is an individual or sole proprietor who seeks or acquires property for personal, business, or agricultural purposes. K.S.A. 50-624(b). A consumer transaction includes a sale of property within the state to a consumer. K.S.A. 50-624(c). K.S.A. 50-626 prohibits a supplier from engaging in any deceptive act or practice in connection with a consumer transaction, and K.S.A. 50-627 prohibits a supplier from engaging in an unconscionable act or practice in connection with a consumer transaction.
In the present case, it is undisputed Beim never personally bought nor actually acquired the planter. Thus, Beim is not a consumer; therefore, defendants were not involved in a consumer transaction with Beim, and Beim cannot maintain an action based on K.S.A. 50-626 or K.S.A. 50-627. The trial court did not err in granting defendants’ motion for summary judgment on this issue.
One additional issue must be mentioned. Alternatively, the trial court, on its own motion, ruled plaintiffs’ warranty claims were time barred by K.S.A. 60-512. The trial court erred; the trial court cannot make such a ruling sua sponte. While trial courts may raise some issues on their own motions, “[ajffirmative defenses, such as the statute of limitations, are not jurisdictional questions; thus, the issue was improperly raised by the [trial] court and constitutes error.” Frontier Ditch Co. v. Chief Engineer of Div. of Water Resources, 237 Kan. 857, 864, 704 P.2d 12 (1985).
The trial court’s error on this matter becomes harmless, since it was correct in granting summary judgment on the merits of plaintiffs’ claims.
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Knudson, J.:
The defendant, Willie Cook, appeals from the district court’s order granting the Department of Social and Rehabilitation Services (SRS) a money judgment of $3,453.80 for assistance expended on behalf of his minor child, D.C. The pivotal issue on appeal is whether Cook was denied due process of law because the district court refused to consider his equitable defenses of age, station in life, and inability to pay.
We reverse and remand for further consideration of Cook’s equitable defenses based upon the evidentiary transcript of proceedings held on January 6, 2000.
The underlying circumstances are not in material dispute. Paternity is not an issue. Cook was 16 years old when D.C. was bom on January 10, 1998. SRS provided $2,177.99 for assistance des ignated by statute as “[a]id to families with dependent children” (AFDC), and an additional $2,875.29 for medical expenses attendant to D.C.’s birth. SRS sought recovery from Cook under K.S.A. 39-718b.
An expedited hearing was conducted under K.S.A. 20-164, Supreme Court Rule 172 (2000 Kan. Ct. R. Annot. 206), and the detailed expedited judicial process established by the chief judge of the Shawnee County District Court. At the conclusion of the full evidentiaiy hearing, the administrative hearing officer granted SRS a money judgment against Cook totaling $3,453.80 to be paid pursuant to an income withholding order that was entered. The hearing officer reduced SRS’s reimbursement request by deducting payments due for the 2 months when D.C. lived with Cook’s mother; additionally, and inexplicably, the hearing officer only granted SRS one-half of the medical expenses sought in reimbursement.
In announcing her decision, the hearing officer explained that she could not consider Cook’s age, station in life, and financial ability to pay in awarding SRS judgment under K.S.A. 39-7l8b. Subsequently, a judge of the Shawnee County District Court reviewed the award and affirmed the decision of the hearing officer. The district judge specifically found under our holding in In re Morgan, 24 Kan. App. 2d 324, Syl., 943 P.2d 77 (1997), that the district court could not consider Cook’s equitable defenses in a K.S.A. 39-718b proceeding.
The issue as to whether a district court may consider an obligor’s equitable defenses requires us to interpret K.S.A. 39-718b, which states, in material part:
“(a) Except as provided in subsection (b), a child’s parent, parents or guardian shall be hable to repay to the secretary of social and rehabilitation services any assistance expended on the child’s behalf, regardless of the specific program under which the assistance is or has been provided. When more than one person is legally obligated to support die child, liability to the secretary shall be joint and several. The secretary shall have the power and authority to file a civil action in the name of the secretary for repayment of the assistance, regardless of the existence of any other action involving the support of the child.”
Interpretation of a statute is a question of law, and appellate review is unlimited. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729, rev. denied 265 Kan. 886 (1998). Additionally, “[i]n 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.” ’ ” State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
K.S.A. 39-718b was enacted in 1988 when the Kansas Legislature repealed K.S.A. 39-718a (Ensley 1986). The pertinent language of K.S.A. 39-718a was virtually identical to that in K.S.A. 39-718b, providing an “absent parent shall be liable to repay to the secretary of social and rehabilitation services the child’s portion of assistance so expended.”
The constitutionality of K.S.A. 39-718a was considered in State ex rel. Secretary of SRS v. Castro, 235 Kan. 704, 684 P.2d 379 (1984). The Supreme Court, in an opinion authored by Chief Justice Prager (then Justice Prager), said:
“After an assignment of support rights to SRS becomes effective on the payment of child support payments by SRS, any civil action which is brought by SRS to recover support payments from the absent parent is essentially the same cause of action which the custodial parent or the child had against the absent parent and which cause of action is assigned to the secretary. That being true, it logically follows that any defenses which the defendant father, as absent parent, could have asserted as a defense to an action brought by the mother of the child may also be asserted in the action brought by SRS for the recoupment of support payments made on behalf of the child.” 235 Kan. at 711.
The court then noted:
“The first point raised by defendant is that K.S.A. 39-718a, which provides for reimbursement to SRS from an absent parent for AFDC payments, violates the absent parent’s right to due process of law, because it permits the state to recover from him without affording him a hearing and without taking into account the absent parent’s ability to pay, station in life, health, support payments made directly to and for his children, and any other circumstances in the case. We agree with the trial court that this contention is without merit. As noted above, the trial court ruled, in substance, that in this case the defendant, Castro, as the absent parent, could properly assert, in this action brought by SRS for recovery of support payments, any defense that Castro might have against the cause of action and, therefore, defendant was afforded a full hearing prior to the time any judgment in favor of SRS could be entered against him.” 235 Kan. at 711.
We conclude the reasoning in Castro provides ample precedent to conclude that in an action brought pursuant to K.S.A. 39-7l8b, a defendant must be given the opportunity to assert whatever legal or equitable defenses he or she might have as if the action had been brought by the custodial parent.
The lower court’s reliance upon Morgan is misplaced. In Morgan, the district court reasoned the defendant parent should only be liable for one-half of the assistance expended because SRS, under the facts of the case, could recover the balance from the child’s other parent. 24 Kan. App. 2d at 325. We appropriately held the district court erred because K.S.A. 39-718b provides for joint and several liability. 24 Kan. App. 2d at 325. Morgan did not address the issue presented here.
Cook also contends the 1998 Kansas Child Support Guidelines (Administrative Order No. 128) (1998 Kan. Ct. R. Annot. 91) must be applied in an action under K.S.A. 39-718b. We do not agree. An action thereunder is to recover public assistance expended on a child’s behalf; it is not an action to establish child support or review a preexisting child support order. Indeed, “assistance” is defined in K.S.A. 39-702(d) and is distinct from the concept of child support.
We acknowledge that in State ex rel Secretary of SRS v. Mayfield, 25 Kan. App. 2d 452, Syl. ¶ 3, 966 P.2d 85 (1998), a panel of this court held “[t]he payment of past medical expenses and cash assistance by [SRS] constitutes child support.” However, the issues in Mayfield concerned subject matter jurisdiction and construction of K.S.A. 1997 Supp. 38-1117(a). We do not believe under the issues now presented Mayfield should control.
Finally, we confess confusion as to why the hearing officer would not consider Cook’s equitable defenses but then, without explanation, only allow SRS to recover one-half of the medical reimbursement. That decision would appear to be inconsistent with the express provisions of K.S.A. 39-718b and our holding in Morgan, 24 Kan. App. 2d 324. However, SRS did not file a cross-appeal in this case. We conclude that upon remand the district court, in deciding whether Cook should be given further relief, may take into consideration the fact medical reimbursement was substantially reduced.
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Rulon, C.J.:
Defendant Brian W. Bussart appeals the inclusion of prior convictions in his criminal history score. We affirm.
Defendant entered a plea of guilty on March 1, 2000, to one count of possession of methamphetamine and one count of no tax stamp for acts alleged to have occurred on July 28,1999. The pleas were made pursuant to an agreement where the State would recommend the minimum guidelines sentence and probation. At the plea hearing, defendant’s attorney stated she believed defendant’s criminal history score was F.
The presentence investigation report listed defendant’s criminal history score as C, and included a March 10, 2000, conviction in Butler County for contributing to a child’s misconduct. Defendant filed a motion to challenge his criminal histoiy, claiming he had not entered a plea of guilty in the Butler County case at the time of the plea in the Sedgwick County case because he wanted to have a criminal history score of F. Defendant claimed it was improper to include tire Butler County case in his criminal history score for the purpose of sentencing him in the Sedgwick County case.
At sentencing, the State argued that under K.S.A. 21-4710(a) and State v. Patry, 266 Kan. 108, 967 P.2d 737 (1998), the Butler County conviction was correctly included in defendant’s criminal history score because it occurred prior to sentencing in .the Sedgwick County case. Defendant argued Patry was distinguishable from his case and the intent of the parties was that defendant would be sentenced with a criminal history score of F. Defendant claimed the Butler County case was not part of his criminal history score when he entered a plea of guilty in the Sedgwick County case and should therefore not be included.
The district court, relying partially on Patry, overruled defendant’s objection to his criminal history. Defendant was sentenced to 28 months for possession of methamphetamine and 6 months for not having a tax stamp, with tire sentences ordered to run concurrent with each other.
Defendant argues he is serving a constitutionally defective sentence because his prior convictions were included in his criminal histoiy score without being stated in the complaint or submitted to a jury. Defendant further asserts his conviction in Butler County could not be included in his criminal history score because he had not been sentenced and thus was not convicted. Defendant claims he is challenging the constitutionality of state statutes. It is not clear that he is actually challenging state statutes as much as he is claiming his sentence is illegal. As such, this court’s review is unlimited. See State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998) (whether sentence is illegal is a question of law subject to an unlimited standard of review).
The State claims defendant did not raise this issue below and should be precluded from raising it on appeal. Clearly, defendant did not argue to the district court that his prior convictions must be pled in the complaint and proved to a jury beyond a reasonable doubt. Defendant merely claimed the Butler County case should not have been included in his criminal history score. Normally, this court would not entertain constitutional claims for the first time on appeal. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). But, die appellate courts have created exceptions to this general rule, one of which is when consideration of the issue is necessary to prevent denial of fundamental rights. State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). As this case raises the question of whether defendant is serving a defective sentence, we will review the issue.
The United States Supreme Court addressed the issue of whether factors used to increase a defendant’s sentence must be proved to a jury beyond a reasonable doubt. In Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the Court stated: “Other than that fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This point was reiterated by our state Supreme Court in State v. Gould, 271 Kan. 394, 405-06, 23 P.3d 801 (2001). However, we conclude it was not necessary for the State to plead defendant’s prior convictions in the complaint or for the convictions to be submitted to a juiy.
Defendant’s claim that his guilty plea in Butler County did not constitute a prior conviction is without legal merit. K.S.A. 21-4710(a) defines a prior conviction as
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case . . . which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
There is no transcript in the record relating to the Butler County plea hearing, but defendant does not claim his guilty plea was not accepted by the district court. The conviction date for the Butler County case was listed as March 10, 2000, which was prior to the April 20, 2000, sentencing date for the Sedgwick County case. Defendant’s argument that the relevant date for the Sedgwick County case was the date of the plea is improper under K.S.A. 21-4710(a). The relevant date to determine defendant’s criminal history score was the date he was sentenced in Sedgwick County. At that time, defendant had already entered a plea of guilty in Butler County and the district court had accepted that plea. It is immaterial that defendant had not entered a plea of guilty in Butler County when he entered his plea of guilty in Sedgwick County or that he had not been sentenced in the Butler County case when he was sentenced in Sedgwick County.
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Marquardt, J.:
Patrick S. Freel appeals his convictions for one count of possession of methamphetamine with the intent to sell, one count of failure to affix a drug tax stamp, and one count of possession of paraphernalia. We affirm in part, reverse in part, and remand with directions consistent with this opinion.
Deputy Phillip Higdon received a call from a confidential informant (Cl) who stated that Freel was in possession of one or two “eight balls” of methamphetamine. The Cl told the deputy where Freel’s maroon station wagon was parked.
When Freel pulled out of the parking lot, he failed to come to a complete stop. Deputy John Schrock stopped Freel. As Schrock was checking Freel’s driver’s license and criminal history, Freel was acting extremely nervous. Schrock returned Freel’s driver’s license and asked if he would answer a few more questions. Freel agreed.
When Freel was asked if he had any drugs, he responded that he had no drugs. Schrock asked for permission to search Freel and his vehicle. Freel responded by asking “why” to both requests. Schrock told Freel that based on information obtained prior to the traffic stop, he was going to use his drug dog to make an exterior search of Freel’s vehicle. Schrock testified that he felt threatened because Freel would not consent to the pat-down or place his hands on the car. Schrock handcuffed Freel and performed a pat-down search to ensure that Freel was not armed. No weapons or drugs were found.
Schrock walked the drug dog around the exterior of Freel’s car. The dog never alerted to the presence of illegal drugs. Notwithstanding the officer s testimony to the contrary, Schrock encouraged the dog to go through an open window into Freel’s automobile. In fact, the videotape in the record on appeal shows that Schrock pointed to the inside of the driver s window and said to the dog, “Check up here.” The dog alerted in an area on the floor board. Schrock searched the car. There were no drugs in the immediate area of the dog’s alert. Schrock opened the hatchback and found no drugs. At Schrock’s request, another deputy performed a second pat-down search of Freel and still found no weapons or drugs.
Eventually, Schrock found a black case above the driver’s side sun visor which contained methamphetamine, a pipe wrapped in tissue, a plastic baggie containing off-white powder, and several paper squares.
Freel was charged with one count of possession of methamphetamine with the intent to sell, one count of failure to pay Kansas drug tax, and one count of possession of drug paraphernalia. Freel filed a motion to suppress the evidence and a motion to disclose the Cl’s identity. Both motions were denied. Freel was convicted of all charges by a juiy. He was sentenced to a controlling term of 24 months’ imprisonment but was sent to the Labette Correctional Conservation Camp. Freel timely appeals.
Identity of the Confidential Informant
Freel’s defense was that someone else placed the drugs and paraphernalia in his vehicle. Freel alleges that the refusal to disclose the Cl’s identity prevented him from substantiating his defense that someone else planted the drugs in his car; thus, he was denied the opportunity to present a meaningful defense. Freel contends that the Cl’s information was no more reliable than an anonymous tip.
We review a trial court’s ruling on a motion to require the State to reveal the identity of a confidential informant under an abuse of discretion standard. State v. Fisher, 24 Kan. App. 2d 103, 109, 942 P.2d 49 (1997). The identity of a confidential informant is privileged unless the informant’s identity has already been disclosed or disclosure is essential to assure a fair determination of the issues. K.S.A. 60-436. In deciding whether to require disclosure of the identity of a confidential informant, a court must balance the public interest in protecting the flow of information to law enforcement officials against the defendant’s right to prepare his or her defense. 24 Kan. App. 2d at 109.
A “mere tipster” is an informant whose information precipitates an investigation. In contrast to the tipster, the “confidential informant,” who actually engages in or observes the criminal activity of the defendant, is in a position to provide independent relevant evidence to the defense of the case.. A mere tipster whose information precipitates an investigation is generally not subject to identity disclosure. State v. Thomas, 252 Kan. 564, 580-81, 847 P.2d 1219 (1993) (citing State v. Washington, 244 Kan. 652, 657-58, 772 P.2d 768 [1989]).
We agree with the trial court’s conclusion that the Cl was a mere tipster. The only evidence presented at trial as to the Cl’s reliability was that the Cl called Deputy Higdon with information about Freel and had worked with the deputy for approximately 1 year. There was no corroboration of the tip or evidence that the Cl witnessed a crime which involved Freel. The trial court did not abuse its discretion in refusing to grant Freel’s motion to disclose the Cl’s identity.
Suppression of Evidence
Freel contends that his detention and the searches of his person and automobile violated numerous provisions of § 15 of the Kansas Constitution Bill of Rights and the Fourth Amendment to the United States Constitution. Freel claims that because of these violations, the evidence should have been suppressed.
Freel cites State v. Binette, 33 S.W.3d 215 (Tenn. 2000), to support his assertion that this court should use a de novo standard of review in evaluating the trial court’s refusal to suppress the evidence. In Binette, the review was de novo because the arresting officer did not testify at trial; however, there was a videotape of the incident. The Tennessee Supreme Court held that when a court’s findings of fact at a suppression hearing are based solely on evidence that does not involve issues of credibility, such as a videotape, the rationale underlying a deferential standard of review is not implicated. Thus, a de novo standard of review was found to be appropriate; however, this holding was expressly limited to the facts presented. 33 S.W.3d at 217.
The facts in the instant case differ from Binette. Here, the evidence included the videotape and the officers’ testimony; therefore, we turn to tire established standard of review for the suppression of evidence.
When reviewing a trial court’s decision on 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). An appellate court reviews the factual underpinnings of a trial court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. State v. Toothman, 267 Kan. 412, 416, 985 P.2d 701 (1999).
Freel does not challenge the legality of the initial traffic stop. He argues that once his driver’s license and insurance information were returned to him, any further detention was an unreasonable seizure. Freel maintains that the evidence found after the conclusion of the traffic stop was the direct consequence of an illegal seizure and should be suppressed.
Deputy Schrock’s detention of Freel after he returned Freel’s license was based on the Cl’s statement that Freel had narcotics. The State contends that the Cl provided probable cause to justify the warrantless search of Freel and his vehicle. Freel contends that there was only a minimal recitation from Deputy Higdon regarding the reliability of the Cl and because the Cl was being paid for providing the information, the tip is even more suspect.
An anonymous tip does not provide probable cause to support the issuance of a search warrant or an arrest even though it may support a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). An individual may be stopped and questioned if the officer has specific and articulable facts to suspect that the individual has committed or is about to commit a crime. State v. Tucker, 19 Kan. App. 2d 920, 924, 878 P.2d 855, rev. denied 255 Kan. 1007 (1994). The officers had a right to stop and question Freel.
The standard for justifying a stop differs from the standard that justifies searches and seizures. The Fourth and Fourteenth Amendments to the United States Constitution prohibit unreasonable searches and seizures. Under the Fourth Amendment, searches conducted without warrants are per se unreasonable, subject to a few well-delineated exceptions. State v. Weas, 26 Kan. App. 2d 598, 600, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000). The search of an automobile is an exception to the prohibition of a warrantless search because of its mobility. Warrantless searches of automobiles have been upheld where the danger to the public is clear and urgent, such as in cases where an automobile is being driven erratically and the driver s intoxication could lead to serious danger or death. See Tucker, 19 Kan. App. 2d 920.
Kansas has adopted the totality of the circumstances analysis set forth in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S.Ct. 2317 (1983), for judging the credibility and reliability of information obtained from a confidential informant. State v. Henry, 263 Kan. 118, 127, 947 P.2d 1020 (1997). Where direct evidence of the informant’s reliability or credibility is lacking, corroboration by independent police investigation may suffice. Fisher, 24 Kan. App. 2d at 111.
A tip from a known informant whose reputation can be assessed and who can be held responsible if his or her allegations turn out to be fabricated may exhibit sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop. See Florida v. J.L., 529 U.S. 266, 270, 146 L. Ed. 2d 254, 120 S. Ct. 1375 (2000). The question here is whether there was a sufficient indicia of reliability in the Cl’s information to go beyond the investigatory stop to a search and seizure. The courts have held that caution must be used where the risk to the public is not urgent and there is time to verify all aspects of the tip, including the caller’s reha bility. See Tucker, 19 Kan. App. 2d at 931. In the instant case, there was no risk to the public.
Our Supreme Court has held:
“Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information’s degree of reliability. Quantity and quality are considered in the ‘totality of the circumstances—the whole picture’ that must be taken into account when evaluating whether there is a reasonable suspicion. [Citation omitted.]” State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998).
An individual is seized when an officer restrains his or her freedom, even if the detention is brief and falls short of an arrest. The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. State v. Schmitter, 23 Kan. App. 2d 547, 550, 933 P.2d 762 (1997). Freehs detention lasted approximately 40 minutes. Approximately 13 minutes after the stop, Freel’s license was returned to him and he was told that he was free to go. He agreed to answer some questions but never agreed to the pat-down or the search of his vehicle. Freel was detained for approximately 27 minutes after the initial stop had ended.
Freel cites State v. Ballard, 617 N.W.2d 837 (S.D. 2000), to support his claim that the stop turned into an unlawful seizure. In that case, a defendant was stopped for a traffic violation. The defendant refused to consent to a search of the vehicle after the completion of the traffic stop. Officers detained Ballard until a drug dog could be obtained. The South Dakota Supreme Court held that the continued detention of the defendant was impermissible under the Fourth Amendment. The court noted that it was insufficient for the officer to believe the defendant was “wired” and that a refusal to give consent to search is not justification for a search. 617 N.W.2d at 842.
Ballard was stopped after committing a traffic violation when no other information had been provided to the police. Ballard’s continued detention was motivated by the officer’s belief that she was “wired.” Here, Freel’s continued detention was motivated by the Cl’s information given to the police. In Ballard, the officer observed behavior that led him to believe there might be some safety issue involved. Here, the only act the officers observed was that Freel was nervous. The Tenth Circuit Court of Appeals has held that nervousness alone is not sufficient to justify further detention. U.S. v. McRae, 81 F.3d 1528, 1534 n.4 (10th Cir. 1996).
Freel contends that the manner in which the drug dog was used violated his Fourth Amendment rights. Freel admits that the police were allowed to use the drug dog to sniff the exterior of his car. However, Freel takes issue with the fact that the drug dog was encouraged to enter into and sniff the interior of his vehicle. Freel maintains that the videotape shows Schrock facilitated the dog’s entry into the car.
Freel relies on U.S. v. Winningham, 140 F.3d 1328 (10th Cir. 1998) to support his claim. In Winningham, agents stopped a van on the reasonable suspicion that it might be carrying undocumented aliens. After receiving permission to search, an agent opened the sliding door of the van to conduct a visual search of the interior. The door was left open as the agent asked permission to perform a search for drugs, to which the defendant consented. After the dog arrived, it was unleashed and it entered the open van door to perform a search of the van’s interior, which resulted in the discoveiy of narcotics.
The Tenth Circuit found that the agents facilitated a sniff of the van’s interior by opening the van door and unleashing the dog. Accordingly, the court found that the search was invalid and ordered that the evidence against the defendant be suppressed. 140 F.3d at 1332-33.
The State cites U.S. v. Stone, 866 F.2d 359 (10th Cir. 1989) as support for its position that the interior search of Freel’s car was not an unlawful search. In Stone, the defendant was stopped for a traffic violation and an officer smelled an odor he identified as cocaine. After the driver refused consent to search, he was released, only to be met by authorities later. These officers had a drug dog, and when the driver opened the hatchback, the dog leapt in and alerted on a duffle bag. The significant difference between Stone and the instant case is that the officer smelled cocaine in Stone; there was no smell of drugs here.
The United States Supreme Court, the Kansas Supreme Court, and this court have held that the use of a narcotics dog does not constitute a search within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 77 L. Ed 2d 110, 103 S. Ct. 2637 (1983); State v. Barker, 252 Kan. 949, 957, 850 P.2d 885 (1993); State v. McMillin, 23 Kan. App. 2d 100, 102-05, 927 P.2d 949 (1996). However, placing a dog inside the trunk or passenger compartment of a vehicle is an invasive search requiring probable cause. Just as an officer could not enter the passenger compartment or trunk of a vehicle to conduct a search without probable cause, neither can a dog be placed inside a vehicle on less than this standard. U. S. v. Thomas, 787 F. Supp. 663, 684 (E.D. Texas 1992).
Deputy Schrock testified that his search protocol with the dog starts at the front driver’s side head lamp, goes across the front of the vehicle, and goes down to the rear of the vehicle and back. Schrock stated that he works “up and down” so the dog’s head goes up to the window and then down under the car. Schrock further stated that he places his hands on particular areas of the vehicle and says “here” in order to get the dog to focus on a particular part of the vehicle. Schrock kept saying “come on” to the dog. Schrock testified that the phrase was said to keep the dog moving. He did not indicate that the phrase was significant for the dog.
Schrock repeatedly denied that he had encouraged the dog to enter Freel’s car. The videotape in the record on appeal shows otherwise. We agree with Freel that Schrock encouraged the dog to enter into the car when it had not alerted on the exterior. We believe that the dog’s entry into Freel’s car was a violation of Freel’s Fourth Amendment rights. The facts of this case fall directly in line with Winningham, 140 F.3d 1328. Taking into account the facts and the totality of the circumstances, this detention and search turned into an unlawful search and seizure and the evidence should have been suppressed. See Ballard, 617 N.W. 2d 837.
For all the above and foregoing reasons, we agree that the evidence against Freel should have been suppressed. The decision of the trial court is reversed with instructions to continue the proceedings in a manner consistent with this opinion.
Affirmed in part, reversed in part, and remanded with directions. | [
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Brazil, J.:
Heather Inscho sued Exide Corporation claiming breach of an implied employment contract. She appeals from the trial court’s grant of summaiy judgment to Exide. She contends that the trial court erred in deciding as a matter of law that no implied contract existed between her and Exide. She also contends that the trial court erred by ruling in the alternative, and as a matter of law, that if there was an implied contract, there was just cause to términate her. We affirm.
Inscho had worked for Exide since April 1997. Exide terminated her employment on December 23, 1998, for fighting with another employee, which was in violation of company policy.
Inscho admitted in her deposition that she did not have a written contract with Exide. At the time she applied for the position, she understood that Exide could terminate her employment at any time with or without cause or notice. Inscho further acknowledged that she had signed two receipts for an employee handbook in April and October 1997, and admitted the handbook was not a contract. The receipts state that all employment contracts must be in writing and signed by either the president or chief executive officer of Exide. The handbook states that there are no contracts of employment for a specific duration unless they are in writing and signed by an appropriate Exide official. Inscho admitted that the handbook did not create an implied contract.
Inscho also testified in her deposition about participating in an anonymous employee survey conducted by an outside management consulting firm which asked the employees to rate their satisfaction concerning certain statements. Inscho testified that the employees’ favorable responses to two particular questions on the survey created an implied contract.
Todd Petersen, the human resources manager for Exide, testified in his deposition that during his tenure at Exide, he did not terminate any employees arbitrarily, nor had anyone been terminated other than for a violation of an Exide policy.
In ruling on Exide’s motion for summary judgment, the trial court determined that there were no material issues of fact. The trial court ruled as a matter of law that no implied employment contract existed between the parties and, in the alternative, if an implied contract did exist, Exide had just cause to terminate Inscho’s employment. Inscho timely appeals.
Exide’s disciplinary policy is part of the employee handbook. The policy states that nothing limits Exide’s right to terminate an employee at any time for any reason. Inscho admitted that the policy prohibited disorderly conduct, which included fighting, and that such conduct could subject an employee to discharge. Inscho also admitted that she was aware of the process of terminating employees as stated in the policy. The policy states that before discharge is finalized, the employee is placed on indefinite suspension to allow the company to review all of the facts and to ensure the discharge action is appropriate and consistent.
Inscho admitted that on December 18, 1998, she grabbed another employee’s hair and yanked her forward. She denied trying to hit back and stated that she was trying to prevent her opponent from continuing to hit her in the head. Inscho also stated that she was unable to retreat because she was cornered in between an open car door and the car. Another witness stated that he saw Inscho swing at her opponent. Both employees were suspended and then terminated after a company investigation.
Petersen testified about the company policy regarding fighting. Petersen said that the sole reason for Inscho’s termination was her participation in the fight. He stated that the fact Inscho grabbed her opponent’s hair constituted participation in the fight.
Both issues Inscho raises are subject to the same standard of review. The standard of review on 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. 2000 Supp. 60-256(c). 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. See 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. A party opposing a summary judgment may not rest merely on allegations, but must provide some affirmative evidence to support its position. K.S.A. 2000 Supp. 60-256(e); see Bi-State Dev. Co., Inc. v. Shafer, Kline & Warren, Inc., 26 Kan. App. 2d 515, 517, 990 P.2d 159 (1999).
At the outset, we are compelled to comment about the condition of the record on appeal. Material included as an appendix to an appellate brief is not a substitute for the record on appeal. Zeferjohn v. Shawnee County Sheriffs Dept., 26 Kan. App. 2d 379, 383, 988 P.2d 263 (1999). It would have been helpful for items relied on by either Inscho or Exide to have been submitted as part of the record on appeal. These items were before the trial court and their absence made our task of appellate review unnecessarily difficult.
Inscho contends that there was an implied contract of employment between her and Exide in which she would only be terminated for good cause. She argues that summary judgment is rarely appropriate in implied contract cases because the parties’ subjective intent is typically a question of fact for the jury. Exide contends that a party’s unilateral expectation of continued employment is insufficient as a matter of law to establish an implied contract; thus, the trial court did not err in granting summary judgment to Exide.
Inscho sets forth five facts which she claims create an issue of fact as to the existence of an implied contract: (1) Petersen’s testimony that Exide does not randomly or arbitrarily terminate employees unless they have violated one of the written policies; (2) the employee surveys showing that Exide employees overwhelmingly-believe they have job security as long as they perform their job in a satisfactory manner; (3) Petersen’s testimony that the employees’ beliefs as reflected in the surveys are viewed by Exide as desirable responses; (4) Inscho’s testimony concerning her belief that as long as she did a good job in her work, she would not be terminated without good cause; and (5) good performance ratings by Inscho’s supervisor at tire time of termination, together with his statement that he would recommend her for reemployment.
The existence of an implied employment contract is one exception to the employment-at-will doctrine followed in Kansas. An implied employment contract arises from facts and circumstances showing a mutual intent to contract. Kastner v. Blue Cross & Blue Shield of Kansas, Inc., 21 Kan. App. 2d 16, 22-23, 894 P.2d 909, rev. denied 257 Kan. 1092 (1995). Relevant factors to consider in deciding whether the parties had mutual intent to contract include: (1) written or oral negotiations; (2) the conduct of the parties from the commencement of the employment relationship; (3) the usages of the business; (4) the situation and objective of the parties giving rise to the relationship; (5) the nature of the employment; and (6) any other circumstances surrounding the employment relationship which would tend to explain or make clear the intention of the parties at the time employment commenced. Allegri v. Providence-St. Margaret Health Center, 9 Kan. App. 2d 659, Syl. ¶ 5, 684 P.2d 1031 (1984).
This court in Stover v. Superior Industries Int’l, Inc., 29 Kan. App. 2d 235, Syl. ¶ 4,29 P.3d 967 (2000), held: “The determination of whether an implied-in-fact contract exists is a question of fact for the juiy to decide.” The court further stated:- “Under the facts of this case, it is held that the trial court erred in granting judgment as a matter of law to the defendants because there was sufficient evidence to permit a jury to determine whether implied-in-fact contracts existed between the parties.” 29 Kan. App. 2d 235, Syl. ¶ 9. Stover suggests that in all cases where there is an allegation of an implied contract, a jury must decide the issue; it also suggests that the issue of “sufficient evidence” makes it a jury question.
The facts in the instant case vary dramatically from Stover, and we make it clear that just because a plaintiff alleges an implied-in-fact contract, a jury determination is not always required. There are cases, such as those presented in Stover, that require jury determination; however, there are also cases where a jury determination is not required.
While the existence of an implied contract of employment is generally a jury question, an employer can prevail on summaiy judgment if the employee only presents evidence of his or her unilateral expectations of continued employment. Kastner, 21 Kan. App. 2d at 24. Here, the trial court found that an implied contract was not created by course of dealing, policy, or handbook, and “at best,” Inscho demonstrated only a unilateral expectation of continued employment. We agree. Inscho has offered nothing probative that would indicate the parties had a mutual intent to contract at the time employment commenced for termination for good cause only. Inscho’s own beliefs are clearly evidence of her expectation, and performance reviews and related statements were implicitly rejected in Kastner as a basis for an implied contract. What is left of Inscho’s argument is that Petersen’s testimony and the employee opinion surveys create an issue of fact as to Exide’s intent.
Petersen’s testimony that Exide had previously terminated employees only for violations of policy does not demonstrate an intent by Exide that a violation was required prior to termination.
Here, Inscho claimed in her response to summary judgment and on appeal that Exide used the survey “as a mechanism for measuring confidence and conveyed the impression to employees that they would keep their job if they performed in a satisfactory manner.” We fail to see how an anonymous employee survey administered by an outside consultant demonstrates the required meeting of the minds between employee and employer to form an implied employment contract.
Inscho failed to present more than her unilateral expectation that an implied contract existed between her and Exide; therefore, the trial court did not err in granting Exide’s motion for summary judgment on this issue.
Inscho contends that the issue of whether Exide had just cause to terminate her was a question of fact for the jury and cannot be decided as a matter of law. Furthermore, she contends that facts relating to the issue of just cause were controverted, thereby precluding summary judgment on this issue. To support her argument, she relies on the definition of “just cause” in Black’s Law Dictionary 775 (5th ed. 1979), which states: “[J]ust cause is a cause outside legal cause, which must be based on reasonable grounds, and there must be a fair and honest cause or reason, regulated by good faith.” From this premise, she claims that the standard for determining just cause is similar to the reasonableness standard in a negligence action and, thus, cannot be decided as a matter of law.
Exide argues that if an implied contract existed, it did not breach the contract because Inscho violated company policy when she grabbed her opponent’s hair and pulled her forward—which she has admitted doing. From this premise, Exide reasons that it had just cause to terminate Inscho. Exide asserts that cause exists when an employer does not terminate arbitrarily, but follows its policies when it terminates an employee for policy violations. Exide further maintains that summary judgment was appropriate because Inscho failed to come forward with something of evidentiary value to establish a material dispute of fact.
The trial court concluded that even if there was an implied contract, the definition of “fighting” contained in the policy and the use of the colloquial term “fighting” would support finding her conduct constituted just cause for her termination. Relying on the disciplinary policy in the employee handbook and Petersen’s affidavit, the trial court stated that “disorderly conduct can be anything, fighting, physical violence, playing pranks, horseplay, intimidation, molestation, tripping, pushing, kicking or any other conduct which may interfere with an employee.”
The implied contract theory recognizes an implied obligation on the employer to not terminate an employee arbitrarily where a policy or program of the employer, either express or implied, restricts the employer’s right of termination at will. In essence, the employer is barred from violating its own policies in discharging the employee. Allsup v. Mount Carmel Med. Center, 22 Kan. App. 2d 613, 617, 922 P.2d 1097, rev. denied 260 Kan. 991 (1996).
Exide investigated the incident between Inscho and her opponent. Petersen spoke to Inscho, her opponent, and two witnesses. Inscho admitted that she grabbed her opponent’s hair and pulled her forward but maintains these acts were in self-defense. Exide terminated Inscho for her participation in the fight with her coworker. Inscho’s counsel agreed with the trial court that “fighting” would not be construed as a legal term and Exide was within its rights to fire employees for fighting. The trial court did not err in granting summary judgment on the alternative theory that Exide did not act arbitrarily or without just cause in terminating Inscho.
Inscho’s argument is that since it is controverted whether she acted in self-defense or whether she could retreat, this creates an issue of fact as to whether she was fighting. However, this argument injects legal terms from criminal law into the analysis. Her approach would turn every allegation of an implied contract into a criminal trial and require every employee manual to mirror the criminal code. This is contrary to the spirit of Allsup and related cases which focus the inquiry on whether the employer’s action was arbitrary or within the bounds of the company policy, not the criminal code.
Inscho’s unilateral expectation does not raise a fact question sufficient to withstand a motion for summary judgment. The defining facts in this case were Inscho’s uncontroverted and admitted conduct of grabbing her opponent’s hair and pulling her forward which constitutes participation in a fight. These actions violated Exide’s written code of conduct and the trial court correctly determined that just cause supported the termination of Inscho’s employment. The trial court did not err in granting summary judgment to Exide.
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Green, J.:
Rebecca Massey and Cindy Lusher appeal from a judgment of the trial court dismissing their action against Mutual of Omaha Insurance Company and Mutual of Omaha Life Insurance Company (Mutual) for lack of personal jurisdiction over Mutual. Both companies were incorporated in Nebraska and have con ducted business in Kansas. Mutual has a division office in Wichita, which recruits and supports agents in central Kansas. On appeal, Massey and Lusher, who are nonresidents of Kansas, maintain that the trial court had personal jurisdiction over Mutual because of its presence within Kansas and because it was served with process in Kansas. We agree and reverse and remand.
Roger Novak, who is a resident of Kansas, appeals from the decision of the trial court granting summary judgment in Mutual’s favor, finding his action to be time barred. On appeal, Novak contends that his suit should not be time barred because of a clause contained in Mutual’s contract. We agree and reverse and remand.
Mutual is a corporation headquartered in Omaha, Nebraska. Mutual offers various insurance products nationwide, including health and disability insurance. Mutual’s products are made available by a network of agents employed throughout the United States. The agents are independent contractors and may sell insurance products for other companies. Agents are assigned to local division offices managed by district sales managers and general managers.
New Mutual employees are required to sign the Mutual of Omaha Agent’s Contract (MOC). The MOC articulates an agent’s basic duties as well as the company’s responsibilities and a separate set of “schedules” which describe and control the specific terms of compensation and benefits depending upon the different products and associated contract incentives an agent decides to sell or accept. The sections of the MOC most relevant to this appeal state as follows:
“F. COMPENSATION.
3. Agent’s Account.
(c) The Company shall have the right to withhold payment of any credit balance in the Agent’s account for not more than 13 months after termination of this Contract to assure that funds are available to reimburse the Company for any indebtedness. Thereafter, any net credit balance shall become due and payable.
“I. MISCELLANEOUS.
10. Limitation of Actions. Any claim by the Agent under this Contract must be brought within one (1) year of the occurrence of the claim. Any claim for compensation may only be brought against the corporation which issued the Attachment to which the claim relates.
15. Controlling law. This Contract is to be construed in accordance with the laws of the State of Nebraska.”
Mutual maintains an account for each agent. The account tracks income, expense items, and compensation payment described as credit and debit transactions. The agent also receives a monthly agent statement detailing the agent’s financial activities with Mutual. Agents continue to receive a monthly agent statement for a period after termination of their employment until the account clears.
A large part of an agent’s compensation is from commissions received for selling insurance products. “First year” commissions are commissions based upon a percentage of the eligible first-year premium received from the insured in the first policy year. If an agent’s employment with Mutual ends before the éntire first year of premiums is paid on an issued policy, Mutual stops crediting the agent’s account for first-year commissions unless the agent is vested, that is, has been employed by Mutual for 10 consecutive years.
Novak was recruited in Salina, Kansas', to sell Mutual’s products in Kansas. Novak began selling Mutual products in early 1992, and his contract was terminated on January 20, 1995, due to lack of production. Upon termination, Novak was furnished with a final agent statement and made no written objection to its contents as required by the contract.
Massey lived and worked in West Palm Beach, Florida. From May 1991 until she left the company in July 1993, Massey sold Mutual products. Lusher began working for Mutual in 1991 and left in 1993. Lusher lived and worked in Wyoming.
On January 20, 1999, Lusher brought an action against Mutual in Saline County, Kansas. Lusher claimed that Mutual breached the MOC by not paying out first-year commissions, regardless of the length of her employment. Novak and Massey were also plaintiffs in Lusher’s action. Mutual moved to dismiss Massey’s and Lusher’s claims on the ground that they could not obtain jurisdiction over Mutual in Kansas. The trial court agreed and dismissed Massey’s and Lusher’s claims.
Mutual also moved for summary judgment on Novak’s claim, arguing he was barred by the 1-year limitation period under the MOC agreement. On the other hand, Novak argued that the contract should be construed under Nebraska law, and Nebraska law does not allow parties to limit the applicable statute of limitations for a breach of contract claim, which is 5 years. The trial court determined that the contract was a Kansas contract and was to be performed wholly in Kansas. As a result, the trial court applied Kansas law and determined that the 1-year limitation period barred Novak’s claim.
Although Massey and Lusher assert several arguments as to why the trial court improperly dismissed their suit, those arguments distilled to their bare essence present the following question: Did the trial court properly dismiss this action for lack of personal jurisdiction over Mutual? Whether jurisdiction exists is a question of law over which an appellate court exercises unlimited review. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
The thrust of Mutual’s argument is that Lusher and Massey have no connections to Kansas and their cause of action did not arise in this state. Mutual relies on the Kansas “long arm statute,” K.S.A. 60-308, and Three Ten Enterprises, Inc. v. State Farm Fire & Cas. Co., 24 Kan. App. 2d 85, 942 P.2d 62, rev. denied 262 Kan. 969 (1997).
Three Ten and its predecessor cases adhere to the theory that questions of personal jurisdiction in Kansas require a finding that the case falls within the purview of the Kansas long arm statute. Three Ten involved an action by Three Ten Enterprises, Inc., Foam Form (Three Ten), a limited partnership organized under the laws of Kansas and licensed to transact business in Nebraska, against State Farm Fire & Casualty Company (State Farm), a foreign corporation authorized to do business in Kansas. State Farm issued a policy to Three Ten covering Three Ten’s premises in Papillion, Nebraska. Three Ten made a claim with State Farm to recover losses suffered from an employee theft.
Unhappy with the result of the claim, Three Ten sued State Farm in Miami County, Kansas, and argued a theory of recovery under Nebraska law. State Farm moved to dismiss for lack of personal jurisdiction. The trial court denied the motion, holding personal jurisdiction existed under a theory of general jurisdiction.
On appeal, Three Ten argued that the Kansas long arm statute, K.S.A. 60-308(b), is to be liberally construed over nonresident defendants. In addition, Three Ten argued that the doctrine of “general jurisdiction” makes it unnecessary for plaintiffs to show that defendants’ conduct falls within the parameters of 60-308(b). 24 Kan. App. 2d at 90. The Three Ten court disagreed. Our court determined that general jurisdiction is a due process concept and does not excuse a plaintiff from satisfying the test for long arm jurisdiction under 60-308. As a result, our court reversed the trial court’s decision.
Although State Farm in Three Ten was apparently served with process under K.S.A. 40-218, which required foreign insurers to consent in advance to jurisdictions in certain situations in return for doing business in this state, Three Ten failed to argue jurisdiction under this statute. Moreover, the Three Ten court neglected to address the service under 40-218.
Service in this case was made by serving the Insurance Commissioner under 40-218. After Mutual moved to dismiss for a lack of personal jurisdiction, the plaintiffs re-served Mutual under K.S.A. 60-304(e) and (g). Mutual argues in its brief that K.S.A. 40-218 is not an independent source of statutory authority for gaining jurisdiction over an insurance company by serving it within the state; rather, the statute only “provides the manner in which process must be served on foreign insurers, hmiting that to counties in which the plaintiff resides or where the cause of action occurred. Jurisdiction is considered an entirely separate step.” According to Mutual, Three Ten must be read to require K.S.A. 40-218 to be used in conjunction with K.S.A. 60-308(b) to gain jurisdiction over a foreign insurer, and K.S.A. 60-308(b) confers statutory authority for the assertion of jurisdiction.
Mutual cites Deines v. Vermeer Mfg. Co., 752 F. Supp. 989 (D. Kan. 1990), as support for the proposition that jurisdiction must be predicated upon K.S.A. 60-308(b), even if service is made under K.S.A. 40-218. In Deines, service was made upon the defendant insurance company, Liberty Mutual, apparently under K.S.A. 40-218. Liberty Mutual argued its contacts with Kansas were so minimal that it would be unfair and improper for the court to assert jurisdiction.
The Deines court began its analysis of the jurisdiction issue by applying the same two-part test used in Three Ten. First, does the defendant’s conduct fall within the scope of the long arm statute? Second, does the exercise of personal jurisdiction comply with due process requirements as set out in decisions of the United States Supreme Court? The trial court stated that a plaintiff must satisfy both requirements by a prima facie showing before a court may exercise jurisdiction. 752 F. Supp. at 998. After examining the Kansas long arm statute and the constitutional requirements for the exercise of jurisdiction to comport with due process requirements, the trial court stated:
“In the present case, we are compelled to hold that the court has personal jurisdiction over Liberty Mutual. Liberty Mutual is a foreign insurance corporation authorized to transact business in the State of Kansas. Liberty Mutual, pursuant to K.S.A. 40-218, authorized the Kansas Insurance Commissioner to accept service of process on its behalf. The insurance company also agreed that service of process upon the Commissioner of Insurance would be valid and binding. Thus, personal jurisdiction is proper in this action because this defendant purposefully availed itself of the privilege of transacting business in this state. Moreover, Liberty Mutual had actual knowledge that it could be haled into court in Kansas, and agreed to submit to the jurisdiction of the Kansas courts. Defendant’s summary judgment motion as to personal jurisdiction will be denied.” 752 F. Supp. at 1000.
Thus, although the Deines court stated it was necessary to comply with the Kansas long arm statute, it relied at least partially on Liberty Mutual’s actions in consenting to be served through the Kansas Insurance Commissioner to determine it was fair to exercise personal jurisdiction over the company.
K.S.A. 60-308(d) states: “Nothing contained in this section limits or affects the right to serve any process in any other manner provided by law.” This subsection recognizes that the long arm statute covers only certain situations. As a result, when the long arm statute does not cover a particular situation, resort must be had to the traditional bases of jurisdiction such as citizenship; domicile and residence; or consent, actual or implied.
For example, Missouri recently rejected an argument that its long arm statute was the exclusive means of obtaining jurisdiction over a foreign corporation and used a traditional method for establishing jurisdiction. In State Ex Rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165 (Mo. 1999), a Missouri resident injured in a fall at a K-Mart store in Colorado brought suit against the company in Missouri. K-Mart sought to have die case dismissed for lack of personal jurisdiction, or, in the alternative, on the grounds of forum non conveniens.
As in the present case, K-Mart conceded there were no constitutional impediments under the Due Process Clause to asserting jurisdiction, as the company transacted substantial business in Missouri. The Holliger court stated the issue as follows: “K-Mart bases its contention that Missouri courts lack jurisdiction on the remarkable assertion that the only means by which jurisdiction may be obtained over a foreign corporation is through the state’s long arm statute, section 506.500.” The court continued: “K-Mart’s theory turns jurisdictional history on its head. Prior to the enactment of Missouri’s long arm statute in 1967, Missouri cases uniformly held that a foreign corporation present and conducting substantial business in Missouri was subject to the jurisdiction of our courts.” Further, “[wjhere a corporation registered agent is served in Missouri, assertion of jurisdiction was no more than adherence to the traditional understanding that a state may condition a corporation’s doing business upon the appointment of an agent in the state for service of process.” 986 S.W.2d at 166-67. The court also recognized that historically, jurisdiction was exercised over corporations by service upon an agent in the forum state, and Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154 (1945), authorized extraterritorial exercises of jurisdiction where minimum contacts existed between the defendant and forum state sufficient that the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice. Finally, the Holliger court stated:
“K-Mart relies on the long-arm statute for its argument that Missouri does not have personal jurisdiction in this case because the claim did not arise out of one of the activities enumerated in the statute. However, long-arm statutes, as the name implies, are intended to expand the reach of the law of the state to authorize jurisdiction over foreign corporations that are not necessarily authorized to do business in the state but whose activities justify personal jurisdiction. In fact, we can find no Missouri case challenging jurisdiction over a foreign corporation whose registered agent was served in Missouri. The provisions of section 506.150 are incorporated into rule 54.06, which explicitly applies only to ‘service outside the state.’ In this case, there is no need for a ‘long-arm’ to reach K-Mart outside of Missouri, because K-Mart has a registered agent in Missouri.
“We reject K-Mart’s argument that Missouri’s long-arm statute is the exclusive means of obtaining jurisdiction over a foreign corporation. If its argument were to succeed, it would severely limit the reach of Missouri law and the protection that law gives Missouri residents and others authorized to use our state’s courts. Under section 351.582(2), issuance of a certificate of authority to a foreign corporation authorizes it to conduct business in Missouri and makes it ‘subject to the same duties, restrictions, penalties, and liabilities . . . imposed on, the domestic corporation of like character.’ ” 986 S.W.2d at 168.
Finding jurisdiction to be proper, the Holliger court determined that Missouri’s long arm statute was inapplicable. 986 S.W.2d at 169.
Although Mutual urges that the reasoning of Three Ten, requiring the two-step analysis incorporating the Kansas long arm statue, is the correct approach, Three Ten is distinguishable from the present case. The court and the parties in Three Ten did not address K.S.A. 40-218. Here, we determine that Mutual was present within the jurisdiction, that Mutual was served with process while in Kansas, and that Mutual gave its actual consent to jurisdiction under K.S.A. 40-218. As a result, we determine that the trial court had personal jurisdiction over Mutual with respect to the action brought by Massey and Lusher.
Next, Novak maintains that his suit is not barred by the clause in the MOC requiring actions to be commenced against Mutual within 1 year of the time the claim arises. He propounds several theories under which the limitations clause is either invalid or inapplicable to his suit. The resolution of this issue does not require an analysis of all Novak’s theories but rather of the choice of law issues relating to the 1-year Hmitations clause.
The MOC contains a provision directing that it is to be “construed in accordance with the laws of the State of Nebraska.’’ Novak argues this is a choice of law provision requiring the application of Nebraska law. On the other hand, Mutual claims the language mandates only the application of Nebraska rules of contract construction and not its substantive law. Mutual contends that because the performance of the contract between Novak and Mutual mainly occurred in Kansas, the law of place of performance should govern, which would be Kansas. Because contractual limitations provisions are enforceable in Kansas, Mutual maintains that Novak’s suit is barred by the 1-year time period contained in the MOC agreement.
Mutual cites Aselco Inc. v. Harford Ins. Group, 28 Kan. App. 2d 839, 21 P.3d 1011 (2001), in support of its argument that the place of performance rule should be applied. In Aselco, the court stated that “[t]he law of the place of performance determines the manner and method as well as the legality of the acts required for performance.” 28 Kan. App. 2d 839, Syl. ¶ 7. As a result, the Aselco court determined that because an insurer’s performance of its duty to defendant would have taken place in Kansas, Kansas law should govern the determination of the existence of the duty.
Kansas follows the Restatement of Conflict of Laws. See Safeco Ins. Co. of America v. Allen, 262 Kan. 811, 822, 941 P.2d 1365 (1997). As a result, Kansas applies the lex loci contractus doctrine and applies the law of the state where the contract is made. A contract is made where the last act necessary for its formation occurs. Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 210, 4 P.3d 1149 (2000).
Although some Kansas conflicts cases have involved issues of performance, few cases have used the place of performance rule to resolve contract choice of law decisions. See Harford Accident & Indem. Co. v. American Red Ball Transit Co., 262 Kan. 570, 574-75, 938 P.2d 1281 (1997) (generally Kansas follows the lex loci rule except when public policy requires otherwise); St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 270, 777 P.2d 1259 (1989); Hefferlin v. Sinsinderfer and others, 2 Kan. 401, 398-99 (1864); Gillespie v. Seymour, 19 Kan. App. 2d 754, 763, 876 P.2d 193, rev. denied 255 Kan. 1001 (1994); American States Ins. Co. v. McCann, 17 Kan. App. 2d 820, 823-24, 845 P.2d 74, rev. denied 252 Kan. 1091 (1993); State Farm Mut. Auto. Ins. Co. v. Baker, 14 Kan. App. 2d 641, 644-45, 797 P.2d 168, rev. denied 247 Kan. 705 (1990); Frasher v. Life Investors Ins. Co. of America, 14 Kan. App. 2d 583, 585, 796 P.2d 1069 (1990); Simms v. Metropolitan Life Ins. Co., 9 Kan. App. 2d 640, 642, 685 P.2d 321 (1984); Walker v. Imperial Casualty & Indemnity Co., 1 Kan. App. 2d 349, 351, 564 P.2d 588, rev. denied 223 Kan. 846 (1977). As a result, we decline to apply the place of performance rule.
In the present case, Mutual included language in the contract above the signature line indicating it wished the contract to be made in Nebraska: “The parties hereto have executed this Contract, but the same shall not be binding upon the Company until approved by an Authorized Representative at the Home Office in Omaha, Nebraska.” Although Novak was recruited, trained, and signed the contract in Kansas, the explicit language of the contract is that Mutual would not be bound or obligated until it was approved in Nebraska. Therefore, the place of contract formation in this case is Nebraska.
Since the issue is the validity of a provision of limitations, the law of the place where the contract is made will govern the obligations of agents to bring an action against Mutual within 1 year of the time the claim arises. Restatement of Conflict of Laws § 346 (1934). Because that place is Nebraska, Nebraska’s substantive law will be applied to determine the validity of the 1-year limitations clause.
Nebraska statutes dictate that an action on a contract or written promise maybe brought within 5 years. Neb. Rev. Stat. § 25-205(1) (2000). A contract provision that alters the statutory limit for bringing an action is against public policy in Nebraska and will not be enforced by Nebraska courts. Dunlop Tire & Rubber Corp. v. Ryan, 171 Neb. 820, 825-26, 108 N.W.2d 84 (1961). As a result, the 1-year limitations provision in the MOC was void.
Mutual argues that Nebraska’s choice of law rules look to the state with the most significant relationship to the case and apply that state’s substantive law. According to Mutual, that state would be Kansas in this case and Kansas would enforce the 1-year limitations provision. Mutual cites Mertz v. Pharmacists Mut. Ins. Co., 261 Neb. 704, 625 N.W.2d 197 (2001), in support of its argument. Nevertheless, Mertz is distinguishable from the present case. In Mertz, the court specifically noted that “[t]he agreement did not contain a choice of law provision.” 261 Neb. at 707. Moreover, the Restatement (Second) of Conflicts of Laws, as quoted in Mertz suggests the “contacts” to be considered “[i]n the absence of an effective choice of law by the parties.” 261 Neb. at 708. (Emphasis added.) Here, the parties expressly agreed that their contract should be construed “in accordance with the laws of the State of Nebraska.” Moreover, Kansas has expressly followed the lex loci rule over the “most significant relationship” test suggested by the Second Restatement. See Safeco, 262 Kan. at 822.
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