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The opinion of the court was delivered by
Parker, C. J.:
Vern Henry Barry was convicted in the county court of Ellis County of the criminal offense, a misdemeanor, of operating a motor vehicle while under the influence of intoxicating liquor, contrary to the provisions of G. S. 1949, 8-530. He appealed to the district court of Ellis County where he was tried by a jury and again found guilty. The appeal is from the judgment of conviction and sentence imposed by the district court following the verdict.
The general facts, regarded as essential to a proper understanding of the case, will be related in accord with our view of their import as briefly as the state of the record permits. Others important to a determination of the particular issues involved, will be referred to in disposing of such issues and stated in like manner.
A complaint charging appellant with the commission of the involved offense was filed in the county court of Ellis County on May 7, 1957, and a warrant directing his arrest was issued on May 8. On the same day he appeared in such court and executed a bond for continuance and/or appearance providing for his appearance in court at the time and place appointed for trial, then and there to answer the complaint. Trial, at which all parties were present and represented by counsel, was had in the county court on June 10 resulting in his conviction and sentence. Appellant then gave notice of appeal and executed an appeal bond for his appearance in district court, which was approved by the judge of the county court and resulted in a stay of his.sentence. Thereafter such judge made return of the proceedings had before him to the district court.
The case came on for trial in district court on February 5, 1958, all parties being present in court and represented by counsel. After a jury had been impaneled and sworn appellant filed what he termed a motion to quash and plea in abatement wherein he attacked certain instruments filed in that court by the judge of the county court and asked that such instruments be ordered stricken, that the action be abated and dismissed, and that he be discharged. This motion was overruled. Thereupon the trial proceeded and, after introduction of evidence by the parties and the giving of instructions by the court, the cause was submitted to the jury which returned a verdict finding appellant guilty of the crime charged in the complaint. Subsequently, and after overruling his motion for a new trial, the court rendered judgment and imposed sentence in accord with the verdict, whereupon he perfected this appeal.
Pointing out that county courts are courts of record (G. S. 1957 Supp., 20-802) and that our constitution (Art. 3, § 1) provides that all such courts shall have a seal to be used in the authentication of process, the appellant contends, that in view of the fact, as must be conceded, the county court failed to affix its seal to the complaint, warrant and. transcript of proceedings filed in the district court, his motion to quash and plea in abatement should have been sustained because under such circumstances the district court had no power or authority to hear and determine the appeal which he had perfected from his conviction and sentence in the county court. As applied to all contentions advanced on this point with respect to the claimed defects in the complaint and warrant the answer is to be found in our decisions. Whatever it may be elsewhere the established rule in this jurisdiction is that defects of the character here involved, however serious, in both complaints and warrants, are waived by a defendant when, without having objected thereto, he gives a bond for appearance in the county court and/or furnishes a bond for appeal to the district court. For some of our decisions supporting this conclusion see State v. White, 76 Kan. 654, 657, 92 Pac. 829; State v. Miller, 87 Kan. 454, 124 Pac. 361; State v. Edwards, 93 Kan. 598, 144 Pac. 1009; State v. Cole, 93 Kan. 819, 821, 150 Pac. 233; State v. Carter, 122 Kan. 524, 253 Pac. 551; State, ex rel., v. Strevey, 138 Kan. 646, 648, 27 P. 2d 253; State v. Toelkes, 139 Kan. 682, 685, 33 P. 2d 317; State v. Grady, 147 Kan. 268, 76 P. 2d 799; State v. Dye, 148 Kan. 421, 429, 83 P. 2d 113; City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397; Hill v. Day, 168 Kan. 604, 215 P. 2d 219. Answers to appellant’s contentions relating to the failure of the county court to affix its seal to the transcript filed in the district court are short and simple. In the first place, we do not regard the return of the proceedings had before the county court to the district court as process and within the meaning of that term as used in Art. 3, § 1 of our constitution. In’ the next, all that the provisions of G. S. 1949, 63-401, applicable by reason of G. S. 1949, 20-808, require is that a judge of the county court certify his return of the proceedings had before him to the district court and the record discloses that was done. In fact in ruling on the motion to quash the court expressly so found.
Another of appellant’s contentions, to the effect the trial court erred in overruling his motion to quash when the warrant showed no return by the sheriff, lacks merit and cannot be upheld when reviewed in the light of the decisions to which we have heretofore referred.
Several grounds of appellant’s motion to quash and plea in abatement, although differently stated, were based upon the premise the county judge, from whose judgment the appeal was taken, had failed to make a return'of the proceedings had before him as required by the provisions of G. S. 1949, 63-401. In overruling these grounds of the motion the trial court, which had all of the files before it and was in far better position than this court to pass upon what they disclosed, had this to say:
“Now, as to whether or not the County Court certified the original complaint, warrant and other original papers from the County Court as shown by the certification in the file, there are two things I wish to point out that the file shows. Until this morning, every paper in the file was stamped filed in the District Court on lune 14, 1957, and these papers are all enclosed in the flat file by means of two perforations at the top of each paper in which the staple of the file is inserted and the papers are held in place. These papers are as follows from top to bottom: The first is a double sheet folded in the middle and headed ‘Transcript — Criminal Action’ and contains on the face thereof the certification signed by the county judge, dated lune 11, 1957, and this certification is quoted as follows: 1, the undersigned, fudge of the County Court of Ellis County, Kansas, hereby certify that the within is a full, true and complete transcript of the proceedings in the above action, had by. and before the Court at its office in said County, as the same appears of record on my Docket 8, page 282. Witness my hand and seal of said Court, at Hays, in said County, this 11th day of June, 1957. Robert F. Glassman, Judge of the County Court.’ Now, following the first paper, folded paper, on the face of the transcript, and the certificate, are clasped in the file as above stated the following papers, which apparently are original papers from the County Court, all stamped in the District Court filed June 14, 1957, namely: Complaint, General Form, in the County Court of Ellis County, Kansas, et cetera, signed Wendell Wyatt, and sworn to before the probate judge; the next paper is headed ‘Warrant’ and signed by the Probate Judge; the next paper is entitled ‘Journal Entry’, signed by the probate judge, submitted by and signed by Simon Roth, County Attorney, and approved and signed by Norbert Dreiling, attorney for the defendant; the next paper is entitled ‘Notice of Appeal,’ signed by the defendant, and the acknowledgment of service is signed by the County Attorney; the next paper is entitled ‘Recognizance for Continuance,’ signed by the defendant and Ben F. Dreiling, approved and signed by the Probate Judge; the next paper is entitled ‘Recognizance of appeal’ signed by Ben F. Dreiling and also signed by the defendant, approved and signed by the Probate Judge. These papers are all stamped filed in the District Court on June 14, 1957, and apparently are included in the certification by the county judge within those terms set out in the certification. . . . The court also finds that no showing whatever has been made that any of these papers which purport to be originals are not originals. The court considers them to be just what they purport to be, namely, papers properly certified and transferred by the County Court to the District Court, and filed all at one time in connection with that certification in the District Court.”
Verbatim quotation of the foregoing statement has been necessary because of disagreement between the parties as to the condition of, and what was included in, the transcript as and when certified to the district court. Without further comment it can be said we have examined the record and are impelled to agree with, and for that reason adopt, the conclusions reached by the trial court respecting such matters.
It would add nothing to our reports, and it is neither necessary nor required, that we here detail or labor contentions advanced by the appellant regarding the sufficiency of the transcript. .
Noting that we have previously determined failure to affix the county court’s seal to the transcript did not make that instrument invalid or deprive the district court of power and authority to hear and determine the appeal from that tribunal, it can now be stated we are convinced that all decisive questions raised by appellant in contentions respecting the sufficiency of such transcript have been determined by this court in State v. Belisle, 164 Kan. 171, 188 P. 2d 642, where, under conditions and circumstances so similar as to make the decision in that case a controlling precedent, it is held:
“When a defendant appeals to the district court pursuant to G. 'S. 1945 Supp., 6S-401, from a conviction in a lower court, it is not essential that a separate certificate of the court be placed on the complaint and each of the instruments designated in the statute.
“The general certificate in the present case was sufficient for the purpose of showing that the defendant was being tried in the district court upon the original complaint filed against him in the lower court.” (Syl. ff 1 and 2.)
Final claims of error regarded as of sufficient importance to warrant consideration and attention will now be noted.
During the course of the trial it developed that appellant had neither been offered, given nor refused any of the chemical tests authorized by the provisions of G. S. 1957 Supp., 8-1001, which, so far as here pertinent, read:
“Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood whenever he shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to his arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer. . .
At the close of the trial appellant requested and was refused an instruction the general import of which, according to arguments here advanced, was intended to advise the jury that under the provisions of Chapters 61 and 279, Laws of 1955, relating to the same subject, now G. S. 1957 Supp., 8-1001 to 8-1007, inch, a defendant charged with driving a motor vehicle within the state while under the influence of intoxicating liquor, as prohibited by G. S. 1949, 8-530, could not be convicted of that offense unless the evidence of the state disclosed that he had been offered, given or refused all of the chemical tests heretofore set forth in 8-1001. In any event it is here contended the provisions of the section of the statute above quoted must be construed as mandatory and require the arresting officer, in all cases where an arrest is made for driving while under the influence of intoxicating liquor, to see that the accused is offered and.given chemical tests of the types described therein, unless he refused to submit thereto. Then, based upon this construction of 8-1001 to 8-1007, inch, appellant argues that, since the state’s evidence disclosed he had not been offered, given or refused such tests, the trial court, on that account, not only erred in refusing to give his requested instruction but also erred in denying his motion to dismiss the action and discharge him from custody.
One of the purposes of the legislature in enacting Chapters 61 and 279, Laws of 1955 (now G. S. 1957 Supp., 8-1001 to 8-1007, inch) was to augment existing methods of establishing intoxication in criminal prosecutions for driving motor vehicles while under the influence of intoxicating liquors. Support of this conclusion is to be found in 8-1007 providing Ch. 279, L. 1955 shall be construed as supplemental to existing legislation. As recently as City of Garden City v. Miller, 181 Kan. 360, 311 P. 2d 306, at page 365 of the opinion in that case, this court said that 8-1001 to 8-1007, inch, were enacted in 1955 to assist law enforcement officials in determining whether persons apprehended for driving motor vehicles while under the influence of intoxicating liquor were, in fact, in that condition at the time of their apprehension.
We find nothing in the foregoing enactments to evidence legislative intent requiring that the chemical tests therein authorized must be offered, given or refused in every case where an arresting officer apprehends the driver of a motor vehicle on a charge of operating that vehicle while under the influence of intoxicating liquor. Moreover when they are reviewed in their entirety, and examined in the light of the purposes for which they were enacted, along with matters of common knowledge of which we take judicial notice, we are convinced their terms are not to be construed as contemplating or requiring that provisions thereof, authorizing the giving of chemical tests, be regarded as mandatory or that the giving of such tests, absent refusal to submit thereto, is prerequisite to a prosecution for, and valid conviction of, the offense of driving a motor vehicle while under the influence of intoxicating liquor, contrary to the provisions of 8-530, supra. With such enactments construed as just indicated appellant’s claims of error in refusing his requested instruction and in denying his motion to dismiss the action and discharge him from custody lack merit and cannot be upheld.
We find nothing in other contentions advanced, all of which have been carefully considered, to warrant or permit a conclusioñ the trial court committed any reversible error in the trial of this case. Therefore its judgment must be and is hereby affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
These consolidated appeals are by coexecutors and the sureties on their bond from orders overruling their demurrers to petitions in actions brought against them for recovery of money. The question is the same in each case, and our decision applies to each of the appeals.
The facts are simple.
On a date not given, Michael Baumann, a resident of Smith County, died testate. He was survived by four sons — George, Philip, Ralph and Karl, and four daughters — Ann, Pearl, Clara and Edna. Ralph and Edna were named as executors of the will, and letters testamentary were issued to them on January 3, 1955. They gave bond in the amount of $17,500 with the other two defendant-appellants, Meierhoff and Panter, as sureties therein.
The testator owned real estate, cash and other personal property. His will contained specific devises of the real estate to the four sons, and further provides:
“It is further provided that all of the above described real estate shall be appraised by three disinterested men, to be appointed by the Probate Court admitting this will to probate, and the price agreed upon by them shall for the purposes of this will be final.
“In order to equalize the gifts to each of my children, I require that should any of the land herein given to my sons above set out, be of greater value than the total divided by four, then that son receiving such greater amount shall be required to pay the executors hereof an amount sufficient to make the gifts equal. In case any of the gifts above made shall be less than one fourth of the total appraised value, then that son receiving real estate of such lesser value shall receive the difference in cash.
“Third: To each of my daughters, Anna Bell Norton, Pearl Thelma Smith, Clara Mae Marran and Edna Margurette Panter, I give an amount in cash equal to one fourth of the appraised value of all my real estate hereinbefore described. In case there should not be sufficient cash in my said estate to pay this cash amount as set out in this paragraph, then I direct that my sons receiving real estate shall pay enough cash into the hands of my executors to insure that each of my said daughters shall receive an equal share in value with my said sons.”
The estate was fully administered, except as hereafter mentioned, and final settlement was made on June 16, 1956. It discloses that George and Karl each received real estate in excess of the value to which, under the “pattern” of the will, each was entitled, and the journal entry of final settlement recites that George and Karl owe the executors the sums of $4,869.85 and $3,939.07, respectively, and that upon payment by them of such sums to the executors the real estate devised to them is to be assigned to them in accordance with the terms of the will, and that after the payments by George and Karl to the executors they, the executors, are to distribute certain sums in cash (the amounts of which are not in dispute) to the six other brothers and sisters, to the end that in the final “wind-up” of the estate each of the eight children is to share equally. The journal entry of final settlement further provides that upon the executors filing receipts showing the foregoing distribution they are to be finally discharged.
It developed, however, that George and Karl did not pay over the respective amounts owed by them to the executors. (We are told in the briefs that payment still has not been made.) In August and October, 1956, Philip, Pearl and Clara filed separate actions in the district court against the executors and the sureties on their bond to recover the respective amounts due them under the final settlement. The gist of each petition is that by the terms and provisions of the order of final settlement in the probate court the executors were charged with the duty of collecting and paying over to plaintiff his or her distributive share in a stated amount; that the executors have wholly failed and refused to carry out the mandate of the order of final settlement; have failed and refused to pay to plaintiff the amount of his or her distributive share; that the executors have failed to faithfully discharge the duties of their trust, and that by reason thereof the condition of their bond has been breached, and the prayer seeks recovery in a stated amount.
Defendant executors and their sureties demurred to each petition on the ground the district court had no jurisdiction of defendants or the subject of the action, and that the petitions do not state facts sufficient to constitute a cause of action in that the actions are prematurely brought.
Each demurrer was overruled, and the executors and their sureties have appealed.
In support of the trial court’s rulings, plaintiffs contend that by the terms of the final settlement decree the executors are charged with the duty of collecting the amounts due from George and Karl and paying over to plaintiffs the specific amounts due them, and, having failed to do so, they, the executors, and their sureties, are liable.
Defendants, on the other hand, contend that by the terms' of the final settlement decree the executors are not charged with any duty to collect the sums due from George and Karl, and that the extent of their duty and obligation is merely to pay the specified sums to the other six children upon receipt of payment from George and Karl, and that inasmuch as the petitions fail to allege that they have received the payments from George and Karl, no cause of action is stated.
Thus a very practical question is presented in this litigation among brothers and sisters over their father’s estate. It really narrows down to the proposition as to just what were the rights, duties and obliga tions of all parties concerned, in view of the facts and circumstances disclosed.
The provisions of the will and of the order of final settlement are not in dispute. Furthermore, no appeal having been taken from the order of final settlement, it became final. (In re Estate of Burling, 179 Kan. 687, 298 P. 2d 290; In re Estate of Johnson, 180 Kan. 740, 308 P. 2d 100.) The quoted portion of the will, above, as applied to George and Karl, says that they shall be required to make payment to the executors. The order of final settlement provides that upon the payment being made by George and Karl the real estate devised to them shall be assigned to them in accordance with the provisions of the will. It further provides that after the payment by George and Karl to the executors, they, the executors, are to pay over specified sums to the other brothers and sisters, including the plaintiffs. Finally, it is provided that upon the executors filing receipts showing the foregoing distribution they are to be finally discharged. Neither the will nor the order of final settlement directs the executors to “move forward” and collect from George and Karl. Inferentially, at least, George and Karl are “ordered” to make the payments to the executors, and, following receipt of which, the executors are directed to make distribution.
The situation is somewhat different than though the executors had failed and neglected in their duty to collect property owed to the estate. No one would deny their liability and that of their sureties for such failure — but that is not this case. The estate is still open, the executors have not been discharged and are still subject to the jurisdiction of the probate court. (G. S. 1949, 59-301.) The facts of the Burling case, above, relied on by plaintiffs, clearly distinguish it from the matter before us. Under the facts as they existed, we believe the proper procedure was for plaintiffs to have made application to the probate court for an order directing the executors to take appropriate action for the collection of the amounts owed by George and Karl.
On the record presented, we are of the opinion the demurrers to the petitions should have been sustained. The judgment in each case is therefore reversed.
Robb, J., dissents. | [
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The opinion of the court was delivered by
Schroedek, J.:
This is an action in ejectment tried to the court upon waiver of a jury by both parties. From a decision and judgment adverse to the plaintiff appeal has been properly perfected to this court presenting the questions hereafter discussed.
The controlling question presented is whether a deed conveying the South Half of a long quarter section of land, previously divided by a conveyance of the North 80 acres precisely, conveys all the remaining tract in the hands of the grantors or only a quantitative one-half mathematically.
With a few exceptions, which will be noted, the facts pertinent to the issue in this case are uncontradicted and have been established either by stipulation of the parties or testimony.
Prior to March 3, 1902, James McKenna and Matilda J. McKenna, his wife, were the owners of all of the Southeast Quarter of Section 31, Township 29, Range 4 West of the Sixth Principal Meridian in Sedgwick County, Kansas. They also owned other real property in the same township. The quarter section of land described was a “long” quarter containing 163.69835 acres.
On March 3, 1902, the McKennas deeded to John E. Schammer-hom, appellee’s predecessor in title, the North 80 acres “precisely” of the above described “long” quarter section of land. On July 30, 1908, James McKenna applied to the county surveyor of Sedgwick County to make a survey and establish the corners of the North 80 acres of said quarter section of land. This survey was made pursuant to statute upon notice to all parties concerned and duly made a part of the Surveyor’s Permanent Record in the office of the County Surveyor of Sedgwick County. This survey correctly established the corners of the North Eighty and it contained precisely 80 acres. Cornerstones were set to mark the established corners.
On February 6, 1913, the McKennas gave a deed to D. F. Rowan, father of the appellant, Eva Brewer, conveying the South Half of the Southeast Quarter of Section 31 (the same being part of the quarter section above described) and the South Half of the Southwest Quarter of Section 32 (also owned by the McKennas and adjoining east of the foregoing tract in Section 31, but not involved in this case), “containing 160 acres, more or less.” ,
The question at this point is whether the deed to Rowan in 1913 conveyed all of the 83.69835 acres which remained in the long quarter section heretofore described and owned by the McKennas. The land in dispute in this lawsuit is a strip 27.8 feet wide by one-half mile long containing 1.849175 acres which lies immediately south of and adjacent to the south line of the North 80 acres established by the survey of 1908.
Appellee contends that the deed in 1913, whereby the McKennas deeded the South Half of the Southeast Quarter of Section 31 to D. F. Rowan, conveyed only the South Half of the long quarter quantitatively. In other words, it is asserted that D. F. Rowan received only 81.849175 acres by the conveyance.
Several cases have been before this court on the point in question.. The Kansas law was first announced in Gunn v. Brower, 81 Kan. 242, 105 Pac. 702: •
“• . . Where there is nothing to suggest the contrary the word “half,’ in connection with the conveyance of a part of a tract of land, is interpreted as meaning half in quantity. (Owen v. Henderson, 16 Wash. 39; Cogan v. Cook, 22 Minn. 137, 142; Hartford Mining Co. v. Cambria Mining Co., 80 Mich. 491; Jones v. Pashby, 62 Mich. 614.) But where a tract has previously been in some manner divided into two parts of approximately equal size the usual presumption is that one of these parts is referred to.
“ ‘The words “east half” and “west half” in a deed, while naturally importing an equal division, may lose that effect when it appears that at the- time some fixed line or known boundary or monument divides the premises somewhere near the center, so that the expression more properly refers to one of such parts than to a mathematical division which never has been made. The expression in the deed is controlled by the situation existing upon the premises themselves, and the manner of their use, and the monuments and boundaries existing,’ (People v. Hall, 88 N. Y. Supp. 276, 279.)” (pp. 243, 244.)
The foregoing case was quoted with approval in Hoyne v. Schneider, 138 Kan. 545, 27 P. 2d 558, which quoted in addition thereto 4 Thompson on Real Property, § 3153, as follows:
“ ‘. . . The term “eastern one-half,” in a deed conveying one-half of a tract of land, in the absence of admissible parol evidence disclosing a different intention, would mean the eastern half, formed by a line to be run due north and south through the tract; but if it appears that before the deed was executed a division into two parts, supposedly equal in area, had been made by a line, having a different bearing actually marked on the ground by stakes and fences, according to which possession had been held for a number of years, and the parties have since held possession according to such line, the words,must be taken to mean the eastern one-half as so laid off and held in severalty.’” (p. 551.)
The Hoyne case also quoted from 18 C. J., Deeds, § 269, which now appears with minor changes as 26 C. J. S., § 104f, p. 901, as follows:
“Ordinarily a conveyance of half of a tract of land will be construed as a conveyance of a half in quantity, and a like rule has been recognized where other fractional units are referred to; but there is no universal rule that a conveyance shall be so interpreted; and, where the intent of the parties to ■employ the term ‘half’ as describing a particular tract other than a half in ■quantity is apparent from the context or surrounding facts and circumstances, it will be given such meaning. So, where a tract has previously been in some manner divided into two parts of approximately equal size, the usual presumption is that one of these parts is referred to. Where the description of a parcel forming part of a larger tract is otherwise sufficient, an inaccuracy in the statement of the proportion between the area of the parcel and that of the entire tract does not affect the title conveyed.”
Gunn v. Brower, supra, was quoted in McHenry v. Pence, 168 Kan. 346, 212 P. 2d 225, but upon application of the rule it was determined by the court that there were no circumstances to indicate that a quantitative one-half was not intended.
Other facts in evidence before the trial court, not heretofore jelated, disclose the situation existing upon the premises themselves, the manner of their use, and clarify the existence of monuments and boundaries. After the original conveyance in 1902 by the McKennas to John E. Schammerhorn of the North 80 acres “precisely,” a fence was built dividing these two properties. This original fence remained in place until about 1915 when it was taken out because the grass immediately north of this dividing line had been plowed and the fence was no longer needed to graze livestock on the pasture. This fence dividing the “long” quarter section in question into two parts coincided with the survey of 1908. When the fence was removed the large hedge posts on the corner at both the east and west ends of the fence were permitted to stand to mark the dividing line.
At the time the McKennas conveyed the South Half of the Southeast Quarter of Section 31 in question to D. F. Rowan in 1913, possession of the entire remaining tract containing 83.698S5 acres, was delivered hy the grantors to Rowan. In fact, the evidence is clear and uncontradicted that possession of this entire tract consisting of 83 plus acres was in D. F. Rowan and his successors in title, who farmed it without challenge until December, 1953.
In December, 1953, Alvin Martin, appellee’s tenant, complained that the Brewers had drilled wheat beyond the dividing line (established by the 1908 survey) and at the west end destroyed young alfalfa which was just coming up. Howard Brewer, husband of the appellant, in viewing the premises at that time with the appellee, admitted that his hired man had gotten beyond the line in turning the tractor and destroyed appellee’s young alfalfa as disclosed. At this particular time upon viewing the premises the hedge post at the east end of this dividing line was still standing.
Appellee’s tenant testified as follows:
“In my opinion, the alfalfa was planted down to a point of about four feet south of where the stake is now. It was down to where the old corner post stood over the years as near as I could put it. I tried to farm from the north down to the line that was marked with that corner post. I objected when I thought the Brewers were farming to the north across that. When they crossed over the line, it killed the alfalfa.
“The line separating the Schammerhorns from the Brewers land has always been at approximately the same point where that old comer post marked it.”
Subsequent to this original dispute in 1953 the appellee procured a private survey which divided this long quarter into two equal parts, following which the appellee in 1954 constructed a fence along this new survey line which was 27.8 feet south of the 1908' survey line. This resulted in appellant’s suit for ejectment.
The trial court’s finding No. 9 reads:
“Plaintiff’s and her predecessors’ farming operations did not extend to any definite line but varied from year to year.”
This finding is not supported by the evidence. Numerous witnesses testified concerning the boundary line recognized through the years in farming these two tracts of land. As a result of farming operations a ridge had been built up along the boundary line which was marked by the two corner posts where the old fence had originally been established. In fact, the only evidence to indicate that either of the parties had ever farmed across this line was the complaint in 1953 by the tenant of the appellee. This, it must be noted, is not the line in controversy. The line in dispute is located 27.8 feet south of the line which the old 1908 survey established.
This fact is admitted by the testimony of James E. Schammerhorn, appellee. He stated on cross examination:
“A few days after Christmas of 1953, I went to the Brewer home and told Mr. Brewer that my tenant had complained that Brewer had farmed over on my land and had drilled out some of the alfalfa. Mr. Brewer went out there with me. At that time when Mr. Brewer and I went out there, the south edge of my alfalfa was 20 or 30 feet north of where my fence is now.
“When I went out there with Mr. Brewer that day in December of 1953 my only complaint to him was that whoever had been running the farm machinery for the Brewers had gotten over on my alfalfa. At that time I made no complaint to him that he was farming land that belonged to me.” (Emphasis added.)
While it is true several witnesses testified that the line to which farming operations were conducted on these two properties varied a little bit as a result of driving the farm machinery, they did make an effort to follow the ridge as closely as possible. This slight variation in farming up to the line, indicated by the hedge posts at each end, is immaterial insofar as the issue in this lawsuit is concerned.
Construing the deed of 1913 whereby the McKennas conveyed to D. F. Rowan the South Half of the Southeast Quarter of Section 31, here involved, and the South Half of the Southwest Quarter of Section 32, “containing 160 acres, more or less ” with reference to the situation existing upon the premises themselves, the manner of their use, and the monuments and boundaries — all having been •established by admissible evidence (Mayberry v. Beck, 71 Kan. 609, 81 Pac. 191, 68 A. L. R. 6, 68 A. L. R. 88; and see Kansas cases accumulated in Swaller v. Milling Co., 116 Kan. 329, 333, 334, 226 Pac. 1001)—we think it clear the parties to the deed intended that it convey the entire 83.69835 acres. This conclusion is fortified by several rules of law assisting such construction of the deed in addition to the rules heretofore stated.
In general, the intention of the parties as duly ascertained will determine the question as to the quantity of land conveyed by a deed. So, where an intent to convey the entire interest of the grantor is clear from the whole deed, the instrument should be so construed as to effectuate such intent. Again in such cases the rules apply that, where the description is of doubtful character, the instrument shall be construed against the grantor and in favor of the grantee. There is a presumption that a grantor .intends to convey his entire interest, and a deed will be taken to convey the entire property and interest of the grantor in the premises unless something appears to limit it to a lesser interest.
Where the description of the land in a deed is uncertain or ambiguous as to the quantity conveyed, which is latent in character as here, it is proper for courts to r'esort to parol evidence, not to contradict the instrument but to explain the ambiguity or uncertainty, in order to show the situation and condition existing upon the property conveyed, the circumstances under which the conveyance was made and the practical construction put upon the conveyance by the parties for the purpose of ascertaining their intention. This inquiry should be confined to the time of the execution of the deed without reference to subsequent circumstances. (Mayberry v. Beck, supra, and see cases accumulated in Smaller v. Milling Co., supra.) Thus, where a vendor places his purchaser in possession of land, as here, under a certain description in the deed, the vendor cannot afterward avail himself of any ambiguity in the conveyance, their contemporaneous construction fixing the intention of the parties.
The words “more or less” when used in a deed with reference to the description of the property are to be construed with reference to the particular circumstances involved. Generally they relieve a stated distance or quantity of the attribute of exactness. Further, such words generally indicate a sale in gross, unless the words are qualified or defined. Such words negative the idea of exact knowledge and import that the actual quantity is a mere approximation to that named, but allow for a reasonable excess or deficiency. (See Armstrong v. Brownfield, 32 Kan. 116, 4 Pac. 185; Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589; Martin v. Ott, 114 Kan. 419, 219 Pac. 275; 1 A. L. R. 2d, § 30, p. 89; 26 C. J. S., Deeds, § 102b, p. 892; 91 C. J. S., Vendor & Purchaser, § 93c, pp. 978, 979, and cases cited therein.)
It may be asserted in view of the foregoing statements that the vendors of appellant’s predecessor in title are not asserting a claim against the appellant. In this respect it must be disclosed the trial court admitted evidence, over objection by counsel for the appellant on the ground of materiality, that the McKenna heirs caused an inventory to be filed in the estate of Matilda McKenna, who died on the 23rd day of December, 1923, listing one acre of ground described as the “South one acre of the North M of Section 31” as the property of Matilda McKenna. Evidence was similarly admitted over objection that the McKenna heirs filed an inventory in the estate of James A. McKenna, who died on the 27th day of July, 1946, listing one acre of ground as was previously done in Matilda’s estate. Tax rolls were admitted into evidence showing that the heirs of Matilda McKenna paid taxes on the one acre inventoried for the years 1936, 1937 and 1938. There was testimony that they had paid taxes on this particular acre until the time this suit was filed. On October 22, 1954, certain McKenna heirs conveyed all their title and interest in said one-acre tract to the defendant, James E. Schammerhorn, by quitclaim deed describing said tract in said deed as the “South one acre in the North half of the South East Quarter of Section 31-29-4W.” (The case at bar was filed by the plaintiff on September 8, 1954, in the district court of Sedgwick County, Kansas.)
The admission of the foregoing evidence was erroneous since it was immaterial in the case. It had no bearing on the issue which concerned the intention of the parties to the deed in 1913 when the property was conveyed. The appellant and her predecessors in title were placed in possession of the strip of land in question and farmed it from the date of the original conveyance by the McKennas in 1913 until 1954, when the appellee constructed a fence dividing the “long” quarter section into two equal halves quantitatively. The record does not disclose that rent or crop shares were ever paid or to be paid for farming this strip of land.
It is apparent the trial court ruled this case on the theory of adverse possession, which is one of the theories of title asserted by the appellant in the trial of her case. In making its decision against the appellant the trial court found (Finding No. 7) as follows:
“There is no evidence that any of the plaintiff’s predecessors in interest, or plaintiff herself, ever intended to claim property not covered by their respective conveyances or that they claimed title by adverse possession.”
The legal significance of the facts established by the uncontro-verted material evidence relating to the intention of the parties as to the quantity of land conveyed by the deed on February 6, 1913, makes this finding of the trial court relative to adverse possession immaterial as surplusage.
Heretofore the recital of facts has not indicated the manner in which Eva Brewer, appellant, procured title to the property in question, except to indicate that the original grantee in 1913, D. F. Rowan, was her father. In the year 1935 the Prudential Insurance Company of America foreclosed its mortgage against the property owned by D. F. Rowan. As a result of the foreclosure a sheriff’s deed was executed conveying the interest of D. F. Rowan and E. J. Rowan, his wife, in “The South Half of the Southeast Quarter of Section Thirty-one (31), Township Twenty-nine (29) South, Range Four (4) West of the Sixth Principal Meridian, except railroad right-of-way, in Sedgwick County, Kansas” to the Prudential Insurance Company of America on the 3rd day of May, 1937. Shortly thereafter on the 16th day of July, 1937, Prudential conveyed this property described as set forth in the sheriff’s deed to Eva Brewer. After giving the description of the property in the deed the following recital was made:
. “Being The same premises conveyed to The Prudential Insurance Company of America by deed dated May 3, 1937, and recorded in book 484, page 75.”
A judicial sale of land made in pursuance of a decree of foreclosure, wherein all of the parties to the action were barred from claiming any rights or equities in the property, vests in the purchaser as good and perfect an estate in the premises therein mentioned as was vested in the person or persons against whom the foreclosure order was issued at or after the time when such lands or tenements became fiable to the satisfaction of the judgment for which the same was sold. (G. S. 1949, 60-3465; Smith v. Harris, 181 Kan. 237, 311 P. 2d 325; and cases and authorities cited therein.)
It is clear that Prudential as a result of the sheriff’s deed acquired title to the entire 83.69835 acres owned by D. F. Rowan and his wife, and that the subsequent conveyance of Prudential to the appellant, reciting that it specifically conveyed the same premises conveyed to it, passed to the appellant full title to the 83.69835 acres.
Appellee relies upon the proposition of law that in an ejectment action, the plaintiff must rely on the strength of her own title, and not on the weakness of her adversary’s title. (Manville v. Gronniger, 182 Kan. 572, 322 P. 2d 789; McHenry v. Pence, supra; and Intfen v. Hutson, 145 Kan. 389, 65 P. 2d 576.) This proposition of law is correct but it has no application here. The source of appellant’s title was shown to have come directly from the McKennas by deed in 1913. The mere fact that the McKennas, appellant’s predecessors in title, originally owned the entire ‘long” quarter section of land, and that the respective titles of both the appellee and the appellant stemmed from these common grantors, does not convert appellant’s proof into an assertion of the weakness of appellee’s title, although incidentally proof of appellant’s title also disclosed the weakness of appellee’s claim to title.
Having concluded that appellant’s predecessor in title, D. F. Rowan, obtained title by conveyance under a deed in 1913 to all of the remaining tract in the “long” quarter section of land in controversy, after the grantors had previously conveyed the North 80 acres “precisely” to appellee’s predecessors in title in 1902, and that appellant succeeded in chain of title to all the property owned by D. F. Rowan, her predecessor in title, it follows that the judgment of the trial court should be and hereby is reversed with directions to enter judgment for the appellant. | [
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The opinion of the court was delivered by
Price, J.:
This was an action for wrongful death by electrocution.
The trial court held that plaintiff’s evidence established that decedent had assumed the risk of the employment and was guilty of contributory negligence as a matter of law, and sustained defendant’s demurrer thereto.
Plaintiff has appealed, and the sole question involved is the correctness of that ruling.
The decedent, Loraine Eugene Sullivan (hereafter referred to as Gene), was employed as a general farm hand by defendant Davidson, a farmer of Cherokee county. On July 29, 1955, while loading some aluminum pipes on a wagon in connection with defendant’s irrigation operations, Gene was electrocuted when one of the pipes being handled by him came in contact with an overhead electric power line. This action was brought by his father as administrator of his estate.
The petition, after narrating the factual background of the matter, all of which will be referred to in our discussion of plaintiff’s evidence, alleged that Gene’s death was the direct and proximate result of the negligence and carelessness of defendant in that defendant negligently and carelessly:
“(a) Failed and neglected to furnish his employee with a reasonably safe place in which to perform his duties in his employment by defendant;
“(b) Failed and neglected to advise and warn his employee, Loraine Eugene Sullivan, of the danger of placing and handling said aluminum pipe in an upright position beneath or near to said high-voltage electric transmission wires, notwithstanding defendant’s superior knowledge of such danger;
“(c) Drove, operated and stopped said tractor and farm wagon in a loading position directly beneath said high-voltage electric transmission wires, notwithstanding defendant’s knowledge of the danger of so doing to the employee of the defendant, Loraine Eugene Sullivan;
“(d) Directed Iris deceased employee to reverse ends of the lengths of pipe by placing and handling the same in an upright position;
“(e) Failed to remain at the place of work of said employee and direct the work being performed, notwithstanding the hazard and danger involved in the performance of said work, without direction and supervision;
“(f) Failed to remain at the place of work of said employee and assist in the work then and there being performed, notwithstanding the hazard and danger in the performance of said work 'by the deceased employee, Loraine Eugene Sullivan, without assistance.”
Defendant’s demurrer to the petition being overruled, an answer was filed which, among other things, denied allegations of defendant’s negligence and alleged that Gene had assumed the risk of his employment, and that his death was proximately caused and contributed to by his own negligence and disregard for his own safety, thus barring recovery.
Plaintiff’s reply denied allegations of the answer relating to assumption of risk and contributory negligence, and upon the issues thus joined the parties proceeded to trial before a jury.
Due to the nature of the case and the question presented, we summarize the evidence in detail.
The manager of SEKan Electric Cooperative Association testified the company maintained high-voltage electric transmission lines in Cherokee county, and at the scene of Gene’s death, which was about six miles northeast of Columbus. The high-voltage line in question was completed in May, 1955, to serve an irrigation well on defendant’s farm. The first pole west of the driveway into the field in question was a thirty-five-foot pole, and the first pole east of the driveway was a thirty-foot pole, with a span between them of 300 feet. In that length of span there would be a sag in the wires. The “hot” wires carried 7,200 volts from the phase wire to the ground. The overhang clearance at the point in the driveway from the ground to the neutral wire was approximately nineteen feet, and the clearance in the driveway from the ground to the “hot” wires was twenty-one feet eight inches. Roads in the rural district required eighteen-foot clearance, and there were no obstructions' of the transmission line at the point where the roadway went into the field.
The lineman for the electric company went to the scene in question shortly after Gene’s death, and he observed a length of aluminum pipe approximately thirty feet long and three inches in diameter upon which there were markings- “significant” to an electrician. These markings were a black smudge indicating a short circuit to the ground. A small arc indicated to him that the electricity flowed through the pipe from that point to the ground. When high voltage goes to the ground it causes an arc. The smudge was close to the end of the pipe. In his judgment, the arc from the hot wire to the pipe was not over a quarter of an inch and the pipe had to come within that distance, or even closer, in order to make an arc. If the pipe had touched the hot wire the effect would be practically the same. There was corn growing in the field but none was under the electric line.
The coroner and a physician testified that the cause of death was electrocution.
Gene’s mother testified that he was twenty-eight years of age at the time of his death; that he was one of ten children; was about six feet three inches tall; weighed about 160 pounds; was in good health; that he had completed eighth-grade education; was of good intelligence; that he had been engaged in farm work practically all of his life except for fifteen months when he was in the military service in World War II from which he was discharged as a sergeant, and that he had worked for defendant Davidson about eight years.
Gene’s father, the plaintiff, testified that Gene had gone through the eighth grade in school; had helped him on the farm for a few years; went into military service in 1945, and upon his return became employed by defendant in general farm work; and that he had never married and had not worked at any trade or occupation other than as a farm laborer except for a period of a week or two when he worked on a pipeline in Oklahoma. He described Gene as weighing about 180 pounds and as being strong and robust. He went to the scene in question and noticed the section of aluminum pipe lying a short distance west of the entrance into the field and not over four feet from the wagon, which was a four-wheeled trailer or farm wagon with a flat bed, and which was parked about directly under the electric transmission lines. He later discussed the tragedy with defendant and quoted defendant as saying that he and Gene were taking up the pipe from the irrigation line and were taking it up to the wagon to be loaded; that they were placing it on the wagon so a certain end would be to the front so that when they assembled the pipe again it would be in the right place; that if it was not right when they carried it to the wagon they would “upend” it and turn it over and place it on the wagon with the correct end forward. He further quoted defendant as saying that he (defendant) had driven the wagon to the location in question and had parked it under the transmission lines; that while he and Gene were working with the pipe he (defendant) left for a few moments in order to help a neighbor who was having car trouble, and that when he returned to the scene Gene was lying on the ground dead. This witness further testified that Gene had driven tractors, including the one owned by defendant which pulled the wagon in question, and that when he went to the scene of death he noticed corn growing in the field but that in the entrance from the road into the field it was clear and there was nothing to obstruct his view in seeing the electric: wires overhead.
Defendant Davidson was called as a witness on behalf of plaintiff and testified as to matters in issue. At the conclusion thereof, and plaintiff having rested his case, defendant demurred. The court indicated it felt the demurrer should be sustained, but granted plaintiff’s request for leave to reopen for further proof by recalling defendant as plaintiff’s witness for further testimony. The substance of defendant’s testimony as plaintiff’s witness was as follows:
Gene had been in his employ as a general farm laborer for about eight years and the two of them had been engaged for two or three years in irrigating a part of the farm land. In so doing a five or six-inch main line would be run into the center of a field and from this line they used three-inch aluminum pipes laterally. Each day it was necessary to move the pipes and ordinarily took about six days to do an entire field. Formerly, twenty-foot lengths of lateral pipe were used, but about a week prior to the date of Gene’s death they had commenced using thirty-foot lengths. Each of these weighed about twenty pounds. In moving the lateral lines from one position to another the pipes were disassembled and they moved them either by putting them on the wagon or by carrying them over their shoulders. In loading the pipes on the wagon the usual practice was to place them so that the coupling ends were at the front of the wagon which made them more uniform to handle when unloading and recoupling. It sometimes happened that a pipe was placed on the wagon wrong-end-to, which necessitated it being reversed. Normally this was done by carrying the pipe into the clear and turning it around. On occasions, however, the position of the pipe on the wagon was reversed by “upending” it.
On the day in question defendant and- Gene were engaged in moving thirty-foot lengths of pipe from one field to another. The wagon was pulled by a tractor driven by defendant. He turned in off the road on the driveway into the field and stopped inside the fence and parallel thereto at a spot directly under the transmission lines. Gene had ridden on the drawbar of the tractor right behind the seat. No one else was helping them, and, as each was familiar with the work being done, and there being nothing new or unusual about it there was no particular conversation between them concerning their work or how it was to be done. There was a clearing at the spot where the tractor and wagon were parked. Both were familiar with the field, had worked there before, and were aware of the electric transmission line, but apparently neither noticed that it was directly overhead and nothing was said about it. There was nothing to obstruct their view of it, however. Gene was fully familiar with his work and how it was to be done, and was given no instructions or directions by defendant. Earlier that morning defendant had seen Gene upending thirty-foot lengths of pipe in reversing their position but had said nothing about it. Had defendant not pulled into the field with the tractor and wagon he would have blocked the road or else would have been forced to drive on down the road a distance of about 200 feet, which would have necessitated the pipe being carried that distance. Shortly before noon on the bright sunny day in question, defendant left the spot where the pipe was to be loaded in order to assist a. neighbor in starting his car. Gene proceeded about his work to get the pipe and load it, and when defendant returned in about ten minutes he found Gene lying on the ground dead, the victim of electrocution.
At the close of all of plaintiff’s evidence defendant again interposed his demurrer. In sustaining It the trial court stated as follows:
“These cases, of course, are primarily cases which rest upon their own facts. In the case cited it is pointed out specifically that the plaintiff had been told that the shaft was uncovered but that he had no knowledge the revolving shift would hurt him as it did. In this case also they point out another decision where a farm hand used kerosene on a burning torch and an explosion occurred and they point out the demur was sustained there and that the Court noted it was a matter of common knowledge that kerosene was highly combustible, and so on. It seems to me whether you call it contributory negligence or assumption of risk in this case that everything complained of was perfectly open and obvious and the testimony clearly shows that that pipe had to come in virtual contact with the wire. It is not a case where the wire may have arced over a considerable distance. It seems to me that the evidence does show contributory negligence and assumption of risk as a matter of law. So that will be the ruling and the demur will be sustained.”
We consider it unnecessary to take up and discuss separately each of the numerous decisions to which the parties direct attention (Nolan v. Hebrew, 177 Kan. 363, 365, 278 P. 2d 1011), for, as was said in Siegrist v. Wheeler, 175 Kan. 11, 16, 259 P. 2d 223, it must be remembered that every negligence action depends upon the factual situation disclosed by the record on which it is decided and that other decisions are of little value as legal precedents unless, as rarely occurs, the governing facts and circumstances are similar.
General rules and principles governing negligence actions have been stated so many times that we will not burden this opinion with repetitious citations, other than to mention the often-cited case of Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470, and to quote the first three paragraphs of the syllabus:
“1. Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff’s harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm.
“2. When the facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for the trier of the fact, otherwise it is one of law.
“3. While the general rule is that the burden of establishing the plaintiff’s contributory negligence rests upon the defendant, if the plaintiff’s own evidence shows him guilty of negligence which precludes his recovery, the defendant may take advantage by demurrer.”
Although the trial court indicated in some of its prior remarks that it considered defendant to have been negligent in parking the wagon under the transmission lines, inasmuch as its ultimate ruling was not based on the ground of negligence or freedom from negli gence on the part of defendant, we pass that question as it is unnecessary for a decision. We also pass the question whether Gene assumed the risk of the employment, for it is clear from the evidence that his death resulted from his own negligence. (Sebaugh v. City of Norcatur, 130 Kan. 494, 496, 287 Pac. 238.)
There were no eyewitnesses to this tragic death, but, from the evidence and physical facts established, there can be no question as to just what happened and how death occurred — and it is not contended otherwise. In loading a pipe “correct-end-to” on the wagon Gene simply “upended” it instead of swinging it around horizontally. In so doing, the pipe came in contact with, or very close to, a “hot” wire which was twenty-one feet eight inches from the ground. He was an intelligent and experienced man, was thoroughly familiar with the field, the work he was doing and the manner of performing it, and knew the location of the transmission line, the view of which was unobstructed. There was no hidden peril — it was patent and obvious — and the danger of electricity is a matter of common knowledge to every adult of ordinary intelligence.
The evidence and physical facts of this case lead to but one conclusion — had Gene handled the pipe in the normal and ordinary manner it would not have come in contact with the electric wire. His manner of handling it fell below the standard to which, under the circumstances, a reasonable man should have conformed for his own protection and to save himself from harm. Had it not been for his own contributory negligence death would not have resulted. Under the wrongful-death statute (G. S. 1957 Supp. 60-3203) an action may be maintained by the personal representative of the deceased only in cases where the deceased, had he lived, could have maintained an action against the alleged wrongdoer.
The ruling of the trial court sustaining defendant’s demurrer to plaintiff’s evidence was correct and is affirmed.
Robb, J., dissents. | [
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The opinion of the court was delivered by
Jackson, J.:
This opinion covers the proceedings in two cases which were consolidated for trial in the court below, and were likewise consolidated on appeal in this court. One of the actions was brought in the name of the state on relation of the county attorney of Doniphan county, and hereinafter will be referred to as the county’s action. The other action was brought jointly by several landowners who claimed that they would be damaged by the proposed plans of the defendant drainage district. This action will be referred to herein as the landowners’ action. We shall refer to the parties as plaintiffs and defendant as they appeared in the court below.
The defendant district lies northeast of the city of Atchison, with the county line between Atchison and Doniphan counties bisecting the district from east to west. The small town of Doniphan lies just north of the center of the district. The Missouri river bounds the district on the east and south, and the river bluffs on the north and west. The defendant district was organized in or about 1948, under G. S. 1949, Chapter 24, Article 6, for the purpose of protecting some 4,000 acres of land within the district against the waters of the Missouri river, Independence creek, which originally entered the district from the west, and also against the smaller Doniphan creek which entered the district from the north at or near the town of Doniphan. It may be noted at this time, that Independence creek drains a total of 156 square miles, while Doniphan creek drains only some four and one-half square miles in the immediate area just north of the district.
The plan adopted prior to the floods of 1951, was first the construction of a high dike or levee referred to as the Pick-Sloan levee— around the east, south and west borders of the district. This work was done in co-operation with the Corps of Army Engineers and cost some $2,000,000. Thus, the Missouri river and Independence creek were excluded from the area of the district. The latter creek was turned in a generally southerly direction by the Pick-Sloan levee and confined by the levee and the bluffs on the west until it reached the Missouri at the southwest corner of the district. Its course from approximately the county line between Atchison and Doniphan counties was further guided and controlled by the construction of an engineered flowway between the said levee and the bluffs.
Little Doniphan creek was controlled by carrying the stream in an easterly direction for a short distance and into a ponding basin. Waters from this ponding basin could be released by gates and allowed to flow southerly through a ditch and finally into the old Independence creek bed, all within the area of the defendant district.
Counsel for the parties were very helpful to the court in providing good maps of the district, but we feel that the opinion need not be lengthened by the inclusion of a map.
During the 1951 floods, Donipban creek seems to have practically destroyed the above described ponding basin. It was then determined by the engineer of the defendant district in consultation with others that Doniphan creek should be diverted westerly from its point of entrance into the district to follow a course so as to enter Independence creek a short way outside the district, and some 3,500 feet north of the bridge on the county line and the point where Independence creek empties into the constructed flowway described above. In the adoption of this new plan for Doniphan creek the same procedure was followed as on the adoption of the original plan of reclamation. The new ditch for Doniphan creek would run some 5,100 feet in a westerly direction by south and pass through the Pick-Sloan levee, and then on and into Independence creek. A county road runs along in the same direction as the proposed ditch, and in the plan of the defendant and amendments thereto, it was decided that the county road should run on top of the dike to be placed on the north side of the ditch for some 1600 feet. The dike was to be constructed of sufficient width and the road graveled and restored to at least its present condition.
This plan as amended was formally approved by the Chief Engineer, Division of Water Resources, Kansas State Board of Agriculture all as provided by G. S. 1949, 82a-301. Plaintiff landowners and county were present at the hearings before the Chief Engineer and apparently protested rather vehemently. As shown by the findings of the Chief Engineer, he insisted on the improvement of the channel of Independence creek below the point of the proposed entrance of Doniphan creek and the beginning of the existing flow-way along the Pick-Sloan levee, some 3,500 feet, more or less. Not only was this improvement ordered, but the Chief Engineer’s order reads in part:
“The application for permit should be and is hereby granted subject to the following conditions:
“1. That the project generally, and the channel of Independence Creek in particular, he maintained in the condition specified by the plan for its construction and improvement.” (Italics supplied.)
More concerning the improvement of the channel of Independence creek will appear later in this opinion.
In July, 1954, following the approval by the Chief Engineer of defendant district’s application, the defendant proceeded to condemn lands and rights-of-way in Atchison and Doniphan counties, and paid to the county treasurers of the two counties the total amount of the awards made by the appraisers in such proceedings.
Following acquisition of such rights-of-way, the defendant district and the Corps of Engineers, U. S. Army, commenced construction of the project pursuant to the approved plans and permit issued by the Chief Engineer of the Division of Water Resources. The clearing and improvement of channel of Independence creek, from the proposed entrance of Doniphan creek to the Independence creek bridge, was completed. Construction work proceeded on the remaining portion of the project into the spring of 1955.
During this time, both the landowners and the county filed their actions praying to have the work enjoined, and for other relief. Although we are advised the district court refused to stop the work by the issuance of temporary injunctions, it seems the county attorney of Doniphan county was able to compel the cessation of the work.
In the landowners’ action, it was contended that they should not receive the additional burden of the waters of Doniphan creek, and they also contended that the existing Pick-Sloan levee acted as a dam impounding Independence creek floodwaters and thrusting them back upon the plaintiffs’ lands.
In the county’s action, it was sought to contend the diversion of Doniphan creek would pose additional hazards to existing bridge structures and roads, adding to maintenance problems, and that it would be unlawful for the defendant to elevate the county road up and place it upon the dike on the north bank of the proposed diversion for a distance of some 1600 feet.
The actions were tried before the Honorable John L. Gernon, judge of the Twenty-second Judicial District, who took the matters under advisement, but whose untimely death occurred before a decision in the cases had been made. Thereafter, the Honorable Robert H. Kaul, judge of the Thirty-sixth Judicial District, was duly assigned to dispose of the cases. Judge Kaul, after considering the transcript of the evidence taken before Judge Gernon, inspection of the area, and argument of counsel, issued his decrees denying in-junctive relief to plaintiffs.
Plaintiffs appeal asserting error.
At the outset, we would direct attention to one point which plaintiffs have not mentioned in connection with this appeal. Since Judge Kaul decided the cases from the transcript of the evidence introduced before Judge Gernon, and since these suits are in equity, this court has a considerable increased duty to make its own decision upon the facts disclosed by the record (Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P. 2d 180, decided April 12, 1958; Shriver v. Besse, 163 Kan. 402, Syl. ¶ 1, 183 P. 2d 407; In re Estate of Kemper, 157 Kan. 727, at p. 734, 145 P. 2d 103; Protheroe v. Davies, 149 Kan. 720, at p. 729, 89 P. 2d 890).
However, this court has carefully considered the record herein, and is convinced that the learned trial judge was entirely correct in the careful and detailed findings of fact and conclusions of law which were filed in these cases. The same are approved and incorporated by reference although not made a part of this opinion. These findings will be available for anyone wishing to make a more complete study of this case as a part of the record in the State Library. We are pleased that Judge Kaul made a personal inspection of the area. In this, he had a considerable advantage as compared to this court, and his findings are entitled to even more weight for this reason.
In the county’s suit, it is argued that defendant had no right to occupy the county road ‘longitudinally” for a space of 1600 feet. This argument is based upon the wording of G. S. 1949, 24-625. The plaintiff county asserts that from that section drainage districts are given only the power to go across a street or highway and cannot in any other way interfere with the highway. As the trial court concluded, it would seem the county has failed to construe the drainage district act as a whole. Particularly, the county would seem to have failed to note that the rule of strict construction usually applicable as to grants of authority to quasi-municipal corporations, would seem not to apply in this case. Particularly, see G. S. 1949, 24-637, where we find the following language:
“This act shall be liberally construed to promote the drainage and reclamation of wet, overflowed or submerged lands . .
Further attention is directed to G. S. 1949, 24-620, which reads in part as follows:
“That when any ditch, drain, improved watercourse, dike, levee or other drainage improvement located and established under this act crosses, drains or protects, either in whole or in part, any street, highway, public or corporate road or any railroad, or benefits any or either of said streets, road or railroad the board of supervisors shall apportion and set off to the county if a county road, or township if a township road, or to a company if incorporated, or a railroad or to a city or village if a street or alley, a portion of the costs and expenses of the whole drainage improvement . .
The defendant district is not claiming any expenses from plaintiff county because of the protection given the road. Yet, the chief engineer held in abeyance, the further amendment of the project which new amendment would not have placed the county road on top of the dike. The engineer was of the opinion it would be of great benefit to the road to be raised above any possible floodwaters, and therefore awaited the outcome of these suits before the approval of any change of plan which would not so protect the road. The approval of the plan by the Chief Engineer, Division of Water Resources, is important as to the question of the defendant’s power to make the improvements.
Actually, the rest of the complaints of the plaintiffs in both suits fail for want of evidence of any likely injury in the future from the proposed improvement plan.
All of the engineers who testified agreed that Independence creek drained an area of 156 square miles; that Doniphan creek had a watershed of only four and one-half square miles; they agreed that Doniphan creek would supply only seventeen and one-half percent of the water to be expected at the point where Doniphan and Independence creeks would join. It would seem to be further admitted that Doniphan creek water would constitute only three percent of the water, if all of the tributaries including Deer creek were included (see testimony of plaintiff county’s engineer). Deer creek joins Independence creek just before the stream flows under the county bridge at the beginning of the flowway. This is still in the area of plaintiff landowners’ land and is the county bridge referred to by plaintiff county in its petition.
Now, the plaintiffs would seem to rely upon the simple fact that the Doniphan creek water was brought over to the channel of Independence creek, where it would not otherwise have been. They would, it seems, ignore the work done on the channel of Independence creek, especially in the region of the plaintiff landowners’ land, and between the proposed joining of Independence creek and the beginning of the flowway.
Plaintiffs would seem to wish us to ignore the undisputed evidence of reputable engineers of long experience, that the widening, deepening and clearing of obstructions from the channel of Inde pendence creek would increase the capacity of that channel by forty percent. They would ignore the fact that all of the engineers testified that the chance that a flood on Independence creek and on Doniphan creek would coincide as to time when the crests would reach the channel was most unlikely; that the nearer water in Doniphan creek would almost surely run out of the channel before the water from greater distance in the Independence creek watershed reached this particular part of the river. The trial court said in No. 30 of that court’s findings of facts:
“The possibility of a coincidence of peale flood crest on Doniphan and of peak flood crest on Independence creek, at the point of the proposed junction, is so remote as to be purely speculative.”
While we agree with the trial court in the above finding, suppose there should occur a “fifty year” flood or a “hundred year” flood as spoken of by the engineers. At any rate, suppose both creeks were at crest at'the same time at the point of union. We would have seventeen and one-half percent more water than if Doniphan water were not coming into the stream, but it would seem to be a mathematical proposition that even then, the improved channel would have an increased carrying capacity of twenty-two and one-half percent over and above the extra Doniphan creek water, than it would have had if the plan for improvement had not been carried out.
It is hard to understand why all the plaintiffs will not be benefited by the construction of this project. We know of no cases, and plaintiffs cite none, which hold that a riparian owner may sue, when the water in a river channel is increased, if that increase of water does him no harm. There are many cases holding the increase of water upon a landowner’s land is actionable, if that water will cause damage which otherwise would not occur. Likewise, there are many cases holding that a riparian owner may sue to prevent the taking of water from the watershed of a stream, since he is thus prevented from using the water and will be injured.
As to the claim in the landowners’ suit that the Pick-Sloan levee acts as a dam backing the water on to their land, practically the only evidence which had any bearing upon this matter was the testimony that the flood in 1951 was two and one-half feet higher at the point of the levee than it would have been if the levee had not been there and the water could have escaped on east over the land of the defendant district. Just how much higher the water was on plaintiff landowners’ property was not shown, nor was any estimate attempted as to what height the water would have reached had the improved channel of Independence creek been in existence at that time.
This has been mainly a fact case, and what has been said would seem to dispose of the plaintiffs’ contentions. All of the contentions not specifically mentioned have been considered and found untenable.
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the trial court dismissing plaintiffs’ petition for judicial review of an order of the state corporation commission. We are first confronted with the commission’s motion to dismiss the appeal in this court for the reason that plaintiffs’ abstract failed to contain proper specifications of error. We have examined the motion and find it without merit. The determinative question is whether G. S. 1949, 55-606 requires that in order to state a cause of action a petition for judicial review must set forth specifications of error.
On December 4, 1956, plaintiff s-appellants, George E. Jackson and Karl R. Jackson (hereinafter referred to as plaintiffs), filed a complaint before defendant-appellee the state corporation commission (hereinafter referred to as commission) against defendant-appellee Tidewater Oil Company (hereinafter referred to as Tidewater), alleging that Tidewater was repressuring with salt water the Bartlesville formation under a large tract of land adjoining plaintiffs’ lease, which repressuring flooded plaintiffs’ wells. Plaintiffs alleged that Tidewater’s acts were unlawful and contrary to the commission’s orders, and prayed for an order directing Tidewater to cease and desist from injecting salt water into the producing formation within one-half mile of plaintiffs’ lease, and permanently preventing Tidewater from allowing the escape of salt water into the oil-bearing formations underlying plaintiffs’ lease.
The commission issued a temporary cease and desist order, and after a public hearing entered its order dated March 6, 1957, setting aside the cease and desist order and dismissing plaintiffs’ complaint. Plaintiffs filed timely application for rehearing, which was denied.
Subsequently, plaintiffs filed their petition in this action against the commission in the Greenwood district court for judicial review of the commissions order. Thereafter, Tidewater was allowed to intervene. The petition set out the allegations of fact leading to the complaint, the filing of the complaint, the issuance of the order, and the application for and denial of the motion for rehearing. The complaint and the commission’s order and its memorandum opinion were attached to and made a part of the petition. Plaintiffs further alleged that Tidewater, subsequent to the entry of the commission’s order had again begun the injection of salt water under pressure, causing the plaintiffs irreparable harm, in violation of the statutes and the rules of the commission.
Plaintiffs prayed for judicial review of the commission’s order, for judgment in accordance with the allegations of the complaint filed with the commission, for judgment setting aside the order of the commission and for judgment clarifying or modifying an earlier commission order permitting Tidewater to repressure the producing formation in its block of leases.
The commission filed a motion to dismiss plaintiffs’ petition on the ground that it stated no cause of action for judicial review, in that it did not specifically allege or set forth specifications of error on the part of the commission. The intervenor, Tidewater, joined the commission in its motion to dismiss. The court sustained the motion on the ground that under G. S. 1949, 55-606, in order to state a cause of action a petition seeking judicial review of a commission order must set forth the specifications of error committed by the commission.
G. S. 1949, 55-606 is a part of the statute applying to oil and gas and, more particularly, regulating the production of crude oil. This section sets out the procedure for judicial review of rules, regulations, orders and decisions of the state corporation commission. It is conceded that in their petition for judicial review plaintiffs did not specifically set forth or enumerate the errors committed by the commission. The question for decision is simply whether such specifications of error are necessary under the statute. The pertinent portions of 55-606 provide:
“Any action for judicial review of any rule, regulation, order or decision of the commission may be brought against the commission in the district court of any county in the state wherein the property affected thereby is located, . . . Before any such action may be brought ... a petition for rehearing shall first be filed with the commission within ten days from the date of the making of the rule, regulation, order, or decision in question. . . . Such action may be brought by any person aggrieved, . . . within thirty days after the denial of the petition for rehearing, . . . such action shall be tried and determined as other civil actions. In any such action an abstract of the record of all evidence and proceedings before the commission shall be filed by the complaining party and a counter abstract may be filed by the commission or any other interested party. The district court may, when it deems it necessary and in the interest of justice, remand any such action to the commission with directions that the same be further investigated or additional evidence taken by the commission. After making such further investigation or receiving such additional evidence the commission may change, modify or set aside the rule, regulation, order or decision in question, and if the party who instituted the action for review in the district court shall not be satisfied with such decision, then upon written request of any such party, the commission shall make a report of its further investigation and final decision and send a certified transcript of such additional evidence as may have been tendered by any party in interest to the district court and thereupon the district court shall proceed to hear and determine the action upon the complete record. The court shall not be bound by any finding of fact made by the commission. The authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the commission. Appeals to the state supreme court may be taken from the judgment of the district court as in other civil .actions. . . .”
It is apparent the legislature created a specific statutory action for judicial review of any rule, regulation, order or decision of the commission in oil and gas matters. The only prerequisite for the fifing of such action is that a petition for rehearing first be filed with the commission within ten days after the date of the making of the commission s order or decision. The statute simply sets forth that a party may obtain judicial review of an order or decision of the commission by bringing an action for that purpose within thirty days after denial of a petition for rehearing, or if a rehearing is granted, within thirty days after final decision by the commission. The statute provides the action shall take precedence over civil actions of a different nature, and shall be tried and determined as are other civil actions. It provides the procedure, and the powers and duties of the district court. The details required in the petition cannot be determined from the requirements in other types of actions but must be determined from the provisions of this statute. At no place in the statute are specifications of error mentioned.
Comparison may be made with G. S. 1949, 66-118c, which provides for judicial review of an order of the commission on public utility matters. This particular statute provides that within thirty days after denial of an application for rehearing or within thirty days after the rendition of the decision on rehearing, the applicant may apply to the district court for a review of such order or decision. The statute further provides:
“The application for review shall be filed in the office of the clerk of the district court . . . and shall specifically state the grounds for review upon which the applicant relies and shall designate the order or decision sought to be reviewed.” [Emphasis supplied.]
G. S. 1949, 66-118c was first enacted in 1929 (L. 1929, ch. 220 § 3). The predecessor of G. S. 1949, 55-606 was enacted in 1931 (L. 1931, ch. 226, § 6) and amended to its present form in 1939 (L. 1939, ch. 227, § 5).
It must be assumed that the legislature, when it enacted 55-606 in 1931 and, as amended, in 1939, was aware of the existence of 66-118c with its provision for specifications of error (State, ex rel., v. Moore, 154 Kan. 193, 199, 117 P. 2d 598). In Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 176 Kan. 561, 271 P. 2d 1091, we said that although the provisions of the conservation act (55-606) are not in all respects the same as those contained in the public utilities act, the purpose and intent of a review statute is the same under both acts. (See also White Eagle Oil Co. v. State Corporation Comm., 168 Kan. 548, 214 P. 2d 337.) In view of the similarity of the acts and the time sequence of their passage, it is clear to us that if the legislature had intended to require under 55-606 that specifications of error be set forth in the petition for review, it would have said so in unmistakable terms. Although in 55-606 the legislature followed the pattern of 66-118c, it omitted the necessity of setting forth specifications of error in the petition for judicial review. It must therefore be presumed that this omission was intentional. It is not the function of this court to read into a statute a provision which the legislature, in the exercise of its wisdom, omitted therefrom.
We are of the opinion that the legislature prescribed the procedure to be followed in an action for judicial review of an order or decision of the state corporation commission in matters pertaining to oil and gas, that the procedure is complete within itself and it is not necessary to look to other statutes providing for judicial review in determining the requirements under 55-606. Under the mentioned statute, a petition- for judicial review need not set forth specifications of error on the part of the commission in order to state a cause of action. The judgment of the trial court is reversed and the case is remanded with directions to set aside the order of dismissal and reinstate the action.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a condemnation action arising from the separate appeal of a lessee when the Kansas Turnpike Authority condemned part of the land upon which the lessee had a sand lease.
From a verdict and judgment in favor of the lessee the Kansas Turnpike Authority duly perfected an appeal presenting the questions hereafter discussed.
Damages to the landowner by reason of the condemnation of this particular tract of land were disposed of by settlement in another case, after the original opinion of this court was announced in Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199, and prior to its reversal on rehearing in 181 Kan. 840, 317 P. 2d 384, on October 25, 1957, and are, therefore, not an issue in this case. At that time the rights of the lessee were preserved by stipulation of counsel and the severance of the two claims is not an issue in this appeal.
The appellant presents two questions in its brief:
1. Did the trial court err in allowing the expert witnesses produced by the lessee, appellee herein, to testify over appellant’s objection as to the fair and reasonable market value of a sand lease when it was admitted by these experts that they had no knowledge of a sand lease ever having been sold?
2. Did the trial court err in refusing to allow appellant the opportunity to fully cross examine the appellee’s expert witnesses as to the method used in computing their opinions of the market value?
In the instant case, the appellee, Victor B. Eisenring, was lessee of a 26.36-acre sand and gravel lease near the plant of the Boeing Airplane Company and the McConnell Air Base in Wichita. Insofar as material to this appeal, the term of the lease was from September 4, 1954, until September 4, 1956. At the time of the taking by the turnpike on June 23, 1955, a little over 14 months remained prior to the expiration of the lease. Mr. Eisenring was operating the lease by a “pumping” type operation with a lake, barge and sand pump.
The Kansas Turnpike Authority condemned its right of way and installed the turnpike highway through the approximate middle of the lease, leaving approximately 10 acres on the south accessible from McArthur Road, which is a street in Wichita. The remaining portion of the lease is covered by the turnpike highway and that portion to the north which is not occupied by the turnpike was made inaccessible. The turnpike appraisers apparently disregarded the lease of Victor B. Eisenring, as no appraisal or award was shown. Mr. Eisenring proceeded to obtain a jury determination of his damages, and the jury found that the fair market value of the Eisenring lease before the taking by the Kansas Turnpike Authority was $32,000, and immediately after the taking was $16,-000. It therefore assessed the amount of damages at $16,000. The turnpike appealed from this verdict, and the judgment entered thereon.
Directing our attention now to the first question above stated, the turnpike contends that, inasmuch as each of these expert witnesses testified that he had no knowledge of a sand lease ever having been sold in the area around Wichita, they were not qualified to testify.
The following expert witnesses were called to testify for the appellee. Mr. Don Moehring, a graduate and licensed engineer, had done consulting work as a civil engineer for many companies including producers and users of sand and other materials, was a design and construction engineer for the United States Army in World War I, and helped organize the State Highway Department of South Dakota. He testified that the value of the leasehold before the taking by the turnpike was $49,181.25 and the fair market value after the condemnation was $9,890.63, the difference being $39,290.62.
P. R. York, an independent sand producer for 21 years in Sedg-wick County, testified that he generally leased the ground where he conducted his sand pumping' operations, and had examined this particular lease on various occasions; that sites for sand operations in this area were very scarce; that the market value of the leasehold was $52,460 immediately prior to the condemnation, and that the market value of the lease immediately after the taking was $10,550, a difference of $41,910.
Mr. W. B. Tolbert was superintendent of the Superior Sand Company which produces fill sand, concrete sand, mason sand and road gravel for commercial sales, and supplies materials for ready-mix operations. The owners of the company carry on a paving business and asphalt business known as Richie Brothers Construction Company and Allens Incorporated. He testified as to the characteristics of the lease and he had made tests of the sand in the particular area. In his opinion the market value of the leasehold interest was $50,230.45 before the taking, and the market value of the lease after the taking was $10,101.62, a difference of $40,128.83.
Mr. Robert R. Provence, who had been in the business of commercial sand production for 28 years, had hauled some of the material from Mr. Eisenring’s operation until the turnpike went through the lease. He had done a lot of business in the southeast part of Wichita during 1954 and 1955 and testified as to the location feature of this particular lease and the hauling problem in connection with sand production. He had tried to find another sand location in that area without success. His opinion of the fair market value before the taking was $47,214, and after the taking was $9,495, a difference of $37,719.
The witnesses for the appellee pointed out that there was sand under much of the City of Wichita close to the river, but no commercial sand available east of the point where the terrain comes up out of the river area. For example, there is no commercial sand east of the air base. The testimony developed that there had been a sand operation immediately across McArthur Road to the south of the Eisenring lease, which was already exploited. The other area in the immediate vicinity of the sand lease was either residential or industrial development and could not be obtained for sand operations.
An exhibit prepared by a licensed engineer was introduced into evidence to show the acreage in the Eisenring lease and the quantity of sand in the leasehold. It disclosed that 7.41 acres and 194,300 cubic yards were occupied by the turnpike right of way, and that 9.39 acres and 139,200 cubic yards were made inaccessible by the turnpike right of way.
Mr. Robert Bright, a graduate engineer and superintendent for Martin K. Eby Construction Company, testified as to the large scale construction projects going on during the 1954-1955 period, during the tenure of this lease, such as the Materials Building at Boeing Airplane Company which covered an area of 22 acres and required fill sand from 3 to 10 feet in depth over the entire area. A conservative estimate of the quantity of fill sand needed was between 150,000 to 175,000 tons. There was also a 5,600 car parking ramp for Boeing Aircraft requiring approximately 45,000 tons of fill sand. A new runway at McConnell Air Base approximately 300 feet wide and 2 miles long required a fill sand cushion underneath the slab and also fill sand in the sewage and drainage system.
The evidence disclosed the close proximity of the Eisenring sand operation to these projects and indicated the competitive advantage Mr. Eisenring had by reason of this location, since the hauling of sand figured as a principal item of expense. The cost of hauling sand was stated to be about five cents per ton mile.
Apparently it is the turnpike’s theory of the case that since sand leases are not traded in commerce, there can be no damages. This is consistent with the testimony of the expert witnesses produced by the turnpike. It presented three real estate men who knew nothing about the sand business and nothing about the factual features of the sand lease in question. They testified that the “piece of paper,” the lease as an instrument, had no value.
On the point of law presently under discussion this court several years ago had the identical question before it in Miles v. City of Wichita, 175 Kan. 723, 267 P. 2d 943. That case involved a sand lease near Wichita where the same expert witnesses used in the instant case testified as experts. The objection there was that the expert witnesses were permitted to testify to a market value derived from factors which were improper for a jury to consider— that it was predicated upon speculative factors and had no probative value — and thus constituted no evidence of value at all. This objection was summarily dismissed by stating “. . . It was proper for the witnesses to consider in passing their opinion as to the market value of the lease matters, such as investment value of one of many criteria in reaching a conclusion. . . .” (p. 729.)
The absence of market value, in the sense that there is a lack of evidence of comparable sales, does not prevent recovery by the owner in the event of condemnation. It occasionally happens that a parcel of real estate or a leasehold interest taken by eminent domain is of such a nature, or is held or has been improved in such a manner, that, while it serves a useful purpose to its owner, he would be unable to sell it at anything like its real value. Where the usual means of ascertaining market value are lacking, or other 'means must from necessity of the case be resorted to, it is proper to determine the market value by considering the intrinsic value of the property, and its value to the owners for their special purposes. The owner of the property taken is not required under such circumstances to make any pecuniary sacrifices. He is entitled to whatever the property is worth to him, or anyone else, for any purpose to which it is adapted. These special uses or purposes to which the property is adapted must be real — founded upon facts capable of proof — and not merely speculative or imaginary. If the owner has adopted a peculiar mode of using the land, by which he derives profit, and he is to be deprived of that use, justice requires that he be compensated for the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation. (4 Nichols on Eminent Domain [3rd Ed.], § 12.32, p. 133.)
In the absence of market value, because the special type of property is not commonly bought and sold, resort may be had to the testimony of more specialized experts. The value of property for a special use to which it is adapted or put may be shown by persons familiar with such use, even though they are not familiar with land values generally. If a witness, by reason of his skill, learning or technical training, understands the adaptability of the lands in question for a particular purpose and the demand for land for such purpose, he may state the market value of the land. (See 5 Nichols on Eminent Domain [3rd Ed.], § 18.41 [3], p. 160; and authorities accumulated therein.)
Kansas cases in accord with the foregoing rules are K. C. & S. W. Rld. Co. v. Ehret, 41 Kan. 22, 20 Pac. 538; K. C. & S. W. Rld. Co. v. Baird, 41 Kan. 69, 21 Pac. 227; Railway Co. v. Weidenmann, 77 Kan. 300, 94 Pac. 146; Burger v. City of Wichita, 132 Kan. 105, 294 Pac. 670; and Unruh v. Kansas Turnpike Authority, 181 Kan. 521, 313 P. 2d 286. See, also, Montana Railway Co. v. Warren, 137 U. S. 348, 11 S. Ct. 96, 34 L. Ed 681; and Phillips v. United States, 243 F. 2d 1.
It is established in Kansas that a tenant under a lease is an “owner” of property within the meaning of that term as used in our condemnation statutes, and is entitled to compensation if his leasehold estate is damaged by the exercise of eminent domain. (State Highway Commission v. Safeway Stores, 170 Kan. 413, 226 P. 2d 850, set aside on rehearing for other reasons in 170 Kan. 545, 228 P. 2d 208. See also, Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009; and Comm'rs of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577.)
In our opinion appellee’s witnesses were eminently qualified as experts specialized by experience, education and technical training in the sand business. They were familiar with sand deposits and the use and demand of sand products in the Wichita area, including the adaptability of the sand and gravel deposits covered by the lease in question for their best and most advantageous use.
Counsel for the turnpike attempted in vain to show that ap-pellee’s expert witnesses were valuing the Eisenring sand lease solely on the basis of profits. They did this by taking some of the appellee’s witnesses on voir dire examination. They also cross-examined the witnesses. Regarding appellant’s efforts in this respect, complaint is first made of the testimony of Don Moehring on cross examination. Appellant, treating this under its first question heretofore stated, contends that it was extremely prejudiced by the method in which this witness arrived at the fair market value of the lease. The following was a portion of Moehring’s testimony-on cross-examination:
“Q. What do you mean by fair market value?
“A. The return to the lessees from that land from its best use.
“Q. What kind of return, Sir?
“A. Monetary return; the value — the monetary value.
“Q. Over what period of time are you speaking?
“A. Over tire tenure of the lease.
“Q. That is based on what he could expect to receive from the term that the lease had to extend, in the way of profit?
“A. That is correct.”
Appellant relies on Bales v. Railroad Co., supra, for the proposition that testimony based on anticipated profits should not be allowed. Neither the facts nor the opinion in the Bales case supports appellant on the facts presently before the court. It was said in the Bales case that “. . . Anticipated profits as an element of damages are only allowed where reasonably certain; when speculative, remote and contingent they are excluded. (Railway Co. v. Thomas, 70 Kan. 409, 78 Pac. 861.) While it may be that the profits of the business were susceptible of proof, the part of such profits attributable to the continuance of the lease seems to be a matter of conjecture.” (p. 777.) See, also, Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189.
On the facts presently before the court there is no question concerning the continuance of the lease until September 4,1956. Under the terms of the lease Eisenring had a one-year lease with an option to extend the lease for an additional year on the condition that at the expiration of the first year his pump and sand equipment was left on the leased premises and the pit was to be operated. While this may have made it difficult to sell the lease, it nevertheless was of value to the lessee and binding as a lease upon the lessor.
Prior to the testimony elicited from Don Moehring on the cross-examination, as heretofore indicated, the witness testified that he made an examination of the Eisenring lease; that he made measurements on the ground and core tests; that he made analysis checked by laboratory in the City of Wichita; made direct comparisons as to the areas and quantities and determined the depths of material encountered and available on this site and, from the same, determined what in his opinion was the best and most advantageous use of the site. He made test holes and determined the types of materials shown on an exhibit which was introduced into evidence, and made an actual computation of the number of cubic yards of material that were present. In arriving at bis opinion as to value he testified that he considered, first, the location of the property; the location of the possible users of this type of material encountered in this site; determined the location with regard to the distance to available sites, and at that time, checked these with the distances of other pits that could supply a similar type of material from an available source of supply; that he considered the cost of the production of the materials, the equipment in place or available, the terms and conditions of the lease and any other features which might affect the profit.
The lease in question was a royalty lease calling for payment of a fixed sum (Fill dirt 10 cents per ton or 16 cents per yard, and concrete sand 16 cents per ton or 22 cents per yard) on all sand and gravel sold without any other consideration being paid for the lease.
The record discloses no evidence whatever that this witness or any other witness determined the market value by multiplying the number of cubic yards of sand and gravel by the selling price per cubic yard. The testimony of other witnesses clearly indicates they were not relying on any speculative or income formula. For example, Mr. Tolbert, an experienced sand operator, was asked by turnpike counsel:
“Q. What was the figure that you used then, Mr. Tolbert, to arrive at— what cubic yard number did you use in this computation? Did you use so much value per cubic yard after you got the length and width and the depth as you stated mathematically, how much per cubic yard did you use in figuring the material in place?
“A. I didn’t figure it that way. You might total it that way, I suppose.”
In this case we are concerned with a sand lease ■valuable because of its sand yield. Income to the lessee is of necessity a factor to be considered in determining value. In the Bales case anticipated profits were conceded to be a proper element of damages where reasonably certain. In making a determination of the market value of the furniture dealer’s lease, it was proper to consider “. . . the nature and prosperity of the business carried on there if it affects the value of the lease . . (Bales v. Railroad Co., 92 Kan. 771, 777, 141 Pac. 1009.) Here Eisenring’s lease was in operation and the element of income was present at the time of the condemnation, not in the uncertain future.
It was said in City of Wichita v. Ferriter, 126 Kan. 648, 270 Pac. 592:
. . Testimony on behalf of the city was that the land was worth practically nothing except for the sand which could he taken from it. If the quantity were only one or two thousand cubic yards, the land was hot worth much; if the quantity were very much greater, the land was worth considerably more. The law requires that the landowner be compensated. Rules for the ascertainment of damages must be adapted to fulfillment of the purpose of the law. In computing the compensation, other factors were to be considered besides number of cubic yards and selling price per cubic yard; but no fair computation of compensation for the taking could be made until it was known just what had been condemned.” (Emphasis added.) (p. 651.)
In 18 Am. Jur., Eminent Domain, § 345, p. 989, after repeating the general rule that profits derived from a business are too speculative to be considered, continues:
“. . . But in determining the fair market value of the land, it is proper for the jury to consider whether the lands were adapted to the particular use to which they were devoted, and were profitable and valuable for that use, and for this purpose it is sometimes unobjectionable to admit evidence of the actual profits. Thus, evidence as to the amount of profits may be considered where it appears that the property condemned is of such a nature that the profits derived from its use are the entire or chief source of its value, . . .”
In State Roads Com. of Md. v. Novosel, 203 Md. 619, 102 A. 2d 563, a strip of land was taken to widen a highway. The Maryland Supreme Court said that in determining the value of land consideration will be given to its productive capacity. The court states:
“As a practical matter, a prospective purchaser would hardly fail to consider whether or not the business conducted on the premises had proved profitable, for this would be a measure of the desirability of the location, if not to him then to other purchasers. . The precise weight to be accorded to this factor is a matter of judgment on which experts may differ, and of this the jury is the final judge. , . .
“With the increasing vogue of leases of business property reserving rentals computed on a percentage of the volume of business transacted by the tenant, it would be artificial and illusory to reject an expert opinion of rental value that takes into account the volume of business which experience has shown a particular piece of property is capable of producing; and, of course, the resulting profits may be, if anything, even more pertinent to the question of value. We find no basis for the objection either to the testimony of the expert, or to that of the owner who as such, irrespective of other qualifications, is permitted to give his estimate of the value of his holdings. Bailey v. Ford, 151 Md. 664; Pennsylvania Threshermen & Farmers Mutual Casualty Ins. Co. v. Messenger, 181 Md. 295, 302; Jackson v. Linthicum, 192 Md. 272, 276; 3 Wigmore on Evidence (3rd Ed.), Sec. 716.” (pp. 624, 625.)
See, also, Korf v. Fleming, 239 Ia. 501, 32 N. W. 2d 85; L. & N. Turnpike Co. v. Creveling, 159 Tenn. 147, 17 S. W. 2d 22; and H. & H. Supply Co. v. United States, 194 F. 2d 553.
Regarding the valuation of land with sand deposits this court said in Reiter v. State Highway Commission, 177 Kan. 683, 281 P. 2d 1080:
“In the instant case, the landowners contend the testimony was admissible as it had a direct bearing on the market value of the land. It is true that the sand deposits had a bearing on the market value of the land. The question for determination was the value of the land, not the value of the sand beneath the surface. It was proper to show the quantity and quality of the sand, and these elements could be considered in arriving at the value of the land as a whole . . .” (p. 688.)
Taking into account the nature of the leasehold in the instant case, viewed in perspective with the authorities heretofore cited and the rules therein stated, the testimony of Don Moehring taken as a whole was properly before the jury for its consideration. The whole record was before the jury and- disclosed the various factors considered by Mr. Moehring and by the other witnesses and the similar valuations placed upon the leasehold by such other witnesses. Each of the'witnesses first arrived at an evaluation on an acre basis, ranging between $1,800 to $2,000 per acre, and from this figure proceeded to determine the fair market value of the lease.
In accordance with the decisions of this court, the appellee introduced evidence of the quantity and quality of the sand and gravel present in the leasehold. Evidence concerning the location and accessibility of the lease in regard to available markets was shown. Further evidence was introduced showing the size and natural features of the leasehold. For this evidence, the appellee secured and relied upon witnesses who were thoroughly familiar with such matters. These men were trained by schooling, experience or both. They knew the problem.
Appellant asserts the trial court erred in its refusal to permit full cross-examination of appellees expert witnesses as to the method used in computing market value. Its only complaint concerns the testimony of P. R. York. On voir dire examination counsel for appellant interrogated Mr. York as follows:
“Q. Is the opinion of value that you are going to give, Mr. York, is it based on the amount of yards of material that Mr. Mohring estimates was there and projected on a so-much-per-ton basis and the value given on that, or are you going to give an opinion of fair market value based on what you sand men would pay for the lease?
“A. Yes, sir. I have based my opinion on the value of that through the location of this lease, the quantity, the quality and the fair market price that will surround this lease.
“Q. Did you arrive at that, then, through some method of multiplication time the cubic yards that was stated here, times a dollars and cents figure, to arrive at your answer, is that right?
“A. No, sir.”
Mr. York then testified on direct examination that a thorough test of the sand lease must be made to evaluate the quality and quantity before undertaking development of the lease. This is usually done by engineers. Sites in the southeast part of Wichita are very scarce and location is very essential. “You get as close as you can to your market for your transportation costs.” He then testified:
“I was on the Eisenring lease in 1954 and 1955 on several occasions. Eisenring had a roadway to about the middle of the tract to handle loading. He had part of it already scalped, cleaned for pumping and a lake ready to float and produce. The location was good, close to two good highways, the markets close to it included McConnell Air Base and Boeing and Midland Industrial District. The quality of the sand was fine.
“The Turnpike went through the middle of the operation, and cut the tract into two pieces. The north part is inaccessible and the remaining part on the south is too small for economical operation.”
On cross-examination pertinent interrogation before the trial court was as follows:
“Q. Mr. York, how did you arrive at the valuation that you placed on this Eisenring lease, would you explain to me the process that you went through to arrive at your figure of $52,460?
“Mr. Kamas: There is no law that requires him to break it down that minutely.
“The Court: Sustained.
“Q. I want to know how you arrived at your opinion, what was the process that you went through to arrive at the total figure of $52,460.
“The Court: You may answer that.
“Q. 'How did you arrive, Sir, at the $2,000 per acre? What caused you, in forming your opinion, to arrive at $2,000?
“A. I took into consideration the leasehold location, the market and the quality and quantity of the sand in the hole, and arrived at that figure.
“Q. Well, did you do some multiplication to arrive at that, or how much value did you place on a cubic yard of sand, for example, to get this up to $2,000?
“Mr. Kamas: Counsel very well knows that is not a proper question.
“The Court: Sustained. [1]
“Q. Then what basis did you have for arriving at $2,000? Is it just a guess?
“Mr, Kamas: To which we object. It has been already asked and answered twice.
“The Court: I will let him answer that, how he arrived at the $2,000 per acre.
“A. This location, the distance between the market, the quality and the quantity, the depth of this leasehold land is the way I arrived at this $2,000 per acre.
“Q. Did you put a value on the depth of the sand? What factor did you use in arriving at $2,000 an acre?
“Mr. Kamas: Now counsel wants us—
'“The Court: I am going to sustain the objection. [2]
“Mr. Kamas: I might say that if counsel wants us to go into the yardage and values, we would be very glad to do so.
“The Court: I sustained the objection.
“Q. And you worked the figures out from the area and the depth and figured how much profit he could have made on it and used it in that fashion? Used in that fashion to establish your estimate?
“Mr. Kamas: We object to the form of the question.
“The Court: Sustained.” [3]
The witness stated on voir dire that he did not use the number of cubic yards of sand multiplied by the price per yard to arrive at his opinion as to value. Both on direct and cross-examination he stated the factors used in determining his opinion as to value. On cross-examination counsel for appellant attempted to force an answer'contrary to his statement on voir dire. On cross-examination the witness answered how he arrived at $2,000 per acre several times and the objections were properly sustained. As to the rulings of the court (numbered in brackets), No. 1 properly sustained the objection to a question improper in form, the second alternative of which assumed a fact which the witness had not stated in evidence; No. 2 properly sustained the objection since it was a multiple question, improper in form, and was repetitious as to the last portion; and No. 3 properly sustained the objection as to the form of the question — it assumed facts not in evidence and was argumentative.
While great latitude should be given counsel on cross-examination, the record discloses that appellee’s witnesses were subjected to extensive cross-examination. Mr. York was examined by counsel for the appellant at great length. Upon careful examination of the record as abstracted, there is no affirmative showing that the trial court abused its discretion, and its rulings will not be disturbed on appeal. (Unruh v. Kansas Turnpike Authority, supra.)
We conclude that appellee’s witnesses were eminently qualified as experts to give their opinion concerning the fair market value of the lease in question upon all the factors and circumstances, fully disclosed by the record, taken into consideration in formulating such opinion.
The verdict of the jury is amply supported by substantial competent evidence and must stand. (Stephenson v. Wallis, 181 Kan. 254, 311 P. 2d 355.) It follows that the judgment of the lower court upon the verdict should be and hereby is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
Three appeals from orders of the trial court sustaining defendants’ demurrers to the petitions filed in three actions to recover property taxes paid under protest to the county treasurer of Cherokee county have been consolidated for appellate review.
This court made an order on April 22, 1958, that the three cases would be consolidated provided counsel for all parties stipulated in writing that the decision in one case would control the decisions in the others and pursuant thereto the parties stipulated as follows:
“It is hereby stipulated by all of the parties to the above entitled consolidated appeal cases that each of them agrees that the decision of any one of the above cases shall determine the decision in the other cases, and shall be binding upon all of the parties in each of the other cases.”
We shall refer to the railroad as the taxpayer, to the county cleric acting in the capacity of county assessor as the assessor, and to the state commission of revenue and taxation as the commission. By reason of the consolidation it will be sufficient to consider and refer to only one petition and protest notice.
Both the petition and protest notice are lengthy, and since it will serve no purpose to set them out in full in determining their sufficiency by reason of the attack thereon by the demurrer, we shall not do so.
In brief, the notice of protest served on the treasurer of Cherokee county, pursuant to G. S. 1949, 79-2005, showed that the taxes were paid under protest, the amount being the result of a tax levy against assessments alleged to be excessive, illegal, and void. The amounts involved were enumerated. The ground of protest by the taxpayer was that the taxable value of its property in Cherokee county was fixed by the commission at sixty percent of the true value thereof; at a hearing before the commission, the taxpayer had protested the assessment as excessive, illegal, and inequitable and had asked for the same degree or ratio, of assessment as other properties had to which the same tax levies were applicable; no relief was granted; at a hearing on appeal before the state board of equalization the taxpayer’s evidence had clearly showed the assessment to be illegal, excessive, and inequitable because the ratio of sixty percent of the true value of taxpayer’s property was so excessive in relation to the ratio of assessment of other properties, above described, as to constitute constructive fraud and a continuing practice of discrimination against the taxpayer and its property; the appeal was denied; the assessment of sixty percent of the true value is grossly excessive, discriminatory, arbitrary, illegal and void and is the result of an adopted policy of constructive fraud and discrimination by the commission against the taxpayer and its property and is in violation of statutory and constitutional mandates of the state and federal governments for the reason other properties, above described, were assessed at not more than twenty-one percent of their true value, as evidenced by the commission’s assessment ratio studies over a period of twenty years (provided for by G. S. 1949, 79-1435 to 79-1438, inclusive) so that the true assessment not made by the commission is twenty-one percent; such excessive assessment of the taxpayer’s property contravenes and violates § 1 of the 14th amendment to the constitution of the United States, § 1 of article 11 of our state constitution, and G. S. 1949, 79-501; 79-601 to 79-609, inclusive; 79-707; 79-1406; 79-1409; 79-1601 to 79-1605, inclusive.
To prevent imposition of penalties and legal process for collection of the illegal, excessive, and unlawful taxes, taxpayer paid the taxes under protest but it would bring an action to recover back the amount so protested with interest. Notice was also given to the county treasurer of Cherokee county that she was not to dispose or part therewith but to hold the amount paid until the action is disposed of.
Careful examination of the allegations of the petition reflects that they are more extensive than the corresponding statements in tire protest notice which was attached to and made a part of the petition as an exhibit Also attached by stipulation of the parties was a publication compiled by the commission (under G. S. 79-1435 to 79-1438, inclusive) entitled “Report of Real Estate Assessment Ratio Study.” The commission’s conclusion is that the more extensive allegations in the petition constitute additional facts and matters of law to those set out in the taxpayer’s written protest notice, but we take the contrary view that those allegations are merely descriptive of and state more completely the same basic statements contained in the written protest notice. We do not mean to infer that any statements set forth in the written protest notice are too general or insufficient because we are convinced they are specific and sufficient. In other words, we think the petition is more definite and certain than is the written protest notice on the same facts and matters of law and that the petition does not add any facts or matters of law not already set out in the protest notice. The commission cites many cases in support of its conclusion and we agree those cases correctly state the rule of law applicable therein but they are distinguishable from our present question. Here the sole question for appellate review is the sufficiency of this petition when attacked by the demurrer. Other matters covered in the record are purely evidentiary questions and we will not extend this opinion by discussion thereof.
The trial court in sustaining the demurrer transmitted a letter memorandum wherein the petition was'briefly summarized. The memorandum closed with this discussion:
“It appears that plaintiff complains of a result (excessive valuation) rather than a fraudulent method in that there are no facts (as distinguished from naked conclusions) pleaded which show any fraudulent, corrupt or oppressive method or action in fixing plaintiff’s valuation. There is no concerted action between the State Commission of Revenue and Taxation and the County Clerk (county assessor) of Cherokee County shown. Any different ratios reached appear to be the result of independent assessing agencies acting wholly independently, and each acting in the absence of any such agreement to ‘fix’ true values as was found to exist in the case of C. B. & Q. Rld. Co. v. Commrs. of Atchison County, 54 Kan. 781. There is no factual allegation that The State Commission transcended its statutory powers, in fact the converse appears. In the absence of these allegations there is no redress available in the courts. [Citations.] Defendants’ demurrer is sustained, defendants’ attorneys to prepare journal.”
It must be admitted that the independent assessing agencies, as considered and designated under the tidal court’s conclusion, had determined the true value of both the taxpayers property by the commission and all the other property subject to the same levy of taxation in Cherokee county, as fixed by the assessor thereof, with which true value there is no complaint. Neither the federal nor state constitutions nor the statutes of Kansas were violated by this valuation but the picture changed completely when the commission affixed an assessed value of sixty percent of the true value on taxpayer’s property to be transmitted to Cherokee county (G. S. 1949, 79-605; 79-609) for the purpose of having a tax levy made thereon by the assessor and the assessor gave all other Cherokee county property subject to the same tax levy an assessed value of twenty-one percent of the true value for the same purpose. All this appears on the face of the written protest notice and the petition as does also the factual showing of the taxpayer’s efforts to have the situation corrected, which availed it nothing.
Section 1 of the 14th amendment of the federal constitution provides:
“. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The constitution of the state of Kansas in § 1 of article 11, provides :
“The legislature shall provide for a uniform and equal rate of assessment and taxation. . . .” (Our italics.)
G. S. 1949, 79-501 provides:
“Each parcel of real property shall be valued at its true value in money.
These constitutional provisions and the statute are plain, clear, and unambiguous. The powers of our courts in matters of this kind have been established by a long line of decisions to be judicial and not administrative or legislative. As previously mentioned, our* sole function in this case is to determine whether the allegations of the petition sufficiently show that the commission’s action was fraudulent, unreasonable, arbitrary, oppressive, or discriminatory. (Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 727, 68 P. 2d 1; Hanzlick v. Republic County Comm’rs, 149 Kan. 667, 670, 672, 88 P. 2d 1111.)
To emphasize the point we are presently concerned with, attention is called to Reiserer v. Murfin, 183 Kan. 597, 331 P. 2d 313, this day decided, also involving a trial court’s ruling on a demurrer, wherein we said:
“Such matters not appearing on the face of the petition or exhibits properly attached thereto and made a part thereof will not be considered herein.” (p. 599.)
In Rupe v. Smith, 181 Kan. 606, 612, 313 P. 2d 293, the trial court had overruled a demurrer to a petition in a wrongful death action. On appeal this court stated it cannot read into a petition something that is not there and that evidence may or may not support allegations of a petition, but on demurrer to a petition, this court cannot indulge in inferences as to what the evidence will ultimately show. This brings us right back to Hanzlick v. Republic County Comm'rs, supra, where the court said that the real question, then, is whether there is a sufficient allegation that the assessor or county board of equalization was guilty of fraud or conduct amounting to fraud. This rule follows the general rule. (84 C. J. S., Taxation, § 566 [g], p. 1119, [j], p. 1123; 51 Am. Jur., Taxation, § 771, p. 699; 1 Cooley on Taxation, 4th ed., § 302, p. 636.)
Many of our decisions have been cited by industrious counsel but we think it would be surplusage to discuss at length the many questions presented therein although we have considered all of them. That would leave nothing for the trier of the facts to do. Such is not the purpose to be served by an appeal to this court or is this court interested in commencing to serve such a purpose. Therefore, we will touch upon those decisions which set up rules applicable to the merits of this petition.
The case of Symns v. Graves, 65 Kan. 628, 636, 70 Pac. 591, stated the controlling rule to be that fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud, will vitiate any official act, and courts have power to relieve against all consequential injuries but the facts therein were not sufficient to satisfy the required standard. In a similar situation in Finney County v. Bullard, 77 Kan. 349, 357, 94 Pac. 129, this court, speaking through its then Chief Justice, the Honorable William A. Johnston, and commenting upon an earlier case, said that the rule there adopted for assessment (one class of property was assessed and taxed at its actual value and all other property in the same county was assessed and taxed at only twenty-five percent of its value) was designed to destroy equality and uniformity between classes of property, one basis being used for the disfavored class and another basis for all other property in the county. The rule making such a gross discrimination could not have been adopted or applied in good faith, and hence it furnished a case for equitable relief. (p. 357.)
In Bank v. Lyon County, 83 Kan. 376, 378, 111 Pac. 496, plaintiffs’ personal property was alleged to have been assessed at forty percent of its value. After stating that equity will grant no relief, if no fraud is shown on the part of the taxing officers or the statutory board of review, for excessive or unequal taxes where the inequality in assessment arises out of mere errors of judgment, accidental omission of property from the tax rolls or accidental differences in valuations resulting from error in judgment, the court there stated.
“The action of the officers in assessing one class of personal property at forty per cent, another at thirty per cent and real estate at twenty-five per cent of its cash value was the result of deliberation and intention, and was so arbitrary and capricious as to constitute fraud on the rights of the plaintiffs . . .,” (p. 379.)
and the court further stated:
“If all property in Lyon county had been assessed at forty percent of its full value, the plaintiffs would have had no cause to complain. The fraud upon their rights results from the arbitrary distinction made between their property and other property [p. 381] ... By illegally valuing the personal property of the plaintiffs at a higher rate than other personal property in the county an inequitable discrimination was made between the plaintiffs and those taxpayers who own no real estate and who pay only upon personal property.” (p. 382.)
The last above-quoted case presents a very good discussion of how constructive fraud is made to appear, but we do not consider it necessary to rewrite the entire opinion herein. An interesting treatment of taxation of banks is found in Bank v. Geary County, 102 Kan. 334, 170 Pac. 33, cited by the parties,- but it is not of compelling force in deciding the situation now before us.
The case of Voran v. Wright, 129 Kan. 601, 284 Pac. 807, which is an opinion on rehearing (original opinion Voran v. Wright, 129 Kan. 1, 281 Pac. 938) quotes a forceful and clear definition of equality and uniformity previously given in Wheeler v. Weightman, 96 Kan. 50, 58, 149 Pac. 977. It reads:
“ ‘The essentials are that each man in city, county and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout the jurisdiction levying the tax. The imposition of taxes upon selected classes of property to the exclusion of others, and the exemption of selected classes to the exclusion of others, constitute invidious discriminations which destroy uniformity.’ (p. 58 [Citations].).” (pp. 613, 614.)
Numerous decisions of the Supreme Court of the United States are cited but, as previously stated, we find no justification for discussing them in detail at this stage of the proceeding.
After reviewing the authorities and carefully studying the allegations of the petition and the exhibits made a part thereof, we have no difficulty in deciding that the petition alleges acts on the part of the commission which, when coupled with the alleged knowledge that it had at the time, were so abritrary, oppressive, and grossly discriminating as to constitute constructive fraud on the rights of the taxpayer and to destroy uniformity and equality both in the manner and the result of fixing the assessed valuation at sixty percent of the true value of taxpayer’s property for taxation purposes in Cherokee county when all other property located in that county subject to the same tax levy had an assessed valuation for taxation purposes of twenty-one percent of its true value. Thus the petition did state a cause of action and the trial court erred in sustaining the demurrer.
Judgment reversed.
Price, J., concurs in the result. | [
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The opinion of the court was delivered by
Jackson, J.:
This was an action brought by the plaintiff, a former employee of the defendant, upon an alleged amount due plaintiff as part of his compensation. Defendant’s demurrer to plaintiff’s reply was overruled and defendant appeals.
Plaintiff in his petition alleged that he was employed on June 15, 1956, as manager of defendant’s Wichita office; that he was to receive a salary of $500 per month for his services and in addition was to receive five percent of the gross charges placed upon the books of the defendant corporation during the period of the first year from June 15, 1956, to and including June 15, 1957. Plaintiff further alleged that he continued to represent defendant corporation as general manager until May 15, 1957; that during said time he received the $500 salary, and that accumulated charges were placed upon the books of defendant company in the approximate sum of $110,000; that under the terms of his contract of employment he was entitled to receive an additional $6,000 above his monthly income. Plaintiff alleged that on May 15, 1957, plaintiff was discharged to avoid payment of the $6,000, and asks' judgment for this sum on his first cause of action.
Plaintiff had a second cause of action based upon G. S. 1949, 44-301 and 44-302. His- right to recover on this cause would seem to depend at best upon his recovery on the first cause of action.
Defendant by its answer admitted the employment at the salary of $500 per month but alleged the bonus to have been based upon two percent of the net profits of the Wichita office before taxes, and that there had been no profit during plaintiff’s tenure of office.
Defendant further alleged:
“5. The defendant further alleges that on May 13, 1957, said plaintiff was paid the sum of $220.27, representing the balance of monthly wages due him. In addition thereto, this defendant further paid to the plaintiff an additional sum in the amount of $220.27, the latter representing severance pay in full for any and all existing claims of the plaintiff against this defendant. That said sum was paid by Certified Credit Corp. draft No. 8037. That in connection therewith, this defendant at the time of the issuance and tender of said check typed upon the back of the same the following:
‘Severance pay in full for all claims against Certified Finance Inc.’
That a copy of said draft is hereto attached and by reference made a part hereof. That the plaintiff herein accepted check No. 8037 with full knowledge and understanding of defendant’s conditions and did thereafter endorse and negotiate the same for his own use and profit; that plaintiff’s acceptance, retention and use of said moneys constituted complete accord and satisfaction of any existing obligations herein.”
Plaintiff filed a reply which, omitting the prayer, was as follows:
“Reply
“Comes now the plaintiff and for his reply to the Answer of the defendant herein filed, denies each and every, all and singular the allegations therein set forth that are contra to the allegations, averments and statements set forth in plaintiff’s Petition.
“Further replying, plaintiff specifically denies the allegations, averments and statements set forth in defendant’s Answer in Paragraphs 4 and 5 except as hereinafter admitted.
“Plaintiff admits that under his agreement with the defendant as compensation for his services he was to receive $500.00 per month exclusive of any percentage of the gross charges placed upon the books of the corporation during the period of the first year from June 15, 1956, to and including June 15, 1957, and alleges that he was paid semi-monthly the sum of $220.27 which represented his take-home pay after proper deductions were taken out of his $500.00 monthly salary, and plaintiff further admits that on May 13, 1957, he was paid the sum of $220.27 and in addition thereto plaintiff was paid an additional sum of $220.27 severance pay and upon the check representing the $220.27 payment there was an endorsement reciting ‘severance pay in full for all claims against Certified Finance, Inc.’ and in connection therewith plaintiff specifically alleges and informs the court that plaintiff had at the time of the acceptance of said severance check two separate and distinct claims against defendant dependent upon different facts, one of which namely, the amount of salary was undisputed and the other of which was a dispute over the amount of the percentage of the gross charges placed •upon the books of the corporation during the period of the first year from June 15, 1956, to and including June 15, 1957, and the aforesaid check of $220.27 bearing the endorsement as above stated was only in satisfaction of the undisputed claim and was not intended to bar the plaintiff of any right to his claim for the additional percentage pertaining to the gross charges, and plaintiff specifically denies that his acceptance of said check bearing No. 8037 and his retention and use of the monies derived therefrom constituted an accord and satisfaction of any amount due him by virtue of his contract to receive 5 percent of the gross charges placed upon the books of the corporation as aforesaid.”
The defendant filed a general demurrer to the above reply which the district court overruled, and which defendant has now appealed to this court.
The sole question is whether the reply shows that plaintiff’s cause of action is barred by an accord and satisfaction.
The terms accord and satisfaction have been defined in the cases as being a contract which composes a dispute between the parties and ends the dispute under the terms of the new contract.
In Lighthouse for the Blind v. Miller, 149 Kan. 165, 86 P. 2d 508, the first paragraph of the syllabus reads:
“An accord is. a contract between creditor and debtor for the settlement of the claim by some performance other than that which is due. Satisfaction takes place when the accord is performed.”
Again in the late case of Manning v. Woods, Inc., 182 Kan. 640, 324 P. 2d 136, in the second paragraph of the syllabus the terms are defined as:
“An accord and satisfaction is the adjustment of a disagreement as to what is due from one party to another and the payment of the agreed amount.”
In the case at bar it is shown without dispute that the parties to-this appeal were having a disagreement as to the right of the plaintiff in his contract for compensation over and above his agreed monthly salary. The defendant having terminated the employment paid plaintiff one check covering all of plaintiff’s salary up until the time of the severance of the employment, and then in addition thereto tendered him a second check for $220.27, the same amounting to his take home pay for two additional weeks thereafter. On. the back of this check was endorsed: “Severance pay in full for all claims against Certified Finance Inc.” (Italics supplied.)
The syllabus in the case of Hoop v. Kansas Flour Mills Co., 124 Kan. 769, 262 Pac. 544, reads as follows:
“Where a creditor and debtor have a dispute as to the amount of a debt, and the debtor remits checks for the amount of what he contends the debt to be, intending such remittance to be in full payment thereof, and the creditor accepts and knowingly retains the amount thus remitted, the legal consequence is that of an accord and satisfaction, notwithstanding the creditor immediately wrote to the debtor stating that he had deposited the checks, indorsed under protest, and that he expected the debtor to pay him the balance claimed by him to be still due from defendant.”
The reply admits that plaintiff received the above described check with the endorsement thereon, endorsed the check, cashed the same, and used the proceeds thereof. The majority of the court holds that the admitted facts of the reply show that plaintiff had accepted payment for all of his claims for compensation against the defendant and had become a party to an accord and satisfaction. The demurrer to plaintiff’s reply should have been sustained and the order of the district court in that connection must be reversed.
It is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is fhe second of two appeals in a divorce action, the first having been disposed of in Dawkins v. Dawkins (No. 40,956), 183 Kan. 323, 328 P. 2d 346.
The opinion in the case just mentioned contains a brief but accurate recital of the principal facts essential to a proper understanding of the lawsuit and for that reason is made a part of this opinion by reference. Supplementing what is there stated it suffices- to say the record discloses that after hearing all evidence adduced at the trial, and finding that as to all property in question between the church and its minister, the defendant Reynolds Dawkins was the owner thereof, which property, it is to be noted, has now been held by this court to be the property of the church, the trial court granted fhe plaintiff, LaVerne Dawkins, a divorce on grounds of extreme cruelty. It then' awarded her custody of the two minor children and, on the basis of its decree as to ownership of the property in controversy and fhe financial status of the parties by reason thereof, decreed the church parsonage to be the property of the plaintiff, and directed that the defendant pay for and on behalf of the plaintiff certain monetary awards as and for permanent alimony, child support, and attorneys’ fees, together with the costs of the action.
Following rendition of the foregoing decree Reynolds Dawkins filed a motion for a new trial. When such motion was overruled he perfected the instant appeal, wherein, under proper specifications of error, he challenges the propriety of all rulings and orders made by the trial court in connection with the divorce phase of the action, except the portion of the decree dissolving the marital status of the parties.
In approaching consideration of the present appeal it should be stated at the outset that an examination of the entire record, viewed in the fight of our decision in Dawkins v. Dawkins (No. 40,956), supra, makes it crystal clear that all portions of the trial court’s judgment relating to permanent alimony, support for the minor children, division of property, and allowance of attorneys’ fees are based, at least in part, on an erroneous concept respecting the earning capacity of the appellant and the amount of property owned by the parties, whose rights were affected and determined by such portions of that decree. .Under these circumstances the end result, so obvious as to almost preclude the necessity for stating it and certainly requiring no citation of authorities in its support, is that such matters were disposed of by the trial court on an erroneous premise and all rulings and orders with respect thereto must be reversed and sent back to that tribunal with directions to review and dispose of them on the basis of the earning capacity of appellant and the amount of the property owned by the parties involved in the marital phase of the cause, after giving full force and effect to what is said and held in Dawkins v. Dawkins, supra.
Since there is no appeal from the judgment granting appellee a divorce from appellant on grounds of extreme cruelty the conclusions just announced dispose of practically all the issues raised by the parties on this appeal. However, there are two questions which have not been determined by what has been previously stated that require attention.
Conceding that in this jurisdiction orders made respecting the custody of minor children in divorce cases are within the sound judicial discretion of the trial court and will not be disturbed on appellate review in the absence of a clear affirmative showing of an abuse of that discretion appellant contends the trial court erred in awarding appellee the custody and control of the two minor children because the evidence discloses its ruling in that respect was based on passion and prejudice. The welfare of children has always been a mátter of great concern to courts generally, including our own. On that account we have made a careful and extended examination of the record touching the point now under consideration. Having done so we fail to find evidence warranting a conclusion the trial court abused its discretion in giving appellee custody of the involved children and, it may be added, find no evidence whatsoever sustaining appellant’s position that action was based on passion and prejudice. Moreover, we have concluded that from and after the date of this decree the appellant should make the payments provided for in the custody order up to and until the time the trial court is able to again pass upon the merits of all orders and rulings herein reversed. This, it is to be noted, is in no sense to be regarded as any indication on the part of this court as to what the trial court’s order with respect to child support payments should be on final determination of the matters herein passed upon.
Appellee contends that appellant has acquiesced in the judgment of the trial court. In connection with this question, although we are unable to find anything in the journal entry of judgment attached to the notice of appeal- to that effect, it is argued that appellee moved into the parsonage in accord with the trial court’s judgment and appellant moved out, taking with him household furnishings which were awarded to him by that tribunal. Assuming the facts to be as stated, we are unwilling to say there was anything in that arrangement which, under the existing facts and circumstances, can be construed as such an acquiescence in the judgment as would bar the appellant from maintaining the instant appeal.
Based on what has been heretofore stated and held the rulings and orders of the trial court relating to .permanent alimony, support for the minor children, division of property and the allowance of attorneys’ fees are reversed with directions to hear and determine those matters in accord with the views expressed in this opinion.
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The opinion of the court was delivered by
Fatzet, J.:
This is an original proceeding in quo warranto brought by the attorney general'and the county attorney of Harvey County to determine the constitutionality of an act of the legislature creating and establishing the “Little Arkansas River Watershed District” (G. S. 1957 Supp. 24-1301-1305 [Ch. 227, L. 1957]). Upon application of the county attorneys of Ellsworth, Reno and Rice Counties and the county counselor of Sedgwick County, this court permitted them to intervene as parties plaintiff.
As established by the legislature, the district is comprised of approximately 821,000 acres in portions of Ellsworth, Rice, McPherson, Marion, Reno, Harvey and Sedgwick Counties. The boundaries were established by the act and the land included therein was described by section, township and range. As shown by the following map, the district (shaded area) consists generally of the watershed area of the Little Arkansas River and its tributaries, however, as indicated by the map and provided in the act, the corporate limits of the cities of Newton and McPherson were specifically excluded from the district. As will be noted, that portion of the district within Ellsworth and Marion Counties, while included on the map, is not designated as being located in those counties.
The challenged act is summarized and quoted as follows: (All reference to the act is directed to G. S. 1957 Supp. unless otherwise noted.) The title reads,
“An Act creating and establishing the ‘Little Arkansas river watershed district’ as an instrumentality and agency of the state of Kansas.”
Recitals in the- act following the title and preceding the enacting clause read:
“Whereas, In order to promote the general welfare of the state of Kansas, it is hereby declared necessary to create and establish watershed districts, as bodies politic and corporate and as instrumentalities and agencies of the state of Kansas, for the purpose of implementing and executing the declared policy of the state of Kansas to conserve and develop the soil and water resources of the state of Kansas, and
“Whereas, such districts must: (1) Comprise all or a reasonable portion of a natural drainage basin; (2) be large enough to be effective, and small enough to be manageable; and (3) be governed by general law; and
“Whereas, the proposed ‘Little Arkansas river watershed district’ meets each and every one of the above requirements, and should be created and established by act of the legislature. . .
Pertinent language of the act is quoted:
“24-1301. There is hereby created and established a body politic and corporate (and as an instrumentality and agency of the state of Kansas) to be known as the ‘Little Arkansas river watershed district.’
“24-1302. Said district shall include and be comprised of the following area:” (Here follows a description by section, township and range of approximately 821,000 acres comprising the district.)
“24-1303. Within said ‘Little Arkansas river watershed district’ the following subdistricts thereof are hereby established:” (Here follows a description by section, township and range of nine subdistricts which generally comprise the watershed area of each tributary of the Little Arkansas River, except the corporate limits of the cities of Newton, McPherson and Burrton, which were specifically excluded from their subdistrict or subdistricts.)
“24-1304. Such district shall be governed by, and be operated in compliance with, the general laws of the state of Kansas relating to watershed districts and other appropriate acts.”
24-1305 provides for the organization of the district to be completed within a date not more than sixty (60) days after the effective date of the act.
On June 12, 1957, the meeting to organize the district was held at Halstead, and the defendant board of directors were duly elected. On August 2, 1957, the directors met and adopted a budget of revenues and expenditures for 1958, resulting in an ad valorem tax levy of 1.77 mills on the taxable property of the district. When the taxes became due, only a few paid the levy under protest, and of those few, only the Continental Oil Company and the Continental Pipe Line Company filed suits pursuant to G. S. 1949, 79-2005 to recover the taxes so paid.
Pursuant to 24-1219 the defendant directors issued and sold to certain banks in Harvey County no-fund warrants of the district in the amount of $80,000 to defray initial organizational and administrative expenses, which are currently outstanding and unpaid. At the present time sufficient taxes have been collected by the treasurers of the counties within the district with which to retire more than 50 percent of the no-fund warrants.
At the commencement of the action, this court granted restraining orders prayed for in the amended petition, restraining the defendant officers of the district from collecting or disbursing any monies received, and the treasurer of Harvey County from collecting monies from any county in the district and from disbursing any money to any officer of the district.
Plaintiff first asserts the act is a special law where a general law can be made applicable and is therefore repugnant to Art. 2, § 17 of the Constitution of Kansas which reads in part:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can he made applicable, no special law shall he enacted; and whether or not a law enacted is repugnant to this provision of the. constitution shall he construed and determined hy the courts of the state: . . (Emphasis supplied.)
Does the act violate Art. 2, § 17 of the Constitution? Manifestly an act of the legislature which creates and establishes a watershed district by legislative fiat, fixing its boundaries and specifically describing the land therein by section, township and range so as to constitute one compact geographic area, is a special law (Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064; Gardner v. The State, 77 Kan. 742, 95 Pac. 588; The State v. Nelson, 78 Kan. 408, 96 Pac. 662; Howard v. McIntosh, 118 Kan. 591, 235 Pac. 1034). The correctness of this conclusion is supported by the defendants frank concession that the act “is openly and without doubt ‘special’ legislation,” and that the district is governed by the Watershed District Act (24-1201-1221), a general law in effect at the time it was enacted.
The act being special, we are required to determine whether a general law could have been made applicable. It is well settled that whether a special act is repugnant to the second clause of Art. 2, § 17 shall be determined by the courts. In a recent decision on this question, Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387, this court said:
“Prior to the 1906 amendment of the Constitution this court adhered generally to the rule that it was for the legislature to determine whether a special law was justified. The evils inherent in the system as it existed prior to the amendment of the Constitution were discussed in Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583. After the Constitution was amended the legislature no longer had the power to finally determine either that a proposed law would have uniform operation throughout the state or that a local condition exists which requires a special law, and it became the duty of the courts to determine the constitutionality of an act without reference to anything the legislature had declared, either in the act in question or in other acts.” (l. c. 11.) (Emphasis supplied.)
See, also, Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583; Gardner v. The State, supra; The State v. Nelson, supra; Murray v. Payne, 137 Kan. 685, 21 P. 2d 333; State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102.
The effect of the amendment of 1906, with respect to the second clause of the section, was to transfer to the courts the “discretion” .theretofore vested in the legislature of the relative propriety of whether a general law could be made applicable, i. e., “was more expedient,” and to make the question a judicial one, without an express criterion as to “where a general law can be made applicable.” The “repugnant” clause does not prohibit special acts per se, for this, if no general law can be made applicable, is permissible (Higgins v. Johnson County Comm'rs, 153 Kan. 560, 112 P. 2d 128; Murray v. Payne, supra; Water District No. 1 v. Robb, supra). Neither is it directed to a general law, for a general law is not prohibited. Obviously, it is directed to the question whether the subject matter of the act, whether general or special in form, is proper for special legislation (Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915; Richardson v. Board of Education, 72 Kan. 629, 84 Pac. 538; Water District No. 1 v. Robb, supra; Higgins v. Johnson County Comm'rs, supra).
Courts are not concerned with the wisdom, necessity or merits of legislation, and whether an act is repugnant to the section is to be determined as a judicial question. The problem presented is not simple and there seems to be no easy answer to it. In the past it has been found expedient to leave the question of whether a general law can be made applicable, open, to be determined upon the circumstances of each case. In this respect our decisions have not been entirely consistent and confusion on the subject has inevitably grown out of the effect of the amendment ‘in making a judicial question out of a political one. If we follow Panhandle Eastern Pipe Line Co. v. Miami County Comm'rs, 151 Kan. 533, 99 P. 2d 828, in which it was conceded the act was special, all laws special in application and operation would be repugnant to the section. This would clearly violate the section. On the other hand, in Higgins v. Johnson County Comm'rs, supra, it was said:
“Was the end to be accomplished legitimate? If so, the act may be supported as valid special legislation, although formulated in language ordinarily applicable to a general law. . . .” (1. c. 565.)
This rule, when analyzed, would indicate that courts may exercise discretion in passing upon the expediency, wisdom and perhaps the policy of legislation. In other words, that courts may substitute their judgment for that of the legislature as to what is, or is not, a legitimate and expedient policy in a given situation. Again, in State, ex rel., v. French, 130 Kan. 464, 286 Pac. 204, we said:
“. . . Conditions with reference to the classification which it (the legislature) desired to make were solely matters for legislative determination. . . .” (l. c. 467.)
This rule, if followed, would amount to nothing less than striking the amendment out of the section, and reviving the evils of special legislation which brought about its adoption. In Murray v. Payne, supra, it was said:
“In doing this (considering the sufficiency of the classification) the court must consider the nature and purpose of the legislation. . . .” (l. c. 687.)
The court there indicates it looks to the subject matter of the act under consideration as one of the criteria of validity..
What is the criterion for valid special legislation? To restate the question, what are the standards to guide courts in determining where a general law can be made applicable? It would seem virtually impossible to formulate a general rule for determining the question, but it must be borne in mind that the second clause of the section was intended to preserve uniformity and consistency in the statutory enactments of the state, to eradicate special legislation involving a multiplicity of laws, and to require that general laws be enacted whenever possible to do so (Proceedings and Debates of the Wyandotte Constitutional Convention of 1859, p. 133; 82 C. J. S., Statutes, § 157, p. 264; State, ex rel., v. Board of County Comm’rs, 173 Kan. 367, 245 P. 2d 1181). In 50 Am. Jur., Statutes, § 57, p. 79, the rule is stated: held to apply where there was no showing of local conditions requiring special treatment, and where there was in force a statute of state-wide operation, on the subject with which the special act seeks to deal on behalf of the particular county.”
“There are cases, however, in which the constitutional inhibition against a special law, where a general law can be made applicable, have been enforced by the courts. Under such constitutional provision, purposes which can be accomplished by general legislation cannot be made the subject of special legislation. The provision requires the legislature to treat alike all who are in the same condition, to make the law apply to the whole class, and not to a part thereof. Under these rules, the constitutional prohibition of the enactment of special laws where a general law can be made applicable, has been
By taking a composite view of the decisions of this court to determine “where a general law can be made applicable,” the following guides appear evident: (1) where the validity of an act is challenged, the rule of statutory construction which makes it the duty of the courts to uphold the law, if it is possible to do so, has no application however much that principle may apply to' objections falling under other provisions of the constitution (Anderson v. Cloud County, supra); (2) that consideration be given the subject of the act and its operation and effect, without regard to any legislative assertion thereon (Anderson v. Cloud County, supra; Water District No. 1 v. Robb, supra); (3) courts must determine the question by judicial notice of facts and conditions lying within the common public knowledge, and parol evidence is not admissible (Anderson v. Cloud County, supra; Gustafson v. McPherson County, 88 Kan. 335, 128 Pac. 186; State, ex rel., v. School District, supra); (4) if a local situation exists necessitating special legislative action, and particular and unique facts make a general law inapplicable, a special law may be enacted (Water District No. 1 v. Robb, supra, Syl. ¶ 2, p. 12); (5) where the object in view can be accomplished under a general law without “public injury,” the legislature is not at liberty to enact a special law (State, ex rel., v. Hitchcock, 1 Kan. 178, 184; Rambo v. Larrabee, supra). While the Hitchcock case was decided prior to the amendment of 1906, the rule there stated to be binding upon the legislature would now appear to be applicable to the courts by analogy. In the opinion it was said:
“It is not the purpose of the constitution to compel the legislature to accomplish an act of local or special legislation beneficial to one person or locality only, through a general law, which might, in their opinion, result in damage when applied to other persons or localities. . . (l. c. 185.) (Emphasis supplied. )
(6) although not conclusive in itself, the existence of a general law on the subject to which a special act is directed serves “as an apt illustration of the adaptability of a general law on the subject, and as an argument against the necessity for a special law” (Anderson v. Cloud County, supra), and (7) although not here applicable, if a law general in form presently applies to one governmental unit, containing a limitation of time in which there can be operation under it, and there is little or no probability it would ever affect any other governmental unit, it is a special law (Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071).'
The subject matter of the challenged act, while dealing specifically with the creation and establishment of the district, relates generally to water management and soil conservation. This subject is common to all the people of the state whether landowners, tenants who fárm the land, or inhabitants of towns and cities located in the various natural drainage basins. The title and recitals of the act indicate a legislative finding that a general law could not be made applicable; that the creation and establishment of the district would further the public policy of the state with respect to water management and soil conservation, and that the particular special act was necessary to carry out that policy. Such a determination by the legislature is not final. This court is enjoined to give consideration to the subject matter of the act and its operation and effect, irrespective of a legislative assertion or finding, in determining whether it is proper for special legislation (Anderson v. Cloud County, supra; Water District No. 1 v. Robb, supra).
The defendants did not plead facts why the watershed area of the Little Arkansas River and its tributaries is so unique and special as to render a general law inapplicable. Nonetheless, we are required to take judicial notice of facts and conditions lying within the common public knowledge; of the history of the country, and of what the members of the legislature ought to have known when the act was passed, to determine whether a general law could be made applicable to the subject matter (City of Topeka v. Gillett, 32 Kan. 431, 436, 4 Pac. 800; Anderson v. Cloud County, supra; Gustafson v. McPherson County, supra; State, ex rel., v. School District, supra).
It is a matter of common public knowledge, which this court judicially notices, that when the state was organized nature had her own watershed pattern for each stream. Solid mats of native grasses covered much of the land, which held the soil in place and their roots made it porous. When the rains came the water was held by the grasses, allowing it to penetrate the soil. As the state became settled, the sod was broken and the soil was cultivated. As settlement progressed more native grasses were turned under and the amount of cultivated land increased which was exposed to the elements, and nature’s system of water management and soil conservation was destroyed. As the rains fell much of the water ran off the land and penetration into the soil was greatly reduced. Soil erosion became pronounced; the muddy waters filled the streams with silt, and flood problems multiplied. This situation was not of local character or unique to any one watershed but affected many, not limited even to those within the state. The act, being purely creative legislation, established a watershed district for only one drainage basin. Such being its only possible effect, it requires no argument to determine that a general law could have been made applicable to the subject. The conclusion inevitably follows from a consideration of the nature of the subject, that the legislature has never experienced difficulty in framing a general law to reach a desired end, and we look no farther than to the Watershed District Act (24-1201-1221) as an example.
As of March 21, 1958, ten districts were organized under the Watershed District Act, comprising approximately 1,141,722 acres, and nineteen petitions were pending for organization under it. It seems obvious from these facts that “public injury” as referred to in State, ex rel, v. Hitchcock, supra, could not possibly result to any person or locality governed by a general law. However, reference to the Watershed District Act is made to demonstrate under the particular facts and conditions which may be judicially noticed in this controversy that a general law could have been made applicable to the subject, and not to hold that the existence of a general law on a subject to which a special act is directed is conclusive. The rule is stated in Anderson v. Cloud County, supra:
“We are not concluded either way by the fact that a general law on the subject was in existence when a special act was passed. That fact, however, serves as an apt illustration of the adaptability of a general law upon the subject, and as an argument against the necessity for a special law.” (1. c. 735.)
In our judgment, the conclusion herein announced finds support in State, ex rel., v. Hardwick, 144 Kan. 3, 57 P. 2d 1231. That case dealt with the power to prevent soil erosion caused by wind rather than by water, and the decision turned upon the validity of an act empowering boards of county commissioners to exercise powers of local legislation pursuant to Art. 2, § 21. The act was held invalid upon the ground that the matter was almost state-wide in scope and was not a subject of local legislation which could be conferred upon a county tribunal, nor was it a subject which could be limited in scope by fiat of the legislature.
The defendants justify the act upon the ground of an urgent need for a soil and water conservation program in the state, and for haste to create watershed districts to implement the program; that time was the essence of the problem, and that the “piece-meal approach by the petition route” was “slow, tedious and expensive” resulting in “half-way or too limited an approach to an area-wide problem.” While any program to stop the wicked waste of the basis of our prosperity ranks high in the governmental affairs of the people, and, as Patrick Henry stated 150 years ago, “The greatest patriot is the man who stops the most gullies,” we cannot ignore that this need is state-wide in character, not limited to the watershed in question, or to any other one watershed. Despite the fact that the Little Arkansas River is a gaining stream as it flows over the Equus Beds and has an average annual rate of discharge at Valley Center in excess of 175,000 acre feet, we know of no reason, and none has been suggested, why the characteristics of this land area are so unique as to negate the application of a general law to create a watershed district sufficient in scope and purpose to adequately conserve the soil and precipitation of this watershed. We do not speculate upon specific reasons why the sponsors of the act did not choose to organize the district under the general law, but note that if it was enacted to remove doubt or difficulty of obtaining sufficient petitions or votes to organize the district under the general law, there inheres in the special act the vice which the amendment of 1906 was designed to prevent (Anderson v. Cloud County, supra, p. 736).
We here reproduce parts of pamphlets prepared by the sponsors of the act to acquaint and solicit the support of the people of the district and the members of the legislature, which concede the general law was applicable to create a watershed district, but that their plan of enacting the challenged act would provide a “shortcut route — just like playing ‘Tic-Tac-Toe’ ” over the essential steps required to establish a watershed district under the general law. In our judgment these pamphlets show that the principal reasonfor the special act was to decrease the time required to create a district under the general law which “has been estimated that this process requires a minimum of about two years time ... at a
It has been estimated that this process requires a minimum of about two years' time -- at a cost of approximately $40,000 in local expenditures each year.
This can be done with the proper assistance and cooperation of the-1957 Kansas Legislature.
Steps 1 and 5 have already been determined. To get to 9, the CENTRAL KANSAS WATER CONSERVATION ASSOCIATION is going after the CREATION -• and REALIZATION -- of the LITTLE ARKANSAS RIVER WATERSHED DISTRICT by Legislative Enactment! !
IMMEDIATELY on the heels of this action - and by taking the initiative - the people of this area con accomplish in 6 months what usually takes 8 years. cost of approximately $40,000 in local expenditures each year.” The plan selected by the sponsors has not been conducive to that end. More than a year has elapsed since the spécial act was enacted, $80,000 in no-fund warrants have been issued, and as yet no valid district exists. We do not pass on the merits of legislation, but time alone is not a sufficient justification for a special law where it is conceded a general law could be made applicable.
We have reviewed the authorities cited by the defendants and conclude they are not in point. In Water District No. 1 v. Robb, supra, it was held that the population and urban characteristics of the area involved, including its location as a part of a large metropolitan district, was one which produced a condition requiring special legislation and that a general law was not applicable. In State, ex rel., v. Drainage District, 123 Kan. 191, 254 Pac. 372, the question did not concern special legislation, but held the statute in question not unconstitutional on the ground that it delegated legislative power to petitioners to create a drainage district. In Board of County Comm'rs v. Robb, 166 Kan. 122, 199 P. 2d 530, neither the intervenors nor the state auditor pleaded facts, nor directed attention to matters of common knowledge or of which judicial notice should be taken, to sustain the burden upon them of showing the classification in question was arbitrary and unreasonable, and it was held the act was a valid general law. State v. Pawnee County, 12 Kan. 426 and Beach v. Leahy, Treasurer, 11 Kan. 23, are also cited, but they deal primarily with the discretion of the legislature prior to the amendment of 1906 to determine the need for special legislation. As previously noted, that duty has since been transferred to the courts.
The act discloses that the subject matter is one that can be treated generally, in fact it is one that has been so treated, and a general law has been enacted. If there was no general law covering the organization of watershed districts, such a law could be enacted since the subject matter is one that is common to all the people and should be treated generally and not otherwise. As previously indicated, no particular or unique facts showing a local condition requiring special legislation existed, and since a general law on the subject can be made applicable the act in question violated the second clause of Art. 2, § 17, and is unconstitutional and void. Consequently, it is unnecessary that we discuss and decide other questions presented by the parties except to comment briefly on the effect of language contained in the title and in § 1 of the act describing the district as “an instrumentality and agency of the state of Kansas.” In deciding this controversy we have considered this language to mean the legislature intended to create and establish this district as one of the many political subdivisions created to transact the governmental affairs of the people, particularly since the general watershed law was made applicable for its administration and operation. Had the legislature intended otherwise, the act would have violated Art. 11, § 9 which prohibits the state from carrying on works of internal improvement except to construct, reconstruct and maintain a state system of highways (Leavenworth County v. Miller, 7 Kan. 479; State, ex rel., v. Atherton, 139 Kan. 197, 205, 209, 30 P. 2d 291; State, ex rel., v. Board of Regents, 167 Kan. 587, 207 P. 2d 373; State, ex rel., v. Kansas Armory Board, 174 Kan. 369, 256 P. 2d 143).
The defendants’ motion to discharge the restraining orders heretofore issued is sustained.
From the time the district was created and established until the date this opinion is filed, it had de facto existence and the acts of the defendant directors were the acts of de facto officers, binding as such, between the people of the district and third persons dealing with them as public officers (School District v. The State, 29 Kan. 57, 71; Riley v. Garfield Township, 58 Kan. 299, 49 Pac. 85; Garfield Township v. Finnup, 8 Kan. App. 771, 774, 61 Pac. 812; Davidson v. Chalfant, 85 Kan. 288, 290, 116 Pac. 820; 99 A. L. R. n. pp. 303, 305, 316). The fund now in the custody of the treasurer of the district (being the remaining proceeds from the sale of the no-fund warrants) should be used to pay such warrants, and the proceeds of the tax levy extended upon the property of the district should likewise be made available to the treasurer of the district for that purpose. However, the amounts involved in the tax protest action (G. S. 1949, 79-2005) filed by Continental Oil Company and Continental Pipe Line Company should be refunded by the proper county treasurer to those taxpayers.
Judgment is entered for the plaintiff pursuant to the prayer of the amended petition and in accordance with the views expressed herein.
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The opinion of the court was delivered by
Wertz, J.:
This was a consolidated action by the alleged owner of two promissory notes against the makers thereof for recovery on the notes. For convenience, the petitions, which are identical except for dates of execution and due dates of the two notes, will be considered as one. Defendants appeal from an order overruling their demurrer to the amended petition.
The amended petition of Cosette Snedeger,'plaintiff (appellee), alleged the execution by J. A. Schrader and Florence Schrader, defendants (appellants), of two promissory notes to Mrs. Bessie A. Mignery or order. Copies of the notes were attached to and made a part of the petition. Plaintiff alleged the maturity of the notes, the payment of a portion of the interest thereon and the refusal of defendants to pay the balance owing on the principal and interest. Plaintiff further alleged that she became the owner of the promissory notes by virtue of a decree of descent entered by the probate court of Reno county on March 3, 1955, in the matter of the estate of Bessie A. Mignery, deceased. The decree of descent, which was attached to and made a part of the amended petition, set forth the residence of the decedent in Reno county, her death more than one year prior to the filing of the petition, and listed certain real estate and personal property owned by decedent at the time of her death. After noting no will of the decedent had been admitted to probate and no administration of her estate had been had in the state, the decree declared plaintiff the sole heir of decedent. The court then decreed:
“. . . the above described real estate and personal property, and all other real estate and personal property within the state and owned by the decedent at the time of her death, subject to any lawful disposition thereof heretofore made, be and the same is hereby assigned to and vested in the following named person in the following proportion or part:
“1. Cosette Snedeger, 100%.” [Emphasis supplied.]
No specific mention was made in the decree of the promissory notes here in issue.
Defendants demurred to the amended petition on the grounds that plaintiff had no legal capacity to sue and the district court had no jurisdiction of the subject matter of the action. On this appeal from the overruling of the demurrer defendants maintain ownership of the promissory notes was not dealt with specifically by the probate court in its decree of descent and therefore plaintiff could not and did not acquire title to them by reason of the descent proceedings. Defendants then assert title to all choses in action belongs to the estate of a decedent and actions on such choses must be brought by an administrator or executor and cannot be brought by an heir or distributee. They maintain further that-probate courts have exclusive original jurisdiction of all matters pertaining to the settlement and distribution of a decedent’s estate and as a consequence the district court has no jurisdiction to deal with the issue of ownership of the notes here in suit.
We cannot accept defendants’ contentions. The pertinent portions of G. S. 1949, 60-705, which sets forth the grounds for demurrer to a petition, are as follows:
“The defendant may demur to the petition only when it appears on its face, either: First, that the court has no jurisdiction of the person of the defendant, or the subject of the action. Second, that the plaintiff has no legal capacity to sue.” [Emphasis supplied.]
This court has repeatedly held, in support of the clear language of the statute, that in order to render a petition demurrable on any statutory ground the defect must appear on the face of the petition. (Ables v. City of Topeka, 180 Kan. 204, 206, 303 P. 2d 177; Houston Lumber Co. v. Morris, 179 Kan. 564, 297 P. 2d 165; Kendall v. Elliot, 177 Kan. 630, 281 P. 2d 1088; Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194, and cases cited therein.)
Statutory authority for decrees of descent is found in G. S. 1949, 59-2250 et seq. Section 59-2250 provides for proceedings to determine the descent of property of persons dead more than one year, where no will has been admitted to probate and no administration has been had. Section 59-2251 provides the property shall be assigned to the persons entitled thereto at the time of the decedent’s death pursuant to the law of intestate succession. Here, on its face, the decree of descent was in accordance with the statutory terms and vested title in the plaintiff to all of the real estate and personal property within the state oVned by the decedent at the time of her death, whether the property was listed specifically or not. The notes in suit were admittedly the property of decedent at the time of her death. We cannot go beyond the clear words of the decree.
It is stated in 3 Bartlett Kan. Prob., Rev. Ed., § 1356, pp. 232, 233:
“. . . The decree of descent does not create title; it merely declares who has acquired the title of the decedent. The function of the decree is to declare the title which accrues under the law of intestate succession. It releases the title of the heirs from the conditions of administration, and furnishes the heirs with legal evidence to establish title. The decree cannot originate title, but only releases it to tire heirs from the condition of administration to which it was subject, and furnishes the heirs legal evidence of such release. While the decree does not create the title, it is an adjudication as to who acquired the title of the decedent, and, if rendered upon due process of law, is final and conclusive upon that question.”
We do not question the rules of law set forth in the cases cited by defendants. Plowever, they are not applicable in the instant case, where, in a probate proceeding to determine descent, the decree of the court vested in plaintiff title to all of decedent’s property. On the face of the petition it is clear that plaintiff had acquired title to the promissory notes by virtue of a valid order and judgment of the probate court and therefore had legal capacity to sue in the district court. The judgment is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This, was an action brought by the executors of the estate of Pearl Buckbee Biege against Ray R. Biege, Sr., the surviving spouse, for the purpose of bringing assets into the estate.
The petition contained four causes of action. The first three, concerning conversion of checks amounting to $4,095.66, are identical, and we treat them as one. The plaintiffs-executors charged the defendant, Ray Biege, with endorsing the name of decedent after her death upon these checks, which were payable to her order, and causing them to be cashed and deposited in his account the day following her death. In the fourth cause of action the executors sought an accounting for payments received by defendant on an escrow contract for the sale of real property which had been held by decedent and defendant as joint tenants. The trial court rendered judgment for the plaintiffs on the first three causes of action and for the defendant on the fourth cause of action. Plaintiffs appeal from the judgment rendered against them on the fourth cause of action and defendant cross-appeals from the judgment rendered against him on the first three causes of action.
The facts relating to the determinative issue involved in plaintiffs’ appeal from the judgment rendered on the fourth cause of action are as follows:
On and prior to July 21, 1952, defendant, Ray Biege, and his wife, Pearl, were the owners as joint tenants with the right of survivor-ship and not as tenants in common of certain real estate in Reno county, and administered the property as such. On the mentioned date they sold the property to Silas and Odessa Cooper on a real estate contract, placing the contract, together with a warranty deed to tire property, in escrow in a Hutchinson bank. The consideration for the contract was $7500. Fifty dollars was paid in cash and the balance was payable at the rate of thirty dollars a month. The contract provided that all future payments were to be made to the bank, which was instructed to deposit such payments to the joint survivorship bank account of Ray and Pearl. The contract contained inter alia provision that the payments were to be made promptly, that the Coopers should have immediate possession, that if they failed to make the payments due or to pay the taxes or to keep the property insured or committed waste or did not perform any of the terms and conditions or covenants, the contract would be forfeited and the payments already made would be retained as liquidated damages and rent and the sellers would be allowed to re-enter and take complete possession of the premises. The contract itself contained no provision that the right to receive payments was held in joint tenancy. Payments were made to the bank by the Coopers under the terms of the contract and, as instructed, the bank deposited these payments to the joint bank account of Ray and Pearl. At the time of Pearl’s death, July 13, 1954, there still remained unpaid on the contract $7013.57, and thereafter the bank continued to collect the payments under the contract and to deposit them in defendant’s account, the former joint surviv-orship account. Plaintiffs-executors seek to recover an undivided one-half interest in the proceeds collected on the contract and deposited to defendant’s account since the death of Pearl.
The question presented by plaintiffs’ appeal is whether a husband who joined with his wife as a vendor in a real estate contract for the sale of real property held by them as joint tenants with the right of survivorship is entitled to the unpaid portion of the purchase price under the contract of sale by right of survivorship upon the death of the wife, or does such contract constitute a severance of the joint tenancy.
One of plaintiffs’ contentions is that, the contract of sale not specifying otherwise, a tenancy in common was created. (G. S. 1957 Supp., 58-501.) Therefore, defendant was entitled to only an undivided one-half interest in all the payments made after Pearl’s death, rather than the full proceeds to which he would have been entitled as survivor of a joint tenancy. Another contention necessary to support the first is that the sale of the property and the deposit of the deed in escrow, along with possession, completely and wholly severed any relationship of joint tenancy in any subject mat ter and created a new tenancy presumed under G. S. 1957 Supp., 58-501 to be a tenancy in common.
Plaintiffs contend that the unities in interest, title, time and possession were severed when the Bieges changed their right from ownership and possession of realty as joint tenants to the legal right to receive payments or personalty. It is here noted that under the express provisions of G. S. 1957 Supp., 58-501 a joint tenancy may be created in personal as well as real property. (Bouska v. Bouska, 159 Kan. 276, 280, 153 P. 2d 923; Spark v. Brown, 167 Kan. 159, 164, 205 P. 2d 938; In re Estate of Fast, 169 Kan. 238, 242, 218 P. 2d 184.)
Assuming the unities rule were applied, there was certainly unity of title as legal title remained in the joint tenants, Ray and Pearl; the unity of interest continued in the holders of the legal title and in their security interest; unity of possession was unchanged as such unity does not require actual possession, as we can have joint tenancies in a reversion or remainder and even in a possibility of a reverter. In the event of breach of the contract, both parties as joint tenants could have brought an action for cancellation of the contract and redelivery of the deed and could have taken actual possession of the property. The unity of time was unchanged inasmuch as Ray and Pearl acquired the property in joint tenancy and executed the contract at the same time. (38 Minn. L. Rev. 466, 477, 478.) We do not agree that a mere change in the form of property is conclusive proof of an intent to sever a joint tenancy or that such a change destroys unities between joint tenants. In the instant case no unities were destroyed but, rather, the character of the property was changed. That event may well be coincidental and without significance, since in this state the joint tenancy may be had in personal as well as in real property. Under the statute (58-501) the intent of the parties and not the fact of a change in the form of the property controls.
Plaintiffs seem to argue that since the conveyance of one joint tenant to an outsider severs the joint tenancy, the conveyance of all must be just so much stronger in showing intent to repudiate the tenancy. It appears to us much more logical to say that when all joint tenants concur in an act and none dissent there has been no hostile or adverse act which would terminate the tenancy. Changing the form of the property is an act unrelated to the holders’ status as joint tenants. Joint tenancy is a relationship between certain people who have as a result of that tenancy certain rights in the res. If under our statute joint tenancy may be had in both personalty and realty, there is no reason to alter the personal relation of joint tenancy because of an act done jointly to the property. It was held by the High Court of Justice in Ireland in an opinion written by O’Connor, L. J., in Hayes’ Estate [1920] 1 I. R. 207:
“An agreement for sale entered into by the persons who were together joint tenants of real property does not in itself, and in the absence of evidence of intention, operate as a severance of a joint tenancy in the purchase-money.”
It was further held that a mere agreement by persons entitled as joint tenants to convert their property from one species to another does not operate to work a severance.
It was stated in Fish v. Security-First Nat. Bank, 31 Cal. 2d 378, 189 P. 2d 10, 15, that, “The proceeds of joint tenancy property, in the absence of contrary agreement, retain the character of the property from which they are acquired.” (Citing cases.)
Other cases suggesting or holding that a change in the property does not affect the relation of joint tenancy unless intent to do so is manifested are Watson v. Watson, 5 Ill. 2d 526, 126 N. E. 2d 220, 223, 224 (where equities existed); In re Estate of Jogminas, 246 Ill. App. 518; In re De Witt’s Will, 202 Misc. 167, 114 N. Y. S. 2d 81; Simon v. Chartier, 250 Wis. 642, 27 N. W. 2d 752, 754; In re Estate of Baker, 247 Iowa 1380, 78 N. W. 2d 863 (see dissenting opinion, p. 869); 41 Cornell Law Quarterly 154; 38 Minn. L. Rev., supra. Tenancies by the entirety result in proceeds of property, which was so held. (Sheldon v. Waters, 5 Cir., 168 F. 2d 483, 485; Detroit & Security Trust Co. v. Kramer, 247 Mich. 468, 226 N. W. 234; Bramberry's Estate, 156 Pa. 628, 27 Atl. 405.)
It would appear that in view of our statute a joint tenancy is severed only in the manner in which it was created, i. e., by the clear intent of the parties. Plaintiffs rely on the case of Berry v. Berry, 168 Kan. 253, 212 P. 2d 283, to sustain their position. This case, however, is easily distinguishable and, in fact, poses a different question entirely. There, a husband and wife, joint tenants in certain real estate, executed a joint and mutual will which by its terms was declared to be contractual. Under the provisions of the will the survivor was to take a life estate in all the property of the deceased, and on the death of the survivor all the property was to be divided by the two sets of children named in the will. After the husband’s death the will was admitted to probate, and upon final settlement of his estate the surviving widow claimed full title to the joint tenancy property. In holding that the terms of the contractual joint and mutual will effected a severance of the joint tenancy provision in the deed to the land, the court found the will to be an agreement, testamentary in form, that the survivor should take a life estate in the property, however owned by the parties, with remainder over. Such an act was clearly inconsistent with the existence of a joint tenancy and indicated an intention and agreement that such a relationship should not exist. A joint tenancy, of course, may be severed by the express agreement of the parties to terminate it.
We agree with the trial court’s well-reasoned holding that notwithstanding the Bieges entered into an executory contract to sell and convey the land, they were the owners of the legal title to the real estate, subject to the escrow contract for the sale thereof, as joint tenants and not as tenants in common, and at the death of Pearl the defendant as surviving joint tenant became the sole owner of the legal title to the real estate and all rights under the escrow contract for the sale thereof.
Defendant contends on his cross-appeal that the trial court erred in rendering judgment against him on the first three causes of action on the ground that the actions were barred by the two-year statute of limitations, G. S. 1949, 60-306 (Third).
The facts necessary to determine this issue follow: At the time of her death, July 13, 1954, Pearl Biege had in her possession and payable to her order certain checks totaling $4095.66. The day following Pearl’s death defendant endorsed her name to these checks and deposited them to his account in a Hutchinson bank. Plaintiffs were appointed and qualified as executors of Pearl’s estate on October 7, 1954, and on September 12, 1956, they commenced this action to recover from defendant the amount of the checks converted by him.
It is the gist of defendant’s contention that the statute of limitations commenced to run on the day he converted the checks, July 14, 1954, and that since this action was not instituted until September 12, 1956, it was barred. Plaintiffs contend that the statute was tolled between the death of Pearl and their áppointment as executors, as until that time there was no one in being capable of bringing suit, and that the limitations began to run from tlie day of their appointment, October 7, 1954, and the action was within time.
It must be conceded that the cause of action accrued the day after the death of decedent, i. e., at the time defendant cashed and deposited the checks to his account. ' The general rule of law applicable to the facts in this case is stated in 54 C. J. S., Limitations of Actions, § 243, pp. 271 ánd 272:
“Although there is some authority to the contrary, the general rule is that, where a right of action accrues after the death of the person entitled to sue, limitations will not begin to run until administration is taken out on his estate or until probate of the will and the qualification of an executor, for the reason that until then there is no one in existence who is authorized to sue;
In the early decisions of our court we chose to follow the majority rule. In Carney v. Havens, 23 Kan. 82, we stated:
“If, pending such a contract, the party employed to render the services dies, the statute of limitations does not begin to run, on the claim for compensation, until, by the appointment of an administrator or executor, there is some one authorized to collect and receive the compensation.”
Again in Mills v. Mills, 43 Kan. 699, 23 Pac. 944, we stated that where a cause of action does not accrue until after the death of one of the parties, the limitations will not begin to run on the claim of the estate of the deceased person until an administrator or executor authorized to collect or enforce payment of the claim has been appointed. See also 74 A. L. R. Anno., 837.
It appears to be well settled that the statute of limitations does not begin to run until there are in being a person capable of suing and a different person capable of being sued, as well as a court of competent jurisdiction in which the matter may be heard. (Peyton v. Chase County Nat’l Bank, 124 Kan. 763, 766, 262 Pac. 595; 54 C. J. S., Limitations of Actions, § 111, p. 16; 21 Am. Jur., Executors and Administrators, § 902, p. 878.)
Under the facts in the instant case the appointment of the executors was timely (G. S. 1949, 59-617) and the action was commenced by them within the two years allowed by the applicable statute of limitations. It follows that the judgment of the trial court is affirmed as to both the appeal and cross-appeal.
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The opinion of the court was delivered by
Jackson, J.:
In the court below, appellee sued appellant for damages claiming that appellee had suffered property damage and personal injuries in an automobile collision caused by the negligence of appellant. In the trial of the action plaintiff received a verdict and judgment in his favor and defendant appeals. We shall continue to refer to the parties as they appeared in the district court.
The collision between the 1929 Ford driven by plaintiff and the 1953 Ford driven by defendant occurred during the daytime at the intersection of Kansas State Highway No. 32 and Reno Township Road, in Leavenworth county, a few miles east of Lawrence. The state highway is a through highway protected by stop signs, and runs generally east to west. The highway is blacktopped with pavement approximately twenty-four and one-half feet wide. Defendant was travelling the highway in an easterly direction. There were stop signs at the intersection in question commanding all traffic on the township road to stop before entering the highway, and the signs were placed on the township road some eighteen feet back from each side of the pavement of the highway.
The township road intersects the highway at approximately right angles running north and south. Plaintiff approached the highway from the north proceeding south.
The undisputed evidence showed that the north approach of the township road to the highway was clear for some ninety feet from the center of the highway up to a fence, and that from there on north the township road was obscured by sunflowers and weeds which were higher than an automobile.
At the close of the evidence, the trial court included in its instructions to the jury one instruction covering the doctrine of Last Clear Chance. The jury, as noted above, returned a general verdict for the plaintiff, and answered special questions, submitted to them by the court, as follows:
“Special Questions
“(1) Was the defendant guilty of negligence which was a proximate cause of the collision in question? Answer: Yes.
“(2) If your answer to question number 1 is yes, state what such negligence was. Answer: Defendant didn’t take full advantage of last clear chance.
“(3) Was the plaintiff guilty of negligence which contributed to and was a proximate cause of the collision in question? Answer: No.
“(4) If your answer to question number (3) is yes, state what such negligence was. Answer: _.
“(5) Did the plaintiff stop at the stop sign before entering on Kansas Highway 32? Answer: In our judgment — No.
“(6) If your answer to question number (5) is no, then state how far west of the intersection in question the defendant was when he first observed, or by the exercise of due care should have observed, that the plaintiff was not going to stop at the stop sign. Answer: 150 feet.
“(7) What rate of speed was the plaintiff’s car travelling at the time the collision took place between the two automobiles? Answer: 40 miles.
“(8) What rate of speed was the defendant’s car travelling when it reached a point approximately 100 feet west of the intersection in question? Answer: 55 miles.”
In bis appeal to this court, defendant first assigns as error, the overruling of his demurrer to plaintiff’s evidence. It would appear clear that defendant is not now in a position to urge any error of the trial court in that respect in this appeal under the particular facts of this case. Defendant demurred at the close of plaintiff’s evidence, and the trial court overruled the demurrer. Defendant then proceeded to introduce his own evidence and rested, and allowed the case to be submitted to the jury without again raising the sufficiency of all of the evidence to show a prima facie case for the plaintiff by moving for a directed verdict at the close of all of the evidence. It would seem clear that from a consideration of our former cases, defendant had an obligation to interpose such a motion for directed verdict if he wished to preserve the question of the sufficiency of the evidence as a matter of law for review by this court. Furthermore, he had an obligation to direct the trial court’s attention to this point at the end of all of the evidence.
This court has long held that if defendant demurs to plaintiff’s evidence, and after the demurrer is overruled, proceeds to introduce his own evidence, he may cure any insufficiency of plaintiff’s evidence; that at the close of all of the evidence, its sufficiency to go to the jury must be determined by a consideration of both the evidence introduced by plaintiff and evidence introduced by defendant. Some of the former cases so holding, without attempting to make a complete list, are: Henks v. Panning, 175 Kan. 424, at 430, 264 P. 2d 483; Tuggle v. Cathers, 174 Kan. 122, at 127, 254 P. 2d 807; Railway Co. v. Bentley, 78 Kan. 221, Syl. ¶ 1, 93 Pac. 150; Woodmen Circle v. Stretton, 68 Kan. 403, Syl. ¶ 1, 75 Pac. 472.
In view of the holding of this court in the above cases, it would seem clear that if after having had his demurrer to plaintiff’s evidence overruled and having proceeded to introduce his own evidence, defendant at the close of all of the evidence still maintains that the case should not be submitted to the jury upon the facts established by the entire evidence, he must then direct the trial judge’s attention to that contention by moving for a directed verdict in defendant’s favor. The absence of such a motion must be construed as a waiver of such a contention.
The above well-reasoned rule seems to be well established in many of the other jurisdictions. In the leading case of Spencer v. State of New York, 187 N. Y. 484, 80 N. E. 375, the Court of Appeals of New York said:
“If the appellant’s contention is correct, then there was no evidence upon which the Court of Claims could render judgment in favor of the plaintiff, and his complaint should have been dismissed as a matter of law upon a motion for a nonsuit. Such motion was duly made at the close of the plaintiff’s case and denied. Defendant then proceeded to offer evidence upon its behalf and at the close of all of the evidence the motion for a nonsuit was not renewed, but the case was submitted to the court for consideration, and thereafter what amount to findings of fact were made and judgment rendered. In fact, the request made at the close of all the evidence by the deputy attorney-general that the court should ‘Find that it was no part of Mr. Patterson’s duty to be on this bridge and he was not in any sense acting as the officer, agent or servant of the State in doing what he did do that caused the injury,’ seems almost to imply the idea of a question of fact to be passed upon. Certainly it was not fairly a motion for a nonsuit, and no ruling was made and consequently no exception taken which would enable this court to pass upon the rights of the defendant as they then stood.
“It is well settled that upon a trial the defendant may supply deficiencies in plaintiff’s proof, and that in courts of record at least, the failure to renew or make a motion for a nonsuit at the close of all of the evidence will be regarded as an admission that there is some question of fact to be passed upon and a waiver of the right to have the complaint and case dismissed as a matter of law. (Citing cases.)” (p. 485.)
Some of the more recent cases of like import in other jurisdictions are: Novick v. Gouldsberry, (Alaska) 173 F. 2d 496; Graham v. Guarantee Trust Life Ins. Co., (Mo. App.) 267 S. W. 2d 692; Beck v. Monmouth Lumber Co., 137 N. J. L. 268, 59 A. 2d 400; Hawkins v. Dallas, 229 N. C. 561, 50 S. E. 2d 561; Sprinkle v. Reidsville, 235 N. C. 140, 69 S. E. 2d 179. It should be noted that in many jurisdictions, the “compulsory nonsuit” is used in place of our “demurrer to the evidence” as defined by G. S. 1949, 60-2909, Third. Of course, our “demurrer to tbe evidence” is quite different in effect from a demurrer to the evidence at common law, where the party demurring waived the right to introduce evidence, if the demurrer' should be overruled.
Now, turning to the other assignments of error, and the undisputed facts of the case together with the answers of the jury to special questions, it seems clear that the appeal should be disposed of quickly.
Plaintiff himself introduced in evidence a table showing the number of feet per second traveled by an automobile when travelling at various speeds. This same table is available as issued by the Kansas State Highway Commission and could probably have been noticed judicially by either the trial court or this court. In answer to special question No. 7, supra, the jury found that plaintiff was travelling at the speed of forty miles an hour at the time of the collision. Defendant testified he thought plaintiff was driving at a speed of thirty-five miles an hour when plaintiff passed the stop sign on the north side of the highway.
Thus, the seventy-three year old plaintiff driving at those speeds would emerge from behind the sunflowers at the post ninety feet north of the center of the state highway, and into a position from which he could observe the highway, and within less than two seconds be in the center of the highway. The jury found he did not stop at the stop sign (special question No. 5). We interpret plaintiff’s evidence to be to the effect that he did not see defendant until plaintiff was actually crossing the highway pavement, although he also testified he could see up the road a quarter of a mile.
It would seem clear from the facts of this case that plaintiff’s negligence never ceased, but continued up to the time of the accident. It is universally recognized that in order to be in a position to invoke the doctrine of last clear chance, plaintiff’s own negligence must have ceased before the happening of the accident. The jury was so instructed in this case. (Ross v. Chicago, R. I. & P. Rly. Co., 165 Kan. 279, 194 P. 2d 491; Gilbert v. Railways Co., 109 Kan. 107, p. 110, 197 Pac. 872; Gilbert v. Railway Co., 91 Kan. 711, p. 718, 139 Pac. 380; Himmelwright v. Baker, 82 Kan. 569, 109 Pac. 178.)
The plaintiff relies heavily upon the case of Scott v. Bennett, 181 Kan. 410, 312 P. 2d 224. In that case, a majority of the court were of the opinion that the findings of the jury substantiated the doctrine of last clear chance, and the general verdict for the plaintiff. The facts of that case differed somewhat from the facts of this case. Here the court is of the opinion that the findings of specific facts by the jury foreclose plaintiff from contending that his own negligence, as clearly established by the findings, ceased before the collision. That the answer to special question No. 3, supra, was a conclusion is clear. It almost amounts to a conclusion of law. It is therefore controlled by the undisputed facts and the specific findings. (See cases cited, Scott v. Bennett, supra, page 414.) Those specific facts prevent a general verdict and judgment in plaintiffs favor.
Although there was no motion for judgment notwithstanding the verdict, the trial court approved the answers to special questions and overruled a motion for a new trial. Therefore, this court is empowered to direct a final judgment upon the established facts. (G. S. 1949, 60-3317, Bolinger v. Giles, 125 Kan. 53, Syl. ¶ 4, 262 Pac. 1022; Byer v. Byer, 180 Kan. 258, 303 P. 2d 137.)
The judgment in favor of the plaintiff should be reversed, and the trial court is ordered to enter judgment upon the special findings of the jury in favor of the defendant.
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The opinion of the court was delivered by
Price, J.:
Plaintiff construction company, of Hutchinson, submitted a bid for the construction of a school building in Leavenworth. Accompanying the bid was a surety bid bond in the amount of $75,000.00. The bid as submitted was the low bid by a considerable amount and was accepted by the school board. Plaintiff later claimed that due to a mistake its bid was $100,000.00 lower than was intended. Negotiations for settlement of the dispute fell through and the board accepted the next lowest bid, submitted by another contractor.
Plaintiff then brought this action against the school board and school officials to have the bid bond declared null and void and to enjoin defendants from bringing suit on the bond.
From an adverse judgment, plaintiff has appealed.
The record in the case is voluminous, but, briefly stated, the over-all picture is this:
The school board was authorized to issue its bonds in the amount of $1,680,600.00 for a school building, including $125,000.00 for furnishings. Plans and specifications were prepared by the board’s architect, and on February 13, 1957, the board issued invitations for bids. On March 8th a copy of the plans and specifications was mailed to plaintiff construction company, and on April 8th plaintiff submitted its initial bid of $1,750,000.00, intending to amend the bid by wire prior to the formal opening of bids which was set for April 11th at 2:30 P. M. Accompanying this bid was a surety bid bond in the amount of $75,000.00, executed by the American Bonding Company of Baltimore.
At 1:10 P. M. on April 11th, plaintiff, through its employee and estimator, McGaffin, telephoned an amended bid message to the Western Union office in Hutchinson for transmittal to Leavenworth. The message received by the telegraph office in Hutchinson from McGaffin read:
“BASE BID DEDUCT $569,611.00”
This message was immediately transmitted by wire to the telegraph office in Leavenworth and was telephoned by that office to the school board at approximately 1:55 P. M. It will be seen that the “deduct” figure of $569,611.00 contained in the telegram, subtracted from the initial bid of $1,750,000.00 previously submitted, made the revised bid received by the board in the sum of $1,180,-389.00. Other contractors also submitted bids. The next lowest was that by Hunter in the amount of $1,289,831.00. Doolittle’s bid was $1,290,000.00, and that of Bass was $1,307,373.00. Plaintiff’s bid therefore was approximately $109,000.00 less than Hunter’s, the next lowest.
At 2:30 P. M. the board opened the bids at a public meeting and shortly thereafter adjourned to another room to proceed with the letting. After a short discussion, plaintiff’s bid, being the lowest submitted, was accepted and the president of the board started signing the contract forms. In the meantime plaintiff had received a telephone call from a material supplier to the effect that its bid was low by approximately $109,000.00. Plaintiff then called Loebsack the board’s architect, who was present at the letting. This telephone call was made at 3:54 P. M. In this conversation the architect told McGaffin the basic amount of plaintiff’s bid but did not quote plaintiff’s telegram. McGaffin told Loebsack that there “must have been a mistake” and that “it looks like we left our window walls out.” He requested that the board withhold any action but was advised by Loebsack the board had already acted. In this connection, it should be stated that in plaintiff’s general estimate the window walls were listed at $104,950.00, but, contrary to McGaffin’s statement to Loeb-sack, the window walls had not been omitted in making up the bid.
That evening McGaffin again called Loebsack about the matter and contended that plaintiff’s bid should have been for $1,280,389.00 —that is, exactly $100,000.00 higher than its bid which was submitted to and accepted by the board. Plaintiff’s position was that something was “wrong” but it was not sure of just what the trouble was until it discovered that the window walls had not in fact been omitted. The next day plaintiff sent a telegram to the board pointing out the “error” in its former telegram and stating that the correct deduction was in fact $469,611.00, which figure would make plaintiff’s bid in the amount of $1,280,389.00. This figure would make its corrected bid approximately $9,000.00 lower than Hunter’s bid, the next lowest. This telegram also requested that if plaintiff’s corrected bid was not accepted by the board the bid and bond should be returned.
On April 22nd a conference was had with the board, at which Mr. Foy, owner of plaintiff company, Loebsack, McGaffm, and their respective counsel, were present. The matter was gone over in detail. Plaintiff refused to perform under its bid as submitted and accepted by the board, but offered to go ahead and perform under its corrected bid. The board refused, and subsequently let the contract to Hunter for the sum of $1,289,831.00.
Plaintiff then brought this suit to have the bid bond declared null and void and to enjoin the board from bringing suit on it.
The case was tried on May 8th and 9th, and after having the matter under advisement the court made the following findings of fact:
“1. That the organization and respective officers of the parties hereto are as alleged and admitted herein;
“2. That on or about the 13th day of February, 1957, the defendant, the Board of Education of the City of Leavenworth, of the State of Kansas, caused to be issued its certain ‘invitation for bids’ for the construction of said High School buildings at Leavenworth, Kansas, according to plans and specifications prepared for it by its Architects, Thos. W. Williamson, Victor H. Loebsack and Associates;
“3. That the said plans and specifications provided for and included forms for bid, bid bond, agreement and performance bond and provided for bids for the general construction of said High School buildings with certain alternates therein described and that the plaintiff requested and received a copy of the aforesaid plans and specifications;
“4. That on or about the 8th day of April, 1957, the plaintiff caused to be mailed to the defendant Board of Education, its bid for said general contract and alternates and that the bid of the plaintiff for said general contract was $1,750,000.00 and that said bid of the plaintiff with bid bond attached thereto is in proper form and was received by the defendant Board of Education prior to the time provided for the opening of the bids for said construction;
“5. That addenda Number 1 and Number 2 were made to said plans and specifications in proper time and that the plaintiff had adequate notice thereof prior to the time fixed for opening of bids, April 11, 1957;
“6. That on the 11th day of April, 1957, at or about 1:10 P. M. of said day, the plaintiff caused to be sent to the defendant, Board of Education, through its said Architects, a telegram which by its terms was intended to and did in fact change its bid on said general contract by deducting from said bid of One Million S.even Hundred Fifty Thousand Dollars ($1,750,000.00), the sum of Five Hundred Sixty-nine Thousand Six Hundred Eleven ($569,611.00) and that such deduction resulted in the making of the base bid of plaintiff the sum of One Million One Hundred Eighty Thousand Three Hundred Eighty-nine Dollars ($1,180,389.00) and that this telegram was received by said Board of Education prior to the opening of any bids received in connection with said construction;
“7. That at the time and place fixed for the opening of bids for said construction as provided for in the invitation for bids, the defendant, Board of Education, and all of its members met and opened all of the bids submitted therefor, including the original bid of the plaintiff, and the said telegram of the plaintiff making the change and deduction therein;
“8. That nothing contained in the plaintiff’s bid or his aforesaid telegram, imparted or implied in any way notice to the defendant, Board of Education, or any of the defendants herein, that there was a mistake in said bid and that upon the consideration of all of the said bids and discussion of the same with its architects, said Board of Education found the bid of the plaintiff to be the lowest bid among nine bids submitted for said general contract and upon motion of one of the members of said Board, duly made, seconded, and passed by the unanimous vote of all of the members of the Board, a Resolution was adopted accepting the bid of die plaintiff, and the architects for the said Board were authorized to forward contracts to the plaintiff for .execution by it on forms which were then and there signed on behalf of the Board by its President and Clerk, being on the type of forms included in the aforesaid plans and specifications;
“9. That the said bid of the plaintiff for the sum of One Million One Hundred Eighty Thousand Three Hundred Eighty-nine Dollars ($1,180,389.00) was for a reasonable and proper amount and was higher than the estimate of the Architects for the completion of the work;
“10. That at the time of the acceptance of the bid of the plaintiff as contained in its bid and as modified by its aforesaid telegram, the defendant, Board of Education, had no notice of any mistake or alleged mistake, that had been or may have been made by the plaintiff and that the defendant, Board of Education, had accepted the plaintiff’s bid in good faith prior to any claim or mistake being made on behalf of the plaintiff and that a contract for said work and construction came into existence at the time of the acceptance of the plaintiff’s bid by the defendant, Board of Education;
“11. That subsequently thereto, on April 11, 1957, Victor H. Loebsack, one of the architects for the Defendant, Board of Education, received a telephone call from an employee and an officer of the plaintiff Corporation, claiming that a mistake had been made in the aforesaid bid of the plaintiff and that at that time, the said Architects notified the plaintiff of the acceptance of its bid, giving the approximate amount thereof, and also notifying said plaintiff through its said officer and employee that said bid had been accepted and contracts were being signed by the defendant, Board of Education; and that on April 12, 1957, contracts therefor signed by the officers of the defendant, Board of Education, were by said Architects forwarded to the plaintiff for signature and that the time for completion of .the work fixed thereby, to wit: January 1, 1959, was reasonable;
“12. That the plaintiff failed to sign contracts submitted to it by the defendant, Board of Education, within the time limited by the aforesaid invitation to bid and bid, and that in order to save itself some additional and successive loss and after the expiration of the time fixed for the signing of the contract for said work, the defendant, Board of Education, entered into a contract with Hunter and Lundberg, the next lowest bidders, for the general construction of the work contemplated, for the sum of One Million Two Hundred Eighty-nine Thousand Eight Hundred Thirty-one Dollars ($1,289,-831.00) subject to the alternates therein set forth, and that said contract resulted in the defendant, Board of Education, being obligated to pay the said firm of Hunter and Lundberg a sum of One Hundred Nine Thousand Four Hundred Forty-two Dollars ($109,442.00) over and above the bid of the plaintiff and that as a consequence thereof, the defendant, Board of Education has been damaged;
“13. That the difference between the said bid of the plaintiff which was accepted hy the said Board of Education and the amount of the Contract executed with said firm of Hunter and Lundberg exceeds the $75,000.00 penalty amount of the Bid Bond submitted by the plaintiff;
“14. That the purpose and effect of said Bid Bond were to determine the maximum amount of liquidated damages sustained or to be sustained by the Defendant, Board of Education, upon default of the plaintiff;
“15. That the plaintiff by failing to enter into a contract for said construction has defaulted upon its said Bid and that said Bid Bond remains and is now in full force and effect and is enforceable against the Principal and Surety thereon as provided by law;
“16. That Plaintiff is not entitled to the equitable relief prayed for in its Petition, for the reason that there was in fact no mistake in the plaintiff’s bid of One Million One Hundred Eighty Thousand Three Hundred Eighty-nine Dollars ($1,180,389.00) for said general contract as described in paragraph 6 above.”
Judgment was entered accordingly, and the journal entry recites:
“. . . that the Bid Bond of the plaintiff be and the same is hereby declared and adjudged to be in full force and effect and is enforceable against the Principal and Surety thereon as provided by law and that the plaintiff pay the costs of this action taxed at $-”
Plaintiff’s motion for a new trial being overruled, it has appealed and specifies fourteen alleged errors.
In its brief plaintiff states the principal questions to be substantially as follow:
1. The primary question involved is whether a material mistake, other than one of judgment, was made by plaintiff or its agent in submitting its bid.
2. The evidence of plaintiff having shown conclusively that a material mistake of $100,000.00 was made in connection with its bid, and, there being no evidence to controvert such evidence, could the trial court justifiably find that no mistake was made — in other words, was there any evidence to support the finding that no mistake was made?
3. In view of all the evidence showing the specific mistake of $100,000.00 in plaintiff’s bid, which was not controverted, is plaintiff entitled to a judgment enjoining the forfeiture of its bond — that is, is a contractor bound by his bid when he makes a material mistake, other than one of judgment, in his bid, and, upon discovering the mistake, promptly notifies the parties concerned of such mistake before any of the parties have changed their position?
4. Was a valid and binding contract entered into between plaintiff and the board?
5. Were various findings and conclusions of the trial court contrary to the evidence?
6. Did the court err in overruling plaintiff’s motion for a new trial?
As we view this record, we agree with plaintiff that the primary question — in fact, we think the basic one — is whether a mistake, other than one of judgment, was made by plaintiff in submitting its bid of $1,180,389.00. In other words, is there a basis in the evidence for the trial court’s finding (No. 16, above) that there was in fact no mistake in the bid?
In support of its position, plaintiff directs our attention to much evidence which, if believed and taken at its face value by the trial court, points to the conclusion that in fact a mistake in the amount of $100,000.00 actually was made. It cannot be denied there is evidence to support a finding contrary to that made by the trial court. On appeal, however, that is not the question. The question is — is there substantial evidence to support the finding made?
Where findings are attacked for insufficiency of evidence this court’s power begins and ends with a determination as to whether there is any competent substantial evidence to support them, and this court has no power to judge the value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. For a thorough discussion of this proposition we call attention to what was said in Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.
The case presents a very unusual situation. Certain undisputed facts, however, stand out in clear relief. It appears certain that the “deduct” figures telephoned by plaintiff to the telegraph office in Hutchinson were “$569,611.00,” and that those figures were trans mitted to Leavenworth and, in turn, to the board. They made plaintiff’s bid $1,180,389.00, and, it being the lowest, was accepted prior to any information the board had that plaintiff was claiming a mistake had been made. Shortly thereafter Foy and McGaffin, after being advised by a materialman that plaintiff’s bid was low by approximately $109,000.00, began checking their “estimate lists” and concluded they had omitted the window walls. Their reason for so concluding was that in the nature of things there would not be such a wide “spread” in bids on a contract of this size, and they therefore reasoned as the price of the window walls approximated the amount by which their bid was low — the window walls must have been omitted. It developed, however, and it is not disputed, that the figure for the window walls was not in fact omitted from the estimate lists. This being true, plaintiff then urged the proposition that perhaps McGaffin, in his haste, had mistakenly given the figures of the “deduct” over the telephone to the telegraph office as “$569,611.00” when, in truth and in fact, he intended “$469,611.00,” which of course would account for the discrepancy and difference of $100,000.00 in the bid actually submitted and accepted, and the corrected bid.
Be that as it may, all of the circumstances surrounding the alleged mistake were within plaintiff’s control, and it was its burden to prove to the satisfaction of the trial court, by clear and convincing evidence, that an actual and honest unilateral mistake, other than one of judgment, had been made.
It failed in that burden.
It may well be that the trial court simply placed little or no credence in plaintiff’s evidence. It may be that the trial court concluded the whole thing was an “afterthought” on the part of plaintiff when it discovered how low its bid was in relation to bids submitted by other contractors. From the evidence in the case, the trial court very easily could have concluded that plaintiff’s bid was the result of bidding “too close” — that is, it was merely a mistake of judgment, for which, under the circumstances, equity would afford no relief. In many respects plaintiff’s explanations for its •alleged “mistake” were highly improbable and quite implausible. All of these matters were within the power and prerogative of the trial court to determine, and, after a most careful examination of the record, we are unable to say the trial court’s findings have no basis in ■the evidence. The fact there is evidence which, if believed, would support a finding contrary to that reached by the trial court is of no concern on appellate review.
In view of our conclusion that the ultimate finding of the trial court (No. 16, above) that there was in fact no mistake in plaintiff’s bid of $1,180,389.00 must be upheld, plaintiff’s contentions and citations of authority with respect to rules applicable where a mistake in a matter such as this has been established, become immaterial and of no consequence. Its first burden was to establish that a mistake had been made. Having failed in that burden, it cannot prevail.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action on a promissory note and to foreclose a chattel mortgage given as security therefor.
From a very confusing abstract of the record, the facts appear to be substantially as follow:
The note in question was dated April 16, 1954; was due in ninety days, and was payable to plaintiff bank. It was signed by
“Wilfred Bugner
Irsik Bros, by Norbert Irsik.”
As security for payment thereof Bugner executed a chattel mortgage to the bank covering certain livestock and farming .implements. Apparently the note was not paid when due, for on June 28, 1956, the bank filed this suit in the district court of Gray County against “Wilfred Bugner and Norbert Irsik” as defendants.
At all times material defendant Bugner was a resident of Franklin County, and defendant Irsik was a resident of Gray County. Summons was duly issued to the sheriff of Franklin County for Bugner (G. S. 1949, 60-2502).
On July 21, 1956, Bugner filed a motion to make “Irsik Bros., a partnership, and S. J. Irsik, the other partner in said partnership,” parties defendant on the ground that his, Bugner s, defense related, among other things, to his dealings with Irsik Bros, and S. J. Irsik, as well as with Norbert Irsik, in their dealings with plaintiff bank.
On October 5, 1956, the court ordered that “Irsik Bros.” be made a party defendant.
Some time between October 5, 1956, and December 15, 1956, counsel for the bank inserted in the petition, by interlineation, the following, after the name of Norbert Irsik: “(of Irsik Bros.),” thus showing and naming the defendants in the action as “Wilfred Bug-ner and Norbert Irsik (of Irsik Bros.).”
No praecipe for summons on Irsik Bros, was ever filed.
On December 18, 1956, Bugner filed a motion to strike the petition from the files on the ground plaintiff bank had failed to comply with the order of October 5, 1956, wherein it was ordered that Irsik Bros, be made a party defendant — or, in lieu thereof, that the bank be required to amend its petition by stating what parties constitued Irsik Bros.
On November 13, 1957, plaintiff bank’s attorney filed an answer in behalf of defendant Norbert Irsik which, after alleging the execu tion of the note and chattel mortgage sued on, alleged that the note and mortgage had been assigned by the bank to him, Norbert Irsik, and prayed for judgment on the note and mortgage against his co-defendant Bugner.
On November 23, 1957, Bugner filed a motion denominated
“Special Appearance by Defendant Wilfred Bugner ■ to Strike Answer of Norbert Irsik”
which, in part, alleged:
“4. That at all times herein the plaintiff and defendant Norbert Irsik by and through their attorney well knew that defendant Bugner’s motion filed herein on or about the 17th day of December, 1956, was well taken and that plaintiff failed to comply with the order of the court rendered herein on the 5th day of October, 1956, to make Irsik Bros, a party defendant herein; that notwithstanding the above said plaintiff and defendant Norbert Irsik by and through their attorney have attempted to avoid the effect of said motion and are apparently attempting to retain jurisdiction and venue of an action between defendant Norbert Irsik and defendant Bugner in this court; and are otherwise attempting by virtue thereof to use defendant Bugner’s motion on file herein to further their practices in the premises; all without notice to defendant Bugner and his attorney.”
The prayer of the motion was that the order of the court allowing defendant Norbert Irsik to plead out of time be reconsidered and that his answer be stricken from the files.
On December 3, 1957, Norbert Irsik filed an amended answer, which, as far as the record discloses, was substantially identical to his answer.
On December 13, 1957, all parties being present by counsel, the court took up and heard argument on the two motions by Bugner heretofore referred to. The journal entry of the judgment, omitting formal parts, rendered pursuant thereto, reads:
“Now on this 13th day of December, 1957, the above entitled matter comes on for hearing upon the motion of defendant Wilfred Bugner to dismiss the petition, without prejudice, insofar as it pertains to Wilfred Bugner, and to dismiss the answer and amended answer of Norbert Irsik insofar as it pertains to Wilfred Bugner, without prejudice. The plaintiff and defendant, Norbert Irsik, appear by their attorney, John Staley Holden, and the defendant, Wilfred Bugner, appears by his attorney, Myron S. Steere, the said Wilfred Bugner appearing specially in accordance with his motion on file herein.
' “Thereupon, the court having heard the arguments of counsel for the movant and plaintiff and Norbert Irsik, the said plaintiff and defendant Norbert Irsik appearing by their attorney, John Staley Holden, the court takes the matter under advisement.
“Later and on the 20th day of December, 1957, the court finds that the petition of the plaintiff herein is and should be dismissed without prejudice insofar as it pertains to Wilfred Bugner, defendant, for the reason that plaintiff has disobeyed the court’s order in the proceeding, in that plaintiff has failed to make ‘Irsik Bros.’ a party defendant as ordered by the court on the 5th day of October, 1956.
“The court further finds and does recognize the special appearance of defendant, Wilfred Bugner, insofar as the attempted substitution of plaintiff and cause of action against defendant Bugner, filed by Norbert Irsik by his attorney, John Staley Holden, who is also attorney of record for plaintiff, under the heading of ‘Answer of Norbert Irsik’, as amended, is concerned; and the court finds that such portion of said answer as attempts to state a cause of action against defendant, Bugner, should be dismissed without prejudice.
“It is by the court so ordered and adjudged.”
In other words, plaintiff bank’s action, insofar as it pertained to Bugner, was dismissed without prejudice, and, in addition, such portion of Norbert Irsik’s answer, as amended, as attempted to state a cause of action against defendant Bugner, was dismissed without prejudice.
Both the bank and Norbert Irsik have appealed, and specify as error the orders requiring that “Irsik Bros.” be made a party defendant, dismissing the bank’s petition against Bugner, and dismissing Norbert Irsik’s cause of action against Bugner.
As heretofore related, the note was signed by
“Wilfred Bugner
Irsik Bros, by Norbert Irsik.”
and the petition named Wilfred Bugner and Norbert Irsik as defendants.
On the face of things, and in view of the grounds of Bugner’s motion, the court properly required that Irsik Bros, be made a party defendant under the authority of G. S. 1949, 60-741, which provides that if it appears from the petition or in any other manner that there is a defect of parties plaintiff or defendant the court may on motion require the absent parties to be brought in.
The insertion of “(of Irsik Bros.)” after the name of Norbert Irsik in the petition was not a compliance with the court’s order. The most that can be said for it is that the inserted words were merely “descriptive” of Norbert Irsik. In view of the bank’s assignment of the note and mortgage to Norbert Irsik, as alleged in his cause of action against Bugner, perhaps, as suggested by Bugner, there is valid ground to dismiss the bank’s appeal for the reason that it is now out of the.picture and has no further interest in the subject matter. Be that as it may, however, the court did not err in dismissing the bank’s action against Bugner under the authority of G. S. 1949, 60-3105, which provides that an action may be dismissed by the court without prejudice to a future action for want of necessary parties or for disobedience by the plaintiff of an order concerning the proceedings in the action.
With respect to the order dismissing Norbert Irsik’s cause of action against Bugner very little need be said. Jurisdiction of Bugner, a resident of Franklin County, was obtained in the first instance solely due to the fact Irsik, a resident of Gray County, also was made a party defendant (G. S. 1949, 60-2502). Following the dismissal of plaintiff bank’s action against Bugner he was, as far as that phase of the case was concerned, no longer subject to the jurisdiction of the court. From the findings included in the judgment, set out above, it is quite apparent the court was well aware of the maneuver by which it was attempted to convert the action by the bank into one by Irsik, as plaintiff, against Bugner. Under the circumstances of the case, we are unwilling to say the court erred in recognizing the special appearance of Bugner for the purpose of his motion. The bank’s action already had been dismissed. To permit Irsik to proceed as a plaintiff against Bugner, in Gray County, would, under the circumstances, circumvent the statute (G. S. 1949, 60-509), which provides that an action such as this must be brought in the county in which the defendant, or some one of the defendants, reside or may be summoned. If he desires to proceed against Bugner the statute provides the forum.
An examination of this record convinces us the court did not err in any of the particulars specified and the judgment is affirmed. | [
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Greene, J.:
Anadarko Petroleum Corporation (Anardarko) appeals the judgment entered by the district court in favor of Norton Farms, Inc. (Norton) after a jury found Anardarko 100% at fault in the design and construction of a ramp for Norton’s circle pivot irrigator that traversed Anadarko’s oil and gas structures on Norton’s agricultural leasehold. Anadarko claims numerous trial errors. We affirm in part, reverse in part, and remand for new trial.
Factual and Procedural Overview
When Norton expanded its lease of land in Stevens County for farming operations to include a quarter where Anadarko operated a gas well, Norton brought to Anadarko’s attention that a compressor shed located near the well would be in the path of Norton’s circle pivot irrigation system. After the initial discussion, the field foreman for Anadarko moved the shed, removed some additional equipment, and mentioned to Norton that he might install a cement bag ramp to assure that the system would traverse or clear all oil and gas structures on the Anadarko lease. Apparently, Norton did not express objection to this idea, and Anadarko proceeded to contract with Hammer Construction Co., Inc. (Hammer) to construct the ramp, which was to consist of several bags of QuikCrete stacked two bags high in the path of the sprinkler.
Some 2 weeks after construction of the ramp, Norton noticed water shooting into the air and observed that the irrigation system had collapsed approximately 80 to 90 feet past the ramp on a berm or bridge that had been constructed by Norton for the same irrigation system to cross Anadarko’s tailwater pit. The collapse rendered the system non-functional, not only for the quarter containing Anadarko’s operations, but also tire other three quarters in the section. Although the system was repaired by Norton, its com crop was without water for a full week, thus negatively affecting yield from the entire section served by the system.
Norton brought a negligence action against Anadarko, ultimately alleging negligence in the design, construction, and placement of the cement bag ramp, and seeking damages including the cost of repair and the loss in yield of the corn crop. The initial petition was amended to join Hammer as an additional defendant. The case proceeded to a jury trial after the district court denied Anadarko’s motion for summary judgment, stating in part:
“The fertile imagination of this court cannot fathom how it could be anticipated that a mechanical device such as the center pivot irrigation sprinkler could traverse these concrete rocks set one on top of the other, with no binding between them and no way to hold them together, but simply malee them boulders independent of each other under the tread of the sprinkler. Truly, it would be a sight akin to a hog walking across ice.”
On the day prior to trial, the district court denied Anadarko’s motion to amend the pretrial order to include as an exhibit a videotape of a similar circle pivot irrigation system successfully negotiating similar (but also dissimilar) ramps. The court denied tire motion on grounds that the proposed amendment was not timely and the tape would not be admissible anyway.
During the jury trial, the district court excluded photographic evidence and related testimony that similar ramps had been used successfully for these purposes by Anadarko. Additionally, Anadarko’s expert witness as to causation was not permitted to testify on the ground that such expert testimony was not necessary because some of the jurors had personal experience with irrigation systems. The district court also denied Anadarko’s motion for directed verdict, which claimed that Norton had failed to establish causation or negligence of Anadarko. The jury found Anadarko 100% at fault, and assessed damages totaling $75,717. Anadarko appeals the resulting judgment for damages and costs, but does not appeal the jury’s negative finding as to any fault of Hammer.
Standard of Review
We review Anadarko’s claims that the district court erred in denying amendment of the pretrial order and in ruling on evidentiaiy objections for an abuse of discretion. See Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997); State Farm Fire and Cas. Co. v. Liggett, 236 Kan. 120, 124-25, 689 P.2d 1187 (1984). Discretion is abused only when no reasonable person would take the view adopted by the trial court. The exercise of judicial discretion requires that the court have proper regard for what is just and fair under the existing circumstances, and that it not act in an arbitrary fashion or unreasonable manner. Liggett, 236 Kan. at 124-25. We review Anadarko’s claim that the district court erred in denying a motion for directed verdict with the same standard employed by the trial court. Where reasonable minds could reach different conclusions based upon the evidence, even when viewed most favorably to the party opposing the motion, the motion must be denied and the matter submitted to the jury. See Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 126, 815 P.2d 72 (1991).
Did the District Court Abuse Its Discretion in Denying Anadarko’s Motion to Amend the Pretrial OrderP
Anadarko sought to amend the pretrial order to list a new exhibit, specifically, a videotape made to show that irrigation equipment similar to Norton’s could traverse a cement bag ramp of a nature similar to that built for Norton. The tape was made and delivered to Norton’s counsel only 2 weeks prior to trial. Anadarko argues that the exhibit was created in response to the district court’s summary judgment statement quoted above and in response to the more specific claims of negligence that were set forth in the final pretrial order. Anadarko suggests that fairness required that Anadarko should have been given the opportunity to respond Norton’s new information.
The problem with Anadarko’s argument is that it had an opportunity to create and list the exhibit before approving and finalizing the pretrial order. The court’s summary judgment statements were made on February 28, 2003, and the pretrial order was not signed and filed until March 19, 2003. Anadarko’s videotape exhibit was not created until March 27, 2003, and its motion to amend was not filed until April 11, 2003, the Friday before commencement of trial. Norton argues that Anadarko could have either refused to sign the pretrial order or added the videotape to the list of exhibits before approving and submitting the order to the court. We agree, and this is critical to our conclusion that there was no abuse of discretion by the district court in denying the motion to amend.
K.S.A. 2003 Supp. 60-216 provides that:
“[A pretrial] order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only by agreement of the parties, or by the court to prevent manifest injustice.”
This statute confers broad discretionary power upon tire trial court, and we generally support this discretion upon appellate review. See Boyle v. Harries, 22 Kan. App. 2d 686, 691, 923 P.2d 504 (1996). Moreover, Supreme Court Rule 140(f) (2003 Kan. Ct. R. Annot. 189) provides for quite specific procedures for any party to state objections to a pretrial order for consideration by the court prior to its entry.
Anadarko relies upon Boyle to support the notion that fairness requires liberality in the amendment of pretrial orders, but we conclude that Boyle is inapplicable unless the pretrial order requires revision due to a party secreting evidence until a few days before trial. 22 Kan. App. 2d at 690. Anadarko also relies upon Hurlbut v. Conoco, Inc., 253 Kan. 515, 856 P.2d 1313 (1993), as supporting a belated amendment of the pretrial order in the interest of fairness, but Hurlbut permitted both parties to submit revised expert opinions and calculations; here, any fairness to Anadarko by the addition of the video tape must be balanced against the unfairness to Norton of having to refute or challenge a videotape created on the eve of trial.
The essential purpose of pretrial conference procedure is to prevent surprise and enable the parties to prepare for trial with the assurance that contentions, issues, and evidence will not be moving targets. See Herrell v. Maddux, 217 Kan. 192, 194-95, 535 P.2d 935 (1975); Tillotson v. Abbott, 205 Kan. 706, 709, 472 P.2d 240 (1970); Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 358-59, 437 P.2d 219 (1968). Under these circumstances, we conclude that the district court did not abuse its discretion in denying the motion to amend the pretrial order.
Did the District Comt Abuse Its Discretion in Excluding Evidence of Nonoccurrence of Accident With Similar Ramps P
Anadarko argues that the district court erred in excluding testimony and photographic evidence of Anadarko’s experience with similar irrigation ramps. The argument is that such evidence should not have been excluded as irrelevant since it was relevant to the issue of foreseeability. We agree.
All relevant evidence, defined as “evidence having any tendency in reason to prove any material fact,” is admissible in a civil trial. K.S.A. 60-401(b); K.S.A. 60-407(f). A court’s determination of relevancy is a matter of logic and experience, not a matter of law. State v. Abu-Fakher, 274 Kan. 584, 596, 56 P.3d 166 (2002). In a negligence action, proximate cause is an element of negligence, and foreseeability is an element of proximate cause. Aquirre v. Adams, 15 Kan. App. 2d 470, 472, 809 P.2d 8 (1991). An accident which is not reasonably foreseeable by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Woodruff v. City of Ottawa, 263 Kan. 557, 561, 951 P.2d 953 (1997). Natural and probable consequences are those which hu man foresight can anticipate because they happen so frequently they may be expected to recur. Chaplin v. Gas Service Co., 194 Kan. 26, 30, 397 P.2d 317 (1964).
Although there are some holdings to the contrary, evidence of the absence of previous accidents at the same place where the plaintiff was injured, or of the absence of prior injuries arising from the use or operation of the equipment whereby the plaintiff was injured, has generally been held admissible as tending to show that the place or equipment was not dangerous. 29 Am. Jur. 2d, Evidence § 553, p. 622. Our Supreme Court addressed the relevance of nonoccurrence of prior accidents in Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 128-29, 804 P.2d 978 (1991). The plaintiff fell in an entranceway and claimed that the defendant was negligent in the construction and maintenance of said entranceway. The Supreme Court found no error in admitting evidence that there had been no prior accidents in the entranceway.
“We conclude evidence of no prior complaints or accidents in the UPS entranceway was properly admitted on the issue of safely. The nonoccurrence of prior accidents is evidence tending to establish that a reasonably careful person could negotiate the doorway safely absent negligence.” 248 Kan. at 129.
See Timsah v. General Motors Corp. 225 Kan. 305, 316, 591 P.2d 154 (1979); Cook v. Railway and Bridge Co., 101 Kan. 103, 107, 165 Pac. 803 (1917); Field v. Davis, 27 Kan. 400, 402-06 (1882).
These authorities generally recognize that evidence that the circumstances alleged to have constituted negligence in a particular case have not been the cause of prior complaint or accident may be relevant to show that an accident was not reasonably foreseeable by reason of such circumstances.
The only distinction between these authorities and the evidence tendered by Anadarko is that experience with similar ramps is not necessarily as cogent as is experience with the specific ramp in question. Nevertheless, we conclude that the degree of similarity goes to the weight rather than the admissibility of such evidence, and that the rationale of the authorities as to admissibility applies equally here.
We conclude that the evidence of Anadarko’s experience with similar ramps in similar contexts was probative on the issue of fo reseeability, and that since the evidence was important to Anadarko’s defense and there was no suggestion that such evidence was otherwise prejudicial, its exclusion was an abuse of discretion.
Did the District Court Abuse Its Discretion in Excluding the Expert Opinion Testimony as to Causation?
Anadarko called an expert to testify on the cause of the sprinkler collapse. His report indicates that he would have testified that the cause of the collapse was a hole in the bridge across the tailwater pit, and that the sprinkler was not damaged by the cement bag ramp. The district court did not permit the expert to testify on the ground that there was no necessity for such testimony, stating, inter alia-.
“[Tjhis particular jury is really very expertise [sic] on [causation], they’re as close as you can be. You’ve got a lot of people here—I think everybody on that juiy during voir dire admitted that they knew what sprinklers were, they saw them every day, they were familiar with them. You’ve even got one guy wbo probably thinks he’s expert, but—and, you know, there was a juror here that told you on Monday that he had two sprinklers stuck.
“My biggest problem here is that of necessity. I don’t see the necessity of this testimony as to aid the jury. I don’t think it’s any help to them. I think it could even be a hindrance to them, when you look at what this witness, I think, can testify to, what I know he can testify to, isn’t needed to determine the issues in this lawsuit.”
Expert opinion testimony must be helpful and necessary for the particular circumstances of the case in order to be admissible.
“Necessity arising out of the particular circumstances of the case is the basis for the admission of expert testimony. To be admissible, expert testimony must be helpful to the jury. Where it is not helpful, that is, where the normal experience and qualifications of laypersons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert testimony is inadmissible.” State v. Papen, 274 Kan. 149, 157, 50 P.3d 37 (2002).
Anadarko argues that Kansas authorities have acknowledged that the mechanical operation of farm equipment is not an area of general knowledge for juries. See Siruta v. Hesston Corp., 232 Kan. 654, 665, 659 P.2d 799 (1983). Moreover, Anadarko argues that Kansas authorities recognize that expert testimony can be particularly helpful when dealing with accidents to which there are no eyewitnesses. See Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 631, 822 P.2d 591 (1991). Anadarko suggests that where expert testimony is tendered to explain how mechanical machineiy collapsed where no eyewitness observed the collapse, the testimony is particularly helpful to jurors who would otherwise have to speculate as to causation. We agree, and we note that exclusion of such testimony is particularly prejudicial where, as here, Norton was permitted to testify as to the lack of alternative causalities.
Although we concede that the admissibility of expert testimony has spawned appellate decisions that may not always seem entirely consistent, expert opinion to show causation in negligence actions is generally admissible unless based upon evidence that is too uncertain or speculative. Dieker v. Case Corp. 276 Kan. 141, 160-61, 73 P.3d 133 (2002); Siruta, 232 Kan. at 665-66; Farmers Ins. Co. v. Smith, 219 Kan. 680, 689, 549 P.2d 1026 (1976). In contrast to these cases, Norton relies on Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978), in support of the district court’s exclusion of expert testimony. Lollis held that it was proper to exclude expert testimony of causation or contributing circumstances in an auto collision, but the decision was buttressed by the fact that such issues are within the normal experience and qualifications of lay jurors. 224 Kan. at 260-61. Indeed, it is the rare lay juror who does not drive a vehicle and understand the natural consequences of certain conduct at the wheel; Lollis is of little assistance where the jury is called upon to determine causation for collapse of rather sophisticated mechanical farm machinery—-this is the teaching of Siruta and Dieker.
Finally, we note that the district court seems to have considered the specific jury in question to possess special knowledge on the subject of irrigation equipment, thus negating any necessity for expert testimony. This rationale reflects an erroneous application of the necessity rule—the “normal experience and qualifications of laypersons serving as jurors” is not measured by one or more jurors in a specific case, but rather the general experience of average lay jurors. In fact, the court’s apparent comfort by reason of having a juror who “thinks he’s an expert” in such matters demonstrates the error and the associated danger of excluding testimony under such circumstances: the ultimate issue of causation may be influenced if not determined by one who is not subjected to the rigors of appropriate qualification, requisite statutory basis, or cross-examination. These perils have been recognized in early Kansas authority admonishing juror reliance on personal knowledge.
“A jury has right to avail itself of such general knowledge as all men possess, but not to resort to any knowledge derived from employment in any land of business. Supposing this jury were all composed of machinists, they are not to be guided by their knowledge of machinery—a knowledge which only they who are engaged in such occupation possess—but by the testimony offered before them; and that which is true of the jury as a whole, is also true to each individual member thereof. He may not testify to the others.” Craver v. Hornburg, 26 Kan. 94 (1881).
See Clark v. Ford, 7 Kan. App. 332, 51 Pac. 938 (1898); Waite v. Teeters, 36 Kan. 146, 14 Pac. 146 (1887); and Union Pacific Railroad Co. v. Shannon, 33 Kan. 446, 6 Pac. 564 (1885).
We conclude that under these circumstances, the district court abused its discretion in excluding the testimony of Anadarko’s expert witness.
Did the District Court Err in Refusing to Direct a Verdict for AnadarkoP
Anadarko argues the district court mistakenly failed to grant its motion for directed verdict following Norton Farms’ presentation of its case in chief. Anadarko argues there was no evidence produced that Anadarko was negligent in either: (1) deciding to build the ramp; or (2) determining the location of the ramp. Anadarko also argues that there was no evidence of causation.
To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact. Honeycutt v. City of Wichita, 251 Kan. 451, 463-64, 836 P.2d 1128 (1992). The lessee under an oil and gas lease “has the implied right to make reasonable use of the surface in order to develop the land for the oil and gas,” but “[w]hen this use is overreached and becomes injurious to the lessors’ agricultural pursuits, courts have displayed great willingness to step in and im pose liability despite the lack of any express provision.” Thurner v. Kaufman, 237 Kan. 184, 188, 699 P.2d 435 (1984).
Anadarko argues there was no evidence that it did not exercise ordinary care. Norton s theory, however, is that Anadarko either miscalculated the need for a ramp or built the ramp in the wrong place, and the testimony created at least jury questions whether the ramp was not necessary and whether it was not centered on tire path of the sprinkler and thus not placed correctly. Given our standard of review, we must view tire testimony in the light most favorable to Norton and conclude there was sufficient evidence to support Norton’s theories and frame a jury question.
Anadarko also argues the district court mistakenly failed to grant its motion for directed verdict based upon Norton’s failure to present sufficient evidence of causation. Norton stresses that evidence of the nature of the sprinkler’s damage shows that it was damaged by the ramp constructed by Anadarko. Moreover, Norton’s testimony suggested to the jury that tire sprinlder fell off the concrete bag ramp, and this was corroborated by evidence of grooves from nozzle drops dragging in the field between the ramps and the point of collapse. Clearly, there was adequate evidence to establish a jury question on whether the ramp caused the damage that led to the system’s collapse.
Viewing the evidence most favorably to Norton, we agree with the district court that these issues were entitled to jury determination. We conclude that the district court did not err in denying Anadarko’s motion for directed verdict.
Conclusion
In conclusion, we affirm the district court’s denial of Anadarko’s motion to amend the pretrial order and motion for directed verdict. We reverse the district court’s exclusion of probative evidence, and we remand for new trial. We conclude, and the parties agreed during oral argument, that Hammer is no longer a party to this litigation given no appeal of the jury’s finding that Hammer bore no fault. The balance of the case is remanded for new trial, to proceed in a manner not inconsistent with this opinion.
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PlERRON, J.:
Brent Legleiter appeals the district court’s granting of summary judgment to Kenneth Gottschalk d/b/a Brass Rail Tavern (tavern), after he was injured in a fight with a third party outside of the tavern. The district court found Legleiter was injured on public property, not possessed or controlled by Gottschalk or his employees, and therefore, as a matter of law, no liability existed on Gottschalk’s part to control the actions of third parties. We affirm.
On the evening of October 2, 2001, Brian Gribben was the manager and bartender of the tavern and was the only employee working on a slow Monday night. No problems had occurred that evening until Gribben made the last call a little before 2 a.m. Larry Hamby was playing pool, and he attempted to start another game after Gribben made the last call. Gribben approached Hamby and told him the tavern was closing and he could not play another game. As Gribben walked away, Hamby started a new game. Gribben ended Hamby’s game, and an argument ensued. Gribben refunded Hamby’s quarter and told him to leave the tavern. After the two exchanged more words, Gribben physically removed Hamby from the tavern.
As Gribben took Hamby outside, the tavern emptied to watch the events. Hamby was at the bar with his friends, Legleiter, Darcy Good, Kevin Weaver, and his brother, Randy Lynn. Dustin Karst was at the bar with Shanun and Brandon Niehoff. There were approximately 15 people in the bar at closing time. Outside the tavern, Hamby continued to fight and struggle with Gribben until Gribben took him to the ground and held him there. Gribben told Hamby he would let him go if he calmed down.
As Gribben and Hamby struggled, Lynn retrieved a baseball bat from his car parked across the street from the tavern. Shanun Niehoff stated that he was helping Gribben with a customer who refused to leave the establishment. Lynn ran back toward the fracas and struck Shanun in the leg from behind. Brandon and at least one other person pinned Lynn down on the ground and wrestled the bat away from him. Lynn then ran down the street chased by several men. Karst claimed he helped Neihoff pin Lynn down and that during the incident Legleiter punched him on the top of the head.
Karst approached Legleiter and struck him at least two times. Legleiter was knocked out and became unresponsive. Karst’s attack on Legleiter took place entirely upon public property consisting of the sidewalk and street in front of the tavern. The altercation between Karst and Legleiter lasted between 2 and 5 minutes. Karst was pulled off Legleiter by Good and Mark Schoenberger. Schoenberger said Karst punched Legleiter at least 10 times before Legleiter went down and then punched and lacked him until he was unresponsive.
Gribben stated that he did not call for help from anyone else in ejecting Hamby from the tavern. He did not direct anyone to fight with Lynn or Legleiter. Gribben stated that he did not see Karst hit Legleiter because he had already gone back inside the bar. When Gribben talked with Gottschalk the next day about the incident, Gribben said that he never saw Karst fighting with Legleiter. However, Good testified that Gribben was standing 4 or 5 feet from the fight between Karst and Legleiter and that Gribben did not do anything about it. Good said Gribben never called Karst off of Legleiter and that Gribben went back into the bar after the fight was over.
A couple of minutes after Gribben went back into the bar, Good went inside and asked for some towels because Legleiter was bleeding. Gribben gave her some towels. Good asked if there was a phone she could use, and Gribben told her the bar phone did not dial out but there was a pay phone. Gribben did not call the police or call for an ambulance. Good said she called 911 using the pay phone.
Legleiter was severely injured as a result of this event and was hospitalized for an extended period of time. Karst was apparently prosecuted for his actions. Legleiter sued Gottschalk for personal injuries and substantial damages under a theoiy of respondeat superior and the duty of the owner or his employees to use reasonable and ordinary care regarding patrons of the tavern. The district court found Legleiter was injured on public property, not possessed or controlled by Gottschalk or Gribben, and therefore, as a matter of law, no liability existed on Gottschalk’s part to control the actions of third parties, namely Karst.
Legleiter argues Gottschalk owed him a duty to protect him from the criminal acts of a third party and the district court erred in granting summaiy judgment to Gottschalk. Legleiter contends the district court erred in focusing solely on the public situs of where his injuries occurred when determining the lack of a duty. Legleiter also argues that whether the attack was foreseeable is a question of fact for the jury and that genuine issues of material fact existed as to whether Gribben s actions caused or contributed to the fight that caused his injuries.
The standard of review is familiar. Summary judgment may be granted
“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 rule and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Summary judgment should be granted with caution in negligence actions. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). Nevertheless, a defendant is entitled to summary judgment in a negligence case if the defendant shows the claim is supported by no evidence indicating negligence. Crooks v. Greene, 12 Kan. App. 2d 62, 64-65, 736 P.2d 78 (1987). For an action of recoverable negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact. See Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, Syl. ¶ 1, 43 P.3d 799 (2002).
The general common-law theory of premises liability for commercial enterprises is expressed in the Restatement (Second) of Torts § 344 (1963). Kansas adopted § 344 in Gould v. Taco Bell, 239 Kan. 564, 568, 722 P.2d 511 (1986):
“ ‘A possessor of land who holds it open to the public for entry for his business purposes is subject to liability-to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
“ ‘(a) discover that such acts are being done or are likely to be done, or
“ ‘(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.’ ”
However, a business’ duty does not extend to every person who enters the property of the business. “The duty of care owed by a premises owner to an entrant upon the land is dependent upon the status of the person entering the premises.” Gould, 239 Kan. at 567.
As observed in Restatement (Second) of Torts § 344, comment a, the duty to protect others from the harmful acts of third persons is only owed to “business visitors,” commonly known as invitees. “ ‘An invitee is one who enters or remains on the premises of an other at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both the inviter and invitee.’ ” Mozier v. Parsons, 256 Kan. 769, 771, 887 P.2d 692 (1995) (quoting Gerchberg v. Loney, 223 Kan. 446, 448-49, 576 P.2d 593 [1978]).
As a general rule, an owner of a business does not insure the safety of his patrons or customers. This means the owner of a business ordinarily does not have a duty to provide security to protect against the criminal acts of third parties in a parking lot. However, an exception exists when circumstances indicate that a business owner’s customers have a risk of peril beyond the ordinaiy. Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 548, 856 P.2d 1332 (1993).
We note in the instant case the incident took place on a public sidewalk and not in the business’ parking lot.
In Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970), the plaintiff, who was a guest at the defendant’s bar, was attacked by a group of other patrons. The court found that the defendant had reason to know that his guests were in danger because the group had been unruly for several hours before the attack. Having been put on notice of the possible danger to other patrons, the defendant had an affirmative duty to protect them. 205 Kan. at 418-19. Similarly in Gould, 239 Kan. 564, 569, the restaurant clerks knew the plaintiff s assailants had started a fight on a previous occasion at the restaurant and thus had a duty to protect the plaintiff from the attack that started in the restaurant and then continued in the parking lot.
In Seibert, the plaintiff was attacked in the parking garage, apparently owned by the defendant, by an unknown assailant. The district court granted the defendant’s motion for summary judgment because there were no prior similar incidents indicating such a criminal act was foreseeable. The Kansas Supreme Court reversed, holding that the district court should determine foreseeability based on the totality of the circumstances rather than just the history of prior crimes in the area, although history was a factor. The district court was also instructed to review the level of crime in the area, the lighting in the garage, and other relevant factors. 253 Kan. at 550.
The parties agree that Kansas has not addressed the issue of liability of a business owner to a business invitee once the invitee leaves the business premises and is subjected to harmful conduct of a third party. Gottschalk argues Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121 (1997), demonstrates that a defendant must have possession or control over the situs of the injury in order to create a duty to protect patrons from activities of third parties. The Gragg court found the corporate sponsors of the fireworks show were not the owners, occupiers, or possessors of the university campus where the injuries occurred, that their contributions were monetary or in land, and that they had no control over security on the campus.
There are cases outside of Kansas addressing the issue in this case. Gottschalk cites Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429 (7th Cir. 1978). In Mitchell, the plaintiff attempted to deliver a truckload of merchandise to the defendant’s receiving dock. Because another truck was at the dock, the defendant’s employees instructed the plaintiff to wait with his truck on the street outside the defendant’s loading area. While waiting, the plaintiff was shot and seriously wounded by an unknown assailant. The defendant’s employees were aware that there had been repeated criminal acts on and about the premises, and the complaint alleged that they knew or should have known of the high risk of criminal attack upon any driver waiting in a truck parked in that area.
The Mitchell court affirmed the district court’s dismissal of the complaint, on the ground that the defendant could not be liable for the criminal act of a third party that occurred off the defendant’s premises and in the public street. The court stated:
“A possessor of land is subject to liability to business invitees while they are upon the land.’ In the present case, the Mitchells were parked upon a public thoroughfare. . . .
“[T]he Illinois courts, we believe, would rule that Comment c to § 314A controls. We do not regard the defendant-appellee’s concession that Lawrence Mitchell was an invitee on the date and time of his injury as an irrevocable waiver of its defense that Mitchell ceased to be an invitee at tire moment when he left the receiving dock area and returned to the street. Under the direct wording of Com ment c, it is clear that A & K had no duty to the Mitchells. The district court’s dismissal of the complaint because of the want of any existing duty comports with that analysis.” (Footnote omitted.) 573 F.2d at 437-38.
Legleiter argues there is no causal connection in Mitchell between the attacks upon the plaintiff and the owner/invitee relationship of the parties. Legleiter is incorrect. The truck driver in Mitchell was instructed by employees of the plaintiff to wait in the street, thus providing sufficient causal connection. Despite the connection and the high crime area, the Mitchell court still found no duty.
We have found persuasive cases from other jurisdictions. In Badillo v. DeVivo, 161 Ill. App. 3d 596, 515 N.E.2d 681 (1987), Badillo was verbally accosted and physically attacked by another patron in the bar. Tbe bar owner intervened, stopped the altercation, and then ejected both individuals from the bar. Badillo then proceeded to her automobile parked one-half block away from the bar, where she again was assaulted and battered by the other patron. The trial court dismissed her negligence claims against the bar.
The Badillo court recognized a tavern operator s duty to protect its patrons from foreseeable dangers caused by third parties but distinguished those cases as involving injurious acts occurring on the business premises or its parking lot. The court stated: “While there is some authority that an owner or operator of a business has a duty to provide a reasonably safe means of ingress and egress . . . we do not find that limited authority analogous here, where, as noted above, the injury occurred one-half block away from defendant’s property.” 161 Ill. App. 3d at 598.
The Badillo court also addressed an argument similar to that being raised by Legleiter, namely that Gribben’s actions in forcefully ejecting Hamby from the tavern were the figurative spark that ignited the fire causing his injuries. The Badillo court stated:
“But even assuming the subsequent assault was foreseeable, foreseeability is not the only element necessary to establish duty. In determining whether a duty exists, the court should also consider ‘[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.’ [Citation omitted.] This court has repeatedly held that requiring a business owner to protect its patrons from injuries that occur after the patron leaves the premises places an unjustifiable burden on the operator and on the police force. [Citation omitted.] It would oblige tavernkeepers, as well as other business operators to, in essence, police the streets so as to ensure their patrons’ safe passage to their cars or even their homes. Plaintiff s proposed remedy would be particularly burdensome as it would require establishment owners to determine which party was the aggressor in an altercation and to detain that potentially dangerous person on the premises until the victim could flee.” 161 Ill. App. 3d at 599.
In Locklear v. Stinson, 161 Mich. App. 713, 411 N.W.2d 834 (1987), the plaintiff s decedent was involved in an altercation in and around the defendant bar. The plaintiff filed a complaint alleging that although the defendant bar ejected Stinson, the decedent’s assailant, from the bar, its employees allowed Stinson to remain in the parking lot. When the decedent left the bar, the altercation continued. Ultimately, the decedent fled in his vehicle with Stinson pursuing him in his own vehicle. After a collision with a third party, the confrontation continued and the decedent stabbed Stinson. The decedent fled in his vehicle and became involved in a fatal crash. The Locklear court reversed the trial court’s denial of the defendant bar’s motion for summary disposition stating in part:
“[T]he decedent was injured away from the premises. Plaintiffs would have us extend defendants’ duty as a business invitor by alleging that a breach of duty on the premises was the cause of the decedent’s death away from the premises.
“We decline to do so; when the decedent left the premises and was no longer on the property owned or controlled by the defendants, the duty ended. [Citation omitted.]” 161 Mich. App. at 717-18.
See also Fishman v. Beach, 214 A.D.2d 920, 625 N.Y.S.2d 730 (1995) (“[T]he physical altercation which ultimately resulted in plaintiff s injuries indisputably occurred no less than 60 to 100 feet from the premises in a city street. We therefore find that [bar owner] cannot be held to a duty To control the conduct of patrons in consuming alcoholic beverages . . . beyond the area where supervision and control may reasonably be exercised.’ ”).
This is not a case where prior unruliness or historic criminal activity occurred at the business. It was undisputed that the Brass Rail was not known as an establishment where fights were prone to bréale out. It is also undisputed that no outrageous behavior occurred at the tavern on the night in question until Hamby started problems at closing.
This is also not a situation where Gribben was creating a known, obvious, and imminently dangerous situation or was subjecting any bar patrons, except Hamby who he was forcefully ejecting from the bar, to such a situation. This is also not a situation where the fight injuring Legleiter broke out on the business premises and then moved to the public street or thoroughfare.
The district court correctly espoused Legleiter’s theory of liability that
“Gribben started the chain of events which led to plaintiff s injuries when he ejected Hamby from the bar, and thus had a duty to all who had been Brass Rail patrons to control the subsequent course of events, and to control all of the persons who exited tire tavern into the public sidewalk and street.”
As was said by the district court:
“Plaintiff and Karst left tire tavern in a voluntary fashion, thus ending their status as invitees. Once they, Gribben, Hamby and the others were no longer on Brass Rail property, any legal right of control Gribben may have had over them and subsequent events ceased. In short, defendant, acting through Gribben, had no further duty to Iris former patrons.
“While one could perhaps conceive of facts under which an owner or operator of a tavern would have a duty not to cause or allow a patron to leave the tavern premises and thus enter into an area or situation of know danger, that is speculation at best, and has nothing to do with the factual situation presented here.”
We agree with the district court that as a general rule, business owners are not responsible to protect their customers from the acts of third parties outside the premises of the business.
Implicit in the district court’s decision is the rule that an owner of a business does not insure the safety of his or her patrons or customers. We do not find any exception to this rule when the actions of the third parties occur off the business premises and when there are no circumstances to indicate to the business owner that a risk of peril to the customers is beyond the ordinary. Seibert, 253 Kan. at 548.
We hold the district court did not err in granting summary judgment to Gottschalk. The facts fail to show the breach of any duty owed by Gottschalk and Gribben to Legleiter, and summary judgment was proper.
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McAnany, J.:
Sedgwick County (County) appeals the decision of the Workers Compensation Appeals Board (Board) affirming the administrative law judge’s conclusion that the County is not entitled to an offset for social security retirement benefits pursuant to K.S.A. 44-501(h).
Willie McIntosh worked as a security officer for Sedgwick County. In the spring of 1999, at about the time of his 65th birthday, McIntosh began receiving social security retirement benefits of $973 per month; but he continued to work full-time for the County. He planned to retire effective August 1, 1999. However, in June 1999, he suffered an on-the-job injury for which he made a workers compensation claim.
The administrative law judge concluded that McIntosh was entitled to an award of permanent and total disability and that the County was not entitled to an offset for social security retirement benefits pursuant to K.S.A. 44-501(h). The. Board affirmed the award, concluding that Dickens v. Pizza Co., 266 Kan. 1066, 974 P.2d 601 (1999), renders K.S.A. 44-501(h) inapplicable in this case. The County appeals, arguing that Dickens is distinguishable and that it is entitled to an offset for the social security retirement benefits McIntosh receives. We conclude that the offset provisions of K.S.A. 44-501(h) apply and, accordingly, reverse the Board’s decision and remand the case for further proceedings consistent with this opinion.
We have unlimited review of decisions of the Workers Compensation Appeals Board involving the interpretation of statutoiy provisions. While we give deference to the Board’s interpretation of the law, we grant relief for erroneous legal interpretations or applications. Pruter v. Larned State Hospital, 271 Kan. 865, 868, 26 P.3d 666 (2001).
The sole issue is the interpretation of K.S.A. 44-501(h), which states:
“If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any oilier retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.”
In interpreting a statute, we must determine legislative intent whenever possible. To accomplish this, a brief historical overview will bé helpful. K.S.A. 44-501(h) was preceded by K.S.A. 1974 Supp. 44-510f(c), which was enacted in 1974 as part of a comprehensive revision of the workmen’s compensation laws. It provided:
“An employee shall not be entitled to compensation benefits for permanent total disability, temporary total disability or partial disability, under the workmen’s compensation act, from and after the date when he shall receive federal old age social security benefits, reduced or unreduced.”
This statute dealt with the duplication that arises from receiving workers compensation benefits and social security retirement benefits. A companion provision, found in K.S.A. 1974 Supp. 44-510b(j) and enacted at the same time, dealt with the duplication of benefits in instances when a decedent’s surviving dependents received social security death benefits while also receiving workers compensation benefits.
In Baker v. List and Clark Construction Co., 222 Kan. 127, 128, 563 P.2d 431 (1977), the Supreme Court considered K.S.A. 1975 Supp. 44-510b(j) which deals with duplicative social security death benefits, upheld its constitutionality, and characterized it as
“a ‘set-off provision which provides that workmen’s compensation benefits due the dependents of a deceased employee shall be reduced by a specified formula if such dependents are also being paid under the Social Security Act because of the death of the employee.”
While Baker deals with death benefits rather than retirement benefits, the common rationale for these two provisions is instructive. The court noted that the statute is consistent with the view of workers compensation described in 4 A. Larson, The Law of Workmen’s Compensation, Sec. 97.00 (1976):
“ ‘Once it is recognized that workmen’s compensation is one unit in an overall system of wage-loss protection, rather than something resembling a recovery in tort or on a private accident policy, the conclusion follows that duplication of benefits from different parts of the system should not ordinarily be allowed. Since most social legislation in the United States has appeared in unrelated fragments, lack of coordination resulting in cumulation of benefits is quite common; but newer legislation, including the Social Security compensation offset provision, is more carefully drawn to prevent this result.’ [Citation omitted.]
“ “Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workmen’s compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.’ [Citation omitted.]” 222 Kan. at 130-31.
The court observed that noteworthy in the legislative history is the fact that the Special Committee on Employer-Employee Relations, which conducted a general review of Kansas workmen’s compensation law, gave specific consideration to the recommendations of the President’s National Commission on State Workmen’s Compensation Laws, which provided:
“We recommend that workmen’s compensation death benefits be reduced by the amount of any payments received from Social Security by the deceased worker’s family.” The Report of the National Commission on State Workmen’s Compensation Laws 73 (July, 1972).
The Commission concluded:
“ ‘This offset provision, in conjunction with our other recommendations for death benefits, would provide substantial protection at a lower cost to the employer than if workmen’s compensation benefits were to duplicate Social Security benefits. More important, the offset would add equity to the workmen’s compensation system because two families would not receive different benefits merely because only one was eligible for the Social Security benefits. Moreover, all surviving families would be assured of a continuing income of the same general magnitude, rather than being subject to wide swings in family income resulting from the in-and-out characteristics of Social Security benefits.’ [Citation omitted.]” 222 Kan. at 131-32.
The court in Baker concluded that “[w]hen the system of wage-loss protection is viewed as a whole, avoiding duplication or overlapping of benefits appears to be a reasonable legislative objective.” 222 Kan. at 132.
One year after Baker, this court considered the companion legislation relating to social security retirement benefits, K.S.A. 1976 Supp. 44-510f(c), in Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978). Boyd was 62 years old and receiving $240 per month in social security retirement benefits at the time of his post-retirement, work-related injury. His average weekly wage was only $95 because he limited his work to an amount that would supplement but not reduce his social security retirement benefit. He was denied workers compensation benefits under K.S.A. 1976 Supp. 44-510f(c). The court observed:
“[A] schedule has been established which limits the number of weeks that wage replacement (expressed in terms of 66% percent of the average gross weekly wage) may be received for particular permanent partial disabilities. K.S.A. 1976 Supp. (now 1977 Supp.) 44-510d. Should an injured worker have only a part of die specified number of weeks of employment left before retirement, workmen’s compensation would provide the wage-loss benefit up to the time social security comes into effect. As long as workmen’s compensation is not viewed as a substitute for tort recovery but as wage-loss protection only, the cutoff of workmen’s compensation at the time of retirement and initial receipt of old age social security benefits would be reasonable. The worker would suffer only one wage loss, but continued workmen’s compensation after retirement would duplicate the wage-loss replacement of the old age social security benefits which begin at that time.” 2 Kan. App. 2d at 428.
Here, Boyd was already retired and was supplementing his retirement benefits through part-time work. Finding that the statute did not apply to Boyd and those similarly situated, the court concluded:
“Should K.S.A. 1976 Supp. 44-510f(c) be applicable to such workers, it would totally preclude any replacement of the wages which they are entitled to earn over and above old age social security benefits. As such, it would not prevent ‘duplication’ but would operate to preclude the wage replacement which it was the intent of the legislature to provide through the Workmen’s Compensation Act.” 2 Kan. App. 2d at 428.
The following year, this court decided Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 599 P.2d 1031 (1979), aff'd 227 Kan. 645, 608 P.2d 1356 (1980). K.S.A. 1974 Supp. 44-510f(c) was again at issue in Brown. Brown received a workers compensation award 16 months before he began receiving social security retirement benefits at age 65. The Workers Compensation Fund sought to terminate Brown’s workers compensation benefits under K.S.A. 1974 Supp. 44-510f(c). The Court of Appeals affirmed the termination of benefits, noting:
“When viewed as part of a wage-loss compensation program, the termination of benefits under 44-510f(c), like 44-510b(j), does not really penalize the injured worker. By preventing a duplication of benefits under the Workmen’s Compensation Act and the Social Security Act, the provision places the worker in the same position as fellow workers who have retired and are drawing old age social security benefits. At that point he is no longer subject to wage loss. It is only his disability benefits that are affected. After retirement the wage loss experienced by a worker is not caused by injury, but by retirement. A worker could retain workmen’s compensation benefits by staying in the labor market and not retiring.” 3 Kan. App. 2d at 654.
K.S.A. 1976 Supp. 44-510f(c) and K.S.A. 1976 Supp. 44-510b(j) were repealed in 1977. In 1993 K.S.A. 1976 Supp. 44-510f(c) was replaced by the current 44-501(h), which is quoted above. The impetus for this legislation was the same concern that prompted the prior legislation, 44-510f(c) and 44-510b(j): the reduction of workers compensation insurance premiums by, among other things, preventing duplication of wage-loss benefits. Whereas the old law created a total bar to workers compensation benefits for one receiving social security retirement benefits, the new law provided for a dollar-for-dollar reduction in benefits.
In 1997, this court decided Bohanan v. U.S.D. No. 260, 24 Kan. App. 2d 362, 947 P.2d 440 (1997), which upheld the constitutionality of K.S.A. 1996 Supp. 44-501(h). One month after Bohanan, the Supreme Court similarly addressed the constitutionality issue in Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591 (1997). In upholding the constitutionality of K.S.A. 44-501(h), the court affirmed the decisions in Baker and Brown under the earlier legislation and stated:
“Subsection (h) allows an offset against workers compensation benefits to which an injured worker would otherwise be entitled for each dollar of social security retirement benefits received by the injured worker, as long as the workers compensation benefits do not dip below the workers compensation benefits payable for the employee’s percentage of functional impairment.” 262 Kan. at 865.
The following year, this court decided Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 975 P.2d 807 (1998). Gadberiy suffered a job-related back injury in 1994 and was discharged later that year. She applied for and obtained retirement and social security disability benefits. Her employer was permitted to offset her retirement income in calculating workers compensation benefits. 25 Kan. App. 2d at 807.
One year later, the Supreme Court decided Dickens. Dickens presents facts similar to those in the earlier Boyd case decided by this court. Dickens retired at age 64 and supplemented his social security retirement benefit with part-time work for Pizza Hut. Eight years into his Pizza Hut job, he suffered a work-related injuiy for which he sought workers compensation benefits. Pursuant to K.S.A. 44-501(h), the Board reduced the amount of his workers compensation benefits by the amount of his social security retirement benefits. On appeal, the court relied upon the reasoning applied in Boyd. In reversing the Board’s reduction of benefits, the court observed:
“The Boyd court was concerned, as we are here, with disparate treatment of individuals such as Dickens, seeking to supplement social security income, compared to other social security beneficiaries.
“The Boyd court recognized that issues of wage-loss duplication are not at issue in the retired income earner situation. Boyd said: ‘[W]orkers such as the plaintiff here, who are already retired and receiving social security old age benefits before starting work on a part-time job to supplement those benefits, suffer a second wage loss when they are injured in the course of their employment.’ 2 Kan. App. 2d at 428. The Boyd analysis is sound.” 266 Kan. at 1071.
Several months following Dickens, this court decided Green v. City of Wichita, 26 Kan. App. 2d 53, 977 P.2d 283 (1999). Green, a firefighter, suffered a work-related back injury at age 40. Upon return to work he was told to fill out his retirement papers. Green had an age-based retirement plan and a disability benefit plan. He also applied for workers compensation benefits. Contrary to the City’s position, the Board did not apply K.S.A. 44-501(h) to reduce Green’s workers compensation benefits by the amount of his retirement benefits. The issue on appeal was whether the benefits to Green were in the nature of a traditional retirement benefit or a disability benefit. In considering whether Green received a tradi tional retirement benefit, tire court noted that “Black’s Law Dictionary defines ‘retire’ as ‘[t]o terminate employment or service upon reaching retirement age.’ ” 26 Kan. App. 2d at 56. The court concluded that the substance of Green’s benefits from the City was disability assistance rather than retirement benefits for which an offset under 44-501(h) would apply. 26 Kan. App. 2d at 57.
A month after Green, the Supreme Court decided Treaster v. Dillon Companies, Inc., 267 Kan. 610, 987 P.2d 325 (1999). The central issue was the effective date of Treaster’s injury, since if it was after the effective date of K.S.A. 44-501(h), the setoff provisions would reduce her workers compensation benefits due to her receipt of social security retirement benefits. The court found that her injuiy occurred on August 2, 1993, after the July 1, 1993, effective date of 44-501(h). She stopped working on May 28, 1994, and was on disability status for the remainder of the year. She retired on January 1, 1995, and began receiving retirement benefits. Accordingly, Dillon was entitled to offset the retirement benefits she began receiving in January 1995 against her workers compensation benefits. 267 Kan. at 625.
In November 1999, the Supreme Court decided Wishon v. Cossman, 268 Kan. 99, 991 P.2d 415 (1999). Wishon received workers compensation benefits as well as social security disability payments. Upon his reaching age 65, the disability payments were converted to retirement payments pursuant to 42 U.S.C. § 402(a)(3)(A) (1994). The Board reduced Wishon’s workers compensation benefits by the amount of his social security retirement benefits in accordance with K.S.A. 1998 Supp. 44-501(h). Wishon argued that since he was forced to retire due to injury rather than voluntarily choosing to retire, the 44-501(h) offset should not apply. He also argued that the court should adopt die approach used and conclusion reached in Dickens. In rejecting botíi arguments, the court noted that at age 65 the payments to Wishon changed to retirement payments because of his age. Thus, his retirement benefits were based on his age rather Üian his disability, and “the plain language of K.S.A. 44-501(h) requires that his workers compensation award be reduced by his social security payments.” 268 Kan. at 106-08.
Returning to the case at hand, McIntosh began receiving social security benefits at about the time he reached age 65 in April. He intended to retire in August. In the meantime, he continued to work full-time for the County doing the same job as before. He suffered an injuiy in June, before his anticipated retirement date. His circumstances were markedly different from those in Dickens, where the claimant retired, began collecting social security retirement benefits, and years later suffered a work-related injuiy. McIntosh was not retired at the time of his injury. His income from the County at the time of his injuiy was not post-retirement income used to supplement his retirement income. As noted earlier in Green, to retire is “ ‘to terminate employment or service upon reaching retirement age.’ ” Green, 26 Kan. App. 2d at 56. McIntosh terminated neither his employment nor his services before his job-related accident.
The cases show two consistent patterns: (1) injuiy, then retirement: no duplication of benefits allowed (Gadberry, Brown, Treaster, and Wishon); and (2) retirement, then injury: multiple benefits allowed (Boyd and Dickens). McIntosh falls into the former category. He suffered his work-related injury before retirement. Unlike in Dickens, McIntosh suffered only one wage loss: the loss of wages for his full-time employment that predated the injury and his retirement. Although McIntosh began receiving social security benefits before the actual date of his retirement, they were intended to compensate him for the wage loss that would result from his eventual retirement.
McIntosh argues that his work for the County after receiving social security benefits was intended to supplement his social security income once he retired in August. He asserts that he would have continued working for many years but for his pre-retirement injuiy. McIntosh’s frustration is understandable. However, it is clear that in enacting K.S.A. 44-501(h), the legislature intended to prevent wage-loss duplication. In instances in which the work-related injury predates the actual date of retirement, the appellate courts have consistently held that social security retirement benefits are designed to restore a portion of an employee’s wages lost due to age and, therefore, duplicate workers compensation benefits which are designed to restore a portion of an employee’s wages lost due to injury. Accordingly, the offset provisions of K.S.A. 44-501(h) apply to McIntosh.
Finally, in view of our holding in this case, the County’s argument that the Board’s interpretation of K.S.A. 44-501(h) violates the Equal Protection Clause is moot and we need not consider it.
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RüLON, C.J.:
This appeal involves the relative priority of four unsatisfied liens filed on the foreclosure property known as Whispering Meadows development in Eudora, Kansas. Before the development was completed, the property owner, Res/Com Properties, L.L.C. (Res/Com), defaulted on its payment obligations under two mortgages and various construction contracts. The mortgages were held by Mutual Savings Association (Mutual), the appellee in the present action. The construction contracts on which Res/Com defaulted were performed by The Peridian Group (Peridian), LRM Industries, Inc. (LRM), and the Modem Engineering Utilities Company, Inc. (Modem).
On cross-motions for summary judgment, the trial court found that appellee Mutual’s first note and mortgage had priority over the subsequent liens of appellants LRM and Modem. LRM and Modem appeal from such mling.
Res/Com Properties is a Kansas limited liability company in which Larry Slavens, Chad Slavens, and L.J. Slavens have equal membership. Heartland Building and Development, L.L.C., is a Kansas limited liability company in which the Slavens also have equal membership.
The material facts are undisputed. A chronological review of the facts is necessary for our analysis.
In July 1999, George Kritos contracted with Peridian to provide design and engineering services on the subject property. The work included boundary verification, topographical surveying, preparing preliminaiy and final site development plans, platting, storm water drainage studies, sanitary sewer design, street and storm sewer design, and water line design. The on-site work consisted of surveying, staking the boundary corners, staking of preliminary layouts for utilities and streets, plus horizontal control and vertical control benchmark staking used for sewer, street, and storm water designs. Peridian’s work began prior to May 22, 2000.
On May 22,2000, Res/Com purchased the property from Kritos. That same day, Res/Com signed a $570,000 promissory note and related mortgage in favor of Mutual. Mutual recorded its mortgage on May 24,2000. Res/Com used the money to purchase the subject property. Peridian then contracted with Res/Com to continue its design and engineering services.
On June 28,2000, Res/Com executed a second note with Mutual for $80,300.
On July 7, 2000, Modem began installing the sanitary sewers on the subject property under a subcontract with Heartland. Heartland was Res/Com’s general contractor on the project.
On July 19, 2000, Res/Com executed and delivered to Mutual a second mortgage to secure the second note. The mortgage was filed July 20, 2000.
On August 30, 2000, LRM entered into two contracts with Heartland to construct improvements on the subject property. LRM worked on the property from September through November 2000.
On October 26, 2000, Peridian filed its mechanic’s lien. LRM filed its mechanic’s lien on December 18, 2000, and while it is unclear if or when Modem filed its original mechanic’s lien, clearly Modern filed an amended lien on December 19, 2000. On March 15, 2001, Peridian filed an amended mechanic’s hen. On or about March 15, 2001, Mutual paid Peridian for its work and took assignment of Peridian’s lien. Mutual then filed a release of the Peridian lien.
Res/Com subsequently defaulted on both notes to Mutual, and on September 28, 2001, the district court granted Mutual summary judgment against Res/Com and allowed Mutual to foreclose on the property. The court further mled the Slavens must pay Mutual all amounts due and owing under the first and second notes and mortgages.
When summary judgment order was entered, there were two unsatisfied mechanics’ liens on the property. These were the liens held by LRM and Modem.
Mutual then sought summary judgment, seeking priority for its first note and mortgage over the LRM and Modern liens. LRM filed a cross-motion for summary judgment on the issue of priority, arguing their hens related back to the time Peridian first began work on the property. The district court entered judgment in favor of Mutual. The court found that LRM’s and Modern’s subsequent Hens were not entitled to priority by “relating back” to Peridian’s preliminary staking of the subject property and off-site design and engineering work.
LRM and Modem appeal from the ruling of the district court.
Our standard of review on a motion for summary judgment is as stated in Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). Resolution of the issues on this appeal require the interpretation of K.S.A. 60-1101 and K.S.A. 2002 Supp. 60-1103. Interpretation of a statute is a question of law subject to unhmited review. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
K.S.A. 60-1101, entitled “Liens of contractors; priority” states:
“Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a Hen upon tire property for the labor, equipment, material or supplies furnished, and for the cost of transporting the same. The Hen shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the hen. When two or more such contracts are entered into applicable to the same improvement, the hens of all claimants shall be similarly preferred to the date of the earhest unsatisfied hen of any of them.”
K.S.A. 2002 Supp. 60-1103, entitled “Liens of subcontractors; procedure, recording and notice, owner’s liability” states, in part:
“(a) Procedure. Any suppher, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the hen, under an agreement with the contractor, subcontractor or owner contractor may obtain a hen for the amount due in the same manner and to the same extent as the original contractor . . . .”
Our Supreme court in Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 170, 910 P.2d 839 (1996), noted:
“Our mechanic’s lien law is remedial in nature, enacted for the purpose of providing effective security to any persons furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property under a contract with the owner. The theory underlying the granting of a lien against the property is that the properly improved by the labor, equipment, material, or supplies should be charged with the payment of the labor, equipment, material, or supplies.
“At the same time, a mechanic’s lien is purely a creation of statute, and those claiming a mechanic’s lien must bring themselves clearly within the provisions of the authorizing statute. Kansas City Heartland Constr. Co. v. Maggie Jones Southport Cafe, Inc., 250 Kan. 32, 34, 824 P.2d 926 (1992). The statute must be followed strictly with regard to the requirements upon which the right to hen depends. Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, Syl. ¶ 2, 505 P.2d 640 (1973). However, because the statute is remedial and designed for the benefit and protection of persons designated by the act, once a hen has been found to have attached, the law is to be liberally construed in favor of such claimant. See Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 704-05, 549 P.2d 1376 (1976).”
There is a dispute as to which statute applies to which entities before this court. LRM argues K.S.A. 2002 Supp. 60-1103 applies to Peridian, as well as to Modern and LRM, as all three were subcontractors. In support, LRM cites to the fact the district court found Larry Slavens dealt with third parties interchangeably as Res/ Com, Heartland, and as an individual. Mutual did not cross-appeal such finding. Further, the invoices from Peridian show Larry Slav-ens as the client, and there was deposition testimony reflecting the fact Peridian saw no distinction among the entities of Res/Com, Heartland, and Slavens. Mutual argues K.S.A. 2002 Supp. 60-1103 applies only to LRM and Modern, as such were subcontractors under contract with Heartland, the general contractor, and K.S.A. 60-1101 applies to Peridian, as it was a contractor under contract with the owner, Res/Com.
Regardless, the posture of the parties may be a distinction without a difference as subcontractors’ hens attach at the time the general contractor began work or construction. Contractors’ liens attach when there has been a furnishing of labor, equipment, material, or supplies used or consumed for the improvement of the property. The liens of all contractors and subcontractors are similarly preferred to the date of the earliest unsatisfied hen.
In J. Walters Constr. Co. v. Greystone South Partnership, 15 Kan. App. 2d 689, 817 P.2d 201 (1991), this court reviewed the relationship between K.S.A. 60-1101 and K.S.A. 2002 Supp. 60-1103. After considering the history of the statutes, we concluded the legislature intended subcontractors’ mechanics’ liens to attach at the time the general contractor began work or construction. 15 Kan. App. 2d at 703. We reasoned:
“If the legislature did not intend all mechanics’ liens, contractors’ and subcontractors’ liens alike, to attach at the same time, then the only other reasonable interpretation would be that hens attach at the time each contractor or subcontractor began work on the project. Under that interpretation, there would be no reason to pay hen claimants ‘in proportion to the amount due each’ under K.S.A. 60-1109, because their hens would attach on different determinable dates, and payment could be made on the basis of chronological priority. Under that system, the first on the job would be the first paid, and the last on the job would be assuming the greatest risk of forfeiture. Clearly, this kind of inequality was not what the legislature intended; therefore, the only rational conclusion is die legislature intended all subcontractors’ mechanics’ hens to attach when the general contractor’s first work on a construction project began.” 15 Kan. App. 2d at 703-04.
The Greystone court ultimately held that because subcontractors are entitled to mechanics’ hens “in the same manner and to the same extent as the original contractor” under K.S.A. 2002 Supp. 60-1103, then subcontractors’ mechanics’ hens should be “similarly preferred to the date of the earliest unsatisfied hen” under K.S.A. 60-1101. 15 Kan. App. 2d at 704.
Under the facts before us, the status of Peridian as a subcontractor or contractor is immaterial. The central issue on appeal is when and if Peridian’s work, done prior to Mutual’s mortgage, became lienable and attached. If Peridian’s on-site surveying and staking and off-site designing and planning, done prior to Mutual’s mortgage being filed, were not lienable or had not attached, LRM and Modem’s hens could only relate back to when Modern began work, which was subsequent to Mutual’s mortgage. The effect of such would be that Mutual would have priority, and the district court’s grant of summary judgment was proper.
Initially, a mechanic’s hen which has attached is superior to any subsequent purchaser for value and without notice, even if no hen statement is filed until after the conveyance. The work itself constitutes notice to the world of the existence of the lien. Lenexa State Bank & Trust Co. v. Dixon, 221 Kan. 238, 241, 599 P.2d 776 (1977). As such the fact Peridian s work was done prior to Res/Com actually becoming the owner of the property is not in and of itself a bar to LRM’s and Modern’s claims of priority. However, for LRM and Modern to prevail, Peridian’s “pre-mortgage” work must have attached to the property. Under K.S.A. 60-1101, “[i]n order for a mechanic’s lien for labor and materials to attach, such items must be used or consumed for the improvement of real property, and thus become part of the realty itself.” Benner-Williams, Inc. v. Romine, 200 Kan. 483, 485, 437 P.2d 312 (1968).
In Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 14 Kan. App. 2d 714, 798 P.2d 511, rev. denied 248 Kan. 996 (1990), die sole issue was whether architectural and engineering services constituted lienable labor resulting in an improvement to real property within the meaning of K.S.A. 60-1101 when construction was never commenced and there appeared no visible or physical manifestation of work on the property. 14 Kan. App. 2d at 717. The Mark Twain court specifically refused to address the issue of whether a mechanic’s lien can ever attach for off-site architectural and engineering services if construction is commenced and, if a lien can attach, what priority it would be given. 14 Kan. App. 2d at 720.
However, the Mark Twain court, interpreting the term “improvement” as contained in K.S.A. 60-1101, reasoned the rationale for allowing a lien was to afford security to persons designated in the statute who have done acts described in the statute. “The requirement of visible activity on the site serves to put the world on notice of the rights of those who furnish labor or materials for the improvement. When no construction begins, no visible evidence of possible liens exists.” 14 Kan. App. 2d at 720. Although not defined in K.S.A. 60-1101, “improvement” is generally defined as a physical addition made to real property that enhances the value of the land. See 14 Kan. App. 2d at 720, and the cases cited therein.
“To allow a lien to attach where there is no visible effect on the real estate is contrary to the reason mechanics’ liens are given priority over other hens that are subsequent to the commencement of the work improving the property. See K. S. A. 60-1101. To allow a hen where the property was not visibly improved by the labor provided would require an amendment to the present mecbanic’s lien statute. [Citation omitted.]” 14 Kan. App. 2d at 721.
Subsequent to Mark Twain, however, our Supreme Court in Haz-Mat Response, Inc., 259 Kan. 166, clarified the test to be used in determining what types of activity were and were not lienable.
The Haz-Mat court noted that the statutory phrase “improvement of real property” is not defined in the Kansas statute. The only reported Kansas case construing the requirement was Mark Twain, 14 Kan. App. 2d 714. The Haz-Mat court went on to discuss the Mark Twain case and concluded that the cases cited in Mark Twain did not support the conclusion that there must be visible effect on the real property for the work to be lienable. While “improvement” is generally defined as any physical addition made to the real property that enhances the value of the land, there is no requirement under our present law that there be a physical addition made to real property. See Benner-Williams, Inc. v. Romine, 200 Kan. 483, 437 P.2d 312 (1968). Further, improvement is not necessarily synonymous with enhancement of market value. Haz-Mat, 259 Kan. at 171-72.
After reviewing a number of prior Kansas cases as well as cases from other states dealing generally with the meaning of the phrase “improvement of real property,” the Haz-Mat court devised seven (7) considerations for determining if an activity is considered to improve real property.
“(1) What is or is not an improvement of real properly must necessarily be based upon the circumstances of each case; (2) improvement of the property does not require the actual construction of a physical improvement on the real property; (3) the improvement of real property need not necessarily be visible, although in most instances it is; (4) the improvement of the real properly must enhance the value of the real property, although it need not enhance the selling value of the property; (5) for labor, equipment, material, or supplies to be lienable items, they must be used or consumed and thus become part of tire real property; (6) the nature of the activity performed is not necessarily a determining factor of whether there is an improvement of real properly within the meaning of the statute; rather, the purpose of the activity is more directly concerned in the determination of whether there is an improvement of property which is thus lienable; and (7) the furnishing of labor, equipment, material, or supplies used or consumed for the improvement of real property may become lienable if established to be part of an overall plan to enhance the value of the property, its beauty or utility, or to adapt it for a new or further purpose, or if the furnishing of labor, equipment, material, or supplies is a necessary feature of a plan of construction of a physical improvement to the real property.” 259 Kan. at 175.
Finally, the Haz-Mat court adopted the Black’s Law Dictionary definition of the phrase “improvement of real property” as it is used in K.S.A. 60-1101: “A valuable addition made to real property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.” 259 Kan. at 175-76 (citing Black’s Law Dictionary 757 [6th ed. 1990]). As we understand, Haz-Mat disapproved of Mark Twain s holding that improvement to the property must be visible before the work can be lienable.
Here, the first issue is whether Peridian’s preliminary staking and surveying, done prior to Mutual’s mortgage, constituted an “improvement” as used in K.S.A. 60-1101. Applying the considerations set out in Haz-Mat, we conclude Peridian’s efforts were lienable. It is undisputed that the labor and capital expended in the surveying and staking work done by Peridian were actually used in the development of the property. This record is silent as to whether stakes installed by Peridian were still on the property at the time Mutual’s mortgages were filed, but this is irrelevant under the Haz-Mat test. If they were in fact visible, this lends further support to the subcontractors’ claim.
The next issue is, if Peridian’s work is lienable, when did that hen attach. Once again K.S.A. 60-1101 reads in relevant part:
'The hen shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the lien. When two or more such contracts are entered into applicable to the same improvement, the liens of all claimants shall be similarly preferred to the date of the earliest unsatisfied hen of any of them.” (Emphasis added.)
K.S.A. 2002 Supp. 60-1103 reads:
“(a) Procedure. Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to the same extent as the original contractor . . . (Emphasis added.)
The question is what is meant by commencement of the furnishing of such labor, equipment, material, or supplies at the site of the property subject to the lien.
Here, the district court properly found that under the reasoning in Haz-Mat, the off-site engineering and design work done by Peridian was no doubt lienable. However, the district court went on to find, citing Mark Twain, that the hen did not attach until the plans drawn up by Peridian were actually “used or consumed” at the site, i.e., the hen did not attach until Modern used the plans to install the sanitary sewers. The district court further found that the preliminary surveying and/or staking done at the site by Peridian before May 22, 2000, was used for preparation of plats, designs, and other paperwork and was not sufficient to be deemed work used or consumed at the site because the work did not become “part of the real property” until the plans and drawings were actually used by Modem to begin construction. The district court appeared to draw a distinction between the staking Peridian completed and the more precise construction staking which subcontractors like Modern used in locating actual physical improvements. We disagree with such a distinction.
Once it is determined that the work performed is lienable, the plain language of K.S.A. 60-1101 only requires that for priority purposes, the subcontractor or contractor commence the furnishing of such labor, equipment, material, or supplies at the site of the property subject to the lien.
Of critical importance here is the fact that when the Mark Twain court concluded that there must be some physical improvement sufficient to put those who seek to acquire an interest in the land on notice that building has commenced, it was relying in part on language in Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 343, 29 Pac. 153 (1892). However, the Weyerhaeuser court was interpreting a prior version of the mechanic’s hen statute that is significantly different than the modem version. In 1892, the mechanic’s lien statute read in relevant part:
“Such hens shall be preferred to all other hens or incumbrances which may attach to or upon such land, buildings, or improvements, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, the planting of such trees, vines, plants or hedges, the building of such fence, footwalks, or sidewalks, or the making of such repairs or improvements.” (Emphasis added.) G.S. 1889, § 630.
The Weyerhaeuser court noted that under G.S. 1889, ch. 80, § 630, commencement of the building meant digging the foundation, and earlier cases had held that survey staking was not sufficient for a hen to attach. 48 Kan. at 342. The Weyerhaeuser court concluded the “main purpose is to create an impression on the mind of any person who seeks to purchase or acquire an interest or lien in the land, the acts indicating that a building thereon is being commenced ought to consist of work of such character that a person of ordinary observation could determine that a building was in process of construction.” 48 Kan. at 343.
The language in G.S. 1889, ch. 80, § 630 is considerably different from K.S.A. 60-1101, which for priority purposes merely requires that “[t]he lien shall be preferred to all other Hens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the lien.” (Emphasis added.) The prior version of the statutes placed the time of attachment as upon the commencement of building.
Similarly, our Supreme Court in Lenexa State Bank & Trust Co. v. Dixon addressed what effect a mortgage foreclosure action, resulting in a judicial sale, had on four junior mechanics’ lienholders who were not parties to the foreclosure suit. Citing two prior cases, Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., 184 Kan. 202, 336 P.2d 463 (1959), and Warden v. Sabins, 36 Kan. 165, 12 Pac. 520 (1887), the Dixon court repeated the long-standing rule that a mechanic’s lien attaches from the date work or construction commences. 221 Kan. at 241. However, the date the mechanics’ liens attached was not at issue in Dixon. The sole issue was whether certain mechanics’ liens, which had attached prior to the foreclosure, survived the foreclosure and subsequent judicial sale. There were no facts in that case indicating exactly what work or materials were furnished by the holders of the mechanics’ liens or when in the process of construction the labor and materials were supplied. The court expressly held that priority was not at issue and the only issue was whether the mechanics’ hens were valid. 221 Kan. at 247.
The two cases cited by Dixon and Mark Twain were construing mechanics’ hen statutes that contain the same language as G.S. 1889, ch. 80, § 630 construed in Weyerhaeuser. In Warden v. Sabins, the court was asked to construe Comp. Laws of 1879, ch. 80, art. 27, § 630, which reads in relevant part: “Such liens shall be preferred to all other liens and incumbrances which may attach to or upon such lands, buildings or improvements, or either of them, subsequent to die commencement of such budding, the furnishing or putting up of such fixtures or machinery, ... or the making of any such repairs or improvements.” 36 Kan. at 168. The Warden court concluded that the time die lien is acquired is dependent on the provisions of die statute and that the work itself, or the materials furnished, were notice to all of a mechanic’s or máterialman’s claim. 36 Kan. at 168-69.
In Davis-Wellcome Mortgage Co. v. Long-Bell Lumber Co., our Supreme Court concluded that mechanics’ hens attach on the date construction commences. The Davis court, however, was interpreting G.S. 1949, 60-1401, which as to priority reads substantially the same as the statutes in Comp. Laws of 1879, ch. 80, art. 27, § 630 and G.S. 1889, ch. 80, § 630: “Such lien shall be preferred to all otiier liens or encumbrances which may attach to or upon such land, building, or improvement, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures, or machinery, the planting of trees, vines, plants or hedge, the building of such fence, footwalk, or sidewalk, or the malting of any such repairs or improvements.” (Emphasis added.)
We are convinced that none of the cases cited in Mark Twain, which are cited for the proposition that a lien cannot attach prior to the start of construction, were interpreting the current form of the statute.
Furthermore, the district court’s interpretation here is contrary to the language in K.S.A. 60-1101. The statute provides that any person furnishing labor or materials used or consumed for the im provement of real property shall have a lien. K.S.A. 60-1101 does not read that any person that furnishes labor or material shall have a Hen at the time that labor or material is used or consumed at the site. The trial court’s interpretation of K.S.A. 60-1101 would be contrary to this court’s decision in J. Walters Constr. Co. v. Greystone South Partnership, 15 Kan. App. 2d 689, 817 P.2d 201 (1991) and would mean that different subcontractors’ liens would attach at different times, i.e., when their work or materials were actually incorporated in the project, and priority would be based upon those dates.
It is undisputed that Peridian’s work was used in the construction at the site. The question remains whether the surveying and staking Peridian did at the site was sufficient to cause its lien to attach. We acknowledge the Utah Court of Appeals’ decision in Ketchum, Konkel, et al. v. Heritage Mt., 784 P.2d 1217, 1227 (Utah App. 1989), cited by the district court, and the authorities cited therein, which held that under Utah law, placing survey stakes, preparing soil, leveling and grading and taking soil samples do not qualify as visible on-site improvements required to establish priority under Utah’s mechanic’s lien statutes. The Utah statute reads:
“The liens herein provided for shall relate back to, and take effect as of, the time of the commencement to do work or furnish materials on the ground for the structure or improvement, and shall have priority over any lien, mortgage or other encumbrance which may have attached subsequently to the time when the building, improvement or structure was commenced, work begun, or first material furnished on tire ground; also over any lien, mortgage or other encumbrance of which the lien holder had no notice and which was unrecorded at the time the building, structure or improvement was commenced, work begun, or first material furnished on the ground.” Utah Code Ann. § 38-1-5 (2003).
We note, however, that our sister states Colorado and Oklahoma have reached a contrary conclusion based on statutes that are somewhat different than the Kansas statutes, but very similar to those in Utah. In fact, the Utah statute at issue in Ketchum was based on the Colorado mechanic’s lien statute. 784 P.2d at 1223.
In Bankers Trust Company v. El Paso Pre-Cast Co., 192 Colo. 468, 473, 560 P.2d 457 (1977), the Colorado Supreme Court addressed the question of priority between the beneficiary of a deed in trust and several mechanic’s hens on the same piece of property. We note that in Colorado the statutes expressly include engineers and architects in the class of those eligible for mechanics’ hens. 192 Colo, at 472-73.
In El Paso Pre-Cast, there was a dispute between several hen claimants and a bank which had made a loan to work on a project at an apartment complex. The lien claimants sought to have their hens relate back to the date an engineering firm and an architectural firm first began work on the project. The trial court ruled that all mechanic’s liens related back to the time prior to the date the deed of trust was filed. The bank appealed. 192 Colo, at 471. On appeal, one of the arguments presented by the bank was that the date estabhshing priority was the date work commenced upon the structure or improvement. In this context, the bank argued work meant lienable work and commencement of work meant the start of actual on-site construction. Because the work of the architect or engineer done before the date the deed of trust was recorded was not done on the structure or improvement, such work was not lienable work, and on-site and actual construction did not begin until after the bank’s deed of trust was filed. 192 Colo, at 472.
As to priority, Colo. Rev. Stat. § 38-22-106(1) (2003) reads in relevant part:
“All liens established by virtue of this article shall relate back to the time of the commencement of work under the contract between the owner and the first contractor, or, if said contract is not in writing, then such liens shall relate back to and take effect as of the time of the commencement of the work upon the structure or improvement, and shall have priority over any hen or encumbrance subsequently intervening . . . .”
The Colorado Supreme Court disagreed with the Bank, noting that the phrase “commencement of the work” is construed broadly in accord with the principle that mechanic’s lien laws should be construed in favor of the hen claimants. The Colorado Supreme Court concluded that the architectural and engineering work performed did constitute commencement of work upon the structure or improvement under the statute. 192 Colo, at 473.
Similarly, in Midland Mortgage Company v. Sanders England Investments, 682 P.2d 748 (1984), the Oklahoma Supreme Court held that surveying by an engineering firm done prior to the recording of a mortgage was a superior lien to that of tire mortgage lien. The Oklahoma statute in question reads in relevant part:
“Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, furnish material or lease or rent equipment used on said land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to, any such building, structure or improvements; or who shall plant any tree, vines, plants or hedge in or upon such land; or who shall build, alter, repair or furnish labor, material or lease or rent equipment used on said land for building, altering, or repairing any fence or footwallc in or upon said land, or any sidewalk in any street abutting such land, shall have a hen upon the whole of said tract or piece of land, the buildings and appurtenances. . . .” Oída. Stat. tit. 42, § 141 (2002).
The Oklahoma Supreme Court noted that the mechanic’s hen statute did not require that tire labor performed for the erection of any building be part of the permanent construction of the building or that it be continuous or visible. 682 P.2d at 749. The court had previously defined the improvement of land as described in § 141 as including any and every character of improvement on realty and, therefore, the setting of survey pins, marking of boundaries, and surveying done prior to the filing of the mortgage was lienable, and the firm which did the surveying was entitled to a lien with priority over the mortgagee. 682 P.2d at 750.
In Kansas:
“The theory underlying the granting of a lien against the property is that the property improved by the labor, equipment, material, or supplies should be .charged with the payment of the labor, equipment, material, or supplies.” HazMat, 259 Kan. at 170.
Based on the plain language of the Kansas statute, it is irrelevant at what point in the construction process that work was used or consumed. Further, it is undisputed that Peridian did staking work at the site. Again, the record is silent as to whether these stakes were still on the property when Mutual’s mortgages were filed. While this may not have been as substantial as the staking required to pour footings and foundation walls, the statute makes no such distinction. Peridian’s work was just as necessary in the development of the project as the work of the dirt contractor digging the trenches for the foundation. We are convinced there is no reason to give preference to one type of subcontractor over another based on an arbitrary distinction of the relative worth of each.
Mutual argues that even if Peridian’s work was lienable and attached prior to the date Res/Comm purchased the property, Peridian is still not the “earliest unsatisfied lien,” under K.S.A. 60-1101 because Mutual paid Peridian for its work and took assignment of its lien. Therefore, at the time of the foreclosure, it argues its first note established its priority and Modem’s work, which began in July 2000, was the earliest unsatisfied hen for the purposes of K.S.A. 60-1101. Mutual argues we should conclude that the district court came to the right conclusion albeit for the wrong reason.
First of all, the district court, because it mled that Peridian’s hen did not attach until Modem actually began constructing the sanitary sewers, did not reach die issue of when the phrase “earliest unsatisfied lien” is to be measured. However, as the facts are uncontroverted and this is purely a question of statutory interpretation, we will address it here.
As stated above, K.S.A. 60-1101 reads in relevant part: ‘When two or more such contracts are entered into apphcable to the same improvement, the liens of all claimants shall be similarly preferred to the date of the earliest unsatisfied lien of any of them.” What is meant by this sentence in the context of the mechanic’s hen statutes is a question of statutory interpretation and thus our review is plenary. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Mutual cites to this court’s recent decision in Davis Electric, Inc. v. Showalter, 31 Kan. App. 2d 318, 64 P.3d 456 (2003). In Davis, Shane Showalter set out to build a bar and grill in Garden City, Kansas. Davis Electric was contracted to do the electrical work. During construction, Showalter paid Davis for all the work and materials Davis had supplied as of that date. Davis continued to work on the property thereafter. Showalter apparently defaulted on the financing and Security State Bank of Scott City later foreclosed on the project and asked the trial court to find that the bank’s second mortgage had priority over the liens of the contractors and suppliers. The district court held that the mechanics’ lien holders had priority. On appeal, the question was whether the date Davis initially began work, June 21, 2000, was the date to be used to measure the “earliest unsatisfied lien” under K.S.A. 60-1101.
The Davis court held that because Davis had not been paid in full for its work subsequent to June 21,2000, the date Davis initially began work was still die date establishing priority for all the other subcontractors under K.S.A. 60-1101. This court concluded that the language stating that all liens of claimants shall be similarly preferred to the date of the “earliest unsatisfied lien of any of them” was added in 1977 to preclude any unpaid lien holder from claiming priority based on the date a fully paid lien holder began work. However, when a lien holder, such as Davis, was working under a single contract and remained unpaid for a part of its work, then, absent a lien waiver, the date Davis originally began work remained the date on which the subcontractors’ liens attached for priority purposes.
The situation here is factually different and Davis has limited applicability. Here, Peridian was an uncompensated lien holder at least up and until Mutual paid Peridian and took assignment of its lien in March, 2001. Unlike the situation in Davis, Peridian was paid in full by Mutual and did no additional work after it was paid. The question remains, at what time is “the earliest unsatisfied lien of any of them” measured?
Mutual urges this court to conclude that because Peridian was fully paid on March 15, 2001, the other mechanics’ liens could not relate back to the time Peridian began work. LRM and Modem on the other hand, claim that K.S.A. 2002 Supp. 60-1103 mandates that all subcontractors’ and contractors’ liens attach at the same time and K.S.A. 60-1101 is not applicable under Greystone. We disagree with both parties.
When construing statutes, the following has long been the rule:
“Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted. [Citation omitted.]” State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
However, “[w]hen the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citation omitted.]” Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 471, 970 P.2d 60 (1998), cert. denied 528 U.S. 812 (1999). There is a presumption that the legislature does not intend to enact useless or meaningless legislation. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (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. 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. 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 it.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001)
“In construing statutes and determining legislative intent; several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001).
The only way to harmonize the two statutes is to hold that the date used to determine who was an unsatisfied lien holder for priority purposes, is the date when Mutual filed its mortgage from Res/Com. On the date Mutual filed its first mortgage securing the note from Res/Com, Peridian was an unsatisfied hen holder. As such, all contractors’ and subcontractors’ liens were perfected as of the date Peridian started work. If Mutual wanted to ensure that its mortgages had priority over all other liens, Mutual could have paid off any contractor or subcontractor with potential outstanding hens and obtained hen waivers.
Our conclusion here is not contraiy to Greystone because such conclusion continues to treat all contractors and subcontractors equally. LRM and Modern s hens attached when they began work and had the same priority as of the date of the first unsatisfied lien. We note that Mutual is neither a contractor nor a subcontractor, but a lending institution financing the project and thus is not technically covered as such under K.S.A. 60-1101 or K.S.A. 2002 Supp. 60-1103. Banks and other lending institutions must have a way to determine what risk they are exposing themselves to by loaning money on a project. Under the facts presented here, a lender may ensure a mortgage has priority over later perfected liens by ensuring such lender has Hen waivers from all who have provided labor or materials to the project prior to the date tire mortgage is filed.
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Malone, J.:
Karen Sue Mellott appeals the district court’s order modifying the child support obligation of Paul Ashley Mellott. Karen claims that the district court erred by not considering Paul’s tuition reimbursement as income under the Kansas Child Support Guidelines (Guidelines). She also claims that the district court erred in adjusting the child support obligation based upon the overall financial condition of the parties.
The sparse record on appeal reflects the following background. Karen and Paul were divorced in October 1997. There are three children. Originally, the district court ordered Paul to pay Karen child support in the amount of $872 per month. In January 2002, Paul filed a motion to modify child support based on a change in circumstances. On March 26, 2002, a hearing officer reduced Paul’s monthly child support obligation to $721.50. Karen’s motion to reconsider was denied, and she filed a notice of appeal to district court.
On June 20, 2002, the district court heard arguments and increased Paul’s monthly child support obligation to $1,055, to be automatically raised to $1,105 per month on August 1, 2002. At the hearing, the court indicated that it would give Paul an opportunity to provide additional information concerning his income.
On March 10, 2003, the district court again entertained arguments considering child support. Based on evidence presented at this hearing, the district court modified the monthly child support to $791.54 retroactive to March 1, 2002. In calculating Paul’s income, the district court declined to include tuition reimbursement Paul received from his employer while attending Baker University. The court also ordered a $100 per month reduction in child support based upon the “overall financial condition” of the parties. Karen timely appeals.
Tuition reimbursement
Karen alleges that the district court erred in failing to consider Paul’s total income in calculating child support. Specifically, she claims that it was improper for the district court not to include tuition reimbursements received by Paul from his employer in calculating Paul’s income.
“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 [Kansas Child Support Guidelines] is subject to unlimited review. [Citation omitted.]” In re Marriage of Karst, 29 Kan. App. 2d 1000, 1001, 34 P.3d 1131 (2001), rev. denied 273 Kan. 1035 (2002).
In determining a wage earner s income, the hearing officer or the district court is to consider “income from all sources, excluding public assistance and child support received for other children in the custody of either parent.” Administrative Order No. 128, Kansas Child Support Guidelines § II D (2003 Kan. Ct. R. Annot. 100-01). Income in this section includes “all income which is regularly and periodically received from any source.” (Emphasis added.) § II D (2003 Kan. Ct. R. Annot. 101).
Paul argues that tuition reimbursement is not income that is “regularly and periodically received” from any source. In construing a statute, words are to be given their ordinary meaning. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001). Although Paul periodically receives tuition reimbursements from his employer, his school enrollment is generally temporary. Thus, Paul argues that the tuition reimbursements should not be considered regular income in calculating child support.
The question of whether tuition reimbursements can be considered income has never been answered by a Kansas court and the Guidelines do not directly address the issue. However, since a statute is to be construed as a whole in interpreting its various provisions, State v. Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001), the Guidelines do offer assistance in determining whether tuition reimbursements should be included in income. Under the imputed income section of the Guidelines, income may be imputed to a noncustodial parent when “a parent receives significant in kind payments that reduce personal living expenses as a result of employment, such as a company car, free housing, or reimbursed meals.” (Emphasis added.) § II E (2003 Kan. Ct. R. Annot. 101-02).
Based upon this language, reimbursements from an employer should only be included as income if they reduce a person s living expenses. Tuition reimbursements do not reduce a person’s living expenses. As the name implies, the reimbursement is to cover the cost of tuition, not the cost of living expenses. The expense of adult college education does not fall into the same category as expenses for housing, food, and transportation, which are included as imputed income if reimbursed.
This reasoning is consistent with child support decisions in other jurisdictions. Although no other state has specifically addressed the issue of tuition reimbursement, a number of states have examined the effect of student loans or grants on child support. Courts agree that when a loan or grant is to cover the cost of tuition and books, it should not be considered as income in calculating child support. E.g., In re Marriage of Rocha, 68 Cal. App. 4th 514, 517, 80 Cal. Rpt. 2d 376 (1998) (holding that educational loans cannot be considered for calculating child support since they have to be repaid); Lacey v. Lacey, 2003 WL 23206069, 4 (Tenn. Ct. App. 2003) (holding that a tuition waiver is not the same as income for child support purposes). However, a controversy arises when a loan or grant exceeds the amount of tuition and books. E.g., Gilbertson v. Graff, 477 N.W.2d 771, 774 (Minn. App. 1991) (stating that only student loan amounts that exceed the amount for paying for tuition and books are to be considered income).
Here, there is nothing in the record indicating that Paul’s tuition reimbursement from his employer exceeded the tuition and expenses incurred by Paul for his education. Based upon the record presented, we conclude that the district court did not err by not considering Paul’s tuition reimbursement in calculating his income under the Guidelines.
Adjustment for overall financial condition
Next, Karen argues that the district court lacked jurisdiction to consider an adjustment in child support based upon the overall financial condition of the parties. Even if the court had jurisdiction, Karen claims that the district court’s $100 adjustment was not supported by the evidence or by appropriate findings of the court.
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000).
When Paul’s motion to modify child support was originally before the hearing officer, his request for an adjustment based on overall financial condition of the parties was denied. Karen ap pealed the hearing officer’s child support order to district court. However, Paul did not specifically appeal the hearing officer’s determination not to include an adjustment for overall financial condition. Accordingly, Karen argues that the district court lacked jurisdiction to consider an adjustment for overall financial condition in determining the amount of child support.
Karen cites no controlling legal authority for her argument. We find nothing in the statutes or the Guidelines which requires a party to file a cross-appeal of any adverse rulings of a domestic hearing officer when the other party appeals the hearing officer’s decision to district court. However, the Guidelines do provide that “all relevant evidence” shall be considered by the court in determining child support. § I (2003 Kan. Ct. R. Annot. 99). Since Karen appealed the child support decision by the hearing officer to district court, it stands to reason that the court could then consider all relevant evidence to determine the appropriate amount of support. Karen’s argument that the district court lacked jurisdiction to consider an adjustment based upon the parties’ overall financial condition is without merit.
Karen further argues that the district court’s $100 per month adjustment was not supported by the evidence or by appropriate findings of the court. Although a district court’s determination of the amount of child support is subject to an abuse of discretion standard, failure to follow the Guidelines is considered an abuse of discretion unless the district court justifies any deviation in writing. In re Marriage of Schoby, 269 Kan. 114, 120-21, 4 P.3d 604 (2000).
“Child Support Adjustments are considerations of additions or subtractions from the Net Parental Child Support Obligation to be made in the best interests of the child” (Emphasis added.) § II K (2003 Kan. Ct. R. Annot. 103). “The Court, in using Child Support Adjustments to modify the child support amount, shall use Section E of the worksheet to make written findings, which shall be included in the journal entry, for the reasons for any deviation from the Basic Parental Child Support Obligation on Line D.9.” § I (2003 Kan. Ct. R. Annot. 99).
This court has previously stated that a district court must make written findings concerning any deviations from the Guidelines. Shaddox v. Schoenberger, 19 Kan. App. 2d 361, 363, 869 P.2d 249 (1994). Failure to make such findings is considered an abuse of discretion and requires reversal. 19 Kan. App. 2d at 363.
At the March 10,2003, hearing, Paul’s attorney requested a $100 per month adjustment based on overall financial condition because Paul “didn’t have enough money to live on” and he was living in his grandparents’ house. The district court allowed the adjustment. However, the district court made no findings to support the adjustment either orally or in writing. The district court did not explain how the adjustment was in the best interests of the children, as required by the Guidelines. Furthermore, the district court did not use Section E of the worksheet to make written findings to support the adjustment. This is mandatory under the Guidelines.
Based upon the record presented, we are required to reverse the district court’s $100 per month adjustment to the child support obligation based upon the overall financial condition of the parties. The case is remanded to district court with directions to set aside the adjustment and to increase Paul’s child support obligation from $791.54 per month to $891.54 per month.
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Hill, J.:
L.P.P. Mortgage, Ltd. (LPP) foreclosed its mortgage on three parcels of land in Kiowa County. Nathan B. and Helen L. Hayse, husband and wife, Paul W. and Patricia L. Hayse, once husband and wife, and Hayse Ranch, a partnership (all referred to as the Hayse defendants) owned the land. The owners now appeal from the order confirming the sheriff s sale. They ask us to reverse the district court’s orders
• granting LPP attorney fees and expenses;
• limiting their redemption period to 3 months; and
• refusing to exercise equitable powers and extending their redemption period.
The appellants also claim the district court erroneously failed to require LPP to furnish any evidence that supports the amount awarded for fees and expenses. They contend further that the court failed to require LPP to account for some casually insurance proceeds collected on the foreclosed property.
After deciding that their notice of appeal was not timely filed, we dismiss the portion of their appeal that deals with the award of attorney fees as well as expenses and the order setting the redemption period. We find the appeal is timely for purposes of reviewing the amount of the fees and expenses awarded. We reverse the amount awarded because there is no evidence that supports the amount awarded. We remand for the district court to hold an evidentiary hearing to determine the appropriate amount of attorney fees and expenses. Finally, since no final order has been issued concerning the casualty insurance proceeds, that issue re mains pending for the district court’s determination. We dismiss that portion of the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The Hayse defendants borrowed money from the Small Business Administration (SBA), signed a note, and granted a mortgage to tire SBA in July 1978. The mortgage encumbered the three parcels that are the subject of this foreclosure. By an agreement made in 1986, the original payment period was extended by the parties for 5 years. In 1993, SBA subordinated its lien interest on one of the tracts to Central Bank and Trust (Central Bank) in the amount of $50,000.
A federal tax lien against the Hayse Ranch partnership was filed on the property by the IRS in July 1995. Wilson Seeds, Inc., an Iowa corporation, received a money judgment against Hayse Ranch and its partners in July 1996.
In July 1996, Paul Hayse (Patricia and Paul were divorced in 1992), Nathan and Helen Hayse jointly, and Hayse Ranch partnership filed separate cases for protection under Chapter 12 of the U.S. Bankruptcy Code. A Chapter 12 Plan for payments to creditors, including the SBA, was approved by the bankruptcy court in August 1997. The Plan provided the SBA with a first mortgage on the real estate, except for the $50,000 subordination to the Central Bank on one of the tracts. The balance owed to SBA was reamortized by requiring semiannual installments to be paid every August 1 and February 1, beginning on August 1, 1997. SBA assigned the 1978 Hayse note to LPP when they purchased the loan in August 2000.
The 1978 SBA note contains language requiring the mortgagors to pay all expenses of any nature that the SBA incurred in connection with the satisfaction of the indebtedness represented by the note, including “but not limited to reasonable attorney fees and costs.” The 1978 mortgage contained language providing that, in the event of a foreclosure sale, the proceeds would be applied to pay, among other things, “reasonable attorney fees.”
LPP filed a foreclosure action in May 2002 when the Hayse defendants failed to make the semiannual payments. They sued the Hayse defendants, Central Bank, the IRS, and Wilson Seeds, Inc., seeking a personal judgment, a decree of foreclosure, and attorney fees and expenses. LPP requested the court to set a 3-month redemption period as more than two-thirds of the indebtedness established by the Chapter 12 Plan remained unpaid. Central Bank and the IRS answered the petition. LPP obtained a default judgment and an order of foreclosure.
By agreement, that foreclosure judgment was later set aside, when LPP discovered they had failed to sue a necessary party, Terry L. Bradshaw, who had signed a 10-year farm lease on the land in April 2002. LPP amended their petition, and this time the Hayse defendants and Bradshaw answered jointly. The IRS answered and LPP renewed its motion for default and summary judgment. The district court ruled that the Chapter 12 Plan “created a new contract” between the parties in 1997 and, as such, incorporated all the terms originally contained in the note and mortgage, including the provision for the collection of attorney fees. LPP was awarded judgment for $159,415.16, and on March 10, 2003, the mortgage on the three tracts of land was ordered foreclosed. The court set a 3-month redemption period. It also ruled that Bradshaw’s lease interest in the land was inferior to the interest of LPP.
The Hayse defendants and Bradshaw filed a motion on March 20, 2003, requesting the district court to alter or amend its rulings. The motion was denied. They then filed a motion to stay execution of the judgment, pending the court’s decision on its motion to alter or amend. The district court denied that motion and directed the sheriff s sale to proceed on May 2, 2003.
Central Bank purchased all three parcels at the sheriff s sale on May 2, 2003. LPP filed a motion to confirm the sheriff s sale. The district court issued a confirmation order, finding a sum certain due the Kiowa County Treasurer for property taxes and $169,878.48 due to LPP. The Hayse defendants filed a written objection to the confirmation order on May 21, 2003.
The district court later entered an order nunc pro tunc on June 3, 2003, that confirmed, again, that the sheriff s sale had been conducted in conformity with law, equity, and the court’s prior orders. The court ordered LPP to pay any casualty insurance proceeds into court and directed LPP’s attorney to provide the Hayse defendants’ attorney an itemized account of all fees and expenses they had included in the judgment. The amount for the fees and expenses was then disclosed in a letter between counsel. The Hayse defendants and Bradshaw filed a notice of appeal on June 30,2003, from “all adverse rulings” of the district court.
In July 2003, the Hayse defendants requested that the district court exercise its equitable powers and extend the redemption period. The district court again refused to extend the period and denied the motion on July 18, 2003. The Hayse defendants docketed their appeal with this court on July 21, 2003.
The mortgage required the Hayse defendants to maintain insurance on the improvements to the real estate. When they failed to do so, LPP purchased coverage. In May 2002, high winds caused some damage. In compliance with the district court’s order, LPP deposited $53,155.39 casualty insurance proceeds with the district court on October 16, 2003.
TIMELINESS OF APPEAL
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003). We have an unlimited scope of review over such questions of law. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002).
These questions of law are answered by examining the decisions made by the district court. A final decision is one which generally disposes of the entire merits of the case and leaves no further questions of the possibility of future directions or actions by the court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 29, 59 P.3d 1003 (2002). K.S.A. 2003 Supp. 60-2103(a) states that an appeal must be filed within 30 days from “entry of the judgment.”
An entry of judgment of foreclosure is considered final for purposes of appeal when “it determines the rights of the parties, the amounts to be paid, and the priority of the claims.” Bank IV Wich ita v. Plein, 250 Kan. 701, 707, 830 P. 2d 29 (1992) (citing Stauth v. Brown, 241 Kan. 1, Syl. ¶ 1, 734 P.2d 1063 [1987]). The order of foreclosure in this case was filed on March 10, 2003. It included a judgment in favor of LPP in the amount of $159,415.16 as of January 31, 2003, with accruing interest and fees, including attorney fees and costs. The district court carefully set forth tire priorities for each of the three tracts of land, ruling that LPP’s interests were superior to all except the $50,000 owed to Central Bank on one of tire tracts.
Also in that order, the court found that the Chapter 12 Plan created a new contract which incorporated the terms originally found in the 1978 note and mortgage (except those that were obviously inconsistent with the Plan). For this reason, the court set a 3-month redemption period because less than one-third of the indebtedness established under the Plan had been paid by the Hayse defendants. The court went on to grant LPP attorney fees and expenses because of the language in the 1978 note and mortgage. (On March 19, 2003, the court issued a nunc pro tunc order directing the property to be sold in three parcels.) No party filed an appeal from the order of foreclosure.
POSTTRIAL PROCEEDINGS FAIL TO MAKE THE APPEAL TIMELY
We recognize that a timely posttrial motion (filed within 10 days of entry of judgment) stops the appeal time running under K.S.A. 2003 Supp. 60-2103(a). Furthermore, according to K.S.A. 60-259(f), a motion to alter or amend a judgment tolls the time for appeal. In this case, the Hayse defendants timely filed a motion to alter or amend. They argued in their motion that the redemption period should be 12 months rather than 3 months; the land should be sold in parcels; the award of attorney fees was improper; and the amount of judgment was without evidentiary support since it exceeded the outstanding principal alleged in LPP’s amended petition by about $31,000. The district court denied this motion saying it was “not remarkably different from the arguments presented at the hearing of this matter and the original orders should stand.”
The district court’s denial of the motion to alter or amend judgment was filed on March 25, 2003. The Hayse defendants had 30 days from that time to file an appeal from the judgment of foreclosure. The time to appeal begins to run again when an order is made upon the posttrial motion. See K.S.A. 2003 Supp. 60-2103(a). No one appealed from the order denying the motion to alter or amend the foreclosure judgment either.
LPP sought court confirmation of the sheriff s sale, requesting $169,878.48 from the sale proceeds to satisfy its judgment. They also filed a notice stipulating that its motion would be granted if no objections were filed by May 23,2003. The district court initially confirmed the sale on May 19, 2003. The Hayse defendants and Bradshaw filed an objection to the order, arguing that the component amounts of the excess judgment had not been revealed and that final judgment could not be entered without resolution of the casualty insurance proceeds. More importantly, the Hayse defendants did not argue at this time that LPP was not entitled to attorney fees or that the redemption period should be 12 months.
Ultimately, the district court on June 3,2003, filed an order nunc pro tunc that set aside its prior confirmation order but ruled that the sale was properly conducted. In this order the district court:
• set forth the legal descriptions of the three tracts;
• restated the redemption period;
• granted judgment to LPP for $169,878.48;
• indicated the county treasurer was owed a sum of $1,598.35 for property taxes;
• directed LPP to deposit the casualty insurance proceeds with the court to await further court order; and
• ordered LPP to provide to counsel for the Hayse defendants an itemized accounting of all expenses included in the judgment.
The Hayse defendants on June 30,2003, filed their notice of appeal after this nunc pro tunc order was issued.
Unquestionably, an order confirming a sheriffs sale is a final order that can be appealed. Farmers State Bank v. Ward, 13 Kan. App. 2d 39, 42, 761 P.2d 315, rev. denied 244 Kan. 737 (1988) (citing National Reserve Life Ins. Co. v. Kemp, 184 Kan. 648, 656, 339 P.2d 368 [1959]). One of the various purposes served by a sale confirmation order may be to cure “an erroneous provision in the journal entry of foreclosure relating to the sale of the premises ... if it relates to a fact necessarily involved in the subsequent adjudication in the confirmation of sale. [Citation omitted.]” Aguilera v. Corkill, 201 Kan. 33, 37, 439 P. 2d 93 (1968).
An order confirming a sheriff s sale is not a repetition of the judgment of foreclosure. The two orders are contiguous but not identical. They cover different ground:
“ ‘There is general agreement that the judgment of foreclosure and sale is a final decree; that the proceedings subsequent thereto relating to the sale are analogous to the execution of a judgment and simply enforce the parties’ rights which have been adjudicated; that a party who wishes to contest the judgment of foreclosure and sale must appeal from that judgment; that the judgment of foreclosure and sale cannot be challenged on appeal from an order confirming tire sale; and that on an appeal from an order confirming the sale an aggrieved person may challenge the regularity of the proceedings subsequent to the judgment of foreclosure and sale.’ ” Strauth, 241 Kan. at 5 (quoting Shuput v. Lauer, 109 Wis. 2d 164, 325 N.W.2d 321 [1982]).
In short, while a judgment of foreclosure is executory and interlocutory as to the order directing the manner of sale and the proper distribution of the proceeds, it is final in its determination of the rights of the parties, the amounts to be paid, any award of a personal judgment, or the granting of a lien. Strauth, 241 Kan. at 6 (quoting 59 C.J.S., Mortgages § 685, p. 1242).
If we were to permit a collateral attack upon a foreclosure judgment by addressing foreclosure-type rulings when we decide an appeal from an order confirming a sheriff s sale, we would gut the entire sheriff s sale process. No bidder could then have any confidence in the finality of the sheriff s sale. They would be forced to bid on potentialities—bid on what the court might confirm-— instead of making bids, as they do now, with the certain knowledge of the final judgments concerning the various parties’ rights to the real estate offered for sale. The Hayse defendants seemingly recognized this when they urged the district court to change the redemption period “before any Sheriff s sale is conducted in order for the bidders at such sale to understand their rights and the rights of the other parties.”
The issue is not saved by the fact that the Hayse defendants asked the district court after the sheriff s sale to exercise its equitable powers and extend the redemption period to 12 months. All of the policy concerns about the finality of the sheriff s sale apply here as well. Furthermore, our rules and case law indicate that the Hayse defendants have not properly appealed from that order. Although we have ruled that an order extending the redemption period is a final appealable order and the district court has wide discretion in granting the extension, Federal Savings & Loan Ins. Corp. v. Treaster, 13 Kan. App. 2d 305, 308, 311, 770 P.2d 481 (1989), here, the district court did not extend the redemption period and the request to exercise equitable powers was made after tire Hayse defendants’ notice of appeal was filed on June 30, 2003.
Therefore, Supreme Court Rule 2.03 (2003 Kan. Ct. R. Annot. 9) does not help the Hayse defendants since it states a notice of appeal shall be effective if it is “filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment.” The district court could not have announced its decision denying the Hayse defendants’ motion prior to the filing of the notice of appeal since the motion and the court’s ruling were made after the notice of appeal was filed.
The Hayse defendants also argue that the holding in Resolution Trust Corp. v. Bopp, 251 Kan. 539, 836 P.2d 1142 (1992), would permit their notice of appeal to “ripen” in this case. In Bopp, the court indicated drat an appeal filed after a final ruling but before the disposition of a motion to amend the judgment can be held in abeyance and spring into force when a ruling on the motion to alter or amend is made. 251 Kan. at 544-45. But in this case, the Hayse defendants’ motion requesting the court to use its equitable powers to extend the period of redemption was, by their own admission, first placed before the district court in their July 3, 2003, motion. Therefore, the motion had neither been previously raised or decided by the district court nor was the motion even pending when they filed their notice of appeal. In order for this court to have jurisdiction over this issue, the Hayse defendants were required to file a notice of appeal from the district court’s denial of their motion. They did not. With no pending motion the notice of appeal could not “ripen” as in Bopp. Furthermore, the inclusion of the issue in their docketing statement did not automatically grant it status as an appealable order. See Snodgrass v. State Farm Mut. Auto. Ins. Co. 246 Kan 371, 378, 789 P. 2d 211 (1990).
We therefore dismiss that portion of the appeal setting the redemption period and the right to attorney fees and expenses by LPP for not being timely.
ATTORNEY FEES AND EXPENSES
Because no transcripts have been provided of any hearings or conferences, we cannot tell whether the district court considered any evidence in determining the amount of attorney fees and expenses awarded to LPP. We believe that the fees and expenses totaled $21,487.92; however, we cannot affirm such an award if there is no evidence in the record to support it. We remand this issue to the district court for an evidentiaiy proceeding to determine the appropriate amount of attorney fees and expenses that should be awarded.
CASUALTY INSURANCE PROCEEDS
The record does not contain any substantiation of the Hayse defendants’ claims for reimbursement for completed storm repairs. An appellant has the duty to designate that portion of the record to establish claimed error. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 777, 27 P.3d 1 (2001). The Hayse defendants have not met that duty.
LPP endorsed an insurance check in the amount of $53,155.39 directly to the clerk of the district court on October 16, 2003. The check from the insurance carrier was dated September 23, 2003; therefore, the district court could not have resolved this issue in the sale confirmation order or before this appeal was docketed on July 21, 2003. It appears that LPP has complied with the district court’s order. We note that LPP has subsequently filed a lien for attorney fees against the insurance proceeds and a motion in op position to the hen is pending. This matter remains pending with tire district court, as there remains the possibility of future directions or actions by the court. Varney Services, Inc., 275 Kan. at 29.
We dismiss that portion of the appeal dealing with the casualty insurance proceeds since no final order has been issued by the district court and we do not have jurisdiction over the matter.
Affirmed in part, dismissed in part, and case remanded for further proceedings in accordance with this opinion. | [
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Greene, J.:
Intervenor Waste Connections of Kansas, Inc. (WCKI) and the Board of Harper County Commissioners (Board) appealed the district court’s order setting aside a special use permit for a sanitaiy landfill at the Plum Thicket site in Harper County based on a finding that the Board had prejudged the application of WCKI. After the appeal was filed, the Board withdrew its appeal. WCKI argues that the plaintiffs, including Tri-County Concerned Citizens, Inc. (Concerned Citizens), had no standing to challenge the Board’s decision and that the district court erred in concluding that the Board had prejudged the application. We conclude that plaintiffs had legal standing, but we reverse the district court’s findings and conclusions as to prejudgment of the Board.
Factual and Procedural Overview
After WCKI was unsuccessful in obtaining permission to build a sanitary landfill in Sedgwick, Marion, and Greenwood Counties, county personnel came to the Board with an idea to consider situating the landfill in Harper County. The Board referred these personnel to the County’s Economic Development Council (EDC), which first considered the idea at its October 11, 2000, meeting. As a result of that meeting, EDC wrote WCKI in November 2000 and urged it to consider a site in Harper County.
On January 24, 2001, Board Commissioner Sidney Burkholder attended an EDC meeting, wherein WCKI presented a proposed host agreement outlining the economic benefits to the County of hosting a landfill. Burkholder examined the proposed agreement, retained a copy, mentioned it to other commissioners, but discussed no details at that time. Shortly after this meeting, Burk-holder contacted for potential legal assistance Shook, Hardy & Bacon, L.L.P. (SHB), which already provided legal services for the County pursuant to Kansas County Association Multiline Pool (KCAMP). On February 8, 2001, Burkholder transmitted to SHB a copy of the proposed host agreement, requesting that SHB “look at it to see if they had any suggestions.” On February 17,2001, the EDC recommended to the Board the proposed host agreement with a number of alterations and recommended that legal counsel be retained for review of the agreement. As of this date, no specific site had been proposed for the landfill.
From February 2001 until May 15,2001, Burkholder had several communications with attorneys at SHB regarding applicability of the Kansas Open Meetings Act, the proposed host agreement, potential problems achieving permission under or amending the Gyp Hills Regional Solid Waste Authority’s Waste Management Plan (Gyp Hills Plan), zoning issues, and the proper sequence of procedural steps. On May 15, 2001, SHB proposed and Burkholder accepted a formal engagement letter detailing the following scope of representation regarding the “potential new landfill”:
“Assist with contract negotiations between Harper County and Waste Connections of Kansas, Inc.;
“Assist with relevant zoning matters;
“Assist with issues relating to the Kansas Open Meetings Act; and Assist with relevant environmental issues.”
An SHB attorney later explained the purpose of the representation as “to assist with contract negotiations once the decision on a new landfill goes from potential to actual.”
Another SHB attorney wrote a letter to Burkholder dated May 15, 2001. The letter referenced the following purpose: “You requested last week that I review the interlocal agreement for the Gyp Hills Solid Waste Region ... to determine if there would be any issues with Harper County’s approval of a new landfill to be operated by Waste Connections of Kansas, Inc.” Because the Gyp Hills Agreement did not permit Harper County to compete with the regional plan, the letter described four options for proceeding with a landfill within the framework of the Gyp Hills Agreement. The attorney concluded the letter by notifying Burk-holder that SHB would “be happy to help Harper County work through this issue, regardless of which option the county commissioners deem is most appropriate.”
No formal site had been identified in Harper County for the landfill until May 7, 2001, when a formal application for a special use permit was filed by WCKI for the “Vavra” site. All three commissioners met with legal representatives twice in late May and early June to discuss the Gyp Hill Plan, the Kansas Department of Health and Environment (KDHE) permit, and certifications required, including a zoning certification. Apparently, due to envi ronmental concerns, the Vavra application was ultimately abandoned, and on July 12, 2001, WCKI submitted a special use application for the Plum Thicket site. Thereafter and until October 9, 2001, the Harper County Planning Commission (HCPC) conducted numerous public hearings, all of which were attended by all three commissioners. At these hearings, representatives of WCKI and KDHE appeared, and many County residents spoke against the landfill, largely alleging environmental concerns. On October 9, 2001, the HCPC recommended denial of the application for a special use permit.
Following the action of the HCPC, the application was referred to the Board, which conducted further public hearings and reviewed the extensive record from the HCPC proceedings. After these proceedings, the Board prepared for final consideration a “Special Use Revised Report” (the Report) dated March 4, 2002, and on March 5, 2002, the Report was approved unanimously. In granting the special use application for the Plum Thicket site, the Board explained the difference between the HCPC’s recommendation and the Board’s action:
“The County Commission, in considering the 17 factors [adapted from Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978)], took into account the conditions that are made a part of these findings and decisions that are set forth in Section IV herein. These conditions were not considered by the Planning Commission. The County Commission, to a large degree, relied on the conditions when the County Commission came to different conclusions than the Planning Commission’s conclusions as to the 17 factors and to its decision to grant the Special Uses requested.”
On April 1, 2002, Concerned Citizens, along with six individuals, filed this action challenging the Board’s decision. After a bench trial, the district court denied relief to Concerned Citizens, holding that the commissioners maintained “an open mind and continued to listen to all the evidence presented before making the final decision.” On February 6, 2003, Concerned Citizens filed a posttrial motion alleging that newly discovered evidence merited a new trial. The new evidence consisted primarily of the entirety of the SHB files, which were produced after a reconstituted Board waived attorney-client privilege. The court conducted an evidentiary hearing on the motion and ultimately reversed its prior order and set aside the special use permit, finding that “the cart got a little ahead of the horse.”
WCKI and the Board appealed, but the Board withdrew its appeal prior to briefing.
Standard of Review
WCKI’s challenge to plaintiffs’ standing to sue requires that we construe and apply K.S.A. 12-760. Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). To the extent the district court’s decision on standing was based upon findings of fact, we must determine whether the district court’s findings are supported by substantial competent evidence. Fusaro v. First Family Mtg. Corp. 257 Kan. 794, 804, 897 P.2d 123 (1995).
In contrast, WCKI’s challenge to the Board’s zoning decision requires a review based upon the same standards applicable in district court. Our Supreme Court in Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), summarized the applicable standard of review when determining the reasonableness of zoning ordinances or regulations and stated that “[a]n appellate court must make the same review of the zoning authority’s action as did the district court.” In Johnson County Water Dist. No. 1 v. City of Kansas City, 255 Kan. 183, 184, 871 P.2d 1256 (1994), the court held that the Combined Investment standards apply to special use permit decisions. Finally, in McPherson Landfill, Inc., v. Board of Shawnee County Comm’rs., 274 Kan. 303, 304-05, 49 P.3d 522 (2002), the court applied these same standards in reviewing a zoning decision for alleged prejudgment by decisionmakers.
Do Plaintiffs Have Standing to Sue?
Standing to sue means that a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Dutoit v. Board of County Commr’s., 233 Kan. 995, 1003, 667 P.2d 879 (1983). WCKI argues that Concerned Citizens and the named individual plaintiffs do not have standing under K.S.A. 12-760 because they have not shown an invasion of an individual right. The statute vests standing in “any person aggrieved,” providing:
“Within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain an action in the district court of the county to determine the reasonableness of such final decision.” (Emphasis added.)
In construing this statute we are assisted by the Supreme Court’s decision in Fairfax Drainage District v. City of Kansas City, 190 Kan. 308, 314-15, 374 P.2d 35 (1962), where the court approved the following definition of “aggrieved”:
“ ‘A party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. The term refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of some burden or obligation. In this sense it does not refer to persons who may happen to entertain desires on the subject, but only to those who have rights which may be enforced at law and whose pecuniary interest may be affected. [Citations omitted.]’ ”
In addition to these judicial criteria to determine “persons aggrieved,” we agree with the district court that “the larger a project is, the more sensitive it is to the community at large,” thus expanding the universe of potentially aggrieved persons.
In the case of an association such as Concerned Citizens, we employ a three-part test in determining whether an association has standing to sue on behalf of its members: (1) the members must have standing to sue individually; (2) the interests the association seeks to protect must be germane to the organization’s stated purpose; and (3) neither the claim asserted nor the relief requested require participation of individual members. NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000).
Applying these various criteria, we are convinced that Concerned Citizens has standing to challenge the zoning decision. It is beyond question that WCKI’s application generated significant public interest due to perceptions that the project had major implications for the County. Moreover, Concerned Citizens appears to have fulfilled all the requirements for standing: (1) The individual members of the association have standing in their individual capacity since they live within 1,000 feet of the landfill; property owners this close to a landfill site are aggrieved because they potentially suffer a substantial grievance and a loss of a pecuniary interest. (2) Since the stated purpose of the corporation is to protect the environment, the prosecution of this lawsuit is wholly consistent with the association s purpose. (3) The participation of the individual members is not necessarily required.
We conclude that the district court did not err in rejecting die challenge to plaintiffs’ standing to maintain this action.
Did the District Err in Concluding That the Board Prejudged WCKI’s ApplicationP
Concerned Citizens argues and the district court ultimately concluded that the prejudgment of the Board members on the merits of WCKI’s application precluded a fair and impartial proceeding and rendered the resulting special use permit void. Specific allegations of prejudgment were directed at two of the commissioners; Commissioner Burkholder is accused of prejudging the application due to his actions in exploring the feasibility of a landfill and his interest in addressing the financial needs of the County through a landfill. Commissioner Williams is accused of prejudging the application due to his statements that by the time of the final vote on the application, he thought he “had no choice.” We have concluded that neither commissioner’s statements or actions demonstrated prejudgment of the application.
Legal Standards to Determine Prejudgment
Local governing bodies, including boards of county commissioners, necessarily have some duties that are legislative, some that are executive, and some that are quasi-judicial. Our Supreme Court has acknowledged that when the focus of such a governing body “shifts” from legislative policy or executive duty to a zoning determination as to one specific tract of land, the function becomes quasi-judicial in nature. See Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978). When this “shift” in function occurs, the requirements of due process attach, and the proceeding must be fair, open, and impartial. If these due process require ments are not fulfilled, the resulting action is void. Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 330, 597 P.2d 654 (1979).
The Kansas Supreme Court considered prejudgment allegations in McPherson Landfill and held that prejudgment statements by a decisionmaker are not fatal to the validity of a zoning determination “as long as the statement^] [do] not preclude tire finding that the decisionmaker maintained an open mind and continued to listen to all the evidence presented before making the final decision.” 274 Kan. at 318. The court cited with apparent approval Madison River R.V. Ltd. v. Town of Ennis, 298 Mont. 91, 94, 994 P.2d 1098 (2000), where the Montana court held that to prevail on a claim of prejudice or bias against an administrative decisionmaker, a petitioner must show that the decisionmaker has an “ ‘irrevocably closed’ mind” on the subject under investigation or adjudication. Also cited with approval was Wagner v. Jackson Cty. Bd. of Zon. Adj., 857 S.W.2d 285, 289 (Mo. App. 1993), where the Missouri court held that
“familiarity with the adjudicative facts of a particular case, even to the point of having reached a tentative conclusion prior to the hearing, does not necessarily disqualify an administrative decisionmaker, in the absence of a showing that the decisionmaker is not capable of judging a particular controversy fairly on the basis of its own circumstances.”
With these legal standards in mind, we analyze de novo the evidence adduced against Commissioners Burkholder and Williams in the same fashion as did the Supreme Court in McPherson Landfill. We focus only upon these commissioners since Concerned Citizens apparently makes no specific claim of prejudgment against Commissioner Robert Sharp, other than to suggest that he participated with other commissioners in certain pre-application feasibility exploration.
Commissioner Burkholder
Burkholder was the chairman of the Board at all material times, and his actions were a focus of the district court. Burkholder was present at the early EDC meetings and was among the first to examine WCKI’s proposed host agreement. It was Burkholder who first contacted SHB, provided a copy of the proposed agreement, and discussed numerous issues with SHB attorneys, including applicability of the Kansas Open Meetings Act, the Gyp Hills Plan, the proposed host agreement, and zoning concerns. SHB addressed its engagement letter to Burkholder, and he executed it “on behalf of Harper County, Kansas.” With regard to these preapplication events, the record reveals nothing to indicate that Burk-holder was acting outside his authority or that he was not acting in a manner consistent with the desires of his fellow commissioners.
Concerned Citizens argues on appeal that Burkholder s bias or prejudgment was based upon his motivation to solve the County’s financial woes with revenues from the landfill. According to Concerned Citizens,
“Harper County was in devastating financial shape. It lacked funding for roads, bridges or even equipment. In the words of one witness, it would have been political suicide to raise taxes. Burkholder, Chairman of the Board having full and direct responsibility for Harper County’s fiscal health, saw a way to solve a financial crisis impacting his institution. When Waste, Inc. dangled the monetary bait - he bit.”
The district court expressed concern over Burkholder’s involvement “early in 2001,” stating:
“In this instance, the cart got a little ahead of the horse. The issues appropriately before the County Commission early in 2001 should have been related to sitting as a board of zoning appeals rather than terms of a host agreement, the expected income stream from the host agreement and whether the county was limited by the terms of the Gyp Hills regional government agreement. In theory the Board of Zoning Appeals is not concerned with financial benefits of a solid waste host agreement. The substantial discussions regarding the host agreement, potential income stream and Gyp Hills agreement as reflected in the Shook, Hardy and Bacon file in the first half of 2001 causes the Court great concern when resolving the plaintiff s claim of prejudgment/denial of due process when the Commissioners ultimately sat as a Board of Zoning Appeals.”
For two reasons, we fundamentally disagree that Burkholder’s preapplication concern and interest in fully exploring the feasibility of a landfill for the County adequately supports a finding of fatal prejudgment: (i) the nature of Burkholder’s actions in determining general feasibility of a landfill were consistent with his executive or legislative duties as a commissioner and should not be consid ered as evidence of prejudgment of the subsequent special use application; and (ii) the timing of Burkholder’s actions, predating any site selection and filing of the zoning application, was prior to any required “shift” to a quasi-judicial rule and not necessarily material to any prejudgment of the subsequent application. In the vernacular of tire district court, we disagree with the conclusion that the zoning decision was required to be the “horse” before the “cart” of exploring general feasibility of a landfill project.
First, we note—as did the district court—that there is indeed an inherent conflict between the commissioners’ roles as executive/ legislative officers concerned with financial and budgetary issues, and their roles as members of a quasi-judicial board of zoning appeals. Caution must be exercised in examining the actions of officials who serve with dual responsibilities.
“[M]ere evidence that a zoning official has a particular political view or general opinion about a given issue will generally not suffice to show bias. Courts recognize that public officials have opinions like everyone else and inevitably hold particular political views related to their public office. In fact, zoning official are typically chose to serve in their official capacity because they are expected to represent certain views about local land use planning and development.” Dennison, Zoning: Proof of Bias or Conflict of Interest in Zoning Decisions, 32 Am Jur. Proof of Facts 3d 531, § 15, p. 559.
As another commentator has admonished,
“[djecisionmakers will inevitably have some bias regarding land development which will likely affect a decision. Moreover, opinion on land use serves to reflect community values and preferences regarding land development. For these reasons the inevitable predispositions that members of lay boards might have to particular decisions generally should be tolerated.” Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N.D. L. Rev. 161, 208 (1989).
Burkholder’s motivation, opinions, and actions as an elected political representative of the County regarding the need to fully explore feasibility of a landfill and determine the sequence of appropriate procedural steps, including retention of counsel, were consistent with his legislative/executive duties. When viewed from this perspective, such actions were entirely innocent—if not laudable—and must be legally distinguished from any self-interest in determining any prejudgment of a special use application.
Concerned Citizens cites a number of cases involving due process challenges to the assessment of fines and penalties due to prejudgment by government officials acting in judicial capacities. See Ward v. Village of Monroeville, 409 U.S. 57, 34 L. Ed. 2d 267, 93 S. Ct. 80 (1972); Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927); AEP Chapter Housing Ass’n v. City of Berkeley, 114 F.3d 840 (9th Cir. 1997); and Com. of Northern Mariana Islands v. Kaipat, 94 F.3d 574 (9th Cir. 1996). These cases, however, are readily distinguishable from the present situation, where the alleged “financial interest” giving rise to prejudgment is the more attenuated potential for increased revenue streams to the County at large from the operation of a landfill.
Second, Burkholder s actions that occurred prior to the date of any site selection and the filing of die special use permit application predate his need to “shift” to a quasi-judicial role. Due in large part to the timing or sequence of Burkholder s actions under these circumstances, we conclude that actions taken to explore feasibility and potential economic benefits of a particular special use are not necessarily indicative of prejudgment of a subsequent special use zoning application, and they do not preclude a finding that the decisionmaker maintained an open mind and listened to all the evidence presented before making the final decision. See McPherson Landfill, 274 Kan. at 318; Wagner, 857 S.W.2d at 289.
After WCKTs formal application for the Plum Thicket site was filed on July 12, 2001, the overwhelming evidence supports Burk-holder’s impartiality. Burkholder attended each of the HCPC’s public hearings and vigorously denied that he had prejudged the application as of the start of those hearings.
“Q. Prior to that time had you in any way made up your mind in regards to whether a special use should or should not be issued?
“A. No, I had not made up my mind.”
Following the HCPC’s action on the application, and upon referral of the matter to the Board, Burkholder persisted in denying any partiality.
“Q. Once it was referred to the County Commission did you continue to have a fair and impartial open mind in regards to this matter?
“A. Yes, I did.
“Q. Did you makeup your mind prior to March 5th?
“A. No.
“Q. When did you makeup your mind?
“A. Well, some of that decision making process goes on when you do the deliberations, but you start forming your ideas and the decision I felt came that day on March the 5th.”
We acknowledge the concern of the district court that self-serving testimony of an official maintaining that he “kept an open mind” or “listened to the evidence” can be overcome by contrary statements or actions. Here, however, Concerned Citizens and the district court focused upon actions that predated the formal application; no significant actions manifesting prejudgment have been cited as occurring after the site was selected and the quasi-judicial proceedings began. Moreover, the self-serving testimony cited above is wholly consistent with the undisputed testimony that the official attended each and every public hearing, apparently with genuine interest. Although Burkholder stated that sometimes the persistent phone calls and messages from opponents were perceived as “harassment,” we ascribe no legal materiality to this perception.
Finally, we note that the district court erred in attributing the perceived impropriety of Burkholder to the other commissioners. The rule in Kansas is that impropriety of one member of a quasi-judicial body may not be imputed to the entire body.
“It is also the rule that where the required majorily exists without the vote of the disqualified member, his presence and vote will not invalidate the result and further that a majority vote need not be invalidated where the interest of a member is general or of a minor character. [Citations omitted.]” Anderson v. City of Parsons, 209 Kan. 337, 342, 496 P.2d 1333 (1972).
For all these reasons, we conclude that the district court erred in determining that Burkholder prejudged WCKI’s application for a special use permit and that his perceived prejudgment contaminated the other commissioners and invalidated the Board’s proceedings.
Commissioner Williams
Williams testified in the initial trial that he had listened to all of the evidence presented at the public hearings before making a decision.
“A. Yes, sir, I did, but I tried to listen to the pros and the ones that were against it. I tried to so I could evaluate it. I tried to follow the law, give each side equal consideration and I knew that I was going to have people disagree with me either way I went. That’s the reason I tried to carry out the law. That’s the reason we hired a consultant that’s been in the business 27 years to guide us. We also hired legal advice and we tried to follow it to the letter of the law and give both sides fair, as fair a chance as — and then the way it came down by the letter of the law, ahh, if it had been any other applicant I would do the same thing, too, sir.”
The only allegation of Williams’ prejudgment is based upon testimony from the rehearing.
“Q. I want to malee clear I understand this so that the Court is clear as well. You felt that if tire applicant agreed to conditions that you had to approve it or you would be breaking the law?
“A. That’s the way I look at it. Otherwise, why would you have — why would you have any laws, or any rules?
“Q. Were you ever told any specific laws that you would be — the Commission would be breaking in that scenario?
“A. Well, if they met all the conditions and the way I understand the zoning law, ahh, if they meet all the conditions, ahh, why do we have a zoning law if we’re not going to carry out the law? So, yes, I would be breaking it if they met all the conditions.”
Based upon the testimony of Williams, the district court adopted Concerned Citizen’s proposed finding that Williams failed to consider any evidence beyond the question of whether WCKI met the conditions set forth in the Report:
“A county commission acting as a Board of Zoning Appeals is not obligated to grant a requested change if the paperwork is done properly. Commissioner Williams felt he would have been ‘breaking the law’ had he voted against the Waste Connections zoning application because Waste Connections had agreed to conditions. Sitting in a quasi-judicial capacity, Commissioner Williams made a clear error of law that compelled him to consider only whether those conditions were agreed to. As such, he failed to consider the evidence presented during the hearings conducted at Chaparral High School.”
We agree that Williams’ testimony is somewhat troubling, but we decline to construe his comments as fatal prejudgment, given the time frame referenced by the comments. Based upon Williams’ reference to the “conditions” that were set forth in the Report, we interpret his statements as reflective that his decision was made at some time after the Report had been prepared but prior to the final vote thereon. From our review of the Report, it is clear that as of its preparation, all of the evidence adduced at the public hearings had been considered and referenced therein, all 17 factors (adapted from Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 [1978], and required to be considered by the County zoning regulations) had been considered and addressed specifically, and 43 conditions had been imposed upon the applicant (WCKI) to “address potential injurious effects, some of which were identified by the Planning Commission.” The Report links the conditions established with the Golden factors as follows:
“If significant environmental concerns of the public can be appropriately reduced or eliminated by attaching stringent conditions to the Special Uses requested in order to malee diem more compatible land uses, then the relative gain to the public health, safety, and general welfare does not outweigh the loss in value or hardship imposed upon the Applicants by not approving the special uses.”
Williams may not have been legally correct to say that he “had no choice” and that he would have been “breaking the law” had he voted against the application at this time, but we decline to construe his comments as evidencing fatal prejudgment. Decision-making is an evolving process, and due consideration of appropriate evidence and application of appropriate legal standards over the course of public hearings may properly enable the decisionmaker to form a reasoned decision prior to the moment of the final vote. The precise focus of a prejudgment inquiry must be the decision-maker’s state of mind as the evidence is presented, not when the evidence is subsequently discussed by decisionmakers and considered by them in forming a decision. For Commissioner Williams, by the time the Report was complete, setting forth extensive reference to and consideration of all required evidence, his mind was made up. He honestly felt that at that point it would be inappropriate and unwarranted to vote against the application. Expression of such sentiment is not necessarily prejudgment; indeed, although he may not have “broken the law” to vote against the application, we construe his posttrial testimony consistent with his trial testimony, where he maintained that his intent was to “follow the law” and “give each side equal consideration.”
We conclude that the district court erred in finding that Williams’ statements were adequate to conclude that he had fatally prejudged the application.
Summary and Conclusion
We have not been asked to review the reasonableness of the special use application at issue herein. Our review has been limited to determining from the evidence whether purported prejudgment by the Board denied Concerned Citizens and others a fair and impartial consideration of WCKI’s application and the opposition thereto. We have concluded that the evidence does not demonstrate that any of the commissioners exhibited an “irrevocably closed mind” on the issue before the Board. Although the commissioners’ actions may not have proven politically popular, the evidence is insufficient to ascribe fatal prejudgment to any commissioner or to the Board’s proceedings. The findings and conclusions of the district court are reversed, and the matter is remanded with directions to reinstate the special use permit.
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Marquardt, J.:
Justin S. Johnson was acquitted of kidnapping and attempted aggravated robbery by a jury. The State appeals upon a question reserved, asking this court to determine whether a defense attorney may refer to a State witness as a liar. We sustain the appeal.
At trial, Johnson’s attorney made statements during closing argument regarding a “web of lie[s],” specifically referencing the lack of veracity by the State’s main witness, Terrance Belcher. The State contemporaneously objected, arguing that it was misconduct for a defense attorney to refer to a prosecution witness as a liar. After some discussion, the State’s objection was overruled, and Johnson was acquitted on all charges.
The State timely appeals the trial court’s decision to overrule the objection to defense counsel making comment in closing arguments on the credibility of a State witness.
Johnson contends that the State is asking this court for an advisoiy opinion regarding the application of the Kansas Rules of Professional Conduct (KRPC) 3.4(e) (2003 Kan. Ct. R. Annot. 429). Johnson argues that this matter is not one of statewide importance and does not qualify as a question reserved.
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002).
K.S.A. 2003 Supp. 22-3602(b)(3) provides, in relevant part:
“Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
“(3) upon a question reserved by the prosecution.”
The purpose of permitting the State to appeal a question reserved is to allow the prosecution to obtain review of a trial court’s adverse ruling on a legal issue of statewide interest that is important to the correct and uniform administration of criminal justice. No formal procedural steps are required by K.S.A. 2003 Supp. 22-3602(b)(3) to appeal on a question reserved. All that is necessaiy for the State to reserve a question for presentation on appeal is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken, laying the same foundation for appeal that a defendant is required to lay. State v. Mountjoy, 257 Kan. 163, 166, 891 P.2d 376 (1995).
Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether error has been committed by the trial court or that a decision would be helpful precedent. State v. Woodling, 264 Kan. 684, 687-88, 957 P.2d 398 (1998).
In the instant case, the State asks this court to “state quite plainly that it is misconduct for any attorney, prosecutor or defense, to call witnesses liars when such statements are not supported by the evidence during closing argument or at any other time.” The State requests that we “clarify a misconception that exists in the State of Kansas that defense counsel may comment on the credibility of witnesses during closing argument when the evidence does not support such comment.” The State also asks this court to interpret KRPC 3.4(e).
When conduct is measured by the Kansas Rules of Professional Conduct, it is a matter of attorney discipline and is generally reported to the Kansas Disciplinary Administrator for investigation. However, when prosecutorial misconduct is alleged in circumstances similar to those that appear in this case, our court reviews the case and determines whether it is error, and then if it is error, whether it is harmless error. See State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003).
We believe that the State’s question is one of statewide importance because of the many cases that are brought to our court when prosecutorial misconduct is alleged. Therefore, we will accept jurisdiction to consider this issue. KRPC 3.4(e) does not distinguish between prosecutor or defense counsel. When defense counsel calls a State witness a liar, he or she violates KRPC 3.4(e). Defense counsel, like the prosecutor, is prohibited from commenting on the credibility of a witness. Here, defense counsel clearly violated KRPC 3.4(e) by commenting on the credibility of a witness. A trial court which overrules a prosecutor’s objection to defense counsel calling a State witness a liar compounds the violation of KRPC 3.4(e). Here, since the trial court overruled the prosecutor’s objection to defense counsel’s improper remark and further proceeded without instructing the jury to disregard the comment, we find that this conduct is a matter of statewide importance. Both counsel and judge are officers of the court and are required to abide by the rules of conduct. The trial court erred in overruling the prosecutor’s objection.
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Bukaty, J.:
These consolidated cases involve appeals by three individuals whose driver s licenses were suspended by the Kansas Department of Revenue (KDR). In Carolyn Pieren-Abbott’s case the suspension resulted from her refusal to submit to alcohol testing after she was arrested for driving under the influence. In Michael K. Day’s and Tony D. Earlywine’s cases, the suspensions resulted from their alcohol test failures after they were arrested for driving under the influence.
Each individual filed a petition for review with the district court. Each petition was then dismissed on the basis that the court lacked subject matter jurisdiction. Specifically, the district courts ruled that K.S.A. 8-1020(o) requires that a person requesting judicial review of a driver’s license suspension must timely serve a summons on KDR and that was not accomplished in these cases. The individuals appeal the dismissals to this court. We reverse and remand.
The relevant facts are not in dispute. In Pieren-Abbott’s case, she timely filed her petition for judicial review and apparently mailed a copy to KDR at the same time. She never did file and serve a summons on KDR. Day and Earlywine timely filed their petitions for judicial review and also mailed copies to KDR at the same time. Day and Earlywine each filed and served a summons, but both did so more than 90 days after they had filed their petitions.
The appellants have adopted the arguments of each other. Highly summarized, they argue that service of a summons under K.S.A. 8-1020(o) is not required to obtain subject matter jurisdiction in the district court and it is the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., that controls the commencement of these cases. They further argue that if K.S.A. 8-1020(o) has any effect, it relates only to personal jurisdiction and KDR submitted itself to the court’s jurisdiction by its participation in the litigation.
KDR argues that because K.S.A. 8-1020(o) and the KJRA are silent regarding the timing requirements for the service of a summons, the court must refer to the Code of Civil Procedure, K.S.A. 60-101 et seq., specifically K.S.A. 60-203(a) and (b) to determine the timeliness of the summons required in K.S.A. 8-1020(o). Those sections require that for a service of summons to relate back to the date of filing of a petition, it must be served within 90 days (court may grant additional 30 days if application made within original 90 days). Service of a summons outside of these time frames means the action is then considered filed as of the date of service of process rather than the date of filing of the petition. KDR then argues that the district court lacked subject matter jurisdiction in these cases. Specifically, it argues in Pieren-Abbott’s case that she never commenced an action for judicial review. In Day’s and Earlywine’s cases, it argues that because service of process occurred more than 90 days after the filing of the petitions and without the court granting an extension, the petitions were not timely filed, i.e., within 10 days as required in K.S.A. 8-259(a).
A district court must have both subject matter and personal jurisdiction over the parties to act upon a claim for relief. Carrington v. Unseld, 22 Kan. App. 2d 815, 817, 923 P.2d 1052 (1996). Subject matter jurisdiction is the authority of a court to hear and decide a particular type of action. 22 Kan. App. 2d at 817. “Subject matter jurisdiction is vested by statute and cannot ordinarily be established by consent, waiver or estoppel. [Citation omitted.] When a court is without jurisdiction of the subject matter, its only permissible course of action is to dismiss the case. [Citation omitted.]” In re Miller, 5 Kan. App. 2d 246, 249, 616 P.2d 287 (1980), adopted by Supreme Court 228 Kan. 606, 610, 620 P.2d 800 (1980).
Personal jurisdiction is the authority of a court over a defendant’s person. Without personal jurisdiction, a plaintiff cannot obtain a valid personal judgment over the defendant. Carrington, 22 Kan. App. 2d at 817. Personal jurisdiction over the defendant is acquired by either issuance and service of process as required by statute or by a voluntary appearance. 22 Kan. App. 2d at 818-19. After being seived with a summons, “the defendants are in court for every purpose connected with the action, and . . . are bound to take notice of every step taken therein.” Deal Lumber Co. v. Vieux, 179 Kan. 760, 763, 298 P.2d 339 (1956).
There are no facts in dispute that bear on these issues. The question of whether a court has subject matter jurisdiction is a question of law over which this court has unlimited review. In re Marriage of Metz, 31 Kan. App. 2d 623, 625, 69 P.3d 1128 (2003). Similarly, whether a court has personal jurisdiction over a litigant is also a question of law, and appellate review is unlimited. Abbey v. Cleveland Inspection Services, Inc., 30 Kan. App. 2d 114, 116, 41 P.3d 297 (2002). To determine both questions, we must interpret K.S.A. 8-1020(o). Interpretation of a statute poses a question of law over which this court’s review is unlimited. An appellate court is not bound by tire interpretation of the district court. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
The relevant language of K.S.A. 8-1020(o) states: “The licensee may file a petition for review of the hearing order pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the licensee shall serve the secretary of revenue with a copy of the petition and summons.” This provision became law in 2001.
The district courts both found that K.S.A. 8-1020(o) conferred subject matter jurisdiction and since each appellant had not filed a summons that the only course of action was dismissal of the petitions for review. The problem with this interpretation, however, is that it isolates this provision from not only other provisions of K.S.A. 8-1020 but also from provisions of K.S.A. 8-259 and the KJRA.
The fundamental rule of statutoiy construction is tire legislature’s intent governs if that intent can be ascertained. It is presumed the legislature expressed its intent through the language of the statutory scheme that it enacted. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). To ascertain legislative intent, a court cannot consider only an isolated part or parts of an act. Landry v. Graphic Technology, Inc., 268 Kan. 359, 365, 2 P.3d 758 (2000). Rather, legislative intent is determined by considering the entire act and giving effect, if possible, to its entirety. As such, the court has a duty, “ ‘as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted.’ [Citation omitted.]” CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1293, 38 P.3d 666 (2002).
The second sentence in K.S.A. 8-1020(o) that KDR relies upon is inconsistent with the first sentence in that same subsection. It states: “The licensee may file a petition for review of the hearing order pursuant to K.S.A. 8-259, and amendments thereto.” This sentence does not require a summons, nor does K.S.A. 8-259.
The second sentence in 8-1020(o) is also inconsistent with the language in K.S.A. 8-1020(p). This subsection provides: “Such review shall be in accordance with this section and the [KJRA], To the extent that this section and any other provision of law conflicts, this section shall prevail. The petition for review shall be filed within 10 days after the effective date of the order.” Again, there is no mention or requirement of a summons.
Referring to the KJRA, we note that K.S.A. 77-610 provides in pertinent part: “Judicial review is initiated by filing a petition for judicial review in the appropriate court and payment of the docket fee . . . .” There is no mention or requirement of a summons to initiate judicial review. Also, under the KJRA, the petitioner must “serve a copy of the petition in the manner provided by subsection (e) of K.S.A. 77-613, and amendments thereto, upon the agency head . . . .’’K.S.A. 77-615. “Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses. . . . Service by mail is complete upon mailing.” K.S.A. 77-613(e). “Within 30 days after service on the agency ... of the petition as provided in K.S.A. 77-615, ... a party to judicial review proceedings may file an answer or other responsible plead ing. ...” (Emphasis added.) K.S.A. 77-614(c). Again, there is no mention or requirement of a summons.
The legislative history of K.S.A. 8-1020 also supports the conclusion that lack of timely service of a summons does not deprive the court of subject matter jurisdiction in these cases. This statute was a part of L. 2001, ch. 200 (S. B. 67), which not only enacted this statute but also amended 17 others and repealed another. An examination of tire bill establishes that it increased the criminal and administrative penalties for driving under the influence of alcohol or drugs and limited the evidentiary procedures at tire administrative hearings. When the Kansas Senate voted on Senate Bill No. 67, Senator David Adkins explained:
“This comprehensive legislation significantly enhances public safety by imposing harsher penalties on drunk drivers. Many Kansans’ lives have been tragically affected by tire act of a drunk driver. . . . This bill says loud and clear drat those who chink and drive in our state will face strong penalties. Those who commit this crime more than once will also be dealt with as dre serious criminals drey are.” Sen. J. 2001, p. 1063.
The amendments in Senate Bill No. 67 and Senator Adlans’ comments indicate the legislature intended to implement harsher direct penalties upon those persons who drive under the influence of alcohol or drugs. There is no indication that the inclusion of one word, “summons,” in K.S.A. 8-1020(o) was meant to drastically change the requirements for the personal and subject matter jurisdiction of the district court, especially when it is inconsistent with K.S.A. 8-259(a) and similar provisions to K.S.A. 8-1020(o) and (p), which were in effect prior to 2001 in another statute.
The brevity of the reference to “summons” in K.S.A. 8-1020(o) also supports this conclusion. The section contains no particulars as to how it should be served or within what time frame. There is no requirement that a return of summons be filed. More importantly, there is no mention that the Code of Civil Procedure applies to answer these questions. Had the legislature so intended, it certainly could have said so.
The requirement of a summons serves no purpose in these judicial review proceedings. It is important to note that a petition for judicial review of the agency decision under K.S.A. 8-1020(o) and (p) commences a special proceeding. Once a licensee has requested an administrative hearing, a dispute exists over the driver’s license suspension. KDR becomes a party to the dispute once it has received the notice of the request by mail or facsimile. Requests for judicial review of the orders entered following those hearings are not original actions. They are essentially appellate in nature. The purpose of a summons in the Code of Civil Procedure is to notify a defendant of a new lawsuit and the requirement that the defendant must timely file an answer or judgment will be taken. See K.S.A. 60-268 et seq., Form No. 1 in the Appendix of Forms following the Rules of Civil Procedure. In these review proceedings, KDR is not required to but may file an answer. With no purpose to be served in requiring a summons, we should not construe the statute so as to require a futile act. See KPERS v. Reimer & Koger Assocs., Inc, 262 Kan. 635, 643, 941 P.2d 1321 (1997).
Certainly, the legislature, if it so desires, could require that a summons be served on KDR before the district court obtains subject matter jurisdiction in these proceedings. In the absence of a clear statement of that intent, however, we will not impose such a condition in light of the conflicting statutory provisions and the nature of a summons itself.
After considering the entirety of the statute and its history, the inclusion of the word summons in K.S.A. 8-1020(o) is not a prerequisite to conferring subject matter jurisdiction or obtaining personal jurisdiction for an appeal under K.S.A. 8-259(a), K.S.A. 8-1020(o), or the KJRA. Where a licensee timely files a petition for judicial review, mails the petition to KDR, and complies with all other clear statutory requirements, the district court possesses jurisdiction. Thus, the district courts erred in their interpretation of K.S.A. 8-1020(o), and the dismissals of the petitions filed by Pieren-Abbott, Day, and Earlywine should be reversed.
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ROSEN, J.:
Michael E. Davin appeals the trial court’s grant of State Farm Fire & Casualty Company’s (State Farm) motion for judgment as a matter of law. We affirm.
Davin was injured while playing basketball with T. Sean Lance at the Athletic Club of Overland Park on January 14, 1999. Lance claimed that Davin grabbed him by the arms and held him with both hands. In response, Lance picked Davin up between the legs, lifted him about 5 feet off the ground, turned him, and dropped him headfirst on the floor. Davin landed on his right shoulder and head. The fall knocked Davin unconscious, and he was taken to the hospital, where he was diagnosed with a separated shoulder. Davin had one unsuccessful surgery and another operation 6 months later.
Davin made a living in investments and insurance. As a result of the injury, he claimed that he lost significant business opportunities. After many months of physical therapy, he still has problems with his right shoulder. Davin sued Lance for battery and negligence and sought compensation for his medical expenses and lost wages.
At the time Davin’s injuries occurred, Lance was insured by State Farm under a homeowner’s insurance policy. The insurance policy provided indemnity for Lance’s liability for bodily injury or property damage caused by an “occurrence.” State Farm hired an attorney to represent Lance under a reservation of rights. Lance also hired his own personal attorney.
Against the advice of the attorney State Farm hired to represent Lance, Lance entered into an agreement with Davin whereby Lance would waive a jury trial and consent to Davin taking judgment against him for $300,000. The agreement stated that the “parties are desirous of entering into an agreement, so that the assets of Sean Lance will be protected from judgment.” In exchange, Lance agreed to a consent judgment that he would not: (1) move to set aside the judgment; (2) appeal the judgment; and (3) take any action to avoid the judgment. Pursuant to the stipulated judgment, the trial court entered judgment against Lance for $300,000 plus court costs.
Davin brought a garnishment action against State Farm for the $300,000 limit of Lance’s homeowner’s policy. Davin and State Farm filed cross-motions for summary judgment on the issue of policy coverage. The trial court denied Davin’s motion for sum mary judgment and granted State Farm’s motion, finding that a trial was necessary in order to determine whether State Farm had a duty to indemnify Lance.
On September 3, 2002, the trial court heard evidence and ruled that'Davin’s claim was excluded under the State Farm policy. The trial court granted State' Farm’s motion for judgment as a matter of law. Davin timely appeals.
The standard of review on an appeal from a judgment as a matter of law is:
“ “When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied.’ [Citation omitted.]” Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000).
Davin first contends that the law of the case doctrine and collateral estoppel prevent State Farm from relitigating the issue of whether Lance was negligent. He claims that this issue was previously determined. The law of the case doctrine is a discretionary policy which allows the court to refuse to reopen a matter already decided, without limiting its power to do so. The doctrine is applied to avoid relitigation of an issue, to obtain consistent results in the same litigation, and to afford a single opportunity for argument and decision of the issue. Bichelmeyer Meats v. Atlantic Ins. Co., 30 Kan. App. 2d. 458, Syl. ¶ 2, 42 P.3d 1191 (2001).
Similarly, under collateral estoppel, once a court has decided an issue of fact or law, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Under Kansas law, three factors must be present in order for collateral estoppel to apply: First, the suit must have proceeded to a final judgment on the merits, second, the parties must be the same or in privity, and third, the fact at issue must have been directly determined by a court of competent jurisdiction as a ground of recovery. See Grimmett v. S&W Auto Sales Co., 26 Kan. App. 2d 482, 487, 988 P.2d 755 (1999).
Reservation of Rights
State Farm argues that its reservation of rights in representing Lance preserved its right to litigate the question of coverage at a later time. Kansas law requires an insurer to provide a defense to an insured if there is a potential for liability under the policy. State Farm Fire & Casualty Co. v. Finney, 244 Kan. 545, 553, 770 P.2d 460 (1989). An insurer may use a reservation of rights in order to represent the insured while still preserving its claim of noncoverage until after the underlying tort suit is decided. Kansas courts have determined that the insurer is then allowed to relitigate the plaintiff s claim and have the issue of coverage under the policy determined by the court as a matter of law. Finney, 244 Kan. at 547.
In Finney, the insured negligently shot and injured the plaintiff. The insurer disclaimed liability under the intentional acts exclusion and filed a declaratory judgment action claiming that there was no coverage under the policy and that it had no duty to defend the insured. The insured asked for a stay, pending the outcome of the civil tort suit. The insurer objected, claiming that a judgment in the civil suit would bar tire defense of no liability. The court held that the insurance company was not collaterally estopped from asserting its policy defenses. 244 Kan. at 546-47,554. The court cited Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), where the court held that when an insurance company provides an attorney to defend its insured against a pending action while reserving its policy defenses, the defense of the action does not estop the insurance company from asserting its policy defenses in a subsequent civil proceeding. Finney, 244 Kan. 545 Syl. ¶ 1.
Since State Farm represented Lance under a reservation of rights, the trial court correctly allowed State Farm to relitigate the facts of Davin’s case to determine whether coverage existed under State Farm’s policy.
Collateral Estoppel
State Farm argues that the factors required for collateral estoppel, as discussed in Grimmett, have not been met in this case. We agree.
Previous Party
Davin argues that collateral estoppel should have applied because State Farm participated in all phases of the initial litigation.
State Farm was not a party to the original action, and there is no evidence in tire record on appeal showing any direct involvement by State Farm in that case. While it is not uncommon for an insurance company to be found in privity with its insured, in the instant case, State Farm hired an attorney to defend Lance under a reservation of rights. By doing so, State Farm severed any privity between Lance and itself. State Farm had no interest in the case when Lance entered the consent agreement with Davin against the advice of counsel.
Issue Not Previously Litigated
On November 7, 2000, the trial court resolved the issue of fault, determining that Lance’s negligence was the cause of Davin’s injuries. State Farm was not a party to the action. The issue of whether the State Farm policy provided coverage for the consent judgment was not in front of the trial court until the garnishment action was filed.
It is clear that the definition of a “negligent occurrence” and the specific exclusions to that term listed in State Farm’s policy could be different than the common-law definition of negligence that was applied in the original negligence action. The trial court in the garnishment action had to decide whether the definition of “negligent occurrence” and exclusions to the term in State Farm’s policy covered Davin’s injuries.
Both the law of the case doctrine and collateral estoppel require that the issue had been determined by die trial court before the issue will be barred from litigation in a subsequent action. Here, the issue of coverage was not an issue in the first trial, State Farm was not barred from raising the issue in the subsequent garnishment action, nor was it error for the trial court to determine the issue of coverage. We find that the precedent in Finney and Bell are relevant and persuasive on this issue.
Parties to litigation cannot concoct a scheme agreeing to a declaration of negligence and a $300,000 judgment and then expect the insurance company to be bound by that agreement without being able to defend itself against the liability. As such, it was not error for the trial court to consider the issue of liability in the subsequent garnishment action.
Next, Davin argues that the trial court erred by finding that Lance intentionally caused Davin’s injuries. The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001). The court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. State ex rel. Stovall v. Meneley, 271 Kan. 355, 387, 22 P.3d 124 (2001). However, “[t]he interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review.” Unrau, 271 Kan. at 763.
Lance’s homeowner’s policy provides personal liability coverage if a claim is made or a suit is brought against an insured for damages because of bodily injury caused by an “occurrence.” The policy defines an occurrence as an accident. However, the policy excludes from coverage bodily injury actions that are either expected or intended by the insured or which are the result of willful and malicious acts of the insured.
According to Kansas case law, the insured’s intent to injure can be inferred when the resulting injury is a natural and probable consequence of the insured’s act. Harris v. Richards, 254 Kan. 549, 553, 867 P.2d 325 (1994). At the trial of the garnishment action, the trial court heard evidence that Lance picked Davin up nearly 5 feet off the ground and slammed him headfirst on the basketball court. Additionally, portions of Lance’s deposition were read into the record. Although Lance denied that his actions were intended to injure Davin, Lance admitted that he had picked Davin up between the legs and “dropped him down.” Later, Lance testified that he had “toss[ed] [Davin] to the side.”
In Harris, the defendant fired two shotgun rounds into the back window of a pickup truck that he knew was occupied. The court held that the natural and probable consequence of the act is that anyone occupying the cab would be injured. 254 Kan. at 553. In reaching its decision, the court disregarded the question of whether the defendant had the actual intent of harming both individuals in the truck and looked only to the natural and probable consequences of his actions. As in Harris, this court was required to ignore Lance’s stated intent and focus on whether physical injury was the natural and probable consequence of picking Davin up and dropping him headfirst to the floor. It is clear that physical injury was the natural and probable consequence of such an act. Consequently, Lance’s intent to injure can be inferred.
Based on the evidence presented to the trial court, there was substantial competent evidence to support the trial court’s conclusion that Lance’s actions were excluded from coverage under the State Farm policy.
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Rulon, C.J.:
S.J.K. appeals from the district court’s denial of his K.S.A. 2003 Supp. 60-1501 petition. We affirm.
On May 22, 2001, S.J.K. was adjudicated a juvenile offender for having committed burglary, which would be a level 7 nonperson felony if he were an adult. On August 31, 2001, he was placed on probation for 12 months pursuant to K.S.A. 38-1663(1). On October 11, 2001, S.J.K. was found to be in violation of his probation and was placed on order of assignment with Douglas County Youth Services (DCYS) for an unspecified period of time. The order included 20 conditions that S.J.K. was to follow and successfully complete or face an out-of-home placement.
On multiple occasions, S.J.K. was found to be in violation of his order of assignment and was given sanctions. On May 22, 2002, S.J.K. was found to be in violation of his order of assignment and was placed on order of assignment with DCYS on house arrest with electronic monitoring until “the ISP Officer feels the Respondent can be trusted.”
On March 26, 2003, S.J.K. was ordered detained pending a violations hearing. On April 9, 2003, S.J.K. was placed in the custody of the Juvenile Justice Authority for out-of-home placement. As a result, S.J.K. was placed at Keys Youth Services, Olathe Boys Home.
S.J.K. filed a K.S.A. 2003 Supp. 60-1501 petition on July 1,2003. S.J.K. alleged that he was illegally detained pursuant to the underlying juvenile offender case. The district court denied the petition, finding there was nothing illegal in the detention order and that S.J.K.’s claims were without merit. The court found that when ordered to youth services, the juvenile offenders participate until they successfully complete the program.
In determining whether the district court’s interpretation of a statute was erroneous, the standard of review is unlimited. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). “Additionally, in cases involving habeas corpus relief pursuant to K.S.A. 2002 Supp. 60-1501, an appellate court’s review of the district court’s conclusions of law is unlimited. Darnell v. Simmons, 30 Kan. App. 2d 778, 780, 48 P.3d 1278 (2002).” 277 Kan. at 252.
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 determined. When a statute is plain and ambiguous, the appellate courts will not speculate as to the legislative intent and will not read the statute so as to add something not readily found in it. 277 Kan. at 252-53.
S.J.K. argues that the district court erred in-dismissing his K.S.A. 2003 Supp. 60-1501 action because he is being illegally detained in a probation status without an extension of his probation. S.J.K. asserts his original 12-mónth- probation expired August 31, 2002, and the court was without jurisdiction to order him detained after that date.
S.J.K.’s main argument is with tire court’s jurisdiction to order him detained on March 26, 2003. The issue is whether S.J.K. was on probation status pursuant to K.S.A. 38-1663(a)(l) or whether he was committed to a community based program pursuant to K.S.A. 38-1663(a)(6). K.S.A. 38-1666 governs how the court should proceed if there is found to be a violation of probation. K.S.A. 38-1666 states that “[ijf'the court finds at the hearing that the juvenile offender violated a condition of probation or placement, the court may extend or modify the terms of probation or placement or enter another sentence.” See In re C.A.D., 11 Kan. App. 2d 13, 15, 711 P.2d 1336 (1985).
The record indicates that S.J.K. was found to be in violation of his probation on October 11, 2001, and he was placed in a community based program pursuant to K.S.A. 38-1663(a)(6) at this time. Although not specifically stated in the journal entry, the original period of probation was revoked. No specific time frame for the new placement was given. S.J.K. argues that because the adult criminal code has specific time frames, the juvenile system should likewise.
“The primary goal of the juvenile justice code is to promote public safety, hold juvenile offenders accountable for such juvenile’s behavior and improve the ability of juveniles to live more productively and responsibly in the community.” K.S.A. 38-1601. K.S.A. 38-1663 contains numerous options that the court may select to sentence a juvenile offender. Two of the options are explicitly limited in time, while the other options do not have explicit time frames identified. In this case, the district court noted that juveniles were sentenced to the community based program with the intent that they complete the program, rather than for a specific length of time. The juvenile justice code focuses on accountability and rehabilitation while the adult code focuses on accountability and punishment. See K.S.A. 38-1601. K.S.A. 38-1663(a)(6) allows the court to commit the juvenile to a community based program “subject to the terms and conditions the court orders.”
Although S.J.K. argues the court no longer had jurisdiction after the original order of probation expired on August 31,2002, the end date of the original probation order is a moot point because he was resentenced and placed on an order of assignment with DCYS on October 11,2001. Until S.J.K. successfully completed the program, he was subject to the jurisdiction of the court. Because S.J.K. had not yet successfully completed the program pursuant to K.S.A. 38-1663(a)(6), he was still subject to the jurisdiction of the court at the detention hearing on March 26, 2003. The district court properly dismissed the K.S.A. 2003 Supp. 60-1501 petition.
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Greene, J.:
Leslie E. Kackley appeals his conviction of aggravated indecent liberties with a child under 14 years of age, arguing numerous trial and sentencing errors. We affirm.
Factual and Procedural Overview
Kackley was charged with two counts of aggravated indecent liberties with a child, A.G., the daughter of a friend, after visiting in the friend’s home. The incident occurred in the friend’s bedroom after Kacldey left the adults to go to the bathroom, and the encounters consisted of Kacldey twice placing A.G.’s hand on his exposed penis. Further details of the incident will be discussed and analyzed as appropriate to the issues raised. Kackley denied enter ing the bedroom with the child and committing the aggravated indecent liberties.
Prior to trial, the district court denied Kackley’s motion to dismiss a juror for cause, and Kackley used a peremptory challenge to remove the juror. Kackley’s defense strategy at trial was to claim that he was innocent and that A.G. fabricated the allegations because he had threatened to “whip [her] butt.” Prior to A.G.’s testimony, the State called A.G.’s mother and the investigating officer, both of whom related A.G.’s account of the incident. The State also called C.D., a victim of a similar crime committed by Kackley, who was permitted to testify about the prior crimes over the objection of defense counsel. Ultimately, the district court dismissed die second count, holding that the counts were multiplicitous and that there was only one chargeable incident. The jury convicted Kackley of one count of aggravated indecent liberties with a child, and he was sentenced to 214 months’ imprisonment. He appeals, claiming error in the court’s refusal to strike a juror for cause, in the admission of certain evidence, and in his sentencing.
Did the District Court Err in Admitting Evidence of Prior Crimes to Show Intent and PlanP
Kackley had previously pled no contest to aggravated indecent liberties and aggravated criminal sodomy involving C.D. The district court permitted C.D. to testify over Kackley’s objection that the testimony was inadmissible under K.S.A. 60-455, holding that the evidence was relevant to show intent and plan, that these facts were disputed, material facts, and that the probative value of C.D.’s testimony outweighed the prejudicial effects. If the requirements for admission of such evidence are met, we review the district court’s evidentiary ruling for an abuse of discretion. State v. Tiffany, 267 Kan. 495, Syl. ¶ 2, 986 P.2d 1064 (1998).
Under K.S.A. 60-455, evidence of prior crimes on a specified occasion is not admissible to prove the defendant’s “disposition to commit crime ... as the basis for an inference that the [defendant] committed another crime ... on another specified occasion.” K.S.A. 60-455 authorizes the admission of such evidence, however, “when relevant to prove some other material fact includ ing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Before admitting evidence under K.S.A. 60-455, tire trial court must find: “(1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) probative value of the evidence outweighs its potential prejudice. [Citation omitted.]” State v. Lane, 262 Kan. 373, 388, 940 P.2d 422 (1997).
As noted by our Supreme Court, the application of K.S.A. 60-455 has been subject to considerable conflicting views and decisions. State v. Rucker, 267 Kan. 816, 824, 987 P.2d 1080 (1999). The difficulties in application are most acute in sex crime cases. Compare, e.g., State v. Damewood, 245 Kan. 676, 681-82, 783 P.2d 1249 (1989), with State v. Clements, 252 Kan. 86, 89-90, 843 P.2d 679 (1992). Proper resolution of issues surrounding the admissibility of evidence of prior sexual misconduct when charged with a sex crime is particularly critical to a fair trial. Such evidence can easily be perceived by a jury as evidence of a propensity to commit the acts charged, which is impermissible under K.S.A. 60-455. See State v. Jones, 277 Kan. 413, 424, 85 P.3d 1226 (2004) (citing United States v. Peden, 961 F.2d 517, 520 [5th Cir. 1992]).
Initially, we examine whether the evidence of Kacldey’s prior crimes was admissible to show intent. Generally, evidence of prior crimes is not admissible to show intent where criminal intent is obviously proven by the mere doing of the act itself. State v. Nunn, 244 Kan. 207, 212, 768 P.2d 268 (1989). Where the evidence of the circumstances surrounding the allegations of a sex crime and the specified acts themselves leave no room for even an inference that the acts may have been innocent acts lacking the requisite intent, the introduction of prior crimes has no probative value. State v. Dotson, 256 Kan. 406, 413, 886 P.2d 356 (1994); see Rucker, 267 Kan. at 826. Here, Kacldey’s placing of A.G.’s hand on his exposed penis leaves no room for an inference of innocence; the evidence of prior crimes was not admissible to show intent, since criminal intent was obvious in the mere doing of this act. The district court erred in finding that the evidence was relevant in part to prove intent.
Even though the evidence was inadmissible to show intent, we must examine the alternative basis for admission of the evidence, since the error would be harmless if there is another reason for admission which fits within the statutory exceptions. See State v. McBarron, 224 Kan. 710, 713, 585 P.2d 1041 (1978). The more difficult analysis in this case is whether the evidence of Kacldey s prior crimes was admissible to show plan or modus operandi.
“The rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citation omitted.]” Damewood, 245 Kan. at 682.
A number of decisions have upheld the admission of K.S.A. 60-455 evidence in sex crime cases where the details of the plan for the prior crimes and the crime for which the defendant was on trial were “strikingly similar.” See, e.g., Rucker, 267 Kan. at 825-29; Tiffany, 267 Kan. at 497-502; Damewood, 245 Kan. at 682; State v. Aldaba, 29 Kan. App. 2d 184, 189-92, 25 P.3d 149 (2002). In State v. Tolson, 274 Kan. 558, 563-64, 56 P.3d 279 (2002), the court held that Damewood contained so distinct a method of operation as to be a “signature.” In Clements, 252 Kan. at 90, the court held such evidence admissible with no requirement of “striking” similarities but rather because the evidence showed that the general method used was “similar enough to show a common approach that is tantamount to a plan.” In Jones, 277 Kan. at 419-24, our Supreme Court analyzed admissibility by comparing the similarities to the dissimilarities between the prior crimes and the acts charged, but then discounted similarities that may be present in many child sexual abuse scenarios in holding the evidence inadmissible.
Here, as in Jones, there were both similarities and dissimilarities between the prior crimes and the acts charged. The similarities were: (i) A.G. and C.D. were 10-year-old girls; (ii) both victims were known to Kackley; (iii) access to the children was gained through friendship to a parent; (iv) Kacldey had the children touch him rather than him touching the children; (v) one or more siblings were present in the home at the time of incident; and (vi) in both incidents, Kackley began by placing the child’s hand on his penis. The dissimilarities were: (i) Although Kackley had no family connection with A.G., he lived with C.D.’s family and portrayed a quasi-parental role; (ii) adults were present in the house at the time of the incident with A.G., whereas no adults were present for the incidents involving C.D.; (iii) following Kacldey’s placing of A.G.’s hand on his penis, he told her to keep her hand there but she withdrew it, whereas following Kackley’s placing of C.D.’s hand on his penis, he forced her to give what she described as “hand jobs.” (Although C.D. apparently alleged that Kackley forced her to engage in oral copulation, this evidence was never offered at trial.)
The feature that distinguishes this case from Jones is Kacldey’s “signature” act of first placing the underage girls’ hands on his exposed penis; it is a signature act because it is so strikingly similar in pattern or modus operandi as to authenticate the conduct as the defendant’s when it is allegedly replicated in a later case. In Jones, there was no such signature sexual act; in fact, the court noted that the prior crime involved only fondling in isolation, whereas the acts charged began with intercourse in a group. In contrast, Kackley’s signature sexual act aligns this case with Rucker, 267 Kan. at 825-29 (where defendant applied lubricant and rubbed the victims’ vaginal areas with his penis until ejaculation), and Aldaba, 29 Kan. App. 2d at 189-92 (where defendant forced his penis into victims’ mouths). Moreover, Jones is distinguishable because the dissimilarities here between the prior acts and the acts charged are either relatively minor or reflect only the degree of success obtained; had A.G. not withdrawn her hand, the outcome of her encounter might have been identical to that of C.D. For these reasons, we conclude that the court did not err or abuse its discretion in finding evidence of the prior crimes involving C.D. was relevant to show plan or modus operandi.
Even if we were to conclude that the evidence should not have been admitted, we would conclude that any purported error was harmless, since we believe that any such error would not have changed the outcome of the trial. See State v. Henry, 273 Kan. 608, Syl. ¶ 7, 44 P.3d 466 (2002). A key element of A.G.’s allegation was that Kackley was not wearing underwear at the time of the encounter. Kackley took the stand in his own defense but had to admit upon cross-examination that, on the day of the incident, he indeed had on no underwear. Since there was no possible way for A.G. to have known of this key fact unless her account was true, this fact alone corroborated A.G.’s story and undoubtedly enhanced her credibility with the jury to an extent not likely shaken, even if there had been no evidence of prior crimes. Given both our conclusion as to admissibility of the evidence and our conclusion as to harmless error, we affirm the district court and reject Kackley’s first claim of error.
Did the District Court Err in Denying Kackley’s Motion for Mistrial When the Evidence of Prior Crimes Exceeded the Anticipated BoundariesP
Kackley next argues that the district court erred in denying his motion for a mistrial when C.D.’s testimony exceeded its anticipated limits under K.S.A. 60-455. We review the district court’s denial of mistrial for an abuse of discretion. State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001).
The problem is that following C.D.’s testimony that Kackley forced her to touch his penis, the prosecution asked whedier Kackley ever touched her private parts. When she responded, “He would—he touched my chest,” the defense moved for a mistrial. The district court denied the motion, concluding that the State was not expecting that answer, that it came as a surprise to everyone, and that there was no harm “at this point.”
The unanticipated response was not only short and lacked detail, it may have been perceived as innocent conduct by Kackley. Given the permissible evidence of prior crimes and the strength of the victim’s credibility, we agree with the district court that the apparently unanticipated testimony exceeding the scope of permissible 60-455 testimony did not substantially prejudice Kackley’s defense or make it impossible for the trial to proceed without injustice. See K.S.A. 22-3423(l)(c); State v. Goodwin, 223 Kan. 257, 259-60, 573 P.2d 999 (1977). We decline to find an abuse of discretion, and we reject Kackley’s second claim of error.
Did the District Court Err in Admitting Prior Consistent Statements of the Victim Prior to the Victim’s Own Testimony?
KacHey next argues that he was denied a fair trial because two other witnesses were permitted to testify about A.G/s story before A.G. testified, thus “improperly bolstering” A.G/s testimony. The State first called A.G/s mother, who related A.G/s reports of the incident, first to her and then to the investigating officer; no objection was asserted to this testimony. The State tiren called the investigating officer, who was asked to again relate A.G/s report of the incident, and the defense objected to this testimony as cumulative. Later, A.G. was called as a witness, and she once again related the incident, together with her report of it to her mother; no objection was asserted to this testimony. We review the district court’s admission of the testimony for an abuse of discretion. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
KacHey’s claim of error is somewhat confusing in that he relies on some authorities that discuss the inadmissibility of prior consistent statements in the context of the hearsay rule and other authorities that discuss this subject in the context of the cumulative evidence rule. The confusion is compounded by KacHey’s citation to federal authorities, despite important distinctions between federal and Kansas exceptions to die hearsay rule. In any event, we conclude that the cumulative nature of the officer’s testimony may have been a genuine cause for concern, but we find any error in its admission harmless under the circumstances.
First, we note that evidence of prior consistent statements of a witness who is present in the courtroom does not offend the hearsay rule in Kansas. Since at least 1963, Kansas has recognized an exception to the hearsay rule for statements previously made by a person who is present at the hearing and available for cross-examination, so long as the statement would be admissible if made by the declarant while testifying as a witness. See K.S.A. 2003 Supp. 60-460(a).
The more difficult question is whether admission of repetitious testimony regarding such statements violates the cumulative evidence rule and, if permitted, constitutes an abuse of discretion. We note at the outset that such repetition is characteristic in the prosecution of child sex crimes and generally draws no objection. See, e.g., State v. Banks, 273 Kan. 738, 739-42, 747, 46 P.3d 546 (2002). We concede, however, that Kansas has embraced the general rule that prior statements of a witness, consistent with his or her own testimony at the trial, are not admissible in corroboration of the witness’ testimony unless the witness has been impeached and then only for the purpose of rehabilitation. State v. Whitesell, 270 Kan. 259, 290, 13 P.3d 887 (2000) (citing State v. Fouts, 169 Kan. 686, 696, 221 P.2d 841 [1950]). The rationale for the rule is best stated in 4 Wigmore on Evidence § 1124 (Chadboum rev. 1972):
“When the witness has merely testified on direct examination, without any impeachment, proof of consistent statements is unnecessary and valueless. The witness is not helped by it; for, even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it. Such evidence would ordinarily be both irrelevant and cumbersome to the trial and is ordinarily rejected.” ■
The only recognized exception to this rule is for rape prosecutions, where evidence of the complaint of the prosecutrix is permitted for the express purpose of corroborating her testimony through the testimony of other witnesses. 65 Am. Jur. 2d, Rape § 61, p. 600-01. This exception has also been embraced in Kansas. See State v. Washington, 226 Kan. 768, 770, 602 P.2d 1377 (1979). We see no reason that this exception could not be logically extended to prosecutions for sexual abuse of children, including indecent liberties cases. Given this logical extension to a recognized exception to the rule, we are unable to conclude that the district court abused its discretion in permitting the testimony.
Notwithstanding this rule and the exception, we also note that it lies within the authority of a trial court to limit the number of witnesses on a single issue, and our Supreme Court has often found no error in permitting two witnesses for the prosecution to give cumulative testimony on the same subject. See, e.g., State v. Johnson, 231 Kan. 151, 156-57, 643 P.2d 146 (1982). Moreover, even if the repetitious testimony of A.G.’s account may have been error, it was certainly harmless where no further challenge to her credibility is apparent in the record.
For all of these reasons, we are convinced that the district court did not abuse its discretion in admitting the cumulative testimony of the investigating officer and, if error, it was harmless under the circumstances. Kackley s third claim of error is rejected.
Did the Trial Court Abuse its Discretion by Refusing Kacldey’s Request to Strike a Prospective Juror for CauseP
Kackley claims he was denied a fair trial because the trial court abused its discretion in denying his challenge for cause of a prospective juror. A prospective juror may be challenged for cause when his or her state of mind with reference to the case or parties prevents the juror from acting impartially and without prejudice to the substantial rights of any party. K.S.A. 22-3410(2)(i). The trial court has discretion in determining challenges for cause as it is in a better position than an appellate court to view the demeanor of prospective jurors during voir dire. Thus, an appellate court will not disturb the trial court’s decision regarding a challenge for cause unless its decision is clearly erroneous or an abuse of discretion. State v. Dixon, 248 Kan. 776, 788-89, 811 P.2d 1153 (1991).
During voir dire Kacldey’s attorney explained to the prospective jurors that the State alleged Kackley had inappropriately touched a child in a sexual manner. He asked the jurors about their reactions to such allegations, and one prospective juror, J.M., responded, in part:
“[DEFENSE COUNSEL]: . . . But knowing how you feel, knowing how it makes your skin crawl, you would rather be on any other case, can you put those feelings aside, do you think, listen to the evidence and decide this case based upon the facts drat you hear in tiris trial if you’re selected for this jury?
“[J.M.]: I would hope that I could. Can I honesdy tell you? I don’t know. I would hope that I could.
“[DEFENSE COUNSEL]: Okay. So what I hear you saying, I don’t want to put words in your mouth, you correct me if I’m mistaken—.. .—is you think you would have a hard time just based upon die nature of the case being fair and impartial and ensuring bodr sides get a fair trial in dris case?
“[J.M.]: Yes, I would agree to diat.”
In response to Kackley’s request to remove this prospective juror from tire jury for cause, the State questioned J.M.:
“[PROSECUTOR]: ... At the end of the case the judge is going to give you the law after you’ve had an opportunity to listen to all the evidence and ask you to put aside, you know, the ugliness of this and decide legally whether the defendant is guilty or not guilty. Do you think that you can do that?
“[J.M.]: Like I said before, I would hope that I could be able to separate it. Can I guarantee you that? I would hope so.
“[PROSECUTOR]: If the judge tells you that is what you have to do, can you obey the judge and follow the law?
“[J.M.]: Yeah. I’m going to go with yes.”
The trial court denied Kackley s request to remove J.M.
Later, Kackley’s attorney told the prospective jurors that the State might call C.D., who would testify that Kackley had previously done something similar to C.D., and he questioned J.M. further. Although Kacldey argues that these responses further illustrate the claim of error, Kackley did not properly preserve any challenge based upon responses that occurred after the trial court’s initial ruling because he did not renew his challenge for cause. The general rule is that issues not raised to the trial court will not be considered on appeal absent recognized exceptions. State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353 (2003). Here, we decline to apply any of the exceptions because the essential claim of error is already subject to review, and the supplemental responses are not materially different from those previously elicited.
The trial court did not commit clear error or abuse its discretion by refusing Kackley’s challenge for cause to remove J.M. because she ultimately indicated that her decision would be based upon the trial court’s instructions to the jury after she had listened to the evidence. Moreover, assuming that J.M. should have been removed, failure to excuse her is no ground for reversal unless Kackley was prejudiced. See State v. Crawford, 255 Kan. 47, 50-53, 872 P.2d 293 (1994). Because J.M. was ultimately removed with a peremptory challenge, the question is whether the resulting jury was impartial. See 255 Kan. at 51.
Kackley contends he would have removed another juror, H.S., but he had already exhausted his peremptory challenges on J.M. H.S. stated a member of her family had been a victim of sexual assault in a case that had been prosecuted. The perpetrator of that assault was not a member of her family. H.S. said she had not been involved in the case in any way and, although she first heard about it 2 years ago, the incident occurred more 10 years earlier. The prosecutor asked H.S. if she could be fair and impartial in this case despite this involvement, and she responded, “Yes.”
Although H.S. might have been a candidate for a peremptory challenge as Kackley claims, he has not shown that she was not an impartial juror. Here, the sexual assault case involving her family member was not recent, remained unknown for years, and was expressly and unequivocally rejected by H.S. as affecting her objectivity.
The trial court did not commit clear error or abuse its discretion by refusing Kackley s challenge for cause to remove J.M. from the jury panel and thereby causing him to use a peremptory challenge to do so.
Did Cumulative Trial Error Deny Kackley a Fair TrialP
Kackley contends he was denied a fair trial due to cumulative trial errors, relying on the four claims discussed above. Since we have concluded that there was no trial error, the cumulative trial error rule does not apply.
D-'d the Trial Court Err in Determining Kackley’s Criminal History Score and in Classifying Him as a Persistent Sex Offender Based Upon His Convictions Involving C.D.P
Kackley contends the trial court erred by including his convictions from the criminal case involving C.D. to calculate his criminal history score and classify him as a persistent sex offender, arguing that these convictions were introduced as “elements” of the current conviction. Interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., is a question of law over which an appellate court’s scope of review is unlimited. State v. Perez-Moran, 276 Kan. 830, 833, 80 P.3d 361 (2003).
Under K.S.A. 21-4710(d)(ll), prior convictions of crimes which are used as an element of the present crime shall not be counted in determining the criminal history category; however, all other prior convictions are to be used in determining the criminal history score unless prohibited by statute. See State v. Taylor, 262 Kan. 471, 479, 939 P.2d 904 (1997). The determinative issue is whether Kackley s prior convictions involving C.D. were introduced as an “element” of his current conviction such that they cannot be included in his criminal history score.
As discussed above, we have determined that Kacldey s prior convictions were not admissible on the issue of intent but were admissible to show plan; thus, the prior convictions did not establish an “element” of the current conviction. Moreover, the fact that Kackley was convicted of the prior offenses was not a predicate for admitting the evidence; his prior conduct was relevant absent any evidence of actual conviction. Thus, he could be and was convicted of the current offense absent any requirement of the prior convictions, so there is no reason to exclude the prior convictions in calculating his criminal history score. See Perez-Moran, 276 Kan. at 833-38.
Kacldey also argues that the trial court erred by using Kackley s other prior conviction of aggravated criminal sodomy to classify Kackley as a persistent sex offender. We have previously rejected this argument. See State v. Armstrong, 29 Kan. App. 2d 822, 824-25, 33 P.3d 246, rev. denied 272 Kan. 1420 (2001) (trial court may classify defendant as persistent sex offender based upon one prior sex offense and include different prior sex offenses from same case in defendant’s criminal history score); K.S.A. 2003 Supp. 21-4704(j). The trial court committed no error in calculating Kackley’s criminal history score.
Did the Trial Court Violate Kackley’s Sixth Amendment Right by Imposing an Increased SentenceP
Finally, Kackley argues the trial court violated his right under the Sixth Amendment to the United States Constitution by imposing an increased sentence based upon his prior criminal history. He claims his classification as a persistent sex offender should have been alleged in the complaint and proven to a jury beyond a reasonable doubt. He relies upon Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
In State v. Moore, 274 Kan. 639, 653-54, 55 P.3d 903 (2002), our Supreme Court noted the defendant’s prior and current con victions were defined by statute as sexually violent crimes and held the trial court’s decision to double the defendant’s sentence under K.S.A. 2003 Supp. 21-4704(j) did not violate Apprendi.
We are duty bound to follow Kansas Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Jackson, 30 Kan. App. 2d 288, 299, 41 P.3d 871 (2002). Kackley has not demonstrated that the Kansas Supreme Court is departing from its position in Moore. Accordingly, we must reject Kackley’s claim of error in sentencing.
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PlERRON, J.:
Shawn P. McCormick filed suit against the City of Lawrence and various police officers, claiming they had violated his rights by subjecting him to both an improper strip search and an unauthorized body cavity search. McCormick appeals the trial court’s denial of his petition on grounds that the action was commenced after the applicable statute of limitations had expired.
Due to the procedural history, the record in this case is quite sparse. The only account we have of the underlying facts comes from McCormick’s initial petition. According to McCormick, police officers “converged” on him on June 9, 1999, with a search warrant for his residence. McCormick was placed in the back of a patrol car, but was subsequently removed due to a “disturbance.” McCormick alleges he was pushed to the ground and kicked by several officers.
McCormick claimed that the officers ordered him to remove his clothing and he on the ground in a body bag. McCormick alleged that an officer used a portable vacuum to “vacuum, touch and probe” his genitals and buttocks. The officers allegedly told McCormick that he should get used to that type of treatment because it would occur frequently in prison.
McCormick filed a K.S.A. 12-105b(d) letter on June 4, 2002, which was denied by the City on September 23,2002. On September 24, 2002, McCormick filed the petition which is the subject of this appeal. In the petition, McCormick brought claims of an improper strip search and an unauthorized body cavity search. McCormick also claimed damages from a civil conspiracy.
The City of Lawrence and the named police officers (City) responded by filing a motion to dismiss. The City claimed that McCormick’s petition failed to state a claim upon which relief could be granted. Specifically, the City argued that McCormick’s petition was filed outside the relevant statute of limitations. The motion was never set for a hearing. In May 2003, the trial court decided the matter from the pleadings and ruled that McCormick’s petition was not timely filed and, thus, was barred by the applicable statute of limitations. McCormick timely appeals the trial court’s decision. We affirm.
McCormick presents this court with a detailed argument concerning the applicable statute of limitations. However, his claim may be distilled into one argument—K.S.A. 22-2523(a)(l)-(3), which by its terms incorporates K.S.A. 22-2521 and 22-2522, creates liabilities other than a penalty or forfeiture, meaning claims based on 22-2523 come under the auspices of K.S.A. 60-512(2) and grant a 3-year limitations period.
The standard of review for a motion to dismiss under K.S.A. 60-212(b)(6) requires us to determine whether, in the light most favorable to the plaintiff, and with every doubt resolved in tire plaintiff s favor, the petition states any valid claim for relief. University of Kansas Mem. Corp. v. Kansas Power & Light Co., 31 Kan. App. 2d 177, 179, 61 P.3d 741 (2003). Further, when the issue before us requires interpretation of a statute, we are faced with a question of law, and an appellate court’s review of a question of law is unlimited. In this case, review of the trial court’s ruling requires us to interpret the meaning and potential applicability of statutes of limitation. See Stark v. Mercantile Bank N.A., 29 Kan. App. 2d 717, 721, 33 P.3d 609 (2001).
Under K.S.A. 2003 Supp. 60-513, an action in tort would usually have a limitations period of 2 years, or 1 year if it is an action described in K.S.A. 60-514.
K.S.A. 22-2523 reads, in relevant part:
“(a) If liability is established in any civil action brought under the Kansas tort claims act for violation of subsections (a) or (b) of K.S.A. 22-2521, or K.S.A. 22-2522, the plaintiff shall be entitled to an amount equal to the sum of the following:
(1) Actual damages sustained by the plaintiff;
(2) punitive damages, if the violation was willful, wanton or malicious;
(3) the costs of the action, at the discretion of the court.”
K.S.A. 22-2521 addresses procedures to be followed in police strip searches. K.S.A. 22-2522 covers the procedure to be used when executing a body cavity search.
K.S.A. 60-512 reads, in relevant part: “The following actions shall be brought within three (3) years: ... (2) An action upon a liability created by a statute other than a penalty or forfeiture.”
The question we have before us is whether damages incurred due to violations of K.S.A. 22-2521 and K.S.A. 22-2522 fall under K.S.A. 60-512(2).
A liability is “created by statute” for purposes of K.S.A. 60-512(2) where liability for resultant damages would not arise but for the statute. A statute that merely provides a procedure for obtaining relief does not trigger K.S.A. 60-512(2); it must provide a new substantive right that does not otherwise exist at common law. Wright v. Kansas Water Office, 255 Kan. 990, 997, 881 P.2d 567 (1994).
A statute creates no liability, as regards the applicability of K.S.A. 60-512(2), unless it discloses an intention, express or implied, that from disregard of the statutory command a liability for resultant damages shall arise which would not exist except for the statute. Clearly, an action is not based upon a liability created by statute if the right is one which exists at common law in the absence of statute. Pecenka v. Alquest, 6 Kan. App. 2d 26, 28, 626 P.2d 802, rev. denied 229 Kan. 670 (1981).
For example, the obligation to afford women equal opportunity in employment did not exist at common law. That obligation was imposed by the passage of the Kansas Act Against Discrimination. See Wagher v. Guy’s Foods, Inc., 256 Kan. 300, 305, 885 P.2d 1197 (1994). Consequently, there is a liability created by statute, and K.S.A. 60-512(2) applies to cases where a woman claims she has been discriminated against at her place of employment. 256 Kan. at 308.
In general, strip searches are discussed within the framework of the common law under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. See Rankin v. Colman, 476 So. 2d 234, 236 (Fla. Dist. App. 1985). The Fourth Amendment constrains State search intrusions made in an improper manner. This includes procedures employed by the authorities to conduct a search involving intrusion into the body. 68 Am. Jur. 2d, Searches and Seizures § 250, p. 817. We believe it cannot be debated that the Fourth Amendment concept of protection against unreasonable search and seizure is implicitly ingrained in our common-law system of justice.
The Fourth Amendment, which codifies deeply held common-law notions of privacy, already grants substantive rights protecting against government intrusion in the form of inappropriate searches. The Kansas Tort Claims Act has made these rights actionable. Therefore, there is no new liability created by K.S.A. 22-2523. Given that fact, K.S.A. 60-512(2) and its 3-year statute of limitations would not apply to McCormick’s situation. The action would have a 1- or 2-year limitation period. Accordingly, the trial court did not err by granting the City’s motion to dismiss.
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Marquardt, J.:
Cincinnati Insurance Company (Cincinnati) appeals the trial court’s grant of summary judgment to Carolyn Narron, who sought underinsured motorist (UIM) coverage from her Cincinnati automobile insurance policy. We reverse.
In January 1998, Narron was driving a vehicle owned by her parents, Milbum and Mildred Chestnut. Narron’s parents were passengers. The vehicle was struck by a vehicle driven by Arnold Pinto, and it is undisputed that Pinto was solely liable for the accident. Mildred Chestnut was killed. Narron suffered severe injuries. Narron’s medical bills are estimated to be in excess of $283,332.
Pinto’s Farmers Insurance Company (Farmers) policy had limits of $100,000 per person and $300,000 per occurrence. Narron received $100,000 from the Farmers policy. The Chestnuts were insured by St. Paul Fire & Marine Insurance Company (St. Paul) with a UIM policy limit of $300,000 per occurrence. St. Paul paid $200,000 to Mildred’s estate. Narron received $100,000 from St. Paul.
Narron, an insurance agent, sold herself an insurance policy with Cincinnati which had UIM coverage of $300,000 per accident. Narron believed that she would receive $300,000 if she was involved in an accident with an underinsured driver and if her injuries warranted the payment.
Narron made a claim with Cincinnati under the UIM portion of her insurance policy. In October 1998, Cincinnati advised Narron that it believed the UIM coverage in her insurance policy was excess over any other applicable UIM coverage. Cincinnati believed that St. Paul was the primary UIM insurer. Cincinnati cited the case of Farmers Ins. Co. v. Prudential Property & Cas. Ins. Co., 10 Kan. App. 2d 93, 692 P.2d 393 (1984), rev. denied 237 Kan. 886 (1985), to support its claim.
Narron responded by filing suit against Cincinnati. In her petition, Narron claimed that Cincinnati wrongly denied her claim for UIM benefits. Narron asked tire trial court to award her $300,000 plus attorney fees.
Following the initial discovery process, Narron and Cincinnati filed motions for summary judgment. After a hearing, the trial court concluded that the excess-escape clause contained in Cincinnati’s UIM coverage would not apply in this case because the damages were so severe and would leave the insured uncompensated for injuries from the accident. The trial court concluded that Cincinnati should pay Narron $300,000 and awarded Narron $120,000 in attorney fees. Cincinnati timely appeals.
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. In order to preclude summary judgment, the facts subject to the dispute must be material. 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. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Underinsured Motorist Coverage
Underinsured motorist coverage is intended to provide compen sation to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured or under-insured and not financially responsible, cannot be made to pay for damages. The underinsured motorist statute is to be liberally construed to provide a broad protection to the insured against all damages resulting from bodily injuries that are caused by an automobile accident and arise out of the ownership, maintenance, or use of the insured motor vehicle, where those damages are caused by the acts of an underinsured motorist. Rich v. Farm Bur. Mut. Ins. Co., 250 Kan. 209, 215, 824 P.2d 955 (1992).
The underinsured motorist coverage protects the named insured wherever he or she may be, whether in the described vehicle, another owned vehicle, a nonowned vehicle, or on foot. This is true unless the insurance company expressly limits the scope of the UIM coverage. See Farmers Ins. Co. v. Gilbert, 14 Kan. App. 2d 395, 403, 791 P.2d 742, aff'd as modified 247 Kan. 589, 802 P.2d 556 (1990).
K.S.A. 40-284(b) reads:
“Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.”
K.S.A. 40-284(d) reads:
“Coverage under the policy shall be limited to the extent that the total limits available cannot exceed the highest limits of any single applicable policy, regardless of the number of policies involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid or vehicles involved in an accident.”
The words “legally entitled to recover as damages” mean that the insured must be able to establish fault on the part of the underinsured motorist which gives rise to the damages and to prove the extent of those damages. Winner v. Ratzlaff, 211 Kan. 59, 64, 505 P.2d 606 (1973).
Cincinnati’s Policy
On appeal, Cincinnati argues that its policy provides excess coverage and the language of its policy, when applied to the underlying facts of this case, rendered its coverage excess, with the St. Paul policy owned by the Chestnuts being primary. Cincinnati argues that since its coverage is excess, no UIM benefits are due to Narron.
The interpretation of an insurance policy, like the construction of any written instrument, is a question of law. Whether an ambiguity exists in an insurance policy is similarly a question of law to be determined by the trial court. The appellate court’s review of conclusions of law is unlimited. Levier v. Koppenheffer, 19 Kan. App. 2d 971, 976, 879 P.2d 40, rev. denied 255 Kan. 1002 (1994).
In construing an insurance policy, the whole document must be considered in order to ascertain the intention of the parties. Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. When an insurance policy is not ambiguous, the court’s function is to enforce the contract as made. To be ambiguous, the contract must contain provisions or language of doubtful or conflicting meaning. American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, 739-40, 658 P.2d 1015 (1983).
An excess-escape clause limits liability to tire excess damages not covered by other insurance or to escape it altogether if there is no excess due above the limits of other policies. Farmers Ins. Co. v. Prudential Property & Cas. Ins. Co., 10 Kan. App. 2d 93, 95, 692 P.2d 393 (1984), rev. denied 237 Kan. 886 (1985). Narron’s Cincinnati insurance policy contains a section entitled “Other Insurance.” It reads:
“If there is other applicable similar insurance available under more than one policy or provision of coverage:
“1. Any recovery for damages for bodily injury sustained by a covered person may equal but not exceed the higher of the applicable limit for any one vehicle under this insurance or any other insurance.
“2. Any insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance.
“3. We will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits.”
Cincinnati maintains that since Narron was injured while operating the Chestnuts’ vehicle, the excess-escape clause is activated and Narron may recover benefits only if Cincinnati’s UIM limits are greater than the collectible coverage available under the Chestnuts’ St. Paul policy.
On the other hand, Narron argues that Cincinnati’s interpretation of the policy language leaves her without coverage, creating an unintended absurdity. Narron is offended by the idea that she should have competed with her father over the UIM benefits available from St. Paul. Narron specifically argues that Cincinnati’s “other insurance” clause makes Cincinnati’s UIM coverage primary as to her. Narron believes that St. Paul’s UIM benefits were excess as to her, since she did not own the vehicle that was involved in the accident. Essentially, Narron contends that while St. Paul and Cincinnati argue that they are excess, it leaves her without any coverage at all.
In Progressive Casualty Ins. Co. v. Farm Bureau Mut. Ins. Co., 27 Kan. App. 2d 765, 767, 9 P.3d 565, rev. denied 270 Kan. 899 (2000), this court noted the “persuasive authority” which holds that the insurer of a vehicle involved in a collision has primary UIM coverage for a passenger of that vehicle, with the insurer of a passenger providing excess coverage. In coming to this conclusion, the panel relied on State Farm Mutual Auto Ins. Co. v. Powers, 169 Vt. 230, 732 A.2d 730 (1999).
Powers was a passenger in a car driven by Darren Smith when they were involved in an accident. Powers received coverage up to the policy limit from the hable driver. Powers then filed UIM claims with the insurance companies who insured Powers, Powers’ family, and Smith. All of the policies contained “other insurance” clauses which are similar to the ones at issue in the case currently before this court. The Vermont Supreme Court was faced with the question of which company was primary as to Powers. 169 Vt. at 234-35.
In making its decision, the Vermont court noted that courts generally conclude the policy issued to the owner of the vehicle in volved in the accident provides the primary UIM coverage, meaning that the issuer of the policy is liable up to the policy limits. The court specifically noted that it was not concerned insurers would attempt to provide only excess coverage in an attempt to avoid UIM liability. The court believed that in situations where all of the applicable policies purported to provide only excess coverage, that coverage will be deemed to be primary and thus shared pro rata among the insurers. 169 Vt. at 236-38.
Where two primary policies both contain excess “other insurance” clauses, the excess clauses are generally treated as mutually repugnant and the loss is pro rated between the insurers. 15 Couch on Insurance 3d § 219:47 (2000). However, where a vehicle owner’s policy and a policy providing nonowned vehicle coverage to the driver have conflicting excess “other insurance” clauses, the vehicle owner’s policy is deemed primary and the driver’s policy excess. 15 Couch on Insurance 3d § 219:48.
It seems clear that in cases where there are two “other insurance” clauses, the policy covering the car owner is primary, with the driver’s policy acting as excess coverage. See Progressive Casualty Ins. Co., 27 Kan. App. 2d at 767. St. Paul’s policy in this case was the primary coverage; thus, Narron’s UIM benefits would be excess coverage.
However, that does not end our inquiry. The excess-escape provision in Narron’s policy indicates that its coverage would be excess over any “collectible” insurance. On appeal, Narron contends that the first $200,000 from St. Paul was not “collectible insurance” to her because it was a primaiy coverage payment to Milburn Chestnut after the death of his wife. Thus, Narron argues that the Cincinnati UIM coverage cannot be excess because there was not any other collectible insurance.
If an insurance policy is clear and unambiguous, the words are to be taken and understood in their plain, ordinary, and popular sense, as an average or reasonable person with ordinary understanding would construe them, when used to express the purpose for which they were employed in the policy. Clark v. Prudential Ins. Co., 204 Kan. 487, 492, 464 P.2d 253 (1970).
“Collectible” has been defined as: “Debts, obligations, demands, liabilities that one may be made to pay by means of legal process.” Black’s Law Dictionaiy 263 (6th ed. 1990). “Collectible” insurance is directed to a policy which is legal and valid, as distinguished from one which is invalid such as for fraud or uncollectible such as for insolvency. The insurance policy must be collectible at the time of the accident. State Farm Mutual Insurance Company v. Vines, 193 So. 2d 180, 182 (Fla. Dist. App. 1966). The word “collectible” in an insurance policy does not refer to the actual payment of a sum of money but instead refers to the existence of other applicable and available insurance coverage based on the particular claim in question. Bernard Lumber v. Louisiana Ins. Guar., 563 So. 2d 261, 265 (La. App. 1990).
Narron’s contention that the St. Paul insurance was not collectible to her is not supported by any authority. The UIM benefits from St. Paul were collectible insurance as to Narron, since the coverage was available to her under the policy. Given that the St. Paul and Farmers policies were collectible insurance as to Narron, we conclude that the Cincinnati policy is excess insurance. Our question then is whether Cincinnati has any obligation to Narron via this excess insurance provision.
Cincinnati’s policy states that in cases of bodily injury, coverage may equal but not exceed tire limit of any policy of insurance which is involved in the insurable event. Narron’s policy has a $300,000 limit on UIM coverage. It is also undisputed that the Chestnuts’ St. Paul policy has an identical $300,000 limit. Thus, under tire plain language of the policies, the Cincinnati UIM coverage would apply only if Narron did not have access to $300,000 in collectible insurance.
Narron argues that she paid for greater coverage than what was guaranteed to her by K.S.A. 40-284(b) and (d). However, she cannot escape the language of her policy, which clearly requires that if there is “other applicable similar insurance,” recovery is capped at the “higher of the applicable limit for any one vehicle under this insurance or any other insurance.” In addition, we believe that much of Narron’s argument is founded on the mistaken belief that the Cincinnati policy is primary as opposed to excess coverage.
Anti-Stacking
Stacking is the right of a claimant to pool coverage under two or more policies to satisfy a loss that exceeds the coverage of any one of the policies. The basic difference between the concept of stacking and the operation of “other insurance” clauses is that “other insurance” clauses address rules for determining responsibility if more than one policy applies, while stacking addresses whether more than one coverage which would otherwise be applicable should, in fact, be applied at all. 15 Couch on Insurance 3d § 219:2.
“Stacking” is the practice of obtaining insurance loss payments on duplicate coverages. It is the ability of an insured to recover under two or more endorsements for a single loss suffered by the insured. McNemee v. Farmers Insurance Group, 228 Kan. 211, Syl. ¶ 2, 612 P.2d 645 (1980). K.S.A. 40-284(d) limits coverage to the highest limits of any single applicable policy and is a codified antistacldng provision. The “other insurance” clause of Narron’s policy also contains a clause which limits her recovery to the applicable limit for any one vehicle.
Cincinnati argues that since the St. Paul and Cincinnati policies carried a $300,000 cap on UIM benefits, $300,000 is the highest total amount that Narron can recover.
In its journal entiy, the trial court noted that it did not believe this was a stacking case. We disagree. We have already concluded that Cincinnati’s UIM coverage was excess over the UIM coverage in the Chestnuts’ St. Paul policy. We now find that Narron’s total available recovery must be capped at $300,000, as this is the UIM cap in both applicable insurance policies.
We understand that Narron believes she is entitled to greater benefits since she paid insurance premiums. We also understand that Narron was involved in a devastating accident. However, the language of the policy controls. Cincinnati’s UIM benefits are excess over any collectible insurance. Narron had access to $300,000 in collectible insurance from St. Paul and Farmers. K.S.A. 40-284(d) and the language of Narron’s policy mandate that Narron’s potential recovery be capped at $300,000. Therefore, Narron is not entitled to receive any additional benefits from Cincinnati.
Attorney Fees
In her original petition, Narron asked the trial court to award her attorney fees pursuant to K.S.A. 40-256 and/or K.S.A. 40-908. It does not appear that the trial court made an overt finding on the issue of bad faith. However, the trial court awarded Narron attorney fees in the amount of $120,000.
On appeal, Cincinnati maintains that it had just cause in denying Narron’s claim. Cincinnati disputes the idea that Narron is entitled to attorney fees simply because she prevailed in front of the trial court. In the alternative, Cincinnati argues that the $120,000 award is unreasonable and excessive.
The issue of whether the trial court had the authority to impose attorney fees under a particular statute is a question of law over which appellate review is plenary. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
K.S.A. 40-256 reads, in relevant part:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201 . . . if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs.”
It has been held that whether attorney fees are to be allowed depends upon the facts and circumstances of each particular case. Where the only issue between the parties is a factual dispute with respect to coverage under an insurance policy, and the insurer has refused to pay the full amount of the insured’s loss for such reason, the phrase “without just cause or excuse” means a frivolous and unfounded denial of liability. However, if there is a bona fide and reasonable factual ground for contesting the insured’s claim, there is no failure to pay without just cause. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 564-65, 470 P.2d 756 (1970).
Generally, an award of attorney fees is not warranted if the issues in the cause are raised in good faith. See Garrison v. State Farm Mut. Auto. Ins. Co., 20 Kan. App. 2d 918, 931, 894 P.2d 226 (1995).
After reviewing the record on appeal, we do not believe that Cincinnati acted in bad faith. Instead, we believe that Cincinnati made a good faith denial based on applicable statutes and case law as well as the language of Narron’s policy. Since Cincinnati did not act in bad faith, K.S.A. 40-256 does not apply, and Narron is not entitled to attorney fees.
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Malone, J.:
Jimmy R. Miller s probation for residential burglary was revoked, and he was ordered to serve his underlying prison term. On appeal, Miller claims that the district court failed to state its reasoning with particularity for refusing to assign him to community corrections pursuant to K.S.A. 2003 Supp. 22-3716(b).
On January 24, 2003, Miller pled guilty to two counts of residential burglary. At the time the burglaries were committed, Miller was on parole, and he had previously been convicted of residential burglary. Pursuant to K.S.A. 2003 Supp. 21-4704(1), Miller’s sentence for the new burglaries was presumptive imprisonment. However, pursuant to the plea agreement, both parties recommended an assignment to community corrections rather than prison.
On March 7, 2003, Miller received a sentence of 27 months and was granted a downward dispositional departure to probation for 24 months. The district court ordered that Miller s probation be supervised by court services even though both parties recommended community corrections.
On March 21, 2003, the State filed a motion to revoke probation because Miller had failed to report to court services and he had been using illegal drugs daily since his sentencing. Miller stipulated to the State’s allegations. Miller asked the' district court to assign him to community corrections for more intensive supervision. However, the district court revoked Miller’s probation-and ordered Miller to serve his underlying prison sentence.
Miller timely appeals.
Miller claims that the district court erred when it ordered him to serve his underlying prison term without assigning him to community corrections first, as required by K.S.A. 2003 Supp. 22-3716(b).
K.S.A. 2003 Supp. 22-3716(b) states 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.....The court may require an offender for whom a violation of conditions of release or assignment or a nonprison sanction has been established as provided in this section 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 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.” (Emphasis added.)
“Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. [Citation omitted.]” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
At the probation revocation hearing, it appears that the district court believed that the provisions of 22-3716(b) do not apply if the original sentence was a departure. The district judge stated, “The rules, the statutory provisions [about community corrections] that [Miller’s attorney] is relying upon in his argument I believe do not apply when a dispositional departure is granted.” On this point, the district court was mistaken. Despite the district court’s belief to the contrary, the provisions of22-3716(b) apply even if the original sentence was a departure.
In Miller’s case, the district court could only forego assigning Miller to community corrections by finding and setting forth with particularity the reasons that the safety of the public would be jeopardized or that Miller’s own welfare would not be served by such an assignment. In ordering that Miller serve his underlying prison sentence, the district court stated, “[Mr. Miller] received a significant break from the Court at time of sentencing by being granted not only a dispositional departure, but being assigned to court services. And Mr. Miller was unable to make it from the courthouse to court services, a half block [before violating probation].” The State argues that these comments, referring to Miller’s significant drug problem, satisfied the required finding that community corrections would not serve Miller’s own welfare.
Cases which have construed a requirement of particularized findings in other provisions of the criminal code provide guidance in interpreting the relevant language of K.S.A. 2003 Supp. 22-3716(b). In State v. Jones, 30 Kan. App. 2d 210, 41 P.3d 293 (2001), the issue was whether Jones’ probation term had been properly extended pursuant to K.S.A. 2000 Supp. 21-4611(c)(5). The statute required that in order to extend a term of probation, the district court must find and set forth with “ particularity the reasons for finding that the safety of the members of the public will be jeopardized or that the welfare of the inmate will not be served by the length of the probation terms provided’ ” in the statute. 30 Kan. App. 2d at 213.
In Jones, the district court had extended Jones’ probation “ ‘for the reasons set forth in the motion for extension of probation.’ ” The reasons listed in that motion included: drug test failure, failure to maintain employment, and failure to complete counseling. 30 Kan. App. 2d at 213. In concluding that Jones’ probation term had been improperly extended, the court stated: “The district court’s brief statement falls short of the statute’s requirement of setting forth with particularity the reasons for finding the safety of the public will be jeopardized or the welfare of the inmate will not be served by the shorter period of probation.” 30 Kan. App. 2d at 214. The court remanded the case for resentencing for the district court to malee the findings required by statute or to release Jones from probation. 30 Kan. App. 2d at 214.
In State v. Huskey, 17 Kan. App. 2d 237, 834 P.2d 1371 (1992), Huskey was denied a motion to modify his sentence pursuant to K.S.A. 1989 Supp. 21-4603(4)(a). The statute required that
“within 120 days after a sentence is imposed . . . the court . . . shall modify such sentence if recommended by the Topeka Correctional Facility—East unless the court finds and sets forth with particularity the reasons for finding that the safeiy of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.”
The court held that the statement by the sentencing court that the case involved drugs and stolen antique guns was insufficient to deny Huskey’s motion for modification. The court concluded: “When something is to be set forth with particularity, it must be distinct rather than general, with exactitude of detail, especially in description or stated with attention to or concern with details.” 17 Kan. App. 2d 237, Syl. ¶ 2.
Here, tire district court noted that Miller had failed to report to court services and had been using illegal drugs daily since being placed on probation. The district court did not, however, specifically discuss how these reasons would jeopardize the public’s safety or how Miller’s welfare would not be served by an assignment to community corrections. The State argues that assigning Miller to community corrections would endanger his welfare due to his chronic drug use and that this determination was implicit in the district court’s reasoning. However, the relevant cases make it clear that an implicit determination is not enough when particularized findings are required by statute.
Before sending Miller to prison, the district court was required to expressly set forth with particularity the reasons that the safety of the public would be jeopardized or that Miller s own welfare would not be served by assigning him to community corrections. The district court’s generalized comments at the probation revocation hearing fall short of satisfying the statutory requirements.
Finally, we note that the record reflects that Miller had been assigned to community corrections in a prior case. However, the provisions of 22-3716(b) apply “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.” (Emphasis added.) K.S.A. 2003 Supp. 22-3716(b). Thus, the district court must consider assigning Miller to community corrections in this case even though he was assigned to the program in a prior case.
The district court’s order revoking Miller’s probation and ordering him to serve his underlying prison sentence is reversed. The case is remanded for a hearing for the district court to either make the particularized findings required by K.S.A. 2003 Supp. 22-3716(b) or to assign Miller to community corrections.
Reversed and remanded with directions. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellee brought an action in the court below to recover damages for personal injuries alleged to have been suffered due to the careless and negligent driving of an automobile by the appellant. Appellant answered by general denial and further alleged that plaintiff’s injuries, if any, had been caused by plaintiffs own negligence. The reply put the case at issue.
A trial to court and jury resulted in a general verdict in favor of tire plaintiff in the sum of $10,500. No special questions were submitted to the jury. The trial court overruled the defendant’s motion for new trial and also a motion for judgment notwithstanding the verdict. Defendant has appealed to this court.
We shall continue to refer to the parties as plaintiff and defendant.'
The accident which gave rise to this action occurred at the in tersection of Santa Fe Drive and 76th street in Overland Park, Johnson County. Santa Fe Drive is a north and south street and 76th street runs east and west. The streets intersect at approximately right angles. It is established that there were no stop signs at the intersection, and further that on the northeast corner of the intersection a high hedge ran from the east line of Santa Fe along 76th street quite effectively obscuring the north view of cars approaching the intersection on 76th street. Likewise, drivers approaching from the north on Santa Fe could not see automobiles approaching from the east on 76th street.
From the testimony of the two drivers the accident involved in this appeal happened as follows:
Plaintiff was driving a Studebaker automobile west on 76th street approaching Santa Fe Drive at approximately 4:15 p. m. on May 28, 1955. She was unfamiliar with the intersection, but finding that she could not see cars approaching from the north on Santa Fe, stopped and eased out trying to see up the street to the north. Her car had a standard transmission and she had placed the car in low and proceeded at a speed of three or four miles per hour. She did not see defendant’s car until her car was entering the northwest quadrant of the intersection when defendant drove her car in front of plaintiff’s car and the accident occurred. Defendant’s car was struck on the left side and skidded more than one hundred feet after the accident. Defendant contends she was knocked to one side by the force of the impact and lost control of her car, and that the skid márks showed the defendant’s car was skidding sideways. Plaintiff’s car seems to have stopped at the point of collision.
Defendant testified that she was driving a Mercury automobile and approached the intersection from the north on Santa Fe at a speed which she judged to be twenty-five miles per hour; that she knew of the hedge on the corner and that it was a bad corner to see around, and that she “couldn’t see around it.” That she slowed her car as she approached the corner at a point “fifty or maybe sixty or maybe seventy feet” from the corner; she looked both ways and resumed her speed, judged to be twenty-five miles per hour, as she entered the intersection; at no time before the collision did she see the plaintiff.
The above account of the testimony of the parties is somewhat superfluous in this appeal since the state of the record actually prevents this court from considering the question of whether the learned trial court was justified in approving the verdict of the jury and entering judgment for the plaintiff thereon. We do not intend to imply that we have doubt about the trial court’s action, however.
It should be noted first, that the defendant has not specified as error the overruling of her motion for new trial, and in her brief at no time seeks a new trial. Of course, this sharply limits our power to review the case.
In Lake Superior Lbr. Co. v. Homestead B. & L. Ass’n, 139 Kan. 565, 32 P. 2d 202, the syllabus reads as follows:
“Where no motion for a new trial is filed, review on appeal is limited to the question whether the judgment is supported by the pleadings and findings of fact, and inquiry will not be made as to whether the evidence supports the findings of fact.”
Since the order on the motion for new trial was not specified as error in the case at bar, it reaches this court as if no motion had been filed, since we cannot consider that motion. (See plethora of cases cited Hatcher’s Kan. Dig., Appeal & Error, §§ 175, 181; West Kan. Dig., Appeal & Error, § 719 [10].)
’ Actually, defendant only specified three errors on this appeal: (1) the overruling of the demurrer to plaintiff’s evidence; (2) the order allowing a slight amendment of plaintiff’s petition during the trial; and (3) the overruling of a motion for judgment notwithstanding the verdict.
The second assignment of error was a trial error, if any was committed, and is unavailable in the absence of a review of the motion for new trial, see authorities cited supra.
As to the third assignment of error, defendant misconceives the office and purpose of a motion for judgment notwithstanding the verdict. In G. S. 1949, 60-3119, our civil code defines such a motion as follows:
“Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.”
In G. S. 1949, 60-2918, the general verdict and special findings are defined and provided for, and the section closes with the sentence:
“When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.”
The last provision of our code has given rise to the most common use of the motion for judgment notwithstanding the verdict in our practice. It is a quite proper motion to direct the trial court’s attention to the right of a litigant to judgment based upon the special findings of the jury notwithstanding an adverse general verdict. There are hundreds of our cases in the books raising this question.
In other words, the motion for judgment notwithstanding the verdict in our own practice performs only the same office which that motion performed at common law. It reaches only the written record of the case, that is, the pleadings and verdict. As to the practice at common law, please see Scott and Simpson, Cases and Materials on Civil Procedure, p. 770. We have found none of our cases in which a disputed question of fact was considered under such a motion. Attention is directed to the cases of Grigsby v. Jenkins, 183 Kan. 594, 331 P. 2d 284, where Mr. Justice Wertz, speaking for the court, discussed a similar question, and Lord v. Hercules Powder Co., 161 Kan. 268, 167 P. 2d 299, in which the opinion of the court was written by Mr. Justice Wedell, the sixth paragraph of the syllabus reads as follows:
“Where a trial court is dissatisfied with a general verdict and probably with some of the special findings, the correctness of which is not challenged, it may not upon its independent consideration of the whole record, including the weighing of evidence, substitute its judgment for that of the jury, set aside the general verdict and the special findings, and render a judgment in favor of the other party. Under such circumstances the extent of its power is to grant a new trial.”
Defendant strenuously contends under her first assignment of error — the demurrer to plaintiff’s evidence — that the court should have withdrawn the case from the jury and given judgment in defendant’s favor. Defendant filed no motion for a directed verdict following the introduction of her own evidence and the closing of the case. She takes note of the recent case of Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295, in which this court in an unanimous opinion held that if defendant wished to insist on a demurrer to the plaintiff’s evidence after the same had been overruled and after defendant had introduced evidence, a motion for directed verdict must be filed to direct the trial court’s attention to the issue of law.
The defendant likewise agrees, as noted in the Durr case, that this court has always held that if defendant introduces evidence after an order overruling his demurrer to plaintiff’s evidence, the question of whether the case should have been withdrawn from the jury depends not upon the state of the plaintiff’s evidence at the time the defendant’s demurrer was lodged against it, but on the state of the evidence at the close of the case (see authorities cited in the Durr opinion). To say that the trial court can be reversed for submitting the case to the jury when no motion for a directed verdict has been interposed would be to contend for a violation of the fundamental rule of appellate procedure that the supreme court will not pass upon a question which was not submitted to the trial court.
Defendant suggests that her motion for new trial was sufficient to draw the trial court’s attention to the issue raised by the demurrer to the evidence. The contention would seem entirely untenable.
Defendant relies heavily upon the case of Ray v. Allen, 159 Kan. 167, 152 P. 2d 851, which involved an automobile collision at an intersection of streets in Wichita. Not only were the facts considerably different in that case, but there the trial court reserved its ruling upon defendant’s demurrer to plaintiff’s evidence not only until all of the evidence in the case was in, but until after verdict. None of the rules of proper procedure were therein violated, and this court quite rightfully affirmed the trial court’s sustaining of the demurrer (or motion for directed verdict).
Perhaps it might be noted that the demurrer to the evidence in this state as defined by G. S. 1949, 60-2909, Third, is not a demurrer to the evidence as that term was formally known to the common law. After a real demurrer to the evidence, the defendant was obliged to stand on his demurrer. If the demurrer was sustained, judgment was then rendered for defendant. If the demurrer was overruled, judgment was entered for the plaintiff. Like most civil codes, our code has abolished the old practice pertaining to demurrer to the evidence, although the name is retained. Our demurrer to the evidence is in fact _ a motion for a directed verdict, which could always be entered either at the end of opponent’s case, or at the close of the entire case, or on both occasions.
In Scott and Simpson, Cases and Materials on Civil Procedure, p. 618, the authors remark:
“In a few jurisdictions the demurrer to evidence is retained in name, but in substance it is essentially like a motion for a directed verdict.”
If defendant’s demurrer to the evidence were here for review, it would seem that defendant’s own evidence might be considered to have strengthened plaintiff’s case both on the issue of defendant’s negligence and upon the issue of due care by the plaintiff. However, in order to preserve the point for review, the objection to the case being submitted to the jury must have been renewed at the close of all of the evidence, Ziegelasch v. Durr, supra. In fact, any appeal to this court would seem to be from the order on the motion for a directed verdict.
In the fifth section of the Bill of Rights of the state constitution, it is said: “The right of trial by jury shall be inviolate.”
Such a jury trial presupposes the power of a trial judge to withdraw a case from the jury upon a point of law under proper procedure. (Diederich v. American News Co., [10th CCA] 128 F. 2d 144.)
However, a failure to properly preserve objections may prevent the entry of judgment contrary to the verdict of a jury even where a valid ground once existed. (See Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. ed. 879; and see Rule 50 of the Federal Rules of Civil Procedure.) The same general rules protect the trial by jury as preserved by the state constitution in the state courts as surround the trial under the United States Constitution in the federal courts.
The rule of the case of Ziegelasch v. Durr, supra, is not only indicated by the former decisions of this court, but almost universally followed in other jurisdictions. A few additional cases are as follows: McDonough v. United States, (8 CCA) 248 F. 2d 725; O’Malley v. Cover, (8 CCA) 221 F. 2d 156; 6551 Collins Avenue Corp. v. Mitten, (Fla.) 97 So. 2d 490; McCoy v. Scarborough, 73 Ga. App. 519, 37 S. E. 2d 221; Spikings v. Ellis, 290 Ill. App. 585, 8 N. E. 2d 962; Love v. Harris et al., 127 Ind. App. 505, 143 N. E. 2d 450; Olson v. Barnick, 245 Iowa 217, 61 N. W. 2d 733; Smith v. Pine, 234 Iowa 256, 12 N. W. 2d 236; Caple v. Amoss, 181 Md. 56, 28 A. 2d 566; Bondanza v. Matteucci, 59 N. M. 354, 284 P. 2d 1024; Apodaca v. Allison & Haney, 57 N. M. 315, 258 P. 2d 711; Wynne v. Allen, 245 N. C. 421, 96 S. E. 2d 422; A. Macaluso Fruit Co. v. Commercial Motor Freight, (Ohio) 57 N. E. 2d 692; Friedman v. Hill, (Okla.) 325 P. 2d 434; Pikeville Fuel Co. et al., v. Marsh, 34 Tenn. App. 82, 232 S. W. 2d 789; Farrow v. Proulx, 111 Vt. 274, 15 A. 2d 835; Daniels v. Morris, 199 Va. 205, 215, 98 S. E. 2d 694; and Lester A. York v. John P. James, 60 Wyo. 222, 148 P. 2d 596.
The judgment of the trial court is hereby affirmed.
Peice, J., concurs in the result. | [
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The opinion of the court was delivered by
Jackson, J.:
The dispute in this appeal is between two claimants in the estate of Myrtle I. Waugh, deceased. The appellant State Department of Social Welfare had its claim for $1,948.73 allowed against the estate on June 27, 1956. This claim was based upon assistance furnished to decedent during her lifetime and was apparently allowed as a fourth class claim. The claim of appellee Gordon M. Goodwin for funeral expenses amounting to $637.30 was heard by the probate court on August 29, 1956, and $400.00 of the claim was allowed as a first class claim with the balance of $237.30 being allowed as a claim of the fourth class. It is said that appellant opposed the allowance of the entire claim of ap-pellee as a claim of the first class on the ground that the estate herein was insolvent.
On September 13, 1956, appellee Goodwin filed his notice of appeal from the probate court to the district court from the order disallowing part of his claim as a claim of the first class. The pertinent part of said notice of appeal, as far as the questions now before this court reads:
“Now Therefore, this appellant, Gordon M. Goodwin, does hereby notify all persons concerned herein that he appeals from the order of the above entitled court entered on the 29th day of August, 1956, disallowing a portion of his claim, to-wit, $237.30 and interest as a claim of the first class and allowing said portion of his claim as a claim of the fourth class only. Take due notice thereof and govern yourselves accordingly.
(Signature of counsel.)
“Acknowledgment of Service
“The undersigned, the duly elected, qualified and acting Probate Judge of Montgomery County, Kansas, does hereby acknowledge service of tire above and foregoing Notice of Appeal this 13th day of September, 1956, for the adverse parties thereto.
/s/ Jay W. Scovel,
Probate Judge-pro tem.’ ”
The probate judge did not attempt to send notice of the taking of the appeal to any of the parties interested in the estate. On April 1, 1957, that day being the first day of the April term of the district court, Goodwin and the administratrix of the estate both appeared by their attorneys, and the Goodwin claim was set for trial in the district court on May 6, 1957. On May 6, the journal entry recites that Goodwin again appeared with his attorneys and the administratrix was represented by her attorneys; that the case was reassigned for trial on May 10, 1957. On the last date, Goodwin and the administratrix being present as-before, and there being no other appearances, Goodwin introduced his evidence. No other evidence was introduced, and the court allowed Goodwin’s claim in the entire amount of $637.30, as a first class claim against the Waugh estate.
On June 3,1957, the district court overruled a motion of the State Department of Social Welfare to set aside the judgment of the district coúrt, and the Department of Social Welfare now appeals from the order as to that motion and from the judgment of the district court.
The appellant first attacks the propriety of the appeal taken from the probate court. Despite the argument of the appellant, the court is of the opinion that the appeal was entirely valid. There is no question but that the appeal was timely made. Further, G. S. 1949, 59-2405, provided that:
“To render the appeal effective: (1) The appellant shall serve upon the adverse party or his attorney of record, or upon the probate judge for the adverse party, a written notice of appeal . . .” (Italics supplied.)
It will be noticed that the legislature has not provided that the probate court shall have any duty to notify the adverse parties of the filing of the notice of appeal. Reasons which would discourage a probate judge from voluntarily assuming such a duty may be readily imagined. There is a duty imposed upon all counsel interested in an estate in the probate court to keep watch of the records of such an estate, and this same duty would seem to be applicable to counsel for the various departments of the state government.
Our recent decisions would seem to show clearly that the notice of appeal in the case at bar was correctly served (In re Estate of Demoret, 169 Kan. 171, 218 P. 2d 225; In re Estate of Kruse, 170 Kan. 429, 226 P. 2d 835; and In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642).
In this case, the notice was as follows:
“Gordon M. Goodwin, does hereby notify all persons concerned herein . . .”
The probate judge acknowledged service “for the adverse parties thereto.” (See supra.)
The words “all persons concerned” would seem to be synonymous with “all adverse parties” as used in the statute.
The second ground urged by the appellant for the reversal of the judgment of the district court is that the "judgment was taken in default on a day other than the first day of the term of court when the appellee well knew and the record so shows that the State Department of Social Welfare was represented by an attorney.” Appellant cites Rule 48 of this court (G. S. 1949, 60-3827). There would seem to be little merit in this contention. The case was regularly set for trial, evidence was introduced, and the administratrix of the estate was represented at the trial. It will be noticed that this court has held often that the administrator represents all of the creditors of the estate. (See In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305; and Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
Virgil Gail Lawton, who is confined in the state penitentiary at Lansing, brings this original petition for a writ of habeas corpus, and alleges that he was convicted under the provisions of G. S. 1949, 21-2311 of the crime of possession of marijuana and sentenced to serve a term of from one to five years in the penitentiary for the first offense; that he was charged with having marijuana in his possession on or about December 17, 1957; that the trial and conviction of petitioner took place- in the district court of Montgomery county on February 1, 1958. Petitioner further alleges that the legislature during the session of 1957 enacted the uniform narcotic drug act (Laws 1957, Chap. 338), which became effective on July 1, 1957, and now appears as G. S. 1957 Supp. 65-2501, et seq. Petitioner further claims that the uniform narcotic drug act covers the whole field of the regulation of the narcotic drugs, the illegal use thereof, and is inconsistent with the earlier act, G. S. 1949, 21-2311; that the later act must be held to have repealed the earlier by implication. He particularly points out that under the uniform act the first offense for illegal possession of drugs is made only a misdemeanor, instead of a felony as provided in G. S. 1949, 21-2311.
Petitioner claims that his conviction and sentence is void since the statute under which he was convicted had been repealed and no longer exists.
The respondent admits all of the above facts, but denies petitioner s conclusions therefrom and particularly that Section 21-2311 was repealed by implication by the uniform narcotic drug act and maintains petitioner’s conviction is entirely valid.
Respondent’s principal argument to refute the contentions of the petitioner is that the old act did not cover physicians, druggists and others who were authorized to possess narcotic drugs and that the new uniform narcotic drug act only purports to regulate those persons who are authorized to use and possess narcotic drugs.
In the first place, G. S. 1949, 21-2311 did mention pharmacists, physicians, dentists and veterinary surgeons. It may be supposed that if these professional people had wrongfully used narcotic drugs, they might have been subject to prosecution under the old act. Moreover, upon a careful study, the assertion that the new act only covers such people proves to be incorrect. In G. S. 1957 Supp., 65-2501, we find definitions of certain words used in the act. Paragraph numbered (1) reads:
“ ‘Person’ includes any corporation, association, co-partnership, or one or more individuals.”
Paragraph numbered (13) reads as follows:
“ ‘Cannabis’ includes all parts of the plant Cannabis sativa L„ whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
and paragraph numbered (18) defines narcotic drugs as follows:
“ ‘Narcotic drugs’ means coca leaves, opium, cannabis, isonipecaine, amidone, isoamidone, ketobemidone and every other substance neither chemically nor physically distinguishable from them; any other drugs to which the federal narcotic laws may now apply; and any drug found by the state board of pharmacy and the state board of health, after reasonable notice and opportunity for hearing, to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine, from the effective date of determination of such finding by said state board of pharmacy and state board of health.”
In section 65-2502, we find:
“It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug except as authorized in this act.” (Italics supplied.)
In Section 65-2519, it is shown that upon conviction of a violation of the act for the first offense, the punishment is “by a fine of not less than one hundred dollars ($100) and not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not more than one year, or both such fine and imprisonment.” It will be noted that in this section, the penalties for subsequent convictions under the act are greatly increased.
The title of the uniform act as passed by the legislature, Laws of 1957, chapter 338, is as follows:
“An Act defining and relating to narcotic drugs, to make uniform the law with reference thereto, regulating the sale, as therein defined, and the dispensing and distribution of such narcotic drugs, declaring certain acts unlawful and prescribing penalties for violations thereof, and repealing sections 65-616 and 65-618 of the General Statutes of 1949.” (Italics supplied.)
This court has always held that where a later act of the legislature is irreconcilably repugnant to an earlier act on the same subject, the statute last enacted repealed the earlier act. In the case of Elliott v. Lochnane, 1 Kan. 126, the court said in the third paragraph of the syllabus:
“It is a rule without exception, that where two statutes are, in any respect, in both language and meaning, irreconcilably repugnant, the provisions of the statute last enacted repeal those of the former with which they conflict.”
Again, in State v. Ewing, 22 Kan. 708, the court speaking through Mr. Justice Brewer said:
“1. Section 4 of chapter 149 of the Laws of 1879, p. 270, works by implication a repeal of all prior enactments providing for the levy of a one-mill tax for the state annual school fund.
“2. Said section is not invalid by reason of conflict with section 16 of article 2 of the state constitution]” (syllabus)
To like effect, see Railway Co. v. Park, 66 Kan. 248, 71 Pac. 586; Miltonvale Rural High School v. Community High School, 153 Kan. 756, 113 P. 2d 1095; and Kimminau v. Common School District, 170 Kan. 124, 223 P. 2d 689.
It is suggested in the brief of amicus curiae that repeal by implication would be unconstitutional under Section 16 of Article 2 of the state constitution since the old act is not removed from the statute book as provided in that section. This 'court has held many times to the contrary. See State v. Ewing, supra; Kimminau v. Common School District, supra; State v. Ricks, 173 Kan. 660, 250 P. 2d 773.
Our view of the uniform narcotic drug act is strengthened by the cases from other jurisdictions. In the case of Rich v. State, 61 Okla. Cr. 148, 66 P. 2d 950, the Oklahoma Criminal Court of Appeals held that the uniform narcotic drug act repealed older statutes of Oklahoma providing for punishment for transporting narcotic drugs. The court said that while there was no provision in the uniform narcotic drug act prohibiting transportation, the uniform act covered the whole field, and the defendant could have been charged with unlawful possession of the drugs.
In State v. Economy, 61 Nev. 394, 130 P. 2d 264, the court held:
“Imposition of sentence undeK 1923 narcotic act on conviction of peddling narcotic drug known as marihuana was error, as sentence should have been imposed under uniform narcotic drug act, which impliedly repealed 1923 act.”
A like decision as to the effect of the uniform narcotic drug act upon prior statutes of the state of West Virginia was made by the Supreme Court of Appeals of West Virginia in State v. Hinkle, 129 W. Va. 393, 41 S. E. 2d 107.
We are of the opinion that there can be no question but that the defendant was wrongfully prosecuted and sentenced under the provisions of G. S. 1949, 21-2311, and that his detention in the state penitentiary by respondent is unlawful. However, it may be noted that the information against petitioner filed in the district court of Montgomery county specified no particular statute in charging petitioner with unlawful possession of marijuana. We also are of the opinion that the word “feloniously” as contained and used in the information can be regarded as surplusage; that when so read the information states an offense under the uniform act which was then in force. (The State v. Bailey, 107 Kan. 637, Syl. ¶ 3, 193 Pac. 354; State v. Williams, 141 Kan. 732, 741, 42 P. 2d 561.) After petitioner’s plea of guilty, the sentence of the court entered on February 1, 1958, purports to find petitioner charged under both “G. S. 1949, 21-2311 and section 14, chapter 331 (8), Laws of 1957,” and sentenced him to serve a term in the state penitentiary under section 21-2311. The last statute had been repealed, and the court was without power to sentence petitioner to the penitentiary upon the conviction of a first offense under Laws 1957, chapter 338, section 19. Nevertheless, a valid information had been filed against petitioner under the uniform act and he had pleaded guilty thereto.
Under the above circumstances the writ must issue to release the petitioner from the custody of respondent, but respondent is directed to turn, petitioner over to the sheriff of Montgomery county, if said sheriff shall claim custody of petitioner within ten days. The sheriff shall be empowered to bring petitioner before the district court of Montgomery county for sentence under the above mentioned information and plea of guilty filed in that court. (State v. Woodbury, 132 Kan. 22, 294 Pac. 928; Edwards v. Hudspeth, 159 Kan. 37, 151 P. 2d 698.)
Such sentence, if any, shall be made to begin as of February 1, 1958. (McCarty v. Hudspeth, 166 Kan. 476, 480, 201 P. 2d 658.)
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
In this original proceeding in habeas corpus petitioner seeks his release from the state penitentiary in which he is presently confined.
On May 12, 1955, in the district court of Rarber County, petitioner, being at the time represented by court-appointed counsel, entered his plea of guilty to the charge of grand larceny (theft of an automobile), and pursuant to G. S. 1949, 21-534, was sentenced to confinement in the state penitentiary for a period of not less than five years and not more than fifteen years.
On the same date his application for a parole was granted and he was placed on parole for a period of two years under certain terms and conditions not here important.
In the spring of 1956 petitioner got into trouble in the state of Oklahoma-and was returned by law-enforcement officers of that state to Barber County.
On April 23, 1956, the district court of Barber County revoked petitioner’s parole and directed execution of the sentence previously imposed. Pursuant to this order petitioner was taken to the penitentiary.
Petitioner appears to rely upon three grounds for his release from custody.
The first is that he was unlawfully returned to Kansas by the Oklahoma authorities and therefore the district court of Barber County had no authority to revoke his parole.
There is no merit to this contention. It has been held many times that the jurisdiction of a district court of this state to try a person on a charge of having committed a public offense does not depend upon how he came to be in this state, and the same rule, of course, applies to jurisdiction to revoke a parole. (Brandt v. Hudspeth, 162 Kan. 601, 605, 178 P. 2d 224; Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987, 340 U. S. 940, 95 L. Ed. 678, 71 S. Ct. 503; Stebens v. Hand, 182 Kan. 304, 306, 320 P. 2d 790.)
It is next alleged that the information was fatally defective in that it was so vague that petitioner was unable to prepare a proper defense, and that it did not contain the sworn statement of the complaining witness.
This contention is likewise without merit. The information to which petitioner entered his plea of guilty was clearly sufficient under the statute and the rule is well established that habeas corpus does not lie to review nonjurisdictional errors and irregularities leading up to judgment, and that complaints such as this cannot be considered in an application for a writ of habeas corpus. (Engels v. Amrine, 155 Kan. 385, 125 P. 2d 379; Buxton v. Amrine, 155 Kan. 440, 125 P. 2d 381, 317 U. S. 629, 87 L. Ed. 508, 63 S. Ct. 45; James v. Amrine, 157 Kan. 397, 140 P. 2d 362; Darling v. Hoffman, 180 Kan. 137, 299 P. 2d 594.)
Finally, it is contended that petitioner’s confinement is unlawful for the reason that the state failed to introduce evidence to prove his guilt.
This contention also is without merit. The record shows that petitioner was represented by counsel and was fully advised as to his rights. He entered a plea of guilty to the charge against him, and, under the circumstances, there was no occasion for the state to introduce evidence to prove the elements of the offense charged in the information. (Wilson v. Hudspeth, 166 Kan. 214, 216, 199 P. 2d 776; Curl v. Hoffman, 179 Kan. 153, 292 P. 2d 1118.)
It nowhere appears that any of petitioner’s rights have been violated. He was represented by counsel and entered a plea of guilty to the charge against him. He was granted a parole. ■ He violated its terms and conditions. The district court of Earber County had jurisdiction and authority to revoke his parole and to order his commitment to the penitentiary to serve the sentence previously imposed. Petitioner has shown no grounds justifying his release from confinement and his application for a writ of habeas corpus is therefore denied. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a judgment of the trial court refusing to direct an audit by a certified public accountant of the books and financial records of defendant Prince Hall Grand Lodge of Kansas at its own expense, and denying appointment of a receiver for defendant, as requested by plaintiffs.
This is the fourth appeal in this court involving defendant Grand Lodge. The previous appeals appear in our reports as Johnson v. Prince Hall Grand Lodge, 183 Kan. 141, 325 P. 2d 45; Hill v. Prince Hall Grand Lodge, 183 Kan. 148, 325 P. 2d 334; State v. Turner, 183 Kan. 496, 328 P. 2d 733. They fully set forth the details of the organization of the Grand Lodge and its officers and it is unnecessary to extend this opinion by repeating that information.
We shall not concern ourselves with trial errors since plaintiffs have not in their abstract specified as error the trial court’s order overruling their motion for new trial even though it was included in their notice of appeal. Neither do they raise it in their briefs in the statement of questions involved. Under such circumstances, any appeal from the trial court’s order overruling the motion for new trial is considered to have been abandoned and the order will not be reviewed. (Davidson v. McKown, 157 Kan. 217, 221, 139 P. 2d 421; Reger v. Sours, 181 Kan. 423, 311 P. 2d 996.) Our remaining responsibility, therefore, is to determine whether the trial court’s findings are supported by competent evidence and if they are, then the trial court’s judgment will not be disturbed. (Redman v. Mutual Benefit Health & Accident Ass’n, 183 Kan. 449, 457, 327 P. 2d 854.)
The record discloses that defendant Gaskin was permanently enjoined by the trial court from commingling his personal funds with those of the Grand Lodge in a single bank account and from drawing checks on any account of the Grand Lodge in payment of his personal obligations, from which order no- appeal was taken. By reason of this activity on the part of Gaskin plaintiffs sought the appointment of a receiver for the Grand Lodge together with the appointment of a certified public accountant to audit its books and financial records. The application for injunctive relief stated that Gaskin had failed to make timely and required reports to the Grand Treasurer, who, in turn, had similarly failed to make reports to the individual members of the local lodges regarding the financial status of the Grand Lodge. This failure affected certain benevolent interests of plaintiffs by reason of their participation in a widows’ and orphans’ fund of the Grand Lodge whereby upon the death of a member in good standing in a local lodge, his beneficiaries would receive $150.00 death benefit and $50.00 burial benefit. Other allocations of the local lodge dues paid to the Grand Lodge were shown but itemization thereof is not necessary to a determination of this appeal.
The trial court in its journal entry made the following pertinent findings of fact:
“The Court further finds that the defendant Chester Gastón has comingled personal funds with the funds of the Grand Lodge, and that the said defendant should be permanently enjoined from comingling Grand Lodge funds with his own funds and from writing cheeks or drawing money against Grand Lodge funds for personal bills or debts.
“The Court further finds that at the Annual Meeting of the Grand Lodge held this year the Constitution of the Grand Lodge was amended to prohibit any officer of the lodge from comingling lodge funds with any other funds, and to require that the Grand Secretary make deposits quarterly with the Grand Treasurer of the lodge, and further to require that the books of the lodge be audited annually by a public accountant. And the Court further finds that in view of these changes no further action need be taken by the Court with respect to these matters as complained of in plaintiffs’ petition.
“The Court further finds that for a number of years the amount of dues collected for the General Fund has never been sufficient to pay the expenses of the Grand Lodge, that before the end of the Annual Meeting of the Grand Lodge an estimate is made of the funds needed to make up such deficit, and the sum required is transferred from the Widows’ and Orphans’ Fund and the Burial Fund to the General Fund to defray Grand Lodge expenses. The Court further finds that these transfers were made with Grand Lodge approval by virtue of Article X, Section 2, of the Constitution, but the Court further finds that Article IX, Section 6, Clause 1, of the Constitution provides that the allowances set out therein to the Grand Custodian shall cover the entire expense of the two departments. The Court further finds that the Widows’ and Orphans’ Fund and the Burial Fund constitute trust funds to be used for the specific purposes for which the funds were created and for which they were paid in by the members or their beneficiaries, and that the defendants should be enjoined from further transfers from the Widows’ and Orphans’ Fund and the Burial Fund to defray Grand Lodge expenses.
“The Court further finds that although plaintiffs have requested an audit by a certified public accountant of the accounts and books of the defendant Grand Lodge, and particularly the accounts of the Grand Secretary, it is not clear that a shortage exists in any of these accounts, one audit by a public accountant has already been paid for by the lodge, and the changes made by the Grand Lodge in its Constitution and the order of the Court made herein should prevent a recurrence of the things complained of by plaintiffs in their petition. The Court further finds that the cost of such an audit would far exceed any probable recovery from the Grand Secretary even if a shortage were revealed, no useful purpose would be served by another audit insofar as the Grand Lodge is concerned, and that the plaintiffs’ request for an audit should be denied.”
The trial court’s conclusions of law, in appropriate part, and the judgment read:
“It is Further by the Court Considered, Ordered, Adjudged, and Decreed, that the restraining order heretofore entered by this Court on the 12th day of April, 1957, continue in full force and effect, and that the defendant Chester Gaskin be and he hereby is permanently enjoined from comingling Grand Lodge funds with his personal funds and from writing checks or drawing money against Grand Lodge funds for any personal bills or debts.
“It Is Further Considered, Ordered, Adjudged, and Decreed by the Court, that the Widows’ and Orphans’ Fund and the Burial Fund of the Prince Hall Grand Lodge of Kansas are trust funds, and its officers be and they hereby are permanently enjoined and restrained from making further transfers from the Widows’ and Orphans’ Fund and the Burial Fund to any other fund of ihe Grand Lodge for the purpose of defraying Grand Lodge expenses.
“It Is Further by the Court Considered, Ordered, Adjudged, and Decreed, that the request of the plaintiffs for the appointment of a receiver and for an audit of the Grand Lodge books and accounts by a certified public accountant be and the same hereby is denied.
“It Is Further by the Court Considered, Ordered, Adjudged, and Decreed, that the defendant Grand Lodge pay the costs of this action.”
Our attention has been directed to a memorandum opinion mailed by the trial court to counsel for the parties but a careful study and comparison of the memorandum opinion with the journal entry shows no discrepancy between them, and that point requires no further attention.
The plaintiffs first complain that the trial court erred because of its judgment refusing to appoint a certified public accountant. In view of the trial court’s statements in the journal entry, which are supported by the testimony of a public accountant who was a witness for plaintiffs, as well as by testimony of a second public accountant who was a witness for defendants, we agree with the trial court’s determination that another audit of the books and financial records would be a useless- gesture. Plaintiffs stress a statement by the trial court, “. . . it is not clear that a shortage exists in any of these accounts. . . .,” but this contention can be disposed of very simply by our familiar rule that a presumption of validity attaches to a judgment of a trial court until the contrary is shown and before this court on appellate review will set aside a judgment, error therein must affirmatively be made to appear. Authority for this rule and citations in support thereof are found in B & S Enterprises v. Rudd, 182 Kan. 710, 717, 324 P. 2d 515.
Much that has already been said herein applies to the other point of error contended by plaintiffs which is that the trial court erred in refusing to appoint a receiver to handle the finances of the Grand Lodge. In support of this contention plaintiffs, among other authorities, cite Geiman-Herthel Furniture Co. v. Geiman, 160 Kan. 346, 355, 161 P. 2d 504, where this court ordered a receiver to be appointed. However, that case presented circumstances which affirmatively showed error in the trial court’s determination not to appoint a receiver. The general rule, applicable here, and stated in the Geiman case (p. 355) is that courts of equity may exercise judicial discretion in the appointment of a receiver and appellate courts are not inclined to disturb such exercise of discretion in the absence of an abuse thereof. We are unable to see where in our present case it has been affirmatively shown that the trial court abused its discretion in its determination of either question raised herein.
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The opinion of the court was delivered by
Price, J.:
This is an action by landowners for damages arising out of the alleged negligent operation of defendant’s hot-asphalt plant.
The amended petition (hereafter referred to as petition) seeks both actual and punitive damages. Defendant’s demurrer to each cause of action on the ground that each fails to state facts sufficient to constitute a cause of action in favor of plaintiffs and against defendant was overruled, and it has appealed. The sole question presented is the correctness of that ruling.
Briefly summarized, the first cause of action (pertaining to actual damages) of the petition alleges the following:
At all times material, plaintiffs were the owners of and resided upon their eighty-acre farm near Ottawa in Franklin county. In the spring of 1955 defendant company, in connection with a contract .held by it for the construction and resurfacing of certain highways in Franklin and Douglas counties, installed and commenced to operate a hot-asphalt plant for the manufacture of paving material. The plant was located approximately 2,000 feet directly south of plaintiffs’ house and approximately 150 feet from the south line of their farm. From April until November of 1955 defendant operated its plant eight to ten hours per day except on Saturday afternoons and Sundays. Vast quantities of limestone dust were emitted by the plant to heights of from 50 to 150 feet, thus permitting the prevailing south winds to carry the powdery dust over and onto plaintiffs’ farm land and dwelling, making life generally unbearable for them and resulting in various items of damage, such as expense of employing outside help to harvest a crop of oats and lespedeza due to the asthmatic condition of plaintiff husband; damage to the two mentioned crops as the result of being coated with limestone dust; injury to eight acres of pasture which was so coated with dust from the plant that plaintiffs’ cattle refused to eat the grass; damage to alfalfa which was partially destroyed by the coating of dust, and injury to three milk cows with resulting decrease in the amount of milk plaintiffs were able to sell due to the general condition of the farm.
It is further alleged that all during the period in question great clouds of powdery limestone dust were negligently blown from defendant’s plant and fell incessantly upon plaintiffs’ dwelling, garage, chicken house, barn and yard; that despite all reasonable protective measures taken by plaintiffs the dust penetrated and seeped into the dwelling and other buildings, greatly interfering with and inconveniencing plaintiffs in their occupancy of the house and use of the other buildings in that it was impossible for them to maintain the house in a clean, sanitary and livable condition; that the dust penetrated the kitchen cupboards, clothes closets, storage areas for food, clothing and other personal property, covering dishes, bed linens and clothing; that due to defendant’s negligence and wanton disregard for the rights of others plaintiffs were forced to do their family laundry on Saturday afternoons or Sundays when the plant was shut down, and that the dust even clogged the mechanism of the family clock on the mantle so that it would not run and required professional cleaning — all of the aforesaid resulting in actual damages in the sum of $1,997.50, for which recovery is sought.
The specific acts of negligence with which defendant is charged are as follow:
“(a) Defendant, through its duly authorized employees and agents, did install, maintain, and operate its “hot-mix plant’ in a place from which defendant could reasonably foresee and expect that the prevailing breezes would carry dust into plaintiffs’ property; to wit: Defendant through its duly authorized employees and agents did install, maintain, and operate its “hot-mix plant’ directly south from plaintiffs’ farm and dwelling at a distance of approximately 2,000 feet from plaintiffs’ dwelling and at a distance of approximately 150 feet at the nearest point from plaintiffs’ farm land; and in an area in which defendant’s employees and agents knew or should have known was subject to prevailing southerly breezes during the spring, summer, and fall months; with knowledge on the part of defendant’s duly authorized employees and agents that the ‘hot-mix plant’ when so maintained and operated would cause clouds of lime dust to be blown into the air from heights of 50 to 150 feet, which dust could and should have been foreseen by defendant’s duly authorized agents and employees would be carried onto and into plaintiffs’ farm land, dwellings, improvements, household goods, and other personal property.
“(b) Defendant, through its duly authorized employees and agents, operated its “hot-mix plant’ without adequate dust collectors or similar devices which would have prevented unreasonable quantities of lime dust from blowing onto and into and damaging plaintiffs’ property.”
For their second cause of action (pertaining to punitive damages) plaintiffs incorporate therein the allegations of the first cause of action, except those pertaining to specific items of actual damage, and further allege:
“. . . that the actions of defendant, through its duly authorized agents and employees, were willful, wanton and malicious; and were continued through a period of 8 months with full knowledge and awareness on the part of defendant of the damages being continually inflicted upon plaintiffs; and that such actions are of such nature that punitive damages ought to be awarded.
“Wherefore, plaintiffs on their second cause of action pray judgment for $10,000.00 punitive damages making a total of $11,997.50 on both causes of action; for the cost of this action and for such further relief as to the court may seem just and proper.”
In support of its position the demurrer should have been sustained as to the first cause of action, for actual damages, defendant directs our attention to the fact the action is one for damages based on negligence rather than to abate a nuisance; that plaintiffs apparently seek to impose the ancient and outmoded doctrine of “absolute liability” against a perfectly legitimate business operation being carried on in a rural area in a legitimate manner; that under the prevailing and modern rule (including Kansas) one is not an “insurer” against injury to his neighbor’s property, and that in the absence of negligence there is no liability if the undertaking is legitimate and the use thereof is reasonable; that nowhere in the petition are specific facts pleaded which constitute negligence, and that the allegation as to the inadequacy of the dust collectors is a mere conclusion in the nature of an attempt to impose upon defendant the obligation and duty to use the best and latest devices and appliances, which the law does not impose or require.
Plaintiffs, on the other hand, concede the basic question is one of negligence, but contend their petition sufficiently alleges the duty owed by defendant to exercise reasonable care in the operation.of its plant and a breach of that duty insofar as they are concerned.
A number of decisions of this and other courts are referred to by the parties, among them being Hofstetter v. Myers, Inc., 170 Kan. 564, 228 P. 2d 522, 24 A. L. R. 2d 188, which was an action to abate a nuisance. That case reached here after a full trial below, and, in passing, it should be noted that the trial court specifically found (finding 28, p. 567) the defendant had not been guilty of negligence in the operation of its hot-asphalt plant.
Resort to the decisions involving similar questions points up the fact that in the last analysis each case has been decided on its own particular facts and circumstances, and that, in the nature of things, it is impossible to lay down general rules of law applicable to all situations.
While we are in general accord with the above-mentioned principles of law urged by defendant, we nevertheless feel that, from the standpoint of pleading, defendant does not give to the allegations of this petition the full import and weight to which they are entitled. Without repeating the portions of the petition above quoted, we call attention to allegations that defendant knew, or should have known, that its operations would cause clouds of dust to be blown on plaintiffs’ property, and that the plant was operated without adequate dust collectors or similar devices which would have prevented unreasonable quantities of lime dust from blowing onto and damaging plaintiffs’ property. Whether plaintiffs will be able to prove negligence on the trial of the case of course remains to be seen — but we feel compelled to agree with the trial court’s action in overruling the demurrer to the cause of action seeking actual damages.
With respect to the second cause of action, seeking punitive damages, defendant contends the use of the words “willful, wanton and malicious” amounts merely to a conclusion of the pleader, and that the allegations fall far short of stating a cause of action for punitive damages.
Plaintiffs, on the other hand, contend for the principle that to inflict damage on one’s neighbor by causing unreasonable quantities of dust to be blown onto his property constitutes actionable negligence, and that to continue to throw unreasonable quantities of dust at one’s neighbor over a period of months, knowing that he is being damaged, constitutes wanton conduct for which the neighbor may recover punitive damages, citing Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P. 2d 980, the third paragraph of the syllabus of which holds that in an action to recover damages on the theory of willful and wanton conduct it is essential that the actor shall have realized the imminence of injury to others from his acts and that he refrained from taking steps to prevent the injury because of his indifference to the consequences. (See also Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P. 2d 822, syl. 5.)
Tested by the rule laid down in the two mentioned cases, it is our opinion that the allegations with respect to punitive damages are sufficient to withstand the demurrer, and that as to the second cause of action the demurrer was properly overruled.
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The opinion of the court was delivered by
Jackson, J.:
Appellant brought an action in the court below against appellee to set aside two deeds to two separate pieces of real estate in Ellis county, and for an accounting of rents and profits. Appellee filed certain motions to make definite, to strike, and to compel election. The amended petition containing two causes of action, one cause referring to each piece of real estate, was filed. Thereafter, appellee demurred generally on the ground “that neither of said causes of action as contained in said petition states facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff.”
After the matter had been fully considered by the trial court, the demurrer was sustained as to both causes of action. Plaintiff has appealed, and we shall refer to the parties hereinafter as plaintiff and defendant.
We are advised that plaintiff and defendant are brothers, and sons of Margaret Degenhardt, deceased, and that there were twelve other children in the family besides these two sons.
The first cause of action in the amended petition involves a half section of land in Ellis county, which the amended petition alleges was conveyed to the defendant son on July 13, 1931; it is further alleged that said deed was recorded on the day of its execution and that defendant went into possession of the farm and since said date occupied said real estate; a copy of the deed is attached to the amended petition as an exhibit. It was further alleged that the deed was executed in accordance with a certain written contract between defendant son and his mother, as recited in the deed, that defendant son would maintain, support, care for and provide a comfortable living for the mother. A copy of the contract was attached as an exhibit and made a part of the petition. It was further alleged that defendant son failed to perform the promises and conditions in said agreement; “that the said Margaret Degenhardt died at the age of 72 years on 18 February 1943, infirm in body and mind and because of her infirmities was unable, and had been unable for at least five years prior to her death, to assert any of the rights granted her under said contract to bring an action for the cancellation of said deed.”
It was further alleged in the first cause that the “said agreement and deed was an attempt to make a testamentary disposition of the property of Margaret Degenhardt” and should be declared void, set aside and held of no effect.
It should be noted that the copy of the written agreement attached to the pleading as an exhibit contains provisions relating to the rights of the mother should defendant son fail to carry out his obligations under the contract. They read as follows:
“It is further agreed that the said conveyance of said real estate shall be in full payment and compensation for the services to be rendered hereunder by said parties of the second part to said party of the first part, and that in case the said parties of the second part shall refuse, fail, or neglect to comply with the terms of this agreement or shall fail, neglect or refuse to properly care for, support, maintain, nurse, give medical attendance, hospital care, or shall neglect, fail or refuse, in any other manner to fulfill, their several'promises and agreements above enumerated, punctually, and at the time or times and in the manner above stated, then and in such event this agreement, together with said deed and conveyance, shall, at the option of the said party of the first part become null and void, and said party of the first part shall have the right and privilege to bring an action to cancel the said deed given, and the conveyance of said real estate made, and recovery possession of said real estate, or in lieu thereof, said party of the first part shall have the right to proceed by proper legal action, in any court of competent jurisdiction, and sell said real estate, or so much thereof as may be necessary to give her proper care, maintenance, and support, and such medical, surgical, nursing or hospital care as may be necessary, and in such event all services rendered, or payments of money made by said parties of the second part to said party of the first part shall be retained by her as liquidated damages, provided however that such action to cancel said deed, and conveyance, or action or proceeding to sell said real estate for the support and maintenance of said party of the first part shall be absolutely personal to her, and after her death said deed, shall be and become absolute, and shall not be subject to any action for non-performance of ■any of the terms and conditions of this contract, by any heir or personal representative of said party of the first part.
“That this agreement shall be binding upon the heirs, devisees, executors and administrators of said parties of the second part, and in case said parties of the second part shall predecease said party of the first part, then this agreement shall and may be completed by the heirs, devisees, executors and admistrators of said parties of the second part.” (Italics supplied.)
The second cause of action of the amended petition involved a warranty deed to a residence property in the village of Pfeifer, Ellis county, which it was alleged had been filed for record on February 23, 1943, after the death of the mother on February 18,1943; a copy of the deed was attached to the amended petition and shows that the mother as grantor conveyed the title to the real estate in question to defendant son subject to the reservation of a life estate to the mother therein.
The second cause of action contained the following allegations in relation to the deed to the residence property:
“2. That said deed was never executed by the deceased Margaret Degen-hardt on the date it purports to bear and, if the same was executed, no delivery of said deed was made prior to the death of the said Margaret Degenhardt and said property was and is a part of the estate of the said Margaret Degen-hardt, deceased, and the petitioner as administrator thereof is entitled to the possession thereof.
“3. That if said deed was executed on the date it purports to bear, then the same was an attempted testamentary disposition of said real estate which, lacking the formalities of a testamentary instrument, is void, of no effect, and said property was and is a part of the estate of the said Margaret Degenhardt, deceased, and the petitioner as aforesaid is entitled to the possession thereof.”
From the above summary of the amended petition it will readily appear that while there are questions whether either of the two causes of action states sufficient facts to be sufficient against the defendant’s demurrer, the determinative issue as to both causes is as to the statute of limitations and laches. The deed to the farm was filed of record on July 13, 1931, and the defendant went into possession immediately. Defendant had been in possession of the farm under the deed for almost twenty-six years when the original petition was filed in this suit on March 7, 1956. The mother had been deceased for thirteen years when the suit was filed.
Plaintiff seeks to excuse delay on the ground that it was alleged that the mother was infirm and unable to assert her rights under the contract as to the farm during the last five years of her life. But even as to that, it may be noted that plaintiff as a son and his other brothers and sisters might have sought the appointment of a guardian for her estate and person if they were dissatisfied with the arrangements which must have been known to them. However, assuming that the mother’s infirmities, as alleged, did toll the running of the statute of limitations and laches until the mother’s death, some thirteen years passed thereafter before the filing of this action.
Plaintiff further argues that the running of all limitations were further tolled until his appointment as administrator of his mother’s estate in 1956, and relies upon Carney v. Havens, 23 Kan. 82, and Mills v. Mills, 43 Kan. 699, 23 Pac. 944, to support this contention.
Those cases do not sustain plaintiff’s argument. The Carney and Mills cases only purport to apply to causes which did not become due until after the death of the decedent, according to the terms of the contract or situation giving rise to the cause of action. They do not apply under the circumstances surrounding the estate of Margaret Degenhardt, deceased. Obviously, there was no necessity to have an administration of Margaret’s estate except for supposed convenience in bringing the purported actions herein. It would seem that plaintiff or any of the other children might well have started such actions at any time after Margaret’s death and the payment of debts, as heirs at law and owners of interests in property which allegedly should be a part of her estate.
The case of Glathart v. Madden, 122 Kan. 563, 253 Pac. 426, is quite pertinent to the question of the running of limitations in the case at bar. There a sister had belatedly obtained appointment of herself as administratrix and was suing her brother to obtain an accounting for assets allegedly belonging to the estate of their common ancestor, and so to the sister as an heir of the estate. The court said:
“P. D. Brown died on December 19, 1917. After February 7, 1920, claims of creditors against his estate, if there were any, were barred. After that, no person in existence was interested in requiring W. J. Madden to render an account of his conduct as P. D. Brown’s agent, except Mollie Glathart. By changing the petition which she filed to state that Brown died intestate, that she and Madden were his only heirs, and that no administrator of his estate had been appointed, she could have filed the petition in her individual capacity, to obtain tire relief she prayed for as administratrix. The district court possessed the same power to compel discovery and to require an accounting for her benefit as an individual that it possessed to compel discovery and to require an accounting for her benefit as administratrix. If she were successful, the same result would be attained, with this difference: Suing as an individual, she would recover one-half the amount due from Madden to Brown’s estate. The other half would belong to Madden. Suing as administratrix, she would take the entire sum found due from Madden to the probate court, the probate court would deduct the costs of administration, including an allowance to the administratrix, the probate court would order her to pay back to Madden one-half the remainder, and she would keep the other half. Defendant could not object to her suing in her individual capacity, because it was sufficient for him that he would not be denied privilege to urge whatever defenses he might have.
“The law favors economy, prefers direction to indirection, and is definitely committed to a policy of repose. The statute of limitations may not be evaded by circuitousness. The principle involved is that the record is searched for the essence of the controversy and the real party in interest, and application of the statute is considered as it affects them. A statement of the principle, and a negative application of it, appears in Horton v. Jones, 110 Kan. 540, 204 Pac. 1001:
“ ‘In applying statutes of limitation, courts are not concluded by the names of the parties to an action, but look to the merits of the controversy, the nature of the relief, and the effect of the judgment. The nominal plaintiff is passed by, the record is examined to ascertain who is the real party in interest and, if the real party in interest be not barred, the nominal plaintiff is not barred.’” (p. 541)
“Strike from the concluding portion of the quotation the word not’ and a positive application of the principle is stated.
“The action of Mollie Glathart as administratrix was based on implied contract of the agent to pay money and the value of property due to his principal, on an accounting. Regarded as an action by Mollie Glathart for her share of her grandfather’s estate, it was based on the implied contract of her brother to pay money and the value of property received and held for her use and benefit. The three-year statute of limitations applies to a cause of action of this nature. The action was commenced five years and eight months after Brown’s death, and more than three years and six months after Mollie Glathart’s interest in his estate had ripened to unqualified ownership.
“Plaintiff confidently relied, and the district court evidently rested the judgment, on the cases of Carney v. Havens, 23 Kan. 82, and Mills v. Mills, 43 Kan. 699, 23 Pac. 944. Those cases involved claims in favor of the estates of deceased persons. In each one no cause of action accrued until after death of the creditor. The court held the running of the statute of limitations in favor of the debtors was suspended until, by appointment of an administrator, some one was in existence who could bring suit.
“In the case of Toby v. Allen, 3 Kan. 399, the court said death of a debtor suspends the statute of limitations until an administrator is appointed, because there must be a party to be sued. In the case of Nelson, Adm’r, v. Herkel, Adm’r, 30 Kan. 456, 2 Pac. 110, the syllabus reads:
“ ‘Not only must there be a person to sue, but a cause of action cannot accrue or exist unless there is a person in being against whom an action can be brought and the right of action enforced. Held, therefore, that the death of the debtor operates to suspend the statute of limitations until an administrator is appointed.’ ”
“In the case of Bauserman v. Charlott, 46 Kan, 480, 26 Pac. 1051, the question was whether death of a debtor suspends the statute indefinitely — a ques tion not presented to the court in any previous case. In the opinion prepared by Chief Justice Horton, who had written the opinion in the case of Nelson v. Herkel, it was said:
“ ‘It is also true that this court has said that the death of the debtor operates to suspend the statute. (Toby v. Allen, 3 Kan. 399; Hanson v. Towle, 19 id. 273; Nelson v. Herkle, 30 id. 456; Mills v. Mills, 39 id. 455.) But this court has never said, when the question was properly presented, that the creditor can indefinitely prolong the time of limitation by his own omission or refusal to act, or that the death of the debtor operates to suspend the statute of limitations indefinitely.’ ” (p. 483.)
“It will be observed the case of Mills v. Mills, relied on by plaintiff in the present action, was cited. The opinion emphasized the sound policy of statutes of limitation, and it was held that if a creditor would save his claim against a decedent from bar of the statute, he must use diligence to take out letters of administration for himself or some other person.
“In this case, it is sufficient to say the court has never held, when the question was properly presented, that death of a creditor operates to suspend the statute of limitations indefinitely. To do so would defeat the policy of the statute. One who is privileged to sue on his own account without appointment of an administrator should do so, and should do so within the statutory period. His situation is analagous to that of a creditor of a decedent, who may end suspense by procuring appointment of an administrator. He should not be allowed to circumvent the statute by having himself appointed administrator and bringing suit in his representative capacity for his sole benefit as an individual, after direct action in his own behalf has become barred. It may be observed here that in this instance plaintiff was next of kin and preferred by law for appointment as administrator, and the court has not said, in any case in which the question was properly presented, that such a person may prolong the time of limitation indefinitely by omission or refusal to act.” (p. 569.)
Attention is directed to the cases of Richards v. Tiernan, 150 Kan. 116, p. 120, 91 P. 2d 22, and In re Estate of Moore, 161 Kan. 603, p. 609, 170 P. 2d 838, in which the decision in Glathart v. Madden, supra, is approved, and the rights of heirs at law are discussed as to situations which do not necessitate administration of the estate of their intestate.
The plaintiff has not suggested any reason why the first cause of action is not barred by the usual five year statute, of limitations relating to rights arising from written contracts (G. S. 1949, 60-306, First). The rights of the mother in the farm under her warranty deed and the written contract for support by the defendant son— which plaintiff contends became vested in him as a representative of the heirs at law of the mother — were only for security purposes to insure the carrying out of the contract for support of the mother by the defendant. The mother’s interest amounted in fact to a lien on the land to secure performance of the contract. Any claim for non-performance on the part of defendant has clearly been long since barred during the thirteen years since the mother’s death in 1943. The situation can be aptly compared to a real estate mortgage. It has long been the law of this state that when the mortgage note has been barred by the five year statute of limitations, the lien of the mortgage can no longer be enforced. (See Hubbard v. Missouri Valley Ins. Co., 25 Kan. 172; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118; Hege v. Suderman, 142 Kan. 495, 51 P. 2d 23; Troxell v. Cleveland Oil Co., 145 Kan. 658, 66 P. 2d 545.)
It will readily appear from the above statements that the court is not impressed with plaintiff’s allegations that the deed and contract involved in the first cause of action constituted a testamentary disposition. It also may be pertinent to briefly say that the court is not impressed with the same contention as to the second cause of action. A warranty deed containing a reservation of a life estate to the grantor is certainly not a testamentary disposition. The bare allegations of the amended petition as to testamentary dispositions are controlled by the terms of the deeds and contract attached thereto as exhibits. (See Zane v. International Hod Carriers B. & C. L. Union, 155 Kan. 87, 122 P. 2d 715; Wood v. Stewart, 158 Kan. 729, 150 P. 2d 331.)
Moreover, considering all of the claims attempted to be set forth in both causes of action contained in plaintiff’s amended petition, it is plain that plaintiff is seeking the aid of a court of equity. Courts of equity will regard long passage of time in asserting claims with disfavor apart from any particular statute of limitations. The doctrine of laches is designed to bar stale claims. The plaintiff argues that mere passage of time is not enough to invoke the doctrine. It may be readily assumed that defendant has paid taxes on the real estate, has made repairs and done many other things during all of the years in which plaintiff and the other heirs of Margaret Degenhardt, deceased, have been content to sleep on their alleged rights. Nowhere in the amended petition do we find even an attempted excuse for the delay of thirteen years between the death of the mother and the beginning of this lawsuit.
In the case of Preston v. Shields, 159 Kan. 575, 156 P. 2d 543, the court said in part:
“Appellant predicates the relief sought upon the equitable doctrine a trust was established and that he is entitled to an accounting from the alleged trustee. It has been held that such a suit must be determined by equitable principles of estoppel and not by statutes of limitation. (Preston v. Kaw Pipe Line Co., supra.) Of course, where a petition on its face discloses laches and that it would be inequitable to grant the relief sought, as does the instant petition, it may be challenged by demurrer on the ground it fails to state a cause of action or, probably more accurately stated, upon the ground the petition on its face affirmatively discloses the party is not entitled to the relief sought.”
In McKee v. McKee, 154 Kan. 340, 118 P. 2d 544, it was said:
“While lapse of time alone will not ordinarily support a defense of laches, it has been held sufficient to make the doctrine applicable in cases where it would be clearly inequitable to permit the enforcement of bare legal rights (19 Am. Jur. 352, § 508), or where the delay in asserting rights has been wholly unreasonable (21 C. J. 220, § 218). However, we have here much more than mere lapse of time. We have acquiescence on the part of appellee — an important factor in determining whether there has been such laches as will bar recovery. (21 C. J. 224, 225, § 219; 10 R. C. L. 397, 398, § 144, note 17.)”
See also Calkin v. Hudson, 156 Kan. 308, p. 318, 133 P. 2d 177; Templing v. Bennett, 156 Kan. 68, p. 72, 131 P. 2d 904; Edwards v. Moore, 143 Kan. 447, 54 P. 2d 933, and authorities cited.
The trial court correctly sustained the demurrer to both of plaintiff's causes of action and the ruling is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
The sole question presented is whether the Kansas Turnpike Authority is required to give a bond for costs as prescribed in G. S. 1957 Supp. 26-102 to perfect an appeal to the district court from an award of commissioners in an eminent domain proceeding.
Two contentions are presented by the Authority. First, that it is a state agency, and as such, is exempted by G. S. 1949, 60-2401 from giving such a bond. We are not persuaded the contention is meritorious. That statute provides in part:
“In any civil action hereafter brought in any district court of this state, before the clerk shall issue summons there shall be filed in his office, by or on behalf of the plaintiff, a bond to be approved by the clerk (to pay all costs) . . . And provided further, That in case the plaintiff is the state, or any county, city, township, school district or board of education of this state, or any board or officer thereof, acting in his official capacity, no such bond for costs shall be required.” (Emphasis supplied.)
The statute is a part of the code of civil procedure and is clearly applicable only to civil actions brought in the district court. A proceeding in eminent domain instituted before a judge of the district court pursuant to G. S. 1957 Supp. 68-2006, G. S. 1949, 26-101 and G. S. 1957 Supp. 26-102 is a special statutory proceeding in the nature of an inquest to which the code of civil procedure is inapplicable. (G. S. 1949, 60-3823; State Highway Commission v. Griffin, 132 Kan. 153, 155, 294 Pac. 872; Glover v. State Highway Comm., 147 Kan. 279, 282, 286, 77 P. 2d 189; State v. Boicourt Hunting Ass'n, 177 Kan. 637, 643, 644, 645, 282 P. 2d 395; Kansas Homes Development Co. v. The Kansas Turnpike Authority, 181 Kan. 925, 929, 317 P. 2d 794.) The code is applicable only in the event “an action shall be docketed” by timely appeal by the petitioner, the owner, or any Hen holder of record. An appeal is perfected by the filing of a written notice of appeal with the clerk of the district court and giving bond for the costs thereof, to be approved by the clerk within 30 days from the date the appraisement is filed by the commissioners. Jurisdiction of the district court is acquired in such actions by the fifing of the required notice and bond for costs. (Glover v. State Highway Comm., supra; Russell v. State Highway Comm., 146 Kan. 634, 73 P. 2d 29, rehearing 147 Kan. 297, 77 P. 2d 199; Jensen v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080; Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585.) Until the giving of such notice and bond no action exists to be docketed or tried. As previously indicated, G. S. 1949, 60-2401 is a part of the code of civil procedure. The code has no application until an action is docketed, and when that occurs, a bond for costs has already been provided.
In Glover v. State Highway Comm., supra, this court, in commenting upon the effect of G. S. 1949, 60-3823, said:
“So far as it applies here, this section (G. S. 1949, 60-3823) simply means that the code of civil procedure has no application to any special procedure provided by the legislature for the taking of private property for public use unless and until an appeal is taken to the district court, unless the legislature specifically makes the civil code applicable prior to that time, which it has not done. . . .”
“This follows, of course, what has been done under the special proceedings for the taking of private property for public use, as outlined in G. S. 1935, 26-101, and the filing of the report of the commissioners, previously appointed, with the clerk of the district court, showing the award of damages made by them to the landowner. That prior proceeding is what the code of civil procedure does not apply to, as was stated in G. S. 1935, 60-3823. But when the notice of appeal and bond are given and approved, as authorized by G. S. 1935, 26-102, ‘an action shall be docketed and tried the same as other actions.’ With respect to the trial of such an action the civil code does apply . . .” (1. c. 282.) (Emphasis supplied.)
Assuming, but in no sense deciding, the Authority is an official board of the state and not required to give a bond for costs upon the filing of a civil action in the district court, it is clear that under no circumstances is G. S. 1949, 60-2401 applicable to appeals from the awards of commissioners in eminent domain. The giving of a bond for costs under G. S. 1957 Supp. 26-102 is a condition precedent to the docketing of an action in the district court, whereupon the civil code becomes applicable with respect to the trial of such an action.
For its second contention, the Authority argues it is an instrumentality of the state and is exempt from the requirement resting upon a private corporation as a petitioner (other than railroads), the owner, or any lien holder of record, to give a bond for costs pursuant to G. S. 1957 Supp. 26-102 since statutes limiting rights or interests will not be construed to embrace the sovereign power or government unless it be expressly named, or intended by necessary implication (State v. Book Co., 69 Kan. 1, 76 Pac. 411; State v. Kaemmerling, 83 Kan. 387, 111 Pac. 441).
G. S. 1957 Supp. 68-2006 empowers the Authority to exercise the power of eminent domain in the manner provided by the laws of the state then applicable to the exercise of that power by the State Highway Commission. G. S. 1957 Supp. 68-413 authorizes the State Highway Commission to exercise the power of eminent domain, and “. . . when exercised as herein provided shall be in accordance with the provisions of article 1, chapter 26 of the General Statutes of 1949 or any amendments thereto. . . .” Thus, when the Authority exercises the power of eminent domain, as it did in the present action, it must proceed in accord with the provisions of Art. 1, Ch. 26. G. S. 1949, 26-101 provides for the filing of "... a petition setting forth the purpose for which the land is sought to be acquired, a description of each lot and parcel of ground and the name of the owner ... as shown by the records of such county.”
G. S. 1957 Supp. 26-102 provides in part:
“If the petitioner or the owner or any lien holder of any lot or parcel of ground so condemned shall be dissatisfied with the appraisement thereof, he shall, within thirty days, file a written notice of appeal with the clerk of said court and give bond for the costs thereof, to be approved by said clerk, and thereupon an action shall be docketed and tried the same as other actions . . .” (Emphasis supplied.)
When G. S. 1957 Supp. 68-2006 was enacted, the legislature had before it an amendment to G. S. 1953 Supp. 26-102 (now G. S. 1957 Supp. 26-102). These two statutes were enacted by the legislature in the same session and approved by the governor on consecutive days (L. 1953, Ch. 200, Ch. 308). Both deal generally with the same subject matter, i. e., the taking of private property for public use. These statutes are in pari materia and must be construed together with a view of reconciling and bringing them into workable harmony if reasonably possible to do so. (Kimminau v. Common School District, 170 Kan. 124, 223 P. 2d 689; In re Estate of Bowman, 172 Kan. 17, 25, 238 P. 2d 486; Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 176 Kan. 561, 569, 271 P. 2d 1091.) No change was made in the use of the word “petitioner” as it appears in G. S. 1957 Supp. 26-102, nor was the Authority expressly exempt from giving a bond for costs in the event it appealed from an award of the commissioners to the district court.
Considering and construing the pertinent provisions of G. S. 1957 Supp. 26-102 and 68-2006 we think that when the legislature expressly directed the Authority to exercise the power of eminent domain in accordance with the provisions of Art. 1, Ch. 26, it disclosed a deliberate intent and purpose to consider the Authority a “petitioner” as used in G. S. 1957 Supp. 26-102. The reaffirmance of the word “petitioner” without exempting the Authority, compels the conclusion that when the Authority commences a proceeding in accordance with G. S. 1949, 26-101, and is dissatisfied with the award of the commissioners and desires to appeal to the district court, by necessary implication it is required to file its written notice qf appeal with the clerk of the court and give bond for costs thereof the same as a private corporation petitioner, the owner, or any lien holder of record.
The record discloses the Authority timely filed its notice of appeal, but did not file a bond for costs; consequently, the district court did not acquire jurisdiction of the appeal, and it did not err in sustaining the motion to dismiss the appeal.
The judgment is affirmed. | [
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Green, J.:
Plaintiffs Samantha G. O’Keefe, Patrick H. O’Keefe, Anthony M. O’Keefe, Jennifer D. O’Keefe Bryan, and Molly D. O’Keefe appeal tire trial court’s granting of summary judgment for defendants Merrill Lynch & Co., Merrill Lynch & Co. International Bank, Thomas M. Freeman, Richard J. Paradise, Bradley Stratton, and Chad G. Bushaw. On appeal, the plaintiffs contend that the trial court improperly granted summary judgment in favor of the defendants based on res judicata and collateral estoppel. We disagree and affirm.
The facts are complicated but largely undisputed. At the center of the disputes was Dolores W. O’Keefe, a wealthy woman. Dolores had two sons, Michael and Anthony, and a daughter, Patricia.
In 1990, Dolores executed various estate planning documents creating tire 1990 Trust and a will which provided, upon her death, that the assets in her probate estate would pour over into tire 1990 Trust. Anthony was named attorney-in-fact and co-trustee. The 1990 Trust was to be divided into three sub-trusts for her three children after Dolores’ death, and the sub-trust share of any child who predeceased Dolores was to be distributed outright to the issue of the predeceased child upon Dolores’ death.
In late 1990, after the execution of the estate planning documents, Dolores suffered a stroke, which incapacitated her. Her children moved her from her home in Idaho to an assisted care facility in Johnson County, Kansas.
In November 1995, Anthony petitioned the court to establish a conservatorship for Dolores naming his accountant, John A. Taylor, as conservator.
In July 1996, Taylor petitioned the court to modify Dolores’ estate plan to authorize the creation of the 1996 Trust, including sub-trusts for her three children. The plan also provided for a gift of 1,005,000 shares of Albertson’s Inc. stock from Dolores to the co-trustees of tire 1996 Trust and the transfer of her remaining assets to the 1990 Trust on the condition the 1990 Trust pay the gift and income taxes incurred upon the stock transfer. The Johnson County District Court approved the petition and the 1996 Trust was created and the Albertson stock was transferred. Starting in April 1996, during the conservatorship, Merrill Lynch’s repre sentatives advised Anthony, Michael, and Patricia about the proposed gift transaction and the tax liabilities which were associated with the transaction.
In September 1996, Michael died in a private airplane crash. In April 1997, a “zero cost collar” transaction was made where the 1990 Trust hedged the value of 748,866 shares of Albertson’s stock it held; the Trust then pledged the hedged stock to Merrill Lynch as collateral for a loan to pay the gift tax on the stock transfer to the 1996 trust.
In March 1998, under a “liquidity contract” Merrill Lynch loaned the 1990 Trust $33,434,000 in order to modify the collar. This modification was an attempt to mitigate the negative effect on the 1990 Trust and to benefit from the price increase of the Albertson’s shares.
In July 1998, the grandchildren of Dolores filed a petition in Johnson County District Court in case No. 98C8568, against Anthony, Patricia, Taylor, and others, alleging defendants acted outside of their authority to create the 1996 Trust, negligently breached the duty not to change Dolores’ estate plan which adversely affected plaintiffs’ rights as beneficiaries, fraudulently and intentionally failed to give plaintiffs notice of the modification of Dolores’ estate plan, breached fiduciary duties owed to plaintiffs, and other claims. Dolores died in January 1999.
In April 2000, tire district court dismissed the plaintiffs’ claims against defendants Anthony and Patricia with prejudice, after they settled case No. 98C8568.
In June 2000, John Biscanin, a co-administrator of the estate of Dolores, and the grandchildren filed a petition in Johnson County District Court in case No. 00CV03878 against Prudential Securities, Inc., alleging breach of fiduciary duty, negligence, and intentional interference with expectation of inheritance.
In January 2003, Biscanin filed a claim for arbitration with tire National Association of Securities Dealers (NASD). Biscanin was co-administrator of Dolores’ estate, successor conservator of Dolores, successor trustee of the 1990 Trust, and successor trustee of Michael’s sub-trust of the 1996 Trust. The defendants were Merrill Lynch. & Co., Merrill Lynch & Co. International Bank, Freeman, Paradise, Stratton, and Bushaw. Biscanin alleged claims for negligence, breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, violations of the federal law and rule, and restitution and disgorgement.
In the arbitration, Biscanin alleged that in 1996, Dolores’ three children received financial advice from the Merrill Lynch defendants concerning the gift of Albertson’s stock to the 1996 Trust and the tax liability that would arise from the gift. According to Biscanin, the transactions were mispriced, inappropriate and wrongful, and caused adverse tax consequences.
In December 2000, the grandchildren filed a petition in Johnson County District Court in case No. 00CV07951, against the same Merrill Lynch defendants, which is the case we are asked to decide. The grandchildren asserted that the defendants (collectively Merrill Lynch) negligently breached the duty of care they owed to them and that they suffered damages of more than $75,000. The grandchildren also asserted Merrill Lynch intentionally interfered with the grandchildren’s expectation of inheritance and they suffered damages of more than $75,000.
In July 2001, the district court denied the motion to stay the arbitration. The court allowed the Merrill Lynch’s motion to join Biscanin as an additional party in the district court case. The court reserved the right to consider the challenges by Merrill Lynch if the plaintiffs sought to certify or enforce any arbitration award. The court stated: “Specifically, if an award is made to the plaintiffs in arbitration, the Court requests the arbitration panel to state in its ruling which causes of action it found to be meritorious and to allocate what amount of damages it awards for each of those causes of action.”
In August 2001, Merrill Lynch moved for summaiy judgment for the following reasons: (1) the grandchildren’s claims were time-barred; (2) their negligence claim failed because of the lack of standing and no duty owed; (3) a claim of intentional interference with inheritance rights was not recognized by the Kansas courts, and even if it were, no facts supported the claim; and (4) Biscanin’s claims were time-barred.
On July 2, 2002, the arbitration panel issued a decision; it dismissed the case against the individually named respondents and awarded Biscanin $100,000 for compensatory damages.
In September 2002, Merrill Lynch moved for summary judgment based on the NASD arbitration award.
In October 2002, the district court confirmed tire arbitration award' on Merrill Lynch’s motion. The court noted that the arbitration award did not specify the particular claims for relief which were the basis for $100,000 liability of Merrill Lynch, did not specify tire testimony or other evidence which supported the award, and did not make any statements about the elements of the claims or the law applicable to the claims or defenses. In a journal entry filed in January 2003, the court further stated in part:
“14. This Court already has jurisdiction over the parties in the NASD Arbitration. Each of the Merrill Lynch Defendants named as a respondent in the NASD Arbitration is also a party-defendant in Case No. 00-CV-07951 captioned above (Petition for Damages, filed December 28, 2000). At a hearing on May 9, 2001, this Court granted the Merrill Lynch Defendants’ motion to join Plaintiff Biscanin as a necessary party in Case No. 00-CV-07951 and required Plaintiff Biscanin and the Merrill Lynch Defendants to arbitrate those claims already asserted in the NASD Arbitration.
“18. Aside from the issue of jurisdiction, tire only ground that Plaintiff Biscanin asserts in opposition to the Motion to Confirm and in support of vacating the Award is that the Arbitration Panel ‘manifestly disregarded applicable and well-settled law concerning the evidence that the adverse parties violated Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 of the Securities and Exchange Commission and that John Patrick Biscanin, in his representative capacity as alleged in the NASD statement of claim and in the action filed in United States District Court, suffered loss, injury and damage as the proximate result of securities law violations by adverse parties.’
“20. This Court may not substitute its own judgment for the Arbitration Panel’s judgment about the credibility of witnesses, the sufficiency of evidence or other factors that might have affected the decision in the Award.
“21. The Arbitration Panel was not required to state findings of fact or conclusions of law or otherwise to state the reasons for the decision in the Award.
“22. The Court concludes that, as a matter of law, Plaintiff Biscanin cannot prove his allegation of a ‘manifest disregard of the law’ because the Arbitration panel did not make any statements about the law. As discussed above . . . the Award contains no evidence of the Arbitration Panel’s understanding of the law, nor does the Award reveal the basis for the decision that Defendant [Merrill Lynch] is liable to Plaintiff Biscanin in the amount of $100,000 or that all other claims are denied with prejudice. Under these circumstances, Plaintiff Biscanin cannot meet its burden of proof in opposing the Award on the ground of ‘manifest disregard of the law.’ ”
In January 2003, Merrill Lynch filed a memorandum in support of summary judgment based on preclusive effect of the arbitration award. The district court granted summary judgment in favor of Merrill Lynch, holding the arbitration award barred the grandchildren’s claims for negligence and intentional interference with inheritance rights under the doctrine of claim and issue preclusion.
Standard of Review
“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).
Further, whether the doctrine of collateral estoppel or res judicata applies in a certain situation is a question of law, and an appellate court may analyze the question using unlimited de novo review. Stanfield v. Osborne Industries, Inc., 263 Kan. 388, Syl. ¶ 1, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998).
Res Judicata
Under the doctrine of res judicata, a final judgment by a court of competent jurisdiction on the merits of an action is conclusive, not only on all matters which were actually litigated, but also on all matters which could have been litigated by the parties or their privies in that action. Stanfield, 263 Kan. 388, Syl. ¶¶ 3, 4.
Before addressing the issue of res judicata, we note that the grandchildren have conceded that res judicata bars them from re-litigating their negligence claim. Therefore, the following discus sion concerns only the claim of intentional interference with tire inheritance rights.
In res judicata, the first judgment is conclusive when four conditions concur: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988).
The grandchildren argue res judicata does not apply because there were two elements missing: identity of the cause of action, and identity of persons and parties to the action. First, the grandchildren argue res judicata has no applicability to this case because the claim they raise in the district court action is not the same claim which the arbitration panel previously revolved.
1. Identity of the cause of action
The grandchildren argue that Biscanin did not assert an action against the Merrill Lynch defendants for intentional interference with the inheritance rights in an arbitration proceeding. The grandchildren stated:
“Although the facts upon which the action for wrongful interference may be similar, or perhaps even identical to those Biscanin relied for his representative action before the NASD, the claim—which is whether the moving parties unlawfully interfered with the giving or leaving of property to the Grandchildren by Dolores O’Keefe—was not tried.”
This similar argument was made by the plaintiff in Stanfield. In federal court, the plaintiff made trademark claims based on the Lanham Act. On the other hand, in state court, common-law claims of misappropriation and false light were made by the plaintiff. In rejecting this argument, our Supreme Court explained the meaning of the term “claim” within the context of res judicata. The court declared that the same factual transactions or series of connected transactions are one “claim,” regardless of the number of substantive legal theories that were available to the plaintiff based on those facts. 263 Kan. at 401 (citing the Comments to Restatement [Second] of Judgments §§ 24 and 25 [1980]).
The Stanfield court found both actions arose out of “a common nucleus of operative fact—the defendants’ labeling of certain products with the term ‘Stanfield’ after 1990.” The facts needed to prove all the legal theories raised by the plaintiff were related in time and in origin, and the witnesses , and proof required in the state action would tend to overlap the witnesses and proof which would have been utilized in the federal court. The court concluded that even though the defendants’ alleged acts invaded several of the plaintiff s interests under several different legal theories, there was still but one transaction or “claim.” 263 Kan. at 402.
The arbitration panel described the facts upon which the claims were based as follows. In 1996, Merrill Lynch gave financial advice to the O’Keefe family to gift the Albertson stock to Dolores’ three children and to create the 1996 Trust. The stock had a low tax basis and the sale of the stock to pay the gift tax would incur a significant capital gains tax. Accordingly, Merrill Lynch proposed idle 1990 Trust adopt a hedging strategy, where the trust used the stock as collateral for a loan to pay the tax. By April 1997, when Merrill Lynch placed the collar on the stock, the price of the stock had declined (from $39 to $31). Merrill Lynch’s plan assumed Dolores would survive the gift by at least 3 years and all of her children would survive her. However, Michael died in September 1996 and Dolores in Januaiy 1999. Merrill Lynch’s failure to plan for the contingency of the death of Michael and Dolores caused additional estate taxes as a result.
In this case, the grandchildren alleged the same facts regarding Merrill Lynch’s financial advice concerning the gift of Albertson stock, zero-cost collar transaction in April 1997, liquidity contract in March 1998, and other transactions dealing with the sub-trust of Michael.
The facts in the arbitration and in this case are the same, regardless of the number of different substantive legal theories that are available to the grandchildren based on those facts. See Stan-field, 263 Kan. at 402.
2. Identity of persons and parties to the action
The grandchildren simply argue they were not parties to the arbitration and they were not in privity. The plaintiff in the arbitration was Biscanin, as co-administrator of the estate of Dolores, as successor conservator of Dolores, as successor trustee of the 1990 Trust, and as successor trustee of Michael’s sub-trust of the 1996 Trust. On the other hand, tire plaintiffs in this case are the grandchildren and Biscanin. Clearly, the grandchildren were not named as parties to the arbitration.
Nevertheless, the judgment binds not only the parties to the action but also those who are in privity with them. Under Kansas law, an administrator of an estate is sufficiently in privity with heirs or beneficiaries of an estate to be subjected to principies of claim preclusion. Wright v. Brotherhood Bank & Tr. Co., 14 Kan. App. 2d 71, 74, 782 P.2d 70 (1989) (quoting Carter v. City of Emporia, Kan., 815 F.2d 617, 620 [10th Cir. 1987]).
Biscanin represented, as administrator and trustee for the individual beneficiaries of Dolores’ estate, her 1990 Trust and 1996 Trust including the sub-trusts. The grandchildren were beneficiaries of Michael’s sub-trust of the 1996 Trust. Based on Wright, the grandchildren are in privity with Biscanin. In conclusion, the grandchildren are bound by the arbitration award which was a final judgment on the merits of the claims. Therefore, the grandchildren’s action in district court is barred by the doctrine of res judicata.
Collateral Estoppel
In addition, the trial court determined that Merrill Lynch was entitled to summary judgment based on the doctrine of collateral estoppel. The general principle of collateral estoppel is that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties or their privies. Even if the second suit is for a different cause of action, the right, question, or fact once determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. Grim mett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 487, 988 P.2d 755 (1999) (quoting Southern Pacific Railr'd v. United States, 168 U.S. 1, 48-49, 42 L. Ed. 355, 18 S. Ct. 18 [1897]).
Under Kansas law, for the doctrine of collateral estoppel to apply, three factors must be present: (1) that a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) that the parties must be identical or in privily; and (3) that the issue litigated must have been determined and necessary to support the judgment. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. at 690.
1. Arbitration award as a prior judgment on the merits
The grandchildren argue the arbitration award was not a judgment on the merits of this case. They rely on the holdings of Wing v. J.C. Bradford & Co., 678 F. Supp. 622 (N.D. Miss. 1987).
In Wing, customers brought an action against a broker and broker’s employee alleging violations of federal securities law, RICO claims, common-law fraud, breach of contract, and breach of fiduciary duties in violation of the state law. The court directed that arbitration proceed as to all of plaintiffs’ state law claims, ruling the federal securities law and RICO claims were not arbitrable. After arbitration, plaintiffs moved to confirm arbitration award and defendants moved for summary judgment on federal securities law and RICO claims.
In Wing, defendants made two implicit assumptions in their argument of collateral estoppel: (1) the arbitration award must have been based at least partially on the state law and the arbitration award fully compensated plaintiffs for all their injuries, and (2) the issues involved in plaintiffs’ claims under the federal law were the same issues involved in their state law claims. The federal district court noted the arbitrators’ decision offered no clue as to which causes of action they based their decision on or how they calculated the damages. The court found there was no way for defendants to prove what counts of plaintiffs’ claims formed the basis of the arbitrators’ decision or whether plaintiffs were fully compensated by the award. Further, defendants offered no evidence to actually identify the specific issues presented to the arbitrators. In conclusion, the court held collateral estoppel was not applicable. 678 F. Supp. at 628-29.
The grandchildren argue in tins case, just as in Wing, the court ruled their individual claims were not arbitrable “because they were not parties to the account agreement.” However, there is no court direction in this case deciding which issues should proceed to the arbitration and which issues were not arbitrable as in Wing. Biscanin asserted Merrill Lynch’s conduct reduced the amount of money in Dolores’ estate, the 1990 Trust and the 1996 Trust, which would be available for the grandchildren to inherit. Biscanin was representing the trustees and beneficiaries who suffered damages caused by the conduct of Merrill Lynch. Under these circumstances, the arbitration award was reached on the merits and it determined tire rights and liabilities of the parties including the grandchildren.
Furthermore, the grandchildren argue that the ultimate facts were not tried, pointing to tire fact, as an example, that the wrongful conduct of Anthony and Patricia cannot be asserted as a defense by Merrill Lynch in their intentional interference action.
The arbitration award did not specifically list findings of fact; however, it summarized the facts as pertinent to the claims asserted by Biscanin. The Merrill Lynch defendants asserted in the arbitration that they were not hired to participate and did not participate in the tax and estate planning that resulted in the 1996 Trust and subsequent gifts. Further, they argued that they fulfilled their brokerage duties owed to their customers by fulfilling their clients’ orders promptly and appropriately. Merrill Lynch defendants did not dispute the transactions made in dealing with the estate and the trusts and the consequences of those transactions. Biscanin’s petition before the NASD listed detailed facts surrounding the transactions made under financial advice given by Merrill Lynch. Furthermore, the record shows that the grandchildren had brought an action against Anthony and Patricia, among others, but reached a settlement with them in 2000.
Merrill Lynch argues that the grandchildren are precluded from rehtigating the amount of damages that Merrill Lunch’s conduct caused to the estate and the trusts, citing City of Bismarck v. Toltz, King, Duvall, et al., 855 F.2d 580 (8th Cir. 1988). In Bismarck, the city commenced the contract action against an engineering firm, a sewer project contractor, and its surety. While this action was stayed, the arbitration panel ruled the city owed the contractor $885,058 and the contractor owed the city $612,463. Both the city and the contractor stipulated to dismiss the contractor and its surety as parties to this action. The city alleged improper supervision and inspection of the construction against the engineering firm which moved to dismiss based on collateral estoppel and accord and satisfaction.
The court affirmed the granting of summary judgment, holding the city had a full and fair opportunity in the arbitration proceedings to litigate the amount of damages resulting from the faulty construction of the sewer project and received satisfaction in full for the injury suffered as a result of the sewer system. 855 F.2d at 583-84.
In this case, the grandchildren’s damages were caused by the estate’s and trusts’ transactions made based on the financial advice of Merrill Lynch. The grandchildren litigated the damages in the arbitration proceedings through Biscanin as the administrator and trustee. Just as the faulty construction of the sewer project caused the damages to the city, the faulty advice by Merrill Lynch in this case caused the injury to the estate and the trust thereby impacting on the grandchildren’s inheritance. An implicit conclusion of the arbitration was that Merrill Lynch intentionally misrepresented the transactions and their results or negligently violated the duties owed, or both, the O’Keefe family. In any event, the damages would be the same. The claimed damages in this case for interference of inheritance were caused by the same actions of Merrill Lynch. The grandchildren had a full satisfaction for their injury in the arbitration and cannot relitigate the issue.
The grandchildren further argue that because the arbitration panel had failed to make findings of fact, issue preclusion cannot be applied “because of inherent ambiguity in the arbitration award,” citing L.R. Foy Constr. Co. v. Professional Mechanical Contractors, 13 Kan. App. 2d 188, 766 P.2d 196 (1988).
In L.R. Foy, Foy, a general contractor, brought an action against Professional Mechanical Contractors (PMC), its subcontractor, and PMC’s surety, seeking both compensatoiy and punitive damages for PMC’s alleged negligence in performing its contractual duties. The court applied both res judicata and collateral estoppel to bar this action based upon an earlier arbitration award rendering a decision in favor of PMC against Foy and its surety. 13 Kan. App. 2d at 189, 191. The court stated Foy could not prevail in this civil action without establishing, contrary to the arbitrators’ finding, that PMC was the breaching party. Therefore, the claim was barred. 13 Kan. App. 2d at 194.
The L.R. Foy case does not support the grandchildren’s assertion that when the arbitration award made no specific findings, then issue preclusion does not apply. The arbitration award states the facts and Biscanin’s allegations of wrongdoing by Merrill Lynch. The arbitrators did not specify which legal theories that Biscanin raised formed the basis for the award of $100,000. However, the Merrill Lynch defendants categorically denied the allegations of wrongdoing; they did not raise a specific defense to each of the legal tireories alleged by Biscanin. Under the facts of this case, the arbitration award was based upon ultimate facts as disclosed by the pleadings and judgment and the same as the facts alleged in the district court action under Jackson Trak, 242 Kan. at 690.
The grandchildren finally argue the arbitration award does not bar the action filed in the district court, relying on Artman v. Prudential-Bache Securities, Inc., 670 F. Supp. 769 (S.D. Ohio 1987). In Artman, the issue was whether the arbitration award would bar the action in the district court filed against a securities broker for federal securities law violations and pendent state law violations. Previously, the court denied defendant’s motion to compel arbitration with regard to plaintiff s federal securities laws claims but granted the motion with respect to the state law claims. The arbitration panel awarded $40,000 in full settlement of all claims submitted.
The federal district court denied the motion for summary judgment, holding (1) that it was impossible to determine what issues were actually litigated in the arbitration; (2) that there were gen uine issues of material fact; and (3) that the United States Supreme Court has recently articulated the strong policy of providing a judicial forum for federal securities laws claims despite the presence of an arbitration agreement. 670 F. Supp. at 774.
The situation in this case is quite different from Artman. In this case, the court did not direct the parties to argue certain claims or issues to proceed in the arbitration. Moreover, no policy reason exists why the grandchildren’s intentional interference with an inheritance claim should have been litigated in the state court. As a result, Artman is factually distinguishable.
The arbitration award in this case was based upon ultimate or operative facts as disclosed by the pleadings and judgment. These same facts are alleged in the district court action. Therefore, the prior judgment by the arbitrators on the merits bars the grandchildren from rehtigating the same issue. See Jackson Trak, 242 Kan. at 690.
2. Parties
The grandchildren argue Biscanin did not represent their interest in arbitration and their relationship to Biscanin does not come within the definition of privity in Kansas. The grandchildren cite Goetz v. Board of Trustees, 203 Kan. 340, 454 P.2d 481 (1969). In Goetz, the court stated there was no generally prevailing definition of privity. Instead, the question as to who are privies requires careful examination into the circumstances of each case. The Goetz case held that all persons are privies to a judgment who succeed to the estate, interest, or right to the property thereby adjudicated or affected, where such succession was derived through the party to the action and accrued subsequent to the commencement of that suit or subsequent to the rendition of the judgment. One is not a privy to a judgment where his or her succession to the rights of property occurred previous to the institution of the suit. 203 Kan. at 350-51.
The grandchildren’s reliance on this holding is misplaced. The grandchildren note Dolores was incapacitated in 1990 and died in 1999, and their rights to inherit were vested long before the arbitration award. However, this fact does not lead to their conclusion that they were not in privity to Biscanin. When Biscanin initiated the arbitration proceedings before NASD, he was representing the interests of Dolores’ estate, the 1990 trust, and Michael’s sub-trust of the 1996 trust—clearly including the interests of the grandchildren.
The grandchildren were beneficiaries of the trusts and the estate of Dolores; they did not succeed to the estate from Biscanin. As discussed earlier, an administrator of an estate is sufficiently in privity with heirs or beneficiaries of an estate to be subjected to principles of claim preclusion under Wright, 14 Kan. App. 2d at 74. As a result, the grandchildren were bound by the arbitration award obtained by Biscanin.
3. Litigated issues
- The grandchildren repeat their arguments the arbitration award made no findings and so it is impossible for the court to determine which issues were litigated. The grandchildren argue we do not know which claims asserted by Biscanin were the bases of the arbitration award, and therefore, the court should not have barred their action of intentional interference with the granting of summary judgment.
Biscanin raised negligence, breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, violation of the federal securities law, and restitution and disgorgement. Biscanin requested compensatory damages in the amount of $40 million, disgorgement of fees and commission in the amount of $5 million, and reasonable punitive damages. The arbitration panel did not specify which legal theory was used to award Biscanin with $100,000.
No matter what theory upon which the arbitration award was based, the issue was whether Merrill Lynch engaged in some kind of wrongdoing in dealing with the estate of Dolores. The issue of whether Merrill Lynch intentionally interfered with the inheritance rights of the grandchildren in this case is a different cause of action. Nevertheless, the same transactions and financial advice by Merrill Lynch were the basis for both arbitration and this case. The arbitration panel found Merrill Lynch at fault and gave an award of compensatory damages to Biscanin. The grandchildren’s new cause of action raised in this case was determined by the arbitration panel. See Grimmett, 26 Kan. App. 2d at 487.
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Hill, J.:
Dennis Mitchell appeals the trial court’s order affirming the Driver Control Bureau’s 1-year suspension of his commercial driver’s license. He claims that the trial court erroneously de termined that he was given a reasonable opportunity for an independent blood or breath alcohol concentration (BAC) test. He also argues that the trial court abused its discretion by admitting his breath test into evidence. We affirm.
The facts of this case are not in dispute. Mitchell was driving his commercial vehicle onto tire scales of a port of entry when a motor carrier inspector noticed that his vehicle lacked a registration plate on the front. The inspector asked him to step into the weighing station. The inspector noticed an odor of alcohol on Mitchell’s breath. She asked a coworker if she noticed the same odor, and the coworker answered yes. The inspector then notified the dispatcher who summoned a Kansas Highway Patrol trooper.
Trooper Michael Winner responded. Mitchell was still speaking to the inspector about his failure to have a log book with him when Winner approached. Winner immediately smelled alcohol on Mitchell’s breath and asked him to perform some field sobriety tests and a preliminary breath test. Mitchell failed to adequately perform the tests. He was arrested by Winner and taken to the sheriff s department where he submitted to a BAC test.
After the test was administered, Mitchell requested that he be taken to a hospital for an independent BAC test. Winner took Mitchell to the laboratoiy office of Southwest Medical Center in Liberal. The trooper told hospital personnel that he wanted Mitchell to have a BAC test. The hospital personnel told Winner that the test could not be performed unless tire highway patrol could be billed for it. Mitchell had previously informed Winner that he had money to pay for the test himself. Winner spent about 30 minutes trying to convince hospital personnel to give Mitchell the test and let Mitchell pay for it. Winner even suggested to hospital personnel that he and Mitchell go outside, that he would remove all restraints from Mitchell, that Mitchell would walk in on his own, and Mitchell would have the test done. Hospital personnel responded that they still could not perform the test because they knew Mitchell was in Winner’s care. Winner then called his supervisor to see if there was any way the highway patrol could be billed for the test. He was told there was not.
Winner decided that since he was unable to obtain an additional test for Mitchell at the hospital, he would take him back to the sheriff s department. Winner testified at the hearing that he knew Mitchell would be held for at least 8 hours and would not be able to leave on his own to get an additional BAC test. Winner also testified that Mitchell was aware that he had not received an additional test at the hospital. Both Winner and Mitchell concur that upon leaving the hospital, Mitchell did not request to be taken anywhere else for an independent test. Because Mitchell failed the BAC test, the Kansas Department of Revenue (KDR) suspended his commercial driver’s license for 1 year. Mitchell’s driving privileges were also suspended for 30 days with restrictions in place for the remainder of 1 year. In his appeal to the district court, KDR’s rulings were affirmed.
Our standard of review for such an action is well established:
“In reviewing a district court’s decision reviewing an agency action, the appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as does the district court. [Citations omitted.]” Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert denied 534 U.S. 1081 (2002).
A trial court may not substitute its judgment for that of an administrative tribunal. The trial court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily, or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority. Hickman Trust v. City of Clay Center, 266 Kan. 1022, 1036, 974 P.2d 584 (1999).
Our focus becomes whether Mitchell had a reasonable opportunity to obtain an independent BAC test. Such a determination depends on the circumstances of each case. State v. George, 12 Kan. App. 2d 649, 653-54, 754 P.2d 460 (1988). When we review the trial court’s determination of this question of fact, our function is to determine whether the trial court’s findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001). We will not weigh conflicting evidence or pass on the credibility of witnesses or redetermine questions of fact. State ex rel. Stovall v. Meneley, 271 Kan. 355, 387, 22 P.3d 124 (2001).
Mitchell contends that by not taking him to a site that would agree to perform the requested BAC test after personnel at the hospital had refused, the trooper failed in his affirmative duty to protect Mitchell’s rights as determined by K.S.A. 8-1004.
That statute provides:
“Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.”
Mitchell argues that Winner presented no evidence that there were any time constraints which prevented him from taking Mitchell to another site to obtain the test. Mitchell also argues that there were probably other sites in Liberal which could have conducted the test.
Mitchell admits that he did not renew his request or make any attempts to secure an additional test after the failure to obtain the test at the hospital. Mitchell argues that Winner had an obligation to provide Mitchell with a reasonable opportunity to obtain an independent test as he requested and that this obligation was not waived by Mitchell’s failure to renew that request. Mitchell also argues that Trooper Winner failed to protect his right to an independent test by not making arrangements for Mitchell to bond out soon enough to seek an additional test on his own.
In response, KDR claims that Winner did provide Mitchell with a reasonable opportunity for an independent test. It contends that the trooper did not unreasonably interfere or prevent an additional test. KDR argues that Winner transported Mitchell to the hospital to have an independent test performed. The trooper spent approximately 30 minutes attempting to persuade hospital personnel to conduct the test. He even asked whether hospital personnel would perform the test if he took Mitchell out, released him from the handcuffs, and allowed him to come in on his own, but all of his requests were denied.
KDR further argues that when Mitchell was unsuccessful in getting tested at the hospital, Winner did nothing to prevent Mitchell from requesting an additional test elsewhere. Rather, upon leaving the hospital to return to the sheriff s department, Mitchell knew he had not obtained an additional test and made no request for Winner to take him elsewhere for additional testing.-
A review of other cases is important here. Our court, in State v. George, 12 Kan. App. 2d at 655, stated:
“While the State is not required to provide a DUI suspect with a free additional test, it may not unreasonably interfere with a suspect’s reasonable attempts to secure an additional test, at his own expense, by a physician of his own choosing, for tile purpose of attempting to secure evidence for his defense at or near the crucial time under consideration.”
Our Supreme Court has ruled that it was not unreasonáble interference with the suspect’s attempts to secure an additional test when a police officer informed the suspect that the additional test would register higher than tire breath test the officer had just given him. State v. Chastain, 265 Kan. 16, 22, 960 P.2d 756 (1998). After examining decisions from several other jurisdictions, the Chastain court determined that such a statement did not amount to unreasonable interference with the suspect’s right to a reasonable opportunity for additional testing. 265 Kan. at 21-22. In contrast, this court, in George, ruled that an officer’s actions amounted to an unreasonable interference with a suspect’s right to an additional test when a police officer claimed that it was inconvenient to get an additional test done. 12 Kan. App. 2d at 651-55.
Our research reveals no Kansas appellate decisions where a law enforcement officer took the suspect for additional testing but was unsuccessful in securing the additional testing due to the actions of a third party, although cases from other jurisdictions have addressed this issue. In Grizzle v. State, 265 S.E.2d 324 (Ga. App. 1980), the defendant requested an additional test. The officer took die defendant to two different hospitals and both refused to perform the test unless it was ordered by the police officer. In Georgia, it was against police policy to order such a test, but the police officer informed office personnel that the defendant was entitled to such a test. The defendant never received an additional test. On appeal, the court held that the defendant was provided a reasonable opportunity for an additional test, stating: “[I]t is the duty of a police officer not to prevent a defendant from exercising his right to an independent test, but not his duty to insure the performance of such test.” 265 S.E.2d 325. Later, in Jenkins v. State, 403 S.E.2d 859, 861 (Ga. App. 1991), the court determined that where a medical facility refused to perform the test and the defendant failed to select another facility to be taken to, the police officer had afforded the defendant a reasonable opportunity to have an additional test performed and it was not the duiy of the police officer to insure the performance of the test.
Similarly, a South Carolina court determined that a police officer afforded a reasonable opportunity to a defendant when the officer took the defendant to a hospital for an additional test but the hospital refused to administer the test. City of Columbia v. Ervin, 330 S.C. 516, 500 S.E.2d 483 (1998). The court determined that the officer was not required to request a blood test or take the defendant to a second hospital after the first hospital refused to perform the test. 330 S.C. at 521.
In Maine, the Supreme Court determined that an officer did not unreasonably interfere with the defendant’s right to an additional test by not taking him to a second hospital as he requested after the first hospital refused to administer the test because the defendant would only allow an osteopathic physician to take his blood and none were available. State v. Copeland, 391 A.2d 836 (Me. 1978).
In reviewing KDR’s decision, we find no evidence in the record that the agency acted fraudulently, arbitrarily, or capriciously. Its order was supported by evidence and its action of suspending Mitchell’s license is clearly within the scope of its authority. The decision of the trial court affirming the KDR order is supported by substantial competent evidence that Mitchell was given a reasonable opportunity to be given an independent test.
Turning to the next question of whether the trial court abused its discretion by admitting the breath test, our standard of review is abuse of discretion. An abuse of discretion must be shown by the party attacking the evidentiary ruling and exists only when no reasonable person would take the view adopted by the trial court. Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 633-34, 1 P.3d 891 (2000); see First Savings Bank, F.S.B. v. Frey, 29 Kan. App. 2d 436, 440, 27 P.3d 934 (2001).
Mitchell contends that the trial court erred when it admitted the results of his BAC test. He argues that he was not provided a reasonable opportunity to obtain an additional test because the officer refused to permit such additional testing. Mitchell contends that in refusing to take him to a second facility that would perform the requested blood test, Winner violated his statutory rights. The problem with this argument is that we find no evidence in the record that suggests that Winner ever refused to take Mitchell to a second hospital. We find no evidence that Mitchell requested to be taken to a second hospital. The evidence supports the conclusion reached by the trial court that Mitchell had a reasonable opportunity to obtain an independent BAC test but failed to do so. We find no reason to suppress Mitchell’s BAC test under K.S.A. 8-1004. A reasonable person would agree with the trial court’s decision to consider Mitchell’s BAC test as competent evidence. The trial court’s decision to allow the BAC test was not an abuse of discretion.
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Marquardt, J.:
Following a jury trial, Edward B. Martin was convicted of one count of conspiracy to commit identity theft and four counts of identity theft. On appeal, Martin challenges his sen tence. We vacate Martin’s sentence and remand the case to the trial court with directions.
Prior to trial, the State filed a motion for an upward dispositional departure sentence. The State notified the trial court that should Martin be convicted of the crimes, it wanted the jury to make, a special finding as to whether Martin was the “boss, ‘kingpin,’ organizer, [or] supervisor” of the identity theft ring.
At trial, the State presented evidence that Martin orchestrated a large, interstate identity theft ring, which began in California and then moved to Kansas.
The State’s evidence was that several individuals’ identification information had been obtained by Martin who used the information to supply his accomplices with fake I.D.s. The accomplices would use the I.D.s to write checks for merchandise at retail stores. They would return the merchandise to the stores and receive cash which they would then give to Martin. The accomplices also used the fake I.D.s to obtain credit at various retail stores. Martin directed the accomplices’ purchases and most of the merchandise was given to Martin.
Martin was convicted as charged. Pursuant to the State’s request, the jury completed a special interrogatory verdict form which indicated that it found beyond a reasonable doubt that Martin was the organizing force who directed the criminal activities of three named accomplices.
At sentencing, the trial court departed from Martin’s presumptive probation sentence and imposed a prison sentence. The trial court concluded that Martin’s role as the ringleader was a substantial and compelling reason to depart and sentenced Martin to a controlling prison term of 34 months. Martin appeals his sentence.
Martin contends that the trial court erred when it granted the State’s motion for an upward dispositional departure. Martin asserts that the trial court’s departure findings are not supported by the evidence and the factors relied upon do not constitute a substantial and compelling reason to depart.
An appellate court reviews a claim that there is insufficient evidence supporting the departure sentence factors under a substantial competent evidence standard. See State v. Gideon, 257 Kan. 591, 622-23, 894 P.2d 850 (1995). A claim that the departure factors relied upon by the sentencing court do not constitute substantial and compelling reasons for departure is a question of law for which an appellate court’s review is unlimited. State v. Jackson, 262 Kan. 119, 134, 936 P.2d 761 (1997).
Martin challenges the trial court’s finding that but for Martin’s participation and involvement in the conspiracy, the conspiracy would not have taken place. Martin contends that the evidence demonstrated other members of the conspiracy were just as integral to the conspiracy.
Here, Martin challenges the trial court’s specific finding but ignores its general finding that Martin was the ringleader, i.e. the “originating, motivating, and supervising force behind this conspiracy.” The trial court made it clear that it found Martin to be the ringleader or kingpin of the conspiracy and it was using Martin’s role as the ringleader to depart. The record on appeal contains substantial competent evidence supporting a finding that Martin acted as the ringleader or kingpin of the conspiracy.
When analyzing whether a trial court’s findings constitute substantial and compelling reasons to depart, two questions must be answered. First, is a particular reason given by the sentencing court a valid departure factor? Second, are the reasons, as a whole, substantial and compelling reasons for departure in a given case? State v. Grady, 258 Kan. 72, 83, 900 P.2d 227 (1995).
K.S.A. 2003 Supp. 21-4716(c)(2) enumerates a nonexclusive list of aggravating factors which may provide substantial and compelling reasons for departure. The departure factor used in this case is not included in the nonexclusive list from K.S.A. 2003 Supp. 21-4716(c)(2). The Kansas Supreme Court has held that in cases where the trial court does not rely upon any statutory aggravating or mitigating factors to depart, the trial court’s decision should be viewed with stricter scrutiny. See State v. Murphy, 270 Kan. 804, 807, 19 P.3d 80 (2001).
The State cites two out-of-state cases to support Martin’s sentencing departure because he was the ringleader of the identity theft conspiracy. See State v. Adames, 631 So. 2d 98 (La. App. 1994); Fletcher v. State, 508 So. 2d 506 (Fla. Dist. App. 1987). In Adames, the defendant pled guilty to one count of conspiracy to distribute marijuana. On appeal, the defendant challenged the trial court’s upward departure. The Louisiana Court of Appeals concluded that the defendant’s role as the ringleader was not an element of the conspiracy and could be considered a proper aggravating factor for an upward departure. 631 So. 2d at 101-02.
In Fletcher, the defendant was convicted of trafficking in cannabis and conspiracy to traffic in cannabis. The trial court upwardly departed from the defendant’s sentence under the guidelines, based in part on the defendant’s role as “Mr. Big” (the ringleader). The District Court of Appeal of Florida analyzed whether the defendant’s role as “Mr. Big” represented a valid ground for departure. The appellate court held:
“[T]he guidelines do not explicitly prohibit departure so far as the ringleader in a drug trafficking case is concerned. Nor is his status as the leader of this criminal enterprise an inherent component of it. As a consequence, we conclude that being ‘Mr. Big’ constitutes a valid ground for upward departure. This result also comports with our version of common sense. The mastermind of a complicated drug deal is surely deserving of a stiffer sentence than the lackey who plays no part other than to carry the contraband.” 508 So. 2d at 507.
There does not appear to be a Kansas case on whether a defendant’s role as the ringleader is a valid departure factor.
The rationale for punishing the ringleader more severely is based on the ringleader’s extensive participation in the criminal enterprise as well as the ringleader’s control over the enterprise. Although K.S.A. 2003 Supp. 21-4716(c)(2) does not include an aggravating factor relating to a defendant’s role as a ringleader, K.S.A. 2003 Supp. 21-4716(c)(l) provides the following mitigating factor:
“Subject to the provisions of subsection (b)(3) [(c)(3)], the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist:
(B) The offender played a minor or passive role in the crime . . . .”
Based on K.S.A. 2003 Supp. 21-4716(c)(l), an argument maybe made that the opposite should hold true—that a defendant’s role as the leader and organizer of a criminal enterprise may dictate a greater punishment.
Here, the trial court stated, “that but for Mr. Martin’s talents in organizing, controlling, supervising this criminal conspiracy, that it would have never taken place.” On the special verdict form, the jury found “beyond a reasonable doubt that in connection with the offense(s) for which the defendant was convicted that the defendant acted as the organizing force and directed the criminal activities of the accomplices involved in this case. . . .”
Being a mastermind or kingpin in an identity theft ring is an aggravating factor that justifies the imposition of a departure sentence even though it is not included in the nonexclusive list in K.S.A. 2003 Supp. 21-4716(c)(2).
Martin claims that the trial court impermissibly used a statutory element of conspiracy as a departure factor. In particular, Martin believes that the trial court used the overt acts committed in furtherance of the conspiracy as a departure factor. Martin then claims that under K.S.A. 2003 Supp. 21-4716(c)(2), the trial court’s departure factor does not constitute a substantial and compelling reason to depart.
According to the jury instructions, the State alleged 14 overt acts which were committed in furtherance of the conspiracy. Martin maintains that for the State to prove a portion of the overt acts, it was required to prove that Martin was the ringleader. Therefore, Martin claims that his role as the ringleader became a statutoiy element of the conspiracy and could not be used as a departure factor.
Martin’s argument, while creative, is not persuasive. The State was not required to prove that Martin was the ringleader of the criminal enterprise in order to prove the conspiracy. While some of the aspects of the overt acts would have supported a finding that Martin was the ringleader, Martin’s role as the ringleader was not a statutory element of the conspiracy. Martin’s arguments on this issue are without merit.
Consideration of Labette
Last, Martin maintains that the record in this case does not indicate whether the trial court considered placing him at the Labette Correctional Conservation Camp (Labette) prior to imposing the dispositional departure. As such, Martin argues that his sentence should be vacated and his case should be remanded for re-sentencing with instructions for the trial court to consider placement at Labette.
K.S.A. 2003 Supp. 21-4603d(g) provides in pertinent part: “Prior to imposing a dispositional departure for a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid . . . the court shall consider placement of the defendant in the Labette correctional conservation camp . . . .” In State v. Schick, 25 Kan. App. 2d 702, 704, 971 P.2d 346 (1998), rev. denied 266 Kan. 1114 (1999), our court stated that K.S.A. 2003 Supp. 21-4603d(g) is very clear concerning the trial court’s duty to consider Labette in appropriate situations and to note its consideration on the record.
The State concedes that the trial court did not state on the record whether it had considered placing Martin at Labette prior to imposing the dispositional departure. However, the State contends that Martin’s failure to object to the lack of findings concerning Labette precludes appellate review of this issue. The State also believes that the trial court’s failure to mention Labette constitutes harmless error because the Secretary of the Kansas Department of Corrections is authorized to directly place an inmate at Labette.
Kansas courts have held that strict compliance with K.S.A. 2003 Supp. 21-4603d(g) is mandated. Schick, 25 Kan. App. 2d at 704. Martin’s sentence should be vacated, and this case should be remanded to the trial court for resentencing with instructions to consider Labette.
Sentence vacated, and case remanded with directions. | [
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Pierron, J.:
Robert James Martin appeals from district court’s denial of a motion to apply his retirement Social Security benefit payments in satisfaction of child support payments. We reverse and remand.
Robert and Ruth Ann Martin married on December 22, 1973. At the time of their marriage, Robert was 40 years old and Ruth Ann was 23 years old. Eight children were bom of the marriage.
Ruth Ann filed for divorce September 27, 1994, on grounds of incompatibility. Based upon the parties’ agreement, the district court granted Ruth Ann’s request for joint legal custody and primary physical custody of the seven minor children.
The district court determined child support at a monthly rate that would decrease when each child was no longer a minor and no longer in high school. The court ordered support payments to be made through the Clerk of the District Court, Pottawatomie County Courthouse, Support Division, Westmoreland, Kansas. The court further ordered: “Any payments of child support not made in accordance with this provision shall be presumptively disallowed.”
It is unclear from the record when Robert retired, but he began receiving Social Security retirement benefits sometime in 1999 or 2000. At this time there were four minor children who each received a monthly Social Security payment of $45, for a total of $180, based on Robert’s retirement. Ruth Ann, as physical custodial parent, received the minor children’s payments.
In an October 2001 journal entry, the district court modified the child support based on an agreement approved by both parties that, inter alia, recognized the children’s $180 monthly payments based on Robert’s retirement benefits as a downward adjustment of Robert’s net parental child support obligation.
In August 2003, tire district court again modified child support downward because one child had turned 18 and graduated from high school. As a result, Robert’s future monthly child support obligations were based on three minor children in Ruth Ann’s custody.
In its order, the district court granted a downward adjustment of $94 for “Visitation Adjustment,” but denied Robert’s request for a downward adjustment of $234 for “Overall Financial Condition.” It is not clear from the record how Robert derived the figure of $234. However, it appears this amount represented some fraction of Social Security benefits received by the children after the divorce and after Robert retired. Similarly, the court’s reason for denial is unclear from the record:
“But here it looks like what I have done in the past is I’ve added those [Social Security payments] into die income and included that in the income. This other— And I guess in effect diat’s really what was going on with Judge Khnginsmidi, that direct payment should be recognized as a downward adjustment, in effect, a downward adjustment if you recognize his income to the other party and that increases their share, not very much. I think we’re all aware of that. It doesn’t take much money or much difference how much money the custodian makes, it’s how much money you can put on the noncustodial parent’s side that really determines what’s done with these calculations of the guidelines.”
In October 2003, the district court denied Robert’s motion for judgment notwithstanding the verdict, requesting the court grant the $234 downward adjustment.
“ ‘The standard of appellate review applicable to an appeal from a trial court’s order determining the amount of child support is whether the trial court abused its discretion. [Citation omitted.] Judicial discretion is abused when action is arbitrary, fanciful, or unreasonable, which is another way of saying discretion is abused when no reasonable person would take the view adopted by the trial court. [Citation omitted.]’ [Citation omitted.]” In re Marriage of McNeely, 15 Kan. App. 2d 762, 768, 815 P.2d 1125, rev. denied 249 Kan. 776 (1991).
The Court of Appeals will reverse a trial court’s ruling on child support only when the trial court has abused its discretion. In re Marriage of Emerson, 18 Kan. App. 2d 277, 278, 850 P.2d 942 (1993).
This precise issue is one of first impression in Kansas. As discussed below, courts in Kansas have ruled on child support cases related to Supplemental Security Income (SSI) benefits and other governmental benefits, but not on child support obligations satisfied by retirement benefits. Under the Social Security Act, separate titles give rise to a difference between the two. See 42 U.S.C. §§ 402, 1381 (2000).
In the instant case, the district court made apparently conflicting rulings on whether a divorced father’s Social Security retirement benefits could be used to make a downward adjustment in the father’s “Overall Financial Condition” category (on child support worksheets) and be credited as child support payments. Therefore, the question is whether Social Security retirement benefits may be applied as a credit against court-ordered child support obligations. We believe they should.
The Kansas Child Support Guidelines (Guidelines) govern child support issues. In re Marriage of Callaghan, 19 Kan. App. 2d 335, 336, 869 P.2d 240 (1994). In a divorce order, child support provides for the needs of a child. Administrative Order No. 128, Kansas Child Support Guidelines, § II. A (2003 Kan. Ct. R. Annot. 99). Child support ordered by a final divorce decree may be modified under appropriate circumstances, but the modified order operates prospectively. Ediger v. Ediger, 206 Kan. 447, 455, 479 P.2d 823 (1971).
The Social Security system contains provisions for the payment of support monies to children such as those involved in this case.
“Every individual who (1) is a fully insured individual ... (2) has attained age 62, and (3) has filed application for [retirement] insurance benefits . . . shall be entitled to [retirement] insurance benefit[s] for each month.” 42 U.S.C. § 402(a) (2000). “Every child ... of an individual entitled to [retirement] or disability insurance benefits . . . shall be entitled to a child’s insurance benefit for each month.” 42 U.S.C. § 402(d). Robert receives retirement benefits, and his minor children receive children’s insurance benefits.
Other jurisdictions are divided on the issue of Social Security benefits being credited toward child support payments. Some have concluded children’s insurance benefits may be credited against child support obligations. Lopez v. Lopez, 125 Ariz. 309, 311, 609 P.2d 579, reh. denied, rev. denied (1980) (retirement Social Security payments received by wife and children to be credited against husband’s support obligations); Cash v. Cash, 234 Ark. 603, 607, 353 S.W.2d 348 (1962) (Social Security benefits received by child after father retired at age 65, pursuant to mandatory retirement policy of employer, relieved father of weeldy support payments); McClaskey v. McClaskey, 543 S.W.2d 832, 834-35 (Mo. App. 1976) (use of retirement Social Security payments to satisfy child support merely changes the manner of payment, not the nature of the funds).
In Andler v. Andler, 217 Kan. 538, 544, 538 P.2d 649 (1975), the Kansas Supreme Court ruled on SSI being credited toward satisfaction of child support payments:
“[W]here a father who has been ordered to make child support payments becomes totally and permanently disabled, and unconditional Social Security payments for tire benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under the divorce decree.”
The Andler court outlined two reasons in its decision. One, “[bjecause of the unconditional nature of Social Security disability and old age benefits, other courts have held they constitute a satisfaction of a child support order when paid to the divorced mother for the benefit of the minor children. [Citations omitted.]” 217 Kan at 544. Two, the court looked to Koons v. Koons, 190 Kan. 65, 67, 372 P.2d 62 (1962), and military allotments as persuasive analogy. In Koons, the court found that even though allotment benefits were not made under the divorce decree but instead made under federal statutes and Army regulations, the divorced father should receive credit as child support payments.
Andler was later narrowly construed “as being limited to social security disability payments and military allotments which are specifically mentioned in the [Andler] opinion.” Emerson, 18 Kan. App. 2d. at 281.
Emerson dealt with SSI benefits paid to a disabled child whose parents divorced. The trial court refused to order the child’s incarcerated father to pay child support because the child received SSI payments. However, this court found that because of the nature of SSI payments, when a child receives SSI, it is not a factor in the amount of child support under the guidelines. 18 Kan. App. 2d at 282. Benefits being received by a minor child can neither be claimed as a credit toward the payment of court-ordered child support, nor used as a ground to modify an earlier award of support. 18 Kan. App. 2d at 283.
Somewhat similarly, a later decision held that benefits received by a child from a deceased biological father could not be claimed by an adoptive father as a credit toward court-ordered child support where the payments were not unconditional and not directly traceable to the obligor father. In re Marriage of Beacham, 19 Kan. App. 2d 271, 274, 867 P.2d 1071 (1994). This court reasoned a duty to support a child cannot be relieved because of payments received by a child not attributable to the parent who is seeking relief. 19 Kan. App. 2d at 274-75.
In Keller v. Guernsey, 227 Kan. 480, 487, 608 P.2d 896 (1980), the court ruled that welfare benefits paid by Kansas or another state cannot be counted by a parent against his or her child support obligation. As Justice Holmes noted: “To argue that a parent’s duty of support may depend upon which taxpayers are burdened with the responsibility absent such support, justifies no further comment by this court.” As the Keller court noted earlier: “Such argument is not only fallacious but fellifluous.”
Other courts have not permitted children’s insurance benefits to be used as a credit against child support obligations when the payments were based on disability. Matter of Estate of Patterson, 167 Ariz. 168, 174, 805 P.2d 401 (1991) (father not entitled to credit where children would have been entitled to receive the benefits regardless of divorce and the children’s benefits do not decrease the father’s own income); Thompson v. Thompson, 254 Ark. 881, 883-84, 496 S.W.2d 425 (1973) (disabled veteran’s benefits represent a specialty item used only under specified circumstances and cannot be credited toward child support payments); Fowler v. Fowler, 156 Conn. 569, 573-74, 244 A.2d 375 (1968) (where father did not provide court-ordered support for more than 5 years and children began receiving benefits upon father’s disability, court found factual situation justified payments to divorced wife not allowable as a credit against arrearage in fulfilment of payment).
Kansas cases discuss the difference between Social Security disability benefits and Social Security retirement benefits. See generally Wishon v. Cossman, 268 Kan. 99, 107, 991 P.2d 415 (1999), modified on denial of rehearing January 13, 2000; Green v. City of Wichita, 26 Kan. App. 2d 53, 977 P.2d 283, rev. denied 267 Kan. 888 (1999). However, we have been unable to locate a Kansas case that denies or allows credit based upon Social Security retirement benefit payments.
Law and common sense seem to dictate that the reasoning in McClaskey should prevail; the manner of the payment is irrelevant, the nature of the funds is the same. 543 S.W.2d at 834.
From the foregoing, we believe Social Security retirement benefits should be allowed as a credit against court-ordered child support payments. Even though Robert did not petition the court to recognize such payments in the 1995 divorce decree, his change in financial circumstances, based on his retirement, qualifies as a recognized change of circumstance under the Guidelines. Therefore, the district court should have given consideration to applying the children’s retirement benefits as a downward adjustment and a prospective credit against Robert’s child support payments.
Reversed and remanded with directions. | [
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HILL, J.:
This is a consolidated appeal by Laray Jenkins of his K.S.A. 60-1507 motion, alleging ineffective assistance of trial and appellate counsel, as well as his motion to correct an illegal sentence. We affirm because there is substantial competent evidence supporting the district court’s conclusion that Jenkins failed to prove his trial and appellate counsel were ineffective; further, Jenkins is not serving an illegal sentence.
Jenkins, in his K.S.A. 60-1507 motion, asks us to overturn his convictions for aggravated burglary, theft, and criminal damage to property for several reasons; 1) Jenkins contends his trial counsel was ineffective for failing to request a burglary jury instruction as a lesser included offense of aggravated burglary; 2) Jenkins thinks that both his trial and appellate counsel were ineffective for failing to challenge the police officers’ execution of the search warrant; and 3) trial counsel was ineffective for failing to request an alibi instruction. Jenkins had raised additional issues before the district court but has since abandoned them because they were not briefed. “An issue which is not briefed is deemed abandoned. [Citation omitted.]” State v. Brown, 272 Kan. 843, 844, 35 P.3d 910 (2001).
In his motion to correct an illegal sentence, Jenkins argues that the sentencing court lacked jurisdiction to determine that his criminal histoxy score was A because the State had previously failed to object to a 1993 Department of Corrections (DOC) sentencing guidelines report. The DOC report stated that Jenkins’ criminal history score was C. In the report, his criminal history consisted of three nonperson felony convictions and one person felony conviction. The DOC report failed to list Jenkins’ nonperson felony convictions for residential burglary and felony stealing in Jackson County, Missouri, in 1993. This court previously affirmed Jenkins’ convictions and sentence in State v. Jenkins, No. 82,849, unpublished opinion filed August 18, 2000.
The district court consolidated both motions for hearing. The court heard testimony from Jenkins and Robert Kuchar, his trial counsel. Subsequently, the district court adopted the State’s proposed findings of fact and conclusions of law and denied both motions.
KS.A. 60-1507 MOTION PROPERLY DENIED
In deciding this matter, several rules of law must be considered. First, since the district court took evidence on this motion, our standard of appellate review is to determine if its factual findings are supported by substantial competent evidence and whether those findings are sufficient to support the court’s conclusions of law. See Lumley v. State, 29 Kan. App. 2d 911, 913, 34 P.3d 467 (2001), rev. denied 273 Kan. 1036 (2002). Second, in order to warrant a reversal of his convictions, Jenkins must prove his trial counsel’s performance was deficient, which means counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and the deficient performance prejudiced the defense, which requires showing counsel’s errors were so serious they deprived defendant of a fair trial. State v. Hedges, 269 Kan. 895, 913, 8 P.3d 1259 (2000). Third, Jenkins must show his appellate counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness and that he was prejudiced to the extent a reasonable probability exists that, but for counsel’s deficient performance, the appeal would have been successful. See Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 (1988). Finally, the failure of appellate counsel to raise an issue on appeal is not, per se, ineffective assistance of counsel. Maggard v. State, 27 Kan. App. 2d 1060, 1066, 11 P.3d 89, rev. denied 270 Kan. 899 (2000).
As an appellate court, we must be sensitive to time and circumstances when deciding these matters. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Chamberlain v. State, 236 Kan. 650, 657, 694 P.2d 468 (1985).
Failure to request burglary instruction as a lesser included offense
Jenkins was convicted of aggravated burglary (contrary to K.S.A. 21-3716, a severity level 5 person felony) and contends that the jury could have found him guilty of simple burglary (contrary to K.S.A. 21-3715, a severity level 7 person felony) had the jury been properly instructed. He claims that the victim in his case never saw another person in tire house, and Jenkins maintains there was no proof that the victim was in the house at the same time as the burglar. Therefore, if the juiy had been instructed that burglary is a lesser included crime with aggravated burglaiy it would have convicted him of tire lesser crime.
The trouble with Jenkins’ argument is that it is not consistent with the evidence that was presented at trial. The evidence indicated that the victim returned home and discovered a burglaiy in progress. He observed a vehicle, fully loaded with property, backed into the attached garage and heard a male voice coming from either the basement or the garage; that constituted aggravated burglary. “ “When a person enters the premises after the burglary has commenced but before the defendant has left the premises, the offense constitutes aggravated burglary.’ [Citation omitted.]” State v. Fondren, 11 Kan. App. 2d 309, 311, 721 P.2d 284, rev. denied 240 Kan. 805 (1986). The evidence at trial did not support the lesser included instruction.
Furthermore, the instruction would have conflicted with Jenkins’ theory of defense at trial, which was that he had not been in Johnson County on the date of the burglary. Kuchar, Jenkins’ trial attorney, testified that he explained to Jenkins that there was a lesser included offense of residential burglary, which carried a sentence of 34 months as opposed to the 130-month sentence he faced for the aggravated burglary charges. Kuchar stated that he discussed the possibility of a plea negotiation to the lesser offense. He said that Jenkins
“just reacted sort of aggressively and sort of animated and indicated that he wasn’t going to take any level seven, that my orders were clear. I was to show the jury to the best of my ability that he was somewhere else rather than in Johnson County on March 17th, 1998. That’s how all of our conversations went, every one of them.”
Kuchar maintained that Jenkins did not want a burglary instruction given. A party may not invite error and then complain of that error on appeal. State v. Boorigie, 273 Kan. 18, 27, 41 P.3d 764 (2002). Jenkins cannot have it both ways; at first, he refused to consider residential burglary at trial, and now he argues that counsel’s failure to request such an instruction was deficient and ineffective assistance of counsel.
Generally, a criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence as long as (1) die evidence, when viewed in the light most favorable to the defendant’s theoiy, would justify a jury verdict in accord with that theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999). However, an instruction on a lesser included offense is not proper if from the evidence the jury could not reasonably convict of the lesser included offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997). “Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to tire lesser degrees of the offense are not necessary. [Citation omitted.]” State v. Gibbons, 256 Kan. 951, 955, 889 P.2d 772 (1995).
Because the evidence presented at Jenkins’ trial clearly supported a finding of guilt on aggravated burglary, there is no reasonable likelihood that the jury would have convicted him of burglary. There is substantial competent evidence to support the finding that trial counsel was not ineffective in failing to request a lesser included instruction.
Failure to challenge the execution of the search warrant
Jenkins argues that both his appellate and trial counsel were ineffective because they failed to challenge the execution of the search warrant. We note initially that both counsel unsuccessfully challenged the search warrant upon probable cause grounds. Jenkins, though, suggests that they should have challenged the manner of its execution as well. He contends that because he was an overnight guest at the duplex where the warrant was executed, the search of his personal effects was not covered by the warrant. Jenkins also thinks the search was illegal because the items seized were not in plain view. An elaboration of the facts is helpful in understanding this point.
Police, during a forgery investigation, learned that the residents of 1111 West 144th Street in Kansas City, Missouri, were involved in the forgeries. The affidavit for the search warrant provided that police had probable cause to believe that personal checks, receipts, and other items associated with forgery would be found at the residence. During the search, police found checkbooks belonging to the burglaiy victims inside an envelope that also contained official documents with Jenkins’ name on them. Jenkins was at the duplex when the search warrant was executed, and he was then arrested.
Jenkins’ argument has no merit. “ ‘A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entiy or opening may be required to complete the search.’ [Citation omitted.]” State v. Yardley, 267 Kan. 37, 41, 978 P.2d 886 (1999). The search warrant in this case listed checks, receipts, and other items associated with forgery. Therefore, law enforcement officers were allowed to search any place in the residence where these items could be located, which included the envelopes where the victims’ checks were ultimately found. Both counsel could not be found ineffective for failing to pursue this claim.
Failing to request alibi instruction and call alibi witness
In this claim of ineffectiveness, Jenkins argues that his counsel should have called an alibi witness to testify and requested an alibi instruction as well. Jenkins wanted to call Nancy Illiney to testify and establish his alibi. However, Kuchar testified that the proposed witness twice advised him that she had no specific recollection of the date in question and would be unable to tell him whether Jenkins was home or in Gladstone on the date the crimes were committed. Kuchar also stated that Illiney did not seem very fond of Jenkins, which could have become apparent during her testimony. Kuchar did not feel that Illiney would be a good witness. He made a tactical and strategic decision not to call her.
Whether to call a certain witness is a matter of trial strategy subject to the discretion of trial counsel. State v. Ames, 222 Kan. 88, 100, 563 P.2d 1034 (1977); Mullins v. State, 30 Kan. App. 2d 711, 716, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002). Based on this testimony, it is clear that trial counsel investigated the possibility of calling Illiney and simply made an informed decision that she would not be beneficial to the defense. Counsel’s failure to call her as a witness cannot be considered ineffective.
The record indicates that the jury was instructed on the elements of all the crimes charged, as well as the State’s burden to prove Jenkins guilty beyond a reasonable doubt. Additionally, the jury was instructed that the law placed a burden of proof on the State to identify the defendant and the instruction then listed the various factors the jurors should consider when weighing the reliability of the State’s eyewitness identification testimony. The instruction specifically informed the jury that Jenkins did not have to prove that he had been wrongly identified. “ ‘[A] separate instruction on the defense of alibi is not required where adequate and proper instructions are given on the elements of the crime charged and on the prosecution’s burden to prove guilt beyond a reasonable doubt.’ [Citations omitted.]” State v. Holloman, 17 Kan. App. 2d 279, 290, 837 P.2d 826, rev. denied 251 Kan. 940 (1992).
Counsel was not ineffective for not requesting an alibi instruction. We conclude, therefore, that there is substantial competent evidence to support the district court’s findings that neither Jenkins’ trial nor appellate counsel was ineffective with respect to any of the issues raised.
SENTENCE IMPOSED IS LEGAL
The question of whether a criminal sentence is illegal is a question of law over which an appellate court has unlimited review. State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). An illegal sentence may be corrected at any time according to K.S.A. 22-3504(1).
Jenkins’ argument is based upon a DOC report generated in 1993. The report was prepared to determine whether Jenkins was eligible for retroactive application of the sentencing guidelines law with respect to Johnson County convictions in 1987 for robbery and felony theft. The report scored Jenkins’ criminal history score as C. The DOC determined that Jenkins was not eligible for retroactive application of the recently enacted sentencing guidelines.
It was a different story after his 1998 convictions. A presentence investigation report included two additional nonperson felonies that Jenkins had been convicted of in Missouri in June 1993 and listed Jenkins’ criminal history score as A. Prior to sentencing, defense counsel filed a motion challenging Jenkins’ criminal history and objecting to the presentence report. Following a hearing, the district court overruled the motion, and Jenkins was sentenced with a criminal history score of A.
In his motion to correct the sentence, Jenkins contends that the State failed to object to the 1993 report; therefore, the State and the sentencing court should be bound by this report and should not be allowed to later increase his criminal history score. Jenldns relies on K.S.A. 21-4724(c)(4), which provides:
“The criminal history classification as determined by the department of corrections shall be deemed to be correct unless objection thereto is filed by either the person or the prosecution officer within the 30-day period provided to request a hearing. If an objection is filed, the sentencing court shall determine the person s criminal history classification. The burden of proof shall be on the prosecution officer regarding disputed criminal history issues.”
In Jenldns’ view, then, since the State did not object to his criminal history within 30 days of the preparation of the DOC report, the State cannot now change his criminal history score.
In denying Jenkins’ motion, the district court cited language from State v. Strickland, 23 Kan. App. 2d 615, 621, 933 P.2d 782, rev. denied 262 Kan. 968 (1997) (Strickland II), which stated:
“[I]f the State fails to find a conviction or convictions in a defendant’s criminal history, the State is prohibited from later amending, and ultimately increasing, the severity level of a defendant’s criminal history for the crime or crimes at issue. However, this principle would in no way prohibit the State from relying on the newly discovered convictions should the defendant be convicted of another crime in the future.”
Jenldns argues that the above language from Strickland is mere dicta that should be ignored because it is not controlling. In his direct appeal, Strickland had argued that a prior conviction should be held inadmissable for criminal history purposes because documents relating to the prior felony conviction in Oklahoma were not properly authenticated. This court agreed and vacated Strickland’s sentence and remanded the case for resentencing. State v. Strickland, 21 Kan. App. 2d 12, 14-15, 900 P.2d 854 (1995) (Strickland I). Upon resentencing, the State produced a properly authenticated copy of Strickland’s Oklahoma felony conviction that was accepted by the district court, and Strickland was accordingly re-sentenced. Strickland again appealed, arguing that had the Oldahoma conviction been properly excluded in the first place, the appeal would probably not have taken place as he would have been in a presumptive probation grid box. We ultimately approved the sentencing court’s admission of the properly authenticated docu ments at the resentencing on remand. Strickland II, 23 Kan. App. 2d 615, Syl. ¶ 2.
Jenkins’ arguments are unpersuasive. First, the DOC report in 1993 was prepared to determine whether Jenkins’ 1987 convictions were subject to retroactive provisions. Obviously, the 1993 convictions were not yet part of Jenkins’ criminal history as it existed in 1987. Second, simply because the DOC report was dated after the 1993 convictions does not mean the report should have listed them or that the State should have objected to their omission.
The language in Strickland II may be dicta, but it is persuasive. We think that the State can rely upon newly discovered convictions to enhance a defendant’s criminal history if the convictions are found prior to sentencing and the defendant is afforded an opportunity to contest the alleged criminal history at a hearing in accordance with K.S.A. 21-4715. This principle is consistent with the goal of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., of imposing uniformly based sentences using the severity level of the offenses and the criminal histories of the individual defendants. See K.S.A. 21-4702; K.S.A. 21-4704.
Jenkins used his opportunity to contest the State’s contention that his criminal history score was A. After conducting a hearing on the objections, the sentencing court properly overruled Jenkins’ objection. This is not a case where the State has attempted to increase Jenkins’ sentence after failing to discover a portion of his criminal history. The State properly relied on all of Jenkins’ prior crimes in calculating his criminal history score for the 1998 crimes. The district court did not err in denying Jenkins’ motion to correct an illegal sentence.
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Johnson, J.:
Tanya Katrina Williams, now known as Katrina Wimer, appeals the district court’s order changing the residential custody of her son, Dalton. Following the order, Dalton’s residential custody was placed with his father, Patrick Kenneth Williams, while residential custody of Dalton’s full sister, Ashley, remained with Katrina. On appeal, Katrina contends that the separation of siblings effected by the district court’s order violated the legislative mandate in K.S.A. 2003 Supp. 60-1610(a)(5)(B), which permits divided custody only in “exceptional cases.” Finding that the district court was presented with an exceptional case, we affirm.
Following their 1996 divorce, Katrina and Patrick had joint custody of Ashley (d.o.b. 06/30/89) and Dalton (d.o.b. 08/01/94), with Katrina as the primary residential custodian. In February 1997, Katrina and the children moved to Oklahoma. Later, she married Troy Wimer, and they have a son, Robert. Patrick remained in Kansas, married Lori, and had a son, Wyatt. Lori also has a son, Tyson, from a prior relationship.
During spring break visitation in March 2003, Patrick took Dalton to see Steven A. Cagle, LSCSW, with Family Practice Associates in Dodge City, to address some concerns Patrick had with Dalton’s behavior and to assess the sincerity of Dalton’s expressed desire to live with his father. Cagle had three sessions with Dalton prior to the conclusion of spring break visitation. In these sessions, Cagle observed that Dalton appeared lethargic and unhappy; Dalton said he did not have a close relationship with his older sister and younger half-brother and insisted that he wanted to live with his father. In the last session, Cagle specifically questioned Dalton about a fire he attempted to set next to his mother’s residence. Dalton said his motive in setting the fire was that he did not want to live at his mother’s house anymore. Cagle was concerned that Dalton appeared to lack remorse; Cagle characterized Dalton’s actions as a “ciy for help.”
In April 2003, Patrick filed a motion to change Dalton’s residential custody from Katrina to himself. Acknowledging that Ashley was apparently doing well in her mother’s custody, Patrick did not ask to change his daughter’s residential custody. In his motion, Patrick alleged, inter alia, that Dalton was exhibiting signs of. behavioral and emotional problems; that Dalton had attempted to set fire to Katrina’s house and Katrina had not dealt with the situation appropriately; that Dalton had expressed a strong desire to live with his father; and that Patrick was better suited to meet Dalton’s current needs.
During the pendency of the custody motion, Patrick asked the court to define his summer visitation because Katrina had allegedly said she intended to deny Patrick any summer parenting time. Based on the parties’ agreement, the court ordered that Ashley and Dalton would visit Patrick from May 24 to June 8, and from June 21 to July 26, 2003.
In May 2003, Katrina moved to transfer the case to Oklahoma pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act, K.S.A. 38-1336 et seq. The Oklahoma court declined to exercise jurisdiction until the Kansas court relinquished jurisdiction. Finding the Kansas situs to be more convenient, the Kansas court retained jurisdiction.
On July 28, 2003, Cheryl Legg of Southeastern Psychiatric Services in McAlester, Oklahoma, met with Katrina and Dalton for an hour. On July 30, Ms. Legg met with just Dalton for an hour and, later in the day, met with Dalton and Ashley. On July 31, Ms. Legg had a family therapy session with Wimer, Katrina, Ashley, and Dalton. Ms. Legg testified that the intensive counseling sessions over a 3-day period were necessary to prepare for the upcoming court hearing. Ms. Legg also characterized Dalton’s fire-setting as a cry for help, although she opined that the relief he sought was from being placed in the middle of a tug-of-war between his mother and father. Ms. Legg opined that Dalton and Ashley had a strong bond and that they should not be separated.
On August 6, 2003, the court held an evidentiary hearing on the custody motion. Testimony was taken from the two therapists, Cagle and Legg, as well as from Patrick, his wife Lori, and Katrina. The parties stipulated to the proffered testimony of Katrina’s husband, Troy. At the conclusion of the hearing, the district court announced from the bench that it was granting the motion to change Dalton’s residential custody to Patrick.
In making its decision, the district court acknowledged that both parents love their children and that there is a presumption requiring the court to keep siblings together unless there is an exceptional case. The court noted that it was considering the history of the case, including Katrina’s lack of cooperation. The court expressed some frustration with Katrina’s attempt to transfer jurisdiction to Oklahoma after the commencement of the custody litigation. The court indicated a belief that Katrina obtained the 11th hour intensive counseling with Ms. Legg to assist in resisting a custody change, rather than to timely address Dalton s problems. Further, the district court specifically found:
“8. That the truth is that there has been friction in the relationship between Dalton and Ashley, even though they love one another.
“9. That there has been an expressed preference by Dalton, in a neutral setting, when there was not a motion pending, that he stay with his father, and there were rational reasons.
“10. That those rational reasons were:
a. That he viewed his mother’s parenting role as geared toward his older sister.
b. That he was discriminated against in a way that caused him to be considered less in the family relationship than his sister was.
c. That he had a preference to stay with his father, who apparently had the ability to show attention when necessary, and also participate in activities that Dalton apparently identified with and benefited from.
“11. That the physical structures of the homes favor the Respondent’s arrangement and the space available for Dalton is more favorable opposed to Petitioner’s home.
“12. That the motivation to maintain a long term view of the parenting roles for both parents would be promoted by allowing Dalton to live with his father.
“13. That there is no persuasive evidence that the sibling relationship will be damaged.
"14. That there has been a lack of communication between the parties that can be improved, if tire children are living in each home.
“15. That there is evidence that is persuasive that there has been a tug-of-war existing and that Dalton feels he is in the middle of it, and that it exists because there is a conflict regarding where he’s going to reside. It can be resolved by changing his residence.
“16. That it would be in Dalton’s best interests if he were to reside with his father.
“17. That all of the facts together, from the beginning of this case, do constitute a material change of circumstances to make that change of custody for Dalton.”
The court made additional findings that are not germane to this opinion. In response to a motion to alter or amend, the district court acknowledged that it had not specified the findings which made this an exceptional case. It then found that, pursuant to 60-1610(a)(5)(B), this is an exceptional case justifying a divided custody order based generally on the totality of the circumstances and specifically on Dalton’s stated preference to live with his father and Dalton’s stated reasons for that preference.
Katrina states the question on appeal to be: “Were sufficient facts established for the district court to find that an exceptional case existed, as a matter of law, to justify the order to divide custody of a brother and sister between the parents?” Appellant’s brief begins by challenging a few of the district court’s findings as being either unsupported by the evidence or controverted by other evidence. Then, the argument transforms into a discussion of why Katrina believes the parties’ difficulties are “ordinary, common and frequent” for similarly situated split families and why Katrina believes the legislature restricted divided custody to protect the bond between siblings. The conclusion she reached is that this case presents no exceptional circumstances which would justify divided custody, as a matter of law.
We perceive appellant’s blended argument can be better analyzed by separating it into two questions: (1) whether the district court’s findings were supported by substantial competent evidence; and (2) whether the district court’s findings were sufficient to support the legal conclusion that this is an exceptional case. Ordinarily, appellate review of a district court custody order is for an abuse of discretion. See In re Marriage of Whipp, 265 Kan. 500, 502, 962 P.2d 1058 (1998). Here, however, we are called upon to interpret and apply K.S.A. 2003 Supp. 60-1610(a)(5)(B), malting the following standard more appropriate:
“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. [Citation omitted.]” Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001).
SUBSTANTIAL COMPETENT EVIDENCE
The judge hearing the custody motion had previously presided over the parties’ disputes. Therefore, we should afford the judge due deference in his consideration of the history of the case and in his characterization of the parties’ motives.
Katrina stipulated to the qualification of Steven Cagle as an expert. Cagle testified that Dalton sincerely wanted to live with his father. He further described Dalton’s reasons for wanting to move from his mother’s residence, which included problems in the relationship between Dalton and Ashley. Granted, Katrina’s expert, Cheryl Legg, provided conflicting testimony on these points. However, we do not function as a trier of fact and must defer to the district court’s determination of which testimony is more persuasive. If we refrain from reweighing the evidence and assessing witness credibility, then we must uphold the factual findings that deal with Dalton’s living arrangement preference and with Dalton’s relationship with his sister.
The district court’s finding that Katrina engaged the services of a therapist to prepare for court, rather than to timely deal with Dalton’s needs is supported by evidence. The attempted fire-setting incident occurred prior to Dalton’s March visitation with his father. Katrina did not effect Dalton’s first intake with Cheryl Legg until July 28, some 9 days prior to the custody hearing, and after a mediator had suggested she obtain counseling for Dalton. Even Ms. Legg characterized the fire-setting act as a cry for help. Further, Ms. Legg opined that Dalton was suffering from adjustment disorder and that he displayed symptoms of depression. She said that she personally handled the case because the Katrina family unit would require intensive counseling. However, she admitted the primary reason for conducting four sessions in 3 days was to prepare for the upcoming court case, and she intimated that Katrina should have sought out her services earlier. From the evidence, one could reasonably infer that Katrina ignored clear signs that Dalton was a disturbed child until she was motivated to obtain evidence for the custody hearing.
The evidence that Dalton would have his own room at Patrick’s house, as opposed to sharing a room at Katrina’s house, was uncontroverted and supported the court’s finding. The evidence supported that Patrick was more attuned and attentive to Dalton’s interests, as opposed to Katrina’s efforts to get Dalton involved with Ashley’s projects.
However, the findings which suggest that separating Dalton and Ashley would result in better communication and cooperation between the parents do not appear to have any factual support in the record. Neither therapist proffered that opinion and, therefore, the judge’s findings in that regard should be disregarded.
In summary, the evidence was sufficient to support the district court’s findings that Dalton wanted to live with his father; that Dalton perceived his mother gave preferential treatment to Ashley; that the relationship between Dalton and Ashley was strained; that Dalton was conflicted by the custody fight; that Katrina had failed to timely recognize and address Dalton’s manifestations of emotional or behavioral problems; that Patrick’s residence would provide Dalton a room of his own; and that Patrick would better accommodate Dalton’s interests. However, all those findings are penultimate. The primary criterion in a custody determination is the best interests of tire child. See LaGrone v. LaGrone, 238 Kan. 630, 632-33, 713 P.2d 474 (1986). The district court’s collateral findings were supported by tire evidence, and tiróse findings supported the determination that divided custody was in the best interests of Dalton.
EXCEPTIONAL CASE
K.S.A. 2003 Supp. 60-1610(a)(5) provides the types of residential arrangements a court may consider in a divorce case, listed in order of preference. Subsection (B) provides: “In an exceptional case, the court may order a residential arrangement in which one or more children reside with each parent and have parenting time with the other.” K.S.A. 2003 Supp. 60-1610(a)(5)(B). Thus, arguably, the district court does not have tire discretion to divide the custody of children of the same parents where there are no exceptional circumstances. See LaGrone, 238 Kan. at 635 (Lockett, J., concurring in part, dissenting in part). Interestingly, neither party mentions die fact that under any arrangement, both Dalton and Ashley will, by necessity, be separated from a half-brother.
Our next step, then, is to determine whether the findings which are supported by substantial competent evidence are sufficient to conclude that the district court was presented with an “exceptional case.” LaGrone is the only case on divided custody cited by either party.
The LaGrone majority opinion states the obvious: “The statute does not define what an exceptional case is, nor does it give examples.” 238 Kan. at 633. However, the opinion does not attempt to provide a definition, but rather simply states that “[t]he facts before the trial court in this case were unusual.” 238 Kan. at 633. Apparently, the unusual character of that situation was that the father had, at times, been the primary caretaker of the child placed in his custody. The dissent noted the testimony that “the two children loved each other, played together and got along well,” and that both parents were fit, both loved their children, and both took good care of them. 238 Kan. at 634-35. The dissent could not find any exceptional circumstances, rejected the majority’s reliance on perpetuating the status quo, and lectured that “[fjamily ties between children of the same parents should not be treated lightly.” 238 Kan. at 635.
No reasonable person can seriously doubt the wisdom of Justice Lockett’s admonition regarding sibling relationships. See Henderson v. Henderson, 537 So. 2d 125, 128 (Fla. Dist. App. 1988) (family unit should not be further fractured by a divorce). Children should not be deprived of a sibling relationship simply to accommodate the wants and needs of their separated parents. However, when the children’s own welfare is implicated, the nonseparation rule is subordinate to the best interests of the child rule. Otherwise, we might well be employing a rule developed for the benefit of the children of divorcing parents to actually defeat that which would be beneficial to the child.
Perhaps it is best that neither statutory law nor case precedent provides a definition for “exceptional case.” The determination is too important to be subjected to a mechanical application of an artificial litmus test containing three factors or two prongs. However, we feel comfortable definitively stating that, when the district court makes a finding, supported by substantial competent evidence, that divided custody is in a child’s best interests, the court has met the requirement of establishing an “exceptional case.”
Here, the district court found divided custody to be in Dalton’s best interests. That finding was supported by substantial competent evidence. As a matter of law, this was an exceptional case.
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Green, J.;
Belinda Crowe appeals from the trial court’s grant of summary judgment in favor of True’s IGA, LLP, (True’s) and K&S Oil Co., Inc. (K&S) in Crowe’s negligence claim. On appeal, Crowe argues that the trial court erred in finding that there was no genuine issue of material fact as to the duty and breach elements of her negligence claims. We find that under the facts of this case, summary judgment was appropriate for both True’s and K&S. Accordingly, we affirm the trial court’s ruling.
Facts
K&S owned and maintained the storage tanks and pumping stations that were in front of True’s. The arrangement was that True’s leased to K&S a 30 x 60 foot area in front of its store where the pumping stations were located. In exchange, True’s received 50% of the gross profits from K&S’s use of the leased area and also had the right to use the leased area as long as it did not conflict with K&S’s activities. The arrangement between True’s and K&S was incorporated into a commission marketing agreement and a special purpose lease.
During December 2001, Crowe drove to True’s to purchase $10 worth of gasoline for her car. Crowe testified that as she pumped the gasoline into her car, she depressed the hand lever on the gasoline nozzle but did not engage the locking mechanism. When the meter approached $10, she released her hold on the handle, but the handle became stuck and would not release. Although Crowe tried to use her thumb to release the handle, her efforts were unsuccessful.
At that point, Crowe removed the nozzle from her car’s gasoline tank and again tried to dislodge the handle. When the gasoline continued to flow out of the nozzle, Crowe placed the nozzle on its resting place of the gasoline pump. Crowe testified that she tried to get the attention of the store attendant by waving her arms and yelling for help but was unsuccessful. Finally, she removed the nozzle from its resting position and placed it at the base of the pump. Crowe testified that some of the gasoline had spilled on her tennis shoes.
Crowe carefully walked into True’s and told the cashier, Kristi Martin, that the gasoline pump would not shut off and that gasoline was going eveiywhere. The service desk at True’s was located about 15-20 feet from the cashier’s station and was regularly staffed. Al though the pumping stations were visible from the service desk, the attendant was busy with a customer and was unaware of the incident outside.
Crowe testified that Martin used the intercom to call the owner, Tom True, to the front of the store. Crowe followed Martin outside where Martin attempted to shut off the gasoline pump. There was gasoline all around Crowe’s car, and Martin warned Crowe to stay back.
The testimony of Crowe and Martin differ as to how long it took Martin to stop the gasoline flow once she reached the gasoline pump. Crowe testified that it took Martin approximately 5-10 minutes to shut off the gasoline, while Martin testified that it only took her a couple of seconds to disengage the handle and turn off the gasoline.
After she stopped the gasoline flow, Martin started walking back into the store. Crowe testified that Martin walked around the gasoline pump in order to avoid the gasoline spill. Nevertheless, Crowe walked through the gasoline spill and to her car where she retrieved her purse from the front seat. After Crowe got her purse, she walked carefully towards the store. Crowe testified that she was aware the gasoline was slick and did not want to fall. Crowe’s efforts were unsuccessful, however, and she slipped and fell outside the store. Crowe was outside the pool of gasoline when she fell.
Tom testified that he had just gotten outside when he witnessed Crowe’s fall. He testified that Martin called him to the front of the store and told him that there was a gasoline spill. He was just coming out of the store when he saw the gasoline and saw Crowe fall.
After Tom witnessed Crowe’s fall, he checked to see how much gasoline was on the ground and then called the fire department. Tom also placed an out of order sign on the gasoline pump and called Mark Hurlbutt, the owner of K&S, and reported the problem. When Hurlbutt inspected the pump used by Crowe, he discovered the spring mechanism on the nozzle was not functioning properly and replaced the nozzle.
After her accident, Crowe filed suit against both True’s and K&S alleging that they were negligent in failing to keep the premises safe and in failing to properly repair and maintain the gasoline pumps, hoses, and nozzles. Crowe maintains that as a result of the accident, she sustained two herniated discs in her back. Since the accident, she has undergone three surgeries and incurred medical expenses of $101,924.07. The trial court restricted her medical expense recovery to $23,704 as this was the amount paid by Medicaid.
After discovery had been completed, both True’s and K&S moved the trial court for summary judgment, essentially arguing that they did not owe a duty to Crowe and that they did not breach a duty. The trial court granted summary judgment as to both K&S and True’s.
In ruling on the summary judgment motions, the trial court considered Brock v. Richmond-Berea Cemetery Dist., 264 Kan. 613, Syl. ¶ 3, 957 P.2d 505 (1998), where our Supreme Court stated:
“Generally, in the absence of any statutory exemptions, the occupier of land owes to invitees and licensees alike a duty of reasonable care under the circumstances. Before an occupier of land may be held liable for an injury resulting from a dangerous condition, however, the plaintiff must show that the defendant had actual knowledge of the condition or that the condition had existed for such a length of time that in the exercise of ordinary care the landowner should have known about it.”
The trial court determined that there was no evidence that K&S and True’s had any warning or knowledge of the defect or that the defect existed for a period of time in which they should have discovered it. As a result, the trial court concluded that there was no genuine issue of material fact as to the duty and breach elements of this negligence action.
Standard of Review
The issue in this case is whether the evidence established a genuine issue of material fact as to the duty and breach elements of Crowe’s negligence claim so that summary judgment was precluded.
Our standard of review in summary judgment cases is well-established:
. .“Summary judgment is appropriate when the.pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
True’s Duty To Exercise Reasonable Care
Crowe first contends that the trial court erred in granting summary judgment in favor of True’s. Crowe argues that True’s had knowledge of the condition because Martin saw gasoline everywhere and she warned Crowe to stay outside the area of the gasoline spill while she attempted to turn off the gasoline pump.
As noted by the trial court, the general rule is that an occupier of land owes a duty of reasonable care under the circumstances to an entrant. Liability does not attach, however, if the plaintiff is unable to show that the defendant had actual knowledge of the condition or that the condition had existed for a length of time that in the exercise of ordinary care the landowner should have discovered it. Brock, 264 Kan. 613, Syl. ¶ 3.
The trial court was incorrect in finding that True’s did not have actual or constructive knowledge of the condition. Although True’s did not know about the defect in the gasoline pump before Crowe’s fall, Crowe’s petition did not merely focus on the defective gasoline pump. She also set forth facts relating to the gasoline spill and asserted that the defendant failed to keep the premises safe. The evidence revealed that True’s had notice of the gasoline spill before Crowe’s accident. Specifically, Martin, an employee of True’s, walked outside and saw gasoline everywhere before Crowe slipped and fell. Therefore, the trial court relied on the wrong reason when granting summary judgment in favor of True’s.
Although the trial court relied on the wrong reason in making its decision, this does not end our inquiry. The judgment of a trial court, if correct, will be upheld even though the trial court relied upon the wrong ground for its decision. State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002).
“ Tn a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.’ [Citation omitted.]” Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993).
Our Supreme Court has determined that the factors to be considered when determining whether a land occupier exercises reasonable care under all the circumstances include
“the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.” Jones v. Hansen, 254 Kan. 499, 509-10, 867 P.2d 303 (1994).
As discussed above, an occupier of land owes a duty of reasonable care under the circumstances to an entrant. Nevertheless, the general rule is that a possessor of land has no duty to remove known and obvious dangers. See Miller v. Zep Mfg. Co., 249 Kan. 34, 43, 815 P.2d 506 (1991). Crowe was aware of the gasoline spill and knew the dangers of walking through gasoline. She testified that she walked carefully after retrieving her purse from the car because she did not want to fall.
Crowe’s knowledge of the gasoline spill, however, did not eliminate True’s duty to exercise reasonable care under the circumstances of this case. Our Supreme Court, in Miller, stated that the possessor of land may have an affirmative duty to minimize the risk of an open and obvious danger when there is reason to expect that an invitee will be distracted, will forget the discovered danger, or will fail to protect against the danger. Miller, 249 Kan. at 43; see also Restatement (Second) of Torts § 343A, comment f (1964) (stating that possessor of land will not be relieved of duty of rea sonable care when possessor can anticipate that dangerous condition will cause physical harm to invitee in spite of its known and obvious danger).
Because Crowe’s car was located in the middle of the gasoline spill, there was reason to believe that she would fail to protect against the danger of walking through the spill. This was not a situation where Crowe could have avoided the gasoline spill when retrieving her car. Therefore, True’s had the duty to minimize the risk from this obvious danger which was located on its premises.
Breach of True’s Duty
Our analysis turns to whether True’s breached its duty to exercise reasonable care in minimizing the risk of the gasoline spill. Ordinarily, whether an occupier breaches the duty of care is a factual issue which is left to the province of the jury. See Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 (1992). When reasonable persons could arrive at only one conclusion to a factual issue, however, this court can determine the issue as a matter of law. Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991).
Under the circumstances of this case, the evidence conclusively established that True’s did not breach its duty to exercise reasonable care in minimizing the risk of the gasoline spill. The evidence revealed that True’s was not given a reasonable amount of time to clean up the gasoline spill before Crowe knowingly walked through the dangerous spill to retrieve her purse and fell. The following excerpts from the summary judgment motions and deposition testimony are helpful in setting forth Crowe’s knowledge of the dangerous condition and the steps taken by True’s employees to alleviate the risk of the spill.
In her response to True’s summary judgment motion, Crowe admitted the following facts:
“Crowe took tire nozzle back out of the pump station and placed it on to the ground while gasoline was still flowing from the pump, and then walked into True’s to tell a clerk.”
“Crowe spilled approximately 60 gallons of gasoline on to the ground.”
“Crowe was aware that the ground was covered with gasoline and that the ground was slick and dangerous because of the gasoline she spilled on the ground.”
“Crowe had been standing in a pool of gasoline before walking into the store to tell the clerk.”
Once Crowe informed Martin of the situation, Martin went outside to shut off the pump. Although Crowe was already aware of the dangerous condition, Martin also warned her to stay away from the gasoline spill. Specifically, Crowe testified that the following warning was given:
“Q. Where did you go?
“A. Well, I started to follow her [Martin] and she told me to stay back.
“Q. Okay. Did —what about the situation did you believe she wanted you to stay back from? Was it the gas on the ground?
“A. Yes. That’s what I figured.
“Q. Okay. So where did you stop walking?
“A. It was right in front of the gas pumps because’there wasn’t gas right there.”
After Martin shut off the pump, she walked towards the store. At that point, Crowe walked through the pool of gas which was open and obvious to her and retrieved her purse from her car. In recognizing the danger of walking through gasoline, Crowe testified to the following:
“Q. When you walked to your car to get your purse, there was gas on the ground?
“A. Yes.
“Q. You could see the gas?
“A. Yes.
“Q. And you knew to get to your car door you had to walk through the gas?
“A. Yes.
“Q. You get the purse out of your car?
“A. Yes.”
“Q. What happened next?
“A. I turned around to go towards the store, when I did I slipped and fell.
“Q. Had you gotten to the front of your car by the time you slipped and fell?
“A. Yeah. I was right in front of it.
“Q. Okay. Now, as you walked from your car to the place where you fell, were you trying to be careful?
“A. Yeah, I was being real careful.
“Q. And why were you trying to be careful?
“A. Because I didn’t want to fall.
“Q. And what about tire situation made you fearful that you were going to fall?
“A. Because there was gas everywhere.
“Q. Okay. Did you think the gas was slick?
“A. Yes, I did.
“Q. As you’re walking from your car to where you fell, what were you looking at?
“A. I was looking down at the gas.”
In summary, the evidence established that Crowe knew about the pool of gasoline on the ground. In addition, the accumulation of gasoline on the ground was an open and obvious danger. Before Crowe slipped and fell, she was warned to stay away from the area of the gasoline spill. As indicated by her testimony, Crowe was aware of the danger of walking through gasoline. She testified that she knew that the gasoline would make it slippery to walk and that she was afraid of falling. Instead of asking for assistance or giving True’s an opportunity to clean up the spill, Crowe immediately walked through the dangerous condition once Martin shut off the pump. This court has stated: “[A] proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. [Citation omitted.] However, a proprietor ... is not an absolute insurer of the safety of customers. [Citation omitted.]” See Agnew v. Dillons, Inc., 16 Kan. App. 2d 298, 300, 822 P.2d 1049 (1991).
Turning our attention again to the facts of this case, we must ask the following question: Were True’s actions “reasonable” under the circumstances? Once Martin and Tom became aware of the dangerous condition, they exercised reasonable care in minimizing the danger of the gasoline spill. Specifically, when Martin became aware of the condition, she alerted Tom, warned Crowe to stay back from the spill, and shut off the pump. Before Tom was able to examine the condition, Crowe walked through the gasoline spill to retrieve her purse and fell. Once he examined the condition, he called the fire department to clean up the spill. Within the short time that True’s had before Crowe knowingly encountered the open and obvious condition, the evidence indicates that every reasonable effort was made to minimize the risk of the gasoline spill.
Based on the fact that Crowe was fully aware of the dangerous situation created by the gasoline spill and that True’s made rea sonable efforts to minimize the risks of the spill, we find that there was no genuine issue of fact as to whether True’s breached its duty of reasonable care under the circumstances.
KbS’s Duty
Crowe next argues that under Restatement (Second) of Torts, § 324A (1964), K&S had a duty to exercise reasonable care in the maintenance of its gasoline pumps. Crowe contends that summary judgment for K&S was inappropriate because a question of fact existed as to whether K&S met the standard of reasonable care.
The Restatement (Second) of Torts § 324A provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases tire risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to tire third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
Our Supreme Court has determined that to meet the threshold requirements of Section 324A, “the defendant must assume an obligation or intend to render services for the benefit of another, and the person to whom such actions are directed must accept such services in lieu of, or in addition to, such person’s obligation to perform services. [Citation omitted.]” Anderson v. Scheffler, 248 Kan. 736, 741, 811 P.2d 1125 (1991).
K&S points out that Section 324A requires nothing more than reasonable care which is the standard of care for premises liability in Kansas. K&S argues that the trial court’s ruling was correct because the evidence failed to establish that K&S had actual or constructive notice of the defective gasoline pump prior to Crowe’s fall.
As noted previously, defendants must have actual or constructive notice of the condition before they can be held liable. See Brock, 264 Kan. at 620. The evidence revealed that before Crowe’s fall, there had been no problems with the nozzle that Crowe was using. Although Crowe testified that 1 or 2 weeks before the date of her accident she saw two K&S employees working on what appeared to be a gasoline nozzle at tire pump station where her accident occurred, she was unsure which pump the employees were working on. As a result, the evidence failed to establish that K&S had notice of the defective condition prior to Crowe’s accident. Because there was no evidence that K&S had actual notice of the defect or that the defect existed for a period of time in which it should have been discovered, K&S is not liable for negligence.
Additionally, there was no evidence that K&S breached its duty to maintain the pumps. Hurlbutt testified that the normal procedure was for Tom to call him when there was a problem with the gasoline pumps. Hurlbutt further testified that whenever he was in the area he checked with Tom about any possible problems and also conducted a physical inspection of the equipment. Crowe did not come forward with any evidence that this procedure departed from the maintenance that should be conducted on gasoline pumps.
The moving party in a summary judgment motion has the burden to show that there is no genuine issue of material fact. Once this has been done, the adverse party must come forward with evidence to establish a dispute as to a material fact. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). The adverse party cannot rest upon mere allegations or denials of the adverse party’s pleading but must set forth specific facts showing there is a genuine issue for trial. See K.S.A. 2003 Supp. 60-256(e). Because Crowe did not set forth specific facts to show that K&S was negligent in the maintenance of the gasoline pumps, she failed to establish a genuine issue of material fact as to whether K&S breached its duty of reasonable care.
Moreover, Crowe’s assertions in her petition do not support a claim that her injuries were proximately caused by the failure to repair and to maintain the gasoline pumps, hoses, and nozzles. After Martin shut off the gasoline flow, the only dangerous condition that remained was the spilled gasoline. Crowe testified that Martin walked around the gasoline pump to avoid the gasoline spill. Although a safe route around the gasoline spill existed, Crowe walked through the gasoline spill to retrieve her purse from her car. Crowe’s testimony that she slipped and fell after walking through the pool of gasoline indicates it was the accumulation of gasoline, rather than the type of gasoline pump, hose, or nozzle, which caused her to lose her footing and fall. See Aguirre v. Adams, 15 Kan. App. 2d 470, 809 P.2d 8 (1991) (holding that landlord’s failure to provide hot water to tenant’s bathtub was not proximate cause of the tenant’s toddler being burned in bathtub by hot water while tenant was bringing water from kitchen and was not supervising child).
As an additional note, K&S asserts that the Restatement (Second) of Torts § 324A is inapplicable to the facts of this case because K&S did not assume True’s obligation to maintain the pumps. K&S asserts that True’s did not have any obligation to maintain gasoline pumps that it did not own. Instead, K&S, as the owner of the gasoline pumps, had its own obligation to maintain the pumps.
It is true that K&S did not assume True’s obligation to perform maintenance on the pumps as True’s never had such an obligation. It is unnecessary to conduct a lengthy discussion on this issue, however, because we have already determined that K&S cannot be held hable on Crowe’s negligence claim. Therefore, we find that summary judgment was appropriate.
Finally, Crowe argues that under the doctrine of joint venture, True’s and K&S are both responsible for breach of the duty of care. It is unnecessary for us to address this argument. Our decision that neither True’s nor K&S breached the duty of care makes it unnecessaiy to address this issue
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Hill, J.:
Thomas Honton appeals the district court’s denial of his motion to correct an illegal sentence. Honton contends that he should have been sentenced for his securities fraud violation under the lesser 1989 penalty for his crime instead of the more harsh 1990 penalty. Because his misappropriation of funds took place in January 1991, the 1990 penalty applies, and we affirm the district court’s denial of Honton’s motion.
HISTORY OF THIS MOTION
Honton was convicted in January 1996 of one count of securities fraud in violation of K.S.A. 17-1253 (Ensley 1988) (penalty section K.S.A. 1991 Supp. 17-1267). He received an indeterminate sentence of 3 to 10 years for the Class D felony as well as 2 years’ probation and was ordered to pay restitution. Honton’s conviction was affirmed by this court in State v. Honton, No. 77,317, unpublished opinion filed May 1, 1998. His probation was extended in January 1999. Probation was revoked in November 2001 when the district court ordered Honton to serve his 3- to 10-year sentence.
Honton filed a pro se motion to correct an illegal sentence in July 2002, arguing that he had been improperly sentenced to an indeterminate 3- to 10-year sentence under K.S.A. 1991 Supp. 17-1267 when he should have been sentenced under K.S.A. 17-1267 (Ensley 1988) that provided for a maximum sentence of 3 years. Honton also argued that the district court erred when it extended his probation in 1999 because he was not present for the hearing. The district court denied Honton’s motion and ruled that Honton was not eligible for sentence conversion from an indeterminate sentence to a determinate sentence. Plonton appeals this order, contending his is an illegal sentence, and asks us to remand his case for resentencing. He also argues that his probation could not have exceeded 3 years (matching the maximum 1989 sentence), and, therefore, the district court could not have extended his probation past 1999.
CASE BACKGROUND
Lee and Dorothy Hansen initially retained Honton as their C.P.A. in a tax dispute with the Internal Revenue Service. Lee Hansen testified during Honton’s trial that he later wired $58,000 to Honton in 1989 in accordance with a tax shelter and investment plan they had discussed. The Hansens thought that Honton was going to invest the money in mutual funds. Without the knowledge or consent of the Hansens, Honton spent the money in January 1991 on a worthless Colorado water rights investment and some personal business expenses. The Hansens tried to contact Honton for 2 years. His fraud was not discovered until 1993, after Lee Hansen filed a complaint about Honton with the Kansas Securities Commissioner.
POINTS OF LAW
An illegal sentence is defined
“ ‘ “ ‘[as] either a sentence imposed by a court -without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.’ ” ’ [Citations omitted].” State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).
An illegal sentence may be corrected at any time under K.S.A. 22-3504(1). The issue of whether a criminal sentence is illegal is a question of law, State v. Reed, 23 Kan. App. 2d 661, Syl. ¶ 1, 934 P.2d 157, rev. denied 262 Kan. 968 (1997), and an appellate court’s review of a question of law is unlimited. State v. Robinson, 261 Kan. 865, Syl. ¶ 1, 934 P.2d 38 (1997).
APPELLANTS CONTENTIONS
Honton contends that because of the way he was charged, the manner in which his jury was instructed, and the fact that his jury rendered a general verdict that did not specify the date of his offense, he should have been sentenced under the 1989 penalty for his crime and not the more harsh 1990 penalty. The complaint filed against Honton alleged that he committed securities fraud “on or about the 12th day of April, 1989 . . . through and including on or around the month of August, 1993.”
The elements instruction given to his jury provided:
“In this case, the defendant, Thomas B. Honton, is charged with the crime Unlawful Acts in Connection with The Offer, Sale or Purchase of Securities. The defendant’s plea to this charge is not guilty.
“To prove this charge, the State must prove the following:
“1. That the defendant was involved directly or indirectly in the offer or sale of a security to or for Lee and/or Dorothy Hansen;
“2. That the defendant
(A) Engaged in an act, practice or course of business which operated as a fraud or deceit upon Lee and/or Dorothy Hansen, or
(B) Omitted to state a material fact necessary in order to malee the statements which were made, in light of the circumstances under which they were made, not misleading, to-wit:
(1) that money of the Hansens had been misappropriated in January, 1991, and that the misappropriated money had been used for the defendant’s personal benefit.
(2) that the Hansen’s money was lost in the Colorado water investment.
“3. That one or more of these acts and/or omissions occurred between the 12th day of April, 1989, and the month of August, 1993, in Sedgwick County, Kansas.”
ANALYSIS
Between April 1989 and August 1993, there were three possible sentences for violating the securities fraud statute. First, K.S.A. 17-1267 (Ensley 1988) stated the maximum sentence available was not more than 3 years. Then in 1990, that statute was amended and the crime was reclassified as a class D felony with a possible minimum sentence of 1 to 3 years’ confinement and maximum of 5 to 10 years. See K.S.A. 1991 Supp. 17-1267. After that, on July 1, 1993, with the advent of sentencing guidelines, the crime was described as a level 6, nonperson felony. See K.S.A. 1993 Supp. 17-1267.
Honton does not argue in this appeal that his sentence should have been converted from an indeterminate to a determinate sentence under the sentencing guidelines. Instead, he argues that because tire jury did not specify when his crime took place and since the State alleged a range of dates, he should have been sentenced to the lesser of the two available sentences and cites State v. Mullins, 267 Kan. 84, 977 P.2d 931 (1999), as support.
The Mullins court vacated Mullins’ 15 years to life indeterminate sentence and ordered that a lesser determinate sentence be imposed because the evidence at his trial showed that the acts constituting the offense occurred after July 1, 1993, which was the effective date of the Kansas Sentencing Guidelines Act. The complaint charged Mullins with aggravated criminal sodomy against his son from sometime in December 1992 until January 1995. The jury instructions listed the same time span for the crimes.
Like Mullins, Honton’s charges were just as broad, but the facts introduced at his trial indicated Honton removed the money for his own use in Januaxy 1991. Honton was sentenced in accordance with the statute that was amended in 1990 and in effect in 1991 when he converted the money. This fact distinguishes this case from Mullins because Mullins was sentenced under a statute not in effect when his criminal acts took place. Just as the Mullins court looked beyond the jury verdict, so do we.
While the State alleged a course of fraudulent conduct on the part of Honton with a scheme to defraud “[o]nce the fraudulent act is . . . done, the crime is complete.” See State v. Micheaux, 242 Kan. 192, Syl. ¶ 5, 747 P.2d 784 (1987) (holding that welfare fraud is complete once the defendant obtained welfare assistance by use of a false statement or other fraudulent device). Honton s crime was completed but undiscovered when he converted the Hansens’ money to his own use. Once the money was taken, Hon-ton continued to engage in acts of concealment of the crime. Had his misappropriation been discovered earlier than 1993, he could have been charged earlier. Honton did not receive an illegal sentence. Defendant was properly sentenced under the penalty section in effect when his crime was completed.
Honton raises an issue on appeal about the period of his probation. He contends that his probation could not have exceeded 3 years, the maximum sentence possible under the 1989 penalty. Because we are affirming his sentence, we think his probation could have been extended to 10 years. The district court, therefore, did not lose jurisdiction to extend Honton’s probation.
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Hill, J.:
Gonzalo Larraco was tried and convicted of several felonies by a judge. A defendant has a fundamental right to a jury trial granted by constitution and by statute. In order to waive this right, a defendant must first be advised by the court of the right to a jury trial and then must personally waive this right, either in writing or in open court for the record. Because defense counsel here simply talked to the judge’s secretary on the telephone and none of the requirements for properly waiving a jury trial were followed, we must reverse Larraco’s convictions and order a new trial.
Furthermore, the trial court admitted the preliminary hearing testimony of a witness that the State permitted to be deported, without first holding an evidentiary hearing to examine whether the State had made reasonable efforts to assure the presence of the alien witness at trial. We deem that admission an abuse of discretion.
FACTUAL SUMMARY
Dodge City police officers investigated a fight after receiving a call placed by Delfino Déla Rosa-Moreno on January 1, 2002. The officers went to a local motel where they found Gonzalo Larraco with a swollen and scratched face. Larraco told officers he had been in a fight with “Hector,” who was later identified as Rosa-Moreno. Police found a gun inside Larraco’s motel room. Larraco was later charged with two counts of batteiy and one count each of aggravated burglary, aggravated assault, criminal threat, and criminal damage to property.
After the trial judge found that Rosa-Moreno was unavailable as a trial witness because of his deportation on August 7, 2002, his preliminary hearing testimony was admitted into evidence against Larraco. We will briefly review the testimony of Rosa-Moreno, Jake Gallegos, and Larraco that was presented at trial.
The preliminary hearing testimony of Rosa-Moreno admitted at trial indicated that he recognized Larraco as a thief who had stolen property from Gallegos’ house. Rosa-Moreno became angry when he saw Larraco at Gallegos’ house on January 1, 2002, and began to argue and fight with Larraco. Larraco threatened to get a gun and shoot Rosa-Moreno. Rosa-Moreno testified that Larraco did not return to Gallegos’ house. However, Rosa-Moreno stated that he was approached by Larraco while traveling to a convenience store later that day. Larraco pointed a gun at him, saying, “I’m gonna shoot you.” Rosa-Moreno told Larraco to drop the gun and to fight. Larraco responded, “No, you’re gonna die.” Rosa-Moreno then reported the incident to police.
Gallegos explained at trial that the house where he resided had been robbed several days before Larraco stopped by on January 1. When Rosa-Moreno recognized a personal item which had been stolen in the possession of Larraco, Rosa-Moreno and Larraco began to fight, and Gallegos broke up the fight. Gallegos said Larraco returned later that day to the house with a steel pipe, looking for Rosa-Moreno; however, Rosa-Moreno was not there. Larraco was wielding a gun when he returned the second time. Gallegos locked the front door, but Larraco lacked in tire door and entered the house. Gallegos then sprayed Larraco with pepper spray. As Larraco was retreating, Gallegos threw a vacuum cleaner at Larraco’s head. In the meantime, Rosa-Moreno returned to the house. Larraco stood outside the front of the house pointing the gun at Rosa- Moreno and Gallegos alternatively. After approximately 15 minutes, Larraco left.
Larraco testified in his own behalf that he had previously lived about 2 to 3 months at the house where the incident occurred with Gallegos and Rosa-Moreno. He had moved out of the residence and into a motel the day before the fight. Larraco stated the fight broke out when he went to the residence to buy drugs. Larraco explained that Gallegos and Rosa-Moreno beat him due to. a dispute over the price of drugs and because the two men believed he had stolen drugs from them the day before. He denied that he had returned later to the house with either an iron bar or a gun and also stated that he did not go to the convenience store and point a gun at Rosa-Moreno. Larraco testified that the gun recovered by the police did not belong to him.
At the close of the bench trial, the judge stated that he did not find Larraco’s testimony credible and noted the differences in testimony given by Gallegos and Rosa-Moreno. Based on this evidence, the judge found Larraco guilty of aggravated burglaiy, aggravated assault (with a firearm), criminal threat, and criminal damage to property. Larraco was acquitted of two counts of battery. He was sentenced to a prison term of 114 months based upon a criminal history score of B. Larraco timely appealed.
RIGHT TO JURY TRIAL NOT WAIVED
There is no more fundamental right in the United States than the right to a juiy trial. A criminal defendant has both a constitutional and a statutory right to a jury trial. See U.S. Const. Amend. VI; Kan. Const. Bill of Rights §§ 5, 10; K.S.A. 22-3403(1). Moreover, “[t]he law favors trial by jury, and the right should be carefully guarded against infringements. [Citation omitted.]”) Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 516, 497 P.2d 110 (1972).
Furthermore, K.S.A. 22-3403(1) provides that all trials of felony cases shall be by jury unless the defendant and prosecuting attorney, with the consent of the court, submit the trial of a felony to the court. Although a defendant may waive this right, for the waiver to be effective “the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975). “Whether this test is satisfied in any given case will depend on the particular facts and circumstances of that case, but a waiver of the right to a jury trial will not be presumed from a silent record. [Citations omitted.]” 216 Kan. at 589.
Larraco argues that there is no written or oral record that he knowingly and voluntarily waived his right to a jury trial. Indeed, no Written waiver of Larraco’s right to a jury trial is included in the record on appeal. The only transcripts provided of proceedings before the district court are of Larraco’s arraignment, the preliminary hearing testimony of Rosa-Moreno, Larraco’s bench trial, and sentencing.
We review briefly what was said to Larraco about the trial and a jury. When addressing Larraco at the arraignment, the trial judge did tell Larraco that if he chose to enter a not guilty plea on all of the charges, he would “be entitled to a jury trial. At that jury trial, the State would be required to prove these charges beyond a reasonable doubt before you could be convicted.” The trial judge explained the sentences Larraco could be facing:
“INTERPRETER: “THE COURT: Could I explain to him that this is only if he’s convicted? I will explain that to him. These sentences could only be imposed if you are convicted. It would not be imposed if you plead not guilty, at least, not today. The State would have to prove the charges before these sentences could be imposed. If the jury trial resulted in a not guilty finding by the jury, if the jury found you not guilty, you would have no sentences.
“INTERPRETER: I have a letter where they accuse me. They are telling the truth that they were taking me in because they were trying to get the other guy for drugs.
“THE COURT: Well, that is a matter to present at trial. It doesn’t really have any bearing today.
“INTERPRETER: That’s the letter that they were giving me that I was accused with, the Complaint.
“THE COURT: If you believe you have evidence to present, you would present it at trial. And, you should show that letter to your attorney, if you have it. I believe, if you are unable to enter a plea of not guilty, I will enter one for you.
“INTERPRETER: He said, 1 can’t do it, because it’s not true.’
“THE COURT: Well, I’m going to enter a plea of not guilty on all six charges in the Complaint, and direct that this case b,e Scheduled £qí pretrial and trial. ,,
“INTERPRETER: He said that he wants them to present their proof, their evidence. And, I told him that they would during the tidal.
“THE COURT: That is the purpose of a trial, to require the State to prove these charges. If they can not (sic) prove them, you would be found not guilty at the trial. So, that is what we wilhdo. The trial will be set within 90 days unless there is a waiver.” (Emphasis added.)
The trial judge spoke to Larraco only about a “jury trial” or- a “trial.” The difference between a bench trial and juiy trial was not explained to Larraco. Based on the record provided, Larraco did not waive his right to a jury trial either by written stipulation-or orally on the record. •
Following submission of the appellant’s brief, the State,,in a vain attempt to bolster its argument, added, to the record an 'affidavit submitted by Larraco’s trial counsel, Linda L. Eckelman, made oh October 30, 2003. In her affidavit, Eckelman maintained that she discussed the right to a jury trial several times with the defendant and that when contacted by the trial judge’s secretary to set a trial date, she informed the secretary that it would be a bench trial.,.
While an attorney may make representations to the court which bind the client, defense counsel can only waive the rights of clients as long as those rights are not inherently personal, fundamental rights. See State v. Rambo, 10 Kan. App. 2d 418, 423, 699 P.2d 542, rev. denied 237 Kan. 888 (1985). In Crease v. State, 252 Kan. 326, 334, 845 P.2d 27 (1993), and State v. Antwine, 4 Kan. App. 2d 389, 401, 607 P.2d 519 (1980), Kansas appellate courts have concluded that an attorney may pot waive a client’s constitutional right unless the record shows the attorney has discussed,the matter with the client and the client has voluntarily waived the right. If the record is silent, a waiver of a constitutional right will not be presumed. Antwine, 4 Kan. App. 2d at 401.
However, the State argues that Larraco’s counsel attested in her affidavit that she had discussed with Larraco his right to a jury trial and that he had waived the same. The State asserts that Larraco cannot now claim error simply because the conversation between himself and his attorney was not made a part of the record. Such assertion misses the point. The cases require the defendant to personally waive the right in writing or in open court. Larraco’s attorney could not do this on his behalf by merely talking to the judge’s secretary.
While it is possible Larraco was advised of his right to a jury trial, the trial court neither obtained this information from Larraco nor attempted to have him execute a formal waiver of that right as required by State v. Jones, 19 Kan. App. 2d 982, 984, 879 P.2d 1141 (1994) (Defendant’s right to jury trial can only be waived when defendant is advised by court of his or her right to trial by jury, and defendant personally waives right in writing or in open court.). Because the record does not contain a formal waiver of his right to a jury trial, we must reverse Larraco’s convictions and remand the case with directions to grant Larraco a new trial “where he can be afforded that right.” 19 Kan. App. 2d at 984.
As we are ordering a new trial, the remaining issues raised by Larraco, except the admissibility of Rosa-Moreno’s preliminary hearing testimony, need not be resolved.
DEPORTED WITNESS
Unless Rosa-Moreno has returned to the United States and is within the jurisdiction, the trial court will be confronted with the issue of using his preliminary hearing testimony at any subsequent new trial. During investigation of Larraco’s case, Rosa-Moreno was charged and convicted of a separate crime. The Immigration and Naturalization Service (INS) was prepared to deport Rosa-Moreno to Mexico after his conviction. On April 15, 2002, the State filed a motion asking the court to find that Rosa-Moreno was a material witness. The court ordered Rosa-Moreno held as a material witness. Fifteen days after the district court-ordered hold was filed, Rosa-Moreno testified at Larraco’s preliminary hearing on April 30, 2002.
Then, on August 1, 2002, Rosa-Moreno was served with a subpoena to be at Larraco’s trial on September 18, 2002. However, on August 2, 2002, an order was entered releasing Rosa-Moreno. The order stated: “[A]fter reviewing the files and being fully ad vised in the premises,” Rosa-Moreno was “no longer needed to be held in Ford County Detention Center as a witness in State v. Larraco, Ford County Case 02 CR 03.”
As previously noted, the State submitted the affidavit from Larraco’s counsel. Relevant to this issue, Eckelman’s affidavit indicated she had cross-examined Rosa-Moreno at the prekminary hearing and she was aware that (1) the State had a “court ordered hold” on Rosa-Moreno to enable him to testify in Larraco’s case; (2) Rosa-Moreno was demanding to be released from the hold which kept him in jail; (3) the Ford County assistant attorney had been contacted twice by the Mexican Consulate; and (4) Rosa-Moreno had written letters to the Ford County attorney.
Eckelman’s affidavit further explained that she had discussed releasing the hold on Rosa-Moreno with the Ford County assistant attorney on July 29, 2002. The State informed Eckelman that, even if the court-ordered hold was released, the INS would not deport Rosa-Moreno if he had been subpoenaed to testify. Therefore, Eckelman directed the Ford County assistant attorney to prepare the order releasing the court-ordered hold on Rosa-Moreno. Further, Eckelman allowed the State to communicate to the judge that “[she] was okay with” Rosa-Moreno being released.
Evidently, the affidavit referred to four letters sent between the Ford County Attorney’s Office and the Mexican Consulate regarding Rosa-Moreno. The letters from the Consulate questioned whether Rosa-Moreno’s testimony could be videotaped so that he could be released. The Consul of Mexico, Fernando Gonzalez, considered it “cruel and unusual punishment to keep in jail a person who has paid his debt to society.” The Ford County Attorney’s Office responded that Rosa-Moreno had been sentenced to 12 months’ probation; however, the State added that he would be held until Larraco had been sentenced or until Rosa-Moreno was no longer needed to testify in Larraco’s case. The Consulate again requested that Rosa-Moreno’s testimony be videotaped as “his detention is in fact an additional punishment and is costing the tax payer also.” The Ford County Attorney’s Office then responded:
“[Rosa-Moreno] currently has an INS hold and will be taken into their custody as soon as he is no longer needed in the Ford County case. He will then be presented for prosecution in the Federal Courts.
“A video taped interview is not an appropriate answer in this matter and would also be an added expense to the county. By placing a court ordered hold on [Rosa-Moreno], we are assuring his presence in court before he is taken into federal custody.”
With this factual background, we briefly review the law. K.S.A. 2003 Supp. 60-460(c) allows prior testimony from a preliminary hearing in. the same criminal matter to be admitted if the trial judge finds the declarantes unavailable and the admission of the testimony does not violate the adverse party’s right to confront the witness. As always, an appellate court’s standard of review regarding a trial court’s admission of evidence is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. One who asserts that the court abused its discretion' bears thé burden of proof. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
, Larraco does-not contend his right to confront an adverse party was violated; he only argues Rosa-Moreno should not have been found unavailable to testify. K.S.A. 60-459(g) provides five situations in which a witness may be found'unavailable. Rather than claiming thát hone of the five situations were applicable, Larraco maintains the State, created the situation making Rosa-Moreno unavailable for trial. K.S.A. 60-459(g) explains that a witness cannot be deemed unavailable:
“(_1) if the judge finds that his or her exemption, disqualification, inability or absence is due to procurement or wrongdoing of the proponent of his or her statement. for the purpose of preventing the witness from attending or testifying, or the culpable neglect of such party.”
Although the district court did not state the grounds upon which it found Rosa-Moreno to be an unavailable witness, the record suggests the trial judge determined Rosa-Moreno was beyond the jurisdiction of the court. At trial, the State introduced an affidavit from a court services officer attesting that Rosa-Moreno was earlier deported to Mexico. An account of the further discussions about the availability of Rosa-Moreno follows:
“MRS. ECKELMAN: . . . Your Honor, I would object to the admissibility.of this transcript, because I don’t think they’ve laid a sufficient foundation to show admissibility. I think that one of criteria that’s required is that he has to issue a Subpoena that’s been returned showing this person not found, as well as any Affidavits, then, in explanation of why they were unable to serve ’em.
“MR. SAUER: . . . This is a partial transcript of a proceeding that was held previously in this case, that being the preliminary examination.
At that preliminary examination, [Rosa-Móreno] did testify. Mrs. Eckelman was present . . . she did conduct cross-examination. . .[and] from Exhibit 1, you cart see that [Rosa-Moreno] is absent from the jurisdiction of this Court. This Court has no jurisdiction to compel his' attendance from Mexico. He was served a Subpoena 'to testify prior to his deportation back to Mexico. But, as a result, that witness is not available, and the State is offering into evidence State’s Exhibit 2 [the prior preliminary hearing testimony].
“THE COURT: May I ask where was [Rosa-Moreno] when he was served the Subpoena?
“MR. SAUER: He was still in the Ford County Detention Center, Your Honor.
“THE COURT: And, how was it that he then was removed from the jurisdiction?
“MR. SAUER: While he was there in the Ford County Detention Center, the I.N.S. had a hold on him. He had previously been deported from the United States to Mexico and returned here illegally. Charges were brought against him. He was convicted of a matter that was discovered during the investigation of this case. Because of that, as soon as this Court released a hold on him, the I.N.S. did deport him back to Mexico.
“THE COURT: Any further objection, Mrs. Eckelman?
“MRS. ECKELMAN: No, Your Honor.
“THE COURT: Objections overruled. I find that the witness identified as [Rosa-Moreno] is unavailable, and therefore his prerecorded testimony should be admitted, and it is admitted as State’s Exhibit 2.”
K.S.A. 60-459(g) defines “unavailable as a witness” as including situations where the witness is “(4) absent beyond the jurisdiction of the court to compel appearance by its process.” Certainly, if Rosa-Moreno was in Mexico, he was beyond the jurisdiction of the trial court. But our inquiry must go further since Rosa-Moreno was within the court’s jurisdiction when the State released him, thus facilitating his deportation.
K.S.A. 60-459(g) further provides that a witness is unavailable when he or she is “(5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.” Before a witness may be declared unavailable, the State must present “actual evidence of its efforts” demonstrating the exercise of due diligence and good faith to produce the witness at trial. See State v. Rodriguez-Garcia, 27 Kan. App. 2d 439, 442, 8 P.3d 3 (1999), rev. denied 269 Kan. 939 (2000). The question whether the State has exercised due diligence in locating a witness “turns on the totality of the facts and circumstances of each case, and the trial court’s determination that a witness is unavailable to testify will not be disturbed on appeal absent an abuse of discretion.” State v. Harris, 27 Kan. App. 2d 41, 48, 998 P.2d 524 (2000) (quoting State v. Zamora, 263 Kan. 340, 342, 949 P.2d 621 [1997]).
Larraco maintains the State acted unreasonably in failing to exert any effort to ensure that Rosa-Moreno would be able to return to the United States should he be deported. To delineate the actions necessary to satisfy the due diligence standard, we turn to decisions from other jurisdictions.
In United States v. Mann, 590 F.2d 361 (1st Cir. 1978), a 17-year-old Australian, Shine, was detained in Puerto Rico when she was found in possession of cocaine. Charges were dropped against Shine, and the State took her deposition before returning her airplane tickets and passport. Although Shine told the prosecution at her deposition that she would honor a subpoena, she did not return from Australia for the trial of her traveling companion, Mann, who was the principal defendant. One of the issues raised on appeal was whether the trial court erred in admitting Shine’s deposition into evidence.
The First Circuit Court of Appeals considered the language of Rule 804(a)(5) of the Federal Rules of Evidence which defines a deponent as unavailable if he or she “ ‘is absent from the hearing and the proponent of his statement has been unable to procure his attendance . . by process or other reasonable means.’ ” 590 F.2d at 367. Citing language from several other circuit courts, the Mann court stated that “[e]ven where the absent witness is beyond the court’s jurisdiction, ‘the government must show diligent effort on its part to secure the [witness’] voluntary return to testify.’ [Citation omitted.]” 590 F.2d at 367. The court determined that reasonable efforts extend beyond issuance of a subpoena, and the duty to use reasonable means carried with it the implicit obligation to prevent a present witness from becoming absent. Thus, the court concluded the defendant should not suffer from the State’s choice in not pursuing the presence of Shine at Mann’s trial. 590 F.2d at 367-68.
In United States v. Wilson, 36 F. Supp. 2d 1177 (N.D. Cal. 1999), the chief witness was the defendant’s alleged accomplice, Diaz. Diaz refused to travel from Mexico to the United States to testify at Wilson’s trial. However, Diaz agreed to be deposed; thus, the government arranged for Diaz’ travel expenses and the necessary clearances from the INS. Despite his promises, Diaz did not appear at the scheduled time. The government then sought to introduce Diaz’ deposition taken during the course of discovery proceedings in a civil forfeiture action. After surveying cases from the First, Fourth, Fifth, Eighth, and Tenth Circuit Courts of Appeal, the Wilson court concluded:
“At a minimum these cases establish that an alien witness who has left the country, either at the government’s instigation or through a failure to detain on the government’s part, should be found unavailable unless the government took reasonable and good faith efforts before the witness left the United States to ensure that the witness would be available for trial. Good faith and reasonable efforts require at least some affirmative action, such as issuing a subpoena, arrangement and payment of travel expenses, or taking affirmative steps to ensure the alien remains in the United States until trial is complete.” (Emphasis added.) 36 F. Supp. 2d at 1182.
The Wilson court faulted the government for failing to inform Diaz at the time of his release that he would be expected to return to testify and for failing to make any attempt to forestall deportation proceedings. The government allowed Diaz to be released from prison “and then took it on faith” that he would not be deported despite a felony conviction for drug trafficking. “The Court cannot accept the notion that no action whatsoever, albeit inadvertent, is the equivalent of some good faith reasonable and affirmative action taken to ensure the witness’ presence.” 36 F. Supp. 2d at 1182.
Along similar lines, the Tenth Circuit Court of Appeals considered whether the government acted reasonably to assure the presence of witnesses who had been deported at the trial of a defendant held on charges of transporting illegal aliens in United States v. Eufracio-Torres, 890 F.2d 266 (10th Cir. 1989). Depositions were taken of the witnesses before they were released into the custody of INS. Before being released, the witnesses were served with subpoenas to appear for trial, were provided with instructions regarding reentry into the United States, and they also received travel reimbursement and appearance fees in connection with the trial. The witnesses did not return to testify, although they had indicated they would. Following an evidentiary hearing, the trial court found the government had exhibited reasonable efforts in good faith to assure the presence of the witnesses at trial.
In its analysis, the Tenth Circuit noted the existent clash between a defendant’s right to confrontation and the witnesses’rights to due process: A criminal defendant has the right, pursuant to the Sixth Amendment Confrontation Clause, “to be confronted with the witnesses against him” or her. The competing interest is that of “the witnesses’ procedural due process rights,” pursuant to the Fifth Amendment Due Process Clause, which provides that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” The Court then stated: “Aliens, even those who are in this country illegally, are persons’ guaranteed Fifth Amendment due process. [Citations omitted.]” 890 F.2d at 269-70.
Ultimately, the Tenth Circuit affirmed the trial court’s decision and distinguished the facts of Eufracio-Torres from those in Mann. 890 F.2d at 271. The Tenth Circuit noted that in Eufracio-Torres the alien witnesses had been served with subpoenas and given spe tifie instructions regarding whom to contact concerning their return to testify. 890 F.2d at 271.
In consideration of the foregoing cases, we think the State here acted upon its knowledge that Rosa-Moreno was facing deportation by requesting and receiving a court order to hold Rosa-Moreno to enable him to testify at Larraco’s trial. At Larraco’s preliminary hearing, Rosa-Moreno expressed his reluctance to remain in prison and to testify:
“Q. (By Mr. Sauer) When did you first meet the Defendant?
“A. He was just hanging around at my friend’s house, and I told my friend not to let him in ’cause I didn’t like him. He didn’t — My friend didn’t understand, so — Well, I just wanna say this, sir. I don’t want nothing (sic) to do with this. Now, if he’s in the hands of the law, you can do whatever you wanna do with him? I just wanna get out of here. Get with INS.
“Q. No, you answer the questions.
“THE COURT: You have to answer the questions that are put to you, Mr. [Rosa-Moreno].”
In addition to Rosa-Moreno’s desire to “[g]et with INS,” letters from the Mexican Consulate requested the State’s cooperation in releasing the hold on Rosa-Moreno. While the State was in a position not to be envied, only assertions of counsel stand in support of the State’s claim that the INS had issued an assurance that it would honor a subpoena for Rosa-Moreno. Certainly, the State did not express to the court any surprise that Rosa-Moreno was deported within 1 week of the district court’s removal of its hold. Also, in the record provided, there is no evidence that the State took any additional action to assure Rosa-Moreno’s presence at trial, such as making travel arrangements or consulting with the INS about the necessary considerations for facilitating Rosa-Moreno’s return from Mexico to testify at Larraco’s trial. We conclude that the State made no reasonable efforts to assure Rosa-Moreno’s presence at trial when compared to Eufracio-Torres, Mann, and Wilson.
We also recognize that when reviewing a constitutional challenge to the admission of evidence, an appellate court applies the federal constitutional rule. “Under that rule, an error may not be held to be harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]” State v. Groschang, 272 Kan. 652, 671, 36 P.3d 231 (2001).
Here, when making findings of guilt, the trial judge stated that Rosa-Moreno’s testimony proved that Larraco was guilty of aggravated assault. Further, Larraco’s conviction for criminal threat was sustained on the basis of Rosa-Moreno’s testimony. Also, from the statements of all the witnesses, the trial judge found Larraco guilty of aggravated burglary. The admission of Rosa-Moreno’s preliminary hearing testimony cannot be deemed harmless.
Therefore, because tire alien witness was within the control of the State before his deportation, we believe that it was an abuse of discretion to admit the preliminary hearing testimony of the deported alien witness without first holding an evidentiary hearing and finding that the State had made reasonable efforts to assure the presence of the alien witness at trial.
Reversed and remanded for a new trial with directions to not admit the testimony of the alien witness at any new trial unless an evidentiary hearing discloses sufficient evidence drat the State made a reasonable effort to assure his presence.
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Brazil, J.:
Michael Cook appeals the denial of his motion to dismiss the negligence action filed by his wife, Noreen Cook. He contends the court erred by denying his motion because the action was barred by the statute of limitations.
We agree and reverse.
Noreen incurred injuries as a passenger in a vehicle driven by Michael on March 14, 2000. On March 7, 2002, she filed a petition seeking damages.in excess of $75,000, alleging that Michael’s negligence caused the accident resulting in her injuries. On May 30, 2002, the petition, interrogatories, and request for production of documents were sent to Michael by certified mail.
On July 17, 2002, Michael’s counsel filed a special entry of appearance in order to present a motion to dismiss and the accompanying memorandum. In the memorandum, Michael argued Noreen had not procured nor served a valid summons in order to commence the lawsuit. Due to Noreen’s failure to properly serve him, Michael concluded the lawsuit had not commenced within the applicable 2-year statute of limitations. On July 18, 2002, the district court granted the motion to dismiss, agreeing Noreen’s action was barred by the statute of limitations.
In response to Michael’s allegation, Noreen obtained personal service on Michael on July 17, 2002. An affidavit was filed on July 29, 2002, indicating that a summons, petition, interrogatories, and request for production of documents were served to Michael on July 17, 2002. Additionally, Noreen alleged that service of process had been completed in compliance with K.S.A. 2002 Supp. 60-303. Noreen’s counsel alleged Michael had personally contacted Noreen’s counsel to confirm receipt of the petition, interrogatories, and request for production shortly after they were mailed on May 30, 2002. Noreen attached a copy of the certified mail receipt stamped May 30, 2002.
Subsequently, on August 5, 2002, the district court set aside the journal entry dismissing the cause of action, and scheduled a hearing to address the motion. At the hearing, Michael testified the first mailing he received was on June 30, 2002. He confirmed the mail carrier left the return receipt request in the mail box rather than returning it to show that he had received the documents. Next, Michael testified he received documents on July 17, 2002. After being reminded of evidence indicating that he had forwarded the documents he received to his insurance carrier on June 10, 2002, Michael testified he received the petition on May 30 or June 1, 2002.
Noreen testified she resided with Michael in May and June of 2002. She stated she sent the documents via certified mail and received the documents in the mail on June 1 with the green return receipt still attached to the envelope. After Michael filled out the documents, he asked Noreen to call her attorney and inquire what he should do with the documents.
The district court found Noreen had substantially complied with the intent of the laws governing service of process. Therefore, the district court denied the motion to dismiss. Upon hearing the district court’s decision, counsel for Michael immediately requested permission from the court to file an interlocutory appeal, which the trial judge denied.
At trial, Michael’s counsel renewed his motion to dismiss, which was again denied for the same reasons as stated in the earlier journal entry. Judgment was entered against Michael in the tort action on January 7, 2003.
Interpretation of a statute is a question of law, for which an appellate court’s review is unlimited. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Accordingly, this court also exercises plenary review on questions regarding the interpretation and application of a statute of limitations. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000). The statute of limitations is an affirmative defense. Although the burden of pleading and proving its applicability rests on the defendant, the plaintiff bears the burden of proving facts sufficient to toll the statute of limitations. Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992).
Michael contends the district court erred in refusing to grant his motion to dismiss because Noreen, by failing to issue the summons within the required time period, did not commence the lawsuit prior to the running of the statute of limitations. The applicable statute ofhmitations is 2 years. See K.S.A. 2002 Supp. 60-513(a)(2); Slayden, 250 Kan. at 24 (2 years is the time in which to file suit for injuries incurred in an accident). The accident occurred “on or about March 14, 2000”; thus, Noreen seemingly had until March 14, 2002, to file her cause of action, or the filing must somehow relate back to that date in order for it to have been timely filed. See Grimmett v. Burke, 21 Kan. App. 2d 638, 641, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996).
At issue is whether Noreen commenced the lawsuit in compliance with K.S.A. 60-203(a), which states:
“A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1).”
The court is required to give effect to the intention of the legislature as expressed when a statute is plain and unambiguous, rather than determine what the law should or should not be. Williamson, 275 Kan. at 305. The language of K.S.A. 60~203(a) is clear and unambiguous, affording a petitioner two ways in which to commence a civil action.
A petitioner may commence a suit by filing a petition on the last day allowed by the statute of limitations. The petitioner then receives 90 days, or 120 days if so extended by the court, to serve process on the defendant. K.S.A. 60-203(a)(2) provides that if service is not made within 90 days of the filing of the action (or 120 days if extended by the court), then the action is deemed com menced on the date of service of process. Lindenman v. Umscheid, 255 Kan. 610, 632, 875 P.2d 964 (1994).
Here, the petition was filed on March 7, 2002; thus, Noreen had until June 5, 2002, in which to serve Michael. The record does not indicate, nor does Noreen contend, that an extension was requested within the relevant 90-day period. See Read v. Miller, 247 Kan. 557, 563, 802 P.2d 528 (1990) (“[Ojnce the 90-day period has expired, there is nothing to extend, and no period to prolong.”). The petition, interrogatories, and requests for production were sent by certified mail to Michael on May 30, 2002, within the 90-day time period; however, the summons was not issued until July 17, 2002, 132 days after the petition was filed.
Noreen claims Michael testified he believed he received a summons with the documents sent by certified mail on May 30, 2002. K.S.A. 60-301 stipulates that the clerk, upon filing of the petition, shall issue a summons for service. In addition to the record clearly reflecting that no summons was issued when the petition was filed on March 7, 2002, the appearance docket also indicates that the summons was issued on July 17, 2002. Based on the affidavit indicating service on July 17 and as noted in the appearance docket, the district court found the summons was first issued on July 17, 2002. Substantial competent evidence supports the district court’s determination; thus, it will not be disturbed by this court on appeal. See Grimmett, 21 Kan. App. 2d at 642-43.
Personal Jurisdiction
Because Noreen failed to issue a summons before the statute of limitations ran, Michael further contends the judgment entered against him is void as the court lacked personal jurisdiction over him. See Automatic Feeder Co. v. Tobey, 221 Kan. 17, 21, 558 P.2d 101 (1976) (a judgment is void if the court that rendered it lacked personal jurisdiction of the parties). A defendant does not normally become a party to the action until he or she is served with the summons. In re Marriage of Welliver, 254 Kan. 801, 803, 869 P.2d 653 (1994). A summons is the means by which the defendant “is afforded the opportunity to appear before and be heard by the court. It is this notice which gives the court jurisdiction to proceed. See 62 Am Jur. 2d, Process § 2.” State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 50, 687 P.2d 622 (1984).
Notably, Michael did not raise the defense of lack of personal jurisdiction in his motion to dismiss. See K.S.A. 60-212(h) .(defense of lack of personal jurisdiction is waived if omitted from a motion or not included in a responsive pleading). However, at the hearing on the motion, counsel for the defendant argued that the only way to acquire personal jurisdiction over a party was through a statutorily prescribed method for issuance and service of process. Although the district court had the opportunity to review the argument below, Michael’s sole argument in his motion to the court, which resulted in the district court’s initial order dismissing the case, was based on the running of the statute of limitations.
Did the District Court Err in Determining Noreen
Substantially Complied With the Intent of the Statute
Requiring Service of Process?
Noreen maintains the court appropriately found that she substantially complied with the statutes governing service of process. K.S.A. 60-204 states that the methods of serving process, set forth in K.S.A. 60-301 et seq., constitute sufficient process. Different methods which are specifically provided for by law are also permissible. Importantly, K.S.A. 60-204 also states:
“In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected.”
The district court determined that Noreen’s mailing of the petition, interrogatories, and requests for production of documents on May 30, 2002, constituted “substantial compliance with the intent of the statute requiring service of process.” Receipt of the documents on June 1, 2002, provided Michael with “actual or constructive notice” that a petition had been filed. Because the petition was served within 90 days of filing the case and Michael had notified his insurance carrier, which took appropriate action, he had not been prejudiced. The court found, therefore, that Noreen’s cause of action commenced on the date of filing and the matter had been timely filed.
Kansas law does not support the district court’s determination that “actual or constructive notice” that a petition has been filed is sufficient to overcome the plaintiff s failure to serve the defendant with a summons. Our Supreme Court has stated that actual knowledge of the pendency and the nature of an action is not a substitute for service. “Notice or knowledge must come from process of service, or there must be a valid waiver.” Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999). The court’s position is compatible with commentary from 1 Gard and Casad, Kansas Code of Civil Procedure Annotated 3d § 60-204, p. 2-18 (1997):
“Proof of the' fact that a party had actual knowledge of the pendency of an action against him and of its nature is not a substitute for service. Notice or knowledge must come from process itself (or valid waiver), and the summons must bear the minimum emblems of authenticity. But a rule of liberal construction is expressly established in keeping with such decisions as Kunz v. Lowden, 124 F.2d 911 [10th Cir. 1942], Awareness of the pendency of the action or proceeding in a specified court must result from ‘such service of process,’ and if awareness is apparent or established, irregularities and omissions do not invalidate tire service.”
Noreen’s contention that substantial compliance does not require issuance of a summons is likewise unsupported by relevant statutes. For service by certified mail, as used in the instant case, K.S.A. 2002 Supp. 60-303(c)(2) states a plaintiff should cause a copy of the process and petition or other document to be mailed in compliance with the statute. Thereafter, the “original return of service shall be filed with the clerk, along with a copy of the return receipt evidencing such delivery.” K.S.A. 2002 Supp. 60-303(c)(4). It is only upon receipt of service of “the summons and the petition” that a defendant is required to serve his or her answer. (Emphasis added.) K.S.A. 60-212. If the defendant fails to file an answer or to appear within the time specified in the summons, upon proof of service as provided by law, a judgment by default can be taken against the defendant for the relief demanded in the petition. See K.S.A. 2002 Supp. 61-3301(a)(l) (replacing K.S.A. 61-1721, repealed January 1, 2001).
Briefly, the appearance docket does not reflect that a return on service was filed for the May 30, 2002, mailing. Noreen’s counsel stated no return receipt was received from the May 30 certified letter, instead relying on the telephone call from Noreen indicating that Michael had received the petition, interrogatories, and request for production of documents. Again, the first entry in the court record for the issuance of a summons was July 17, 2002.
Michael cites Jenkins v. City of Topeka, 958 F. Supp. 556, 561 (D. Kan. 1997), rev’d on other grounds 136 F.3d 1274 (10th Cir. 1998), in support of his argument concerning the vital step of service of a summons. In Jenkins, a “Notice and Acknowledgment for Service by Mail” form, a “Notice of Lawsuit and Request for Waiver of Service of Summons” form, a ‘Waiver of Service of Summons” form, and a copy of the complaint were mailed to defendants. 958 F. Supp. at 558. No summons accompanied the documents. The parties did not dispute that the defendants had not been properly served under Kansas law. 958 F. Supp. at 558. On review, the Tenth Circuit did not reach application of K.S.A. 60-203(b), finding instead that service of process had been properly effected pursuant to K.S.A. 60-203(c) when counsel entered his appearance on defendants’ behalf. 136 F.3d at 1276.
Noreen contends that Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979), and In re Marriage of Powell, 13 Kan. App. 2d 174, 766 P.2d 827 (1988), rev. denied 244 Kan. 737 (1989), provide support for her contention that she substantially complied with the statute. However, the issue of substantial compliance in both cases cited by Noreen did not involve the complete absence of a summons. In Chee-Craw, a summons had been issued, along with the complaint. 225 Kan. at 563; see also Bray v. Bayles, 228 Kan. 481, 485, 618 P.2d 807 (1980) (stating Chee-Craw is not applicable to personal service “on an individual”); K.S.A. 60-212. In In re Marriage of Powell, personal service was also made on the defendant. The issue of substantial compliance was not considered as the court found the defendant had voluntarily appeared and testified before the court, failing to raise the defense of personal jurisdiction at every stage of the case, in- eluding on appeal, thereby waiving the issue of personal jurisdiction. 13 Kan. App. 2d at 178.
In conclusion, Noreen did not serve Michael as the statutes required. Here, service on Michael was not merely irregular or defective but was a nullity. See Hughes v. Martin, 240 Kan. 370, 373-74, 729 P.2d 1200 (1986). The fact that Michael had actual knowledge of the suit and did not suffer prejudice does not mean there was substantial compliance under K.S.A. 60-204, and the district court erred in so finding.
Does K.S.A. 60-203(b) Apply?
“If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by tire plaintiff.” K.S.A. 60-203(b).
In Grimmett, this court applied K.S.A. 60-203(b) to circumstances wherein service had been declared invalid by tire district court for failing to serve on tire proper address. 21 Kan. App. 2d at 644. The court held that before it can be said “service has purported to have been made/ it must be shown that a defendant was given actual notice of having been sued.” 21 Kan. App. 2d at 647. Further, the following factors should exist:
“(1) The original service must have 'appeared’ to be valid and the returns by the sheriff s office or other process servers must indicate that tire service was valid. (2) The record should show that the plaintiff believed in good faith that his or her service was valid and relied on that validity to his or her detriment. (3) The plaintiff had no reason to believe the defendant was contesting service until after the statute of limitations had run, but had no opportunity to take steps to correct the defective service.” Grimmett, 21 Kan. App. 2d at 647-48.
In applying the Grimmett factors to his case, although Noreen told her counsel during a telephone conversation that Michael had received some documents, there is no support in the court records of the validity of the original service upon which Michael could have relied in good faith. Noreen cannot contend that original service appeared valid, as the appearance docket reflects that a sum mons had not been issued in the case until the statute of limitations ran. Additionally, no return of service was filed with the court suggesting that service was valid.
In short, although Michael has shouldered the burden of proving the applicability of the statute of limitations in the instant case, Noreen has failed to prove facts sufficient to toll the running of the statute. K.S.A. 60-204 and K.S.A. 60-203(b) do not apply, and the district court erred in failing to dismiss Noreen’s action as being barred by the statute of limitations.
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Pierron, J.:
Robert S. Bradley appeals the district court’s summary dismissal of his K.S.A. 60-1507 motion. We affirm.
Bradley was convicted by a jury of one count of rape, two counts of aggravated criminal sodomy, one count of aggravated indecent liberties with a child, and one count of aggravated solicitation of a child. He was sentenced to 224 months. An appeal followed and Bradley’s convictions were affirmed.
Bradley filed a K.S.A. 60-1507 motion asserting that K.S.A. 2002 Supp. 22-2902 had been violated at his preliminary hearing. Furthermore, he asserts counsel was ineffective for not objecting at his preliminary hearing to the State’s violations of the Kansas statutes and rules of evidence. This argument was premised upon the fact the 8-year-old victim did not testify at his preliminary hearing. Bradley argued evidentiary rales were violated when the victim’s mother and the officer who interviewed the victim testified at his preliminary hearing. He contends his counsel should have objected to the admission of hearsay evidence.
The district court judge who had presided over the jury trial denied Bradley’s 60-1507 motion. The court concluded that Bradley’s arguments were without merit because “there is no federal or state constitutional right which precludes the admission of hearsay evidence at a preliminary examination as there is no constitutional right to confront witnesses at this stage of the proceedings.” Furthermore, the court stated: “files and records . . . including the transcript of the preliminary examination of the trial show that movant’s two attorneys acted competently.”
On appeal, Bradley argues counsel was ineffective for allowing the victim’s mother and Deputy Newquist to testify at his preliminary hearing. He asserts his counsel did not object to tire testimony or challenge the constitutionality of K.S.A. 2002 Supp. 22-2902(3). He contends that without their testimony there would not have been sufficient evidence to establish the probable cause needed to bind him over for trial. These arguments fail and the district court did not abuse its discretion in summarily denying his 60-1507 motion.
The current standard of review when the district court fails to appoint counsel and summarily denies petitioner’s motion is abuse of discretion. See Lujan v. State, 270 Kan. 163, 169, 14 P.3d 424 (2000); Estes v. State, 221 Kan. 412, 414, 559 P.2d 392 (1977); Supreme Court Rule 183(h) (2003 Kan. Ct. R. Annot. 213) (district court has discretion to ascertain whether claim is substantial before granting full evidentiary hearing).
Bradley must show that his counsel’s performance was deficient and that the deficient performance prejudiced him, depriving him of a fair trial. See Sanders v. State, 26 Kan. App. 2d 826, 828, 995 P.2d 397 (1999), rev. denied 269 Kan. 934 (2000).
Bradley argues counsel should have objected to hearsay evidence at his preliminary hearing. He also argues K.S.A. 2002 Supp. 22-2902(3), allowing the admission of hearsay evidence given the facts of this case, is unconstitutional. They are, essentially, the same argument.
In State v. Cremer, 234 Kan. 594, 598-99, 676 P.2d 59 (1984), the Kansas Supreme Court held that the rules of evidence, including K.S.A. 60-460, are to be applied in a prehminaiy hearing except where relaxed hy other rules or statutes. In State v. Sherry, 233 Kan. 920, 931, 667 P.2d 367 (1983), (citing Gerstein v. Pugh, 420 U.S. 103, 120, 43 L. Ed. 2d 54, 95 S. Ct. 854 [1975]), the court discussed this premise in more detail: “The requirement that the rules of evidence apply at the preliminary examination was incorporated by our legislature, and not mandated by the Constitution of the United States. The Constitution does not forbid the states from authorizing the use of hearsay evidence in determining probable cause at the preliminary examination.”
Hence, hearsay is allowed in preliminaiy hearings when a statute authorizes it. State legislation relaxing the rules of evidence is not unconstitutional. See also State v. Crow, 266 Kan. 690, 703-07, 974 P.2d 100 (1999) (hearsay evidence admitted by authority of K.S.A. 1999 Supp. 22-3437 held not violative of United States Constitution or Kansas Constitution).
K.S.A. 2002 Supp. 22-2902(3) provides in pertinent part:
“The defendant shall be personally present and except for witnesses who are children less than 13 years of age, the witnesses shall be examined in the defendant’s presence. . . . Except for witnesses who are children less than 13 years of age, the defendant shall have the right to cross-examine witnesses against the defendant and introduce evidence in the defendant’s own behalf. . . . When the victim of the felony is a child less than 13 years of age, the finding of probable cause as provided in this subsection may be based upon hearsay evidence in whole or in part presented at the preliminary examination by means of statements made by a child less than 13 years of age on a videotape recording or by other means.” (Emphasis added.)
Therefore, Bradley s counsel would have had no grounds to object to the admission of the hearsay testimony at the preliminary hearing. Additionally, Bradley ignores the general standard for reviewing alleged errors at a preliminary hearing after a defendant has stood trial and been convicted. “ ‘[Wjhere an accused has gone to trial and been found guilty beyond a reasonable doubt, any error at the preliminary hearing is harmless unless the error caused prejudice at trial.’ ” State v. Henry, 263 Kan. 118, 129, 947 P.2d 1020 (1997) (quoting State v. Butler, 257 Kan. 1043, 1062, 897 P.2d 1007 [1995]).
The victim testified at trial. Her brother, who was present at the time of the crimes, testified at trial. Bradley was found guilty beyond a reasonable doubt. Therefore, Bradley’s argument related to the preliminary hearing fails and the district court did not abuse its discretion by not holding an evidentiary hearing or denying the 60-1507 motion.
Next, Bradley attempts to cloak the same argument as a violation of his Sixth Amendment right to confrontation. This also fails.
The Kansas Supreme Court has held that “the Sixth Amendment right of confrontation is satisfied if the accused was once confronted by the witness at any stage of the proceedings in the same case and has had an opportunity of cross-examination.” State v. Zamora, 263 Kan. 340, 342, 949 P.2d 621 (1997). Bradley cross-examined the victim at trial. Moreover, in Crow, the court discussed the public policy involved in cases without any face-to-face confrontation. The public policy is an attempt to limit additional psychological harm to a child victim. 266 Kan. at 703.
In this case, however, Bradley did have a face-to-face confrontation with the victim at some time during the proceedings. His Sixth Amendment rights were not violated. Furthermore, because the statute Bradley had hoped his attorney would challenge is not unconstitutional, the arguments set forth in his 60-1507 motion did not require an evidentiary hearing. The district court did not err in summarily dismissing Bradley s 60-1507 motion.
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Greene, J.:
This appeal frames numerous issues among three parties (buyer, seller, and operator on behalf of those with preferential rights) after oil and gas leasehold interests that were purportedly subject to preferential rights to purchase were sold in breach of such rights. The district court concluded that the buyer was a bona fide purchaser entitled to dismissal from the suit and then awarded judgment for damages against seller to those with preferential rights. On this issue we reverse, concluding that the buyer was not a bona fide purchaser. We affirm the district court on issues of the operator s standing to sue, the enforceability of tire preferential rights provision, and the award of discovery sanctions.
Factual and Procedural Overview
Petroleum, Inc. (Petlnc) owned a 25% working interest in the Merrill 1-8 and 2-8 gas units in Finney County. The units were operated by Larson Operating Company (Larson), which owned no interest in either unit. The operating agreement included the following provision regarding preferential rights to purchase among working interest owners:
“Should any party desire to sell all or any part of its interests under this agreement, or its rights and interests in the Contract Area, it shall promptly give written notice to the other parties, with full information concerning its proposed disposition, which shall include the name and address of the prospective transferee (who must be ready, willing and able to purchase), the purchase price, a legal description sufficient to identify the property, and all other terms of the offer. The other parties shall then have an optional prior right, for a period of ten (10) days after the notice is delivered, to purchase for the stated consideration on the same terms and conditions the interest which the other party proposes to sell; and, if tins optional right is exercised, the purchasing parties shall share tire purchased interest in the proportions that the interest of each bears to the total interest of all purchasing parties. However, there shall be no preferential right to purchase in those cases where any party wishes to mortgage its interests, or to transfer title to it interests to its mortgagee in lieu of or pursuant to foreclosure of a mortgage of its interests, or to dispose of its interests by merger, reorganization, consolidation, or by sale of all or substantially all of its Oil and Gas assets to any party, or by transfer of its interests to a subsidiary or parent company or to a subsidiary of a parent company, or to any company in which such party owns a majority of the stock.”
In offering its working interests for sale at auction, Petlnc completed a “Property Information Form” for each interest offered by marking in the affirmative the inquiiy, “Is the Property subject to any preferential rights?” Petlnc then completed the “detailed ex planation” portion of the form for the Merrill 2-8 interest by including the following:
“Pref right to purchase under JOA dtd. 5-1-94, ‘however, there shall be no preferential right by sale of all or substantially all of its oil and gas assets—Note: same for Merrill 1-8-.’ ”
The “detailed explanation” portion of the form for the Merrill 1-8 interest stated: “Pref right to purchase under J.O.A. dtd. 5-1-94”.
On June 7, 2000, Petlnc sold its Merrill interests to American Warrior, Inc. (AmWar) through an internet auction for $28,500. Notice of this sale was not given to the other working interest owners pursuant to the terms of the preferential right to purchase provision of the operating agreement. On June 26, 2000, Petlnc executed an assignment of its working interests to AmWar, and the instrument of assignment included the following warranty language:
“Assignor herein agrees to bind itself, its successors, legal representatives and assigns, to warrant and forever defend all and singular the interest conveyed herein against every person whomsoever claiming by, through or under Assignor but not otherwise.”
A few months following the sale, Larson apparently contacted Petlnc regarding seismic work on the property, and Petlnc advised Larson of the sale to AmWar. As a result of this contact, Petlnc apparently realized the import of the preferential rights provision and made demand upon AmWar for return of the interests sold. AmWar refused the demand.
Upon AmWar’s refusal to reconvey the interests, Larson gained consent of nearly all remaining working interest owners in the units to pursue legal action to enforce their preferential rights. Larson then sued Petlnc for violation of the provision, and Petlnc answered admitting that it breached the preferential rights provision of the operating agreement but stating that the breach was unintentional. Petlnc also filed a third-party petition against AmWar seeking rescission. Larson later amended its petition to join AmWar and to seek specific performance.
On April 25, 2001, in responses to Larson’s requests for admissions, Petlnc admitted that the preferential rights provision was valid and enforceable, that it was “triggered” by the assignment to AmWar, and that it failed to give the requisite notice to other interest owners. On June 26, 2001, Petlnc moved the court for leave to amend its responses on grounds that the sale of the Merrill interests was part of Petlnc’s comprehensive plan to dispose of all its oil and gas assets, thus serving as an exception to the preferential rights provision. The court granted Petlnc leave to amend its responses, but the court found that with minimal diligence Petlnc could have responded more accurately and awarded Larson sanctions against Petlnc in the amount of $10,000.
Larson then filed a motion for summary judgment, arguing that the preferential rights provision was enforceable and that the exception did not apply. Petlnc opposed die motion, but the district court ultimately found that Petlnc’s sale did not fall within the exception to the preferential rights provision and granted summary judgment to Larson. This judgment has not been appealed.
The district court conducted a bench trial on October 9-10, 2002, and found that based upon the disclosure language contained in the Property Information Form and the testimony of an AmWar witness, AmWar was a bona fide purchaser and should be dismissed from the litigation. The court then awarded damages to Larson against Petlnc in the amount of $207,422, less the purchase price of $28,500.
Petlnc appeals, arguing AmWar was not a bona fide purchaser of the interests. In the alternative, Petlnc disputes the district court’s calculation of the damages awarded to Larson. Petlnc also challenges the district court’s assessment of sanctions against it for changing responses to Larson’s request for admissions. Larson cross-appeals, also claiming the district court erred when it determined AmWar was a bona fide purchaser and when it failed to order rescission and specific performance. AmWar also cross-appeals, arguing that Larson is not a real party in interest.
Is Larson a Real Party in Interest with Standing to Pursue Preferential Rights Claims of the Other Interest Owners?
K.S.A. 60-217(a) provides:
“(a) Beal party in interest. Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, conservator, trustee of an express trust, receiver, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party’s own name without joining the party for whose benefit the action is brought. . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same ejfect as if the action had been commenced in the name of the real party in interest.” (Emphasis added.)
“The real .party in interest is the person who possesses the right sought to be enforced, and is not necessarily the person who ultimately benefits from the recovery.” Thompson v. James, 3 Kan. App. 2d 499, 502, 597 P.2d 259, rev. denied 226 Kan. 793 (1979). The purpose of the real party in interest rule is principally to protect a
“defendant from being repeatedly harassed by a multiplicity of suits.for the same cause of action so that if a judgment be obtained it is a full, final and conclusive adjudication of the rights in controversy that may be pleaded in bar to any further suit instituted by any other party.” Torkelson v. Bank of Horton, 208 Kan. 267, 270, 491 P.2d 954 (1971).
Larson brought the action on behalf of the interest owners after procuring from most of the interest owners signed written consent forms, which stated: “The undersigned hereby authorizes Larson Operating Company to proceed on his behalf to exercise the preferential right to purchase as provided for in the Operating Agreement dated May 1, 1994.” This written consent was later ratified by written ballot, wherein interest owners had the opportunity to mark: “YES—I approve of the decision to proceed with legal action to secure the 25% working interest improperly assigned to American Warrior, Inc.”
The district court found that the action was authorized by express language in the operating agreement, which stated:
“D. Defaults and Remedies: If any party fails to discharge any financial obligation under this agreement, including without limitation the failure to make any advance under file preceding Article VII.C or any other provision of this agreement, withing the period required for such payment hereunder, then in addition to the remedies provided in Article VII.B or elsewhere in this agreement the remedies specified below shall be applicable.
“2. Suit for Damages: Non-defaulting parties or Operator for tire benefit of non-defaulting parties may sue (at join account expense) to collect the amounts in default . . . .” (Emphasis added.)
AmWar argues that this provision should be construed as being limited to “financial obligations” and was not contemplated to authorize suits to enforce property rights. AmWar also suggests that contract authorization cannot circumvent K.S.A. 60-217(a) and that there is no authority for the proposition that an operator can pursue property rights, as contrasted with operating rights, on behalf of worldng interest owners.
Operating agreements are quite common in the oil and gas business and can be indispensable to the conduct of such business when there is more than one working interest owner. See Browne v. Loriaux, 189 Kan. 56, 63, 366 P.2d 1016 (1961). The operating agreement is designed to coordinate development of the property by designating an “operator” and by specifying each worldng interest owner s rights and obligations. Such agreements generally address the authority of the operator to act on behalf of the non-operators. 2 Pierce, Kansas Oil & Gas Handbook, § 17.17 (1989). Moreover, Kansas statutes impose a multitude of duties on the “operator,” presumably because it would be inconvenient, unduly expensive, or perhaps completely ineffective to impose such duties on each interest owner. See, e.g., K.S.A. 79-332a (obligating operator to file statement of assessment for purposes of ad valorem taxation); K.S.A. 55-151 to K.S.A. 55-157 (making operator responsible and obligating operator for a host of operational requirements); K.S.A. 2003 Supp. 55-165 (authorizing KCC to maintain database of all wells including identity of operator); K.S.A. 79-4216 (defining operator as responsible for management and operation of production); K.S.A. 79-4220 (permitting operator to remit severance tax). We cite such practice and statutory authority as supportive of our conclusion that a suit by an operator to enforce preferential rights created by the operating agreement does not offend the language or the policy behind tire real party in interest statute.
We conclude that the operator was a real party in interest because: (i) the preferential rights, although in the nature of property rights, were created by the operating agreement and were not unrelated to operational benefits; (ii) the express language of the agreement, although ambiguous as to precise extent, generally supports authority in the operator for suits to enforce defaults in its provisions; and (iii) the written consent forms signed by interest owners serve as “ratification of commencement of the action” so as to satisfy the statutory language. See K.S.A. 60-217(a). Additionally, we note that contract actions are assignable (Bolz v. State Farm Mutual Automobile Ins. Co., 274 Kan. 420, 423, 52 P.3d 898 [2002]) and that the express written consent of the interest owners and the specific authorization of the operator to sue do not offend the policy underpinning of the real party in interest statute. See Torkelson, 208 Kan. at 270. We do not share AmWar s concern that it has no protection from a multiplicity of actions, since the express language of the preferential rights provision serves as a waiver of such rights as to all nonconsenting interest owners. We affirm the district court’s conclusion that Larson was the real party in interest under these circumstances.
Was AmWar a Bona Fide Purchaser Entitled to Dismissal From the LitigationP
AmWar contends that since tire district court expressly relied on oral testimony in determining reasonable reliance by a “prudent and diligent buyer,” our standard of review is whether the district court findings are supported by substantial competent evidence and sufficient to support the trial court’s conclusions of law. Petlnc contends that our standard of review is de novo, citing Miller v. Alexander, 13 Kan. App. 2d 543, 547, 775 P.2d 198, rev. denied 245 Kan. 785 (1989). We embrace the de novo standard as appropriate, since die determinative issue is whether die Property Information Form provided actual or constructive notice, and this question is one of law. See Miller, 13 Kan. App. 2d at 547. For reasons addressed below, the actual “reasonable reliance” by the subject buyer as well as its specific prudence and diligence in the transaction are immaterial in determining whether AmWar took with notice of the cloud on its title; we must determine whether the written instruments imparted actual or constructive notice of the preferential rights.
At the outset we note that the issue framed is unusual in that there is no dispute regarding the notice given: the Property Information Form provided actual notice that the interests were subject to preferential rights. The issue is whether the actual notice was nullified by the additional information provided: “ ‘however, there shall be no preferential right by sale of all or substantially all of its oil and gas assets-—-.’ ” Although AmWar suggested in oral argument that the use of the term “however” implied such nullification, we note that “however” appears to be directly quoted from the language of the operating agreement. We conclude that the disclosure form constituted actual notice of the preferential rights and merely quoted without opinion one of the exceptions contained in the agreement’s operative language; moreover, if Petlnc intended the form to reflect applicability of the exception, we presume that it could have simply marked “NO” to the inquiry regarding whether the interests were subject to preferential rights. We decline the parties’ invitation to discuss and apply authorities on constructive or implied notice; such authorities have no application where actual notice is given.
Charged with actual notice that the interests were subject to preferential rights, together with a quoted exception to such rights, AmWar simply cannot deny that it purchased the interests with a possible cloud on the title. As stated by the court in Miller, “[i]f a possible cloud on the seller’s title appears, the prospective purchaser must either clear the cloud or proceed at his own risk.” (Emphasis added.) Miller, 13 Kan. App. 2d at 550; see Schwalm v. Deanhardt, 21 Kan. App. 2d 667, 906 P.2d 167 (1995).
AmWar argues that, based on constructive notice cases, the disclosures merely put it on notice of those facts which a reasonable diligent investigation would have ascertained. See City of Arkansas City v. Anderson, 15 Kan. App. 2d 174, 181, 804 P.2d 1026 (1991). AmWar then suggests that review of the operating agreement, con sultation with Petlnc, and inquiry of Larson would not have led to any additional material facts regarding a cloud on the title. Although an intriguing argument, we decline to apply such constructive notice rules in an actual notice case. Perhaps more important, we decline to clothe AmWar with bona fide purchaser status based upon such speculation; the extent to which the parties have vigorously litigated the applicability of the preferential rights provision and the quoted exception belies any real probability that diligent investigation would not have demonstrated a substantial difference of opinion regarding the title issue. Finally, it was never disputed that AmWar made absolutely no inquiries whatsoever; even if it believed that the language of the disclosure form served to nullify any notice of the prior rights, we hold that at least some modicum of investigation was required of a bona fide purchaser under these circumstances.
The district court erred in finding AmWar a bona fide purchaser of the interests and in dismissing it from the litigation.
Is the Preferential Rights Provision Unenforceable as Violative of the Rule Against Perpetuities?
AmWar and Petlnc next argue that the preferential rights provision in the operating agreement violates the rule against peipetuities and cannot be enforced by Larson on behalf of working interest owners. Larson argues that under the Uniform Statutory Rule Against Perpetuities, K.S.A. 59-3401 et seq., the preferential rights provision was not invalid. Petlnc responds by arguing that K.S.A. 59-3401 et seq. is unconstitutional.
In Kansas, the rule against perpetuities has been codified in the Uniform Statutory Rule Against Perpetuities, K.S.A. 59-3401 et seq. (the Act), which supersedes the common-law rule against perpetuities. K.S.A. 59-3408; Gore v. Beren, 254 Kan. 418, 429, 867 P.2d 330 (1994). The uniform act exempts nonvested property interests created by commercial nondonative transfers. The Act provides in part:
“K.S.A. 59-3401, statutory rule against perpetuities, does not apply to: (1) A nonvested property interest or a power of appointment arising out of a nondonative transfer . . . .” K.S.A. 59-3404.
Here, the preferential rights provision in the operating agreement creates nonvested property interests but does so in the context of a commercial, nondonative agreement that fits squarely within the statutory exemption. As noted by the official uniform comment to this section, the rationale for this exemption is that the rule against perpetuities is a wholly inappropriate instrument of social policy to use as a control over commercial and governmental transactions. 8B Uniform Laws Annotated, p. 280 (2001). Other courts have held that the rule against perpetuities was inappropriate for commercial transactions. See, e.g., Shaver v. Clanton, 26 Cal. App. 4th 568, 31 Cal. Rptr. 2d 595 (1994). Clearly, the statutory rule against perpetuities simply does not apply.
This statutory salvation is not determinative of the issue, however, since Petlnc argues that the statute is unconstitutional because it was enacted by a bill containing more than one subject, in violation of Kan. Const, art. 2, § 16, which states:
“No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes. The subject of each bill shall be expressed in its title. No law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed. The provisions of this section shall be liberally construed to effectuate the acts of the legislature.”
The Act was enacted as a part of L. 1992, ch. 302, which concerned the following subject:
“AN ACT concerning uniform laws; relating to the uniform commercial code; enacting die uniform statutory rule against perpetuities; enacting the uniform conservation easement act; amending K.S.A. 84-2-402 and K.S.A. 1991 Supp. 84-1-105 and repealing die existing sections . . . .”
The constitutional provision should be construed in light of the evils designed to be suppressed. Laird & Company v. Cheney, 196 Kan. 675, 687, 414 P.2d 18 (1966). Our Supreme Court has held that the subject constitutional provision intends the “prevention of a matter of legislative merit from being tied to an unworthy matter.” Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 622, 549 P.2d 864 (1976); see State ex. rel. Stephan v. Thiessen, 228 Kan. 136, 141, 612 P.2d 172 (1980) (quoting message from governor critical of session law because it combined two subjects, “one strongly supported and one strongly opposed, in an effort to force through by rider a proposal which had difficulty in passage on its own merits”). To constitute plurality of subject matter in violation of the constitution, an act must embrace two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any legitimate connection with or relation to each other. State v. Reves, 233 Kan. 972, 978, 666 P.2d 1190 (1983).
Here the subject matter of the enactment did not embrace “dissimilar and discordant subjects” but rather embraced a singular purpose: amendment and enactment of certain uniform acts in an attempt to harmonize them with Kansas legislative intent. Joinder of these enactments and amendments of uniform laws in a singular enactment did not offend the constitution, since there was no obvious intent to tie a matter of legislative merit to an unworthy matter. We decline to hold K.S.A. 59-3401 et seq. unconstitutional and conclude that the preferential rights provision at issue does not violate the rule against perpetuities as reflected in the statute.
Did the District Court Err in Granting Discovery Sanctions Against Petlnc in Favor of Larson?
The award of sanctions, including attorney fees, for discovery violations is within the discretion of the trial court. New Dimensions Products, Inc. v. Flambeau Corp, 17 Kan. App. 2d 852, 860, 844 P.2d 768 (1993). An abuse of discretion arises only if no reasonable person would have taken the same position as the district court. Hochman v. American Family Ins. Co., 9 Kan. App. 2d 151, 155, 673 P.2d 1200 (1984).
The Kansas Supreme Court in Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117 (1981), discussed the inherent powers of sanction in the discovery context despite the inapplicability of a specific authorizing statute:
“K.S.A. 60-237 provides for the imposition of statutory sanctions when a party fails or refuses to comply with an order entered by a court in a pending action. This is not our present case. The violations of the statute in the present case occurred prior to the filing of any action. There was no failure or refusal to comply with an order of the court. However, a court has certain inherent powers it may exercise, those reasonably necessary for the administration of justice, provided tírese powers in no way contravene or are inconsistent with substantive statutory law. [Citations omitted.] Such inherent powers may be exercised as a means of enforcing obedience to a law which the court is called on to administer.”
Petlnc’s reversal in position and need to amend its responses to Larson’s request for admissions is but one of many vacillations by Petlnc in this litigation. At the outset, it marked the disclosure form indicating that the interests were subject to preferential rights, but it conveyed the interests with special warranty of title. Ijicongruous with its warranty, it initially made demand for a return of the interests and conceded that the preferential rights provision had been violated. It next changed course and argued that the exception to the provision applied, but when it lost this argument on summary judgment, it reverted to tire position that AmWar was not a bona fide purchaser because diligent investigation would have revealed that the interests were clearly subject to preferential rights. On appeal it urges us to conclude that the preferential rights provision is unenforceable due to the rule against perpetuities. Such equivocal positioning by a party unduly complicates complex litigation and creates unwarranted difficulties for other parties, their counsel, and the court.
If the court had sanctioned counsel, the absence of an express finding of bad faith would require that we set aside the award. Knutson Mortgage Corp. v. Coleman, 24 Kan. App. 2d 650, 654, 951 P.2d 548 (1997). Where the party itself is sanctioned, however, no such express finding of bad faith is required. See Wilson, 229 Kan. at 421. Sanctions pursuant to inherent powers must be exercised with restraint and caution and imposed only after proper notice and an opportunity for a hearing on the record. Here, the court’s sanction award met these requirements and was reasonably necessary for the administration of orderly procedure in the discovery process and obedience to discovery rules. Under these circumstances, we are unable to conclude that no reasonable person would have taken the view adopted by the trial court.
We affirm the district court on the issues of standing and enforceability of the preferential rights provision. We reverse on the issue of bona fide purchaser and remand with instructions that the court determine whether there is any impediment to specific per formance of the preferential rights covenant. We affirm thé sanctions award. We recognize that our mandate will likely result in ripening other claims of certain parties, and we remand for further proceedings not inconsistent with our mandate.
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Greene, J.:
During the administration of Sandra Jo Steward’s estate, Denny L. Steward, conservator of the estate, filed a petition to determine ownership of certain payable-on-death (POD) accounts after discovering that Mary L. Huggins, the decedent’s guardian, as well as Huggins’ children and grandchildren, were named as beneficiaries on the accounts. The probate court set aside the POD accounts and ordered tire funds to be returned to Steward’s estate, subject to disbursement under the laws of intestacy. Huggins appealed to the district court, alleging that the probate court lacked jurisdiction over her person and the POD accounts. The district court affirmed the findings of the probate court, specifically holding that the probate court had jurisdiction in the matter. Huggins appeals.
Stipulated Factual Statement
The parties have submitted an agreed statement pursuant to Supreme Court Rule 3.05 (2003 Kan. Ct. R. Annot. 25). The facts are set out as follows:
“1. In 1987, Denny L. Steward was appointed conservator for Sandra Jo Steward, and Mary L. Huggins was appointed guardian for Sandra Jo Steward. Dennis White was appointed guardian ad litem for Sandra Jo Steward.
“2. A doctor had examined Sandra Jo Steward, and wrote she was totally incompetent to manage her financial affairs or personal affairs.
“3. During the conservatorship, Sandra Jo Steward set up certain Pay on Death accounts and purchased United States savings bonds, and designated Pay on Death beneficiaries with her earnings, all without knowledge or consent of the conservator or approval of the conservatorship court. Most, if not all, of the monies earned by Sandra Jo Steward were never turned over to the conservator during the conservatorship.
“4. Sandra Jo Steward passed away on September 15, 2000.
“5. Denny L. Steward was appointed as administrator of her estate.
"6. The only heirs-at-law of Sandra Jo Steward are her siblings, to-wit:
Denny L. Steward
Kaye Snyder
Larry G. Steward
Opal Slocum.
“7. That after the death of Sandra Jo Steward, Denny L. Steward became aware of these Pay on Death accounts and bonds, and as conservator filed a motion in the conservatorship court to determine ownership of that property.
“8. The conservatorship court essentially set aside the Pay on Death accounts, and ordered them to be part of the conservatorship estate assets.
“9. Mary L. Huggins appealed the magistrate’s decision to the district judge, which found that all assets of Sandra Jo Steward should be accounted for by die conservatorship then paid according to law.
“10. That the conservator then filed his final account in the conservatorship court listing the Pay on Death accounts and bonds and the designated beneficiaries. The court ordered these funds to be transferred to the probate estate.
“11. That these same assets were then inventoried into the estate.
“12. That Denny L. Steward as administrator filed a motion in the estate for die estate court to determine ownership of the Pay on Death property.
“13. That the administrator sent a copy of his Motion to Determine Ownership of Property together with a Notice of Hearing to Mary L. Huggins in care of Dennis A. White.
“14. That Mary L. Huggins had never entered her appearance in the estate case, and was never served with process. Dennis A. White had served as her attorney throughout tire conservatorship proceedings.
“15. That Mary L. Huggins had notice of all proceedings in the conservatorship matter, and was represented by Dennis A. White at all times.
“16. That Mary L. Huggins’ attorney, Dennis A. White, appeared at the hearing on her behalf for the sole purpose of advising the estate court that it did not have jurisdiction over the person of Mary L. Huggins nor any property on which she was listed as a Pay on Death beneficiary.
“17. That no evidence has ever been produced that Sandra Jo Steward had testamentary capacity or that she received independent advice regarding her money transfers.
“18. The estate court ruled that:
Mary L. Huggins did not have authority, capacity or approval to assist Sandra Jo Steward in setting up Pay on Death accounts; that all instruments executed by Sandra Jo Steward during the conservatorship were void; and that all Pay on Death accounts/bonds belongs to the estate and is subject to disbursement by the probate court to tire heirs-at-law.
“19. That Mary L. Huggins appealed the ruling of the estate court to tire district judge on the grounds that tire estate court did not have jurisdiction over her person or the property she received as a Pay on Death beneficiary.
“20. That the district judge affirmed the decision of the estate court.
“21. That Mary L. Huggins appeals the decision of the district judge for lack of jurisdiction over her person or property.”
Standard of Review
Whether subject matter or personal jurisdiction exists is a question of law over which this court’s scope of review is unlimited. See State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002) (subject matter); Novak v. Mutual of Omaha Ins. Co., 29 Kan. App. 2d 526, 28 P.3d 1033 (2001) (personal).
The Probate Court Had Jurisdiction Over the Person of the Guardian and the Subject Matter of the Guardianship Activities
Huggins contends that the probate court had no jurisdiction over her or the POD accounts, relying principally upon Snodgrass v. Lyndon State Bank, 15 Kan. App. 2d 546, 811 P.2d 58, rev. denied 249 Kan. 776 (1991). In Snodgrass, our court construed K.S.A. 9-1215, which provided, inter alia:
“Transfers pursuant to this section shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.”
The court specifically held that the legislature intended this language to exclude POD accounts from provisions of the probate code, thus precluding a challenge from a surviving nonconsenting spouse. 15 Kan. App. 2d at 553.
Snodgrass and other Kansas authorities cited by Huggins are inapplicable here, however, because they do not address a situation where the POD account is established by an incompetent ward, for the benefit of a guardian, from income during a guardianship and conservatorship, without the knowledge of the conservator, and absent any approval of the conservatorship court. The probate and district courts here properly focused upon their jurisdiction over the guardian and the activities incident to the guardianship/ conservatorship rather than the nature of the accounts created through the improper conduct of a fiduciary.
The probate code is replete with provisions vesting authority of the court over the person and activities of guardians and conservators. K.S.A. 59-103 provides, inter alia-.
“(a) Chapter 59 of the Kansas Statutes Annotated may be used:
(6) To appoint and remove guardians and conservators for minors, voluntary conservatees and incapacitated persons, to make all necessary orders relating to their estates, to direct and control the official acts of such guardians and conservators and to settle their accounts.” (Emphasis added.)
K.S.A. 59-3018(a) (repealed in 2002), provided that “a guardian shall be subject to the control and direction of the court at all times and in all things.” See its successor, K.S.A. 2002 Supp. 59-3075(a)(1).
Moreover, the probate code circumscribes the conduct and activities of a guardian. K.S.A. 2002 Supp. 59-102(2) and (3) define fiduciaries to include both guardians and conservators. K.S.A. 59-3018 provided:
“It is the general duty of an individual or corporation appointed to serve as a guardian to carry out diligently and in good faith the specific duties and powers assigned by the court. In carrying out these duties and powers, the guardian shall assure that personal, civil and human rights of the ward or minor whom the guardian services are protected.”
See K.S.A. 2002 Supp. 59-3075.
These statutes, particularly when considered as an integral part of the probate code, demonstrate a clear legislative intent for Chapter 59 courts to have sufficient jurisdiction to determine and remedy any and all misconduct of guardians and conservators, and such authority necessarily includes the setting aside of certain transfers, whether testamentary or nontestamentary in nature. To hold otherwise would give license to guardians or other personal representatives to abuse their fiduciary positions with impugnity. None of the cases cited by Huggins has so held. While we fully embrace the Snodgrass decision, we decline to hinder the probate court’s jurisdiction to prohibit and to remedy conduct by court-appointed fiduciaries, especially when they engage in misconduct or when they profit financially from their fiduciary position.
A somewhat more difficult question of personal jurisdiction would be posed if the nonguardian beneficiaries of the POD accounts had intervened or objected to the court’s set-aside order. Since no such party in interest is before us to frame this issue, we decline to reach the issue in this appeal.
Huggins participated in a course of conduct, whether affirmatively or passively, that was beyond if not contrary to her authority as a guardian. The probate court had jurisdiction and specific statutory responsibility to regulate and remedy such conduct. The nature or type of instrument or account chosen by a guardian or conservator to perpetrate fiduciary misconduct, even though a payable-on-death nontestamentary account, will not divest the probate court’s jurisdiction to remedy such misconduct.
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Pierron, J.:
Nathaniel E. Ellibee appeals the district court’s summary dismissal of his petition for writ of habeas corpus.
Ellibee argues that the mandatory savings policy found in the Kansas penal system’s Internal Management Policy and Procedure (IMPP) 04-103 violates his constitutional rights under the Fourteenth Amendment to the United State Constitution. IMPP 04-103 provides for a savings account in which 10% of an inmate’s incoming monies less any outstanding obligations, and a specified portion of earnings from work release or private industry employment, is deposited and maintained until the inmate’s release from custody. The use of the funds in the account is restricted to payment of garnishment and, only if the inmate’s cash balance is exhausted, civil filing fees. IMPP 04-103 provides in relevant part:
“Mandatory Savings
“A. Each inmate shall be required to place ten percent [10%] of all funds received from the following sources into a mandatory savings account:
1. Funds received from outside the facility;
2. Prize monies won by the inmate and paid from the inmate benefit fund; and,
a. If canteen goods are awarded inmate prize winners in lieu of actual cash prize monies, the value of these goods shall not be subject to the mandatory savings assessment.
3. Proceeds from handicraft sales.
“B. Outstanding obligations shall always be subtracted from such monies prior to the assessment of the ten percent [10%] mandatory savings amounts.
“C. Voluntary contributions by an inmate to his/her mandatory savings account shall not be permitted.
“D. All monies deposited to a mandatory savings account shall accrue interest as outlined in this policy.
“E. All funds accrued by each inmate in his/her mandatory savings account shall be provided to the inmate upon his/her release, or, in die alternative, shall become part of the inmate’s estate, subject to the provisions of IMPP 04-114, in the event that he/she dies while in custody.”
In denying Ellibee’s motion, the district court held as follows:
“A mandatory savings program for inmates is appropriate and legitimate. The Court sees very little difference between this program and Social Security or KPERS in respect to required participation. Even petitioner recognizes the program could be appropriate (see p. 12, para. 43 of his petition), just not in its current form. He does not believe any legitimate interests are served by a lifer’ having to contribute to such a plan or by the permitting of court filing fees and garnishments to be deducted from the account.
“Quite the contrary, the lifer’s’ family and children may very well benefit from the ‘survivor’ benefits rather than having such funds squandered over the years on BBQ chips and Red Hot Piggy Pops. Further, legitimate societal and judicial purposes are well served by permitting the payment of court costs and debts through garnishment out of these funds.”
An abuse of discretion standard is applied to a district court’s failure to appoint counsel and summaiy dismissal of a motion filed pursuant to K.S.A. 60-1507. Gilkey v. State, 31 Kan. App. 2d 77, 78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003); Supreme Court Rule 183(h) (2003 Kan. Ct. R. Annot. 213) (district court has “discretion to ascertain whether the claim is substantial before granting a full evidentiaiy hearing”). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. Saucedo v. Winger, 252 Kan. 718, 730-32, 850 P.2d 908 (1993).
Prison officials are given wide latitude in matters concerning the administration of correctional facilities. Such discretion should not be interfered with by the court in the absence of abuse or unless exercised unlawfully, arbitrarily, or capriciously. See Weinlood v. Simmons, 262 Kan. 259, 264, 936 P.2d 238 (1997); Levier v. State, 209 Kan. 442, Syl. ¶ 4, 497 P.2d 265 (1972).
Ellibee argues the mandatory savings program in IMPP 04-103 violates his due process rights guaranteed under the Fourteenth Amendment to the United States Constitution. He claims IMPP 04-103 is not entirely unconstitutional, but contends several exceptions/amendments would make it reasonable and neutral, including a maximum balance of $100, exempting death row inmates and inmates with sentences extending beyond 75 years of age, and protecting accounts from fines, restitution, and garnishment. Essentially, he asks us to modify tire regulation to better fit his views on the matter. Since we find no constitutional violations in the operation of the regulation, we decline.
Kansas courts have upheld mandatory deductions in inmate trust accounts. In Weinlood, 262 Kan. at 266, the Supreme Court held a regulation allowing the Secretary of Corrections to charge an inmate $1 a month for administering the inmate’s trust account did not violate the inmate’s due process rights. In doing so, it cited cases from several jurisdictions where courts have upheld a state’s right to require inmates to reimburse the state for their keep and maintenance. 262 Kan. at 265; see also K.S.A. 19-1930(d) (A county may adopt a resolution that any inmate who participates in a work release or job training program for which the inmate receives compensation or a subsistence allowance shall be required to pay to the county an amount not exceeding $10 per day.).
A helpful case, decided by the Supreme Court of Oklahoma in 1985, is Cumbey v. State, 699 P.2d 1094 (Okla. 1985), where the court held the inmates had failed to demonstrate the existence of any legal right to personal use of, or interest in, statutoiy 20% compulsory savings trust account credits. The court concluded the inmates were also not unlawfully deprived of immediate personal use of funds or interest thereon in violation of state and federal constitutional standards.
“It is well established that a state may legitimately restrict an inmate’s privilege to earn a wage while incarcerated. The benefits of employment during incarceration are granted by the state as a privilege and not as a right. . . . [W]hatever right Appellants have to compensation is solely by the grace of the state and governed by rules and regulations promulgated by legislative direction. The administration of our penal system involves complex problems and prison officials must be accorded latitude in the administration of prison affairs. Prisoners necessarily are subject to appropriate rules and regulations. Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972). Penal policies are evaluated in the context of the central objectives of prison administration and constitutional protections become involved only where fundamental, humane and necessary rights are breached. Here, the alleged unconstitutional manner in which inmate accounts are established and managed within Oklahoma’s penal system did not deprive Appellants of any property to which they were legally entitled.
“In a realistic economic sense, we find that the monetary credits awarded to Appellants’ prison accounts are not wages’ as defined in an employer-employee relationship. Inmates employed by prison industries are not state employees. 57 O.S.Supp.1984 § 545(B). The state prison industries is not a proprietary corporation, but is rather concerned with providing for the proper government, discipline, treatment, care, rehabilitation, and reformation of state inmates. In furtherance of these objectives, the state legislature may grant a favor to convicted criminals, but it may also attach such conditions to the granting of the favor as it deems proper. Sigler, supra, at 661. Accordingly, the Oklahoma State Legislature has granted the gratuitous payment of monetary credits to inmates’ accounts in the best interests of penology and societal concerns. The inmate has no inherent legal right to the payment of this gratuity, nor to determine its form or amount. We therefore view the inmates’ 20% prison accounts as conditional credits of potentially accessible funds, rather than vested property interests. The State Board of Corrections has been given full power and authority by the legislature, in the area of prison management, to engage healthy and capable inmates in productive occupations within the prison, and to potentially provide compensation in its best judgment. We find no constitutional abuse in withholding the statutory 20% of allotted credits in an account payable to the prisoner upon the event of his release. Prison officials may legitimately wish to prevent the free flow of currency within the prison system, and provide an inmate with sufficient funds upon his release to assist him in readjustment to society at large without further aid from the state treasury.” 699 P.2d at 1097-98.
The court in Cumbey did not address the issue of an inmate serving a life sentence because: “It is for the legislature to determine whether such potentially accessible funds will inure to the benefit of the inmates’ estates, or remain in the state treasury.” 699 P.2d at 1098. In Kansas, pursuant to IMPP 04-103, if an inmate dies while in custody, the money in the inmate’s trust account will become part of the inmate’s estate. Consequently, the inmate’s funds are his or hers upon release or if the inmate dies while incarcerated, they still remain the inmate’s funds, they simply pass to the inmate’s estate.
When an inmate challenges a prison regulation as impinging on the inmate’s constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. LeVier v. Nelson, 21 Kan. App. 2d 172, 175, 897 P.2d 188 (1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 [1989]; Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 [1987]). The Department of Corrections (DOC) has the full power and authority to manage the state’s prisons, to encourage healthy and capable inmates in prison labor, and to provide compensation in its best judgment. Requiring 10% of incoming funds to be placed in the inmate’s trust account does not violate Ellibee’s constitutional rights. The DOC has a sufficient rationale for withholding the money and making it available to Ellibee upon his release or passing it through his estate upon his death. Those funds are necessary “to assist him in readjustment to society at large without further aid from the state treasury.” Cumbey, 699 P.2d at 1098. The DOC also has legitimate reasons to prevent the free flow of currency within the prison system.
We find no constitutional or other legal infirmities in the regulation and defer to the expertise of the penal authorities and the presumed validity of the regulation.
The exact nature of Ellibee’s complaint that the administrative grievance procedures violated his due process rights is unclear. It appears Ellibee claims it is a violation of his procedural due process rights that his grievance officer or prison officials did not file a response to his grievance. In its response on appeal, the Secretary of Corrections stated: “The response provided to the inmate by staff at the facility is incorporated herein by reference and made part of this response. On appeal, the inmate offers no evidence or argument that suggests that the response rendered by staff at the facility is wrong.” We find no prejudice to Ellibee in the handling of his grievance and the consideration of his complaint.
We also agree with the summary dismissal of Ellibee’s claims concerning certification of a class action and appointment of counsel. Both of these decisions are reviewed under an abuse of discretion standard. See Steele v. Security Benefit Life Ins. Co., 226 Kan. 631, 638, 602 P.2d 1305 (1979) (Trial judges are afforded substantial discretion in determining whether a class should be certified.); Estes v. State, 221 Kan. 412, 413-14, 559 P.2d 392 (1977) (Our standard of review is whether the trial court abused its discretion in refusing to appoint counsel for a hearing on a 60-1507 motion.); Supreme Court Rule 183(i) (2003 Kan. Ct. R. An-not. 214) (“If a motion presents substantial questions of law or triable issues of fact the court shall appoint counsel to assist the movant if he is an indigent person.”). The trial court’s decision that Ellibee’s 60-1507 motion did not present any substantial questions of law or triable issues of fact is upheld on appeal. Consequently, there was no abuse of discretion in die court’s resolution of either the class certification or appointment of counsel issues. See State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999) (Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court.).
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Marquardt, J.:
Mead Building Center of Manhattan, Inc. (Mead) appeals die trial court’s grant of summary judgment to Mike W. Lin and JoAnn Lin based on the invalidity of its mechanic’s lien. We affirm.
The facts in this appeal are undisputed. The single issue is whether Mead’s mechanic’s lien was valid.
In September 2000, Stephen and Elizabeth Jankord, d/b/a Jankord Construction, (Jankords) submitted a bid of $92,810 for the construction of a garage/studio at the Lins’ residence. In August 2001, $10,000 was added to the bid. Later, the cost was increased to $181,390.11 because the initial bid was “naive.”
On February 27, 2002, Mead filed a mechanic’s hen for $32,141.27 for the value of the materials delivered to the Lins’ property for which it had not been paid. In April 2002, the Jankords filed a mechanic’s lien in the amount of $181,390.11. Mead promptly filed a motion to intervene in the Jankords’ action, which was granted.
In February 2003, Mead filed a motion for summary judgment against the Jankords and a motion for partial summary judgment against the Lins. The action involving the Jankords is not an issue in this appeal. The Lins filed a motion for summary judgment claiming that Mead’s mechanic’s hen was not valid.
The trial court granted the Lins’ motion for summary judgment stating that Mead’s mechanic’s hen failed to meet the statutory requirement that an individual who signs a mechanic’s hen in a representative capacity must identify his or her representative capacity. Mead timely appeals.
The first line of Mead’s mechanic’s lien reads, in relevant part:
“Know all Men by this Statement: That Nicholas Thilges/Mead Building Centers of Manhattan, the undersigned, claims a lien as provided by law upon the whole of the following described tract and piece of land . . . .”
Where the document is signed, it simply says: “Nicholas J. Thilges.” It is undisputed that Thilges is Mead’s manager.
On appeal, Mead argues that the descriptive slash used at the top of the document is sufficient to indicate his representative capacity, thus creating a valid hen. Mead contends that the law favors flexibility when determining the validity of a mechanic’s lien and a reasonable person would conclude that Thilges signed the lien for Mead in his representative capacity.
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. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Although the mechanic’s Hen statutes are to be liberally construed once the lien has attached, the requirements for the hen to come into existence must be strictly met. Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 100, 692 P.2d 397 (1984).
It is undisputed that Mead is an incorporated business. A corporation cannot sign a lien statement or verify one. The statement and verification must be signed and executed by some individual acting for and on behalf of the corporation. Trane Co. v. Bakkalapulo, 234 Kan. 348, 351, 672 P.2d 586 (1983). In J. Walters Constr. Co. v. Greystone South Partnership, 15 Kan. App. 2d 689, 694-95, 817 P.2d 201 (1991), this court held that it was acceptable for an individual signing the lien to use the word “for” in his or her signature.
In Betz v. Bank of Miami Beach, 95 So. 2d 891 (Fla. 1957), the Florida Supreme Court considered whether a signature appearing below the typed name of a corporation was sufficient to show representative capacity. The court specifically noted that no preposition preceded the signature. 95 So. 2d at 892. Ultimately, the court concluded that where there was nothing other than the name of the corporation appearing above the signature, there was insufficient evidence to show representative capacity. 95 So. 2d at 894.
In the instant case, no preposition, such as “for” or “by,” was used. Only Thilges’ name and the name of the corporation appear. Where there is nothing other than the name of the corporation appearing with an individual’s signature, there is insufficient evidence to show representative capacity. Also, a slash mark between an individual’s name and the name of the corporation is insufficient to show the individual’s representative capacity.
The trial court did not err by granting the Lins’ motion for summary judgment.
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Rulon, C.J.:
Defendant Carmen Lazos appeals his conviction for failure to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 etseq. Defendant contends the district court lacked jurisdiction to consider his reporting failure and that application of the reporting requirements to his case violates the ex post facto prohibition of the United States Constitution. We affirm.
On September 7, 1999, the defendant entered a plea of guilty to involuntary manslaughter and was sentenced to 32 months in prison. The district court did not certify the defendant as an offender under K.S.A. 1998 Supp. 22-4902(d).
On May 11, 2001, the defendant registered under KORA in Norton County at the correctional facility. Eleven days later, he again registered in Saline County. On September 4, 2001, an ad dress verification form was mailed to the defendant at the address provided on the last registration form, as required under K.S.A. 2001 Supp. 22-4904(c)(l), which the defendant failed to return.
The State originally charged the defendant with failure to register under KORA, in violation of K.S.A. 2001 Supp. 22-4904, but subsequently amended the complaint to reflect the defendant’s failure to return the address verification form, in violation of K.S.A. 2001 Supp. 22-4904(c).
In response, the defendant filed objections to his prosecution for failure to return the address verification form, arguing the district court which sentenced him for involuntary manslaughter never certified him as a violent offender and that imposition of a felony conviction constitutes an ex post facto violation. The district court found no merit in the defendant’s arguments and sentenced him to serve 6 months with the Department of Corrections but suspended the sentence in favor of 12 months of probation.
Failure to Certify
The defendant challenges the district court’s jurisdiction to impose any penalty for a KORA violation because the defendant was never certified as a violent offender when the defendant was sentenced for involuntary manslaughter. The defendant argues that by failing to certify him under KORA, the Act is inapplicable.
The defendant’s argument hinges upon his interpretation of K.S.A. 1998 Supp. 22-4902(d), which states in pertinent part:
“(d) “Violent offender’ includes any person who, after the effective date of this act, is convicted of any of the following crimes:
“(5) involuntary manslaughter as defined by K.S.A. 21-3404 and amendments thereto; . . .
“Upon such conviction, the court shall certify that the person is an offender subject to the provisions of K.S.A. 22-4901 et seq. and amendments thereto and shall include this certification in the order of commitment.”
The defendant argues that because the district court never certified him as a violent offender, he is not subject to the requirements of KORA. However, in 1999, the Kansas Legislature amended KORA to eliminate the certification requirement. L. 1999, ch. 164, sec. 29.
While the defendant argues that a court must apply tire version of a law that was effective at the time of the offense, the prohibition upon the retroactive application of amendments to a statute applies only to substantive criminal provisions, not merely procedural statutes. See State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001) (citing State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 [1980]; State v. Sylva, 14 Kan. App. 2d 609, 612, 795 P.2d 947 [1990]).
“A statute is considered substantive when it contains a body of rules which define what acts are punishable and proscribes punishment for the commission of tiróse acts. On the other hand, a statute is procedural when it provides for or regulates the steps to be taken in determining whether a person has violated a criminal statute. See State v. Sylva, 248 Kan. 118, 119, 804 P.2d 967 (1991). When no legislative mandate is controlling, whether a statute is to be given retroactive effect will depend on whether it proscribes certain conduct or assigns a punishment for that conduct or whether it merely establishes the method by which the conduct is to be evaluated.” State v. Brooker, 27 Kan. App. 2d 396, 399, 4 P.3d 1180, rev. denied 269 Kan. 935 (2000).
Although the portion of K.S.A. 1999 Supp. 22-4902(d) which defines those crimes requiring registration under KORA may be deemed substantive in nature, it is unnecessary to determine that issue in this case. The defendant admits that as of the date of his offense, a person who committed involuntary manslaughter was defined as a violent offender. The only change between the law in effect when the defendant committed the offense and the law in effect when the defendant was sentenced is that, if the 1999 amendments applied, the sentencing court was not required to include a certification of the defendant as a violent offender within the commitment order.
Consequently, the sentencing court was under no obligation to certify the defendant as a violent offender and to include such certification within the order of commitment. The defendant’s argument that the provisions of KORA were inapplicable in his case is without legal merit.
Ex Post Facto Application
The defendant contends that an amendment which increased the penalty from a misdemeanor to a low level felony operated retroactively and is legislation given ex post facto application in violation of the United States Constitution.
Our Supreme Court has previously addressed this issue. See State v. Armbrust, 274 Kan. 1089, 59 P.3d 1000 (2002). First, the Armbrust court recognized that the conduct punished by application of KORA was not the violent offense which triggered the registration requirements, but the failure to register under the Act or to return the address verification within 10 days. It then determined that the application of the amended penalty provision to Armbrust occurred after the effective date of the amendment in 1999. Consequently, the court determined that sentencing Armbrust to a level 10 felony for failing to return the address verification was not an ex post facto violation. Armbrust, 274 Kan. at 1090-94.
Similarly, the 1999 amendments to K.S.A. 22-4903, which increased the penalty for violations of KORA from a class A misdemeanor to a level 10 felony, were effective before September 2001 when the defendant failed to comply with the address verification requirements of K.S.A. 2001 Supp. 22-4904(c). Armbrust is controlling precedent, which this court is duty-bound to apply absent some indication that the Supreme Court is departing from its precedent. State v. Jackson, 30 Kan. App. 2d 288, 299, 41 P.3d 871 (2002).
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Vieux, J.:
Robert Joseph Galvin, III, appeals the trial court’s decision that he had abandoned his motion to alter or amend the divorce decree by filing a subsequent motion to reduce child support and spousal maintenance. We affirm in part and dismiss in part. The facts of this case will be discussed as necessary to determine the issues presented.
Orders From the Divorce Trial
Robert’s first four issues on appeal challenge the trial court’s computation of child support and its distribution of the parties’ property in the divorce decree.
K.S.A. 2002 Supp. 60-2103(b) states: “The notice of appeal shall specify tire parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” Here, Robert’s notice of appeal stated only that he was appealing “from the Judgments entered in the present action on February 26, 2003, to the Court of Appeals of the State of Kansas.” The February 26, 2003, decision related to Robert’s motion to alter or amend the divorce decree.
It is a fundamental proposition of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 718, 869 P.2d 598 (1994). The Hess court further stated:
“K.S.A. 60-102 provides for liberal construction to secure the just, speedy, and inexpensive determination of every action or proceeding. The code of civil procedure was not rewritten to make more technical and burdensome the requirements of the notice of appeal as construed by the court in its previous decisions.” 254 Kan. at 720.
In Key v. Hein, Ebert & Weir, Chtd., 265 Kan. 124, 129, 960 P.2d 746 (1998), the notice of appeal appealed from a trial court order entered in December 1996, and “ ‘from each and every order entered contrary to plaintiff.’ ” The December 1996 decision was a ruling on Key’s motion for a new trial or to amend the judgment, but the decision which granted summary judgment to the appellees was a December 1995 order. The appellees in Key sought to limit the appeal only to the issues addressed in the December 1996 order. Key argued that in appealing the December 1996 order, he appealed the December 1995 order granting summaiy judgment. The Key court construed the notice of appeal liberally and held that it covered earlier court orders not specifically designated. It noted that the catchall language “obviously embraces the entry of summary judgment.” 265 Kan. at 130.
Robert’s ex-wife, Janet Galvin, argues that even a liberal construction would not give this court jurisdiction because there was no catchall phrase used in Robert’s notice of appeal. She also asserts that Robert’s failure to include in the record on appeal the trial transcript from the divorce proceeding or the “hundreds” of trial exhibits shows that he did not intend to appeal the June 2001 order.
Robert contends that the issues he raised are part of the record on appeal, which includes the transcripts of the August 2002 and February 2003 hearings. Further, he maintains that all of his issues were addressed by the trial court at those hearings and the Februaiy 2003 order reflects a final decision on all of those rulings.
This court finds that it lacks jurisdiction as to Robert’s first four issues on appeal regarding child support and property division. Additionally, we find that the record on appeal is insufficient without tire transcript of the divorce trial and the exhibits submitted at the trial. An appellant has the duty to designate a record on appeal sufficient to establish the claimed error. Without an adequate record, the appellant’s claim of error fails. Pate v. Riverbend Mobile Home Village, Inc., 25 Kan. App. 2d 48, 52, 955 P.2d 1342 (1998).
Robert’s first four issues on appeal regarding the original child support and property division orders are dismissed.
Motion to Alter or Amend Divorce Decree
On June 29, 2001, Robert filed a motion to alter or amend the divorce decree. In August 2001, the trial court heard Robert’s motion to alter or amend the divorce decree as to issues of child support and property division. At that hearing, the trial court ordered the parties to mediate the issues and then submit a journal entry. If the parties could not reach an agreement, they were to inform the trial court. The parties mediated but could not reach an agreement and the matter was never brought back before the trial court. On November 19, 2001, rather than proceeding with his motion to alter or amend the divorce decree, Robert filed a motion to reduce child support and spousal maintenance with a hearing officer. On February 12, 2002, the hearing officer denied Robert’s motion. On February 27, 2002, Robert filed a motion for de novo review of the hearing officer’s decision, but it was never set for hearing. Robert’s motion for de novo review was heard before the trial court on Februaiy 26, 2003. In its memorandum decision, the trial court stated that Robert “had abandoned that motion [to alter or amend the divorce decree] by filing a subsequent motion to modify child support.” The trial court also found that Robert’s motion for de novo review was dismissed for lack of prosecution because it was never set for hearing; thus, the hearing officer’s decision should stand. Robert filed an appeal of the February 26, 2003, judgment with this court.
Whether Robert abandoned his motion to alter or amend the divorce decree by filing his motion to reduce child support and spousal maintenance is a question of law. This court’s standard of review on questions of law is unlimited. Smith v. Fisher, 29 Kan. App. 2d 400, 402, 26 P.3d 83, rev. denied 272 Kan. 1419 (2001).
Janet argues that Robert’s inaction for 16 months constituted abandonment of the issue on his motion to alter or amend the divorce decree when he filed his motion to reduce child support and spousal maintenance. Kansas law has defined abandonment as the intentional and voluntary relinquishment of a known right. See Botkin v. Kickapoo, Inc., 211 Kan. 107, 109-10, 505 P.2d 749 (1973). Janet argues that “[i]naction on one judicial front while the identical legal issue is attacked on another judicial front constitutes abandonment of that issue on the judicial front where the inaction occurs. To rule otherwise would allow litigants to forever stall decisions on the merits.”
Robert equates abandonment with waiver and cites Beeson v. Erickson, 22 Kan. App. 2d 452, 917 P.2d 901, rev. denied 260 Kan. 991 (1996) in support of his argument. In Beeson, the plaintiffs argued that the defendants waived their right to invoke an arbitration clause because they took no steps regarding arbitration until after suit was filed. The Beeson court found that the defendants had raised their right to arbitration in their answer and had thereafter objected to the trial court’s denial of motions to compel arbitration and otherwise pursued the issue throughout the litigation; thus, the defendants’ conduct unequivocally demonstrated their intent to rely on and insist upon enforcing their right to arbitration. 22 Kan. App. 2d at 454-55.
Although there is no specific case law regarding abandoning a motion under these factual circumstances, the trial court did not err in its ruling. Pursuant to Supreme Court Rule 172 (2003 Kan. Ct. R. Annot. 209), the hearing officer has the power to establish and modify support, or enforce support pursuant to the Kansas Parentage Act, 38-1110 et seq.
Despite the hearing officer’s decision and the trial court’s ruling, Robert is not precluded from challenging child support due to a change in circumstances. Under K.S.A. 2002 Supp. 60-1610(a)(l), the trial court may modify or change any prior order within 3 years of the date of die original order or a modification order when a material change in circumstances is shown. Thus, even if Robert abandoned his motion to alter or amend the divorce decree, he can still ask die trial court to modify his child support and spousal maintenance.
Robert suggests that die trial court found he had abandoned the issue of property division. Robert did not follow the trial court’s orders to either submit a journal entry after mediation on the issues of child support and personal property division, or inform the trial court that an agreement could not be reached. A party may not invite error and then complain of diat error on appeal. Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003).
The trial court did not err in its decision.
Motion for De Novo Review
Robert argues that the trial court erred when it dismissed his motion for de novo review for lack of prosecution. Robert asserts that the matter was not set for hearing because he was forced to move to Florida due to the loss of most of his business and did not have the funds for attorney fees.
Whether the trial court properly dismissed Robert’s motion for de novo review involves interpretation of local rules and Supreme Court Rule 105 (2003 Kan. Ct. R. Annot. 154). Thus, this court has unlimited review. Butler County R.W.D. No. 8, 275 Kan. at 294.
Rule 105 provides that judicial districts may make rules they find necessary for the administration of the district court’s affairs to the extent such rales are not inconsistent with applicable statutes and the Kansas Supreme Court Rules. Johnson County District Court Rule 26 (12)(C) states: “Within 30 days after filing the motion for a review hearing, the movant shall obtain from die court a date for the review hearing. If a hearing date is not timely obtained, the motion will be dismissed for lack of prosecution pursuant to K.S.A. 60-241(b)(2).” See Rules of Court for the Tenth Judicial District of Kansas, Civil Rule 26.
Although Robert’s financial situation had changed for the worse, this does not excuse his failure to set his motion for de novo review for hearing. The trial court did not err in dismissing Robert’s motion for lack of prosecution.
Robert also argues that District Court Rule 26 did not apply to his case because it was not retroactively applicable to previous filings.
“The general rule is that if an amendment is to a procedural statute and it does not prejudicially affect the substantive rights of the parties, all actions will be subject to the new procedure whether they accrued before or after the change in the law and whether or not a suit had been instituted. [Citation omitted.] Procedural laws are those that concern ‘the manner and order of conducting suits— in other words, the mode of proceeding to enforce legal rights. [Citation omitted.]’ ” Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 191, 883 P.2d 1177 (1994).
District Court Rule 26 is a procedural rule and can be applied retroactively.
Robert’s first four issues on appeal regarding the trial court’s computation of child support and distribution of the parties’ property are dismissed. The trial court’s ruling that Robert had abandoned his motion to alter or amend the divorce decree and its dismissal of Robert’s motion for de novo review are affirmed.
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Lewis, J.:
Movant Edrick McCarty was originally convicted of attempted aggravated robbery and first-degree murder in April 1999. He was sentenced to life imprisonment on the murder charge and 136 months’ imprisonment on the attempted aggravated robbery charge. He appealed his convictions, and they were affirmed in State v. McCarty, 271 Kan. 510, 23 P.3d 829 (2001).
Movant next filed this action, seeking relief under K.S.A. 60-1507. Among other things, movant claims he received ineffective assistance of trial counsel. He alleged he received ineffective assistance of trial counsel because the State had offered a plea that would have resulted in movant being incarcerated for 11 years, but his attorney told him the plea would cause him to be incarcerated for 36 years. First of all, we are aware of no statute which would impose a sentence of only 11 years for a charge of aggravated robbery and first-degree murder. We rather doubt movant’s allegations.
The trial court did hold a nonevidentiary hearing and held there was no unprofessional conduct by trial counsel, and the motion was supported by conclusory allegations only, and the trial court summarily dismissed it. This appeal followed.
On this appeal, the only issue is whether movant received ineffective assistance of counsel during his nonevidentiary hearing on his 60-1507 motion. We hold that movant may not raise this issue under the circumstances and affirm the trial court’s decision on the basis that movant has no right to make a claim of ineffective assistance of counsel under the circumstances of this case.
The law of Kansas is rather clear on this issue. In Holt v. Saiya, 28 Kan. App. 2d 356, 362, 17 P.3d 368 (2000), we said: “Kansas law is clear that in collateral post-conviction proceedings, an inmate does not have a constitutional right to counsel and without a constitutional right, there can be no claim of ineffective assistance of counsel.” (Emphasis added.) See also Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 (1993) (holding that there is no constitutional right to counsel in discretionary appeals). Since movant had no constitutional right to counsel, he is not able to bring a claim of ineffective assistance of counsel before the court.
Movant acknowledges the cases cited above and the Kansas precedent. However, he asserts those decisions should not control because Kansas has implicated the provisions of the due process clause by voluntarily estabhshing a procedure for post-conviction relief. He relies on Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985), for support of his argument. In Evitts, the court held the dismissal of a defendant’s appeal violates his or her due process rights when the dismissal was the result of ineffective assistance of counsel. However, in Evitts, the right to counsel was limited to “the first appeal as of right.” 469 U.S. at 394.
In Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), the Court determined that an indigent defendant did not have the right to counsel in a collateral postconviction proceeding. The Court further held that because an indigent does not have the right to counsel in these circumstances, he or she is not entitled to the protections provided for in the procedure for withdrawal as counsel for an indigent defendant set forth in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Additionally, the Court rejected an argument that Evitts required the State to ensure an inmate receives the same level of protection by his or her counsel during a collateral postconviction proceeding as he or she would have had on direct appeal. 481 U.S. at 557-58. Furthermore, the Court determined that the State was not required to make the choice of providing no counsel or abiding by the strict procedures set forth in Anders. 481 U.S. at 559.
This court has already analyzed the effect of Evitts and Finley in Robinson v. State, 13 Kan. App. 2d 244, 248-49, 767 P.2d 851, rev. denied 244 Kan. 738 (1989). In its analysis, the Robinson court analogized its case to Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982). In discussing Wainwright, the court in Robinson stated:
“There, the Florida Supreme Court dismissed an application for writ of certiorari because it was not timely filed. Respondent claimed he had been denied effective assistance of counsel by failure of retained counsel to timely file the application for certiorari. The United States Supreme Court held that, because a criminal defendant has no constitutional right to counsel in a discretionaiy appeal, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to timely file the application. [Citation omitted.]” 13 Kan. App. 2d at 250.
This case is controlled by our decision in Robinson v. State, 13 Kan. App. 2d at 250, where we said that a movant did not receive ineffective assistance of counsel by his or her counsel’s failure to file a timely appeal of the denial of a 60-1507 motion because the movant did not have the constitutional right to counsel. In addition, the court has already recognized the difference between the statutoiy right to counsel and a constitutional right to counsel. See Holt v. Saiya, 28 Kan. App. 2d at 362. A statutory right to counsel does not create the constitutional right necessaiy for a 60-1507 claim. In order to be able to maintain an action for ineffective assistance of counsel, an inmate must show that his or her counsel’s actions were so deficient that the inmate was deprived of the counsel guaranteed by the Sixth Amendment to the United States Constitution. If there is no constitutional right to counsel guaranteed, then an inmate cannot maintain an ineffective assistance of counsel claim. In the present case, movant was not guaranteed counsel in his 60-1507 motion by the Sixth Amendment, and his arguments concerning ineffective assistance of counsel are without merit.
We will discuss briefly the statutoiy right to counsel in Kansas.
K.S.A. 2002 Supp. 22-4506(b) requires the court to appoint counsel to an indigent inmate on a 60-1507 motion “[i]f the court finds that the petition or motion presents substantial questions of law or triable issues of fact.” Inasmuch as the trial court in this case found that the record conclusively showed that movant was not entitled to relief, we do not believe that K.S.A. 2002 Supp. 22-4506(b) applies, and he had no right to counsel even under our statutoiy procedures.
In Holt v. Saiya, we recognized the statutory right to counsel created by 22-4506(b). We stated in that case: “Kansas law is clear that in collateral post-conviction proceedings, an inmate does not have a constitutional right to counsel and without a constitutional right, there can be no claim of ineffective assistance of counsel.” 28 Kan. App. 2d at 362.
In Kansas, we have provided a statutory right to counsel through 22-4506(b) since 1969. This particular law existed well before the decisions in Robinson, Foy, and Holt. Despite the existence of the Kansas statutory right to counsel, we have consistently held that a person cannot bring an ineffective assistance of counsel claim against his or her K.S.A. 60-1507 counsel under that statute because it does not create a constitutional right to counsel in postconviction proceedings.
For those reasons, movant has no right to bring an ineffective assistance of counsel claim, and we affirm the trial court’s decision denying his 60-1507 motion.
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The opinion of the court was delivered by
Jackson, J.:
In March, 1950, Christenson' sold to Akin for the gross price of $30,000 “The Central L. & P. Gas Agency and good will, agency being described as equipiment only . . The quoted part of the preceding sentence was taken, together with misspelling, from a so-called written contract entered into between the parties, together with their respective wives, on March 23, 1950. Akin took possession of the business and made certain payments under the contract.
On June 8, 1956, the Christensons brought suit against the Akins to collect the sum of $5,900 together with interest and to foreclose the above-mentioned contract as a chattel mortgage.
At this point, we are constrained to observe that having been informed that the above-mentioned contract was drawn for the par ties by a banker, it would seem that the parties would have found it much more economical to have engaged their present respective counsel at the time the contract of sale of this $80,000 worth of property was being made rather than waiting until difficulties as to their rights under the contract had arisen. Unauthorized practice of law often harms the public.
To return to the lawsuit, defendants Akin answered and also filed several cross claims. The pleadings were amended several times, and the trial from which this appeal is taken involved only one of tlie counterclaims of the defendants in which they sought to enjoin plaintiffs from competing with defendants in violation of their alleged covenants in the above mentioned contract.
The only part of the contract which is pertinent to the issues at the present time is as follows:
“Witnesseth, That said parties of the first part has this day agreed to sell to the said parties of the second part, on the conditions and for the consideration hereinafter mentioned, The Central L. & P. Gas agency and good will, agency being described as equipiment only, said equipiment will be itemized under separate sheet and become a part of this agreement. The Agency territory will be under a separate plat and become a part of this agreement. The good will excludes the first parties from entering into competition in said territory as maped or platted. Temporary desk space will be granted free by first parties to the second parties.”
The within matter was tried to the court without a jury, and at the close of the evidence of defendants upon their counterclaim, plaintiffs entered a demurrer to the evidence. They also announced that they would offer no evidence upon their own behalf and moved the court for judgment. After taking the matter under advisement, the trial court filed its memorandum decision. The findings and conclusions of the learned trial judge therein were later made a part of the journal entry and will be quoted, since they will serve both to elucidate the issues between the parties, the evidence thereon, and the rulings of the court:
“Now on this 22nd day of July, 1957, the parties appearing as before, this cause comes on for determination by the court of defendants’ right to relief under the third cause of action pled in their cross-petition and amendments thereto. Thereupon, the court makes and files in this cause the following findings of facts, from the entire record insofar as it pertains to the injunction issue:
“1. On and prior to March 23, 1950, plaintiffs were operating a liquified petroleum business under the firm name, Central L. P. Gas Company, said business being conducted in all or parts of all of the following named Kansas counties: Douglas, Wyandotte, Leavenworth, Atchison, Jefferson, Shawnee, Pottawatomie, Osage, Franklin, and Johnson.
“2. Liquified petroleum gas, commonly referred to as L. P. Gas, is used primarily as a substitute for natural gas in areas where natural gas is not available. The State has seen fit to enact certain statutes relative to liquified petroleum gas containers, ownership thereof, method of designation of such owner, regulations concerning the filling and re-filling of such containers, and providing penalties for the violation of such laws. (G. S. 1955 Supp., 55-1101 et seq.)
“3. On and prior to March 23, 1950, plaintiffs operated their L. P. Gas business from a business building at 400 East 23rd Street in Lawrence, Kansas and from a location in Lansing, Kansas.
“4. On March 23, 1950 plaintiffs and defendants entered into an agreement by the terms of which plaintiffs agreed to sell to defendants 'The Central L. & P. Gas Agency and good will, agency being described as equipment only, said equipment will be itimized under separate sheet and become a part of this agreement. The Agency territory will be under a separate plat and become a part of this agreement. The good will excludes the first parties (plaintiffs herein) from entering into compition in said territory as maped or platted. Temporary desk space will be granted free by first parties (plaintiffs herein) to the second parties. (Defendants herein).’ The agreement further provides that the whole consideration for such agency and Good Will is the sum of $30,000, $1,000 payable on date of contract, $6,000 within 60 days, and balance of $23,0000 to be paid by a 4% mortgage note, said note to be payable at the rate of $300 plus interest on the unpaid balance each 30 days from the date of said note until fully paid. The agreement was prepared on a printed form used for conditional sales of real estate and contained a type statement near the end of the form that ‘It is understood and agreed that this is not a real estate agreement but an agreement on equipment and good will of the Central L. & P. Gas Company as defined, of Lawrence, Kansas and now operated by Evertt Christenson.’ Pursuant to the terms of the agreement an equipment list was prepared and signed as was an instrument bearing the caption ‘Designated territory.’
“5. The instrument styled ‘Designated territory’ consists of a sheet of paper upon which is drawn a solid horizontal line labelled ‘U. S. 40’, at the west end of which line is a dot, labelled ‘Tongonoxie’, from which dot is drawn a solid curved line upward and to the left where it connects with a solid vertically drawn line, which goes up toward the top of the paper for about l-iK inches and is labelled Leavenworth County Line. At the upper end of this solid vertical fine are two sets of dotted lines, one going horizontally to the left thereof, the other going up vertically therefrom, the 'horizontal dotted line being labelled ‘no bounds’. Just to the right of the solid horizontal line labelled ‘U. S. 40’ is a dotted line going to the right to the edge of the page labelled ‘Wyandotte Co. No. bounds’. Extending vertically downward for about 4-11 inches from the end of the dotted line labelled “Wyandotte Co. No. bounds’ is another dotted fine labelled ‘No bounds’. At the bottom extremity of this dotted fine is another dotted line which goes to the left off of the page and is labelled ‘No bounds’.
“6. Defendant, Tom O. Akin, was permitted to testify over objection, that the territory of plaintiffs’ Lawrence L. P. Gas business on March 23, 1957, was generally contained within bounds beginning at the Leavenworth-Jefferson county line, thence North to Winchester, thence North from Winchester 4 or 5 miles, thence West-Southwest to Topeka and on to Burlingame, thence Easterly through Homewood, thence Northerly to Ottawa, thence Northeasterly into Johnson County to a point 4 or 5 miles East of Bonner Springs, thence Northwesterly to Bonner Springs, thence to a point of beginning on U. S. 40 highway.
“7. On April 29, 1950, defendants executed the chattel mortgage contemplated by the March 23, 1950 Agreement and on May 1, 1950 took possession and commenced operation of the business. At first, defendants operated from plaintiff’s building on East 23rd Street, then from a warehouse a few hundred feet to the west, and then in 1952 moved to their present location near the junction of W. 23rd Street and Highway 59.
“8. In the fall of 1950 plaintiffs began filling trailer bottles with L. P. gas in Lawrence. From that time on plaintiffs’ business of selling L. P. gas in tire Lawrence area continued to grow until in 1954 and 1955 plaintiffs were selling and delivering L. P. Gas in Douglas, Jefferson, Leavenworth, Johnson, Shawnee, Wyandotte, Atchison and Franklin counties. During 1954, 1955 and up to the present time, plaintiffs have sold and delivered L. P. gas in the area just mentioned from the former location of the Central L. P. Gas Co. on East 23rd Street, and have advertised their business in the papers and on the radio.
“9. Defendants’ first complaint to plaintiffs about, selling L. P. Gas around Lawrence resulted in plaintiffs’ temporary relinquishment of the business complained about to defendants. Defendants last complained to plaintiffs about competing in August, 1954. Defendants first learned that plaintiffs were competing in the fall of 1951.
“10. Defendants made regular $300 payments with • interest up until December 1, 1955 at which time the balance due on the chattel note was $5900. Defendants have since made no further payment to plaintiffs nor has tender of any payment since been made. No court action was started by defendants to enforce whatever rights they had against plaintiffs’ competing until plaintiffs filed this action on June 8, 1956 for the balance due on the mortgage note.
“The court also makes and files the following conclusions of law:
“1. An agreement by the seller, ancillary to the sale of a business, not to compete with the buyer thereof need not prescribe arbitrary limitations as to time and as to territory in order to be valid, provided the limitations as to time and as to territory which are fixed are reasonable in light of all the facts and circumstances of the particular case. (Miller v. Cleveland, 87 K. 549; 36 Am. Jur. 544, Sec. 65; 45 ALR 2d 77; 46 ALR 2d 119, at p. 205) To meet the test of reasonableness, such limitations must (1) afford no more than a fair and just protection to the interests of the buyer; (2) must not be unduly oppressive as to the seller; and (3) must not be injurious to the public interest. (See 46 ALR 2d 204)
“2. The instrument styled ‘designated territory’ when construed in light of the contract and the evidence apparently is an attempt by plaintiffs and defendants to divide the territory then serviced by plaintiffs into the Lansing and Lawrence areas, plaintiffs to retain and operate in Lansing and defendants to buy and operate in the Lawrence area, plaintiffs agreeing not to compete with defendants in the Lawrence area. However, the only fixed boundary so provided is on part of the south' line of the Lansing. area and on part of the North side of the Lawrence area. Tins boundary is that portion of highway 40 East from Tongonoxie to an indefinite point probably somewhere in eastern Leavenworth County or western Wyandotte County; then northwesterly from Tongonoxie along Kansas Highway 16 to the Leavenworth county line and then North on said county fine to a wholly unidentified terminus. At the ends of the boundary just mentioned no bounds are fixed. Except as limited by the so-called boundary just mentioned, the agreement of plaintiffs not to compete is unlimited both as to time and as to territory. In view of the area in which plaintiffs had been operating prior to the sale and in view of the nature of the business, plaintiffs’ agreement not to compete is unreasonable as to territory in that it covers a wider area than is necessary for the protection of the good will which defendants purchased from plaintiffs. (46 ALR 2d 204) (The evidence relative to where plaintiffs were operating prior to the sale in question was received in order to determine whether or not the areas in which plaintiffs agreed not to compete was reasonably necessary to the protection of defendants in the business which they had purchased. It was not received to reform the agreement. Any right to reformation, (which defendants say is neither necessary nor desired) would be barred.) (Siegel v. Hackler, Adm., 181 K. 316.)
“3. Defendants permitted plaintiffs to change their position substantially over a period of approximately five years prior to the filing of this action without making a move to eiijoin such activity. Plaintiffs are providing L. P. Gas in virtually every county in which defendants operate and have been doing so on an increasing scale since the fall of 1951 with defendants’ full knowledge and acquiescence. Many customers throughout the area in which defendants now operate, rely upon plaintiffs to service their need for bottled or L. P. Gas. The Court takes judical notice of the fact that in rural and suburban areas where natural gas is not available as a fuel for cooking, heating and refrigeration, L. P. Gas is often used for such purposes.
“4. What defendants want the Court to do is to reduce and define the territory in which plaintiffs shall not be permitted to compete so that the same is reasonable under the circumstances and then enjoin plaintiffs from competing with defendants therein. This the Court could and probably would have done had timely application been made. (See Foltz v. Struxness, 168 K. 714; Wright v. Scotton, (Del.) 31 ALR 1162; McGill v. National Bank of Topeka, 147 K. 605; N. P. Dodge Corp. v. Calderwood, 151 K. 978). Under all the facts and circumstances shown and disclosed by the entire record, I think it must be held that defendants’ claim for an injunction against plaintiffs must be denied on account of their laches in asserting it, and for the further reason that to enjoin plaintiffs from doing business in the area in which defendants are now operating would be injurious to the public in that it would compel those customers who have been served by plaintiffs for several years to make other arrangements for such service. (26 Am. Jur. 257, Secs. 61-68.)
“5. Defendants are delinquent since Dee. 1, 1955 in their installments on the contract which they now request equity to adjust and enforce. One who seeks equity must do equity.
“6. From what has been said, I think it is clear that defendants’ claim for damages on account of plaintiffs’ competition likewise fails. (Merager v. Trunbull, (Wash.) 127 ALR 1142 at 1148.)
“Wherefobe, the court orders judgment as of this day in conformity with the above and foregoing conclusions of fact and law.
“Now upon this 25th day of July, 1957, the same being a regular May, 1957, term day of the above entitled court, plaintiffs , being present by their attorney, Charles A. Springer and defendants being present by their attorney, Forrest A. Jackson, the court on its own motion sets aside the judgment rendered herein on July 22, 1957, and states as follows:
“‘The Court believes that by their motion for judgment the plaintiffs in effect waived their demurrer to the evidence and submitted the case on the merits insofar as the matter of injunctive relief is concerned. The record being as it is, in light of the memorandum decision, the Court is further of the opinion that tire plaintiffs motion for judgment also reached that part of defendants’ third cause of action which has to do with damages. Since defendants’ right to an injunction is denied, then their right to damages must also fail. This means that defendants’ right either to injunctive relief or to damages as prayed for in their third cause of action must be denied.
“ ‘Judgment is therefore entered on this 25th day of July, 1957, on the merits, in favor of plaintiffs and against defendants on the third cause of action contained in defendants’ counterclaim.
“ ‘The trial of the Fourth cause of action of defendants’ counterclaim heretofore set for trial on this date is passed until further order by agreement.’ ” (Italics above supplied.)
The defendants have duly appealed from the above decision of the trial court.
We agree with the trial court that defendants are barred from the right of obtaining the affirmative relief of an injunction under the facts of this case. The rights of the defendants to object to the competitive actions of the plaintiffs are based upon a written contract. The evidence showed and the trial court found that the first violation of those rights occurred in the fall of 1950. The original petition of the plaintiffs was filed in this action on June 8, 1956. Therefore, more than five years had elapsed at the time of the filing of this suit since plaintiffs began to violate their alleged covenants under the written contract. Any affirmative relief would be barred to defendants by the five year statute of limitations in G. S. 1949, 60-306, First, before that date. The general rule is that a cross claim of any nature is barred as to affirmative relief, if such cross claim be barred by the statute of limitations at the time of the filing of plaintiff’s action, (cf. Reynolds v. Thomas, 28 Kan. 810; Oil & Gas Co. v. Wasson, 111 Kan. 124, 206 Pac. 320; 34 Am. Jur., Limitations of Actions, § 65, p. 60; 54 C. J. S. Limitations of Actions, § 285, p. 342.)
We note that the statute of limitations was pleaded in the plaintiffs’ answer to the counterclaim of the defendant. Furthermore, as to the argument of defendants that the doctrine of laches must be pleaded, the Rial judge in his memorandum decision pertinently directed attention to the case of Schlemeyer v. Mellencamp, 159 Kan. 544, p. 549, 156 P. 2d 879, showing that the defense may be raised by demurrer.
It would appear from the record that this hearing of the counterclaim as tried in the district court, and from which this appeal was taken actually dealt only with the right of defendants to injunctive relief. But as shown from conclusion of law No. 6, supra, and from the part of the trial court’s decision which we have italicized, it appears that the trial court determined that defendants’ right of damages for past forbidden competition was barred as well as injunctive relief. It would seem that this is not entirely correct.
Nowhere in this record is mention made of the provisions of G. S. 1949, 60-715. As that statute has been construed in the cases of Bank v. Elliott, 97 Kan. 64, 154 Pac. 255; Muckenthaler v. Noller, 104 Kan. 551, 180 Pac. 453; McCarthy v. Sink, 152 Kan. 659, 107 P. 2d 790; and Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302, it would seem pertinent to this case. The counterclaim here being considered grew out of the same contract and transaction which is the basis of plaintiffs’ cause of action in their petition. Although defendants may be barred from affirmative relief because of limitations, they would seem to have a right to use their counterclaim as a matter of pure defense to reduce any judgment received by plaintiffs herein.
In conclusion of law No. 4, supra, the trial court concludes that the contract against competition herein, if it had not been for laches, could have been given a reasonable meaning. In view of the provisions of section 60-715, supra, we feel that the trial court should give the contract that reasonable construction, and allow the parties a further hearing upon the question of past damages suffered by defendants because of the acts of plaintiffs in violation of the contract which they are now suing on. The defendants, will not be permitted to recover an affirmative judgment of more than shall be found to be due plaintiffs on the indebtedness remaining due, but should be allowed to reduce the judgment of plaintiff by the amount of any damage which it may be found defendants have suffered herein.
In accord with the above, the trial court’s conclusion of law No. 6, supra, and the italicized portion of the decision should be set aside. The decision as so modified should be affirmed, and the case returned to the district court for further proceedings in accord with the views expressed herein.
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The opinion of the court was delivered by
Fatzer, J.:
The question presented is whether a district court, having previously denied plaintiffs motion for a new trial following the entry of judgment for the defendant in a prior term of court, may subsequently, but within the same term in which it entered its order overruling the motion for a new trial, vacate and set aside that order and grant a new trial without notice to the parties affording them an opportunity to appear and be heard.
In view of the conclusions hereafter announced, the question is answered in the affirmative.
State Investment Company commenced an action for the recovery of unearned premiums on certain insurance policies issued by Pacific Employers Insurance Company, which were financed by the plaintiff. Issues were joined and trial was had before the Honorable Alfred G. Schroeder on November 16, 1956. The matter was taken under advisement, and on January 12, 1957, within the January 1957 term, Judge Schroeder made findings of fact and conclusions of law and rendered judgment for the defendant.
On January 14, 1957, the Honorable George L. Allison succeeded Judge Schroeder as judge of the district court of McPherson County. On the same day, plaintiff filed its motion for a new trial and ordered a complete transcript of the evidence which transcript was not made available to Judge Allison until during the April 1957 term. On May 17, 1957, plaintiff’s motion for a new trial was fully argued, briefs were submitted by both parties and on May 24, 1957, the district court, following a thorough examination of the record, overruled plaintiff’s motion.
Plaintiff had previously commenced a similar action against the Cimarron Insurance Company, Inc. (State Investment Co. v. Cimarron Insurance Co., appeal No. 40,934, 183 Kan. 190, 326 P. 2d 299, this day decided) which was tried by a jury May 27-29, 1957, and a verdict was returned for the plaintiff. Cimarron Insurance Company, Inc. filed its motion for a new trial, which was heard and overruled by the district court on June 28,1957. At the time Cimar-ron Insurance Company’s motion ÍQr a new trial was overruled, counsel for plaintiff orally requested that the district court reconsider its order of May 24,1957, and grant plaintiff a new trial in the present action.
The April, 1957, term of the district court of McPherson County ended October 6, 1957. On October 4, 1957, Judge Allison concluded that plaintiff’s motion for a new trial filed January 14, 1957, should have been sustained, and without notice to the parties entered an order setting aside the order of May 24, 1957, and ordered that a new trial be granted. The defendant has appealed from the order of October 4, 1957, granting plaintiff a new trial.
At the outset, the defendant concedes the district court has power to vacate and modify its orders or judgments at or after the term at which they are made (G. S. 1949, 60-3007) and may, upon sufficient cause shown, in the exercise of its sound discretion amend, correct, revise, open or vacate such orders or judgments, but maintains that a motion for a new trial cannot be granted without notice and hearing to the parties, citing G. S. 1949, 60-3003 and Epperson v. Department of Inspections & Registration, 147 Kan. 762, 78 P. 2d 850.
G. S. 1949, 60-3003 provides that a motion for a new trial,
“. • • may be heard and decided by the judge at chambers on reasonable notice to the parties.” (Emphasis supplied.)
The order of October 4, 1957, granting the new trial was based upon the motion filed January 14, 1957. The defendant had notice of the hearing of that motion since it was fully argued by both parties and briefs were submitted to the district court. Following that hearing and on May 24, 1957, the motion was overruled. Although the transcript of the evidence was ordered during the January, 1957, term, it was not available for Judge Allison’s study until during the April, 1957, term. Where a motion for a new trial is timely filed, as here, the jurisdiction of the district court is not lost by the fact the motion was not considered and determined until after the term of court at which the judgment was rendered (Barstow v. Elmore, 177 Kan. 30, 32, 276 P. 2d 360, and cases cited therein).
Following the overruling of the motion, the distinct court had absolute control over that order to modify, alter, change or vacate it in whole or in part and error may not be predicated upon the mere fact the district court first announced its decision in favor of the defendant by overruling plaintiff’s motion, and within the same term of court vacated and set aside that order and granted plaintiff a new trial (Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176; Burnham. v. Burnham, 120 Kan. 90, 242 Pac. 124; Eckl v. Brennan, 150 Kan. 502, 95 P. 2d 535; Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832; Smith v. Smith, 171 Kan. 619, 237 P. 2d 213). The fact that the district court at a subsequent time, but within the same term of court, reconsidered its ruling and reached a conclusion that its order of May 24, 1957, was erroneous or that the plaintiff had not obtained or received substantial justice did not prevent it from entering its order of October 4, 1957, notwithstanding notice was not given to the parties affording them an opportunity to be heard. The rights of the parties were safeguarded by the hearing on May 17, 1957.
The absolute power which a district court has over its orders, decrees and judgments has been referred to as,
. . a wholesome provision of the law and necessary to the administration of justice. In the hurry of business, and confusion incident to a term of court, it often becomes necessary to correct during the term the mistakes tlrat have been made, and these can he corrected at any time during the term. . . .”
(Cornell University v. Parkinson, 59 Kan. 365, 371, 53 Pac. 138.) In Federal Land Bank v. Richardson, 146 Kan. 803, 73 P. 2d 1005, this court said:
"Independent of the code, it is well recognized in this state that a district court has jurisdiction of its judgments and orders during the term of court at which they are rendered, and in the exercise of its judicial discretion on motion of an interested party, or on its own motion, the court may set aside or modify the judgment or order. . . (1. c. 806.) (Emphasis supplied.)
Defendant also specifies as error that the order of October 4, 1957, did not vacate or set aside the court’s findings of fact and conclusions of law although they were consistent with the judgment entered for the defendant. The point is not well taken. The .order granting the new trial set aside the findings of fact and conclusions of law upon which judgment was rendered. An order granting a new trial results in the case standing as it did before trial; therefore, there were no findings of fact and conclusions of law, and, consequently, no judgment (Nicholas v. Latham, 179 Kan. 348, 353, 295 P. 2d 631, and cases cited therein).
We have carefully examined the authorities cited by the defendant and find them not in point.
In view of the well-established rule set forth in the decisions cited herein, it was within the power of the district court to vacate and set aside its order of May 24, 1957, and to grant a new trial on October 4, 1957, without further notice and hearing. The judgment of the district court is affirmed.
Schroeder, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action by a finance company against an insurance company for the recovery of unearned premiums on some thirty canceled insurance policies which it financed. From a judgment in plaintiff’s favor, defendant appeals.
The pertinent facts follow: State Investment Company, appellee (hereinafter referred to as plaintiff or finance company), is a McPherson corporation engaged in the business of financing individual purchases of insurance policies. Cimarron Insurance Company, appellant (hereinafter referred to as defendant or insurance company), is a Kansas insurance corporation. The Hammond Insurance Agency at all times pertinent to this action acted as defendant’s agent to receive and accept applications for insurance and to collect premiums in the Kansas City, Missouri area.
All of the policies in question were issued by the defendant through the Hammond agency. The policy premiums were financed by the plaintiff. In each case the financing plan worked as follows: Plaintiff furnished Hammond with -its financing forms, and upon sale of a policy Hammond certified that it had issued the policy, forwarding an executed premium payment agreement, together with the certificate, to the plaintiff. Ry the terms of the premium payment agreement the policyholder, in consideration of the premium payment by the finance company to the insurance company, assigned to the finance company any unearned premiums to which he might become entitled under the financed insurance policy. That assignment was contained in the following words:
“In consideration of the payment by the payee-hereof to the insurance companies of the premiums for which this note is given, the undersigned hereby assigns to the payee any unearned premium to which he may become entitled under the insurance policies financed by reason, of this note, as hereinafter provided.”
Upon receipt of the payment agreement and certification from the insurance agent, plaintiff then sent a notice to the insurance company, asking it to verify the issuance of the policy and to agree to pay to the finance company the return or unearned premiums in the event of cancellation. The notice to the insurance company read in part as follows:
“You will take notice of the agreement with the assured . . . and your acceptance of this Installment Payment arrangement with the assured shall be construed as acknowledgment of our contract, and you hereby agree that in the event of any cancellation which will require surrender of any policy without unearned premium, for which the note is given, that you will first deduct the unpaid balance and remit that amount direct to the undersigned.”
It was further provided that the gross premium would be mailed upon receipt of the insurance company’s acknowledgment of the agreement. The insurance company then signed and returned the following acknowledgment to the finance company:
“Acknowledgment to The State Investment
Company McPherson, Kansas
“As per your notice to us in regard to premium payment agreement on policy (ies) as above indicated, we hereby accept the obligations of that agreement in your behalf, and we will protect your interests by paying to you all return premiums and losses to the extent of the then existing balance due you on this policy (ies).
“Please remit full gross premium to [agent] upon receipt of this acknowledgment. “[Cimarron Insurance Co., Inc.]”
The testimony indicated that the finance company considered the unearned premiums security for its loans, so that in the event the policy purchaser did not make proper payments to the finance company the policy would be canceled and the finance company would receive the unearned premiums to pay the balance owed for financing the purchase of the policy.
It was admitted that plaintiff knew nothing about the people who purchased the thirty insurance policies. All transactions were conducted through Hammond. Hammond wrote the policies, sent the executed agreements and certifications to the plaintiff, made collection of installment payments and remitted them to plaintiff. Hammond,' as agent of the defendant, also received the premium payments from plaintiff and remitted them to defendant. All the policies in question were canceled before expiration, and defendant, by means of credits on Hammond’s account, returned the unearned premiums to Hammond.
Plaintiff was unable to collect from either defendant or Hammond the return or unearned premiums on the thirty policies, and brought this action against the insurance company for recovery of the return premiums to the extent of the unpaid portions of its loans. Plaintiff alleged that it paid the financed portion of the insurance premiums in reliance upon defendant’s agreement contained in its “acknowledgment.” Defendant, in its answer, specifically denied that the persons named as policyholders in plaintiff’s petition signed, executed or delivered promissory, notes to the plaintiff, and denied the genuineness of the signatures appearing on any notes held by plaintiff. This denial was verified. Plaintiff, in reply, alleged that defendant was estopped from denying the sufficiency or execution of the notes held by plaintiff, since it recognized the validity and sufficiency of the notes by executing the “acknowledgment”; that thereafter and in reliance thereon, plaintiff paid the premium loans to defendant and that defendant had not returned or tendered to plaintiff the amount of money so received by it.
No testimony was offered to establish the validity of the notes or the execution or genuineness of the signatures appearing thereon, with the exception of the so-called Quickway note and one small note.
After trial to a jury a general verdict was returned for the plaintiff. In answer to special questions, the jury found, inter alia, that the Hammond agency was the authorized agent of defendant for receipt of the proceeds of premium policy loans and that plaintiff paid these proceeds to Hammond as agent, in reliance upon its agreement with defendant as set out in the notification and acknowledgment. It found further that defendant owed the return premiums to plaintiff and the insured upon cancellation of the policies, and that defendant had credited these return premiums to Hammond for distribution to the persons entitled thereto.
Defendant contends that as a stranger to the insurance policies plaintiff’s only claim to the unearned premiums on cancellation of the policies was by assignment from the insured, which assignment is found only in the notes or premium payment agreements from the insured to the plaintiff; that defendant put in issue the question of the valid execution of those notes by verified denial in accordance with G. S. 1949, 60-729, which placed on the plaintiff the burden of establishing the validity of the instruments. With the exception of the Quickway note, on which defendant admits plaintiff is entitled to recover $513.48, defendant contends that plaintiff failed to establish the validity of the notes on which its right by assignment rests and therefore it cannot recover. Plaintiff, on the other hand, contends that its right to recovery is based on the executed agreements or “acknowledgments” of defendant to pay plaintiff the return premiums on the canceled policies; that there was consideration for those agreements, in that plaintiff paid the premiums in reliance upon defendant’s promises and defendant received the benefit of writing the policies and receiving the premiums, which it could not have done without plaintiff’s financing.
The only question on appeal is whether plaintiff’s right to recovery is based on the assignments contained in the policyholders’ notes, so that its failure to establish the authenticity of these notes and assignments bars it from recovery. We are of the opinion that plaintiffs right to recover the unearned premiums rests upon the contracts with the defendant found in defendant’s executed acknowledgments. Since plaintiff does not claim as assignee of the policyholders, it was unnecessary for it to establish the validity of the assignments in the promissory notes.
In Batavian Bank v. M., St. P. & S. S. M. R. Co., 123 Wis. 389, 101 N. W. 687, a bank brought an action to recover on accounts for merchandise sold to defendant by the John James Company, which accounts were assigned to plaintiff. Defendant admitted the sale but sought to set off sums due it from the John James Company. On each account the John James Company had sent the assigned bill to the defendant, attaching a written instrument to be signed and returned. In each case defendant’s agent signed and returned the instrument, which read as follows:
“Received_(date)_of John James Company their invoice and account against the Minn. St. Paul & Saulte R. R. Company, for _Dollars, dated____and assigned to Batavian Bank of La Crosse, Wis. The net amount thereof, after deducting cost of transportation and other reasonable charges, to be paid to said bank when adjusted and due.
“(Signature of Purchasing Agent.)”
It was held that the written agreement constituted an independent contract between the plaintiff and defendant on which the plaintiffs right to recovery rested, so that defendant could not set off sums due it from the John James Company The court declared that no consent on defendant’s part would have been necessary to perfect plaintiff’s rights as an assignee of the accounts. Obviously then the purpose of the written agreement or acknowledgment was to make the assigned invoice better security by giving the plaintiff a direct right of action on a contract; otherwise, the acknowledgment was unnecessary. The written agreement constituted a direct acknowledgment of the account and a contract to pay the proceeds to the plaintiff, and plaintiff’s right to recovery in the event of nonpayment rested upon the principles of the law of contracts.
Generally speaking, an assignment becomes effective on the mutual assent of the assignor and assignee, although notice to the debtor is necessary to charge him with the duty of payment to the assignee. (LePorin v. Bank, 113 Kan. 76, 213 Pac. 650; 6 C. J. S. Assignments, §§74, 100.) Once tbe debtor has notice of the assignment his consent is not necessary to charge him with the duty of payment to the assignee. (6 C. J. S., Assignments, § 75.)
Ordinarily, defendant’s duty to pay plaintiff the unearned premiums would be perfected upon receipt of notice of the assignment by the policyholders to the plaintiff. The requirement of the execution of the acknowledgments by defendant was obviously intended to do more; otherwise, it was unnecessary and mere sur-plusage. The plaintiff evidently wished a direct agreement by the defendant to protect it in the case of cancellation of the policies. This is just what the wording of the acknowledgments accomplished in unmistakable terms. The defendant by terms of the acknowledgments accepted the obligations of the agreements in plaintiff’s behalf and agreed to protect the plaintiff’s interests by paying it the unearned premiums. Acceptance of the agreement’s obligations and protection of the finance company’s interests could mean only additional protection to the finance company; i. e., the protection of an independent contractual arrangement to make the unearned premiums better security than the finance company would have as a mere assignee.
Defendant contends further that even if plaintiff’s right of action is based on the executed acknowledgments, they are unenforceable for want of consideration. We find no merit in this contention.
In Farmers Equity Coop. Ass’n v. Tice, 122 Kan. 127, 251 Pac. 421, we held that any benefit, profit or advantage flowing to the promisor which he would not have received but for the contract, or any loss or detriment to the promisee is sufficient consideration to support the promise. (Coder v. Smith, 156 Kan. 512, 134 P. 2d 408; French v. French, 161 Kan. 327, 167 P. 2d 305.) Here plaintiff specifically notified defendant that the gross premiums would be mailed upon receipt of the executed acknowledgments. Thereafter, in reliance upon the acknowledgments, plaintiff suffered the detriment of -making the premium payments. Defendant was benefited by writing the policies and receiving the premium payments. In view of plaintiff’s notification and defendant’s knowledge of the financing arrangements, it is reasonable to assume that such benefit would not have inured to defendant without the executed acknowledgments. Indeed, the jury found that the payments were made to defendant in reliance upon the acknowledgments.
In view of what has been said, the trial court did not err (1) in overruling defendant’s demurrer to plaintiff’s evidence, (2) in overruling defendant’s motion for judgment notwithstanding the verdict, and (3) in overruling defendant’s motion for a new trial. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an original proceeding in quo warranto brought by the state of Kansas, on the relation of the attorney general, seeking to have the court inquire into the intended action of the defendant in, and to oust him in his official capacity from, publishing the proposed amendment to the constitution of the state of Kansas which is embodied in House Concurrent Resolution No. 20 adopted by the Kansas legislature during its 1957 session (Laws 1957, Chapter 235) and further, to oust him from placing the proposed amendment on the general election ballot in the November 4,1958, general election.
The salient portions of the state’s position and the record disclose that during the 1957 session of the legislature the Senate and House of Representatives passed by the requisite majorities House Concurrent Resolution No. 20 which in pertinent part reads:
'“A Proposition to amend article 15 of the constitution of the state of Kansas by adding a new section thereto relating to the right of individuals to join or not to join a labor organization.
“Be it resolved by the Legislature of the State of Kansas, two-thirds of the members elected to the Blouse of Kepresentatives and two-thirds of the members elected to the Senate concurring therein:
“Section 1. There is hereby submitted to the qualified electors of the state for their approval or rejection, a proposal to amend article 15 of the constitution of the state of Kansas by adding thereto a new section to be numbered section 12, to read as follows:
“ 'Sec. 12. No person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall the state or any subdivision thereof, or any individual, corporation, or any kind of association enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization.’
“Sec. 2. This proposition shall be submitted to the electors of the state at the general election in the year 1958 for their approval or rejection. The amendment hereby proposed shall be designated on the ballot by the following title: ‘Guaranteed freedom, to join or not to join a labor organization amendment to the constitution’ and shall be voted for or against as provided by law under such title.
“Sec. 3. This resolution, if concurred in by two-thirds of the members elected to the house of representatives and two-thirds of the members elected to the senate, shall be entered on the journals, together with the yeas and nays, and the proposition shall be published and submitted to the electors as provided by law; and it shall also be published by the secretary of state in the regular Session Laws of Kansas for 1957 and be given a chapter number therein.” (Our emphasis.)
On April 28, 1958, during the 1958 special session of the legislature, relator, in reply to that legislature’s special request of April 24, 1958, and pursuant to G. S. 1949, 75-704, furnished that body with his legal opinion that the foregoing resolution is invalid as is also the ballot title thereto for the reason they are at variance with article 14, section 1, of our state constitution; that the ballot title is defective, incomplete and misleading in that it conveys a false idea of the proposed amendment; that the above resolution had been delivered to defendant about April 8, 1957, and he will, unless ousted from so doing, publish it in at least one newspaper of and in each county in the state for three months preceding the November 4,1958, general election and will cause the proposition to be placed on the general election ballot in the form prescribed in the resolution; it is in the public interest that a determination of the validity of the proposed amendment be made and plaintiff has no adequate remedy at law.
Omitting unnecessary admissions and denials, the defendant answers by alleging that it is his desire and intention lawfully to perform the duties of his office and to obey the applicable mandates of the constitution, statutes, legislature and courts; that he relies on such mandates of pertinent existing constitutional provisions and legislative enactments in addition to the presumption of validity which attends all legislative enactments; he admits that unless ousted or otherwise instructed by the court, he will publish the proposed constitutional amendment according to the provisions of article 14, section 1, and will cause the amendment to be placed upon the general election ballot on November 4, 1958, in the form prescribed by the resolution and in accordance with the directive therein and G. S. 1949, 25-605; a determination of the issues herein is in the public interest and plaintiff has no adequate remedy at law; the applicable law should be -fully declared and defendant should be fully instructed and directed by the court; defendant denies the correctness of relator’s opinion. It is further denied that the ballot title is defective, incomplete or misleading by conveying, or intending to convey, any false idea, that the ballot title is at variance with the intent or meaning of the proposed amendment, that the resolution is invalid, or that submission of the amendment by said ballot title would be contrary to the constitution or laws of the state of Kansas.
After further alleging his interpretation of the meaning of the words “the same” in article 14, section 1, of our constitution, the defendant further alleges:
“. . . that if for any reason the Court should determine that designation of said proposed constitutional amendment upon the ballot solely by the designated ballot title prescribed in Section 2 of said House Concurrent Resolution No. 20 would be contrary to law, then the defendant, in accordance with the other provisions of said Concurrent Resolution and of Section 1 of Article 14 of said Constitution as in this paragraph cited, may lawfully cause said proposed constitutional amendment to be placed upon said ballot both by said designated ballot title and by recitation of the full text of said proposed amendment, all as in the form evidenced by Exhibit ‘A’ hereto attached, and that by so doing said proposed constitutional amendment will have been properly submitted to the electors at said election in accordance with the Constitution and Statutes of the State of Kansas, and that it should be so determined and declared by the Court.
“. . . if for any reason the Court should determine that any use of the designated ballot title prescribed in Section 2 of said House Concurrent Resolution No. 20 would be contrary to law, then the defendant alleges that that portion of said Concurrent Resolution making provision therefor is severable from the remainder of said Concurrent Resolution, and the defendant alleges that in accordance with the provision of Section 1 of Article 14 of the Constitution of the State of Kansas expressly cited in Paragraph numbered VII hereof, he may lawfully cause said proposed constitutional amendment to be placed upon said ballot solely by recitation of the full text thereof in the form evidenced by Exhibit ‘B’ hereto attached, and that by so doing said proposed constitutional amendment will have been properly submitted to the electors at said election in accordance with the Constitution and laws of the State of Kansas, and that it should be so determined and declared by the Court.” (Our emphasis.)
At the outset it should be noted that in the oral presentation and argument of relator any objection, as was shown in his legal opinion furnished the legislature in his letter of April 28,1958, to the validity of House Concurrent Resolution No. 20 because of failure to make proper entry in regard thereto on the journal of the Senate was cor rected by that body during the 1958 special legislative session so that such objection has been abandoned by plaintiff. The opinion, therefore, need not be extended by a discussion and determination thereof.
The constitution of the state of Kansas, article 14, as to amendments, in part reads:
“§ 1. Proposal of amendment; publication; election. Propositions for the amendment of this constitution may be made by either branch of the legislature; and if two-thirds of all the members elected to each house shall concur therein, such proposed amendments, together with the yeas and nays, shall be entered on the journal; and the secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding the next election for representatives, at which time the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the constitution. . . .”
We wish to emphasize that we are not concerned with the question of whether this proposed constitutional amendment will be approved or rejected at the next general election on November 4, 1958. In this original proceeding, the only issue before the court under the petition filed by the attorney general and the answer of defendant is the question of the exact procedure to be followed in submitting a proposed constitution amendment to the electors of this state under the provisions of our state constitution.
We have examined and considered all briefs filed but a detailed discussion thereof is not necessary now in view of what is later stated herein and for the further reason that the present controversy was submitted to the court before the proposed constitutional amendment could be submitted to the electorate.
Our cardinal concern in determining the question before us relates to the procedural provisions of the constitution, article 14, section 1, which we hold to be plain, clear, unambiguous, concise, definite and self-executing in every respect as to how and by whom the proposed amendment is to be submitted to the electors at the next general election on November 4, 1958.
The office of secretary of state is a part of the executive branch of our state government, as provided by article 1, section 1, of the state constitution; the Senate and House of Representatives comprise the legislative branch of our state government, under article 2, section 1; likewise, under article 3, section 1, this court is a part of the judicial branch of our state government. All constitutional officers of our state are duty bound to comply fully with the limitations provided in our constitution, which is the fundamental law of the people. (Prohibitory-Amendment Cases, 24 Kan. 700, 707.)
The first portion of the constitution, article 14, section 1, limits the legislature to the function of drafting and properly adopting a concurrent resolution to amend the constitution with a proposed constitutional amendment. As shown by the very terms of this resolution, the legislature in this particular instance has done everything that it can do under that constitutional limitation and any past practice developed by the legislature expanding that constitutional limitation of its power in the premises cannot be condoned. Thus 'in this case the legislative directive regarding the ballot title whereby the proposed amendment to the constitution is to be submitted to the voters infringes upon the express limitations of article 14, section 1, and for that reason the directive is ineffectual.
The next portion of section 1, article 14, to be discussed is that of publishing “the same” in a newspaper of each county of the state for three months preceding the next election for representatives. This is an exercise of power limited to the secretary of state. It is conceded by the parties, and properly so, that in this instance the term “the same” means the proposed amendment to the constitution. The word amendment is used in the singular because we are concerned with only one amendment, and not amendments as specifically contained in article 14, section 1, of the constitution.
The crux of the matter for judicial interpretation involves the next procedural portion of article 14, section 1,
“. . . at which time the same shall be submitted to the electors, for their approval or rejection. . . .” (Our emphasis.)
The relator argues that the ballot title directed by the legislature reading,
“Guaranteed freedom to join or not to join a labor organization amendment to the constitution . .
does not fairly reflect the scope of the proposed amendment as required by the intent of the constitution and the laws of the state of Kansas. His position is well taken because the phrasing of article 14, section 1, specifically naming the secretary of state as the official to make the newspaper publications expresses a clear intent that the preparation of the ballot, whereby “the same” shall be submitted to the electors, is a duty, the performance of which is also limited to the secretary of state. Further, it is clear the words “the same” can only have a meaning in this portion controlling the submission to the electors identical with the one they have in the portion controlling publication by the secretary of state. Thus we conclude article 14, section 1, requires that a proposed amendment to our state constitution be printed in full upon the ballot whereby it shall be submitted to the electors for their approval or rejection.
Since the legislature has properly adopted the proposed amendment, tire terms of article 14, section 1, require its submission to the electors. This court is limited to an interpretation of the procedural portions of the statute as to submission of the proposed amendment and is not empowered to prevent such submission. Therefore, the secretary of state will not be ousted from his duty to place the proposed amendment on the ballot for submission to the electors for their approval or rejection but he is ordered to carry out that duty in accordance with the express mandate of the particular portion of the constitution stated herein and print the proposed amendment to the state constitution in full on the ballot.
In the interest of clarity, what has heretofore been stated and held means that the proposed amendment to the constitution, and no other portion of the resolution passed by the legislature, is to be published and printed on the ballot by the secretary of state. We repeat, for purposes of emphasis, that such proposed amendment is set forth at length in section 1 of the resolution. It reads:
“ ‘Sec. 12. No person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall the state or any subdivision thereof, or any individual, corporation, or any kind of association enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization.’ ”
It is so ordered and judgment is for defendant. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from an order of the trial court sustaining a general demurrer to a petition seeking injunctive relief .against the defendant city coupled with a further reason that plaintiffs have a plain and adequate remedy at law and are not ■entitled to the equitable relief sought by their petition.
We will summarize as much as possible the contents of the petition and a resolution of the city, published April 28, 1956, (exhibit "A”) and, except where needed for clarity, we will delete references to the remodeling of plaintiffs’ building as those matters are not necessary to a determination of the question before us.
Defendant Phinney at all times pertinent hereto was city engineer ,and building inspector of the defendant city. The resolution .adopted by the city on April 26, 1956, stated that the sidewalk .adjacent to the east boundary of plaintiffs’ building was dangerous and unsafe because of its unevenness, slant and grade; by reason of the slant, the sidewalk would be unusually dangerous and unsafe for travel during times of snow, sleet, and freezing rain; it was the opinion of the city’s governing body that the sidewalk should be condemned, torn out and reconstructed pursuant to section 7-210 of the city’s 1952 revised ordinances, and G. S. 1949, 12-1804 and 12-1805. The resolution further stated the sidewalk was condemned and should be torn out and reconstructed as provided by the ordinance; that within thirty days after the adoption of the resolution plaintiffs might reconstruct the sidewalk in accordance with plans and specifications prepared by Phinney, to be furnished plaintiffs upon request, such plans to be so prepared that the sidewalk would conform to the grade in use on the east side of the block adjacent to lots two through twelve; that in the event plaintiffs failed to reconstruct the sidewalk then it was ordered to be done and the cost assessed against plaintiffs’ property, all after the thirty day period had expired.
On January 24, 1956, plaintiffs, through their contractors, had submitted to Phinney plans and specifications for the remodeling of the front of their building, re-laying the sidewalk, and other building repairs; Phinney approved the plans and specifications and issued a building permit pursuant to sections 3-201 and 3-202 of the city’s 1952 revised ordinances.
Ordinance 3-201 required that such permit be obtained by the owner before proceeding with excavation for erection, enlargement, repair or removal of any building or structure and set out the information to be included in the application for the permit and the fees to be charged therefor. Ordinance 3-202 created the building inspector’s office, provided for his appointment and removal, delineated the duties and powers of his office and further stated, “The person certified to fill the position shall be competent to pass upon the various phases of structural work.”
In due course plaintiffs caused the sidewalk in question to be installed in conformity with section 7-202 of the city’s 1952 revised ordinances which, in part, reads:
“Before any sidewalk . . . shall be laid or constructed, the city engineer . . . shall establish and stake out the alignment and grade of such sidewalk . . . and such sidewalk . . . shall be built and constructed in conformity therewith.”
Plaintiffs had caused Phinney to establish and stake out the alignment and grade for the sidewalk installation. It was built and constructed according to the alignment and grade so established, staked out, and approved by Phinney, and to plaintiffs substantial expense and cost. Plaintiffs claimed enforcement of the resolution would seriously affect their rights and property by not only entailing the expense of replacement of the sidewalk, but would do substantial damage to the front and entrance to their building; the resolution violated the bill of rights of the state of Kansas and section 1. of the fourteenth amendment to the constitution of the United States in that it was unreasonable, arbitrary, oppressive and discriminatory; it denied plaintiffs an equal protection of the law by requiring them to conform to a construction standard in laying the sidewalk contrary to the usual practice that had theretofore existed; it destroyed property and property rights without just cause or reason; it confiscated property without compensation and was inconsistent with city ordinances regulating sidewalk installation. Enforcement of the resolution by defendants would irreparably damage plaintiffs and their property unless they were granted equitable relief and plaintiffs had no adequate remedy at law.
Plaintiffs sought to enjoin enforcement of the resolution by Phin-ney, the city or its agents, officers, servants or employees.
Defendants filed their common general demurrer containing a further reason that plaintiffs have a plain and adequate remedy at law and are not entitled to the equitable relief sought by their petition.
This demurrer, attacking only the sufficiency of the petition to state a cause of action, was sustained by the trial court in a journal entry containing a memorandum opinion which, omitting restatement of facts in the petition already narrated here', in pertinent part reads:
"The main question involved here is with reference to the grade of the sidewalk. From the facts appearing in defendants’ brief, which are uncon-troverted by the plaintiffs, it seems that the floor of plaintiffs’ building was 22 inches higher than the top of the curb in front of the building and approximately 19 inches higher than the old sidewalk. The distance from the curb top to the property line is about 16 feet and the high point of the sidewalk installed by plaintiffs at the property line is about 12 inches higher than the sidewalk at the corresponding point in front of die building adjoining on the south, which is about the same level as the pre-existing sidewalk in front of plaintiffs’ property. Before the remodeling, there were one or perhaps two steps at the entrance way into plaintiffs’ building. Now there are no steps and the new concrete slopes down in both directions from the center of the lot to joints even with the pre-existing sidewalk. This unevenness prompted the governing body to declare the new sidewalk dangerous and unsafe and to pass the resolution now being attached. [Above-quoted facts are not alleged in petition.]
“Section 7-218 of the revised ordinances provides as follows:
“ ‘It shall be unlawful for any person to construct or maintain any sidewalk or curbing in this city, unless the same shall conform to the provisions of this article, and all sidewalks hereafter constructed or reconstructed must be done in accordance with the provisions hereof, and none shall be constructed or reconstructed without the authorization and approval of the governing body of this city/ ”
The trial court then quoted G. S. 1949, 12-1802 in part, but to simplify our later discussion of this statute herein, we will quote it in its entirety and italicize the portion quoted in the court below:
“The governing body of the city shall, by ordinance, determine the plans, specifications (including widths and location in the street), for the construction, repair, and reconstruction of all sidewalks: Provided, That plans and specifications may be adopted by reference, in which case a copy or copies of tire plans and specifications as 'adopted shall be kept on file in the city clerk’s office and, if the city has a city engineer, in the city engineer’s office, and shall not be changed or amended or added to without a readoption by ordinance.”
The memorandum opinion of the trial judge further stated:
“It seems apparent to me, both from the statutes and the ordinances, that the establishment of sidewalk grades is the province of the governing body of the city and that saipe can only be done by the enactment of an ordinance. The city engineer or building inspector, in my opinion, can only approve of sidewalk construction depending upon its grade and alignment under the ordinances. Whether or not the city engineer or the building inspector approved the grade and alignment of the sidewalk in question here is immaterial unless the same was authorized by the ordinances of the city. The petition in nowise alleges that the new sidewalk does conform to the grade and standards prescribed by the ordinances. It is quite apparent that the present sidewalk does not follow the grade of the old sidewalk at the same location and that it .is not based upon the top of the curb line as seems to be provided by the ordinances. It has been found by the governing body that the present sidewalk is dangerous and unsafe and should be torn out and reconstructed. I find nothing in the petition to militate against the findings of the governing body. There is a defect in the resolution adopted by the governing body on April 26, 1956. The resolution provides that the owners may have 30 days after the adoption of the resolution within which to reconstruct the sidewalk. The resolution was not published until April 28, which presump-tably is the commencement of the 30-day period contemplated by the ordinance. However, the petition herein was not filed until May 25, 1956, and the plaintiffs had much more than the 30 days’ notice withip which to commence reconstruction. Furthermore, the defect is more technical than real and no particular point is raised by the plaintiffs in connection therewith. This being the case, I think the demurrer should be sustained.”
On oral argument both counsel stated there is no contention or question of a change, or attempt to change, a pre-existing grade in this case so that will be considered as abandoned and discussion thereof is unnecessary.
Plaintiffs timely appealed from the trial court’s order sustaining defendants’ demurrer to their petition and in view of the fact that the trial court pinpointed and limited its ruling to the ground of the demurrer that the petition did not state facts sufficient to constitute a cause of action and discussed only that point, we shall not determine the other portion of the demurrer as to whether plaintiffs had an adequate remedy at law.
In considering the sufficiency of this petition, which has been attacked by a general demurrer, we must consider all the allegations contained therein (Elliott v. McKenzie, 180 Kan. 344, 304 P. 2d 550; O’Brien v. Jones, 183 Kan. 170, 326 P. 2d 257), we will not go outside the petition as the trial court did in its memorandum decision, and we will take as true the well-pleaded facts in the petition and give all favorable inferences that can be drawn therefrom. (Merchant v. Foreman, 182 Kan. 550, 322 P. 2d 740.) A defendant may demur to a petition only when it appears on the face thereof that the stated grounds of the demurrer exist. (G. S. 1949, 60-705; Houston Lumber Co. v. Morris, 179 Kan. 564, 567, 297 P. 2d 165.)
Tire only matter with which we are concerned, therefore, is the sufficiency of the allegations of this particular petition to state a cause of action for injunctive relief. This petition presents a very unique situation and one not susceptible to an easy determination for the reason that the governing body of a city possesses complete control over the public sidewalks, and the construction thereof, located within the limits of such city. This is evident from G. S. 1949,12-1802, and the following additional statutes:
“When any sidewalk, in the opinion of the governing body, becomes inadequate or unsafe for the travel thereon, the governing body may adopt a resolution condemning such walk and providing for the construction of a new walk in place of the walk condemned,” (G. S. 1949, 12-1804.)
“Nothing herein shall prohibit the owner of property abutting on a street who desires to construct or reconstruct a sidewalk from doing so without any petition or condemning resolution, if he does so at his own expense and in accordance with official plans and specifications and meets such other require- merits as would have to be met if the sidewalk were constructed or reconstructed by the city: Provided, That if such property owner desires the walk to be constructed or reconstructed by the city and an assessment levied as provided in other cases, he shall file a request with the governing body and it may in its discretion provide for the construction or reconstruction of the sidewalk in the same manner as in cases where citizens or taxpayers file petitions.” (G. S. 1949,12-1806.)
In determining the sufficiency of the allegations of this petition to state a cause of action, there is no effort or intention to limit this statutory power possessed by such governing body.
G. S. 1949, 12-1802 contemplates that a city governing body may have a city engineer to whom some degree of power and duty will be delegated. The city ordinances of Pratt gave the city engineer power to determine the alignment and grade of a sidewalk which had to be constructed in conformity therewith. Plaintiffs’ petition alleges they had constructed the sidewalk in question in more detail than is required by the ordinance. It cannot be denied that plaintiffs had the right to construct the sidewalk, under G. S. 1949, 12-1806, so long as they complied with the city engineers determined alignment, grade and staking out.
The resolution, which was attached to the petition and made a part thereof, has a weakening effect thereon but the question still remains as to what right a citizen has to rely on the restrictions set up by a city engineer when the same city engineer is the person provided for in the resolution to determine the plans and specifications of the new sidewalk that will replace the one condemned. From a practical standpoint a citizen should be able to rely on a city’s governing body, its ordinances, its properly-designated officials and the requirements established by such officials under the proper exercise of their authority so when such citizen strictly complies with the law, ordinances, and the requirements of such officials he is not acting at his peril.
Whether the plaintiffs’ evidence will prove the allegations of the petition is no concern of ours at this stage of the proceedings. The trial court’s memorandum opinion states matters which do not appear in the petition or in the resolution.
Plaintiffs allege that the resolution is unreasonable, arbitrary, oppressive and discriminatory and when the entire petition is considered under rules already stated, the allegations show plaintiffs complied with all that was required of them and yet the resolution requires them to do it all over again, which would appear to justify their conclusion as to the character of the resolution.
Plaintiffs should be allowed to have the issues made up and to introduce their evidence in support of the allegations of their petition which we believe sufficiently states a cause of action. The demurrer should have been overruled. The trial court erred in sustaining the demurrer and its ruling is reversed.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented on this appeal is whether an improvement district empowered to condemn private property by G. S. 1949, 19-2765, for its lawful corporate purposes acquires the fee simple title to the land condemned, including the minerals underlying such land, in proceedings conducted pursuant to the provisions of G. S. 1949, 26-101.
Appellant, O. A. Sutton, the plaintiff below, holds oil and gas leases executed by the owners of several adjacent tracts of land subject to the rights of the Sunflower Improvement District. Ap-pellee, Joseph E. Newman, holds an oil and gas lease executed by the condemning authority, Sunflower Improvement District, and covering a part of the same tracts upon which Sutton claims leases.
Sutton appeals from a decree dissolving his restraining order and denying his request for injunctive relief against Newman, and his oil well drillers, Frazier and Conner, appellees, from continuing the drilling of a test well for oil and gas upon the premises condemned.
The case was heard by the trial court upon an agreed statement of facts, the material facts being as follows: In September, 1951, the Sunflower Improvement District, a municipal corporation, hereafter called Sunflower, filed in the district court of Sedgwick County a petition seeking the appointment of commissioners to assess the value of land to be taken and to assess damages. The petition alleged that the taking was necessary “. . . for the purpose of constructing and operating a sewage disposal plant and to provide means of ingress and egress to and from the same and to provide a right-of-way for a sewer main or sewer mains to and from said plant.” The petition alleged “That it is necessary to take said lands described above in fee for public purposes.” Condemnation proceedings were conducted pursuant to G. S. 1949, 26-101. The district court found in its order appointing commissioners that all statements contained in the petition were true; that Sunflower had power to take private property for public use by exercise of the right of eminent domain; and that it was necessary for Sunflower to acquire by condemnation certain lands for the exercise of its lawful corporate purposes, which were specifically described as set forth in the petition. After notice and hearing the commissioners filed their report. Their report described three tracts of land ks set forth in the petition and opposite the description the commissioners set out the several awards in the total sum of $3,144.50. The commissioners’ notice of hearing stated the purpose of the taking as in the petition, but did not make any statement as to the estate to be taken. The report of the commissioners did not state the purpose of the taking but recited that the owners of the property taken were awarded the sums of money set forth “as damages for the lands taken, which damages include the value of the lands taken and other damages done to the owners, . . .”
The property consisted of three tracts, two in the center of the Northwest Quarter of Section 32, Township 28 South, Range 1 East, consisting of approximately two acres. One tract is on the south half of the quarter section and the other on the north half, there being two condemnees. The third tract is a strip 20 feet wide running from the two tracts along the north side of the east-west-dividing line between the two eighties to the east line of the quarter.
Sunflower then filed a petition for confirmation of the report of the commissioners following which the district court confirmed and approved the actions taken in the condemnation proceeding, after having specifically found that no notice of the hearing for confirmation was necessary to the landowners. The order further recited that title and right to possession of the described lands “. . . have vested and are hereby confirmed in the Sunflower Improvement District, . . .” and further ordered that the county clerk of Sedgwick County, Kansas, remove the “. . . described lands taken in eminent domain from the tax rolls and to note therein that said land is owned by the Sunflower Improvement District, . . .” and used for public use.
More than three years after Sunflower took possession of the condemned land, oil was discovered in the vicinity of said Northwest Quarter. Thereafter, Sutton acquired an oil and gas lease from Marshall covering Marshall’s land in the South Half of said Northwest Quarter. Sunflower excuted an oil and gas lease to Spangler covering the land condemned in said Northwest Quarter, and Spangler assigned the lease to the appellee, Joseph E. Newman, and his brother, L. B. Newman. Thereafter, Sutton obtained an oil and gas lease from Fager. Sutton’s leases from both Fager and Marshall recited that they were executed subject to the rights of Sunflower.
At the time suit was filed Sutton (appellant) had drilled wells adjacent to, but not on the tract condemned, and the appellees were drilling on the Sunflower tract.
The parties stipulated that the court should determine who had title to the minerals underlying the condemned tract and should refuse or grant the injunction depending upon whether or not title to the minerals was or was not in Sunflower.
The pertinent findings of the trial court are set forth in the journal entry as follows:
“2. In its petition filed in said proceedings the Sunflower Improvement District asked for a fee simple title as being necessary for its undertaking; the court found such necessity as existing and the proceedings to condemn was thereafter duly undertaken in compliance with said statute. All of the necessary parties were before the court in said condemnation proceedings and accepted the awards granted unto them for said taking; the court thereafter decreed title to said tracts as vested in the Sunflower Improvement District and ordered said lands removed from the tax rolls of Sedgwick County, Kansas. Said awards were never appealed nor have the former land owners ever petitioned to reopen said judgment and decree therein rendered.
“3. The fee simple absolute title to said tracts of land above described vested in the Sunflower Improvement District, a corporation of Sedgwick County, Kansas, in the year 1951, and several years prior to the execution of any of the oil and gas leases herein involved. The term ‘fee simple absolute title’ means all right, title, and interest and includes the minerals in place.”
The validity of the respective leases was decreed by the court in accordance therewith, the restraining order entered prior thereto was dissolved and injunctive relief denied. The leases of Sutton insofar as they attempted to cover the tracts involved in the condemnation proceedings were declared void.
This case crystalizes with full impact the character of an eminent domain proceeding under Kansas law.
An eminent domain proceeding is a special statutory proceeding and is not a civil action covered by the code of civil procedure. The proceeding is administrative rather than judicial, and its nature is the same whether conducted by or before a district court, or any judge thereof, the probate court, or its judge, a board of county commissioners or any other official board or tribunal authorized by the legislature to act in that capacity. The amount to be paid is determined by commissioners or appraisers and not by the board or tribunal appointing them or with whom they filed their report. The report of the amount found due is an award and is not a judgment. Prior to an appeal from the award the proceeding is in the nature of an inquest.
The eminent domain proceeding does not provide a forum for litigation of the right to exercise the power of eminent domain nor the extent thereof. Upon appeal to the district court from an award the sole issue is the amount of compensation due and no contest of the condemner s right to exercise the power of eminent domain is permitted. The condemnees may and must litigate the condemner’s right to the exercise of the power of eminent domain in an individual civil action, usually by suit for injunction. (State Highway Commission v. Griffin, 132 Kan. 153, 294 Pac. 872; Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189; State v. Boicourt Hunting Ass’n, 177 Kan. 637, 282 P. 2d 395; Board of Education of the City of Nickerson v. Gum, 178 Kan. 397, 285 P. 2d 780; and Cline v. Kansas Gas & Electric Company, 182 Kan. 155, 318 P. 2d 1000.)
Under the positive and express language of the cited cases, and many others collected in them, the condemnees (appellant’s lessors) had no right whatever to litigate in the eminent domain proceeding the extent of the power of eminent domain conferred upon Sunflower by the legislature. The eminent domain proceeding, therefore, did not afford condemnees an opportunity to litigate the condemner’s right to condemn oil and gas in place.
The procedural statute, G. S. 1949, 26-101, (Strain v. Cities Service Gas Co., 148 Kan. 393, 83 P. 2d 124) provides that the appraisers shall file their report with the clerk of the district court, that if the condemning authority desires to acquire the land at the appraised price it . . shall within thirty days deposit with the clerk of the district court the total amount of such appraisement, shall pay the court’s costs . . . and the title to all such lots and parcels of ground thereupon shall immediately vest in the said petitioner, . . .” (Emphasis added.)
The statute makes no provision for an order of confirmation by the judge, the court or anyone else, and the so-called “Order of Confirmation” neither added to nor detracted from whatever title was acquired by the filing of the commissioners’ report and the payment of the appraised value.
Appellees, in addition to foreign cases, rely upon two cases that state the condemnation proceeding is i*es judicata of the right to condemn and of the necessity for the taking. (Dillon v. Railroad Co., 67 Kan. 687, 74 Pac. 251; and State, ex rel, v. State Highway Comm., 163 Kan. 187, 182 P. 2d 127.) In the Dillon case without relying upon any authority this court said:
“. . . The necessity for this additional pond and the amount of land to he used for such purpose were determined and finally concluded in the condemnation proceedings, and were not thereafter questions for future litigation.” (p. 692.)
Without recognizing any decisions, or the Dillon case, this court said in the State Highway Commission case:
. . In this action we cannot determine what quantum of land was necessary. The district court was obliged to determine that fact in the condemnation proceedings. (G. S. 1935, 26-101.) That fact has been adjudicated. No appeal was taken from that decision and it is now a finality. . . .” (p. 196.)
Inasmuch as the foregoing language, and similar statements in the two opinions from which such language is taken, is contrary to the decisions heretofore cited, which are the controlling law in Kansas, such language is hereby disapproved.
Appellees rely upon certain language in the petition for the appointment of commissioners — that it was necessary to take the lands described in fee for public purposes — and in the order appointing the commissioners, which found the allegations of the petition to be true, and other language in the condemnation proceedings which referred to the property described as “land” (citing G. S. 1949, 77-201, Eighth) contending that such language clearly indicates that the proceeding was instituted and carried through for the purpose of condemning the fee simple estate in the land. (Citing, Coleman v. Shoemaker, 147 Kan. 689, 693, 78 P. 2d 905; which quotes 1 Tiffany on Real Property, 2d ed., p. 44.) Unless the statutes authorize the taking of the fee simple estate in such proceeding, it is clear that no language in the record of such proceeding could enlarge or extend the authority of Sunflower beyond the limits prescribed by law. There was no judicial determination that the fee simple estate in the land was condemned because nothing was before the court in that proceeding which empowered the court to make a judicial determination of any issue of law or fact. It was not until Sunflower leased the condemned tracts that the condemnees or Sutton could possibly have been apprised of the fact that Sunflower claimed the minerals in place. (See, French v. Ayres, 201 Okla. 494, 207 P. 2d 308.)
Did applicable statutes authorize Sunflower to condemn minerals in place?
It is fundámental that no person can be divested of his land, or any part or portion thereof, or any interest therein, through the exercise of the power of eminent domain except under the provisions of express and positive constitutional or statutory law, and that he cannot be divested through the exercise of such power of any more or greater interest in his land than the constitution or statutes expressly provide. (Comm'rs of Shawnee Co. v. Beckwith, 10 Kan. 603.) The power of eminent domain is inherent in a state. It is not granted by our Kansas constitution, but its exercise may be limited by the constitution. (Glover v. State Highway Comm., supra.) The power of eminent domain can only be exercised by virtue of legislative enactment. (Strain v. Cities Service Gas Co., supra.)
G. S. 1949, 26-101, outlines the procedure for the condemnation of land by a corporation having the right of eminent domain. It contains no grant of power. Normally, statutes granting the right of eminent domain should never be enlarged by implication. (Strain v. Cities Service Gas Co., supra.)
The right of eminent domain in an improvement district, such as Sunflower, is conferred by G. S. 1949, 19-2765. This is the empowering statute in the instant case which authorized Sunflower to proceed in condemnation pursuant to the provisions of G. S. 1949, 26-101, which is the procedural statute. The pertinent portion of 19-2765, supra, provides:
“That every improvement district incorporated under the terms of this act shall have the power:
“Third, to plan and construct public works and improvements necessary for public health, convenience or welfare within- the limits of the improvement district. Also to construct works outside the limits of tire district which may be necessary to secure outlets, disposal, etc., and permit satisfactory performance of the works within the district.
“Fifth, to take private property for public use by exercise of the right of eminent domain as provided by law.”
The power to exercise the right of eminent domain “as provided by law” refers the condemner to the general condemnation statute, 26-101, supra, for the procedure in condemnation. This procedure applies to all corporations having the power of eminent domain, except railroads and cities. The code of civil procedure does not affect proceedings to assess damages for private property taken for public uses. (G. S. 1949, 60-3823; Glover v. State Highway Comm., supra; and State v. Boicourt Hunting Ass’n, supra.)
Whether Sunflower had the right to condemn the land and take title in fee simple, including the minerals in place, must be ascertained from the empowering statute (19-2765, supra).
It must be noted that we are not concerned in this case with the special power conferred upon a public or quasi public corporation to purchase, hold, sell and convey real estate and other property. Under such special power it may purchase the real property in fee simple by warranty deed, including all interests therein, and convey the same in like manner. This merely authorizes acquisition of property without resort to condemnation where it is possible to agree with the owner upon the price. But such special power confers no privilege upon a public or quasi public corporation to take the fee title, including all interests therein, against the will of the owner by the exercise of its power of eminent domain.
The general rule is that eminent domain statutes will be construed to authorize only the taking of an easement on or title to land sufficient for the public use intended rather than a fee title, unless the statute clearly so provides, either expressly or by necessary implication. And the legislature has full power to determine the nature of the title to be acquired by the condemner, since the constitution of this state places no limitation or restriction on the nature of the title to lands which may be acquired by the process of eminent domain. (State, ex rel., v. State Highway Comm., supra.)
Application of the foregoing rule of construction in State, ex rel., v. State Highway Comm., supra, led this court to hold in construing G. S. 1945 Supp., 68-413, a special state highway commission condemnation statute, that the commission acquired a fee title' to all land condemned as necessary for the purposes specified in the statute. This court there said of the empowering statute:
"No other condemnation statute in this state contains such broad and sweeping terms. It is observed the statute provides the commission may acquire title to any lands, or interest or rights therein, etc. It likewise provides the commission may dispose of any real estate, or any right, or any title, or any degree, or any variety of interest therein. That means the commission may sell, assign or convey in any manner the whole interest in the land acquired or any portion thereof less than the whole title. How could it do so if it possessed only an easement? It seems to us wholly illogical to assume the legislature authorized the commission to sell something to which it never acquired title. Furthermore, the proviso, the concluding sentence of the statute, expressly negatives the ordinary theory of reverter of title to the landowner. It clearly provides that if the road is vacated the ‘lands or interests or rights therein acquired ... for right of way’ revert ‘unless disposed of as above provided. . . .’ (Emphasis supplied.)
“It is, of course, true that where language of a statute will bear the construction that only an easement was intended courts as a general rule seem disposed to leave the fe.e in the landowner. (18 Am. Jur., Eminent Domain, § 114.) We think the instant statute does not permit the latter construction. . . .
“. . . We are not now dealing with the question of what title some other condemnor might acquire when proceeding solely under the provisions of the general condemnation statute, G. S. 1935, 26-101, and express no opinion thereon.” (pp. 197, 198.) (Emphasis added.)
The foregoing case was decided in 1947. (See, G. S. 1957 Supp., 68-413 and 413a, enacted by the legislature in 1951.)
In Skelly Oil Co. v. Kelly, 134 Kan. 176, 5 P. 2d 823, the City of Atchison condemned land for a park by virtue of regular condemnation proceedings under Article 2, Chapter 26, Revised Statutes of 1923 (now G. S. 1949, 26-201 to 26-210). The city took possession, but did not use the land for a park, and afterwards sold the land for a sum greatly in excess of the award given the previous landowner to a purchaser who erected a filling station. In a quiet title action by the purchaser against the former owner it was held that the city had fee simple title. There the condemnation proceedings were conducted under the special statutes applicable to cities where the provisions empowered the city to condemn and likewise provided a special procedure. The pertinent portion of R. S. 1923, 26-204, specifically provided: “. . . The title to lands condemned by any city for parks, parkways or boulevards shall vest in such city upon the publication of the resolution of the governing body condemning the same . . .” Under the circumstances, the legislature having deemed it important to insert a special provision as related, the court there construed the word “title” to indicate . . ownership, and unquestionably the usual and ordinary signification of the word when used above in the sense of ownership is ownership in fee.” (p. 179.) The vesting of title under the statute was unqualified.
Appellees contend that by reason of the two cases last discussed, Sunflower acquired the fee simple title to the land condemned in the instant case. We do not agree. These authorities compel a decision to the contrary. Nowhere in the empowering statute (19-2765, supra) has the legislature clearly provided, either expressly or by necessary implication, that an improvement district in the exercise of its power of eminent domain acquires title to real property in fee simple absolute. The statute is silent as to how much land, or what interest therein, shall pass to the improvement district, and how much of the land, or what interest therein, shall re main with the original proprietor. Therefore, it must be inferred that the legislature did not intend to confer upon an improvement district the power to acquire title to any greater interest in land condemned than was necessary to make the public improvement project, in this case a sewage disposal plant, a good and sufficient operating plant for the public. It follows, in the instant case, Sunflower did not acquire title to the minerals in place by the condemnation proceedings.
The extent to which Sunflower acquired rights or title to the surface of the land condemned is not a question presently before the court. The only question here is whether Sunflower acquired title to the minerals in place.
Under the procedural statute (26-101, supra) Sunflower acquired title to only that interest in the real property condemned which it was empowered to take under 19-2765, supra. These statutes are thus in harmony.
The legislature is capable of speaking with clarity when it intends that the condemning authority shall acquire the fee simple title to real property taken under the power of eminent domain. (See, Laws of 1864, Ch. 124, § 4, repealed; G. S. 1957 Supp., 13-1388; G. S. 1957 Supp., 17-4749; and G. S. 1957 Supp., 68-413 and 413a.)
Appellees by a circuitous process of reasoning with statutory construction contend that Sunflower acquired the fee simple title to the real property condemned. It is urged that the term “property” in 19-2765, supra, shall be construed to include “personal and real property” by virtue of G. S. 1949, 77-201, Tenth; and that “real property” includes “. . . lands, tenements and hereditaments and all rights thereto and interest therein, equitable as well as legal.” by virtue of G. S. 1949, 77-201, Eighth; and as a result thereof the legislature was in effect stating in 19-2765, supra, that Sunflower could “. . . take private personal property and private real property for public use by exercise of the right of eminent domain as provided by law, and that real property included lands and all rights thereto and interest therein.” This entertaining maneuver, which appellees call statutory construction, is nothing short of pyramiding to sanction judicial legislation — it amends 19-2765, supra, from the right to take private “property” to read “real property, all rights thereto and interests therein.”
The statute, G. S. 1949, 19-2765, should be read in its entirety. Subdivision Tenth gives improvement districts power “to make all contracts and do all other acts in relation to the affairs of the district necessary to the proper exercise of its corporate legislative or administrative powers and to the accomplishment of the purpose of its organization.” When subdivision Fifth is put into context the necessary meaning of “to take private property for public use . . includes to the extent necessary for its corporate purposes.
Appellees cite G. S. 1957 Supp., 55-211a and 55-211b which authorize oil and gas leases by municipal corporations, including improvement districts, owning or having the management and control of any tract of land within the State of Kansas. These are enabling statutes where the municipal corporation has title to the minerals in place, and they confer no power in the acquisition of title to such interests in land. They confer no power to lease lands in which the minerals are not owned by the municipality. G. S. 1949, 19-2765, was enacted in 1945 and G. S. 1957 Supp., 55-211a and 55-211b, were first enacted in 1949 four years after the improvement district law. The rule of statutory construction that statutes in pari materia are to be compared with each other and construed together is only applicable in the construction of statutes relating to the same subject. (State, ex rel., v. City of Walnut, 165 Kan. 205, 193 P. 2d 172, Syl. 2.)
One other point merits attention. Is the appellant Sutton es-topped herein? If the condemnees, appellant’s lessors, have been estopped, then appellant is similarly estopped since an estoppel operates on the parties to the transaction out of which it arises and their privies. (19 Am. Jur., Estoppel, § 152, p. 809.)
It is argued by appellees that in 1951 Sunflower asked for a fee title in the petition for condemnation; that the court found such a taking necessary and ordered title and possession vested in Sunflower; that Marshall and Fager, who were before the court acquiesced therein and accepted the benefits of their awards for such taking, did not appeal therefrom, nor have they or their successors in title attacked the proceedings in nearly seven years last past; and that Marshall and Fager and their successors are estopped. Appellees’ position is founded upon the premise that Sunflower’s request for fee title is now an adjudicated fact. If appellees here rely on res judicata, it is synonymous with estoppel by judgment. (Woods v. Duval, 151 Kan. 472, 99 P. 2d 804.) Appellees rely on cases dealing with acquiescence in the judgment. (In re Estate of Hill, 179 Kan. 536, 297 P. 2d 151; Peters v. Peters, 175 Kan. 422, 263 P. 2d 1019; and Patterson v. Patterson, 164 Kan. 501, 190 P. 2d 887.) This question has been answered. The proceedings in condemnation were administrative and the court had no power to adjudicate anything. (See, Lynch v. Chase, 55 Kan. 367,40 Pac. 666.) In the instant case the landowners did not appeal. There was never an action pending before the district court relative to the condemnation. The “Order of Confirmation” was not entered in a civil action and it was not a judgment. There was never a judgment entered by reason of the condemnation, aside from the injunction action contesting the rights of the parties herein.
It is asserted by appellees that even in the case of an administrative proceeding, a defense of estoppel can arise when the parties concerned acquiesce in the findings and accept the benefits therefrom. The answer alleged, and appellees argue, that the landowners acquiesced in the condemnation proceedings and accepted all benefits accruing to them therefrom. Such benefits, it is argued, were the values placed on said lands for the taking of the fee title.
The procedural statute, G. S. 1949, 26-101, does not provide for notice of the filing of the petition in condémnation and the landowners received none. The only notice the landowners received resulted from the required publication of notice of the appraisers’ hearing. Neither that notice nor the appraisers’ award said anything about an attempt to acquire any interest in the minerals or any title in fee simple.
The landowners under these circumstances cannot be estopped from asserting ownership to the minerals in place by reason of their acceptance of the award. Pursuant to the empowering statute Sunflower took the land definitely described in the report of appraisers for the uses specified in the notice. The report of the appraisers must show what is taken, and what the landowners part with. Nothing is taken by implication or intendment. The landowners may rely implicitly on the report filed. This report becomes the evidence and the only evidence of the commissioners’ doings. (Mercantile Co. v. O. H. & G. Rld. Co., 56 Kan. 174, 42 Pac. 712; State v. Armell, 8 Kan. 288; and C. K. & W. Rld. Co. v. Grovier, 41 Kan. 685, 21 Pac. 779.) There is nothing in the description of the land taken in the instant case which would lead anyone to suspect that oil and gas in place were taken, particularly when the report was required to state fully and precisely the extent of the appropriation. (C. K. & W. Rld. Co. v. Grovier, supra.)
Appellees further argue, that if the landowners claimed title to the minerals, they have not evidenced same for nearly seven years by paying taxes thereon, since they allowed the surface and minerals to be removed from the tax rolls as belonging to Sunflower. On this point the record fails appellees. It is silent as to whether the property was removed from the tax rolls and whether the landowners did or did not pay taxes on the minerals in place underlying the condemned land. The point merits no further comment as defensive matter to the petition for injunctive relief. Whether failure to pay taxes on the mineral interest would or would not estop the landowners we do not here or now decide.
From 1951 until 1957 there was no interference by Sunflower with the landowners’ mineral interest in the tracts of land condemned. Then for the first time on January 16, 1957, the improvement district and its lessees undertook to appropriate the minerals by leasing the condemned tracts of land for oil and gas. Then and only then did the necessity for litigation of the question of title to the minerals arise. In French v. Ayres, supra, the condemnee was permitted to contest the condemner’s claim to a fee title more than thirty years after the condemnee had drawn down the amount of the award.
The trial court’s determination that the eminent domain proceeding vested the improvement district with title to the minerals underlying the condemned tracts is erroneous and the judgment should be and hereby is reversed with directions to issue the injunction.
It is so ordered.
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The opinion of the court was delivered by
Schroeder, J.:
This is the second appearance of this action for appellate review. In the first appeal the judgment of the trial court upon the verdict in the sum of $36,127.59 was reversed and the case remanded for a new trial as a result of erroneous rulings. (Avery v. City of Lyons, 181 Kan. 670, 314 P. 2d 307.) In the second trial the jury returned a verdict in the sum of $28,432.32 upon which the trial court entered judgment. Appeal has been duly perfected from all adverse rulings and the appellant specifies trial errors.
The explosion and fire of the Avery building in the City of Lyons gave rise to a number of claims against the City. Various of the other claimants appeared before this court in Wilson v. Wahl, 182 Kan. 532, 322 P. 2d 804, wherein the right of Edward Wahl to represent the City of Lyons as an attorney was challenged. Ap-pellees herein did not join with the parties in that action nor do they here assert the question raised in that appeal.
The second trial insofar as the record discloses was conducted in accordance with the decision and opinion of this court on appeal from the first trial. The evidence insofar as the facts are concerned is substantially identical with the evidence presented at the first trial, a summary of which is stated in the former opinion. Reference is therefore made to Avery v. City of Lyons, 181 Kan. 670, 314 P. 2d 307, for a statement of facts upon which further discussion of this case will proceed. Any significant variations or modifications concerning the evidence will be dealt with in this opinion upon consideration of the questions presented by the appellant in its brief.
It is specified that the trial court erred in its order overruling the appellant’s demurrer to the plaintiffs’ evidence (a) by reason of plaintiffs’ failure of proof, and (b) by reason of plaintiffs’ contributory negligence. On reviewing the record in the first appeal to this court it was said:
". . . We are of the' opinion the evidence was sufficient to withstand the demurrer and the trial court did not err in its ruling. (Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Richards v. Kansas Electric Power Co., 126 Kan. 521, 524, 525, 268 Pac. 847; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 160 P. 2d 270.)” (p. 672.)
The evidence, as viewed on demurrer, supplemental to that disclosed in the statement of facts of the former opinion, disclosed that there were three gas mains in the alley behind the Avery store. One of these mains, used by the Consolidated Gas Company, had been cut off more than seven weeks prior to the explosion. The other two gas mains, each eight inches in diameter, were city mains. One was a low presure line with eight ounces of pressure from which consumers were served and the other a high pressure main carrying approximately 12 to 15 pounds of pressure that fed the consumer line.
Upon excavation of the City’s mains in the area back of the Avery store a number of leaks were disclosed. The largest hole was 3/8ths of an inch in diameter located in the high pressure line in Main Street which was about 30 feet southeast of the closest corner of the Avery building. There was testimony from an expert that a hole of this size in the high pressure line of from 10 to 30 pounds would permit the escape of at least 500 cubic feet of gas in one hour. The morning after the explosion and fire gas was escaping from a sewer manhole in very close proximity to the large leak. The sewer line in which the manhole was located ran north and south in the alley back of the Avery store and across Main Street at the alley. There were also four or five leaks right back of the Avery store varying in from the size of “lead in a lead pencil to the size of a lead pencil.” The evidence was not clear whether these were in the high presure line. The leak farthest north in' the lines which were excavated was l/8th of an inch in diameter and said to be in the high pressure line about 20 feet from the northeast corner of the Avery store.
From the alley leading under the back ,of the Avery building were three separate lines along which gas could follow — the gas service line to the store, the sewer liné which serviced tire Avery store and a stub sewer line which was not being used. From the 1st day of January, 1954, through the 25th day of April, 1954, the date of the explosion and fire, rainfall in the City of Lyons was only 1.20. inches, the most at one reading was over one-half inch on February 20th. The evidence disclosed a dry condition of the soil would cause voids to open through which gas could travel; that the alley was paved except for 18 to 24 inches from the back of the Avery building; that the 65-year-old foundation would per mit gas to go through where the mortar was used; and that .customarily gas would enter through a wall where lines went through, if gas was escaping in the immediate vicinity.
The evidence concerning knowledge on the part of the City that gas was escaping back of the Avery building was strengthened in the second trial. A line formerly used by the Consolidated Gas Company .which was adjacent to the city main in the alley back of the Avery building was cut off on March 1, 1954, by C. F. Oline, its district manager. He told Hugh Ramage, the superintendent of utilities of the City of Lyons, that the Consolidated Gas Company’s line had been cut off and “that there was a leak back of the Avery store.” Oline further testified that they intended to dig up the line back of the Avery store and repair it as soon as they had finished the one they were working on, but that “Due to the fact that we killed that line, there was no reason for us to do it, so I notified him [Ramage] of the fact, and told him that it was his from now on.” The inference is that if there was still a gas leak back of the Avery store after March 1, 1954, the gas was escaping from the City’s main. At the scene of the fire on April 25, 1954, a fireman had a conversation with Ramage in which Ramage said: “We were going to have to replace some of the lines, but we hoped it wouldn’t be this year.”
Further evidence of leaks in the city line in this vicinity was disclosed by Ramage in his testimony. In the forepart of February, 1954, the City did some work one block south of the Avery area to ascertain the location of a gas leak in the Safeway Store. Testimony disclosed that the City’s lines were installed new in 1935 but that they had become scaled and pitted.
Various tenants in the Avery store and also Mr. Avery had called the City on numerous occasions concerning the odor of gas in the back part of the Avery building. Ramage testified that on March 4, 1954, the beauty shop operator called the city office about a stink or smell in the beauty shop at the rear of the Avery store. Garrison Yoder, the assistant to Ramage, responded but detected no odor. Both Ramage and Yoder returned to the beauty shop the next morning, March 5, 1954. Upon inspection Ramage informed Roy Avery that a sewer odor was present which emanated from the lavatory and hot water tank area, and requested that Mr. Avery get a plumber. He further suggested that the floor be removed to make an investigation to be sure what was causing this odor.
Roy Avery testified that the first time the city men came to the store was about March 20, 1954, to check for leaking gas. Roy Avery stated “It. might be a sewer gas smell, but to me it smelled like natural gas.” Avery testified that after these city employees checked the area for gas leaks they informed him that it was not natural gas and advised him to get a plumber to remedy the defect since it was a sewer gas smell. Pursuant thereto a plumber was called who made repairs the first week in April, 1954, to lavatory and trap in a sink in the beauty shop at the back of the Avery store. Mr. Avery was informed after the repairs that the odor was helped but shortly thereafter the beauty operator again informed him that the odor was present. He again called the plumber but the explosion and fire happened before any additional work was done.
The evidence disclosed that the City of Lyons did not even own a gas explosion meter and at no time was an investigation conducted by employees of the City of Lyons to determine the presence of leaking gas with an explosion meter prior to the explosion and fire in question.
Two eye witnesses on the early morning of April 24, 1954, saw a flash of lightning strike at the rear of the Avery store following which the explosion and fire occurred. There was testimony that lightning in and of itself would not cause an explosion within the store but that the explosion would have to be caused by the presence of gas in explosive quantities which could be ignited by lightning. Numerous other facts are disclosed by the record which fill in the details.
This evidence in our opinion was sufficient to overcome a demurrer and present a question of fact for the jury to determine whether the appellees had sustained the burden of proof by showing: (1) The cause of the injury to be escaping gas; (2) that such gas belonged to the defendant company; (3) that it escaped through the negligence of the company; (4) that it accumulated in the place where the injury occurred; and (5) that defendant negligently and proximately caused the damage. (38 C. J. S., Gas, §47, pp, 743, 745.)
Appellant makes much of the point that the plaintiffs have admitted contributory negligence. It is called to our attention that the Averys each personally signed the petition in this action which, among other matters, contained the following statement of admission of knowledge, thus:
“Plaintiffs understand and therefore allege that for several years prior to 1954, the exact number being unknown to plaintiffs, the defendant was contacted on the average of approximately once a year by the plaintiffs’ tenants because of the suspected presence of natural gas in the building.”
At the trial Roy Avery acknowledged signing the petition and that the statement made therein was correct. Appellant also calls attention to the fact that various, tenants testified of telling Mr. Avery of the odor which they suspected to be natural gas.
All of the facts which this testimony established, namely knowledge on the part of Roy Avery that gas was possibly escaping and that its presence was detected in the rear part of the store, culminated in Avery’s attempt to remedy the situation. Rut he was advised by city employees in charge of utilities that it was not natural gas which was escaping or natural gas odors. Roy Avery testified:
“. . . When Hugh Ramage and Garrison Yoder who had been with the utility department a goodly number of years told me it wasn’t natural gas, I believed they would be able to identify it. When he (Hugh Ramage) answered me it wasn’t natural gas, I believed him. No one, at any time ever told me that the source of this smell was anything that would be dangerous to life or property.”
The jury was within its prerogative to give this testimony full credence. On this state of the record the numerous authorities cited by appellant, among which are Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084; and Cooper v. Sorenson, 182 Kan. 560, 322 P. 2d 748, have no application.
Upon all the evidence disclosed by the record, whether or not appellees were guilty of contributory negligence was a question of fact to be determined by the jury. The evidence in the record did not establish contributory negligence through appellees’ admissions as a matter of law and the trial court did not err in overruling the demurrer to the evidence. (See, Townsend, Administrator v. Jones, 183 Kan. 543, 331 P. 2d 890, and cases cited therein.)
Appellant makes much of the point that the jury was asked the following question: “Do you find that the plaintiffs had a hot water heater with pilot light burning, in operation in their store, at the time of the fire and for a period of time prior thereto?” to which the jury answered: “Don’t know.” On this point counsel for ap-pellees admitted at the trial of the case that the answer to that would be “yes” because that was plaintiffs’ (appellees’) proof. It is argued that the jury was more anxious to answer the special findings in such a way as might not interfere with the general verdict than to give full, fair and truthful answers to the particular questions of fact submitted. (Citing A. T. & S. F. Rld. Co. v. Brown, Adm'r, 33 Kan. 757, 7 Pac. 571.)
Actually this point has little merit. If Roy Avery was not aware that the odors were caused by escaping gas and believed the City’s employees when they told him it was sewer gas, there would be no reason for him to turn the gas heater off and his failure to do so would not be negligence. On tire other hand mere testimony that a gas heater was working and in order with the pilot light burning on the evening before the explosion in question would not of necessity prove that the pilot light was burning at the time of the explosion and fire. The jury, therefore, may have felt that it was fully justified in answering the question “Don’t know.” Had the appellant felt this answer too vague and indefinite it should have requested the court to instruct the jury to give a more specific answer, since the burden of proving contributory negligence was upon the appellant. (Priest v. Life Insurance Co., 116 Kan. 421, 227 Pac. 538; and Moore v. Connelly, 119 Kan. 35, 237 Pac. 900.) An inspection after the fire disclosed that none of the gas appliances was defective — they would not leak unburned gas. There was testimony that the gas hot water heater was vented and, if unburned gas came from this source, it would escape through the vent.
It is specified that the trial court erred in admitting evidence to explain the assessed valuation of the property which was destroyed by fire. Pursuant to the decision of this court as a result of appeal from the first trial, the trial court on the second trial admitted in evidence values placed on personal property assessment sheets by the assessor which were given by Roy Avery one month prior to the fire. These assessment values showed $2,000 for fixtures and stock and merchandise at $6,000. The trial court admitted appellees’ evidence to the effect that this property was taken in at only 30% of its actual value upon instructions from the county assessor. Appellant objected on the ground that it was contrary to the statutory requirements of Kansas. This question was answered in the former opinion in the following language:
“. . . Their introduction in evidence would not have been conclusive on plaintiffs on the question of values — they were of course subject to explanation as to the ‘rate’ at which the property was listed, any changes or additions in the fixtures and stock in the meantime, or as to any .other matter affecting the value.” (p. 673.)
Justice would prove to be a mockery if evidence of the assessed value of property for taxation purposes in the State of .Kansas were held to be conclusive evidence of the true value of such property, when as a matter of fact and in practice the State Commission of Revenue and Taxation, which, has supervisory power over county assessors, with full knowledge permits assessments throughout the state to be made at substantially less than 50% of fair market value. See, Kansas City Southern Rly. Co. v. Board of County Comm'rs, 183 Kan. 675, 331 P. 2d 899.)
Appellant specifies that it was error for the trial court to refuse to give the following requested instruction:
“You are instructed that in satisfying the burden of proof resting upon the plaintiffs, Roy Avery and Lulu Avery, all circumstances and facts must be ample and must appear from the evidence. Moreover, such evidence must not leave the causal connection a matter of conjecture; it must be something more than consistent with plaintiffs’ theory as to how the damage occurred. When the proof of causal connection is equally balanced, or the facts are as consistent with one theory as with another theory, plaintiffs have not met the burden of proof the law places upon them, in which case your verdict must be for The City of Lyons, Kansas.”
It is argued that this instruction was highly essential to this case where the plaintiffs contended on the theory that gas came from the alley mains. We cannot pass upon this question since appellant has not seen fit to produce all of the instructions given by the trial court, some of which may have had a bearing upon burden of proof and circumstantial evidence. Upon this point the appellant, has not made it appear from the record that the trial court erred. (Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049.)
Appellant contends that the trial court erred in admitting evidence of future anticipated damages for loss of profits, “going concern” and good will as elements of damage, and further erred in giving Instruction No. 20, the material portion of which reads:
“. . . Plaintiffs have asked for damages in addition because it was-necessary for them to discontinue all business operations for a period of ten weeks and that the reasonably expected profits for that period of normal operation would be $1,385.36. You are instructed that loss of profits to a business which has been wrongfully interrupted by another is an element of damage for which recovery may be had, but before you can award plaintiff damages for such interruption of business it must appear to your satisfaction that the business was an established business, that it had been successfully conducted for such a length of time and had such a trade established that the profits thereof are reasonably ascertainable, and in this connection, should you so find, then you should allow plaintiff such damages as you could reasonably ascertain plaintiff might have recovered as net profits had the explosion not occurred and had said business continued to operate during said period of interruption, taking into account the net profits, if any, realized and made from the operation of said business, prior to the explosion, but in no case, exceeding the amount prayed for.
“Plaintiffs have also asked for damages because, they allege, that during the time they were forced to discontinue all business operations, their regular customers formed other trading habits and made business connections with other merchants engaged in lines of business of the same nature as that engaged in by plaintiffs, and as a result, plaintiffs have lost good will and going concern value in the amount of $8,000.00. You are instructed that this, likewise, is an element of damage for which recovery may be had, but it is likewise a matter which plaintiffs must establish to your satisfaction by a preponderance of the evidence. It is not a matter for speculation or conjecture, or the fact that temporarily plaintiffs may have lost customers or business, but plaintiffs must show to your satisfaction that because of the interruption in their business the value of the business as a going concern has been diminished or depreciated to such an extent that plaintiffs have suffered loss as a result thereof. If plaintiffs so satisfy you, then you may then allow damages for this item, not exceeding however, the amount prayed for.”
It is argued that this instruction is contrary to G. S. 1949, 12-105, in that such statute permits only evidence of damages during the period of three months prior to the filing of the claim with the city. The statute (12-105, supra) provides:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three months thereafter and prior to the bringing of the suit'file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto. Such city shall have thirty days from the time of the filing of such statement to make settlement with the claimant if it so desires.”
This statute is simply an enactment requiring that a notice be served upon a city within three months after an injury to person or property as a prerequisite to the right to maintain an action. The statute makes no limitation as to otherwise proper elements of damage for the specific injury occasioned. Apparent from the “Statement and Claim for Damages,” filed by the appellees with the City of Lyons, is the fact that the notice claimed these damages, and claimed them as known consequences of an injury already sustained. ■ Once the notice is complied with, it neither limits nor increases damages otherwise recoverable.
Loss of profits from destruction or interruption of an established business may be recovered where the plaintiff makes it reasonably certain by competent proof what the amount of his loss actually was. It must be made to appear the business had been in successful operation for such period of time as to give it permanency and recognition, and that it was earning a profit which may reasonably be ascertainable or approximated. (States v. Durkin, 65 Kan. 101, 68 Pac. 1091; Mensing v. Wright, 86 Kan. 98, 119 Pac. 374; Shepherdson v. Storrs, 114 Kan. 148, 217 Pac. 290; McCracken v. Stewart, 170 Kan. 129, 223 P. 2d 963; Sullivan v. Sproule, 176 Kan. 274, 269 P. 2d 1015; and O’Neal v. Bainbridge, 94 Kan. 518, 146 Pac. 1165.) The fact that damages cannot be calculated with absolute exactness will not render them so uncertain as to preclude an assessment. (Eastman Kodak Co. v. Southern Photo Material Co., 295 Fed. 98; Roseland v. Phister Mfg. Co., 125 F. 2d 417; and see, also, Shepherdson v. Storrs, supra.)
Good will is property. It may be sold and it may be damaged. (The T. & P. Ry. Co. v. Mercer, 127 Tex. 220, 90 S. W. 2d 557, 106 A. L. R. 1299.) The chief elements of good will are continuity of place and continuity of time. (Matter of Brown, 242 N. Y. 1, 150 N. E. 581, 44 A. L. R., 510.) Good will means an established business at a given place with the patronage that attaches to the name and the location. It is the probability that old customers will resort to the old place. (Mattis v. Lally, 138 Conn. 51, 82 A 2d 155, 46 A. L. R. 2d 114.)
In Hines v. Roberts Bros., 117 Kan. 589, 232 Pac. 1050, this court gave definitions of good will defined in Bouvier’s Law Dictionary, in Words and Phrases and in Webster’s New International Dictionary, Second Edition. The court there said at page 594:
“Good will, as defined by these authorities, necessarily is damaged when the business with which it is connected stands idle. The evidence to show the damages sustained by the plaintiff included loss occasioned by the restaurant being closed. That was part of the damage which the plaintiff by his petition sought to recover in this action. It cannot be successfully contended —it is not contended — that good will is not a proper element of damages in an action of this character.”
Appellant argues that the store burned April 25, 1954, the claim statement was filed July 22, 1954, 88 days thereafter, and damages were allowed for 120 days. This is based upon Avery’s testimony that it would take 120 days to get the store back in business. Ap pellant cites cases tending to support its contention that since these damages are measured by future effects that may not all happen within three months of the wrongful act, there is no actionable injury, thus indicating a restriction under the statute. (Citing: Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540; Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798; and Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474.) Language in these authorities upon which appellant relies must be considered in the light of the facts upon which they were written. When so analyzed, none is applicable to the issue here presented. In both the Beard and thfe Jeakins cases the disapproved elements of damage were for injuries incurred more than the requisite statutory time (four and three months, respectively under the applicable statute) preceding the filing of claim. The Steifer case dealt with a nuisance — a continuing injury which caused damage. The decision turned upon the limitation in the statutory claim itself. The claim disclosed that damages were limited to the date of filing with the city. Thus, it was held plaintiffs could not prove damages to their person or property after that date.
We therefore hold that the trial court did not err in the admission of evidence as to loss of profits and good will as elements of damage and properly instructed on these points, since the appellees in their statutory claim demanded damages that would inevitably follow the injury that had already been sustained.
Inasmuch as trial errors specified by the appellant have been determined to have’ no merit, it follows that the trial court did not err in overruling the motion for a new trial and in entering judgment upon the verdict for appellees.
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the district court dismissing an appeal from the probate court. Under the facts as presented the basic question for our determination concerns the power and jurisdiction of the district court to permit an amendment to a concededly defective and insufficient notice of appeal from the probate court to the district court.
The facts pertinent to the question involved follow: The will of Bess Allgire, which was consented to by her husband, Emmett Allgire (plaintiff-appellant), was admitted to probate on July 18, 1956, and Sam Gibbs was duly appointed and qualified as executor thereof. Under the will Emmett was left a life estate in all of Bess’ property, with remainder, at Emmett’s death, to Sam Gibbs, Glenn I. Gibbs and James Gibbs, brothers of Bess.
On petition by Emmett the probate court set aside to him a twenty-acre plot of land as a homestead and the statutory allowances. Subsequently, the executor filed his petition for final settlement. Emmett filed motions to set aside his entry of appearance and the court’s previous order admitting Bess’ will to probate. From an order overruling his motions, Emmett appealed to the district court.
The material portions of the notice of appeal read:
“Notice of Appeal
“To: Sam Gibbs, individually and as executor of the last will and testament of Bess Allgire, deceased; Glenn I. Gibbs and James Gibbs, and their attorneys of record, Frank D. Oberg and W. M. Beall, and Walter O. Curtis, Probate Judge for the same and all other interested parties:
“All of you are hereby notified that Emmett Allgire hereby appeals from the orders, judgments, decrees and decisions of the Probate Court of Clay County, Kansas, rendered in the above entitled matter on the 26th day of August, 1957, denying the appellant’s Motion to Vacate Order, Election of Emmett Allgire, Motion to Withdraw, Entry of Appearance, Waiver of Notice and Consent to Immediate Hearing, and Petition for Probate of Will and Appointment of Executor Thereof, wherein the said court denied all above said applications of the appellant.
“Dated this 26th day of August, 1957.
_“/s/ John Berglund_
John Berglund
Clay Center, Kansas
Attorney for Appellant,
Emmett Allgire.
“Acceptance of Service and Watver of Proof
“Service of this notice of appeal is hereby accepted, and proof of service is waived this 26th day of August, 1957.
“/g/ Frank D. Oberg_
Frank D. Oberg
7s/ W. M. Beall_
W. M. Beall
Attorneys for Sam Gibbs, individually and as executor of the last will and testament of Bess Allgire, deceased.
‘Filed: August 26, 1957‘
Thereafter, on September 26, 1957, two- motions to dismiss Emmett’s attempted appeal were filed in the district court by Sam Gibbs, individually and as executor, Glenn I. Gibbs and James Gibbs for the reasons that the notice of appeal was not served on all adverse parties or their attorneys of record, or on the probate judge for all adverse parties, nor was proof of service, verified by affidavit, filed in the probate court, nor was proof of service waived, all as provided by G. S. 1949, 59-2405, and, as a consequence, the court had no jurisdiction of the subject matter or action.
On October 2, 1957, during the hearing on defendants’ motions to dismiss, Emmett’s counsel orally moved the district court for leave to amend the notice of appeal by inserting the names of Glenn I. Gibbs and James Gibbs after the words “attorneys for Sam Gibbs, individually and as executor of the last Will and Testament of Bess Allgire, deceased,” as shown in the acceptance of service and waiver of proof aforementioned. The court sustained defendants’ motions to dismiss the attempted appeal and denied Emmett’s motion to amend, from which order Emmett appeals to this court.
The only adverse parties interested in the case then and now are Sam Gibbs, individually and as executor of the last will and testament of Bess Allgire, deceased, Glenn I. Gibbs and James Gibbs (defendants-appellees). It may be noted that the acceptance of service and waiver of proof of the notice of 'appeal was limited by attorneys Oberg and Beall to Sam Gibbs, as an individual and as executor.
Plaintiff does not contend that he served a copy of the notice of appeal upon Glenn I. Gibbs and James Gibbs, or that he filed an affidavit showing proof of service of the notice of appeal upon the probate judge for all adverse parties. It is Emmett’s contention that the trial court erred in refusing him permission to amend his notice of appeal, which was defective only because his attorney, through a clerical error, omitted the names of two of the interested parties, i. e., Glenn I. Gibbs and James Gibbs, from the acceptance of service and waiver of proof, which names were contained in the address of the notice of appeal.
In our recent case of In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642, we had occasion to again review our decisions and construe G. S. 1949, 59-2405 providing for appeals from the probate court to the district court on the questions similarly involved herein. What was said there is applicable here. Suffice it to say that in order to render an appeal effective, thus vesting the district court with jurisdiction of the action, the appealing party must comply with the requirements of subdivisions (1) and (2) of the statute. The legislative mandate calls for service of the notice of appeal upon (1) the adverse parties, or (2) their counsel of record, or (3) the probate judge for the adverse parties. In the instant case plaintiff Emmett failed to comply with any one of these methods. The acceptance of service and waiver of proof by attorneys Oberg and Beall was limited to Sam Gibbs, as an individual and as executor. Emmett’s counsel prepared the notice of appeal, including the acceptance and waiver of proof of service. However, the mentioned attorneys were not requested to nor did they accept service or waive proof of service for Glenn I. and James Gibbs, as their attorneys of record, and no affidavit was filed by Emmett so contending. Because no service was made of the notice of appeal as prescribed by the aforementioned statute, the appeal never became effective. Therefore, the district court never acquired jurisdiction over the subject matter of the action. Lacking jurisdiction of the appeal, it follows the court was without power and authority to exercise any discretion with respect to permitting the amendment of the notice requested by the plaintiff Emmett.
Emmett contends that the language of subdivision (3) of the mentioned statute, which provides that whenever a party in good faith gives due notice of appeal and omits through mistake to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just, gives express authority to the district court to permit the amendment under consideration.
There is no merit to this contention. Subdivision (3) of the statute contemplates that due notice has been given; i. e., subdivisions (1) and (2) have been complied with. In In re Estate of Freshour, supra, we again analyzed and construed subdivision (3) and held that the words “other act” mean in addition to or distinct from those mentioned in subdivisions (1) and (2).
No useful purpose would be gained by a further discussion of the questions involved in the instant case. The same contentions were made, fully analyzed and settled in the two recent cases of In re Estate of Freshour, supra, and In re Estate of Demoret, 169 Kan. 171, 218 P. 2d 225. What was said therein controls and is adhered to in this case. The judgment of the trial court is therefore affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
In this case William Daniel Hanley and Mario E. Visco were charged with the offense of attempting to obtain money by false pretenses, in violation of G. S. 1949, 21-101 and 21-551. A severance was granted, and defendant Visco appeals from his conviction.
Because of questions later mentioned, the information, omitting formal parts, which was filed on September 3, 1957, is set out:
“I, lohn J. Gardner the undersigned, County Attorney of said County, in the name, and by the authority, and on behalf of the State of Kansas, come now here, and give the Court to understand and be informed that on the 21st day of June a. d., 1957, in said County of Johnson, and State of Kansas, one William Daniel Hanley and Mario E. Visco did then and there Unlawfully, Feloniously, designedly and with intent to cheat and defraud Robert McEndree, attempt to obtain from the said Robert McEndree United States money in the amount of $125.00 by means of false and fraudulent representation by falsely representing themselves to be agents and employees of a publication named as ‘Labor Digest’ and under this guise, attempting to sell advertising in said publication when in reality the said ‘Labor Digest’ they purport to represent does not exist.”
The story established by the state’s evidence is substantially as follows:
Robert McEndree was the owner and proprietor of an automobile body repair shop at 11411 West 75th Street in Shawnee. The shop specialized in body and fender work. About nine o’clock on the morning of June 21, 1957, McEndree received a telephone call at his shop from a man who gave the name of Gray. Gray asked Mc-Endree if he would be in shape to handle a four-year contract to handle and take care of all motor vehicles for the state of Kansas. McEndree replied that he probably could. Gray wanted to know if he had sufficient money and space for such an operation and McEndree replied that he could make arrangements for it. Gray then told McEndree that he, Gray, could make arrangements for such a contract as he knew a man that could make it possible, and that it would be profitable for everyone. Gray further stated that he would need some of McEndree’s letterheads and billheads to show the man what the shop was like and how it was set up. Mc-Endree said that he would get them ready for him. Toward the close of the conversation Gray mentioned that if McEndree wanted the contract he, Gray, thought it would be no more than right that McEndree should advertise in a paper called the “Labor Digest” which Gray’s boys were putting out. He went into some detail about the sizes of advertising McEndree could take and thought it would be right if McEndree took an ad for a half page, which would cost $125. McEndree agreed to purchase such an ad and Gray replied that he would send out a man as soon as possible to pick up the letterheads and check so that he could turn them over to the man to get the contract fixed. Gray further mentioned that his boys who were publishing the “Labor Digest” would appreciate the half-page ad.
About three o’clock that afternoon a man by the name of Hanley came out to the McEndree body shop and told McEndree he had come to pick up the check for $125 pursuant to the telephone conversation McEndree had had that morning with Gray. He presented McEndree a bill for the advertising. This bill read:
Labor Digest
2441 Troost June 21 1957 VA 1-9308
Bob McEndree
Bob’s Body Shop
11411 W. 75th st
Shawnee Kansas
Advertising .$125.00
K Page”
It, was established at the trial, and is not disputed, that at the time in question the purported address, “2441 Troost,” of the “Labor Digest” was the address of an apartment house in Kansas City, Missouri, and that there were no printing presses or any evidence whatsoever of the “Labor Digest” having an office at that address.
It was further established at the trial, and is not disputed, that at the time in question the purported telephone number, “VA 1-9308,” of the “Labor Digest” was the number of the telephone in a public pay-telephone booth adjacent to a supermarket in Kansas City, Missouri.
After Hanley presented this bill to McEndree, McEndree said that he would get the letterheads and check, but instead absented himself for a moment and called the sheriff’s office. Officers arrived on the scene and arrested Hanley.
At this point it should be mentioned that McEndree, who formerly was a member of the sheriff’s patrol and who also was a member of the “Better Business Bureau” in the area, concluded from the first that such a plan or scheme as suggested by Gray, whereby Gray, through contacts, could obtain for him all of the automobile body repair work for the state of Kansas, was utterly outlandish and completely phony and bogus.
About three-thirty that afternoon McEndree received another call from Gray in which Gray wanted to know if the man whom he had sent out to pick up the letterheads and check had arrived. Mc-Endree told Gray that an intoxicated man was outside his establishment, whereupon Gray said that he doubted that he (the man) was drunk but that he might be-sick. He then suggested that McEndree send Hanley home in a taxicab. McEndree agreed and Gray said that he would call back.
About thirty minutes later Gray again called McEndree and inquired whether he had sent Hanley home in a cab, to which Mc-Endree replied that he had. Gray then stated that Hanley had been checked into a hospital; that he was sorry he had sent such a person out, but that be would send his private secretary out later that day to pick up the check and letterheads.
It is to be noted that at the time this conversation took place Hanley was in the county jail.
About nine o’clock that night a woman giving the name of Ann Harris came to the McEndree body shop. An officer had observed her get out of a car in the driveway of a residence next door. She told McEndree that she had been sent out to pick up the check and letterheads concerning which he had received telephone calls. They went into his office and McEndree wrote out and gave her a check for $125 payable to the order of “Labor Digest.” She took the check and started to walk away from the shop but was arrested immediately. She told the officers that a couple had brought her out to the shop and that she was a stranger in the neighborhood. She denied knowing a man by the name of Visco or that he had brought her to the shop.
At about this time the car that brought Ann to the body shop started to take off. The officers stopped it and found the defendant Visco behind the wheel. He told the officers that he had just stopped there to light a cigarette and denied that he had brought a woman with him. After they told him they had observed Ann get out of his car he admitted that he had brought her and stated that “he didn’t want any trouble, and that he would like to get out of it the best he could.” He further told the officers that he was on parole out of Chicago on a “confidence game,” and that “it would be worth quite a bit to him if he wasn’t taken to jail.” The officers then took defendant into the body shop and he told Ann that there was “no sense in lying about it because the officers had .seen them.” Defendant’s car was searched and in it were found some “Labor Digest” blank forms.
McEndree identified defendant’s voice as being the voice of “Gray” who had called him several times previously that day. Testimony of the managing editors of labor publications in the Kansas City area was to the effect no such publication as the “Labor Digest” was in existence.
The defendant offered no evidence, and the jury returned a verdict of guilty as charged. Various motions, including one for a new trial, were overruled, and defendant, having twice previously been convicted, was sentenced to confinement in the penitentiary under the habitual criminal law.
Defendant assigns sixteen specifications of error, but in his brief argues four questions, namely — error (1) in overruling his motion to quash the information; (2) in overruling his motion for discharge and his demurrer to the state’s opening statement; (3) in overruling his motion for a directed verdict and his demurrer to the state’s evidence, and (4)' in overruling his motion to set aside the verdict and for a new trial because of erroneously admitted evidence and erroneous instructions.
We will discuss briefly each of the questions presented.
It is contended the information was defective in that it alleged such a publication as the “Labor Digest” does not exist, which, it is argued, has reference to September 3, 1957, the date of filing, rather than to June 21, 1957, the date of the alleged offense, and that the effect of the order overruling the motion to quash precluded defendant from establishing the fact that he in good faith intended to start or bring out a publication known as the “Labor Digest” in the near future which would carry the advertisement in question.
We find no merit in this contention. Perhaps it would have been grammatically and factually correct to have alleged that such publication “did not exist” on June 21, 1957, or words to that effect, but defendant has no valid claim of error concerning the information in the form in which it was filed. G. S. 1949, 62-1011, provides that no information may be quashed for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and the person charged, nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Defendant was in no way prejudiced by its allegations. He knew precisely with what he was charged. Furthermore, the evidence, a portion of which has been related, definitely established the fact that no such publication as the “Labor Digest” was in existence on June 21, 1957, or, for that matter, at any other time in issue, and' that the purported address and telephone number of the “publication” were utterly fictitious.
Defendant’s contention as to the orders overruling his motion for discharge and for a directed verdict, and his demurrer to the state’s evidence, are argued together and seem to fall under two headings. The first relates to the alleged defective information, and it is contended the state, under the ruling on the motion to quash, merely was required to prove that no such publication as the “Labor Digest” existed as an entity on September 3, 1957. One short answer to this, other than what already has been stated, is that the state’s evidence did relate to the facts as they existed on June 21, 1957, the date of the offense.
The second argument under this contention appears to be that as McEndree, the intended victim, was “on” to the scheme from the beginning he therefore was in no way deceived — therefore defendant cannot be held guilty of an attempt to deceive.
This argument is likewise without merit. In State v. Bereman, 177 Kan. 141, 276 P. 2d 364, it was stated that an attempt to commit a crime consists of three elements — the intent to commit the crime, the performance of some act toward its commission, and the failure to consummate its commission. Each of these elements is present here. There was no legal impossibility to consummate the offense — only a factual impossibility — the failure to deceive Mc-Endree. The requisite intent to deceive was present; there was performance of several overt acts toward the commission of the offense, and it failed of consummation only because of the alertness of the intended victim. If defendant’s contention, in this respect were to be upheld, that is, if there was no attempt because there was no deception, criminals would be permitted to ply their illicit trade until they found a “dupe,” thus giving them a favored status in the law over other thieves and larcenists.
In support of the argument that the court erred in overruling his motion for a directed verdict and for a new trial, defendant contends the testimony of McEndree that the voice of “Gray” over the telephone was that of defendant Visco himself and that they were one and the same person, was erroneously admitted. We do not agree. As we said in State v. Kladis, 172 Kan. 38, 238 P. 2d 522, identification may be by direct evidence or by facts and circumstances, and the completeness of the identification goes to the weight of the evidence rather than to its admissibility.
Some complaint is also made of the fact certain statements made by Ann Harris when she came to the body shop on the evening in question, out of defendant’s immediate presence, were admitted. This contention likewise is without merit, and the order of proof, under the circumstances was immaterial. The evidence clearly established that she was part and parcel of the transactions under consideration.
Next, it is argued inferentially that defendant was the victim of “entrapment.” There is no merit to this contention for the law is well established that it is no defense that the intended victim, on learning of the proposed crime, does nothing to stop its commission but allows the defendant to begin the commission of the crime so that he may be apprehended in the act. Surely it cannot be contended in this case that the criminal intent originated in anyone’s mind other than defendant’s.
And finally, it is contended the court erroneously instructed the jury. We have examined the instructions given and those refused. Discussion of them would be repetitious of what has been said. The jury was properly instructed on all issues in the case and defendant’s complaints with respect thereto cannot be sustained.
We find nothing approaching reversible error in this record and the judgment is therefore affirmed.. | [
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The opinion of the court was delivered by
Schroder, J.:
This is an appeal from a ruling of the lower court overruling defendant’s demurrer to plaintiff’s second amended petition which pleads a cause of action in common law negligence and, in the alternative, a cause of action under the doctrine of last clear chance.
The fundamental question presented is whether the plaintiff in alleging the doctrine of last clear chance in the second amended petition has alleged facts which admit contributory negligence as a matter of law.
Summarized in part, the allegations of the second amended petition were that at or about 9:45 o’clock p. m., on August 20, 1955, plaintiff was driving his automobile north approaching an intersection on U. S. Highway No. 77 two miles south of Winfield, Kansas; that said highway was a hard-surfaced black-topped highway approximately 22/1 feet in width and the intersecting township road, which formed the intersection, was gravel and approximately 20 feet in width; that U. S. Highway No. 77 runs downgrade from the south to the intersection which is visible for a distance of approximately 500 feet; that plaintiff approached the intersection from the south at a speed of approximately 55 miles per hour; “that it was night time and dark and both headlights were burning brightly; that when plaintiff was approximately 500 feet South of said inter section he met an automobile proceeding south; that after meeting said automobile, plaintiff placed his headlamps on the bright position and proceeded on north; that said U. S. Highway No. 77 is black in color and had been recently resurfaced; that when plaintiff was at a distance of approximately 375 feet south of said intersection, he first observed an automobile driven by defendant, dark in color, on the north portion of said intersection without lights, the exact location being unknown to plaintiff, and that said automobile was facing in a west-northwest direction, blocking or partially blocking both the east and west lanes of traffic; that plaintiff anticipated defendant would obey the highway laws and regulations and clear said intersection but nevertheless slowed down, the exact speed and location being unknown to plaintiff, and used his brakes; that no automobile was approaching from the north going south; that the west lane was clear of other traffic, and the intersection could have been cleared by defendant with complete safety; that shortly thereafter, the exact time and location of plaintiff’s automobile being unknown to plaintiff, plaintiff realized that defendant’s automobile was parked and that defendant was not clearing said intersection or moving in any direction; that plaintiff immediately applied his brakes hard and continued to so apply them until the time of the hereinafter mentioned collision, thereby skidding his wheels; plaintiff attempted to steer his automobile to the right of defendant’s automobile to avoid collision but due to the location and position of the defendant’s automobile, the left side of the plaintiff’s automobile skidded into and collided with the rear end of the automobile driven by defendant; that as a result of said collision plaintiff was thrown out of his automobile and injured and damaged as hereinafter set out.”
The second amended petition then alleges:
“(5) That plaintiff was free from all negligence and the collision and resulting damage to plaintiff was the direct and proximate result of the negligent acts and omission of acts of defendant as follows, to-wit:
“(a) Driving in the nighttime without lights of any type as required by General Statutes of Kansas, 1949, 8-581.
“(b) Stopping and parking in the intersection of a Federal Highway without cause and without lights in the nighttime in violation of General Statutes of Kansas, 1949, 8-572 and 8-586.
“(c) Parking and stopping in an intersection as before described in such position that both lanes of traffic were blocked.
“(d) Failure to clear said highway and intersection when defendant knew or should have known he was blocking both lanes of traffic and defendant knew or should have known that he was creating a hazard to other users of the highway, and particularly this plaintiff.
“(e) Failure to proceed forward and drive out of plaintiff’s lane of traffic when the south bound traffic lane was free and clear and he could have done so with complete safety.
“(f) Failure to keep a close and careful lookout for any and all traffic lawfully using said highway and particularly this plaintiff.
“(g) Failure to signal or warn plaintiff that he was stopped and parked in said intersection as above described.
“(6) The plaintiff herein denies that he was guilty of any negligence but that even if he was negligent in any way, such negligent acts, if any, are unknown to plaintiff, in proceeding along the highway as alleged, or otherwise, such negligence, if any, had ceased prior to the collision; that the time at which plaintiff’s negligent acts, if any, had ceased, is unknown to plaintiff; and, the location of plaintiff’s car at such time as his negligent acts, if any, had ceased, is also unknown to plaintiff; and, plaintiff alleges that at such time as his negligent acts, if any, had ceased, the defendant saw or in the exercise of ordinary care, should have seen the position of peril of plaintiff and could have then and there avoided said accident and collision by any one of the following acts;
“(a) driving his car forward
“(b) turning his automobile to his left
“(c) driving his automobile on the right half of said roadway
“(d) moving his car in any manner so that both the north and south lanes of traffic would not be blocked, leaving plaintiff one lane free from obstruction.
“(7) That as a result of tire aforementioned collision and the negligence of defendant, plaintiff was thrown out of his automobile and injured and damaged as follows, . . .”
The appellant (defendant) asserts that the second amended petition must be subjected to strict construction by reason of a motion to make definite and certain which the trial court overruled.
In determining the question whether a petition is to be given a liberal or strict construction when attacked by demurrer, the rule is that strict construction applies only when a meritorious motion to make definite and certain has been successfully resisted by the plaintiff. (Vitt v. McDowell Motors, Inc., 180 Kan. 800, 308 P. 2d 115; and Powell v. Powell, 172 Kan. 267, 239 P. 2d 974.) Where a trial court has properly sustained a motion to make a petition definite and certain and to strike in whole or in part, and the plaintiff has complied therewith, the amended petition when challenged by demurrer, as being insufficient to state a cause of action, will be liberally construed. (Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152.)
The mere filing of a motion to make definite and certain is insufficient to require strict construction. In Roehrman v. D. S. & O. Rural Electric Cooperative Ass'n, 174 Kan. 498, 256 P. 2d 872, this court said at page 503:
“. . . The trouble from their standpoint is that a motion to make a petition more definite and certain does not he when the pleading attacked is sufficiently definite and certain to make the nature of the charge apparent and that a petition which fairly apprises the defendant of what the plaintiff’s claim is to be is not subject to a motion to make more definite and certain. When that is the situation, where such a motion is properly resisted, and overruled, the decisions on which appellants rely have no application and the attacked pleading is subject to liberal construction notwithstanding. . . .”
A motion to make definite and certain was lodged against the amended petition. The first seven paragraphs of this motion attempted to force plaintiff to either plead his evidence or set up defensive matter. We do not hesitate to declare that this portion of the motion was properly overruled, but the trial court sustained Paragraph 9 which required the plaintiff to “specifically allege in paragraph (6) the act or acts of negligence of the plaintiff, when such negligence ceased, and the exact location of plaintiff’s automobile on the highway in reference to defendant’s automobile when such act or acts of negligence ceased.”
Paragraph 6 of the amended petition reads:
“(6) The plaintiff herein denies that he was guilty of any negligence but that even if he was negligent in any way in proceeding along the highway as alleged, or otherwise, such negligence, if any, had ceased prior to the collision and defendant saw or in the exercise of ordinary care, should have seen the position of peril of plaintiff and could have then and there avoided said accident and collision by any one of the following acts: [Subparagraphs (a) to (d) are identical with those in Paragraph 6 of second amended petition.]”
As a result of the trial court’s ruling on the motion Paragraph 6 was amended to read as set forth in the second amended petition. Paragraph 8 of the motion was sustained but is immaterial to the issues herein.
Mindful of the rules heretofore stated and for the reasons heretofore and hereafter assigned, the second amended petition is entitled to a liberal construction.
The law is clear that the driver of a motor vehicle must keep his vehicle under such control as will enable him to articulate his speed with his ability to stop or turn aside within the range of vision provided by the headlights of his automobile. (Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681; Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827; and Bottenberg Implement Co. v. Sheffield, 171 Kan. 67, 229 P. 2d 1004.)
Relying upon the foregoing rule appellant contends that the second amended petition given even the most liberal construction and interpretation conclusively shows that appellee — driving at a speed of 55 miles per hour, observing appellant’s automobile without lights, blocking or partially blocking the highway upon which ap-pellee was traveling some 375 feet away, having alleged no exceptions to the general rule, such as blinding lights approaching in the opposite lane of traffic — did not have his automobile under such control as to articulate his speed with his ability to stop or turn aside within the range of vision provided by the headlights of his automobile, and that such failure constituted contributory negligence as a matter of law.
Liberally construed the petition under attack does not allege in any manner that plaintiff could not have stopped his car within the range of vision provided by his headlights. The plaintiff alleges that he did slow down but did not at that time try to stop because he did not then realize defendant’s car was stopped or parked, and plaintiff anticipated defendant would obey the laws and regulations of the highway and clear the intersection. Under the conditions and circumstances alleged plaintiff was not negligent in assuming that defendant would clear the intersection before plaintiff arrived at that point. The law is well established that the operator of an automobile on a public highway may assume others using the highway will observe the laws of the road and he is not guilty of contributory negligence in such an assumption unless and until he has knowledge to the contrary. (Blankenship v. Fraker, 173 Kan. 438, 249 P. 2d 683; Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724; and Smith v. Salts, 170 Kan. 313, 224 P. 2d 1025.)
The duty or care between persons using the public streets or highways is mutual, and any such person may assume that others traveling on the public streets or highways will comply with the obligation imposed upon them. A driver of a motor vehicle has the right to act upon the assumption that every person whom he meets will exercise ordinary care and caution according to the circumstances and will not negligently and recklessly expose himself to danger, but rather make an attempt to avoid it.
After plaintiff in the instant case realized that defendant’s automobile was parked, according to the allegations, and defendant was not clearing the intersection or moving in any direction, plaintiff alleged his efforts to avoid the collision.
Questions of fact ultimately to be put in issue by such allegations indicate the kinds of actions in which each party is entitled to trial by jury as a matter of right. They should not be converted into trials by the court. (Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752.)
Contrary to the appellant’s contention that the plaintiff seeks to obtain the benefits from contradictory and inconsistent allegations deliberately made in his pleadings, this court has recognized pleading causes of action for common law negligence and the doctrine of last clear chance in the alternative. True, the question has been presented to this court under various approaches. In some cases the petition has been held demurrable where the two theories have been confused or where the essential elements of the doctrine of last clear chance have not been set forth in the pleading. While appellant seeks to distinguish various cases upon the specific factual situations presented, we nevertheless think it clear that this court has recognized that a plaintiff may plead a cause of action in common law negligence and in the same petition plead in the alternative a cause of action under the doctrine of last clear chance. (Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112; Frogge v. Kansas City Public Service Co., 159 Kan. 687, 157 P. 2d 537; Kloepfer v. Chicago, Rock Island & Pacific Rld. Co., 174 Kan. 96, 254 P. 2d 243; Becker, Administratrix, v. Tasker, 177 Kan. 452, 280 P. 2d 581; and authorities cited in these decisions.)
In the Frogge case a petition was held demurrable for the reason that it did not fairly state a cause of action upon a definite theory. There a motion was properly directed against an allegation intended to intimate resort to the doctrine of last clear chance but was successfully resisted. The appellee was not entitled, in the face of such motion, to assert that the allegations of the petition imputed no negligence to him, to deny that the doctrine of last clear chance was involved, and at the same time preserve in the petition allegations under which the doctrine might be invoked in the trial. The court said at page 692:
“. . . Perhaps appellee might have alleged that he' was not guilty of negligence, but that even if he was guilty of negligence in the first instance he was still entitled to recover because of defendant’s negligence, under the doctrine of ‘last clear chance.’ . . .”
In the Kloepfer case the issue presented to the court was not whether negligence had been alleged, nor whether facts sufficient to state a cause of action had been alleged, but only whether there was a fatal confusion of theories. The court held that the petition was not demurrable, stating:
. . It is not debatable but that the general rule is that the facts constituting a cause of action should be by direct allegation and not by alternative allegation, but the rule is subject to the modification that if both alternatives are good in substance, the petition is not subject to general demurrer, and to the further modification generally recognized that if the pleader is uncertain as to the grounds of his claim he may state his cause of action in whatever different ways may b.e necessary to meet possible proof. See 71 C. J. S. (Pleading, §41) p. 109, and 41 Am. Jur. (Pleading, §§41, 42) p. S17 . . .” (p. 101.)
The rule stated in 41 Am. Jur., Pleading, § 106, p. 363, was approved by this court in Ondrasek v. Ondrasek, 172 Kan. 100, 238 P. 2d 535. It reads:
“It is a familiar rule of pleading that when the plaintiff has two or more distinct reasons for obtaining the relief sought, or when there is more or less uncertainty as to the grounds of recovery or as to the exigencies of proof, the petition may set forth a single claim in more than one count. The pleader may state his case in as many ways as he sees fit in separate counts in order to meet any possible phase of the evidence, and he will not be required to elect on which count he will proceed . . .”
See, also, Miller v. Johnson, 155 Kan. 829, 130 P. 2d 547.
This court in the Kloepfer case said at page 101:
“Referring now to rules of pleading with respect to ordinary negligence and last clear chance, it is stated generally that a plaintiff may plead both ordinary negligence and a state of facts invoking the last clear chance rule, and he may recover under whichever aspect die proof of the case shows. See 65 C. J. S. (Negligence, § 191) p. 909, and 38 Am. Jur. (Negligence, § 27Í) p. 960. See also Cleve. Ry. Co. v. Masterson, 126 Ohio St. 42, 183 N. E. 873, 92 A. L. R. 15, . . .”
A limitation upon pleading a cause of action in common law negligence and one under the doctrine of last clear chance in the same petition requires that the allegations of the petition are not repugnant. (Becker, Administratrix, v. Tasker, supra.)
The essential elements under the doctrine of last clear chance are: (1) The plaintiff by his own negligence placed himself in a position of danger; (2) that the plaintiffs negligence had ceased; (3) that the defendant seeing the plaintiff in a position of danger, or by the exercise of due care should have seen the plaintiff in such position, by exercising due care on his part had a clear chance to avoid injuring the plaintiff; (4) that the defendant failed to exercise such due care; and (5) as a result of such failure on the defendant’s part plaintiff was injured. (Goodman v. Kansas City, M. & S. Rld. Co., 137 Kan. 508, 21 P. 2d 322; and see, Restatement of Law, Torts, Negligence, § 479.)
The appellant contends that the second amended petition, given the most liberal construction, contains no allegations or inferences that may be drawn therefrom to indicate that the appellee’s negligence at any time ceased, but on the contrary shows that appellee’s negligence continued right up to the moment of impact.
It is clear that the doctrine of. last clear chance can have no application where the contributory negligence of the plaintiff driver of an automobile is not shown to have ceased prior to the impact. (Bazzell v. Atchison, T. & S. F. Rly. Co., 133 Kan. 483, 300 Pac. 1108; Goodman v. Kansas City, M. & S. Rld. Co., supra; and Buchhein v. Atchison, T. & S. F. Rly. Co., 147 Kan. 192, 75 P. 2d 280.) Appellant relies upon the foregoing cases to support his contention.
Each of these cases was presented to this court upon an abstract of the evidence, after trial in the lower court, where the plaintiff chiving an automobile on a public highway at a railroad crossing was struck by a train or interurban car. The manner in which these cases were pleaded was not before the court. In none of these cases did the evidence disclose that the plaintiff’s negligence had ceased prior to the impact.
Paragraph 6 of the amended petition in the instant case specifically referred to the facts previously alleged, as to the manner in which plaintiff was proceeding along the highway, and further alleged that if the plaintiff was negligent, such negligence had ceased prior to the collision. The facts alleged that at the time plaintiff reached a point in the highway beyond which he could not stop, plaintiff’s actions, whatever they might be, could not have avoided an accident of some nature. When plaintiff arrived at that point, there was still time for the defendant to clear the intersection and obey the highway laws and regulations. Prior to the time that plaintiff actually had knowledge that the defendant was parked and not clearing the intersection, he could still assume that the defendant would comply with the laws even though the plaintiff had passed the point beyond which he could not stop. (Blankenship v. Fraker, supra.) Failure to do an act which is physically impossible is not negligence.
Under the doctrine of last clear chance it makes no difference how short an interval occurs between the negligent act of the plaintiff, which ceased, and that of the defendant, if the latter had time to discover the danger and avert it by the exercise of ordinary care. (38 Am. Jur., Negligence, § 218.) Only in the event of concurring negligence could plaintiff be barred. (Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P. 2d 449.)
The other essential elements under the doctrine of last clear chance are clearly apparent from the allegations of the amended petition and the second amended petition of the plaintiff.
In our opinion defendant’s entire motion to make plaintiff’s amended petition definite and certain was without merit and it should have been overruled in toto. The extent to which Paragraph 6 of the amended petition has been modified under the court’s order is mere surplusage. In arriving at this conclusion the court has not been unmindful of Boúska v. Bouska, 168 Kan. 94, 211 P. 2d 55, cited by the appellant. This case has been carefully considered but is rejected as inapplicable to the facts and circumstances alleged in plaintiff’s amended petition.
Normally, the factual situation which invokes the doctrine of last clear chance is the reverse of this case. That is, the party asserting the doctrine of last clear chance is usually the one who is occupying an intersection and' not the party approaching the intersection where a collision occurs. Under all the facts, conditions and circumstances alleged in the plaintiff’s amended petition we cannot say as a matter of law that this situation makes the amended petition demurrable. The fact that the plaintiff may have difficulty in the trial proving his cause of action under the doctrine of last clear chance, if it becomes necessary, does not authorize this court to be presumptuous, and rule as a matter of law, if the plaintiff was guilty of negligence, that such negligence continued to the point of impact. To do so would convert an action which is essentially an action for the jury into a trial by the court. We are here concerned with a pleading and not the evidence after the trial of an action. In our opinion the two causes of action are well pleaded in the alternative in the amended petition and are not repugnant.
It may seem academic to reiterate statutory mandates in pleading, but in view of the fact that it has now been 737 days since the plaintiff filed his petition in the trial court, it is deemed appropriate. G. S. 1949, 60-704, provides that a petition must contain a statement of the facts constituting the cause of action in ordinary and concise language, without repetition, and a demand of the relief to which the party supposes himself entitled. In other words, the function of a petition is to advise the defendant precisely what plaintiff claims against him. In the construction of a petition for the purpose of determining its effect, allegations are to be liberally construed with a view to substantial justice between the parties. (G. S. 1949, 60-736; and Vitt v. McDowell Motors, Inc., supra.)
It follows that the order of the trial court overruling the defendant’s demurrer to the second amended petition of the plaintiff should be and is hereby affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The action was one to recover damages for personal injuries sustained in an automobile collision on U. S. Highway No. 85-87, south of Colorado Springs, Colorado. The petition alleged that the claimant, Harold R. Trammell II, was a paying passenger and that the driver, Wilbert Carrell, was guilty of negligence in enumerated particulars. The jury answered a special question, and returned a verdict in favor of the defendant. The claimant has appealed and specifies as error, orders and rulings of the court during the trial and the overruling of his motion for a new trial.
Pertinent portions of claimant’s evidence are summarized. Tram-mell was nineteen years of age, single, and lived with his parents in Wichita. Wilbert Carrell also lived in Wichita. Both were members of the Organized Army Reserve Corps; Trammell was a private and Carrell was a sergeant. A two-week summer encampment was being held at Ft. Carson, Colorado, the latter part of July, 1955, to last until August 6, 1955, and members were allowed to take their own automobiles to camp. Carrell drove his Pontiac and took Trammell and another passenger, Louis Pennington, with him. On the morning they were to leave for camp Carrell went to Trammell’s home about 6:30 a. m. Trammell’s mother answered the door and she and Carrell had a conversation in the living room. She asked Carrell if he and her son had made financial arrangements for the trip and Carrell told her they had; Mrs. Trammell asked if he wanted her son to pay him then or after they got to camp and Carrell said it did not make any difference. Mrs. Trammell gave Carrell $10 of Trammell’s money which he had previously given to her. Trammell packed his barracks bag and left with Carrell for camp.
On August 6,1955, prior to leaving camp, members of Trammell’s unit went through the pay line. Trammell testified that after the men were paid he saw Pennington give Carrell $10 and heard him say, “Here is your money. We will be going home pretty soon.” Sergeant Robert Bell testified that Trammell owed Carrell for his ride back to Wichita; that, as first sergeant, he had complaints about men leaving camp without paying their debts and he took it upon himself to be sure that all the fellows paid their debts before leaving camp by checking with the person he told to pay the debt, or the person to whom the debt was owed, and that he knew Trammell’s debt to Carrell was paid before they left for Wichita. Sergeant Bell further testified that he asked Carrell if he could ride back to Wichita with him, and Carrell told him he would charge the standard fee of $10 for one way. For reasons not disclosed by the record Sergeant Bell did not make the return trip with Carrell.
On their way back to Wichita Carrell was driving south on U. S. Highway No. 85-87 which is - a concrete north and south two-lane highway with shoulders about two feet wide; the concrete was dry and the visibility was good. Pennington was in the front seat beside Carrell and Trammell was in the back seat asleep. There was heavy traffic traveling in both directions at a uniform rate of speed. Trammell awakened and saw they were passing cars and heard Pennington say, “Look out, Cookie.” (Cookie was Carrell’s nickname.) Carrell’s Pontiac was then on the left-hand or east side of the highway in the northbound traffic lane; his Pontiac sideswiped a Buick traveling north, and laid 86 feet of skid marks before crashing headon into a Ford which was following the Buick. Carrell was killed, Pennington died later, and Trammell suffered severe physical and mental injuries. A psychiatrist who treated Trammell testified he was 50 percent mentally deficient in his powers of concentration and was suffering from an anxiety neurosis.
The jury returned a verdict for the defendant, and the special question submitted by the court and the jury’s answer read:
“At the time of the collision in question, was Wilbert Carrell transporting Harold R. Trammell II as a paying passenger as defined by the instructions of the court?
“Answer: No.”
The principal question presented is whether the trial court erred in denying Trammell’s motion for a new trial. As indicated, the accident occurred in Colorado. The action was brought under the Colorado guest statute (Revised Statutes 1953, 13-9-1), similar in purport to our guest statute (G. S. 1949, 8-122b). As previously indicated, Trammell pleaded and attempted to prove he was a paying passenger and that Carrell was guilty of negligence in operating the car, which resulted in injury to him. One of the strongly contested issues at tire trial was Trammell’s status as a paying passenger.
Trammell contends the trial court erred in restricting his testimony and that of his witnesses concerning payment to Carrell for his ride to Ft. Carson and return to Wichita. The record indicates that his efforts to prove his paying status were extremely restricted and that testimony of other witnesses was met with repeated objections to such extent that, in its highly confusing state, it would seem the jury did not get the full import of that evidence.
Upon direct examination Trammell testified he overheard a conversation between his mother and Carrell in the living room on the morning they left for camp. In response to a question to relate that conversation Trammell stated,
“My mother asked Mr. Carrell what arrangement, what financial arrangement there had been made and he said ‘twenty dollars’."
The trial court refused to permit Trammell to relate Cárrell’s part of the conversation and struck that part of the answer pertaining to what Carrell said. He was, however, permitted to relate his mother’s side of the conversation, and testified that she told Carrell she would pay him the $10 for the ride to Ft. Carson and that he saw his mother give Carrell the $10. The trial court erred in not permitting Trammell to testify to the entire conversation. A witness may testify as to conversations between a decedent and a third person. A few of our decisions where this rule was applied are: Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062; Wallace v. Wallace, 101 Kan. 32, 165 Pac. 838; Collins v. Hayden, 104 Kan. 351, 352, 179, Pac. 308; Gaston v. Clabaugh, 106 Kan. 160, 186 Pac. 1023; Robertson v. Wangler, 107 Kan. 45, 51, 190 Pac. 788; Bertholf v. Cornel, 132 Kan. 122, 126, 294 Pac. 673; St. Denis v. Johnson, 143 Kan. 483, 54 P. 2d 983; Schuler v. Rehberg, 145 Kan. 176, 64 P. 2d 571, and In re Estate of Wert, 165 Kan. 49, 51, 52, 193 P. 2d 253. The question did not require Trammell to testify to any transaction or conversation had by him with Carrell relating to the subject matter in issue, i e., whether Trammell was injured as a result of Carrell’s tortious conduct. The effect of Carroll’s statement to Mrs. Trammell that he and Trammell had made financial arrangements for the trip to Ft. Carson and return and that it was “twenty dollars” would tend to establish a contract of carriage for hire for the round trip and the exclusion of that evidence was prejudicial to Trammell’s proof of his status as a paying passenger in Carrell’s car. Once it is established that such a contract was entered into between the parties, a presumption arises that it continued to exist until rebutted by evidence to the contrary. A state of facts once shown to exist continues until proved otherwise. (Insurance Co. v. Ketcham, 9 Kan. App. 552, 554, 58 Pac. 229; Murray v. Geiser, 79 Kan. 326, 328, 99 Pac. 589; Bank v. Bay, 90 Kan. 506, 135 Pac. 584; and, White v. Metropolitan Life Ins. Co., 151 Kan. 689, 100 P. 2d 691.) See, also, Sands v. Van Donge, 181 Kan. 325, 329, 311 P. 2d 321. Further, assuming, arguendo, that such a contract was entered into at Wichita and that Trammell had not paid Carrell the $10 for the return trip, his status as a paying passenger would not be altered since Carrell could have enforced the contract for the unpaid balance.
Error is specified that Trammell was not permitted to reopen his case and amend his petition to conform to the proof. Counsel for Trammell stated he thought the allegations in the petition were sufficiently broad to indicate that Trammell was either a guest or a paying passenger; that if the petition was amended to conform to the proof, Trammell was entitled to an instruction under the Colorado guest statute as to Carrell’s willful and wanton negligence. During argument to the trial court upon another point counsel for Trammell stated,
“We don’t want to prove wanton and willful negligence. We want to prove lie was a paying guest.”
The record further shows that at another time counsel for Trammell stated,
“Ordinary negligence is all we have to show.”
The admission of attorneys of record bind their clients in all matters relating to the progress and trial of a case. For the purposes of the suit, an admission made by counsel is conclusive; and in subsequent proceedings, or on rehearing, if the court is satisfied that they were really made, they cannot be retracted (Central Branch U. P. R. Co. v. Shoup, 28 Kan. 394, 398; Hoover v. Hoover’s Estate, 104 Kan. 635, 638, 180 Pac. 275). In the instant case the admission of counsel as to the legal theory upon which claimant’s case was conducted and was to be submitted to the jury binds Trammell, and the trial court did not err in refusing to permit the petition to be amended, or to give the requested instruction.
Other points are discussed in the briefs but it is unnecessary, in view of the conclusions heretofore announced, that they be discussed and decided. Upon consideration of the record the judgment of the trial court is reversed and the cause is remanded for a new trial.
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Pierron, J.:
Justin D. Elnicki appeals his conviction by a jury of one count of rape and one count of aggravated criminal sodomy. Elnicki challenges the sufficiency of the evidence, submission of certain evidence, prosecutorial misconduct, and sentencing. We affirm.
According to testimony presented at trial, at approximately 2 a.m., J.A. rode a bike to a Kwik Shop in north Topeka to use the pay phone. While J.A. spoke on the phone, Elnicki arrived in a Chevrolet Blazer. J.A. commented to Elnicki about his tattoos and they engaged in small talk. Elnicki pointed out that the tire on J.A.’s bike was flat and offered her a ride. J.A. told Elnicki she did not know him and that she was only a couple blocks from her friend’s house anyway. Elnicki persisted and J.A. eventually accepted the ride.
J.A. testified she had Elnicki stop in the church parking lot behind her friend’s house because her friend did not like strange people coming to his house. As J.A. attempted to get her bike out of the Blazer, Elnicki grabbed her hair and said, “Bitch, take off your clothes.” J.A. screamed for help and Elnicki hit her with his fists, threw her to the ground, lacked her, and choked her until she could no longer scream. J.A. testified she blacked out. After J.A. regained consciousness, Elnicki grabbed her by the hair and dragged her toward an open door of the Blazer. Elnicki removed J.A.’s shoes, pants, and underwear. Elnicki grabbed J.A. by the hair and forced her to perform oral sex on him while she knelt on the pavement.
Elnicki then forced J.A. into the Blazer, telling her he would kill her if she did not get in. Elnicki closed tire door and laid on top of J.A. He rubbed his penis against her vagina and anal area in an attempt to get an erection. Elnicki forced J.A. to perform oral sex again. Elnicki was able to get an erection and forcibly had sex with her. J.A. said Elnicki ejaculated. Elnicki pulled J.A. out of the Blazer and told her he would kill her if she told anyone. He removed J.A.’s bike from the Blazer, threw it on the ground, and drove away. J.A. ran to her friend’s house and reported the rape. Her friends took her to another house where she called her parents and they took her to the hospital for a sexual assault examination. J.A. had bumps, bruises, and scratches all over her body.
J.A. testified she told the police and several other people that Elnicki had followed her from the Kwik Shop and attacked her from behind in the church parking lot. She was embarrassed that she had gotten into the Blazer with Elnicki and she did not want her parents to know she had accepted a ride from a stranger. J.A. admitted to drinking alcohol and smoking marijuana earlier in the evening. The next day, J.A. told Detective Hazim that she had actually accepted a ride from Elnicld before the rape.
Elnicld was arrested and interviewed by Detective Hazim. The interview was videotaped. Elnicki first said he had not met a girl on the night in question or had sex with anyone. He said he had been drinking at a bar at the relevant time and then went home. He explained the scratches on his neck as a result of a fight with a friend. After Detective Hazim confronted him with some of the information given by J.A., Elnicki said that he was too drunk to remember what happened and that he could have had sex with a girl but he did not remember.
Detective Hazim then confronted Elnicki with more information. Elnicld then stated he had gone to the Kwik Shop to buy cigarettes for his girlfriend. He met a girl and they talked about getting some marijuana. They got in his Blazer and at some point they started kissing. He said she gave him oral sex as he was sitting with the door open and she was on her knees. He was unable to get an erection, he never ejaculated, and that was all that happened.
The rape examination and subsequent analysis revealed a pubic hair identified as Elnicld’s. The vaginal swabs came back positive for semen belonging to Elnicki. The blood stains discovered in the Blazer were determined to be blood from J.A.
Before trial, Elnicki’s ex-wife gave Detective Hazim a letter written by Elnicki. In tire letter, Elnicki gave another account of the events on the evening in question. Elnicld said that he picked up J.A. at the Kwik Shop and drey were unsuccessful in buying some marijuana.
Elnicld said they ended up in a parldng lot and used methamphetamine. Elnicki said he offered J.A. $25 to “get freaky” with him and they started fooling around. He noticed she had a shaved vagina and she told him “her man liked it that way.” He said she gave him oral sex outside of the driver’s side door as she knelt on the pavement. He was unable to get an erection and told her to get in the truck because he was afraid they would be seen. In the truck, J.A. gave him more oral sex.
He said they tried to have sex, but he never got an erection and they gave up. Elnicki said J.A. asked for her $25 but he would not pay her because nothing happened. They argued and he told her to get out of his truck. She grabbed his neck and scratched him. Elnicki said he was mad and punched her a couple times. She ran but he caught her. Elnicki had J.A. in a headlock and she bit him in the side. Elnicki said he punched her again and then drove away.
Elnicki was charged with rape, aggravated sodomy, and aggravated kidnapping. The trial court dismissed the charge of aggravated kidnapping during the trial. A jury convicted Elnicki on both counts of rape and aggravated sodomy. Elnicki was sentenced to a presumptive sentence of 618 months’ incarceration for the rape and a concurrent sentence for the aggravated sodomy.
Elnicki first claims the trial court abused its discretion in refusing to redact portions of evidence from the videotaped interrogation because Detective Hazim commented on Elnicki’s veracity during the interrogation and this invaded the province of the jury in determining guilt.
Elnicki complains of several incidents. Approximately 7 minutes into the interrogation, Detective Hazim told Elnicki, “You just told me a flat out lie.” Detective Hazim told Elnicki that a person’s eyes shift when they are lying and that his eyes had shifted. Detective Hazim later called Elnicki a liar and asserted that he was “weaving lies.” Detective Hazim also repeatedly asserted that Elnicki was “bullshitting” him and that “all this bullshit is a waste of my time.” Detective Hazim also told Elnicki, “Bullshit, you’re sitting here bullshitting me” and “Let’s not bullshit anymore.”
A witness may not testify about the credibility of another witness. The jury is the sole factfinder in a criminal case and a witness cannot give an opinion on the guilt or innocence of the defendant. See State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993). Determining the veracity of a witness’ statements is a function of the jury. See Jackson v. Denno, 378 U.S. 368, 386-87 n. 13, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964) (“Just as questions of admissi bility of evidence are traditionally for the court, questions of credibility, whether of a witness or a confession, are for the jury.”).
Elnicki argues the videotape should have been redacted because Detective Hazim could not have taken the stand and made the same comments. He argues there would be no prejudice to the State or hindrance of the State’s case if the videotape was redacted.
Several other jurisdictions have struggled with the issue of whether credibility statements made by an interrogating officer in the course of a videotaped interrogation should be played for the jury. A plurality opinion on the subject comes from the Washington Supreme Court, which affirmed the conviction of a man for robbery and kidnapping. State v. Demery, 144 Wash. 2d 753, 30 P.3d 1278 (2001). The Demery court confronted the issue of whether officers’ statements during a videotaped interrogation accusing Demery of lying were admissible at trial.
During the interrogation, officers asked Demery whether he intended to stick to his version of events and Demery replied that he did because he was telling the truth. Officers then asked Demery whether they had treated him well during the interrogation. Demery replied that they had, but that the officers were looking at him like he was lying. The officers stated that they were looking at Demery like that because he was lying. The statements were not redacted from the videotape that was played for the jury.
On appeal, Demery asserted the officers’ statements constituted inadmissible lay opinion testimony regarding his credibility. Four justices of the Washington court disagreed, concluding that because the officers’ statements were not made under oath at trial, they did not constitute testimony. Rather, the four-justice plurality opinion explained that the statements were a common interview technique employed to see if Demery would change his story. 144 Wash. 2d at 764. The court also observed that the trial court’s purpose in admitting the statements was to provide context for Demery’s responses and not to impeach his credibility. However, five justices of the Washington court concluded that it was error to admit the statement. Those five justices agreed that the officers’ statements constituted impermissible opinion testimony. 144 Wash. 2d at 772-73. Although the majority agreed that the state ments were error, the four dissenting justices believed the error was reversible, while one concurring justice believed it was harmless. Thus, the majority affirmed Demery’s conviction.
The Ninth Circuit Court of Appeals has also addressed this issue in Dubria v. Smith, 224 F.3d 995, 1003 (9th Cir. 2000). Dubria raised this claim in the context of a habeas corpus proceeding, which required him to prove that the admission of the videotaped testimony violated his right to due process under the United States Constitution. The court first observed that the videotape played at trial portrayed an “unremarkable interview” because the officers’ comments suggested nothing more than what the State sought to prove at trial. 224 F.3d at 1001. The court agreed that there was nothing particularly damning in the officers’ statements. It also noted that the officers’ comments were admitted to place Dubria’s answers in context. Finally, the court noted that any error in the admission of the statements was cured by the trial courts’ limiting instruction, directing the jury not to assume that the officers’ statements during the interrogation were true. Although the court determined that the admission of the videotaped statements did not violate Dubria’s right to due process, it did not decide whether the admission of the statements violated the rules of evidence. See State v. Cordova, 137 Idaho 635, 51 P.3d 449 (Idaho App.), rev. denied (Aug. 8, 2002).
To the contrary, another appellate court has held that interrogating officers’ comments accusing the defendant, either directly or indirectly, of lying were properly excluded from the jury. See Commonwealth v. Kitchen, 1999 Pa. Super. 100, 730 A.2d 513, 521-22 (1999). In Kitchen, the videotape depicted the interrogating officers telling the defendant, “You’re lying” and, “We know that you’re lying.” 730 A. 2d at 721. The court held that such statements were akin to a prosecutor offering his or her opinion of the truth or falsity of the evidence presented by a criminal defendant, or a prosecutor offering his or her opinion regarding the guilt or innocence of the defendant, either of which would be inadmissible at trial. See also State v. Jones, 117 Wash. App. 89, 92, 68 P.3d 1153 (2003) (“We find no meaningful difference between allowing an officer to testify directly that he does not believe the defendant and allowing the officer to testify that he told tire defendant during questioning that he did not believe him. In either case, the jury learns the police officer’s opinion about the defendant’s credibility.”).
The State concedes that a witness may not testify that another witness is or is not telling the truth, but argues that Detective Hazim did not comment on Elnicld’s credibility. Rather, according to the State, Detective Hazim simply explained his “interrogation technique” to the jury. The State cites multiple sources concerning the interrogation techniques used by Detective Hazim while he interrogated Elnicld.
We agree with the State that Detective Hazim’s persistent and successful efforts at interrogating Elnicki, with the strength of the evidence against Elnicld and the improbability of his claims, explained Elnicld’s gradual movement from total denial of seeing J.A. to a story of nonviolent, consensual oral sex. An interrogator’s comments that he or she believes the suspect is lying are only admissible to the extent that they provide context to a relevant answer by the suspect. Otherwise, interrogator comments that result in an irrelevant answer should be redacted. Detective Hazim’s statements in this case that he believed Elnicld was lying and “bullshitting” were admissible because the comments gave context to Elnicld’s inculpatoiy statements, which were relevant to the proceedings. The trial court did not abuse its discretion in refusing to redact the requested portion of Elnicki’s interrogation.
We do, however, caution that this type of evidence is fraught with possible problems. It is obvious that if a defendant does not change his or her stray in any significant way under this kind of questioning, a different view must be taken. In those situations where it is not undisputed that the defendant lied and changed his or her story, such evidence, which includes statements that the defendant is lying, should probably be excluded unless there is another reason for its admission.
Even when such evidence is allowed, it would probably be .the better practice to give a cautionary instruction to the jury that statements made by officers in the course of interrogation are not sworn testimony and that only the jury can make determinations of the veracity of witnesses.
Elnicki also alleges the State committed prosecutorial misconduct in its closing argument by commenting on his credibility. He contends the case was a credibility battle and the prosecutor improperly attempted to destroy his credibility by repeatedly arguing that he lied, fabricated his story, “spun a yam”, and by stating that the State’s version of the events was true. Elnicki did not object to any of the comments during the State’s closing argument, but now challenges them on appeal.
An appellate court’s standard of review is the same whether an objection was or was not made at trial. To show reversible error based on prosecutorial misconduct, the defendant must show the alleged error denied the defendant his or her right to a fair trial under the Fourteenth Amendment to the United States Constitution. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). Our standard of review of this type of claim is well established:
“The analysis of the effect of a prosecutor s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing tire evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.” State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000).
In State v. Wilt, 273 Kan. 273, 279, 44 P.3d 300 (2002), the court cited three factors for determining whether prosecutorial misconduct requires a new trial:
“(1) whether the misconduct was so gross and flagrant as to deny the accused a fair trial, (2) whether the remarks show ill will on the prosecutor’s part, and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors. [Citation omitted.]”
The evidence garnered in this case from Elnicki’s changing stoiy gives proper context to the prosecutor’s comments that Elnicki was “spinning a yam”, telling a “fairy tale”, and fabricating the truth. The prosecutor s comments were elicited from direct evidence of Elnicki’s ever-changing stoiy and the prosecution’s comparison of one stoiy to the next as Elnicki learned of the evidence against him.
Elnicki recognizes that the State was free to point out that his version of the events changed during the interrogation and prior to trial, but contends that the State improperly used sarcasm to interject its opinion as to his veracity. The prosecutor’s comments were not outside the limits the prosecutor is allowed in discussing the evidence. The prosecution is allowed wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Elnicki’s ever-changing story is consistent with arguments that his rendition of the facts could be questioned. The prosecution’s comments were not improper. See State v. Finley, 273 Kan. 237, 246, 42 P.3d 723 (2002) (“The prosecutor based her argument on an inference drawn from the nature of the defendant’s conflicting stories, not on the prosecution’s knowledge of the defendant’s veracity.”).
Elnicki also complains that tire prosecutor expressed his personal opinion and vouched for J.A. by arguing that she was telling the truth: “He is threatening her. He is threatening the whole time. The force, she is veiy consistent about the force he was using, does not change on tire force at all. And the demands he was making, the things he was saying to her, you know she was telling the truth.”
The prosecutor’s above comments occurred in rebuttal following defense counsel’s closing argument containing repeated characterization of J.A.’s testimony as a “train of lies,” stating how rape victims would not act like J.A., making statements like “[w]ho is the better liar here?”, and pointing out the inconsistencies of her testimony. The prosecutor attempted to rehabilitate J.A. in closing argument by pointing out the consistencies in her testimony and the physical evidence that supported her testimony and refuted Elnicki’s explanations. The prosecutor’s comments culminated in the reasonable inference that J.A. was telling the truth. See Davis, 275 Kan. at 122 (prosecutor did not improperly vouch for the credibility of witness by stating, “I would suggest to you that the evi dence has shown that [the victim] should be believed by you and that you should return verdicts on all of those counts.”).
The facts of each case must be scrutinized in determining whether the prosecutors conduct denied the defendant a fair trial. See State v. Rodriguez, 269 Kan. 633, 641, 8 P.3d 712 (2000). Based on the facts of this case, we do not find the prosecutor’s comments during closing argument were improper or that they denied Elnicki a fair trial.
Next, Elnicki argues there was insufficient evidence to support his convictions and the State failed to prove its case beyond a reasonable doubt. See State v. Barker, 18 Kan. App. 2d 292, 295, 851 P.2d 394 (1993) (due process clause protects accused against conviction except upon proof beyond reasonable doubt of eveiy fact necessaiy to constitute criminal charges).
The standard of review to a challenge of the sufficiency of the evidence is well known:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000).
The evaluation of witness credibility is for the jury. State v. McCray, 267 Kan. 339, 343, 979 P.2d 134 (1999).
Elnicki argues the physical evidence was consistent with both his and J.A.’s story and that the case “boiled down to a credibility contest.” He states that J.A. was an admitted liar by having first told several people that Elnicki had attacked her from behind. He states that J.A. lied at the hospital when she told the prosecutor that Elnicki had forced her to have vaginal intercourse in the parking lot before forcing her to have intercourse in the Blazer. He contends J.A.’s story was internally inconsistent because she claimed she did not want her parents to know that she accepted a ride from a stranger, yet she told the same lie to several people outside the presence of her parents. He states that J.A.’s story that her friend would be mad if a stranger dropped her off at his house was refuted by that friend in his testimony. J.A. claimed she had known her friend for 7-8 years, but the friend testified he had only known J.A. for a year.
Elnicki also points out the inconsistencies in J.A.’s testimony about the actual incident. He states that J.A. told Detective Hazim that Elnicld initiated the conversation, but at trial she stated she initiated the conversation by mentioning his tattoos. J.A. testified Elnicld removed her clothes, but she told Officer Kizhaber that she removed her pants. J.A. testified Elnicld was unable to get an erection until inside the Blazer, but she told Officer Kizhaber that Elnicld had an erection outside the Blazer. J.A. testified Elnicki did not penetrate her anus, but the sexual assault nurse stated that J.A. told her Elnicki digitally penetrated her anus.
Elnicld also claims a rape victim would not tell her name to a would-be attacker, would not talk about her shaved vagina, would not talk about her attacker’s past girlfriends, and would not direct a would-be attacker to an abandoned parking lot. He argues these are the actions of a woman preparing to engage in consensual sex acts.
After pointing out all the consistencies of the evidence supporting a consensual encounter, Elnicld argues that even if the evidence is viewed in the light most favorable to the State, the evidence did not support his convictions. We disagree. Elnicld is asking us to find diere is no way a reasonable jury could find him guilty based on the inconsistencies of J.A.’s testimony. He also presents his version as what must be accepted. The jury sorted through all the inconsistencies claimed by Elnicki and found J.A.’s stoiy to be the more credible—that is the jury’s responsibility. This court does not weigh conflicting evidence, pass on credibility, or redetermine questions of fact. State ex rel. Stovall v. Meneley, 271 Kan. 355, 387, 22 P.3d 124 (2001). We find there is sufficient evidence to support Elnicki’s convictions. While a set of facts may be so improbable as to be insufficient to support a conviction, see State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983), that is not the case here.
Elnicld finally argues the trial court erred at sentencing by using his criminal history score to determine the sentence for his nonbase crimes. He argues the sentence must be vacated and remanded for resentencing.
Elnicki’s criminal history score was B. The trial court sentenced Elnicki to 618 months’ incarceration on the rape conviction, the base crime, using a B criminal history. However, the court erroneously used the B criminal history for the aggravated criminal sodomy conviction. The trial court should have sentenced Elnicki for aggravated criminal sodomy using a criminal history score of I. K.S.A. 2002 Supp. 21-4720(b)(5) requires the court to sentence a defendant using a no criminal history, or I, for all nonbase crimes in a multiple conviction situation.
Although the trial court erroneously sentenced Elnicki on the aggravated criminal sodomy conviction, we note that the sentence was ordered to run concurrent with the sentence of the base conviction of rape. The aggravated criminal sodomy sentence was substantially shorter than the sentence for rape, and the sentence for rape is not affected by the application of K.S.A. 2002 Supp. 21-4720(b)(5). Elnicki’s sentence will not change unless the base sentence is substantially changed.
Elnicki also argues the trial court erred by including his juvenile adjudication in his criminal history. He contends his juvenile adjudication must be pleaded in the charging document and proved to a jury beyond a reasonable doubt pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Elnicki’s argument was previously rejected by our Kansas Supreme Court in State v. Hitt, 273 Kan. 224, Syl. ¶ 2, 42 P.3d 732 (2002), cert. denied, 537 U.S. 1104 (2003): “Juvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the Kansas Sentencing Guidelines Act.” Elnicki argues Hitt was wrongly decided. However, we are duty bound to follow Kansas Supreme Court precedent. See Mueller v. State, 28 Kan. App. 2d 760, 763, 24 P.3d 149, rev. denied 231 Kan. 1037 (2001), cert. denied 535 U.S. 997 (2002).
Last, Elnicki argues the first three issues raised on appeal, even if not individually prejudicial, in combination constitute sufficient prejudice to require a new trial based on cumulative error. We disagree. The cumulative trial error rule is clearly defined as follows:
“ ‘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 tire evidence is overwhelming against the defendant.’ State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).” State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001).
With the conclusions we have reached on Elnicki’s other appellate issues, his argument that cumulative errors deprived him of a constitutionally fair trial has no merit. We find no prejudicial trial errors upon which such a claim could be predicated. Further, an examination of the record clearly shows Elnicki was given a vigorous defense and allowed to portray the event as a consensual encounter. The trial may not have been perfect, but it was certainly a fair one. Elnicld’s argument of cumulative error fails.
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Green, J.:
Excel Corporation appeals from an award by the Workers Compensation Board (Board) to Bernardo Martinez for work-related injuries. Excel argues that the Board erred in determining that Martinez’ refusal to undergo carpal tunnel surgery was reasonable within the meaning of K.A.R. 51-9-5. The issue before this court is whether there was substantial competent evidence to support the Board’s decision. Because expert testimony revealed that there were significant risks, as well as uncertainty about the ultimate result of the surgeiy, we find that there was substantial competent evidence to support the Board’s decision. Accordingly, we affirm the Board’s ruling.
Bernardo Martinez suffered injuries to his back, shoulders, arms, hands, and legs while working as a trimmer at Excel Corporation. Dr. J. Raymundo Villanueva treated these injuries with medication, physical therapy, and local injections. A nerve conduction velocity test revealed that Martinez had severe bilateral carpal tunnel syndrome and bilateral Guyon’s syndrome. After Martinez’ condition failed to improve, Dr. Villanueva recommended carpal tunnel release surgery. Martinez declined the surgery.
Martinez requested a hearing with the Division of Workers Compensation to determine the amount of compensation for his injuries. After hearing testimony from Martinez and reviewing deposition testimony from several expert witnesses, the administrative law judge (ALJ) awarded compensation based on a 25.5% disability rating. The award represented an average of two impairment ratings—one rating was an estimate of Martinez’ injuries if he would have undergone the carpal tunnel surgery, and the other rating was based upon his present condition without the surgery. The judge reasoned that Martinez could later request the surgery and possibly reduce his disability substantially and, therefore, should not receive compensation based upon the highest impairment rating.
Both Martinez and Excel appealed this decision to the Board. The Board increased the award based upon a 39.5% impairment rating. This award was an average of the impairment ratings of the two expert witnesses, Dr. Villanueva and Dr. Pedro Murati, for Martinez’ present condition. These impairment ratings were determined according to the American Medical Association, Guides to the Evaluation of Permanent Impairment (AMA Guides), as required by K.S.A. 44-510e. The Board noted that, according to the AMA Guides, a patient’s decision to not undergo surgery should neither increase nor decrease his or her impairment rating. The Board concluded that Martinez’ “present functional impairment rating should be based upon his actual present physical condition rather than based upon speculation of what it might be in the event he underwent multiple surgeries and achieved successful results.”
The Board also considered K.A.R. 51-9-5, which provides:
“An unreasonable refusal of the employee to submit to medical or surgical treatment, when the danger to life would be small and the probabilities of a permanent cure great, may result in denial or termination of compensation beyond the period of time that the injured worker would have been disabled had the worker submitted to medical or surgical treatment, but only after a hearing as to the reasonableness of such refusal.”
The Board determined that it was reasonable for Martinez to decline the surgery and, therefore, refused to deny benefits under this regulation. It looked to several significant factors, including the fact that there were several attendant risks, there was a question whether the surgery would result in a permanent cure, Martinez knew other people who suffered worse symptoms after this particular surgery, and Martinez’ other treatments were unsuccessful.
Excel timely appealed to this court.
“ ‘Our scope of review in a workers compensation case requires that we view the evidence in a light most favorable to the prevailing party and that we determine whether the [Board’s] findings are supported by substantial competent evidence.’ [Citation omitted.]” Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 870, 924 P.2d 1263, rev. denied 261 Kan. 1084 (1996). “The appellate court will affirm the Board’s ruling absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. [Citation omitted.]” Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).
Excel asserts that the standard of review is de novo. -When the evidence is undisputed, the question then becomes whether the Board correctly applied those facts to the law, which we review de novo. Lawson v. City of Kansas City, 22 Kan. App. 2d 507, 509, 918 P.2d 653 (1996). In this situation, however, the evidence is disputed because part of the testimony reveals that the surgery would probably produce a successful outcome while other testimony reveals that the surgery would not produce a permanent cure because only some of the symptoms may be relieved and the symptoms could return. As a result, the Board’s determination of whether Martinez’ decision was reasonable was a question of fact to which we apply the substantial competent evidence standard of review.
First, Excel argues that the Board erred in finding that Martinez’ refusal to undergo surgery was reasonable within the meaning of that term in K.A.R. 51-9-5. In support of its argument, Excel points to three factors: (1) that the risks of surgery were small, (2) that the prospects of success were high, and (3) that Martinez presented no sound reason to refuse the surgery.
“The rule that a workmen’s compensation award may be modified or cancelled, for refusal to submit to reasonable medical treatment, is a forfeiture provision. Where the issue is raised, the burden of proof is upon the employer. [Citations omitted.]” Evans v. Cook & Galloway Drilling Co., 191 Kan. 439, 444, 381 P.2d 341 (1963).
The evidence in this case does not support Excel’s contentions. It is important to note that the Board had before it expert testimony from three doctors who had experience with carpal tunnel patients and were knowledgeable about the results of carpal tunnel surgery. These doctors discussed the risks that were involved with this particular surgery, including the risk that some patients experience no relief and that a few patients experience worse symptoms. Although these experts testified that they expected the surgery to improve Martinez’ injuries, they determined that the amount of improvement was uncertain. In fact, Dr. C. Reiff Brown testified that only about 50% of patients experience a return of their normal strength.
Apart from these risks, there were risks attendant to the surgery itself. Although the Board noted that these risks were small, it considered Dr. Brown’s testimony which revealed that the surgeon could sever a blood vessel, the surgery could cause nerve damage in the arms and hands, and the patient could suffer a reaction to the anesthesia and an infection.
Martinez was aware of some of the risks and expressed concern that the surgery would not produce beneficial results. In particular, he testified that he knew people who had experienced worse symptoms after surgery than they had before the surgery. He was also concerned that his previous course of treatment was unsuccessful although he had been told otherwise by the doctor. When an operation is serious and the injured party is informed of the nature of the operation and is genuinely afraid, his or her refusal to undergo surgery will not defeat compensation. Sultan & Chera Corp. v. Fallas, 59 So. 2d 535, 537 (Fla. 1952). Because Martinez had witnessed negative results from this particular surgery and because his previous course of treatment had not been successful, it was reasonable that he would decline the surgery.
Excel also contends that the prospects of success were high because Dr. Villanueva testified that 80% of patients experience a good outcome from this surgeiy. K.A.R. 51-9-5, however, requires that there be a great probability of a permanent cure, not that the surgery produce some relief from the symptoms. Although Dr. Villanueva estimated that 80% of patients would have a good outcome from die surgery and would have a complete resolution of the problem, he could give no guarantee that Martinez would realize a permanent cure. In addition, Dr. Brown testified that only 75% of patients have experienced a good result from the surgeiy. Other testimony by the doctors indicated that the surgery would not produce a permanent cure because some of the patients would still experience carpal tunnel symptoms. In fact, Martinez’ symptoms would probably recur if he worked at a job similar to the one which caused his injuries.
Moreover, 80% is not a great chance of success within the meaning of K.A.R. 51-9-5. In Morgan v. Sholom Drilling Co., 199 Kan. 156, 160, 427 P.2d 448 (1967), the injured party refused to undergo back surgery when the chance of a successful surgery was not more than 90%, the surgery had major risks, and it would not effect a complete cure. In that case, the doctors were unable to agree on the extent of surgeiy required but all recommended that the injured party needed back surgeiy. Although there was a slight risk of death with this surgeiy, an expert doctor testified that this risk accompanied any major surgery with anesthesia. 199 Kan. at 157-58. Our Supreme Court upheld the trial court’s judgment finding that the injured party’s decision was reasonable. 199 Kan. at 161.
Here, Martinez’ 80% chance of a successful surgeiy was even less than that of the injured party in Morgan. Although the doctors testified that they had never lost a patient during this particular surgery, they testified to other harmful risks including the possibility that caipal tunnel symptoms would recur. Additionally, Dr. Villanueva’s impairment rating used by the ALJ estimated that Martinez would suffer some symptoms after the surgery. This evidence indicates that the chance of a permanent cure was not great within the meaning of K.A.R. 51-9-5. See also Sarantis v. Sheraton Corp., 69 Or. App. 575, 581-82, 688 P.2d 99 (1984) (Decision to not undergo surgery was reasonable when there was 75% chance of improvement and 25% chance of no improvement or worse result.).
Based on the evidence before the Board, we find that the Board correctly decided that the refusal to undergo surgery was reasonable. Specifically, the Board was presented with substantial competent evidence in the form of testimony by three expert doctors, as well as testimony by Martinez. The evidence revealed that this surgery involved significant risks, including the risk that Martinez would experience limited or no improvement. In addition, Martinez was justifiably concerned about undergoing a course of treatment that could possibly yield worse symptoms. Although there was testimony that the surgery had an 80% chance of a successful result, this percentage was not a great probability of a permanent cure under K.A.R. 51-9-5 after considering the risks. As a result, we find that there was substantial competent evidence to support the Board’s determination that Martinez’ decision to undergo surgery was reasonable. We affirm the Board’s decision not to deny benefits, based on K.A.R. 51-9-5.
Finally, Excel alleges that statements in the AMA Guides that a patient’s refusal to undergo surgery should not decrease the impairment rating are inapplicable to this case. He argues that the applicable law is K.A.R. 51-9-5 and not comments in the AMA Guides.
K.A.R. 51-9-5 and comments found in the AMA Guides apply to two different concepts. KA-R- 51-9-5 applies to termination of compensation benefits, while comments in the AMA Guides refer to adjustment of the impairment rating. The Board correctly noted that K.S.A. 44-510e specifically requires the impairment rating to be based on the AMA Guides. As a result, it was not error for the Board to consider these comments and conclude that Martinez’ impairment rating should not be based upon speculation about his results after a successful surgery.
Because the Board went on to find that Martinez’ refusal of surgery was reasonable under K.A.R. 51-9-5 and because we have affirmed that ruling, we find it unnecessary to address this argument any further.
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Greene, J.:
This is a property tax appeal wherein the Saline County Appraiser and Board of County Commissioners (County) appeal an order of the district court that modified in part an order of the State Board of Tax Appeals (BOTA) determining the values of several parcels of real estate and improvements owned by Richard and Sandra Jensen (Jensens). The County contends that the court (i) did not honor its limited standard of review, (ii) determined facts that were not supported by the record, and (iii) otherwise erred as a matter of law. We affirm in part, reverse in part, and remand with directions.
Factual and Procedural Overview
The BOTA actions subject to judicial review involve the valuations of real estate and improvements within three multifamily developments located in Saline County and commonly known as Southwind, Chalet, and Birch Manor (apparently renamed Oaktree but referred to herein as Birch Manor). The Jensens paid property taxes under protest for tax year 1999 pursuant to K.S.A. 2003 Supp. 79-2005, contending that the County’s valuations were excessive.
Southwind consists of 30 multifamily units built in 1958 on 14 acres formerly located on Schilling Air Force Base near Salina. The units were originally constructed as duplexes but were remodeled in 1987 as fourplexes of 2,200-2,300 square feet each, with five bedrooms, four baths, and central heat and air. Despite these multiple structures, the properly is considered a single parcel for property tax purposes, since it cannot be divided absent replatting. The property is rather unique in that there are no public improvements serving the property; the Jensens are responsible for maintenance and replacement of streets, sewers, fire hydrants, and streetlights. BOTA concluded that the value of this property for tax year 1999 was $2,540,510, relying primarily on the County’s aggregated sales comparison approach. The district court concluded that the aggregated sales comparison approach was “inappropriate” and that the value of this property was $1,940,000, relying exclusively on the Jensens’ income approach.
Chalet is a single apartment building containing 18 two-bedroom apartments constructed in 1978. This property does not have the unique aspects of Southwind. BOTA concluded that the value of this property for tax year 1999 was $475,010, relying exclusively on the County’s income approach. The district court concluded that this value was not supported by substantial competent evidence and adjusted certain components within the income approach, modifying the final value to $377,000.
Birch Manor is a three building 27-unit condominium complex, of which the Jensens own 23 units, and each unit is considered a separate parcel. The buildings were constructed during 1975 to 1977 and contain a total of 21,062 square feet of rentable space. The complex has been zoned for condominiums since 1980, but the Jensens rent each unit separately, contending there is no market for tírese properties as condos. BOTA concluded that the units should be valued as apartments, relied exclusively on the Jensens’ income approach to value the entire 23-unit package at $580,000, and then allocated this value to each unit. The district court affirmed BOTA’s value.
The County appeals the valuations determined for all three of these properties.
Standard of Review
Judicial review of orders of BOTA is governed by K.S.A. 77-621. For purposes of this appeal, application of this statute requires the appellate court to grant relief if: (i) the agency has erroneously interpreted or applied the law, K.S.A. 77-621(c)(4); (ii) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure, K.S.A. 77-621(c)(5); (iii) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, K.S.A. 77-621(c)(7); or (iv) the agency action is otherwise unreasonable, arbitrary, or capricious, K.S.A. 77-621(c)(8).
The County generally bears the burden of proof at BOTA in matters of residential and commercial property valuations.
“With regard to any matter properly submitted to the board relating to the determination of valuation of residential property or real property used for commercial and industrial purposes for taxation purposes, it shall be the duty of the county appraiser to initiate the production of evidence to demonstrate, by a preponderance of the evidence, the validity and correctness of such determination except that no such duty shall accrue to the county or district appraiser with regard to leased commercial and industrial property unless the property owner has furnished to the county or district appraiser a complete income and expense statement for the property for the three year's next preceding the year of appeal. No presumption shall exist in favor of the county appraiser with respect to the validity and correctness of such determination.” K.S.A. 2003 Supp. 79-2005(i).
Moreover, on appeal of BOTA’s decision, the party complaining bears the burden of demonstrating that the agency erred. K.S.A. 77-621(a)(l). When the district court has reviewed an agency decision prior to this court’s review, we focus on the agency action and apply tire same standards of judicial review. Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).
When construing tax statutes, imposition provisions are considered penal in nature and must be construed strictly in favor of the taxpayer. In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994). Interpretation of any statute is a question of law over which this court has unlimited review. Matjisich v. Kansas Dept. of Human Resources, 271 Kan. 246, 250-51, 21 P.3d 985 (2001). Although BOTA’s decisions in its area of expertise are given deference, this court will take corrective steps if BOTA’s actions are erroneous as a matter of law. In re Tax Appeal of Intercards, Inc., 270 Kan. 346, 349, 14 P.3d 1111 (2000).
Did BOTA Err in its Valuation of Southwind?
The County’s sales comparison approach to valuing Southwind was based on recent individual sales of purportedly comparable units, specifically one triplex and two fourplexes. Adjustments were made to the comparable sales for differences with the subject fourplexes in age, construction type, quality, and other factors. After arriving at an adjusted comparable market value for each fourplex, an aggregated value was determined by simply “adding up” the individual values to arrive at the value of the entire parcel of 30 units.
BOTA adopted the result of this approach, concluding:
“The Board finds that tire County’s recommended value is the best estimate of the fair market value of the subject property for tax year 1999. The Board finds that the properties utilized by the County in its sales comparison analysis are comparable to the subject property. The Board further finds that the County’s value is supported by its cost approach and by income approach calculations. The County’s income calculations utilize replacement reserves based on actual replacement estimates allocated over tire actual life expectancy of the item.”
After a hearing on reconsideration, BOTA refused to modify its valuation decision but did not express further reliance on the alternate approaches, stating that “the County’s recommended value, using the sales comparison approach, is the best estimate of the fair market value of the subject property.”
The district court took issue with several aspects of BOTA’s value determination, concluding inter alia:
“No theory under the USPAP [Uniform Standards of Professional Appraisal Practice] or any other appraisal theory or methodology would support a separate value for each unit and adding together the value of each of the individual units in the Southwind residential complex as opposed to viewing them as one economic unit based on the resulting income stream.
“The County used a comparable sales approach to valuing Southwind without any supporting analysis.
“The income approach to valuation is the appropriate method under USPAP due to how the properties are bought and sold and the typical purchaser would be an investor.
“The only income approach for the Board of Tax Appeals to consider was that presented by the property owner.
“The evidence supports the value of [$1,940,000].”
On appeal the County argues that the district court failed to give deference to BOTA’s determinations of fact, specifically BOTA’s findings as to appropriate reserves to be used in the income approach and BOTA’s finding that the County had conducted an income approach.
We begin our analysis by determining whether BOTA erred as a matter of law in adopting the County’s sales comparison approach to value. K.S.A. 79-503a requires that the appraisal process conform to generally accepted appraisal procedures. K.S.A. 79-505 and K.S.A. 79-506 require that appraisal practice be governed by uniform standards, and until such time as specific standards are adopted for Kansas, the Uniform Standards of Professional Appraisal Practice (USPAP), issued by the Appraisal Standards Board, apply. These standards are embodied in the statutory scheme of valuation, and a failure by BOTA to adhere to them may constitute a deviation from a prescribed procedure or an error of law. See Board of Ness County Comm’rs v. Bankoff Oil Co., 265 Kan. 525, 542, 960 P.2d 1279 (1998).
We conclude, as did the district court, that the aggregated sales comparison approach proposed by the County and adopted by BOTA was violative of the USPAP under these circumstances. Appraisal Standards Rule 1-4 of the USPAP, applicable to the development of real estate appraisals, states inter alia:
“(e) An appraiser must analyze the effect on value, if any, of the assemblage of the various estates or component parts of a property and refrain from valuing the whole solely by adding together the individual values of the various estates or component parts.
“Comment: Although the value of the whole may be equal to the sum of the separate estates or parts, it also may be greater than or less than the sum of such estates or parts. Therefore, the value of the whole must be tested by reference to appropriate data and supported by an appropriate analysis of such data.” (Emphasis added.) Appraisal Standards Board, Unform Standards of Professional Appraisal Practice, Standards Rule l-4(e), p. 19 (2002).
A similar prohibition is found in Appraisal Standards Rule 6-5(d), p. 50-51 (2002), (applicable to calibrated mass appraisal by tax authorities); although not directly applicable here, we note this prohibition only to further support our conclusion that the practice in question is simply not permissible in any appraisal context. Although both of the Appraisal Standards Rules referenced and relied upon are subject to the USPAP’s Departure Rule, no departure is permitted where the rule is both applicable and necessary to tire circumstances. USPAP, Departure Rule, p. 11 (2002). The record does not address or support a departure.
The County argues that even if the County’s sales comparison approach was not reliable, BOTA also referenced and relied upon the County’s alternate cost and income approaches. We acknowledge that BOTA’s original order indicates some reliance on these alternate approaches, but we note from BOTA’s order on reconsideration that it apparently withdrew any such reliance, conceding that the County had “not considered” tire income approach and characterizing the belated County income indicator as “impromptu.” Most importantly, BOTA’s conclusion upon reconsideration clearly and unequivocally relies exclusively on the County’s sales comparison approach as the “best estimate” of fair market value. We conclude that BOTA’s reliance on an approach to value that is expressly prohibited by the USPAP was a departure from prescribed procedure and was erroneous as a matter of law. On this issue, we reverse BOTA and affirm the district court.
Despite our affirmance of the district court’s conclusion on the sales comparison approach to value, we are unable to affirm the district court’s value conclusion. Upon rejecting the sales comparison approach, the district court substituted the Jensens’ income approach. The problem is that BOTA also considered this approach and specifically found as a matter of fact that there were flaws in the Jensens’ income approach, specifically an overestimation of tire repair and replacement reserves for quasi—public services. Although tire district court found that such “reserves” were “appropriate,” we conclude that there was adequate evidence in the record to support BOTA’s finding that the amount may have been “overestimated.” Unfortunately, we are unable to determine an appropriate reserve since it also appears that BOTA may not have considered reserves for anything other than streets. Accordingly, we must remand this issue to the district court with directions to remand to BOTA to determine the fair market value of Southwind as a single parcel, with due consideration of its unique characteristics, without reference or reliance on the flawed aggregated sales comparison approach, with due consideration if not principal reliance on the income approach pursuant to K.S.A. 79-503a, and with careful adherence to generally accepted appraisal practice including the USPAP standards in redetermining repair and replacement reserves to be utilized within the income approach to value.
Did BOTA Err in Valuing Chalet?
The County’s income approach to valuing Chalet employed a traditional income approach to value; a potential income stream of $86,400 (less 5% vacancy and collection loss), less operating expenses of $27,177 ($1.25/square foot), was capitalized at 11.6% to arrive at an estimated value of $473,300. After including $1,710 for additional undeveloped land, the County proposed a total value for the parcel of $475,010. The Jensens offered no competing appraisal of this parcel, but criticized the County’s approach, specifically the components of expense allowance and capitalization rate. The Jensen’s argued that when comparable expenses and an accurate capitalization rate were employed in the County’s model, the value was reduced to $377,807. BOTA rejected the Jensens’ criticisms and adopted the County’s income valuation as the fair market value of the parcel for tax year 1999. On reconsideration, BOTA was not persuaded to revise or modify its valuation determination.
The district court found that BOTA’s valuation was not supported by substantial competent evidence and that the County did not sustain its burden of proof, concluding inter alia-.
“The expense per square foot for Chalet at $1.25 is not sufficient. The appropriate amount should be $1.83 per square foot.
“The cap rate used for Chalet differs from those used in comparison without any information in the record to support such difference.
“The properties of Chalet and those compared to it are similar and should be assigned a similar cap rate and expense rate per square foot.
“Using the appropriate cap rate and expense per square foot, the value to be placed on Chalet Apartments is [$377,000].”
On appeal, the County argues that BOTA’s value was supported by adequate record evidence and the district court’s valuation was not and, in any event, that the court did not give to BOTA the deference required by law.
Our analysis for this property is limited to determining whether BOTA’s valuation was based on determinations of fact drat were supported by evidence that was substantial when viewed in light of die record as a whole, K.S.A. 77-62-l(c)(7), and whether the resulting valuation was otherwise arbitrary, capricious, or unreasonable, K.S.A. 77-621(c)(8). Substantial evidence is evidence possessing “both relevance and substance which furnishes a substantial basis of fact from which the issues can reasonably be resolved.” U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). Moreover, although we cannot assess credibility of the witnesses or reweigh the evidence, we must bear in mind that the County had the burden of proof before BOTA and that the County was entitled to no presumption of correctness of its initial appraisal of the property. K.S.A. 2003 Supp 79-2005(i).
Our review of the record reveals that the County called only a single witness to support its initial appraisal of the property. The witness, a deputy county appraiser, testified: (i) he was completely unfamiliar with the property; (ii) he did not perform the County’s appraisal; (iii) he had not recently reviewed the work of the commercial appraiser who does apartment appraisals; (iv) he was unable to say whether the County had ever reviewed the Jensens’ actual operating expenses; (v) he was unable to compare the $1.25 per square foot for expenses with those of comparable properties; (vi) he had “no idea” whether the $1.25 per square foot for expenses was representative or reasonable for such properties; (vii) he confirmed that tire subject property was comparable to properties where the County had utilized $1.83 per square foot for expenses and 11.9% to 12.81% for a capitalization rate; and (viii) he appeared to testify only because his boss told him to be there, even though the County employee who performed the appraisal remained in the County’s employ.
In contrast, Richard Jensen and a professional appraiser testified for the Jensens and established: (i) The County had assigned 50% less for expenses per square foot to Chalet and used the lowest capitalization rate for any apartment properties in Saline County; (ii) actual expenses for Chalet were $1.70 per square foot; (iii) when the average expense allowance ($1.83 per square foot) and lowest capitalization rate (11.9%) employed by the County on four comparable apartment complexes was substituted in the County’s income model for Chalet, a valuation of $377,000 was achieved; (iv) the appraiser testified that $1.25 per square foot for expenses was “ridiculous” for such properties and that $1.83 was “on the low side,” especially when compared to 11 comparables that reflected expenses of $2.16 to $3.75 per square foot.
We conclude that the district court did not err in determining that BOTA’s valuation was not supported by evidence that was substantial when viewed in light of the record as a whole. We further conclude that BOTA failed to follow prescribed procedure in disregard of K.S.A. 2003 Supp. 79-2005(i), which clearly places the burden of proof on the County and prohibits any presumption of validity and correctness for the County’s appraisal. The County’s initial appraisal standing alone cannot be sustained absent supporting evidence of its validity and correctness, and such evidence should be provided by someone with appraisal experience who is familiar with the property, the appraisal, and the local market for such properties. The deputy county appraiser was simply not qualified to demonstrate the validity and correctness of the County’s valuation, and BOTA departed from a prescribed procedure in adopting the County’s valuation absent such demonstration. We reverse BOTA’s valuation for this reason and affirm the district court’s determination of value for Chalet for tax year 1999.
Did BOTA Err in Valuing Birch Manor?
BOTA adopted the Jensens’ approach to the valuation of Birch Manor, which considered the highest and best use for the property as apartments and then employed a traditional income approach to value, arriving at total value of $580,000 for tax year 1999. The County contended that this was inappropriate, since the property was zoned for condominiums and apartment use was technically prohibited within that zoning classification. Accordingly, the County used a sales comparison approach for 19 of the units, a cost approach for the remaining 4 units, and then summed the values to arrive at total value of $1,137,330.
In rejecting the County’s approach, BOTA noted that the cost approach is particularly inappropriate because there is no rational way to allocate the cost of each unit’s share of common structural features within a single building. In adopting the Jensens’ income approach, BOTA found that it was “only a matter of semantics whether the subject property is an apartment complex or condominiums for lease, and further that the value of the subject property should not vary greatly depending on the connotation.”
On reconsideration, BOTA reaffirmed these findings, stating:
“The Board finds that, regardless of whether the subject properties are considered to be condominiums or apartments, the Taxpayer’s value is the best estimate of their fair market values. The Board finds that the Taxpayer is legally permitted to rent out the subject properties, and the income approach is an appropriate method to value the units. The Board finds that the fact are not analogous to Hixon v. Lorio [Enterprises, Inc.] because the Taxpayer is not advocating the application of a discount, but merely used a different generally accepted appraisal method than the County selected. 257 Kan. 377 (1995).”
The district court affirmed BOTA’s valuation of Birch Manor, concluding inter alia:
“The highest and best use of the property is as an apartment complex and the income approach provides the highest and best use.
“The income approach accurately estimates the market income, vacancy and collection rate, expenses, and capitalization rate appropriate for the subject properties.
“The use of the property by taxpayer is not an illegal use.
“The taxpayer is allowed to rent the units in the same manner as an apartment.
“The Board of Tax Appeals previously determined that the [Birch Manor] complex shall be valued as an apartment complex.
“The income approach provides the best estimate of fair market value.”
On appeal, the County argues that BOTA and the district court erred as a matter of law in disregarding the zoning prohibition for the property to be used as apartments and that the highest and best use cannot possibly be an illegal use. The County also claims that allocating an income approach to various units is essentially recognizing a developer s discount and is violative of the constitutional uniform and equal mandate, citing Hixon v. Lario Enterprises, Inc., 19 Kan. App. 2d 643, 648-49, 875 P.2d 297 (1994). The Kansas Supreme Court affirmed but modified the Court of Appeals opinion in Hixon v. Lario Enterprises, Inc., 251 Kan. 377, 892 P.2d 507 (1995).
Our analysis begins with the dispute whether apartment rental is a prohibited or illegal use for Birch Manor. Although the County’s argument is largely dependent on this assertion, we find little if any support for it in the record or the appellate briefs. In fact, the only record support is the testimony of the same deputy county appraiser who testified with regard to Chalet. With regard to Birch Manor, he testified that it was “his understanding” that apartments were a prohibitive use for these properties, but he admitted in cross-examination that he was “not making any decisions on legal or illegal” and that “there’s nothing illegal about renting out a condominium unit.” Richard Jensen testified that the properties had been operated as apartments since at least 1988, were “grandfathered” permissibly as apartments, and that he intended to change the zoning to eliminate this problem in the future. The Jensens’ appraiser, Bemie Shaner, testified that use as apartments was permissible for the properties, referencing the Salina zoning ordinance as follows:
“It’s not zoned for apartments. It’s zoned for condominiums, but under the— under the current zoning—under the PDD [Planned Development District], one of the allowed uses is anything under R-2. And under R-2 that statute says that any, and I’m paraphrasing, ‘any zoning prior to 1989 conditional uses multi-family that existed prior to 1989 provided that any such use that existed on March 10th of 1989, shall not be deemed to be a non-conforming use but shall without further action be deemed allowable conforming use.’ ”
Neither the record nor the appellate briefs contain, cite, or quote the precise Salina zoning ordinances in question. Absent any further support for the County’s assertion of illegality, the County has failed to sustain its burden to show that BOTA’s actions were invalid. K.S.A. 77-621(a)(l). We are unable to conclude that BOTA or the district court erred in finding apartment use permissible for these properties.
As a result of our conclusion as to permissible use, the County’s argument that the Jensens’ valuations violate the uniform and equal mandate also fails. The argument assumes that the only legal use for the properties is as condominiums and tiren compares the unit valuations determined when used as apartments to purported comparable properties sold as condominiums. Since we have rejected the fundamental premise for this argument, the assertion that condominium sales are comparable or even relevant, we decline to address the argument further. We conclude that BOTA and the district court are affirmed as to the $580,000 valuation of Birch Manor for tax year 1999.
Conclusion
We affirm the district court’s conclusions (i) reversing BOTA’s adoption of the aggregated sales comparison approach on South-wind, (ii) reversing BOTA’s valuation of Chalet and adopting the Jensens’ modifications to the income approach, and (iii) affirming BOTA’s valuation of Birch Manor. We reverse the district court’s conclusion adopting the Jensens’ income approach for Southwind, and we remand to the district court with directions to remand to BOTA for further proceedings not inconsistent with this opinion.
Affirmed in part, reversed in part, and remanded with directions. | [
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Hill, J.:
This appeal is from the trial court’s granting of Linda Smith’s motion requiring the Health Care Stabilization Fund (Fund), see K.S.A. 40-3401 et seq., within the same fiscal year to make a second installment payment of $300,000 on an outstanding medical malpractice judgment. We reverse.
The issue before us is whether the trial court erred when it determined that K.S.A. 40-3403(d) requires the Fund to pay a second installment of $300,000 on an outstanding judgment after the physician’s appeal was denied.
The facts are not disputed. Smith sued Rodolfo O. Almonte, M.D., claiming that Almonte negligently performed a medical procedure and that she suffered injuries due to his negligence. Smith was awarded $899,566.50 in damages at her trial. That matter was appealed, heard, and affirmed by this court in Smith v. Almonte, No. 87,404, unpublished opinion filed July 12, 2002. On June 20, 2002, the Fund made its first $300,000 installment payment. On September 4, 2002, Smith filed a motion in district court requesting the Fund make a second installment payment of $300,000. Almonte responded on September 20, 2002, arguing that the Fund was not required under the law to make an additional payment within the same fiscal year. The trial court granted Smith’s motion, ordering the Fund to malee a second $300,000 payment and not wait until the next fiscal year. Almonte filed this appeal on behalf of the Fund.
The journal entiy of judgment establishing Almonte’s liability was originally filed on May 17,2001. Pending the appeal, the Fund filed a supersedeas bond that was approved on January 3, 2002. The Fund was one of Almonte’s insurers responsible for paying the judgment. Almonte argues that under K.S.A. 40-3403(d), the Fund is only required to make one installment of $300,000 in the fiscal year following the denial of his appeal. This is a case of first impression, and we must interpret the statute.
Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Williamson states:
“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of tire 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.]” 275 Kan. at 305.
K.S.A. 40-3403(d) provides:
“All amounts for which the fund is liable pursuant to subsection (c) shall be paid promptly and in full except that, if the amount for which the fund is liable is $300,000 or more, it shall be paid, by installment payments of $300,000 or 10% of the amount of the judgment including interest thereon, whichever is greater, per fiscal year, the first installment to be paid within 60 days after the fund becomes hable and each subsequent installment to be paid annually on the same date of the year the first installment was paid, until the claim has been paid in full. Any attorney fees payable from such installment shah be similarly prorated.”
The Fund argues that it did not become liable to pay the judgment until 60 days after our Court of Appeals filed its decision on July 12, 2002. Smith, on the other hand, claims that the Fund became liable as soon as the journal entry of judgment was filed, and the first installment payment should have been due on July 17, 2001, which was 60 days after the journal entry was filed.
K.S.A. 40-3422 indicates that the judgment of liability is not stayed by the filing of Almonte’s appeal. The statute states “the proceedings shall be stayed on appeal by the filing of a supersedeas bond.” A stay of proceedings simply means that the proceedings will not move forward. It does not mean the judgment of liability is altered or suspended. In this case, the issue of liability was determined before the proceedings were stayed. By filing a supersedeas bond in this case, the Fund simply secured a stay of tire proceedings.
A supersedeas is a suspension of the power of a court to issue an execution on the judgment or decree from which an appeal has been taken. If a writ of execution has issued, supersedeas is a prohibition against execution of the writ. Supersedeas preserves the status quo of the case. It does not, however, set aside or annul the trial court’s judgment. 5 Am. Jur. 2d, Appellate Review § 436, p. 178. See City of Plant City v. Mann, 400 So. 2d 952, 953-54 (Fla. 1981); Western United Dairy Co., v. Miller, 40 Ill. App. 2d 403, 411-12, 189 N.E.2d 786 (1963).
An examination of the appellate process is important here. The Court of Appeals has jurisdiction to “correct, modify, vacate or reverse any act, order or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse” under K.S.A. 60-2101(a). In this case, the judgment of liability was imposed by the trial court after the jury’s verdict and that decision was reviewed and affirmed by the Court of Appeals. The Court of Appeals did not enter some independent judgment. Therefore, the judgment finding the Fund liable was upheld and unmodified when the mandate from the appellate court was filed with the trial court.
Therefore, we believe, the Fund was not required to make its first payment until 60 days after the filing of the mandate from the appellate court, only because the Fund posted a supersedeas bond. If there had been no supersedeas bond filed by the Fund, we would have agreed with the trial court. However, the Fund filed a supersedeas bond that was approved by Smith, even suggested by Smith. By so doing, any action to seek the first installment 60 days after the filing of the journal entry was stayed. Had the Fund not posted a supersedeas bond in this case, Smith could have sought execution or garnishment to enforce her judgment against the Fund pending the appeal.
Smith claims that the Fund did not timely file the supersedeas bond, but we find nothing in the record that indicates Smith made this argument to the trial court. Issues not raised before the trial court cannot be raised on appeal. Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
The Fund is an additional insurance fund (created by statute) for health care providers. The intent of the legislature is clear. The judgments the Fund covers are similar to the judgments covered by private insurance carriers. The legislature provided the Fund with a similar procedure to stay proceedings on appeal. A private insurer can seek a stay of proceedings after posting a supersedeas bond under K.S.A. 2002 Supp. 60-262(d). The Fund can also seek a stay by posting a supersedeas bond under K.S.A. 40-3422.
We believe that the legislature meant what it statutorily stated. Judgments should be promptly paid by the Fund. If the Fund wishes to stay execution on such judgments pending an appeal, it should file a supersedeas bond. Since it did so in this case, the judgment of the trial court finding the Fund responsible for an additional payment within the same fiscal year was erroneous.
Reversed. | [
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PlERRON, J.:
David Cameron appeals the district court’s decision to terminate a pretrial diversion and to reinstate criminal prosecution. The issue on appeal is whether the termination order is an appealable order and jurisdiction is proper in this court.
After the State successfully appealed the district court’s dismissal of multiple sexual charges against Cameron, he entered a pretrial diversion agreement and prosecution of the case was stayed. Pertinent conditions of Cameron’s diversion included payment of a diversion fee, a reparations fee, a fine, restitution, and attorney fees. The conditions also required Cameron to perform 40 hours of community service. The State sought revocation of the diversion agreement after Cameron failed to pay monies owed and failed to perform community service work. After hearing evidence, the district court revoked the diversion agreement and reinstated prosecution of the charges against Cameron. Cameron appeals the revocation of the diversion agreement. This court issued a show cause order for parties to address whether the appeal should be dismissed for lack of jurisdiction.
“The right to appeal in a criminal case is strictly statutory and absent statutory authority there is no right to appeal.” State v. Freeman, 236 Kan. 274, 276, 689 P.2d 885 (1984). This statutory authority should not be enlarged or expanded by construction. State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993). When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. City of Overland Park v. Travis, 253 Kan. 149, 153, 853 P.2d 47 (1993). Whether jurisdiction exists is a question of law over which the appellate court’s scope of review is unlimited. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002).
Cameron argues his situation should be viewed as akin to the procedural aspects of double jeopardy. He states that the purpose of the prohibition against double jeopardy is to protect a person from “having to go through a trial when the trial should not have occurred to begin with.” He cites Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977), where the Court held that when a district court has denied a defendant’s claim of right not to stand trial on double jeopardy grounds, the United States Supreme Court has consistently held the court’s decision appeal-able, for such a right cannot be effectively vindicated after the trial has occurred. He contends that if his position on the poverty and community service limitation issues are correct, then he is forced to endure a trial prior to appellate court review of the legitimacy of the termination of the diversion agreement, and the purpose of the agreement, like double jeopardy, has been thwarted.
The inherent problem with Cameron’s theory of double jeopardy is that he has yet to be placed in jeopardy for his crimes. Double jeopardy protects against being prosecuted twice for the same offense, not being prosecuted initially for the crime. See State v. Beerbower, 262 Kan. 248, Syl. ¶ 4, 936 P.2d 248 (1997) (defendant is not in jeopardy in a case tried to the court until tire court begins to hear evidence); In re Habeas Corpus Petition of Minnis, 29 Kan. App. 2d 644, Syl. ¶ 2, 29 P.3d 462 (2001) (when trial is by jury, jeopardy attaches when the jury has been impaneled and sworn).
The closest case addressing the current jurisdiction issue is State v. McDaniels, 237 Kan. 767, 703 P.2d 789 (1985), where the State appealed the district court’s decision to not terminate a pretrial diversion agreement. The State argued the district court’s decision was essentially an order “suppressing evidence” within the appealable avenues granted in K.S.A. 22-3603. 237 Kan. at 770. The court denied the State’s argument and held the appeal was an impermissible interlocutory appeal.
“The primary reason for allowing the State to take interlocutory appeals from suppression orders which substantially impair its ability to prosecute the case is to avoid later problems with double jeopardy. In this case, even though the defendant may eventually have his charges dismissed with prejudice, jeopardy has not attached. Therefore, the State may appeal after the dismissal, and if the appeal is sustained, the defendant may be tried. Accordingly, the potential for a double jeopardy problem which exists in other cases where interlocutory appeals are permitted does not exist in this case.
“Also, the possibility still exists that the defendant may violate his diversion agreement and the trial court, after conducting a hearing, may decide to revoke the diversion and proceed to trial.
“We find in this case evidence was neither suppressed nor excluded within the meaning of the statute. Moreover, there is still a chance the defendant may be brought to trial. If he is, the State’s ability to prosecute the case will not be impaired in any way. Accordingly, we hold the trial court’s order was not appeal-able under K.S.A. 22-3603.” 237 Kan. at 771.
K.S.A. 2002 Supp. 22-3602(a) governs appealable orders by a defendant in a criminal case and provides, in part:
“Except as otherwise provided, an appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.” (Emphasis added.)
In addressing what is appealable under 22-3602(a), the court in State v. Rios, 19 Kan. App. 2d 350, 352, 869 P.2d 755 (1994), stated: “For purposes of K.S.A. 22-3602(a), ‘judgment’ requires both a conviction and a sentence.” See also State v. Donahue, 25 Kan. App. 2d 480, 483, 967 P.2d 335, rev. denied 266 Kan. 1111 (1998) (an order disquaHfying counsel from joint representation of several criminal defendants is not an appealable order). The district court’s decision to revoke Cameron’s diversion agreement is a not an appealable order within the interpretation of K.S.A. 2002 Supp. 22-3602. As was the case for the State in McDaniels, Cameron cannot fit the revocation order into any category of an appealable order in K.S.A. 2002 Supp. 22-3602(a). We arrive at this conclusion based on the absence of any express statutory authority allowing a criminal defendant to take an interlocutory appeal, the general rule stated above that a judgment does not exist in a criminal case until conviction and sentencing, and a related assumption that a criminal defendant has no right to an interlocutory appeal because he or she can address any intermediate order of the court when appeal of the conviction is ultimately taken.
Without jurisdiction over an appealable order, we will not address any of the other issues concerning the validity of tire revocation.
Appeal dismissed. | [
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Rulon, C.J.:
Plaintiff True Heart Corporation appeals the district court’s order to quash its request for a nonwage garnishment against the defendant, River City Auto Sales, Inc., and its surety, Old Republic Surety Co. The plaintiff contends the district court improperly denied recovery under the bond and that the district court committed error in refusing to award attorney fees. We affirm.
The facts of this case are essentially undisputed. In November 1995, the plaintiff and the defendant entered a business relationship in which the plaintiff would purchase used automobiles and turn them over to the defendant. The defendant would then repair, refurbish, and restore the vehicles and sell them on its lot. The net proceeds would be divided between the plaintiff and the defendant pursuant to the agreement.
In November 1997, the plaintiff filed a suit for breach of contract, alleging that the defendant had failed to properly remit payment for the sale of vehicles and owed the plaintiff $27,000. After a trial, the district court found the defendant had breached its agreement for payment of the proceeds of the vehicle sales and entered judgment in tire amount of $19,905.
On February 13, 2002, the Director of Vehicles issued a letter decision, finding that the defendant had committed a violation of the Licensure of Vehicle Sales and Manufacture Act (Act), K.S.A. 8-2401 et seq., which entitled the plaintiff to payment of the vehicle bond provided under K.S.A. 8-2404(i). The defendant’s surety, Old Republic Surety, filed a letter requesting a reconsideration of the Director’s disposition of the bond, which the Director refused.
Thereafter, the plaintiff sought enforcement of the bond payment through a non-wage garnishment action against the surety. In response, the surety moved to quash the garnishment action.
After a hearing, the district court granted the surety’s motion to quash, finding that a breach of contract did not constitute a violation of the Act. As a result, the district court determined that the plaintiff was not entitled to recover the bond proceeds under K.S.A. 8-2404(i).
The Alleged Violation
This case primarily involves the interpretation of K.S.A. 8-2404(i). Interpretation of a statute is a question of law over which an appellate court has unlimited review. The court’s primary role in interpreting a statute is to effect the legislature’s intent. If tire language of a statute is plain and unambiguous, the court must give effect to the expressed intent rather than impose the court’s determination of what the law should be. Where a statute is ambiguous, however, tire court may consider tire historical background of the legislation, the circumstances prompting its passage, the purpose to be accomplished, and tire ultimate effect of the constructions presented by the parties. See Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 124-25, 992 P.2d 800 (1999).
In pertinent part, K.S.A. 8-2404(i) provides:
“Every applicant or licensee who is or applies to be a used vehicle dealer or a new vehicle dealer shall furnish and maintain a bond in such form, amount and with such sureties as the director approves, conditioned upon the applicant or licensee complying with the provisions of the statutes applicable to the licensee and as indemnity for any loss sustained by a retail or wholesale buyer or seller of a vehicle by reason of any act by the licensee in violation of any act which con- statutes grounds for suspension or revocation of the license. . . . Upon determination by the director that a judgment from a Kansas court of competent jurisdiction is a final judgment and that the judgment resulted from an act in violation of this act or would constitute grounds for suspension, revocation, refusal to renew a license or administrative fine pursuant to K.S.A. 8-2411, and amendments thereto, the proceeds of the bond on deposit or in lieu of bond provided by subsection (j), shall be paid. The determination by the director under this subsection is hereby specifically exempted from the Kansas administrative procedure act (K.S.A. 77-501 through 77-549, and amendments thereto,) and the act for judicial review and civil enforcement of agency actions (K.S.A. 77-601 through 77-627, and amendments thereto). Any proceeding to enforce payment against a surety following a determination by the director shall be prosecuted by the judgment creditor named in the final judgment sought to be enforced. Upon a finding by the court in such enforcement proceeding that a surety has wrongfully failed or refused to pay, the court shall award reasonable attorney fees to the judgment creditor.”
As a preliminary matter, the plaintiff contends the district court committed reversible error by reviewing the decision of the Director of Vehicles that the defendant had violated the Licensure Act.
In support of the plaintiffs claim, K.S.A. 8-2404(i) provides that the procedure for obtaining payment of the bond is initiated by the Director s determination that the judgment entered against the licensee, in this case the defendant, was the result of a violation of the Act; in other words, the licensee’s conduct which provided the basis for a civil judgment provided grounds for suspension, revocation of a license, refusal to renew a license, or the imposition of an administrative fine under the Act.
K.S.A. 8-2404(i) further provides that payment of the bond proceeds is due upon the Director’s determination and this determination is exempt from review under the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., or the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.
Accordingly, the plaintiff argues that the Director is the final authority in determining payment of the bond and that the statute provides no procedure by which a court can review the Director’s determination. In essence, the plaintiff contends that because the decision is exempt from review under the KAPA or the KJRA, the Director s determination is not reviewable.
However, the Director s determination is only the first step of the process. That determination creates the surety’s obligation to pay for the defendant’s malfeasance, but the statute clearly provides protection for the surety in the form of judicial oversight. If a surety refuses to pay the bond after the Director has determined that payment is due, the aggrieved party’s recourse is a suit to enforce the judgment in his or her own name. K.S.A. 8~2404(i). The district court must award attorney fees to the aggrieved party if it determines that the surety wrongfully failed or refused to pay. K.S.A. 8-2404(i).
Implicit in the statutory award of attorney fees is the logical corollary that if the district court finds that the surety properly refused payment, attorney fees are not warranted. A determination that a surety properly refused payment necessarily requires judicial review of the Director’s determination that payment by the surety is required under the Act.
This court should construe statutory provisions in harmony whenever possible. See CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1293, 38 P.3d 666 (2002). Clearly, by exempting the Director’s determination from the KAPA and the KJRA, the legislature intended to permit an aggrieved party under the Act to present a claim for immediate payment upon the Director’s determination that payment was due without being required to wait while the surety exhausted its administrative appeals before entering the judicial system. However, just as clearly, the legislature did not intend to subject sureties to possible arbitrary and capricious decisions of the Director without a means of legal recourse. Rather, the legislature chose to exempt the Director’s decision from administrative review so that an aggrieved party could immediately seek judicial enforcement of his or her claim against the surety.
This interpretation is consistent with due process concerns, as well as with one of the primaiy goals of the Act as stated in Harford Cas. Ins., 268 Kan. at 128: “[T]he primaiy focus of the Act appears to be the protection of the consumers who purchased vehicles from dealers.” See K.S.A. 8-2402. A consumer who has been aggrieved by the unfair practices of a vehicle dealer likely does not have the financial wherewithal to subsidize a protracted litigation to recover payment under the Act after previously litigating his or her rights to payment in another legal proceeding.
Consequently, nothing in the statute prohibits a district court from reviewing the Director’s decision that the previous judgment had been caused by the licensee’s violation of the Act for purposes of determining the surety’s obligation to pay under the bond agreement.
The district court found the original cause of action was based exclusively upon a claim for breach of contract and the judgment did not result from a violation of the Act. Where, as here, the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, an appellate court is not obligated to give the district court’s findings deference but possesses unlimited review to establish a legal conclusion from the facts presented. See Heiman v. Parrish, 262 Kan. 926, 927, 942 P.2d 631 (1997).
The original determination of the Director of Vehicle’s office concerning the defendant’s violation did not cite to a specific statute, regulation, rule, or order that had been violated. In responding to the defendant’s request for reconsideration, the Director’s office responded:
“The information supplied to our Department reflects that the Defendant, River City Auto Sales sold vehicles without remitting the proceeds as agreed to by the parties. It further shows that a court of competent jurisdiction rendered decision in favor of the plaintiff, True Heart Corporation. The judgment creditor, True Heart Corporation conducted business with the dealer, and as a result suffered a loss. This loss is directly related to the dealer selling vehicles in violation of an agreement to remit and divide the proceeds with True Heart Corporation. Therefore, the original determination stands.”
In Hartford Cas. Ins., our Supreme Court reviewed the Director’s determination that Daniel E. Sanchez, d/b/a Midwest Motor Sport, had violated the Act by fraudulently failing to pay Credit Union 1 under the floor plan financing agreement. The Hartford court noted the Director had not indicated the provision upon which it had based the finding of a violation of the Act, yet the Hartford court affirmed the district court’s decision that Sanchez had violated K.S.A. 1998 Supp. 8-2410(a)(12) and additionally determined that Sanchez had violated 8-2410(a)(8). 268 Kan. at 126.
The surety/garnishee in this case argues that Harford Cas. Ins. is inapplicable because there is no evidence of fraud in this case. However, our Supreme Court identified two violations of the Act enumerated in K.S.A. 8-2410(a), only one of which involved fraud. See 268 Kan. at 126. K.S.A. 8-2410(a)(12) only requires a finding that the dealer “knowingly violat[ed] any law relating to the sale, distribution or financing of vehicles.” Finding a violation under this subsection does not require evidence that the dealer had engaged in fraud.
Just as Sanchez’ breach of the financing agreement with Credit Union 1 constituted a violation of the Act under K.S.A. 8-2410(a)(12), the breach of the agreement in this case, wherein the defendant would remit a portion of the proceeds from the sale of a vehicle to the plaintiff, could validly support the Director’s determination that the defendant had violated the Act.
Consequently, the district court’s finding that the judgment proceeding from the defendant’s breach of contract was not the result of a violation of one of the enumerated provisions within K.S.A. 8-2410(a) is erroneous, based upon the reasoning of our Supreme Court in Harford Cas. Ins.
Protected Class
As an alternative basis for affirming the district court’s decision, the surety contends the plaintiff is not a party the Act is designed to protect. The surety contends that statutory amendments to K.S.A. 8-2404(i) in 2001 effectively eliminated the plaintiff s ability to seek compensation from the bond required by statute.
The support for this argument lies within the 2001 amendments to K.S.A. 8-2404(i). In 1999, our Supreme Court decided Harford Cas. Ins., which interpreted “any person”, see K.S.A. 8-2401(u), within the meaning of K.S.A. 1998 Supp. 8-2404(i) to include companies which financed automobile retail dealerships. 268 Kan. at 126-27. This interpretation enabled creditors of dealerships which had committed some violation of the Act, such as a breach of the financing agreement, to enforce payment of a judgment from the bond secured by the dealership’s surety.
However in the 2001 legislative session, Jeff Bottenberg, of Western Surety Company, urged the House Insurance Committee to introduce an amendment to K.S.A. 8-2404(i) which would change “any person” to “a consumer.” Part of the motivation for seeking the amendment was to reserve the bond proceeds to consumers who are injured by improper business practices of vehicle dealers. See Minutes, House Comm, on Insurance, January 25, 2001 (H.B. 2114).
The House Committee on Insurance adopted the amendments advocated by Jeff Bottenberg, restricting the application of K.S.A. 8-2404(i) to consumer judgments against vehicle dealers. The legislature also specifically defined “consumer” as “a natural person who is a retail buyer of a motor vehicle.” However, before the proposed amendments passed out of the committee, Bottenberg proposed another amendment, eliminating “a consumer” both from K.S.A. 8-2404(i) and from the definitions section of the Act, K.S.A. 8-2401. In place of “a consumer,” Bottenberg suggested “a retail or wholesale buyer of a vehicle.” This proposed amendment was adopted without any recorded discussion of the reason for the amendment. See Minutes, House Comm, on Insurance, February 8, 2001 (H.B. 2114).
Ultimately, the bill passed, as amended, out of committee. When the bill was assigned to the Senate Transportation Committee, Bottenberg again proposed an amendment to the bill to add “seller,” stating that the omission of the word was an oversight in the proposal before the house. In advocating the proposed amendment to include both sellers and buyers, Dan Carlson of Carlson Auction Service testified that excluding sellers from protection under the Act would leave a significant aspect of consumer vehicle transactions, namely trade-ins, unprotected. The amendment was also supported by Jack Adolph of the Kansas Independent Automobile Dealers Association, Don McNeely of the Kansas Automobile Dealers Association, and Sheila Walker, the Director of Vehicles. The proposed amendments were adopted and passed out of the committee. See Minutes, Senate Comm, on Transportation, March 7, 2001 (H.B. 2114). The bill, as amended, was ultimately enacted by the legislature as K.S.A. 8-2404. See L. 2001, ch. 138, sec. 1, effective January 1, 2002.
By amending the statute, the legislature clearly perceived the need to restrict the application of K.S.A. 8-2404(i). In opposition to the surety’s contention, however, the legislature rejected a definition which would confine bond proceeds exclusively to consumers who were injured by dealership practices. By adopting the “retail or wholesale buyer or seller” language, the legislature clearly intended to include some business entities within the protection of the Act.
Although “wholesale” and “retail” are not specifically defined by statute, K.S.A. 8-2401(p) defines “wholesaler” as “any person who purchases vehicles for the purpose of resale to a vehicle dealer.” This definition comports with the ordinary definition of “wholesale.” See Webster’s II New Riverside University Dictionary 1317 (1988). Unless a word is given a specific definition, this court is to define it according to its ordinary meaning. See GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
Clearly, tire plaintiff was in the business of purchasing automobiles for resale and might be considered a wholesale buyer within the meaning of the statute. However, the statute clearly uses the terms “retail or wholesale buyer or seller” in relation to the dealership that had committed a violation of the Act resulting in the plaintiff s ability to obtain a civil judgment against the dealership. See K.S.A. 8-2404(i) (“Every applicant or licensee . . . shall furnish and maintain a bond ... as indemnity for any loss sustained by a retail or wholesale buyer or seller of a vehicle by reason of any act by the licensee in violation of any act which constitutes grounds for suspension or revocation of the license.”).
While the plaintiff s business may generally be the wholesale purchase of vehicles for resale, the plaintiffs relationship to the defendant is not one of a wholesale buyer. Under the agreement between tire parties, the plaintiff “would purchase used automobiles and together with the defendant, would repair, refurbish, de tail and/or restore vehicles and prepare them for resale.” The vehicles would then be sold from the defendant’s lot.
Although a copy of the agreement between the parties or detailed testimony concerning the agreement would be helpful in ascertaining the exact nature of the parties’ relationship, the available facts demonstrate that the relationship of the plaintiff to the defendant was not one of a wholesale purchaser or seller of automobiles. The parties operated a shared business operation, merely splitting the tasks involved.
From the minimal record presented before this court, we understand the plaintiff would employ a certain degree of discretion to select used vehicles for resale. Plaintiff would then turn those vehicles over to the defendant, who would repair, refurbish, and restore the vehicles as needed before reselling them. The defendant would then share an established percentage of net proceeds from the sale of the car, minus a “lot fee.”
Because the relationship between the plaintiff and the defendant is not one of a wholesale buyer or seller, the bond protection provided by the Act is not available to the plaintiff. Consequently, the district court properly dismissed the plaintiffs action to enforce payment of the bond under K.S.A. 8-2404(i).
Attorney Fees
Finally, the plaintiff contends the district court improperly denied its request for attorney fees under the Act. K.S.A. 8-2404(i) provides, in pertinent part: “Upon a finding by the court in such enforcement proceedings that a surety has wrongfully failed or refused to pay, the court shall award reasonable attorney fees to the judgment creditor.”
According to our Supreme Court, when an action to enforce payment under the bond created by the Act is successful, the district court must award reasonable attorney fees applicable to the enforcement action. Hartford Cas. Ins., Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 132-33, 992 P.2d 800 (1999). The court analogized the language of 8-2404(i) to the wrongful refusal of an insurance carrier’s duty to defend. In such cases, as in this one, however, attorney fees are only proper where the refusal to defend, or, in this case, the refusal to pay the proceeds of the bond, was wrongful. See American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 575, 545 P.2d 399 (1976).
Because the district court’s finding that the plaintiff was not entitled to payment under the bond was proper, although for different reasons than those articulated here, the defendant’s surety did not wrongfully refuse payment and attorney fees were properly denied.
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Rulon, C.J.:
Petitioner Roger Laubach appeals the summary denial of his pro se petition for relief. We affirm in part and dismiss in part.
The material facts are as follows:
In late 1999, the petitioner sought medical treatment for poor eyesight. He was referred to Dr. Ziemianski, a retinal specialist, who indicated that the petitioner’s retinas functioned within the normal limits. In February of 2000, the petitioner was examined by Dr. Reifschneider, who referred the petitioner to a neuro-ophthalmologist, Dr. Wuster at the University of Kansas Medical Center. Dr. Wuster found no significant impairment, and tests conducted in May of 2000 suggested peripheral contraction but no medical diagnosis.
In April of 2001, Dr. Reifschneider again examined the petitioner and found no objective cause for the petitioner’s claimed vision loss. The degree of cataract in the petitioner’s eyes diminished his vision to 20/50, but optico-ldnetic nystagmus and mirror tests indicated that the petitioner did fixate and track well with each eye.
Eventually, the petitioner stopped attending his sexual abuse treatment program (SATP). One of the program administrators notified the petitioner that petitioner’s lack of attendance would require petitioner’s termination from the program unless he began to regularly attend program sessions. Instead of returning to the program, the petitioner signed a voluntary termination form. The form provided:
“I, Roger Laubach KDOC #59642, have freely chosen to terminate my commitment to the SATP/DCCCA, Inc. as of this date 4-18-01.
“I have been advised by David Serena, SATP Staff member, that it is in my best interest to participate in the Sexual Abuse Treatment Program. Although my failure to follow the advice I have received may [a]ffect my parole eligibility status, I nevertheless choose to terminate my commitment to this program. I assume the risks and consequences involved with this decision.
“I choose to terminate from the Sexual Abuse Treatment Program (SATP) for the following reason(s): I can [sic] see to fill this out.
“I further understand that by signing this termination, my name will be removed from the waiting list. If I change my mind at a later date, the only way I will be considered for acceptance into the SATP again is to submit a Form 9 to both my Unit Team and SATP no earlier than 60 days from termination. My assignment to this program will then be on a space availability basis only.” (Emphasis added.)
Although the petitioner indicated that he could not see, a notation by David Serena at the bottom of the acknowledgment indicates the above form had been read to the petitioner and that the petitioner voluntarily terminated the program.
Sometime later, the petitioner was transferred from Lansing, a minimum security facility to Ellsworth, a medium security facility. The petitioner lost the incentives associated with a Level 3 because petitioner was returned to a Level 1 for terminating the sexual abuse treatment program. Consequently, in May of 2001, the petitioner filed an inmate request with a unit team member to discover why he had been transferred to a medium security facility and why he had lost incentives. The response from the corrections officer indicated the petitioner lost his incentives for failing to complete the SATP.
Later, the petitioner submitted a request to the deputy warden for the return of his incentives because he had been removed from the treatment program solely because of his inability to read the required materials. Although this record contains no response to the petitioners request, the warden of the Ellsworth facility did respond to the petitioner’s inmate complaint filed on June 6,2001. After investigating the complaint and receiving a memorandum from the treatment program, the warden opined the petitioner’s termination of the treatment program was completely voluntaiy and that the treatment program makes reasonable accommodations for inmates with physical and mental limitations.
On June 27, 2001, the petitioner filed an appeal to the Secretary of Corrections, claiming that petitioner did not voluntarily withdraw from the treatment program but that he was forced to terminate because of poor eyesight. On July 13, 2001, the Secretary of Corrections affirmed the warden’s response to the petitioner’s grievance complaint.
Before receiving the Secretaiy’s response, however, the petitioner filed another inmate request demanding cataract surgeiy, which petitioner claims had been scheduled for November 2000, but which he had never received. Petitioner filed another inmate complaint on July 8, 2002, alleging that his eye surgery was improperly canceled by the regional medical director after the ophthalmologist recommended surgeiy. The unit team response indicated that the medical procedure was denied by the regional medical director because the director believed the benefit of the surgeiy to the petitioner was slight and the risk of injury to the eye as a result of the surgeiy was, therefore, not warranted. This re sponse was supported by the clinical nurse, Deborah Butler. There is no further appeal of this issue contained within the record.
Meanwhile, despite the Secretary’s determination, the petitioner continued to seek a return of his incentive privileges. Petitioner filed two separate inmate requests and received two responses recommending that the petitioner return to the treatment program. The petitioner filed another complaint based upon the prison’s refusal to transfer him to another section of the prison to house with a friend who offered to assist the petitioner in reading and writing.
The unit team response to the petitioner’s request to transfer indicated that the petitioner had not demonstrated a medical need for a transfer. While acknowledging the petitioner needs assistance with reading and writing due to poor eyesight, the unit team response suggested the prison had made reasonable accommodations to the petitioner’s physical limitation by providing the petitioner with his own copy of the canteen list, by permitting the petitioner to move into any cell within the same section of the prison, if he could locate a prisoner who would be willing to help him with reading and writing, and by offering assistance of prison employees to read official notices upon request by the petitioner.
The petitioner appealed this determination to the warden, who affirmed the unit team response. The record does not contain a further appeal of this issue to the Secretary of Corrections.
On November 25, 2002, the petitioner filed an action pursuant to “K.S.A. 60-209; K.S.A. 21-3905; K.S.A. 21-3803; K.S.A. 21-805; K.S.A. 21-3902, Kansas and § 1983 Federal Civil Rights Statutes Act; Supreme Court Rule 170; Kansas Bill of Rights V; and Title II ADA American Disabilities Act.” The petitioner claimed the respondents collectively violated his constitutional rights as well as violating the Americans with Disabilities Act (ADA) 42 U.S.C. § 12101 et seq., by terminating the petitioner from the sex offender treatment program merely because of his inability to read and by preventing the petitioner from obtaining the medical attention his eyes required. The petitioner also sought a jury trial.
On February 6, 2003, the Department of Corrections and its officers in their official and individual capacities moved to dismiss the petitioner s action based upon petitioner’s failure to exhaust the administrative remedies and upon a failure to state a claim upon which relief may be granted.
On May 8, 2003, the petitioner filed a motion with the district court to permit an inmate to act as a reader for the petitioner at his hearing and requested an order for both the petitioner’s and the reader’s attendance at the hearing. The district court denied the petitioner’s request to permit the inmate to act as a reader for the petitioner, and the petitioner filed a motion for the recusal of the presiding judge.
On August 6, 2003, the district court summarily dismissed the petitioner’s petition and denied the motion for recusal. The petitioner appeals.
First, we must decide if the district court improperly dismissed the petitioner’s claims without holding an evidentiary hearing.
In appealing the summary dismissal of his action, the petitioner claims his action is supported by K.S.A. 60-209; K.S.A. 21-3905; K.S.A. 21-3803 (repealed 1983); K.S.A. 21-805 (repealed 1974); K.S.A. 21-3902; 42 U.S.C. § 1983; Supreme Court Rule 183 (2003 Kan. Ct. R. Annot. 213); the Kansas Constitution Bill of Rights § 5; and Title II of the ADA American Disability Act.
In evaluating the claims of a pro se prisoner, courts should broadly construe the petition to ascertain whether the prisoner has articulated any basis upon which relief may be granted. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Because the petitioner generally complains about the conditions of his confinement, the petition may properly be treated as a request for habeas corpus relief pursuant to K.S.A. 60-1501. See State v. Mejia, 20 Kan. App. 2d 890, 892-93, 894 P.2d 202 (1995). The petitioner further asserts claims pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 1983, and under the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. Other authority cited by the petitioner, even if interpreted broadly, provides no cause of action.
In any civil action against a correctional facility in Kansas, an inmate is required to exhaust all available administrative remedies established by regulation before seeking redress in a Kansas court. See K.S.A. 75-52,138. The applicable regulations governing the administrative grievance process are K.A.R. 44-15-101 et seq. The administrative procedure established for an inmate seeking redress within the correctional system is (1) an informal request for relief from the pertinent prison personnel or unit team members; (2) a formal complaint to the warden or principal facility administrator; and (3) an appeal to the Secretary of Corrections. K.A.R. 44-15-101(b) and (d).
K.S.A. 75-52,138 requires an inmate to attach proof to his or her petition that administrative remedies have been exhausted. While the petitioner attached some grievance forms to his petition, none of the forms demonstrate an appeal to the Secretary of Corrections. Here, the petitioner has not strictly complied with the statutory requirements for filing a civil action against the Department of Corrections and its officers.
However, in this case, the petitioner raised three separate grievances: (1) removal of the petitioner from the SATP because of his poor vision; (2) preventing the petitioner from obtaining needed medical care; and (3) failure to accommodate the petitioner s medical needs by permitting a housing transfer. Along with their motion to dismiss, the respondents attached grievance forms which establish that the petitioner sought review by the Secretary of Corrections on the complaint related to his removal from the SATP. Consequently, although the district court properly dismissed the petitioner’s claims that the respondents prevented him from obtaining needed medical care and that the respondents failed to accommodate him by transferring him to another cell unit, this court may consider the petitioner’s complaint the respondents violated his constitutional and federal statutory rights by involuntarily removing him from the SATP because of his vision impairment.
Although neither party raises the issue because the petition was not clearly filed pursuant to K.S.A. 2003 Supp. 60-1501, this record indicates a lack of jurisdiction, which this court must consider on its own initiative. See State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). According to K.S.A. 2003 Supp. 60-1501(b), an inmate must file a habeas corpus petition within 30 days of the improper action serving as the basis for an alleged constitutional violation, except that such time period is tolled during the administrative review process.
The Secretary of Corrections considered the only issue before this court on July 13, 2001. The petition was filed on November 15, 2002. Thus, to the extent that the petition seeks relief from unconstitutional conditions of confinement, this court lacks jurisdiction to consider the matter, and such claim must be dismissed. See Verge, 272 Kan. at 521.
Concerning the district court’s summary dismissal of the petitioner’s § 1983 and ADA claims, however, the petitioner is not subject to the 30-day filing requirements of K.S.A. 2003 Supp. 60-1501(b). Where a district court has dismissed a civil claim, other than a claim for habeas relief, an appellate court must assume the facts alleged by the petitioner to be true, along with any reasonable inferences to be drawn therefrom, in determining whether the petitioner has stated any claim upon which relief may be granted. See McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, 634, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002).
Here, however, the respondents relied upon evidence outside of the petitioner’s claims in seeking a dismissal. Although the district court’s journal entry, which dismissed the petitioner’s claims, is extremely conclusory, the court indicated it had reviewed the files and considered the arguments of the respondents. Where a district court is presented with matters outside the pleadings and the court considers such matters, the motion to dismiss for failure to state a claim will be treated as a motion for summary judgment. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 885, 9 P.3d 1251 (2000) (citing K.S.A. 60-212[b]).
Our standard of review for summary judgment is well established. If the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate an absence of any genuine issue of material fact, judgment as a matter of law is proper. The court must resolve any conflicting evidence and inferences to be drawn from the evidence in favor of the nonmoving party. On appeal, this court applies the same standard. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
In order to establish a § 1983 claim, the plaintiff must demonstrate that a person acting under color of state law performed some conduct which deprived the plaintiff of a right guaranteed by the Constitution or federal law. See Connelly v. Kansas Highway Patrol, 271 Kan. 944, 957, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).
It is impossible to determine from the scant record on appeal whether the staff members of the SATP/DECCA, who terminated the petitioner from the treatment program, are persons within the meaning of 42 U.S. C. § 1983. See Lower v. Board of Dir. of Haskell County Cemetery Dist., 274 Kan. 735, 744, 56 P.3d 235 (2002) (discussing who may be sued under § 1983). However, assuming, without deciding, that some of the respondents may be sued under § 1983, the petitioner s claim fails due to petitioner s inability to demonstrate a violation of the Constitution or federal law.
In order to establish a cognizable claim for a due process violation, the petitioner must establish a valid liberty or property interest in his or her incarceration status which has been infringed by the State without due process of law. See James v. Quinlan, 866 F.2d 627, 629 (3d Cir.), cert. denied 493 U.S. 870 (1989). Here, the only property and liberty infringements have occurred because of the implementation of Internal Management Policies and Procedures (IMPP) 11-101 upon the petitioner s failure to complete the SATP.
In Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227, cert. denied 525 U.S. 1060 (1998), our Supreme Court considered this issue. After considering the effect of IMPP 11-101 upon an inmate’s liberty and property interests, the Stansbury court concluded the incentive policies do not infringe upon a recognizable property or liberty interest. Consequently, the policy does not violate the Due Process Clause of the United States Constitution. 265 Kan. at 419-21.
The allegations of the petitioner do not support a § 1983 claim for a violation of the Eighth Amendment. The United States Supreme Court has declared that the deliberate indifference to an inmate’s medical needs violates the prohibition against cruel and unusual punishment encapsulated within the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103-06, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Deliberate indifference of a medical need contains both subjective and objective components. The objective component is satisfied if the petitioner can demonstrate that the medical need is sufficiently serious. A medical need is sufficiently serious if treatment has been diagnosed for it or if the need is so obvious that a lay person would recognize the need. The objective component is satisfied upon proof of the prison officials’ knowledge of the need and disregard of an excessive risk to an inmate’s health or safety. See Darnell v. Simmons, 30 Kan. App. 2d 778, 781, 48 P.3d 1278 (2002).
While the petitioner’s claims contain some evidence of a serious medical need, there is nothing to indicate that the prison officials ignored an excessive risk to the inmate’s health or safety nor is there evidence that the treatment program staff was aware of the petitioner’s poor eyesight. According to David Serena, the staff member responsible for discharging the petitioner from the program, the petitioner never attended the SATP sessions at which die staff could have assessed the petitioner’s need for accommodations to assist with his poor eyesight. There is no evidence that removing the petitioner from the treatment program created an excessive risk of harm to the petitioner’s health or safety.
For similar reasons, the petitioner’s claim for relief under the ADA must fail. An equal protection claim arising from disability-based discrimination is enhanced by the ADA. See Schall v. Wichita State University, 269 Kan. 456, 467, 7 P.3d 1144 (2000). In order to demonstrate an ADA claim pursuant to Title II, an inmate must demonstrate: (1) a qualified disability; (2) denial of participation in or the benefits of services, programs, or activities provided by the prison; and (3) a disability-based reason for the denial of services, programs, or activities. See Damron v. North Dakota Com’r of Corrections, 299 F. Supp. 2d 970, 977 (D.N.D. 2004) (citing Layton v. Elder, 143 F.3d 469, 472 [8th Cir. 1998]).
In requiring equal access to government programs, the ADA demands more than mere physical access. An administrator of a government program must provide meaningful access to the program, which may require reasonable accommodations. See Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 857 (10th Cir. 2003) (citing Alexander v. Choate, 469 U.S. 287, 301, 83 L. Ed. 2d 661, 105 S. Ct. 712 [1985]). However, the public entity administering the program need not guess at the accommodation which will provide access to a person with a disability. See Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).
Rather than seeking some reasonable accommodation to assist with the reading and writing requirements of the treatment program, the petitioner simply chose to withdraw. Perhaps petitioner feels that he was forced to withdraw because of his physical disability, but, without demonstrating a request for some reasonable accommodation which was denied, the petitioner fails to establish a violation of Title II of the ADA.
Because the record fails to support the petitioner’s allegation that he was improperly dismissed from the SATP due to his poor eyesight, the district court properly dismissed the petition.
Finally, the petitioner complains the district court judge erroneously failed to recuse himself at the petitioner’s request. Where a district court judge has refused to honor a criminal defendant’s motion for recusal, an appellate court reviews the record to determine whether the judge had a duly to recuse because of bias, prejudice, or partiality. If the judge possessed a duty to recuse and did not, the appellate court will reverse only upon a showing that the judge’s failure to recuse actually biased or prejudiced the criminal defendant. See State v. Brown, 266 Kan. 563, 569, 973 P.2d 773 (1999).
Because the petitioner’s claims possess no merit and the district court properly dismissed the claims without holding an evidentiaiy hearing, the issue of the district court’s claimed partiality is moot. Even if this court concluded that the district judge should have recused himself, such determination would have no effect on the resolution of the case or affect the rights of the petitioner. See State v. Hatchel, 31 Kan. App. 2d 725, 726, 71 P.3d 1191 (2003) (holding that a question is not considered moot unless the controversy has been resolved and deciding the question will not further the interests or rights of either party).
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Pierron, J.:
Vernon J. Amos appeals the district court’s denial of his K.S.A. 2002 Supp. 60-1501 petition. We affirm
Amos is confined to administrative segregation at the El Dorado Correctional Facility (Facility). On January 17, 2003, he filed a K.S.A. 2002 Supp. 60-1501 petition alleging the Facility’s replacement of a hot meal at noon with a cold sack lunch was cruel and unusual punishment. He also asserted equal protection violations in that other inmates continued to get hot meals at lunch.
On May 22, 2003, the district court found that the lunches met the “American Correctional Association guidelines for appropriate nutrition.” The court concluded there was no deprivation of Amos’ constitutional rights and assessed $25 in court costs against Amos.
Amos claims the different menus provided to inmates in administrative segregation constitute a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. His argument fails. A hot meal is not a fundamental liberty interest. See Davis v. Finney, 21 Kan. App. 2d 547, 548-57, 902 P.2d 498 (1995) (discussing Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 [1995]). Therefore, Amos’ complaint would be subject to a rational basis review.
Amos receives a 2,800-calorie/kosher diet related to his diabetes and religious requirements respectively. He receives a hot meal for breakfast and supper. The Facility’s policy is that inmates in work study and/or administrative segregation receive the sack lunch for their noon meal. His noon meal is still within the parameters of his medical and religious needs. See LaFevers v. Saffle, 936 F.2d 1117, 1119-20 (10th Cir. 1991) (denial of a vegetarian diet was not cruel and unusual punishment because petitioner’s religious and dietary requirements were protected).
To avoid summaiy dismissal of a K.S.A. 2002 Supp. 60-1501 petition, “ ‘allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature.’ [Citation omitted.]” Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998).
Amos has not made a threshold showing of disparate treatment rising to the level of constitutional stature.
Likewise, Amos has not shown any treatment or conduct which rises to the constitutional stature of cruel and unusual punishment or is an equal protection violation. The district court did not err in summarily denying his 60-1501 petition for relief.
Amos also complains that the district court abused its discretion in assessing $25 against his prison account for court costs associated with filing the habeas corpus petition. He is incorrect. See Fought v. State, 14 Kan. App. 2d 17, 20, 781 P.2d 742 (1989) (assessment of court costs within sound discretion of trial judge after 60-1507 motion summarily denied).
Also, because K.S.A. 60-1503(a) and 60-1505(a) state that costs shall be assessed against the petitioner when a court determines that no relief is available pursuant to K.S.A. 2002 Supp. 60-1501, the district court can properly assess costs to the petitioner.
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Malone, j.:
Brenda Werdann appeals the amount of damages awarded by the trial court for her successful claim of conversion. She also appeals the trial court’s decision granting summary judgment in favor of Mel Hambelton Ford, Inc. (Mel Hambelton) on her federal Truth in Lending Act (TILA), 15 U.S.C. § 1601 (2000) et seq., claim and her federal “Odometer Act” (FOA), 49 U.S.C. § 32701 (2000) etseq., claim. Mel Hambelton cross-appeals, alleging that the trial court erred in assessing punitive damages against Mel Hambelton and in awarding attorney fees to Werdann.
On March 11, 2000, Werdann and her boyfriend, Billy M. Johnson, attended Mel Hambelton’s off-site car sale at the Kansas Coliseum. They test drove a green 1998 Ford Windstar with a vehicle identification number (VIN) ending in 25369 (Windstar 25369). Following the test drive, Werdann and Johnson agreed to purchase the van, and Werdann agreed to trade in her Honda Accord as die down payment. She was given a $2,000 credit for the trade-in. All parties agree that the van Werdann and Johnson agreed to purchase was Windstar 25369.
Damian Preston, the salesperson for Mel Hambelton, prepared the initial handwritten sales contract signed by all parties. On this contract, the van was described as a 1998 Ford Windstar with VIN 25369 with 20,696 miles. The purchase price was $18,750.
The stock number on the handwritten sales contract was F9346. This is the crux of the entire lawsuit. Mel Hambelton has asserted throughout the proceedings that the correct stock number for the Windstar purchased by Werdann was actually F9364. Stock number F9346 was actually assigned to a different Ford Windstar with a VIN ending in 33501 (Windstar 33501). Preston acknowledged that he was “rushed” on the day in question and that it was “a very busy day.”
After signing the handwritten sales contract, Werdann and Johnson met with a finance officer to complete the retail installment contract and sign a typed version of the sales contract. Mel Hambelton asserted that the finance officer typed the incorrect stock number from the handwritten sales contract into the computer, producing a final sales contract which identified the vehicle being purchased as the Windstar 33501. Werdann did not notice the mistake at the time she signed the final sales contract.
Werdann’s purchase was financed through Ford Motor Credit Company. The typed retail installment contract, which Werdann received at the time of the sale, contained a section entitled Federal Truth in Lending Disclosures. Werdann also acknowledged that Mel Hambelton provided an odometer disclosure statement which accurately reflected the number of miles on Windstar 25369.
Werdann drove home in the van she test drove, Windstar 25369. Windstar 33501 was a more expensive model with a larger engine and other accessories. The suggested retail price of Windstar 33501 was $26,445, and the suggested retail price of Windstar 25369 was $24,385.
A few days after taking the van home, Werdann received a phone call from Preston. According to Werdann, Preston told her that he had made a mistake and that the van taken home by her cost $4,000 more than it was sold for. In order to correct this mistake, Werdann testified that Preston told her to “either bring the van in; take the other van or redo the paperwork.” Werdann never asked anyone at Mel Hambelton if redoing the paperwork would result in any additional costs.
Throughout March, Werdann continued to receive calls from Preston and from Kevin Hassouneh, the used car sales manager, asking her to bring the van back to Mel Hambelton. Werdann testified that both employees called her repeatedly and threatened to come to her apartment to take the van. Werdann testified that she asked Preston to “change the paperwork.” At approximately the same time, Werdann ended her relationship with Johnson. On March 21, 2000, Johnson received the title to Windstar 33501, the one that was not purchased. Mel Hambelton never delivered a title to Windstar 25369 to either Werdann or Johnson.
Following her breakup with Johnson, Werdann needed to get a less expensive vehicle. She returned to Mel Hambelton on April 17, 2000, with Windstar 25369. She testified that her intention in returning to Mel Hambelton was to “get a rescission” of the contract, and she expected to receive $2,000, the amount of her trade-in in return. Werdann met with Hassouneh and asked for a rescission of the contract. Hassouneh refused to return Werdann’s money. Instead, he offered Werdann the keys to Windstar 33501 and requested that she turn over the keys to Windstar 25369. Hassouneh also had her van blocked in by placing a large truck behind Windstar 25369. When Werdann refused to turn over her keys, Hassouneh threatened to call the police. Eventually, Werdann handed over the keys to Windstar 25369. She called her mother to pick her up from Mel Hambelton, and she testified that she was very upset by the entire incident.
Werdann never received back her Honda Accord, which was used as the trade-in, or its $2,000 value. She also never made any payments to Ford Motor Credit Company pursuant to the installment contract. Mel Hambelton ultimately sold Windstar 25369 for $10,510 and initially retained the money. In the meantime, Ford Motor Credit Company began making demands upon Werdann for the balance due under the contract. After intervention by the Consumer Protection Office of the Sedgwick County District Attorney's office, Mel Hambelton applied the proceeds from the sale of Windstar 25369 to the purchase contract and Ford Motor Credit Company agreed not to pursue Werdann for the balance.
On November 16, 2000, Werdann filed a petition against Mel Hambelton in Sedgwick County District Court. Werdann asserted numerous claims, including damages for conversion, violations of TILA, FOA, and the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., and also punitive damages and attorney fees. The trial court granted summary judgment in favor of Mel Hambelton on Werdanris TILA claim and her FOA claim. The trial court also granted Werdanris motion for partial summary judgment that Mel Hambelton was hable for conversion. The case proceeded to a bench trial on damages on the conversion claim.
After a bench trial, the trial court awarded Werdann $2,000 on her conversion claim, representing tire value of her trade-in/down payment. The trial court found that title to Windstar 25369 had not been delivered to Werdann within 30 days of her purchase, causing the sale to become void pursuant to K.S.A. 2002 Supp. 8-135(c)(7). Because the sale was void, the trial court reasoned that the actual conversion occurred when Mel Hambelton refused to return Werdanris down payment.
The trial court also found that Mel Hambelton violated the KCPA by committing unconscionable acts and practices separate and apart from the tort of conversion. The trial court awarded a $5,000 civil penalty and the recovery of attorney fees as contemplated by the KCPA. The trial court also found that Hassouneh acted with malice toward Werdann and that Mel Hambelton ratified this conduct. Accordingly, the trial court determined that Mel Hambelton was liable for punitive damages.
After a separate hearing on the issue of attorney fees and punitive damages, the trial court assessed punitive damages in the amount of $17,500 and awarded Werdann attorney fees in the amount of $17,531.25. Finally, the trial court opted to award Werdann the civil penalty of $5,000 on her KCPA claim rather than the $2,000 judgment for conversion. The total award was $40,031.25. Both parties filed a timely appeal.
Measure of damages for conversion
Werdann first claims that the trial court applied the wrong measure of damages for her conversion claim. This is a question of law, and our review is unlimited. Board of Johnson County Comm’rs v. Grant, 264 Kan. 58, 61, 954 P.2d 695 (1998).
Conversion is “the unauthorized assumption or exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the other s rights. [Citation omitted.]” Gillispie v. Seymour, 14 Kan. App. 2d 563, 571-72, 796 P.2d 1060 (1990). Under Kansas law, the general rule is that the measure of damages based upon a claim for conversion is the fair and reasonable market value of the property converted at the time of the conversion. Mohr v. State Bank of Stanley, 241 Kan. 42, 55, 734 P.2d 1071 (1987).
Werdann contends that Mel Hambelton converted Windstar 25369 on April 17, 2000. Since Werdann believed the van to be worth $18,000 on that date, she claims that the trial court erred in failing to award her $18,000 in damages for her claim of conversion. This position, however, ignores the application of K.S.A. 2002 Supp. 8-135(c)(7).
K.S.A. 2002 Supp. 8-135(c)(7) requires the delivery of a vehicle title “within 30 days” after the vehicle’s delivery. Failure to deliver the vehicle’s title within the allotted time period results in the sale becoming “fraudulent and void.” K.S.A. 2002 Supp. 8-135(c)(7). It is uncontroverted that Mel Hambelton did not deliver title to Windstar 25369 within 30 days of delivery. Therefore, when Werdann returned to Mel Hambelton on April 17, 2000, the sale had already become void. When a car sale becomes void through the operation of K.S.A. 2002 Supp. 8-135(c)(7), the title remains with the seller. Perry v. Goff Motors, Inc., 12 Kan. App. 2d 139, 144, 736 P.2d 949 (1987).
Werdann attempts to define the parties’ contract solely through the application of K.S.A. 84-2-401 of the Uniform Commercial Code (UCC). Mel Hambelton correctly points out on appeal that the application of K.S.A. 84-2-401 does not necessarily conflict with the provisions of K.S.A. 2002 Supp. 8-135(c)(7).
Under the UCC, the legal title to Windstar 25369 passed to Werdann on the date the van was delivered “even though a document of title is to be delivered at a different time and place.” K.S.A. 84-2-401(2). Mel Hambelton does not attempt to dispute that Werdann held legal title to Windstar 25369 on March 11, 2000. However, after 30 days had passed without the title being delivered, K.S.A. 2002 Supp. 8-135(c)(7) operates to void the sale. Therefore, on April 10, 2000, the sale of Windstar 25369 became void and legal title rested with Mel Hambelton.
When Werdann arrived at Mel Hambelton on April 17, 2002, seeking a rescission of the contract, she no longer held title to the van. However, since the previous sale was now void, she was entitled to the return of her down payment. In fact, Werdann testified that she walked into Mel Hambelton on April 17, 2000, “expecting $2,000 back,” the amount of her down payment/trade-in.
Thus, the trial court was correct in determining that the actual conversion occurred when Mel Hambelton refused to return Werdann’s down payment. On April 17, 2002, Mel Hambelton held legal title to Windstar 25369, and Werdann was entitled to receive exactly what she requested, the return of her $2,000 down pay ment. The trial court’s decision to award $2,000 for the conversion claim should be upheld for this reason.
Even if we accept Werdann’s argument that Mel Hambelton converted the Windstar and not the down payment, Werdann should only be entitled to recover her interest in the van. This is represented by the fair market value of the van offset by any debt owed against it. Here, Werdann’s equity in the van was $2,000, and this was a fair recovery for the conversion of the van. This has been determined to be the appropriate measure of damages for conversion in a mortgagor/mortgagee situation. See Stewart v. Bank, 110 Kan. 82, Syl. ¶ 2, 202 Pac. 623 (1921); Boam v. Cohen, 94 Kan. 42, Syl. ¶ 2, 145 Pac. 559 (1915).
Here, Werdann’s debt to Ford Motor Credit Company was completely discharged. Allowing Werdann to recover the full fair market value of Windstar 25369, approximately $18,750, without reduction for the debt she initially owed against it, would clearly have been granting Werdann a windfall. The basic principle of damages is to make a party whole by putting the party back in the same position, not to grant a windfall. Service Iron Foundry, Inc. v. M.A. Bell Co., 2 Kan. App. 2d 662, 679, 588 P.2d 463 (1978). Regardless of which approach is taken, the $2,000 in damages awarded to Werdann for her conversion claim was fair and equitable.
Truth in Lending Act claim
Next, Werdann claims the trial court erred in granting summary judgment on her TILA claim.
“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.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Werdann alleges that Mel Hambelton violated TILA when it “did not provide written TILA disclosures to plaintiff in a form she could keep prior to consummation of extension of credit.” She claims that Mel Hambelton was required to give Werdann “a physical copy of the written TILA disclosures in a form that can be kept prior to the consumer s signing the credit contract.”
Since this particular transaction would be considered a closed-end credit transaction, the relevant portion of TILA is 15 U.S.C. § 1638(b)(1) (2000), which provides: “[T]he disclosures required [by TILA] shall be made before the credit is extended.” Furthermore, Regulation Z, see 12 C.F.R. § 226.1 (2003) et seq., promulgated pursuant to the Federal Reserve Board’s authority under TILA provides:
“(a) Form of disclosures. (1) The creditor shall malee the disclosures required by this subpart clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures shall be grouped together, shall be segregated from everything else ....
“(b) Time of disclosures. The creditor shall malee disclosures before consummation of the transaction.” 12 C.F.R. § 226.17 (2003).
Consummation of a credit transaction occurs when the consumer becomes contractually obligated on the credit transaction. See 12 C.F.R. § 226.2(a)(13) (2003). As such, Werdann became contractually obligated on the credit transaction when she signed the contract.
TILA is to be broadly construed to provide protection for the consumer. See 15 U.S.C. § 1601(a) (2000) et seq. Thus, a failure to properly disclose information as required by TILA or Regulation Z results in a technical violation. See Walters v. First State Bank, 134 F. Supp. 2d 778, 780 (W.D. Va. 2001).
It is undisputed that the retail installment contract signed by Werdann included the required TILA disclosures. Indeed, the retail installment contract contains a section entitled Federal Truth in Lending Disclosures which Werdann signed. The point of contention arises over whether Mel Hambelton was required to give Werdann a physical copy of the written TILA disclosures prior to her signing the credit contract. In other words, was it a violation of TILA to not provide Werdann with a separate TILA disclosure document?
- This court has addressed this exact issue in Queen v. Lynch Jewelers, LLC, 30 Kan. App. 2d 1026, 55 P.3d 914, rev. denied 275 Kan. 965 (2002). In Queen, this court held:
“A creditor complies with the disclosure requirements of the Federal Truth in Lending Act, 15 U.S.C. § 1601 (2000) et seq., when the creditor presents a credit contract containing the required disclosures to the consumer before consummation of a credit transaction in a form that tire consumer can keep. A creditor is not required to provide the consumer with a written copy of the disclosures separate from other copies of a multiple copy credit contract before the consumer signs the contract.” (Emphasis added.) 30 Kan. App. 2d 1026, Syl. ¶ 1.
Therefore, Mel Hambelton was not required to provide Werdann with multiple TILA disclosures. TILA disclosures included in the retail installment contract satisfied the statutory requirements and, pursuant to Queen, there was no need for Mel Hambelton to give Werdann a separate TILA disclosure document before she signed the installment contract.
Werdann acknowledges that her case is indistinguishable from Queen. However, she argues that Queen was wrongly decided and should not be followed. We believe the court’s reasoning in Queen was sound, and we follow the holding in that case. Accordingly, the trial court was correct in granting summary judgment on Werdann’s TILA claim.
Federal Odometer Act claim
Next, Werdann claims the trial court erred in granting summaiy judgment on her FOA claim. The standard of appellate review of a trial court’s grant of summary judgment was set forth in the prior section of this opinion. See Bracken, 272 Kan. at 1274-75.
Werdann bases her FOA claim on 49 U.S.C. § 32705(b)(1) (2000) which requires a vehicle transferor to accurately disclose the mileage of the vehicle on the title document. Werdann acknowledges that Mel Hambelton provided an accurate odometer disclosure statement at the time of delivery, but she insists that the FOA was violated because the odometer reading was not placed on the title but was instead provided as a separate document. Wer dann makes no claim that she was in any way misled or suffered any damage as a result of the alleged FOA violation.
Werdann’s FOA claim was properly dismissed on summary judgment for the following reason: The FOA does not require the seller to deliver the title at the time of delivery. Pursuant to K.S.A. 2002 Supp. 8-135(c)(7), however, Mel Hambelton had 30 days in which to deliver the title to Werdann; when Mel Hambelton failed to deliver the title the transaction became void. Since the transaction was void, and no title was ever transferred to Werdann for Windstar 25369, the FOA was not applicable because Mel Hambelton never provided the title with, or without, the correct mileage for Windstar 25369.
Also, Werdann’s FOA claim should fail due to her inability to produce any evidence that Mel Hambelton had an “intent to defraud.” Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275 (10th Cir. 1998). In Suiter, the Tenth Circuit Court of Appeals held that the “intent to defraud” standard of FOA was higher than a mere negligence standard but could be proven if the transferor exhibits a “reckless disregard for the truth.” 151 F.3d 1282. The Suiter court held: “A transferor of a vehicle may be found to have intended to defraud if he has reason to know the mileage on the vehicle was more than was reflected by the odometer . . . and nevertheless failed to take reasonable steps to determine the actual mileage.” 151 F.3d 1282 (citing to Haynes v. Manning, 917 F.2d 450, 453 [10th Cir. 1990]).
Werdann claims that “intent may be inferred from the facts”; however, the facts show no evidence of an intent to defraud. It is undisputed that the mileage disclosure statement provided by Mel Hambelton was completely accurate. For these reasons, the trial court was correct in granting summary judgment on Werdann’s FOA claim.
Punitive damages
Mel Hambelton cross-appeals, claiming that the trial court erred in assessing punitive damages against it, i.e., the corporation. Mel Hambelton claims that Hassouneh did not act with malice toward Werdann and, even if he did, Mel Hambelton never ratified the conduct.
An appellate court must first determine whether the trial court applied the provisions of K.S.A. 60-3702 in setting the amount of punitive damages. “Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion, which is another way of saying that the action of the trial court was arbitrary, capricious, or unreasonable.” Reeves v. Carlson, 266 Kan. 310, 316, 969 P.2d 252 (1998).
K.S.A. 60-3702(c) requires the plaintiff requesting punitive damages to prove “by clear and convincing evidence in die initial phase of the trial, that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice.” K.S.A. 60-3702(d)(l) limits an employer’s liability for punitive damages for its employees’ conduct to those cases in which the employer authorized or ratified the employees’ conduct.
Here, the trial court found that Hassouneh acted with malice toward Werdann. Malice is defined as a state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse. See Black’s Law Dictionary 968 (7th ed. 1999). Existence of malice is ordinarily a question of fact, unless the evidence is undisputed. Messinger v. Fulton, 173 Kan. 851, 855, 252 P.2d 904 (1953).
Werdann’s version of the events of April 17,2000, is considerably different from Mel Hambelton’s version. There is considerable evidence, considered in a light most favorable to Werdann, which supports a finding that Hassouneh acted maliciously toward Werdann that day. According to Werdann, Hassouneh blocked and seized Werdann’s van when she attempted to rescind the contract. Hassouneh refused to return Werdann’s $2,000 down payment, and he threatened to call the police if Werdann refused to hand over the keys to the van. Werdann had to call her mother to obtain a ride home from Mel Hambelton, and she was visibly shaken by the incident.
If Hassouneh had simply examined the handwritten sales contract, he would have seen that it contained the correct VIN of the van which Werdann had negotiated to purchase and which she had taken home. At trial, Karen Clothier, Mel Hambeltoris comptroller, testified that she felt the entire incident was “mismanaged.”
On appeal, Mel Hambelton attempts to mitigate Hassouneh’s actions by noting that “Hassouneh never forcibly took or attempted to take the keys from Werdann.” The fact that Hassouneh did not physically attack Werdann in order to get the keys does nothing to minimize the malicious conduct of blocking in Windstar 25369 and refusing to return the down payment.
Mel Hambelton wants this court to reweigh the evidence regarding Hassouneh’s conduct. We decline to do so and uphold the trial court’s finding that Hassouneh acted maliciously toward Werdann.
We also agree the evidence supports the trial court’s finding that Mel Hambelton ratified the conduct of its employee. Ratification, under the punitive damages statute, may be either express or implied and may be accomplished before, during, or after the employees’ questioned conduct. It may be based on an express ratification or based on a course of conduct indicating the approval, sanctioning, or confirmation of the questioned conduct. Smith v. Printup, 254 Kan. 315, 342, 866 P.2d 985 (1993).
Here, no disciplinary action was ever taken against Hassouneh. Failure to discipline an employee for wrongful conduct can be considered as evidence of ratification by the employer. 254 Kan. at 340; Foley Co. v. Scottsdale Ins. Co., 28 Kan. App. 2d 219, 223-24, 15 P.3d 353 (2002).
Additionally, Mel Hambelton’s actions in selling Windstar 25369 and initially keeping the proceeds can be viewed as ratification of Hassouneh’s conduct. Mel Hambelton sold the van taken from Werdann at a “dealer auto auction” for $10,510, but none of this money was used to reduce the debt Werdann owed to Ford Motor Credit Company until the Consumer Protection Office of the Sedgwick County District Attorney’s office intervened in the case. Allowing Werdann to appear to be deficient in her payments and failing to apply the money recovered from the sale of Windstar 25369 was a ratification of Hassouneh’s malicious conduct.
It cannot be said that the trial court abused its discretion in determining that Hassouneh acted with malice and that Mel Ham belton ratified its employee’s conduct. Accordingly, tire trial court did not err in assessing punitive damages against Mel Hambelton.
Attorney fees
Finally, Mel Hambelton claims the trial court erred in awarding attorney fees to Werdann. Specifically, Mel Hambelton claims that Werdann failed to segregate her attorney fees as to her different causes of action so that the trial court could award attorney fees to Werdann based only on the KCPA claim.
“The assessment of costs and attorney fees lies within the sound discretion of tlie trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion. If any reasonable person would agree with the trial court’s decision, appellate courts will not disturb the trial court’s decision.” Horsch v. Terminix Int’l Co., 19 Kan. App. 2d 134, Syl. ¶ 7, 865 P.2d 1044 (1993), rev. denied, 254 Kan. 1007 (1994).
The attorney fees awarded in this case were made pursuant to Werdann’s successful KCPA claim. The trial court originally requested Werdann to segregate her attorney fees as to the amount incurred on the KCPA claim as opposed to her other causes of action. Werdann failed to do so. Nevertheless, the trial court awarded Werdann $17,531.25, representing the full amount of her attorney fees incurred in the case.
“In a lawsuit involving multiple claims or multiple theories, an award of attorney fees must be based on the time spent by the prevailing party’s attorney on the claim or theory under which attorney fees are allowable. Where several causes of action are joined and only some of them permit the award of attorney fees, the prevailing party’s attorney is under a duty to segregate the work on several causes in determining an attorney fee award.” DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, Syl. ¶ 1, 947 P.2d 1039 (1997).
“An exception to the duty of a prevailing parly’s attorney to segregate work on several causes of action arises when the attorney fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and, thus, are intertwined to the point of being inseparable, the parties suing for attorney fees may recover the entire amount covering all claims.” 24 Kan. App. 542, Syl. ¶ 2.
Here, Werdann never claimed that it was impossible for her to segregate her attorney fees as to her different causes of action. Initially, the trial court correctly determined that Werdann should segregate her fees, but the trial court did not enforce this order. Only Werdanris successful KCPA claim warrants the award of attorney fees.
In awarding Werdann the full amount of her attorney fees, the trial court rationalized that it would have increased the punitive damages award by whatever amount it was required to reduce the attorney fees had Werdann actually segregated her fees. Although we question the trial court’s “dollar-for-dollar” approach, we recognize that in fixing an award of punitive damages, a trial court may consider the plaintiff s probable litigation expenses, including attorney fees. Henderson v. Hassur, 225 Kan. 678, 694, 594 P.2d 650 (1979); Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977); Brewer v. Home-Stake Production Co., 200 Kan. 96, 98-99, 434 P.2d 828 (1967); Slough v. J. I. Case Co., 8 Kan. App. 2d 104, 111, 650 P.2d 729, rev. denied 232 Kan. 876 (1982). Thus, the amount of Werdann’s unrecovered attorney fees may have been a factor for consideration, along with other appropriate factors, in arriving at a proper award of punitive damages.
This case is remanded to district court for a hearing to determine the correct award of attorney fees. Werdann is required to segregate her claim for attorney fees so as to reflect the amount of fees incurred in pursuing her KCPA claim as opposed to her different causes of action. The trial court will then determine the reasonableness of her claim. If Werdann fails to properly segregate her claim of attorney fees, she will not be entitled to recover any attorney fees.
Furthermore, in light of the trial court’s comments linking attorney fees and punitive damages, the trial court may also reconsider the amount of the punitive damages awarded in this case. Any modification by the trial court of the punitive damages award must be supported by specific findings on the record.
Affirmed in part, reversed in part, and remanded for hearing on attorney fees and punitive damages. | [
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McAnany, J.:
Donald Henderson appeals his convictions for four counts of abuse of a child. We affirm his convictions.
Background Facts and Procedural History
Henderson is the natural father of M.H., bom October 4,1999. Candi Coker is M.H.’s natural mother. Dr. Unsderfer, M.H.’s pediatrician, had examined her in early December 1999 and found her to be in good health. Less than a week later, on December 7, 1999, Coker took M.H. to the hospital emergency room. Dr. Unsderfer happened to be on call at the hospital. Upon M.H.’s admis sion, Dr. Unsderfer initially found that she had fractures to her left femur and to two vertebrae, and a spiral fracture of her left tibia. Nuclear bone scans ultimately detected a total of 13 fractures, plus later-discovered fractures of the ulna and radius.
The presence of the spiral fracture in a 2-month-old, plus the number of fractures, was sufficient for Dr. Unsderfer to suspect abuse, particularly after tests disclosed the absence of osteogenesis imperfecta, also known as brittle-bone disease.
Shortly after M.H. was admitted to the hospital, Henderson told Police Officer Buller that he had made an appointment with a doctor to get medication for his temper problem. While awaiting the bone test results, Henderson told Dr. Unsderfer that he was nervous about the results of the test and that he was “sweating bullets.”
By the time the negative bone test results were reported, Coker and Henderson had separated. Coker told Buller that she had a medical condition that required her to bathe several times a day. She recounted how she would leave M.H. in Henderson’s care while she was bathing. On several such occasions she heard M.H. scream, as if in pain. She told Buller that it would sometimes take several hours to calm M.H. She also told Buller that Henderson had a bad temper. As a result of Buller’s investigation, M.H. was placed in protective custody. Since her release from the hospital, M.H. has never had another broken bone.
Buller interviewed Henderson, who denied that he caused any of M.H.’s broken bones and said that he believed Coker caused M.H.’s injuries. He was not able to point to any specific instances that led to this belief, but felt Coker’s “fuse was shorter than his.”
Henderson voluntarily submitted to another interview on June 28, 2000, in the basement of Reno County Law Enforcement Center. Buller, KBI Special Agent Atteberry, and Henderson were initially present for the interview. Atteberry testified that Henderson was not in police custody and was advised that he could leave at any time.
Henderson is mildly mentally retarded and functionally illiterate, being able to read only at a second-grade level. As a result, Atteberry read Henderson his Miranda rights and had him initial each line after he acknowledged he understood each line. Buller testified Henderson appeared to understand what was happening and responded appropriately to the questions. Henderson stated he understood his rights and agreed to the waiver orally and in writing. Buller then left the room to allow Atteberry to conduct the interview.
Henderson’s responses to Atteberry did not cause Atteberry to believe that he should stop the interview or that Henderson was having difficulty answering his questions. Henderson eventually admitted to getting angry and frustrated when M.H. would not stop crying. He said that at one point he sat M.H. down very hard in her crib, and that another time he laid M.H. on the floor and stepped on her thigh to make her be quiet. At this point, Atteberry asked Buller to return to the interview room to record Henderson’s statement. The rest of tire interview was tape recorded. The opening dialogue in the recorded interview is illustrative:
“Buller: Well, why don’t you tell me then about the times where you pulled her arms.
“Henderson: When she was in her crib laying down, like any other baby would and I went in there to feed her ’cause she was crying like she was wet or hungry or if somebody wanted to pay little attention to her so I went in there and I picked her up the wrong way and she got louder and louder. I just got a httle, I have a, I’ll admit I do have a small anger problem.
“Buller: I’m aware of that. We’ve talked about that before.
“Henderson: Uh-huh. That’s why I’m taking Prozac.
“Buller: So how does your anger play into this?
“Henderson: I don’t know how to control my anger at the time.
“Buller: So you say she was in her crib and crying, wanting attention or to be fed.
“Henderson: Uh-huh, or her diaper changed.
“Buller: Or her diaper changed.
“Henderson: One, one of those.
“Buller: Okay.
“Henderson: Like any other baby.
“Buller: Yeah, like all babies. And so you went in and picked her up the wrong way. Are you, are you telling me that you were angry at that time, that you picked her up the wrong way?
“Henderson: Yeah, because I was there all by myself and my ex, Candy, was gone practically most of the times anyways.
“Buller: So when you say you picked her up the wrong way, what do you mean?
“Henderson: I grabbed her up by the arm. You know, like I, I should have, like I should have . . .
“Buller: And what was the right way to do it?
“Henderson: By the head and by the arms, both arms. With the thumbs under the arms and the . . .
“Buller: All right. But instead you just picked her up by the arms?
“Henderson: Uh-huh.
“Buller: And in what way did you do that?
“Henderson: I just kind of pulled her up.
“Buller: Can you be more descriptive about how you pulled her by the arms?
“Henderson: I just kind of pulled her up, straight up. That was wrong of me, but, I shouldn’t have done it.”
Henderson was ultimately charged with four counts of abuse of a child pursuant to K.S.A. 21-3609. Henderson filed a pretrial motion to suppress his statements, which the court denied following a hearing. Henderson was convicted on all counts. The court imposed consecutive sentences of 43 months on the first count and 34 months on each additional count. As a result of the “double rule,” the court imposed a total sentence of 86 months’ incarceration.
Sufficiency of the Evidence
Henderson claims there was insufficient evidence to support his convictions because the State did not prove intent. In considering this claim we review the evidence in the light most favorable to the State to determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). We do not weigh the credibility of witnesses. State v. Lowe, 276 Kan. 957, 965, 80 P.3d 1156 (2003). Furthermore, a conviction of even the greatest offense may be sustained by circumstantial evidence. State v. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003).
Abuse of a child is not a specific intent crime. It is not predicated on an intent to injure but rather on specified intentional acts that result in harm. See State v. Carr, 265 Kan. 608, 614, 963 P.2d 421 (1998). The jury instructions required a finding that Henderson “intentionally inflicted cruel and inhuman bodily punishment” on M.H. In his police interview, Henderson said that in some instances he committed acts by which he did not intend to injure his daughter, and in other instances the acts themselves were committed by accident. As to the former, the intentional nature of the acts satisfies the intent requirement of the statute. It is apparent that the jury was satisfied that by these intentional acts he inflicted cruel and inhuman bodily punishment on M.H. As to the latter, when we view the evidence in the light most favorable to the State, it is apparent that the jury simply did not believe that his actions were accidental. In any event, there was ample evidence, direct and circumstantial, to satisfy the intent element of the crime and to satisfy Henderson’s conviction.
Motion to Suppress
Henderson claims the trial court erred in refusing to suppress the statements he made to police during the June 28, 2000, interview. We review this claim to determine whether the factual underpinnings of the trial court’s decision were supported by substantial competent evidence. In doing so we do not reweigh the evidence. We review de novo the ultimate legal conclusion drawn from those facts, since it is a matter of law. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).
First, Henderson claims his interrogation was custodial. In State v. Jones, 246 Kan. 214, 216, 787 P.2d 726 (1990), the court stated:
“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless the State demonstrates the use of procedural safeguards to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, (1966); State v. Roadenbaugh, 234 Kan. 474, 476, 673 P.2d 1166 (1983).”
The trial court determined the June 28, 2000, interview was not a custodial interrogation. A custodial interrogation is “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” (Emphasis added.) State v. Fritschen, 247 Kan. 592, 599, 802 P.2d 558 (1990) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 [1966]). Using an objective analysis that ignores his subjective beliefs, personality, and mental capacity (State v. William, 248 Kan. 389, 405, 807 P.2d 1292, cert. denied 502 U.S. 837 [1991]), a reasonable person would not have believed he or she was in custody when these statements were made to the police. Henderson was not under arrest. He came to the interview voluntarily. He was advised that he could leave at any time. In fact, when the interview concluded he was allowed to leave.
Even though the interrogation was not custodial in nature, Atteberry had already extended to Henderson the procedural safeguards described in Jones when he advised Henderson of his Miranda rights. Henderson initialed his understanding of his rights and signed the form waiving his rights.
Next, we review the trial court’s conclusion that Henderson’s statements were freely, voluntarily, and intelligently given. In doing so, we will uphold the trial court’s decision if it is supported by substantial competent evidence. Once again, we will not reweigh the evidence but will give deference to the trial court’s factual findings. We review de novo the legal conclusion drawn from those facts. State v. White, 275 Kan. 580, 596-97, 67 P.3d 138 (2003).
In White, the court discussed the test used when determining the voluntariness of a defendant’s confession:
“To determine whether a defendant’s confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Factors include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statement was the product of the free and independent will of the accused. [Citation omitted.]” 275 Kan. at 597.
Here, Henderson’s confession was voluntary. Henderson was advised that he could leave at any time during the interrogation. Henderson was advised of his Miranda rights at the outset even though the interview was noncustodial. The officers adapted their questioning to accommodate Henderson’s lower mental acuity. The officers testified that it appeared Henderson understood what was happening and that Henderson responded appropriately to their questions. The initial portion of the colloquy in the recorded interview reproduced above illustrates this.
Henderson points critically to instances in the interrogation which he characterizes as attempts to put words in his mouth and to lead him into admissions. In each of these claimed instances, however, Henderson resisted the interrogators and refused to “take the bait.” It is clear that Henderson understood what was being asked. He admitted to certain conduct and denied other. His statements were the product of the exercise of his free and independent will. Substantial competent evidence exists to find that Henderson’s confession was voluntary. The trial court did not err in denying Henderson’s motion to suppress.
Closing Argument
Henderson criticizes statements made by the prosecutor during closing argument. Though Henderson did not object at the time, the trial court has the duty to protect his right to a fair trial by preventing prosecutorial misconduct regardless of whether a timely objection was made. State v. Holmes, 272 Kan. 491, 498, 33 P.3d 856 (2001). Consequently, our standard of review is the same whether or not an objection was made at trial. Henderson has the burden of establishing that the claimed prosecutorial misconduct denied him a fair trial under the Fourteenth Amendment. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003).
We must first determine whether the prosecutor’s comments were outside the wide latitude that a prosecutor is allowed when discussing the evidence. If they exceed these bounds, we then must determine whether they were so gross and flagrant as to prejudice the juiy against Henderson and deny him a fair trial. 275 Kan. at 121. If we reach this second step we must determine whether the prosecutor’s comments show ill will, whether the trial court sanctioned the comment, and whether the evidence against Henderson was so overwhelming that die prosecutor’s misconduct had litde or no likelihood to have changed the result of the trial. State v. Scott, 271 Kan. 103, 115, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
The prosecutor argued in summation:
“And there is something about this case that’s just could kind of tough. And part of it is the nature of kids. Nature gives babies, most babies protection. Deer, a baby fawn is born without any scent and has color spots on its coat. That’s how it gets protection. Birds, they hatch out eggs up in trees where they can’t be reached. They say that a gorilla baby when it’s bom has the strength of an adult male. Horses jump right up and they run away. Most animals have a defensive mechanism immediately. Baby rattlesnakes have just as much poison as adult rattlesnakes. Except for babies that are bom to humans. They’re bom without any hair, any type of warmth. They’re stinky; can’t feed themselves. Can’t walk. If you leave them alone, they’ll die.
“. . . Those babies rely upon their parents to protect them for life. That’s one of the — we got many that — that’s one of the basic rales of life. That’s what is tough about this case. It is because you have got a father who betrayed that trust. And the fact that he might be low-functioning or illiterate doesn’t excuse that.
“The evidence in the case is overwhelming the defendant committed those crimes. The facts establish it. The law establishes it, and we ask that you find him guilty. Thank you.”
In State v. Rodriguez, 269 Kan. 633, 643, 8 P.3d 712 (2000), the court stated:
“During closing argument, an attorney is given wide latitude in tire language and manner of presenting argument and may indulge in impassioned bursts of oratory and may use picturesque speech as long as he or she does not refer to facts not disclosed by the evidence. [Citation omitted.]”
Henderson claims the prosecutor improperly referred to facts outside the evidence when he discussed the defense mechanisms of baby animals and the trust relationship between human babies and their parents. We are not surprised that evidence regarding baby animals or trust relationships was never presented at trial.
The charges against Henderson were tried to a jury of 12. One of the many reasons we hold inviolate the right to trial by juiy is our understanding that the knowledge, experience, and judgment of one person is most often inferior to that of 12 members of the community. In seeking out members of the community for juiy service, the courts do not limit the search to inhabitants of monasteries or nunneries or others who live a cloistered life. An important attribute of a jury is the collective common knowledge and wisdom it possesses from the varied experiences of its members during their many years on this earth. Matters within the common knowledge of mankind are a proper subject for comment during the summation. See State v. Jones, 197 Ariz. 290, 306, 4 P.3d 345 (2000); People v. Strozzi, 712 P.2d 1100, 1105 (Colo. App. 1985); Hall v. State, 259 Ga. 412, 414, 383 S.E.2d 128 (1989); McLaughlin v. State, 780 P.2d 964, 968 (Wyo. 1989). The prosecutor, through these references in summation, sought to tap into that common knowledge and experience which is one of the core values of our jury system.
Granted, the prosecutor’s statement about the strength of a baby gorilla or the venom of a baby rattlesnake may test the limits of our common knowledge. However, our condemnation of a prosecutor’s arguing facts outside the record is based on the improper suggestion to the juiy that there are facts directly bearing on the case that the jury should know but for some reason were not brought out in the evidence. That is not the case with references to baby gorillas and rattlesnakes. For rhetorical purposes, the prosecutor could just as well referred to the self-protective horn on the head of a baby unicorn.
Oratory is the essence of the summation. It brings to the courtroom the exercise of eloquent and effective public speaking. The constitutional insistence upon a fair trial for the accused does not demand that we ban oratory from the courtroom. To strip trial lawyers of analogies, similes, allusions (be they historic, poetic, literary, or scientific), and other rhetorical devices would reduce them to little more than green-eye-shaded bookkeepers, recounting for others the facts and figures they have accumulated during the course of the trial. We are taught in law school that a summation is more than the mere recital of facts adduced at trial. The trial lawyer’s role in summation is to bring order to the facts presented at trial, place them in a meaningful context, and out of this collection of bits and pieces construct the whole of a case. Melvin Belli observed:
“If the tree, with its main branches, is painted, the leaves will be supplied by the brushes of the jurors, but if only the leaves are iEustrated, they may fall into a confused mass where there is no support from the main branches.” 5 Belli, Modem Trials § 65.4, p. 75 (1982)'.
We sometimes think of courtroom oratory as a quaint vestige of the past. It seems to have enjoyed a more honored place in past pronouncements:
“[No lawyer] is required to forego all the embellishments of oratory, or to leave uncultivated the field of fancy. It is his time-honored privilege to ‘drown dre stage in tears, make mad the guilty and appal the free, confound the ignorant, and amaze, indeed, the very faculties of eyes and ears.’ ” State of Iowa v. Burns, 119 Iowa 663, 94 N.W. 238 (1903).
Further, our modem courtroom sensibilities make us wince at remarks such as expressed by counsel during his summation in Ferguson v. Moore, 98 Tenn. 342, 39 S.W. 341 (1897), a breach of marriage contract and seduction case, in which he referred to defendant as a “fiend” and a “hell-hound.” (The Tennessee Supreme court noted that “other language could have been used, no doubt, equally as descriptive, and not so vituperative.” 98 Tenn. at 350.) And we may look askance at the approval of counsel’s tearful plea to the jury. (“Tears have always been considered legitimate arguments before a jury, and ... we know of no rule or jurisdiction in the court below to check them. It would appear to be one of the natural rights of counsel, which no Court or constitution could take away.” 98 Tenn. at 351.) Nevertheless, the ancient role of rhetoric in final argument survives. We note an early expression of its importance in VanDyke v. Martin, et al., 55 Ga. 466, 470 (1875):
“[The summation] is not a mere ornamental fringe, hung upon the border of a trial. . . . The attorneys in the cause are not mere carriers to bring in materials for constructing the edifice; they have a right, as representing the parties, to suggest where every important stone should be laid, and to assign reasons, drawn from legitimate sources, in support of their suggestions.”
Over the decades, courts have become increasingly sensitive to the impact of improper argument upon an accused’s right to a fair trial — thus, our concern with unwarranted wanderings from the record. Nevertheless, we have not left the trial lawyer so emaciated that he or she may no longer refer to the blueness of the sky or the breadth of the firmament without first calling a meteorologist or a cosmologist as an expert witness.
Modem courts have allowed references in summation from sources as disparate as the Bible (Mayberry v. State, 603 P.2d 1150 [Okla. Crim. 1979]; People v. Wash, 6 Cal. 4th 215, 24 Cal. Rptr. 2d 421, 861 P.2d 1107 [1993]) and the Ann Landers advice column (Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64 [8th Cir. 1988]). In the case before us, we find that the prosecutor’s comments did not exceeded these time-honored rhetorical bounds now tempered with attentive concern for Henderson’s right to a fair trial.
Affirmed. | [
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Lewis, J.:
Appellant T.R. Incorporated of Ashland, Kansas, entered into a lease agreement with Mary Belle Brandon and others. The lease involved 3,697 acres of ranch and farmland. Although the parties had a written lease, they cannot agree on the proper construction of that lease. As a result, appellant filed this action against appellees concerning payments it claimed were due under tire lease. The trial court held for appellees, and this appeal followed.
■ Basically, the lease granted appellant the right to produce and harvest wheat in 1999, 2000, and 2001. It included the right to receive government wheat payments for those years. The lease also gave appellant the right to receive government feed grain payments for 1998 through 2001. One of the essential disputes between the parties involves the wheat crop of 2002.
Prior to the signing of the lease, the parties discussed plans to plant alfalfa. Alfalfa is a perennial legume crop which has a production life of 6 to 15 years. Appellant wanted a 5-year lease, but accepted a 3-year lease after receiving assurance from appellees that the lease would be extended if appellant was a good tenant. That also is a point of contention in this lawsuit. Appellant planted and established a good stand of alfalfa on 123 acres. Appellant planted the alfalfa in the summer of 1998 and received 2 crop years of alfalfa, 1999 and 2000.
On February 28, 2001, appellees terminated the lease with appellant effective May 1, 2001. Appellant did not receive any of the 2001 alfalfa crop. Appellant sprayed the alfalfa crop in April 2001 and did not receive any compensation for this action.
John E. Stephens II, appellees’ agent and one of the landowners, took over as a new tenant on the ground on May 1, 2001, after terminating appellant’s lease. Appellant was not allowed to plant a wheat crop for 2002 and did not receive the 2002 government wheat payments or any share of the 2002 wheat crop.
Appellant did not receive the 1998 government feed grain payments as they were received by the prior tenant. Appellant did receive the 2001 government feed grain payments, but the trial court ruled that appellees were entitled to the 2001 payments and ordered appellant to reimburse them for that amount.
In addition, the parties disagree on the pasture rented to appellant. At the time the lease was terminated, appellant had 280 cows on the property, 120 of which had been purchased specifically because of the lease in question.
As a result of the termination of the lease, appellant had no place to put his herd of cattle and asked appellees for a short-term pasture arrangement to avoid forced liquidation of the cattle. The parties agreed to a 6-month pasture lease for 120 head of cattle. Although the lease identified the leased area as the “north pasture,” both parties verbally understood that the area was approximately 1,000 acres. Instead, appellant received only 653 acres.
Without notice to appellees, appellant removed his cattle without paying $7,200, the second half of the pasture lease payment. Appellees filed a lien to recover the money owed, which was deposited by appellant with the clerk of the district court.
Appellant appeals the trial court’s judgment reforming the lease agreement and appeals tire trial court’s judgment denying compensation for the alfalfa crop. Appellees cross-appeal the trial court’s decision to abate part of the pasture rent.
We begin our effort to untangle the mess the parties have gotten into by examining our standard of review:
“The interpretation and legal effect of written instruments are matters 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).” Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
Where the district court has made findings of fact, the appellate court’s function is to determine whether the district court’s findings are supported by substantial competent evidence and whether the findings are sufficient to support tire district court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Unrau, 271 Kan. at 747. Conclusions of law are subject to unlimited appellate review. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
Perhaps the most contentious area in this action is who was entitled to the 2002 crop proceeds and government feed grain payments. The trial court interpreted the lease as giving the 2002 crop proceeds and the government feed grain payments to appellees.
If the language of a written lease is clear and can be carried out as written, there is no room for rules of construction. KPERS v. Russell, 269 Kan. 228, 236, 5 P.3d 525 (2000). Where contract terms are plain and unambiguous, the intention of the parties and the meaning of the contract are determined from the contract itself. Gray v. Manhattan Med. Center, Inc., 28 Kan. App. 2d 572, 580, 18 P.3d 291 (2001).
The lease provides that it is for a period of “three (3) years commencing with May 1, 1998, and ending on April 30, 2001.”
The primary issue between the parties is the meaning of Paragraph 4 of the lease agreement. That paragraph is rather inartfully written and depending upon which way one wishes to examine it could support the position of either party. Paragraph 4 provides that appellant is
“entitled to full ownership of all the wheat crop for the year of1999 through 2002, together with the wheat certificates [accruing] thereon, although this lease will expire on April 30, 2001; Second parties shall be entitled to full ownership of the wheat certificates [accruing] by virtue of the crop of 2001. Second parties shall be entitled to harvest and have possession of the 2001 wheat harvest crop.” (Emphasis added.)
The literal interpretation of Paragraph 4 would give appellant a 2002 wheat crop on a lease which expired April 30, 2001. This, in essence, means that appellant would receive the wheat crop without having planted it, worked the ground for it, harvested it, or having anything to do with the production of said wheat crop.
Appellant places its reliance on the emphasized portion of Paragraph 4 set forth above. On the other hand, appellees argue that the 2002 date in that paragraph is an obvious typographical error because it is not in line with customary farming practices in the region. Accordingly, appellees argue the court should reform the lease and make it clear that the tenant was entitled to all of the 2001 crop and government payments but none of the 2002 crop.
In granting summary judgment to appellees on this issue, the trial court held:
“The contract has an obvious contradiction of terms. In reviewing the document from all four corners, it is clear that the reference to 2002 in paragraph #4 is an aberration. Even when reading the remainder of paragraph #4 it makes complete sense if the 2002 contained on line 2 were changed to 2001. It does not make sense that someone would be able to exert ownership over a wheat crop for the year 2002, yet not have that year’s crop specifically mentioned on lines 4, 6, and 7 of the same paragraph.”
It is not our function to rewrite a contract of the parties or to change the language so that it reads the way we think it should read. However, we must examine all four corners of the instrument and analyze the language of Paragraph 4 in consideration of the entire lease and not with a critical analysis of a single or isolated provision. Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, Syl. ¶ 3, 961 P.2d 1213 (1998). Common sense and the customary farm lease in use at the time this lease was entered into would not give the tenant a right to a wheat crop planted and harvested after his lease terminated. We consider the language in Paragraph 4 to be ambiguous and confusing when examined in the light of the four comers of the instrument and in the light of customary farming practices and leases in effect at the time. We conclude, therefore, the trial court was correct in granting summary judgment to appellees and finding that it was the intent of the lease for appellant to receive the wheat payments through 2001 when the lease ended. The year 2002, we believe, was a typographical error and should be disregarded. We affirm the trial court’s grant of summary judgment on this issue.
A similar problem exists with regard to the government feed grain payment as provided for in Paragraph 6 of the lease. That paragraph states:
“Second Parties shall be entitled to the feed grain certificates and other government payments therefor for the years 1998 through 2001, the period that is under the lease. Second parties will again receive the feed grain certificates and other government payments excepting the wheat certificates as [aforesaid], commencing with May 1, 2001.”
Again, this particular provision of the lease is inconsistent with common farming leases actually used at the time this lease was entered into and creates an ambiguity with regard to the balance of tire lease. In holding in favor of appellees on this issue, the trial court said:
“Likewise, paragraph #6 contains an obvious mistake in that the wording of the contract indicated second party would be receiving feed grain certificates and government payments commencing May 1,2001. Since the lease was a three-year lease and ended on April 30, 2001, these grains would not have been planted by second parties. Additionally, the payments to second parties, as listed in the last sentence of paragraph #6, would have no ending date.”
We agree with the trial court’s interpretation of Paragraph 6. We must determine the intent of the contract by considering the four corners of the instrument, along with the evidence supporting the intent of the written instrument.
The lease itself was prepared by appellees, all of whom are laypeople, and none of whom are attorneys. However, appellant argues that because appellees prepared the written lease, it must be construed against them. Appellant contends the trial court failed to do so and this was reversible error.
It is a point of some importance that the written lease was prepared by appellees and not by an attorney. While the general rule is that written instruments are construed against the scrivener, it is not always the case where a layman drafts a multiple-page contract. “Greater latitude is allowed in construing an instrument which is prepared by a draftsman who is a layman, or unskilled, than in a case in which the instrument is prepared by a skillful draftsman. [Citation omitted.]” Springer v. Litsey, 185 Kan. 531, 535, 345 P.2d 669 (1959).
While acknowledging the correctness of the statement set forth above, we must conclude that it would be simply unconscionable to give appellant the crop proceeds and the government feed grain payments after the lease was terminated since this appears to be against the intent of the parties as ascertained from the four comers of the instrument. Whether the trial court properly construed the lease against the preparer or not, we still hold the trial court was correct in its decision to deny appellant the 2002 wheat crop and the government feed grain payment.
Appellant next employs equity in arguing it is entitled to recover the value of the perennial alfalfa crop under the doctrine of unjust enrichment. However, the trial court ruled, and we have affirmed that ruling, that the 3-year term set forth in the written lease was controlling. As a net result, appellant’s equitable claim has no merit.
The question of whether one party can recover damages from another based upon the theory of unjust enrichment is a question of law, with an unlimited scope of review. See Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 176, 910 P.2d 839 (1996).
The basic elements of a claim based upon a theory of unjust enrichment are threefold: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value. Haz-Mat, 259 Kan. at 177.
In the final analysis, the record shows that appellant bargained for a 5-year lease on the alfalfa. Appellees refused to grant it that term and granted it a 3-year term with an oral statement that it might be given an extension if it was a good tenant. It is quite obvious that there was a substantial risk to appellant in planting the alfalfa crop without a written agreement giving it the necessary years to recover its full cost and profit on that crop.
The next problem that faced the parties was what to do about the 1998 government feed grain payment. According to the lease, that payment was to be paid to appellant. However, it was in fact paid to the prior tenant of the real estate. The trial court held that appellant had no claim against appellees for this payment. It was the reasoning and theory of the trial court that appellant should make its recovery from the prior tenant. We agree.
Appellant also seeks reimbursement for spraying of tire alfalfa crop for 2001. Appellant insists the trial court erred in believing the claim was held by a separate company and not by a party to this action. However, appellant asserts that it paid the spray bill and is entitled to reimbursement. Since the claim was dismissed at pretrial, the facts showing that appellant paid for the spraying were not developed at trial.
Appellant failed to address this issue to the trial court and has therefore waived any right to appeal the court’s ruling. Issues not raised before the district court cannot be raised on appeal. Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
We now turn our attention to the cross-appeal of appellees. Appellees cross-appeal the trial court’s decision to abate some of the rent paid under the extended lease agreement.
The lease referred to the grazing area as the “north pasture.” Unfortunately, the lease contains no reference as to the amount of acreage, although it was apparently agreed upon by the parties to be approximately 1,000 acres. Instead of 1,000 acres, appellant received 653 acres. The trial court found the parties had agreed that appellant was to receive approximately 1,000 acres but instead appellant received only 653 acres. There was expert testimony by a veterinarian that cows should have 10 pasture acres each during a 6-month grazing period.
Accordingly, the trial court held the one-third reduction in acreage should result in a one-third reduction of rent owed on the lease.
We see no need to go into the details of the veterinarian’s testimony and only note drat it clearly shows that appellant did not have sufficient acreage to sustain his 120-cow herd.
We believe that substantial competent evidence supports the trial court’s findings of fact and conclusions of law. Given the admitted shortage of acreage and the number of barren cows, it was not an abuse of discretion for the trial court to exercise its equitable powers and order refunds of the pasture rent.
Accordingly, we affirm the trial court’s decisions on the issues raised by appellant and on the issue raised by appellees.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court overruling demurrers to an amended petition in an action to recover damages from the City of El Dorado for alleged negligent operation of its sewage disposal plant.
On September 9, 1955, Henry C. Watkins and Estella F. Watkins filed a written claim for damages with the City Clerk of El Dorado which, omitting formal allegations of ownership of a farm, consisting of ninety-five acres, and a metes and bounds description of the real estate, reads:
“All containing ninety-five (95) acres, more or less; claim damages against the City of El Dorado in the sum of Five Thousand and no/100 ($5,000) Dollars for injuries to their property and persons, by reason of the negligence of said City, its officers and employees.
“That the injuries complained of are the diminution in the value of the claimants’ farm, described above and injuries to the claimants’ health and well being.
“Said injuries are a direct result of the negligent operation of the sewage disposal plant of the said City. Such negligence consists of the discharge of improperly treated and non-treated sewage into tire Walnut River at a point immediately West and North of the above described farm of these claimants. That such sewage is discharged into and upon the said river in amounts greater than the amount of water in the said river, that said river has ceased to flow and that great amounts of raw and partially treated sewage have accumulated in the said river’s bed adjoining and West and North of the farm of these claimants. That said sewage is a menace to the health and well being of these claimants; that foul and noxious odors arise from said sewage and pass onto and over the farm of these claimants; that said river has become a breeding place for swarms of flies, mosquitos and other noisome insects, becoming- at times almost unbearable and putting these claimants in fear of their health and materially decreasing their enjoyment of their property.
“These claimants are entitled to the use and enjoyment of their property and home and entitled to have die air pure and free from contamination by the said City.
“That said injuries have been sustained through no fault of the claimants and solely through the negligence of the said City, its officers and employees.
“This claim covers' the three (3) months immediately preceding the date hereof.
“Dated this 7th day of September, 1955.”
The City took no action on the foregoing claim. Thereupon, and on October 20, 1955, more than thirty days after it had been filed with the City Clerk, plaintiffs commenced this action in the district court by the filing of a petition in one cause of action which, it may be stated, contains general recitals of the facts on which they rely for relief and includes a full and complete copy of such claim.
The defendant City challenged the petition by a motion to require plaintiffs to separately state and number the several causes of action therein combined and to itemize and set forth the amounts claimed as damages in each. This motion was sustained. Thereupon plaintiffs filed an amended petition which, omitting its prayer; allegations respecting the filing of the claim in question with the City Clerk; and formal recitals of the first and second paragraphs of its first cause of action, relating to the status of the parties, ownership and occupancy by the plaintiffs of a farm located adjacent to the city limits, and the legal description of that property, reads:
“First Cause of Action.
“3. That the defendant has constructed and now operates a sewage disposal plant, located immediately West and North of the Plaintiffs and that the defendant has operated said sewage disposal plant for more than one year ihimediately prior to the 9th day of September, 1955.
“4: That said disposal plant is located upon the North side of the Walnut River at a point where said river forms the Northwest boundary of Plaintiffs’ farm. That the effluvia of said plant is discharged into and upon the waters of said river at the point on said river aforesaid.
“5. That the County of Butler in the State of Kansas and the entire drainage area of the Walnut River in said County and State has suffered a prolonged drought. That as a result of said drought the river aforesaid has ceased to flow.
“6. That for more than three months immediately preceding the 9th day of September, 1955, a great amount of raw and partially treated sewage has been negligently and wilfully dumped and discharged into, and has accumulated in, the bed of the said Walnut River at the point adjoining Plaintiffs’ farm aforesaid.
“7. That said sewage is a nuisance and a breeding place for flies, mosquitoes and other vermin and is a menace to health. That foul and obnoxious odors arise from said sewage and pass onto and over the farm of the Plaintiffs’ becoming, at times, almost unbearable.
“8. That by reason of the above and foregoing the value of Plaintiffs’ property has been substantially depreciated in an amount reasonably of Two Thousand ($2,000.00) Dollars.
“Second Cause of Action.
“1. That for their Second Cause of Action herein the Plaintiffs renew each and every allegation heretofore set out herein as constituting their first cause of action.
“2. That as a result of the flies, mosquitoes and other vermin breeding and arising from the accumulated sewage aforesaid and the vile and revolting odors arising therefrom are a menace to Plaintiffs’ health and have put them in fear for their health and that the intense discomfort generated by the insects, other vermin and odors has materially affected Plaintiffs’ enjoyment of their home.
“3. That plaintiffs have an absolute right to enjoy their home and to have the air about said home pure and free from contamination by this Defendant, its officers and employees.
“4. That the wilfull negligence of the Defendant has resulted in material damage to Plaintiffs’ enjoyment of their home, has caused illness to plaintiffs and members of their family and jeopardized their health and that by reason thereof the Plaintiffs are reasonably entitled to the sum of Three Thousand ($3,000.00) Dollars as compensation therefor.”
Defendant first demurred to the amended petition on the ground that pleading failed to state facts sufficient to state a cause or causes of action against it in that there was not substantial compliance with G. S. 1949, 12-105 because plaintiffs had failed to set out in their claim either the time or place of the injury for which recovery was sought in the petition. When this demurrer was overruled, on the ground the notice of claim filed with the City Clerk was in substantial compliance with the requirements of such statute, defendant asked leave and obtained permission to file a second demurrer.
Upon the granting of this plea they filed a demurrer to the petition on grounds that (1) there was another action pending between the same parties for the same cause; (2) several causes of action were improperly joined; and (3) the petition failed to state facts sufficient to constitute a cause of action in favor of plaintiffs and against the defendant. This demurrer was also overruled. Thereupon defendant perfected an appeal from the rulings on both demurrers.
At the outset it should be stated appellant concedes the question whether there is another action pending between the same parties for the same cause does not appear from the face of the challenged pleading, hence the trial court correctly overruled the first ground of its demurrer. Thus it appears the appellate issues are restricted to questions relating to misjoinder of causes of action and the legal sufficiency of the amended petition.
The first claim made by appellant is that several causes of action are improperly joined in the second cause of action of the amended petition, hence the trial court should háve sustained the demurrer to such cause of action. This claim presents an unusual situation in that the parties are far apart in their views respecting the force and effect to be given the allegations of the challenged cause of action. On the one hand appellant contends that under their allegations the appellees have stated a cause of action for damages for separate and distinct injuries to each appellee, hence two causes of action are stated in one. On the other appellees insist that under such allegations they have pleaded a joint cause of action for damages for interference with the use and enjoyment of that property as their home. Let us see.
Appellees’ rights of recovery are based on, and they are bound by, the statutory (G. S. 1949, 12-105) claim they were required to file with the City Clerk as a condition precedent to the maintenance of any action against the City. (McGinnis v. City of Wichita, 180 Kan. 608, 306 P. 2d 127, and cases cited at page 610 of the opinion.) Resort to the claim, which for purposes of emphasis we again point out was attached to and made a part of the petition, discloses the injuries therein relied on are “That the injuries complained of are the diminution in the value of the claimants’ farm, described above and injuries to the claimants’ health and well being.” (Emphasis supplied.) Therefore they cannot now be heard to say, as in effect they do, that they have abandoned their claim for injuries of the character above emphasized as the basis for relief in their second cause of action and instead rely on injuries of an entirely different nature, namely, interference with their joint use and enjoyment of the property in question. In other words, the petition cannot vary statements made in their claim.
Thus we come to the question whether appellees may unite in one joint cause of action claims for damages for injuries to their respective health and well being. It may be added that with respect to such question we have no difficulty in concluding the involved claims are separate, distinct and necessarily personal to each appellee. In other words conceding appellees’ complaints, limited as heretofore indicated, against the appellant in the second cause of action are identical, the fact remains that each appellee is concerned only with recovering damages for his own personal injuries without regard to those sustained by the other. Indeed in this connection it should be pointed out that in their brief, and notwithstanding inconsistent arguments to the contrary, appellees expressly concede “the instant case is one for permanent damages to land, as distinguished from buildings and/or crops, etc., joined with an action for personal injuries.” Under such conditions and circumstances there can be no doubt that this court, in construing the force and effect to be given the provisions of G. S. 1949, 60-601, and earlier provisions of our code of civil procedure of like import, has long held that causes of action are improperly joined and subject to a demurrer based on that premise.
See the early case of Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961, where it is said:
“And under § 83, article 7, of the civil code, (now G. S. 1949, 60-601), ‘the plaintiffs may unite several causes of action in the same petition/ but, in order that they may do so, these ‘causes of action ’ must all belong to one of the several classes of actions mentioned in said section, ‘and must affect all the parties to the action, except in actions to enforce mortgages or other liens/ Now, where each of two plaintiffs has a separate cause of action, the separate cause of action of one of the plaintiffs would certainly not in any manner affect the other plaintiff; hence, under said § 83 of the civil code, such two separate ‘causes of action’ could not be united in one and the same action. But if they should be so united, then there would be an improper joinder of causes of action. (Jeffers v. Forbes, 28 Kan. 174.) And the question whether they could be so united or not might properly be raised by a demurrer to the petition, where the facts showing the same appear upon the face of the petition . . .” (p. 374.)
For a comparatively recent decision of like import, where the same subject is considered and discussed at length with reference to pertinent statutes of our code of civil procedure and applicable decisions, see Gallaway v. Purcell, 174 Kan. 659, 258 P. 2d 349.
See, also, Crisler v. C. K. Packing Co., 181 Kan. 118, 119, 120, 309 P. 2d 703.
In view of the foregoing decisions and what has been stated and held we are constrained to hold the trial court should have sustained appellants demurrer to the second cause of action on the ground causes of action were improperly joined.
The conclusion just announced means that the appellees cannot jointly maintain a cause of action or recover for their respective personal injuries in this action. On that account it is neither necessary, required nor proper that we here discuss or determine questions raised by appellant respecting whether the allegations of the second cause of action are sufficient to state a cause of action. Indeed, to do so would lead to an academic discussion upon abstract questions which do not arise on existing facts or rights. Such a situation calls for application of the long established rule of this court that it will not consider or decide questions whose determination would be without any practical legal effect. For decisions where this rule is stated, discussed and applied see West’s Kansas Digest, Appeal and Error, § 843(1).
Although the point is not stressed appellant suggests, at least by inference, that misjoinder of two causes of action in the second cause of action requires the sustaining of its demurrer to all causes of action set forth in the petition on grounds of misjoinder. We do not agree. Where, under conditions and circumstances such as are here involved, one cause of action must be ruled out on a demurrer and only one cause of action remains, the latter is not necessarily defective' for misjoinder with the cause which succumbs to the demurrer. (Campbell v. Durant, 110 Kan. 30, 202 Pac. 841.)
Having determined appellees cannot maintain their second cause of action we come to the question whether their first cause states a cause of action. That, as we have previously pointed out, is for damages, sustained by reason of the facts and conduct of the appellant as set forth in the petition, for diminution in the value of their farm in which they have a common ownership.
Decisive questions raised by appellant with respect to the issue now under consideration deal with the provisions of G. S. 1949, 12-105, which reads:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three months thereafter and prior to tire bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto. Such city shall have thirty days from the time of tire filing of such statement to make settlement with the claimant if it so desires.” (Emphasis supplied.)
Directing our attention to McGinnis v. City of Wichita, supra; Howell v. City of Hutchinson, 177 Kan. 722, 282 P. 2d 373; Wildin v. City of Hutchinson, 177 Kan. 671, 282 P. 2d 377; Hibbs v. City of Wichita, 176 Kan. 529, 271 P. 2d 791, and the numerous cases cited in the opinions of those decisions, appellant points out that this court has long been committed to the proposition that the provisions of the foregoing statute establish conditions precedent to the maintenance of an action against a municipality on account of injuries to persons or property; and that it is incumbent upon any person seeking to maintain such an action to affirmatively plead substantial compliance with the requirements of its provisions in order to state a cause of action against the city. The foregoing decisions so hold and we proceed upon that premise.
Specifically, appellant contends that appellees’ claim, which is attached to and made a part of their petition, as filed with the City Clerk, wholly fails to state the time of the happening of the injuries received in that it is completely barren of any assertion as to when such injuries occurred, either as to a specific date or time or as to the continuous happening thereof; and that the only averment of the claim which might be construed to comply with that vital element, is the following:
“This Claim covers the three (3) months immediately previous to the date hereof.”
In further support of its position appellant asserts that under the language just quoted the injuries complained of may have occurred on one day, may have occurred on successive days, may have been continuous throughout the three months period, or may have occurred prior to the commencement of such period of time; insists the fact the claim was made for damages during and covering such period is not to be considered as an assertion that such injuries occurred throughout or during such three months period; and contends that in any event so far as it relates to the fixing of a date on which the injuries occurred such language is not to be construed as substantially complying with, the requirements of the statute.
Careful consideration has been given all contentions advanced by appellant with respect to its position the claim filed by ap-pellees with the City fails to state the time of the happening of the injuries therein set forth and described. Mindful that this is an action to recover damages for alleged negligent operation of appellant’s sewage disposal plant as a continuing nuisance and that the claim filed with the City Clerk contains express language reciting that it covers the three months immediately prior to the date on which such claim was filed the court has concluded such language is to be construed as stating that the injuries complained of were continuous and occurred on all days of the three months period immediately preceding the date on which such claim was filed (September 9, 1955). With the claim so construed, we have no difficulty in further concluding that the amended petition, which includes such claim by reference, affirmatively pleads substantial compliance with the essential requirements of the provisions of G. S. 1949, 12-105, establishing conditions precedent to the maintenance of an action such as is here involved. It follows claims made by appellant to the effect the portion of the pleading now under consideration fails to state a cause of action cannot be upheld.
In view of what has been heretofore stated and held the judgment of the trial court in overruling the demurrer to the second cause of action of the amended petition is reversed with directions to sustain such demurrer and its judgment overruling the demurrer to the first cause of action of such pleading is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in a recovery action from an order of the trial court sustaining demurrers to plaintiff’s petition by each of two defendants.
Plaintiff, a Kansas corporation with its principal place of business at Hutchinson, filed its petition against the Jensen Construction Company (hereafter called Jensen), a foreign corporation authorized to do business in Kansas, and an individual, Farrell Callo-way. On August 3, 1955, Leslie Wilson purchased a tractor-trailer truck from Price Auto Service Company of Wichita. Part of the purchase price was a note secured by a chattel mortgage on the truck payable to Price Auto Service which note and mortgage were immediately assigned to plaintiff. It was further alleged that at 5:30 p. m. on September 23, 1955, due to the negligence of Callo-way, while acting as agent for Jensen, the truck, being driven by Leslie Wilson, was damaged in a collision between it and a 1953 Mercury sport coupe driven by Calloway. Copy of the chattel mortgage was attached to the petition.
Motion to make the petition definite and certain was filed by Calloway and overruled, but one by Jensen was sustained. Plaintiff was required to set forth in an amended petition the name of the insurance company from which it received any funds, and the amount thereof, or if no money were received from any insurance company, such information was to be furnished Jensen, or its attorney.
Plaintiff complied with the trial court’s order by informing defense counsel that it had received no sums from Wilson’s insurance carrier. Cálloway filed a general demurrer and Jensen filed a general demurrer coupled with an attack on plaintiff’s capacity to sue and to prosecute the action. In sustaining these demurrers the trial court found:
“The petition fails to show that the plaintiff has the possession or the right of possession of the subject matter of the action; also, since the mortgage contains a clause that the mortgagor shall retain possession of tire chattel, the Court is of the opinion that the demurrers should be and they are sustained. The Plaintiff, however, may if it wishes, file an amended petition.”
Plaintiff appeals from this finding and order and the sole question presented here, therefore, is whether a mortgagee under a chattel mortgage can maintain an action and recover damages from one who has by his negligence damaged the mortgaged property resulting in an impairment or loss of such mortgagee’s security.
The original amount of the note was $3,975.12 and at the time of filing the action the balance due was $2,325.96 which was alleged to have resulted from a payment to plaintiff after the collision. Plaintiff contends that it can be reasonably inferred this payment was the amount received for salvage of the truck. Plaintiff then contends that since it alleged the sum of $2,325.96 remains unpaid, that means Wilson made no payments and this created a default in the terms of the mortgage, pertinent parts of which read:
“In case said mortgagee shall at any time thereafter feel unsafe or insecure he shall be entitled to, and may take possession of said mortgaged property . . . until the payment of said note . . . for . . . which this mortgage is security. If, however, said mortgagee shall not take possession of said property for the reason aforesaid, the said mortgagor shall retain possession and control, and have the ordinary use and benefit of said mortgaged property ... as the owner . . . until default, or until breach of one or more of the conditions of this mortgage, which are agreed upon by the parties hereto as follows:
“1st. Said mortgagor shall keep the actual possession and control of said property . . .,” (our emphasis)
and,
“It is expressly agreed by the parties hereto, that in case default should be made in the payment of said note ... at maturity . . . that in such case, said note . . . and the whole of said mortgage debt shall, at the option of said mortgagee become immediately due and payable and said mortgagee . . . shall have the right to the immediate possession of said mortgaged property . . . and the right to take immediate possession of the same, and to foreclose this mortgage . .
which plaintiff interprets as a further argument that it was entitled to immediate possession even though the petition alleges that at the time of the collision the truck was being driven by Wilson, the mortgagor.
Plaintiff finally contends that as a result of all these inferences, recovery by it, as mortgagee, would be justified against the third parties, Calloway and Jensen, for negligently destroying or damaging the security covered by the mortgage.
Defendants concede that a mortgagee in possession or a mortgagee with a right of immediate possession, because of condition broken, can maintain an action for damages to the mortgaged property but they deny that a mortgagee who later gets possession has such a right of action.
We are here concerned only with the petition and the allegations therein contained.
To follow plaintiff’s theory that it was actually in possession of the truck, or had the right to possession, would involve pure speculation by first inferring that Wilson owed a payment at the time of the collision, in the face of the allegation that a payment was made after the collision, the source of which payment is nowhere disclosed or explained in the petition, and then arriving at a second inference that Wilson was therefore in default so that plaintiff was entitled to possession. Such pyramiding of inferences cannot be done. (Emigh v. Andrews, 164 Kan. 732, 191 P. 2d 901.) Plaintiff cannot deny that the mortgage placed possession and all rights thereto in Wilson, who was alleged to have been driving and in possession of the truck at the time of the collision. Thus we have before us the very exception contemplated under G. S. 1949, 58-307, which reads:
“In the absence of stipulations to the contrary, the mortgagee of personal property shall have legal title thereto, and the right of possession.” (Our emphasis. )
Consequently, it is inescapable that all there is left to plaintiff under the allegations of this petition is a lien on the truck. (Frankhouser v. Ellett, 22 Kan. 127, 147; Kennett v. Peters, 54 Kan. 119, 121, 122, 37 Pac. 999; Peabody State Bank v. Hedinger, 170 Kan. 237, 224 P. 2d 1014.)
When examined, authorities cited by plaintiff prove to be inapplicable, or from other jurisdictions which have different statutes and rules from those obtaining in our jurisdiction (Kennett v. Peters, supra, Syl. ¶ 1) and we will not unduly extend this opinion by a discussion thereof. The case of Bankers Investment Co. v. Central States Fire Ins. Co., 164 Kan. 682, 687, 192 P. 2d 214, relied on by plaintiff, states in its context the general rule set out in 14 C. J. S., Chattel Mortgages, § 216, p. 822, and 10 Am. Jur., Chattel Mortgages, § 183, p. 837, but that case involved an entirely different situation from the one now before us because no mention is made therein of possession, or right to possession. If possession, or right to possession, is in the mortgagee, as required by our decisions, at the time of a wrongful personal tortious injury or destruction of a chattel securing a mortgage, then without question the mortgagee, under the general rule and also under the rule in Kansas, could recover against a third party wrongdoer or tort-feasor.
We are compelled to conclude, as did the trial court, that plaintiff did not sufficiently allege in its petition that it had possession, or the right to possession, of the truck so as to maintain the action it herein seeks. The trial court properly sustained the demurrers.
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The opinion of the court was delivered by
Robb, J.:
Plaintiffs, as copartners, filed an action for recovery of certain money; defendant answered and cross-petitioned for return of the purchase price he had paid for a one-eighth interest in an oil and gas lease. The verdict of the jury and the judgment were in favor of defendant on his cross-petition. Plaintiffs appeal.
The petition and answer are not in controversy and we will, therefore, proceed to the salient portions of the cross-petition. On July 2, 1955, plaintiffs offered to sell to defendant a one-eighth interest in a certain oil and gas lease owned by them and defendant gave them his check in the sum of $1,500 therefor. On July 15, 1955, plaintiffs tendered defendant an assignment of the one-eighth interest subject, however, to a one-sixteenth of seven-eighths overriding royalty. On July 16, 1955, defendant notified plaintiffs that he would not accept the assignment and demanded delivery of one containing no overriding royalty, as had been agreed at the time of purchase. On July 23, 1955, plaintiffs refused to deliver such a lease, and defendant on August 29, 1955, demanded return of the $1,500 purchase money. Plaintiffs at that time refused and they have since then neglected and refused to return the money. By his cross-petition defendant sought to recover back the $1,500 together with the legal rate of interest from July 2, 1955.
Plaintiffs’ general demurrer to this cross-petition was overruled and that ruling is assigned as the trial court’s first error. In their argument on this phase of the appeal, the parties refer to parts of the evidence but at this stage of the proceeding in testing the propriety of the trial court’s order on a general demurrer challenging its sufficiency, we consider only the pleading attacked (Wendler v. City of Great Bend, 181 Kan. 753, 755, 316 P. 2d 265) and we will take as true the well-pleaded allegations of this cross-petition and give all favorable inferences that may be drawn therefrom. (Merchant v. Foreman, 182 Kan. 550, 322 P. 2d 740.) With these preliminary matters relating to the cross-petition disposed of, we turn next to the more vital question involving both the cross-petition, and the evidence in support thereof, since the trial court’s order overruling a demurrer to this evidence is the next error complained of by plaintiffs. We apply the same rule in considering a trial court’s order determining the sufficiency of evidence, when attacked by demurrer, as we do when considering an order that determines a demurrer to a petition. If there is good substantial evidence to support the contentions of the party adducing it, a demurrer thereto should be overruled.
The evidence was uncontradicted that two men, West and May-brier, approached defendant on June 29, 1955, with an offer to sell him an interest in the seven-eighths working interest of the Nejdl oil and gas lease in Ellsworth county. These negotiations reached a climax on July 2, 1955, in the offices of Robert and Richard Shields, plaintiffs herein, who are copartners in Shields Oil Producers engaged in drilling for and production of crude oil. Robert is also president of the Shields Drilling Company, a Kansas corporation, which owns a rotary rig and does the actual drilling of wells. While in the office on July 2, 1955, defendant gave plaintiffs his check for $1,500 as follows:
“Defendant's Exhibit No. 1 July 2, 1955 No. The Planters State Bank 83-64 1011 Pay to the Order of Shields Drilling Company, Inc. $1,500.00 One thousand five hundred and no/100 - -- -- -- -- dollars Salina, Kansas. The Planters State Bank
‘_ /s/ Fred Meyer, Jr.” E. H.
The check was endorsed by the Shields Drilling Company, Incorporated, and in receipt therefor defendant received the following letter:
’Defendant's Exhibit No. 5 R. J. Shields, President R. L. Shields, Vice President Shields Drilling Company, Inc. Russell, Kansas July 2, 1955 Mr. Fred Meyer, Jr. Sylvan Grove Kansas Re: Proposed Nedjl’Test Shields-Maybrier Farm-Out NE/4 of Sec. 31-15-10 Ellsworth County, Kansas
Dear Mr. Meyer:
This will acknowledge receipt of your deposit of $1500.00 covering your % interest in the drilling of the above captioned test well.
The assignments and other supporting evidence will follow in the next few days.
Sincerely,
Shields Drilling Company, Inc.
/s/ R. J. Shields
R. J. Shields, President”
RJS:pl
Later defendant received an oil and gas lease interest in the usual form which assigned an undivided one-eighth interest in the Nejdl lease subject to the following clause:
“This assignment is subject to assignee’s proportionate share of one-sixteenth (Jieth) of seven-eighths (%th) overriding royalty, previously conveyed.”
This assignment was executed and notarized on July 5, 1955; according to the postmark it was mailed on July 14, 1955, and was received by defendant on July 16, 1955, about 9:30 a. m. at the Sylvan Grove postoffice. At 10:00 a. m. on the same day, according to former arrangement, West and Maybrier came to defendant's farm to pick up the assignment in order that they could record it. Defendant told them he had received the assignment but he had not received what he bought. He had not bought the override. He had not and he would not accept it. If they would correct the assignment and give him a full eighth without any override, everything would be “fine and dandy.” They asked if he wanted his money back and he answered he did not.
On July 16, 1955, defendant wrote. Robert Shields the following letter:
“Dear Mr. Shields:
“This is to notify you that I received an assignment of oil and gas lease which your salesmen Harry West and Maybrier sold to me on the First day of July 1955, an full One Eight of the Seven Eights working interests clean without any over riding royalty whatsoever.
“Now you sent to me an assignment of oil and gas leáse with an %6 One sixteenth over riding royalty attached to it, that is not what I purchased from your salesmen. Harry West and Mr. Maybrier.
“Listen this deal looks to me as though it has been misrepresented and false pretensed to me by said salesmen. I will not accept said assignment as is.
“I request that yon issue to me an assignment that states as % one-eight of the % seven-eights working interest, without any overriding royalty whatsoever attached to it.
“Mr. Shields will you be kind enough to help iron out this matter. I do not want to make trouble, I demand my full right title and interest in this assignment. Clean — No—Overriding—Royalty Attached — to—It.
“I shall never File this assignment or put it of record until I receive one that has no overriding clause attached to it.
“I will not spend any money for equipment on said well, until this matter is straightened up to my entire satisfaction.
“I am granting your Salesmen Five Days to clean this matter up, better get busy at once, if they fail to do so, then they will force me to take action in an legal way. I talked the matter over with one of my legal advisors he told me to write to you and explain the matter to you before taking action.
“Mr. Shields I believe we can iron this matter out to my satisfaction.
“Kindly let me hear from you at once. I thank you.
Yours very sincerely,
Fred Meyer, Jr.”
Shields replied on July 23, 1955, but we do not deem it necessary to reiterate the contents of his letter.
On August 5, 1955, because of water, the well was abandoned.
The oral testimony was conflicting on the interest that defendant received in return for his $1,500 and it would serve no useful purpose to detail it.
Plaintiffs’ principal contention is that the cross-petition and evidence failed to plead and prove that defendant was entitled to the return of his $1,500 because he had not complied with a primary requirement of equity that when a litigant seeks to rescind a contract, he must place, or offer to place his adversary in status quo, as stated in the landmark case of Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932. In that case plaintiff’s petition alleged he was induced by fraud to purchase 100 shares of stock but only fifty shares were delivered to him. In payment he transferred a note and mortgage in the sum of $10,200. Seller paid plaintiff $200.00 accrued interest. Return of the note and mortgage was sought by plaintiff but no mention was made of the return of the $200.00 interest paid him by the seller. The rule is that in an action for rescission on the ground of fraud the plaintiff must wash his own hands of money derived from a transáction or, as generally stated, a plaintiff seeking rescission must place, or offer to place, the defendant in status quo and a petition which does not plead restoration, or offer of restoration, of what plaintiff received, is not only demurrable but is not good as against an objection to the introduction of evidence, (p. 110.) Failure of the evidence to establish an offer to place the adversary in status quo makes that evidence likewise demurrable. (Webster v. Toland, 148 Kan. 36, 41, 79 P. 2d 884.) For other decisions so holding as to restoration of status quo, see Baron v. Lyman, 136 Kan. 842, 849, 18 P. 2d 137; Brandtjen & Kluge, Inc., v. Lucas, 153 Kan. 138, 141, 109 P. 2d 197.
On the other hand, as to exceptions to the above rule, defendant refers us to Fairbanks v. Walker, 76 Kan. 903, 92 Pac. 1129, where an oil storage tank furnished a buyer was of an inferior kind and quality to the one agreed upon and the court there said the general rule in regard to rescission does not always require an absolute and literal restoration of the parties to their former condition but it will suffice if such restoration be made as is reasonably possible, and such as the merits of the case demand. Defendant then cites Niquette v. Green, 81 Kan. 569, 106 Pac. 270, which was an action against an executor for specific performance of. a contract to sell and convey land and it was held that tender to a vendor is not a condition precedent to the maintenance of the action when the vendor has put himself in default by repudiating the obligation of the contract of sale. On pages 581 and 582 of the opinion there appears a good discussion of the maxim that “Equity does not insist on purposeless conduct and disregards mere formalities.” Finally, defendant relies on Wells v. Higgins, 144 Kan. 155, 58 P. 2d 1097, an action to cancel and set aside a deed, quiet title, and to cancel and set aside a bill of sale of personalty — all parts of the same contract. This court there cited Ely v. Joslin, 111 Kan. 638, 643, 208 Pac. 628, and quoted therefrom as follows:
“ ‘Under the circumstances a tender of the money then would have been useless, as the defendant, by words and conduct, had indicated that he was unwilling to perform. It has been decided that “where one party by his act renders a tender useless and foolish, the other party is not required to make the tender.” (p. 165.)
In the Wells case the following statement from 3 Black on Rescission and Cancellation was also quoted:
“ ‘Moreover, any insufficiency in a tender of rescission and return will be waived by an absolute refusal of the other party to entertain the proposal at all.’” (p. 165.)
In view of the allegation in defendant’s cross-petition that after receiving the one-eighth assignment subject to a one-sixteenth overriding royalty, he notified plaintiff the very next day of his refusal to accept the assignment and demanded delivery of an assignment containing no override, which plaintiffs totally disregarded, and the oral testimony brought out in defendant’s. evidence, a clear cut situation was shown that absolute and literal restoration of the parties to status quo would have been purposeless, useless and foolish. Applying the legal principles announced, we must, therefore, concur with the trial court’s orders overruling the demurrers to the cross-petition and to the evidence of defendant. It follows that other questions based on this proposition must be determined in the same way.
Plaintiffs additionally contend that a counterclaim must satisfy the requirements of a petition as though it were filed in an original action. (Allen v. Douglass, 29 Kan. 412.) We believe the counterclaim here concerned does satisfy that requirement and we have so treated it in our discussion.
Another contention of plaintiffs that defendant attempted to rely on inconsistent remedies is well discussed in Taylor v. Robertson Petroleum Co., 156 Kan. 822, 826, 137 P. 2d 150 and in Deal Lumber Co. v. Vieux, 179 Kan. 760, 765, 298 P. 2d 339. In addition they attempt to make use of the prayer of the cross-petition to qualify this contention. We have said that a prayer is not of vital importance if the petition states a cause of action because a prayer is merely the pleader’s idea of the relief to which he is entitled. (Rodenberg v. Rodenberg, 149 Kan. 142,145, 86 P. 2d 580.)
An examination of the requested instructions to the jury and those given by the trial court reveals no error. Judgment was properly entered in favor of defendant based on the verdict of the jury.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the judgment of the trial court denying petitioner’s application for a writ of habeas corpus and remanding petitioner to the custody of respondent.
The petitioner contended in the court below that he is being unlawfully restrained, held in involuntary servitude and deprived of his liberty because “of case records denying . . . equal protection . . . and . . . due process of law” under Kan sas statutes and the fourteenth amendment of the constitution of the United States. The records referred to are in case No. 3443 (State of Kansas v. Roy Ramsey) issued by the district court of Crawford county, sitting at Pittsburg. Petitioner seeks immediate release.
Respondent in his answer and return generally denied the allegations of the petition. He admitted petitioner’s confinement in the state penitentiary but denied that it violated the state statutes or constitution, or the constitution of the United States. The answer further alleged: The confinement was pursuant to a conviction of first degree murder and sentence to life imprisonment by the Crawford county district court on October 16, 1948; petitioner had entered a plea of guilty to first degree murder; that after being offered appointment of counsel, he had executed a waiver before the clerk of that court stating that he did not wish counsel appointed; that petitioner is further restrained, pursuant to a conviction on October 25, 1948, of first degree burglary and grand larceny and a sentence .by the Douglas county district court, which is to run concurrently with that of the Crawford county district court, wherein petitioner, who was represented by court-appointed counsel, waived any right to a preliminary hearing, waived arraignment, and entered a plea of guilty to the charges of first degree burglary and grand larceny. Neither of the sentences has expired or been commuted by the governor and petitioner is not entitled to be released from confinement. The informations, journal entries, and commitments were attached to the return.
While the information forwarded to the record clerk at the penitentiary did not contain the names of witnesses for the state, the clerk of the Crawford county district court made an affidavit that the names of five witnesses for the state were on the information filed therein.
At a hearing where petitioner was present and the state was represented by an assistant attorney general, the petitioner introduced evidence and at the conclusion thereof the trial court dissolved the theretofore issued writ of habeas corpus and remanded petitioner to the custody of respondent. Hence this appeal by petitioner.
On February 22, 1958, a nunc pro tunc order was entered by the Crawford county district court showing that through an oversight or omissioxr certain findings, were omitted from the original journal entry wherein the court found that it would not have been to petitioner’s advantage to have had court-appointed counsel over his objection, pursuant to G. S. 1949, 62-1304. The original journal entry was corrected by the following being inserted therein and made a part thereof:
“The Court also finds that the appointment of counsel by the court over defendant Roy Ramsey’s written waiver and objection would not be to his, the said Roy Ramsey’s advantage.”
Petitioner first complains that the information could not be filed and the trial court did not possess jurisdiction to accept the plea or impose sentence because he had not been afforded a preliminary hearing but the record shows that a complaint and warrant were filed in the city court of Pittsburg and that on October 16, 1948, petitioner in open court waived preliminary hearing and was re-sultingly ordered held for trial in the district court. When this record was filed in the district court, petitioner could not then, and certainly cannot now, be heard to contend that he had not been afforded a preliminary hearing. (State v. Myers, 54 Kan. 206, 38 Pac. 296; State v. Bland, 120 Kan. 754, 244 Pac. 860; State v. Aspinwall, 173 Kan. 699, 252 P. 2d 841; Plasters v. Hoffman, 180 Kan. 559, 560, 305 P. 2d 858.)
The record does not support petitioner’s next contention that he did not understand he was entitled to a preliminary hearing and he pled guilty to the information because he believed the court had jurisdiction. The Crawford county district court did have jurisdiction as is shown by the above authorities.
Petitioner contends the information did not bear the names of the state’s witnesses but that was shown not to be correct in view of the affidavit of the Crawford county district court clerk to the effect that the names of such witnesses did appear on the information on file in that office. (See, also, Barrett v. Hand, 181 Kan. 916, 317 P. 2d 412.)
Petitioner complains others were also, charged in the informa: tion but he was the only one tried. Albeit true, any one or all could be convicted or acquitted (G. S. 1949,-62-1015) or they could be tried jointly or severally. (State v. Sterns, 28 Kan. 154, 158.)
A contention is made that the journal entry did not contain any designated applicable statute but that will not justify a release on a writ of habeas corpus. The journal entry is merely incomplete and may be remedied. (Wilson v. Hudspeth, 165 Kan. 666, 668, 669, 198 P. 2d 165; Reffitt v. Edmondson, 177 Kan. 83, 86, 276 P. 2d 341.) If petitioner by his plea has in mind reference to the sufficiency of the information, that defect was waived by his plea of guilty, and further, such a defect cannot be raised or considered in a habeas corpus proceeding. (Barrett v. Hand, supra, p. 918.)
The next two assignments of error are not supported by the record and petitioner’s uncorroborated statements in regard thereto are not sufficient to justify the issuance of the writ. (May v. Hoffman, 179 Kan. 149, 153, 293 P. 2d 265.) In addition, no introduction of evidence was necessary after petitioner entered his plea of guilty. (Curl v. Hoffman, 179 Kan. 153, 154, 292 P. 2d 1118.)
The last contention is that petitioner was not served with a copy of the information forty-eight hours prior to trial under G. S. 1949, 62-1302, but the record does not invoke the application of that statute, which is well discussed and applied in the case of State v. Applegate, 180 Kan. 186, 303 P. 2d 148. (See, also, Darling v. Hoffman, 180 Kan. 137, 138, 139, 299 P. 2d 594.)
In any event the petitioner has another sentence to serve for the commission of first degree burglary and grand larceny, and under our rules he is not entitled to a writ of habeas corpus at this time. (May v. Hoffman, supra, p. 153.) Many of his contentions could have been raised on a timely appeal but habeas corpus is no substitute therefor. (Ferguson v. Hoffman, 180 Kan. 139, 141, 299 P. 2d 596.)
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the Superintendent of the Motor Vehicle Department from an order of the lower court which sustained a motion for judgment on the pleadings and granted a peremptory writ of mandamus upon the application of a civil service employee of the State of Kansas requiring the Superintendent to more specifically state the reasons for the employee’s dismissal.
The principal question presented is whether the extraordinary remedy of mandamus may be sought to compel the Superintendent, upon the facts and circumstances herein presented, to specifically state the reasons for the discharge of a permanently classified employee, while a statutory appeal of the employee is pending before the Kansas Civil Service Board.
The facts material to the disposition of this appeal are as follows: On the 28th day of August, 1957, Malcolm M. Gray, a civil service employee, appellee herein, was dismissed for cause. Pursuant to G. S. 1949, 75-2949, the Superintendent of the Motor Vehicle Department, appellant herein, prepared a letter setting forth the reasons for Gray’s dismissal and within time mailed the original to Walter F. Kuiken, Director of Civil Service, Kansas Department of Administration, and a copy to Gray. The body of the letter reads:
“Please be advised that on August 28, 1957, Mr. Malcolm M. Gray, Executive I, a permanent classified employee assigned as Supervisor of the Dealers’ Division of the Motor Vehicle Department was dismissed for cause.
“Pursuant to Civil Service Rule No. 19-10-5, please be advised that the reasons for Mr. Gray’s dismissal were:
“(1) General incompetence — inability to direct the activities of his section.
“(2) Issuance of contradictory directives to several dealers subject to regulation by his section.
“(8) Causing confusion in Iris section by the issuance of contradictory instructions.
“(4) Failure to require dealers’ reports as provided by G. S. 1949, Section 8-137.
“(5) Unsatisfactory liaison with Titles and Registrations Division and others.
“(6) Incompetent office management.
“(7) Sleeping on duty.”
Within the statutory time Gray filed his appeal from the dismissal with the Kansas Civil Service Board. The date for hearing Gray’s appeal was set for September 27, 1957, by the Board and all parties were notified of such setting. On the 9th day of September, 1957, Gray filed a motion before the Board entitled “Motion to Make More Definite and Certain and to Strike.” After due notice and hearing this motion was overruled by the Board on the 12th day.of September, 1957.
Thereafter on the 19th day of September, 1957, while this appeal was pending before the Board for hearing, Gray filed an application for a writ of mandamus in the district court of Shawnee County, Kansas. An alternative writ of mandamus issued directing the Superintendent, appellant herein, to appear and show cause on the 27th day of September, 1957, why a peremptory writ of mandamus should not issue. This was the same day set for the hearing of Gray’s appeal from his dismissal on its merits before the Board. At Gray’s instance the hearing before the Board was continued and still remains pending.
At the hearing in the district court on the application for the writ of mandamus Gray filed, and there was argued, his motion for judgment on the pleadings and for the issuance of a peremptory writ directing the Superintendent to furnish the Personnel Director of the Department of Administration a letter setting out specifically the reasons for his dismissal. This motion was sustained and a peremptory writ of mandamus issued on the 6th day of November, 1957. The Superintendent duly appeals to this court.
The pertinent statutory sections are G. S. 1955 Supp., 75-2929, and G. S. 1949, 75-2949. The Board is empowered to hear appeals in 75-2929, supra, in the following language:
“The state civil service board shall hear appeals taken to it pursuant to sections 75-2940 and 75-2949 of the General Statutes of 1949 or any amendments thereto, and shall conduct hearings and pass upon complaints by or against any officer or employee in the classified service for the purpose of demotion, suspension, removal, or dismissal of such officer or employee, in accordance with the provisions of this act and acts amendatory thereof or supplemental thereto, and shall establish such rules and regulations as may be necessary to give effect thereto. . . .” (Emphasis added.)
The provisions relative to dismissal of civil service employees are set forth in 75-2949, supra, in the following language:
“(1) An appointing authority may dismiss any permanent classified employee when he considers that the good of the service will be served thereby, and for disciplinary purposes may suspend without pay a permanent classified employee for a period not to exceed thirty days but no permanent employee in the classified service shall be dismissed for political, religious or racial reasons. In case of a dismissal or suspension, the director shall he furnished with a statement in writing specifically setting forth the reasons for such dismissal or suspension. Upon request, a copy of such statement shall be furnished to such employee.
“(2) Any employee so dismissed or suspended may request in writing witliin thirty days after receipt of such notification a hearing before the board to determine the reasonableness of such action and the board shall grant the employee a hearing within forty-five days after receipt of such request.
“(3) After the hearing and consideration of the evidence for and against a suspension the board shall approve or disapprove such action and in the event of a disapproval the board shall order the reinstatement of the employee and the payment to the employee of such salary as has been lost by reason of such suspension.
“(4) After the hearing and consideration of the evidence for and against a dismissal the board shall approve or disapprove such action and may make any one of the following appropriate orders. (A) Order the reinstatement of the employee and the payment to tire employee of such salary as has been lost by reason of such dismissal. (B) Sustain the dismissal of such employee, unless the board finds that the dismissal was based upon political, racial or religious reason, in which case, it shall order the reinstatement of the employee and the payment to the employee of such salary as has been lost by reason of such dismissal. (C) Except as provided above the board may sustain the dismissal, but may order the name of the dismissed employee returned to the appropriate registers, or may take steps to effect the transfer of such employee to a comparable position in another department.
“(5) The board shall establish such rules as may be necessary to give effect to tlie provisions of the above section.” (Emphasis added.)
The general and well established rule is that mandamus is an extraordinary remedy, discretionary in character, and may ordinarily be brought only on relation of the proper public official, but private citizens may maintain it where they have a special and peculiar interest in the matter not common to the public generally and a clear legal right to compel performance of a specific act by the officer sought to be coerced. (Bradley v. Cleaver, 150 Kan. 699, 95 P. 2d 295.) The only purpose of a writ of mandamus is to require a person to whom it is issued to perform some act which the law specially enjoins as a duty resulting from an office, trust, or station. (State, ex rel., v. Shanahan, 173 Kan. 403, 246 P. 2d 305; G. S. 1949, 60-1701, and cases cited thereunder.) The statutory law of this state provides that a writ of mandamus may not issue in any case where there is a plain and adequate remedy in the ordinary course of the law. (John Hancock Mutual Life Ins. Co. v. Sullivan, 179 Kan. 167, 294 P. 2d 234; G. S. 1949, 60-1702, and cases cited thereunder.)
It has been held that mandamus cannot be used to control discretion, correct errors, or revise judicial action. Mandamus cannot be used as a substitute for appeal and it will not lie even though the party has no right of appeal or other remedy to review the action of a court, as the want of such remedy does not of itself entitle the party aggrieved to the extraordinary remedy of mandamus. (Brockman v. Bayman, 135 Kan. 238, 10 P. 2d 31; and Railroad Co. v. Shinn, 60 Kan. 111, 55 Pac. 346.) Here, however, we are not concerned with judicial action but with ministerial duties and a ministerial board.
The question presented for determination in the instant case is one of first impression under the Kansas Civil Service law and no decision to which we have been cited by counsel is squarely in point.
In Telephone Association v. Telephone Co., 107 Kan. 169, 190 Pac. 747, it was held that the statute forbidding a writ of mandamus, where there is a plain and adequate remedy in the ordinary course of law, was merely declaratory of the common law, and that the plaintiff there had a plain and adequate remedy by application to the court of industrial relations, as the legal successor to the public utilities commission. Counsel there contended that such remedy was out of the ordinary course of law and cited Larabee v. Railway Co., 74 Kan. 808, 88 Pac. 72. Justice Rurch there speaking for the court in 1920, explaining the Larabee case, recognized the change in times which brought about a tribunal such as the court of industrial relations, beyond the range of legislative vision in the Larabee case, and said:
“. . . It is now clearly perceived that what is most needed in the field of business intercourse is expert administrative adjustment, and not court adjudication. Advancing step by step according to that principle, the lesiglature superseded the board of railroad commissioners with the public utilities commission, gave it authority to regulate public utilities generally, and then superseded the public utilities commission with the court of industrial relations, and gave it greatly amplified powers. The policy has become .the settled policy of the state. It contemplates that any controversy which naturally falls within the scope of the jurisdiction of the court of industrial relations shall be adjusted there, subject to such review by the courts as the statute provides and the mandamus statute must be interpreted accordingly. . . .” (p. 174.)
It is apparent from the statutes relating to civil service that there is no specific provision for appeal to the district court from any orders or determinations made by the Civil Service Eoard. In this respect the instant case differs from Telephone Association v. Telephone Co., supra. The right of appeal, if any exists, must be found in the general provisions of the code of civil procedure. (G. S. 1949, 60-3301.) In this connection the foregoing statute has been construed in Anderson v. Hedges, 160 Kan. 665, 165 P. 2d 425. It was there held that the board of managers of the Kansas Soldiers’ Home, a statutory board, was an administrative ánd not a judicial body, and, in the absence of a specific statutory provision therefor, its acts were not subject to appellate review under the code of civil procedure. Similarly, while it may be said that the Kansas Civil Service Roard acts gwasi-judicially, it is only a ministerial board and performs no judicial functions. It is not a judicial tribunal and has never been classed as such.
The appellant herein argues that appellee Gray is attempting to seek a review of the Civil Service Hoard’s ruling on his original motion to make more definite and certain and to strike portions of the letter addressed to the Director of Civil Service setting forth the reasons for Gray’s dismissal. There is merit to this contention since Gray invoked the jurisdiction of the Civil Service Roard by filing his written request for a hearing before the Board to determine the reasonableness of his dismissal, was granted a hearing by the Board, and prior to such hearing sought the Board’s ruling on his “Motion to Make More Definite and Certain and to Strike” which was determined adversely to him. After such adverse ruling he immediately filed the mandamus action in an attempt to avoid the ruling. Under each of the statutes material herein the Board has rule making powers to give effect to the provisions of the statute. The Board in conducting hearings is not bound by the technical rules of evidence. (G. S. 1949, 75-2932.) Even if this were an action pending before a judicial tribunal, on the facts herein disclosed, no right of appeal would exist at this juncture. Clearly at this point in the proceedings before the Board mandamus could not be invoked against the Board to substitute the court’s judgment for that of the Board.
The rules concerning ministerial acts of special tribunals established by statute and of public officers are well stated in Allen v. Burrow, 69 Kan. 812, 77 Pac. 555, as follows:
“It has often been said of special tribunals established by statute to pass on matters expressly committed to them that their jurisdiction is exclusive and their determinations final, and that courts will not review their conclusions nor inquire by what method they were reached, but always with an express or implied reservation that the statement holds good only where the action of such tribunal is characterized by good faith, and is free from fraud, corruption, and oppression ... No rule is better settled than that courts will not interfere with public officers in the discharge of any duty involving the exercise of judgment or discretion, but this rule presupposes the existence of good faith, and relates to acts done under the guidance of opinions honestly formed, however mistaken in fact; it has no application to acts done under the influence of a corrupt motive. Even arbitrary and capricious conduct, amounting to an abuse of discretion, will justify mandamus to compel a proper performance of duty, upon the theory that there has been, in fact, no real exercise of judgment . . .” (Emphasis added.) (pp. 820, 821.)
The foregoing rules stated in Allen v. Burrow, supra, were approved in Anderson v. Hedges, 160 Kan. 665, 165 P. 2d 425, where many authorities on this subject are reviewed (reference is made thereto).
In the case of In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465, 37 P. 2d 7, it was said in the opinion:
“Apart from the general appellate jurisdiction of the district court over all inferior tribunals exercising judicial powers conferred by the civil code . . ., that court has no inherent appellate jurisdiction over the official acts of public boards or public officers. Where the latter do not transcend their statutory powers nor act fraudulently or oppressively their official acts cannot be challenged in court except where the legislature has made some special provision for a judicial review. (State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408, syl. ¶ 9.) . . .
“Of course the courts are always open to hear meritorious complaints against illegal or oppressive acts or delicts of nonjudicial public boards and officials, either at the instance of the state or of a private citizen especially aggrieved thereby. But not by appeal — where no statute confers a right of appeal. In the absence of a statutory right of appeal, judicial redress for illegal, fraudulent or oppressive official conduct must be invoked through some extraordinary legal remedy recognized in our practice — injunction, mandamus or quo warranto. (State, ex rel., v. Mohler, supra, 471, 472.)” (pp. 467, 468.)
We are not content, however, to confine our decision solely to this point, which construes the mandamus action of Gray as an attempt to review an intermediate decision of the Civil Service Board in the exercise of its jurisdiction.
The appellee Gray states that he is not seeking, and has never sought, a review of any procedure before the State Civil Service Board. (And it must be noted that the Civil Service Board has not been made a party to this controversy.) Gray argues that he only asked that the appellant Superintendent, the dismissing authority, carry out his mandatory duties under the statute, as a public official, to specifically give the reasons for appellee’s dismissal. Appellee Gray contends that where a public official charged with performing ministerial duties fails to perform such duties and commits an oppressive official act, he may be required to perform by mandamus. He also contends the statutes provide no appeal as far as he is con cerned when the Superintendent refuses to furnish specific reasons for his dismissal.
It is argued that an opportunity to know and be able to prepare for defense against charges is as important as is the right to be heard thereon; that if opportunity to prepare a defense is denied, opportunity for a fair hearing is denied; that our philosophy of fair play demands that the language of the statute involved here be given the most liberal construction in favor of those protected by the statute to accomplish those purposes; that if such rights are denied the purpose of the civil service laws which are designated to eradicate the spoils system, the system of making appointments primarily from political considerations with its attendant evils of inefficiency and extravagance (citing, Jagger v. Green, 90 Kan. 153, 133 Pac. 174; 10 Am. Jur., Civil Service, § 2, p. 921; and G. S. 1949, 75-2925), is a “dead letter”; and, if the statement furnished here is sufficient, the spoils system can be reinstated with full force and vigor.
We are not impressed by Gray’s argument relative to reinstating the spoils system. It is presumed that a statutory tribunal, such as the Kansas Civil Service Board, will conduct a hearing in compliance with the legislative mandates in good faith and with fairness and impartiality. If, after hearing, the Board finds that a civil service employee has been dismissed for political, religious or racial reasons, it is incumbent upon the Board to order reinstatement of the employee and the payment to the employee of such salary as has been lost by reason of the dismissal. The pleadings in the mandamus action make no charge that Gray has been dismissed for political reasons. In fact, Gray states in his brief: “He is attempting to get the specific reasons why he was dismissed and not merely the alleged reasons that the Appellant herein has given.”
It may be noted under G. S. 1949, 75-2949, that the appointing authority upon dismissal of a permanent classified employee is obligated to furnish the Director with a statement in writing specifically setting forth the reasons for the dismissal. Upon request the dismissed employee shall be furnished a copy of such statement. The employee may request in writing, within thirty days after he receives notice of dismissal, a hearing before the Board to determine the reasonableness of such action.
First, it must be remembered that employment under state civil service is a privilege extended by the state, through laws enacted by the legislature, to certain persons, and upon certain conditions. The rights to appointment under civil service, to acquire permanent classified status, and to enjoy permanent tenure as an employee of the state are wholly statutory. Every applicant for classified employment under state civil service necessarily submits himself to the conditions imposed by the applicable statutes and amendments thereto, whether enacted before or after employment. This, of course, does not mean that an employee has no recourse against invalid rules and regulations, or unlawful acts of the Board.
It does mean under the public policy of this state, established by the legislature, that any controversy with a classified employee under state civil service which falls within the scope of the jurisdiction of the State Civil Service Board, shall be adjusted there, irrespective of the fact that there is conferred no statutory right of appeal to the courts; and the section of the civil code providing that the writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of law, must be interpreted accordingly. What is most needed in the field of classified employment under the state civil service law is expert administrative adjustment, and not court adjudication.
Gray feeling aggrieved by the specific reasons stated by the Superintendent, appellant herein, in his letter to the Director was obligated to pursue his statutory remedy by making a written request for a hearing before the State Civil Service Board, as he did, to determine the reasonableness of the action of the Superintendent in dismissing him from classified service. The Board’s jurisdiction over the matter is exclusive and it is incumbent upon Gray to pursue his statutory remedy to a final determination by the Board. The Board had the power to rule Gray’s motion correctly or incorrectly, and, if Gray is aggrieved by what he conceives to be an incorrect ruling, his grievance is with the Board, not with the Superintendent, for under the powers conferred upon the Board by the statutes the Superintendent was subject to the Board’s direction insofar as compliance with Gray’s motion was concerned.
Where the action of the Board in making its final disposition of the case is characterized by good faith, and is free from fraud, corruption, and oppression, the Board’s determination is final, and courts will not review its conclusions nor inquire into the method by which they were reached.
If after final determination by the Board, Gray has a meritorius complaint against illegal, fraudulent, or oppressive acts of the Roard regarding its official duties enjoined by statute, he may resort to some extraordinary legal remedy recognized in our practice — injunction or mandamus — and courts will be open to hear the complaint.
The Superintendent’s answer in the trial court requested an order dismissing the alternative writ of mandamus issued on the 19th day of September, 1957, for the reason that the application of Gray for a writ of mandamus showed on its face that the applicant had a complete and adequate remedy at law, and that the application for a writ of mandamus and the • alternative writ were premature. Failure of the trial court to dismiss the action, submitted to the court on the pleadings, was assigned as error by the appellant. Based upon what has heretofore been stated, the trial court should have entered an order dismissing the alternative writ and given the appellant, defendant below, judgment for costs.
In view of the disposition made other errors specified are immaterial.
The judgment of the district court is reversed and the cause remanded with directions to dismiss the action. | [
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The opinion of the court was delivered by
Fatzer, J.:
Appellant is presently confined in the state penitentiary and appeals from an order of the district court of Leavenworth County, Kansas, denying his petition for a writ of habeas corpus and remanding him to the custody of the warden of that institution.
The appellant was arrested and tried by a jury in the district court of Butler County, Kansas, on a charge of commission of the crime of burglary and larceny in connection with the burglary, and sentenced to confinement in the state penitentiary for a term of not less than fifteen years for the burglary and not less than fifteen years for the larceny, the sentences to run concurrently. Following the overruling of his motion for a new trial, he appealed to this court which affirmed the judgment of conviction. (State v. Montgomery, 175 Kan. 176, 261 P. 2d 1009.) That opinion is incorporated herein by reference.
Appellant urged in the court below the state knowingly employed false records as evidence in the trial of his case. He does not indicate at what stage of the proceedings the allegedly false records were presented, except that they were presented “prior to a judgment being rendered upon the preferred charge of burglary second degree.” Reference is also made in the “Statement of Facts” in his brief to “transcript pp. 145, 154, 155,” presumably referring to the •transcript of the trial in the district court of Butler County. If that transcript was offered in evidence during the hearing of the petition for a writ of habeas corpus in the court below it was not abstracted and presented to this court on appeal.
Certified copies of the journal entry of appellant’s trial and conviction and of the order overruling his motion for a new trial were attached to respondent’s answer and return. Those.records indicate when appellant was sentenced by the district court of Butler County that court found from the records and other competent evidence introduced that appellant had been previously convicted of two felonies, the punishment of which called for a sentence to a penitentiary, and that by reason thereof appellant came within the provisions of the Habitual Criminal Act (G. S. 1949, 21-107a). Sentence was imposed upon him pursuant to its provisions.
An allegation that the prosecuting authorities obtained the conviction of an accused “by the presentation of testimony known to be perjured, and by the suppression of testimony favorable to him” if proved, justifies release from confinement on a writ of habeas corpus. (Pyle v. Kansas, 317 U. S. 213, 214, 87 L. ed. 214, 63 S. Ct. 177; Mooney v. Holohan, 294 U. S. 103, 79 L. ed. 791, 55 S. Ct. 340; Alcorta v. Texas, 355 U. S. 28, 2 L. ed. 2d 9, 78 S. Ct. 103.) However, the burden was upon the petitioner to prove by clear and convincing evidence the grounds upon which he relies for his release. The district court of Leavenworth County heard the testimony and found he failed to meet that burden. This court has held in a long line of cases that the unsupported statements of a petitioner in a habeas corpus proceeding do not meet the requirements of proof. (May v. Hoffman, 179 Kan. 149, 293 P. 2d 265, and cases cited p. 153.) Records of courts are not set aside upon the unsupported statements of a defeated litigant. (Cochran v. Amrine, 153 Kan. 777, 113 P. 2d 1048; Wooner v. Amrine, 154 Kan. 211, 117 P. 2d 608; Engling v. Edmondson, 175 Kan. 883, 267 P. 2d 487.) And neither is a proceeding in habeas corpus a substitute for appeal. (Current v. Hudspeth, 173 Kan. 694, 250 P. 2d 798, 345 U. S. 943, 97 L. ed. 1369, 73 S. Ct. 837.)
Under our decisions the fact petitioner was sentenced pursuant to the Habitual Criminal Act, although he was not charged under its provisions, does not make his sentence illegal or afford grounds for his release in a habeas corpus proceeding. (Darling v. Hoffman, 180 Kan. 137, 299 P. 2d 594.) Likewise, complaints respecting the sufficiency of evidence to sustain a conviction imposed under its provisions cannot be reached by habeas corpus in an independent proceeding, but can only be corrected in the trial court or by appeal. (Darling v. Hoffman, supra.)
Our examination of the record discloses the court below did not err in denying the petition for a writ of habeas corpus, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
The two appeals involving independent cases in the court below were consolidated in this court because they both present the identical question. This opinion will be controlling in both cases.
On May 24, 1957, Leola Gamble Dyche and Cora E. Gamble each filed their petitions and began an action against Harvey S. Crawford as defendant in the district court of Stafford County. Both petitions alleged that the respective plaintiffs had been injured in an automobile accident which was alleged to have occurred in Miami County, and that the respective plaintiffs had suffered injury and damage due to the negligence of defendant Crawford. The accident was alleged to have occurred on October 23, 1955.
Defendant filed a motion for additional time to plead which seems not to have been objected to by counsel for the plaintiffs. On October 24, 1957, one day after the expiration of two years from the time of the accident, defendant filed a motion to strike the petition in each case upon the ground that the provisions of G. S. 1949, 7-104 had not been complied with in that “the person who signed the petition in this cause is a regularly admitted practicing attorney in the courts of record in the State of Missouri with offices at 950 Dierks Building, Kansas City, Missouri . . .”
Each of the petitions had been signed as follows:
“C. William Garver
4121 Brookridge Drive,
Mission, Kansas,
Attorney for Plaintiff.”
On November 25, 1957, plaintiffs’ original attorney requested the clerk of the district court in writing to enter as additional attorneys for the plaintiff in each case the firm of Blackburn, Hampton and Ward of Great Bend, Kansas. Great Bend is of course within the Twentieth Judicial District of this state as is also Stafford County.
On the hearing of the above motions to strike, it was made to appear by stipulation and affidavits that Mr. Garver is admitted to practice law in Missouri; is a member of the integrated Missouri Bar Association; apparently has an office at 950 Dierks Building, Kansas City, Missouri; that Mr. Garver, however, is also a member of the Bar of the state of Kansas, and apparently resides at 4121 Brookridge Drive, Mission, Kansas. It was further shown that Mr. Garver had not registered with the clerk of the district court of Johnson County, in which county Mission is situated, to receive the regularly issued trial dockets of said district court, and that he apparently was not a member of the voluntary Bar Association of Johnson County.
Upon the above facts, the district court sustained the motion to strike the petition in each of the actions. Plaintiffs have appealed from those orders.
We come now to the question of the interpretation of the provisions of G. S. 1949, 7-104. It would appear that the most important portion of that section of the statute in this appeal is the following:
“Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department, commission or other administrative tribunal or agency, of this state, may, on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon talcing the oath as aforesaid and upon it being made to appear by a written showing filed therein, that he has associated and personally appearing with him in the action, hearing or proceeding an attorney who is a resident of and duly and regularly admitted to practice in the courts of record of this state, . . (Italics supplied.)
The question quite shortly comes down to this, does an attorney who is admitted to practice law in a foreign state appear before the courts of the state of Kansas under the above section, if he also has been admitted to the Bar of this state? It would seem clear that Section 7-104 has no application to lawyers who are admitted to the Bar of the state of Kansas.
A study of the statutes relating to attorneys at law as found in Chapter 7 of G. S. 1949, will show that Section 7-104 is the amended Section 4 of a statute which first appeared in G. S. 1868, Ch. 11, §§ 1 to 12 inclusive. Additional provisions have been provided in some of the sections down through the years, but the general topic of each has remained the same.
G. S. 1868, Ch. 11, § 1, and G. S. 1949, 7-101, both provide that persons admitted to practice law in this state under earlier rules and statutes may continue to practice.
Section 2 of the statute of ninety years ago, and Section 7-102 of today, both provide for the prerequisite learning required of applicants applying for admission to the Bar of this state. Both sections contain words of similar import to the clauses of the present Section 7-102, which read:
“And who satisfies the supreme court of this state that he possesses the requisite ability and learning and that he is of good moral character, may be admitted to practice in all the courts of this state upon taking the oath prescribed.” (Italics supplied.)
Section 3 of the old act and section 7-103 both provide for the regulation of admission by rules of the supreme court.
Section 4, Chapter 11, of G. S. 1868 read:.
“Any practicing attorney of any state or territory, having professional business in either the supreme or district court, may, on motion, be admitted to practice in either of those courts, upon taking the oath aforesaid.”
It will be seen that the old Section 4 of the statute plainly applies to attorneys admitted in another state or territory, and that they were to be allowed to come into the courts of this state “upon taking the oath aforesaid.”
Section 7-104 still begins:
“Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department . . . may on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon taking the oath as aforesaid . . (Italics supplied.)
Certain additional qualifying words have been added to the statute in ninety years and certain additional safeguards have been added, but it remains clear that the subjects of the section are attorneys at law admitted to practice-in other states, but not admitted to practice in Kansas. Lawyers admitted under Section 4 must take the oath provided in Section 4 of the act, referring to both the original and the modern section. Attorneys regularly admitted to the Bar of this state have taken that oath at the time of admission to the Bar (See Section 7-102, supra), and the provisions of Section 4 for an additional oath would be meaningless, if the section were attempted to be applied to them. Likewise, it must be noticed that in Section 7-102, members of the Bar of this state are licensed “to practice in all the courts of this state.” Similar provisions were found in the old Section 2.
From all of the foregoing, it would appear impossible to apply Section 7-104 to an attorney at law, who has been regularly admitted to the Bar of this state.
Attention has been directed to the cases of Felton v. Rubow, 163 Kan. 82, 179 P. 2d 935; Bradley v. Sudler, 172 Kan. 367, 239 P. 2d 921; and the s^me case upon a second appeal, 174 Kan. 293, 255 P. 2d 650. Able' counsel for both sides readily concede that those decisions do not determine this case now before us. In those cases, the attorney in question had not been admitted to the Bar of Kansas.
In the last mentioned decisions the matter of the location of the particular attorney within the state is considered. It is, of course, important that the attorney be subject to the jurisdiction of the court. In this case, an address within the state was given, and nothing has been shown which would indicate that the attorney could not be reached at that location.
The instant case further differs from those referred to above in that at the time of the order striking the petitions from the files of the district court, counsel resident within the judicial district concerned had become attorneys of record for the plaintiffs in the instant cases. In all of the former cases, the orders striking the petitions were made while the files showed that Section 7-104 had not been complied with. The section reads in part:
“No such court, agency or tribunal shall entertain any action, matter, hearing or proceeding while the same is begun, carried on or maintained in violation of the provisions of this section.” (Italics supplied.)
This question is not necessary for the purposes of the instant appeal, and is not decided at this time.
It has been determined that G. S. 1949, 7-104 does not apply to attorneys at law who are members of the Bar of this state and reside therein. Therefore, the orders of the district court striking the petitions in these cases were erroneous, and they should be reversed.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from a judgment of the lower court enjoining the defendants from using premises for an automobile garage and body repair shop in violation of zoning regulations.
Mrs. L. L. Brown, defendant below, owns real property described as the West Eleven (11) acres of the Northeast Quarter of the Southwest Quarter of Section 23, Township 12, Range 24, in Johnson County, Kansas. This property is in an agricultural area of Shawnee Township about one mile east of the City of Shawnee. The Board of County Commissioners pursuant to Chapter 165 of the Laws of 1939 organized the zoning board of Shawnee Township in Johnson County, Kansas, in 1940. Prior to the purchase of the property by Mrs. Brown it was zoned for residential purposes.
One of the buildings on the premises was converted by Mrs. Brown at considerable expense to a bird aviary for the purpose of raising canary birds which she sold. During the month of December, 1955, this building was destroyed by fire. On the 5th day of January, 1956, the owner, Mrs. Brown, procured a building permit from the clerk of the zoning board to rebuild this building on these premises. The dimensions given in the permit were for a structure 26 feet by 50 feet. In her application for a permit she did not make application for any rezoning or for a permit to build a garage, but merely requested a permit for a building of the given dimensions.
When the structure was rebuilt Mrs. Brown ■ continued raising birds and in August, 1956, permitted her son-in-law, Robert L. McEndree, the intervenor below and appellant herein, to move into a part of the new building and open an automobile garage and body repair shop. There he repaired automobile bodies that had been damaged in wrecks and accidents. He had a parking area for about 10 automobiles behind the shop and would have a daily average of as many as 15 automobiles on the premises.
The County Commissioners on the 14th day of September, 1956, filed an action in the district court of Johnson County, Kansas, to enjoin the defendants. From an adverse ruling which permanently enjoined the defendants and each of them from operating and permitting a garage and body shop on the premises, the intervenor, after necessary preliminary procedures unnecessary to relate, duly appealed to this court. The defendant, Mrs. Brown, did not appeal.
The facts related are not in dispute. .At the hearing most of the evidence was stipulated by the parties. Some testimony was given as to prior use of the premises, but no use inconsistent with agricultural purposes was established as of the time the property was zoned.
No objection was made by the County Commissioners to the use of the premises by Mrs. Brown as a bird aviary. The action was only to enjoin the use of the premises for a garage and body repair shop.
Appellant contends that the statute, pursuant to which the zoning regulations and code of Shawnee Township were initially adopted in 1940, is special legislation applicable to only Shawnee and Mission Townships in Johnson County, Kansas, and as such is unconstitutional and void. This question is first raised by appellant on appeal to this court. There is nothing in the abstract submitted, wherein all pleadings are shown, or in the transcript of the proceedings to show that the constitutional question was presented to the lower court.
Acts of the legislature are presumed to be constitutional and valid and no challenge thereof should be entertained on appeal unless the particular constitutional provision alleged to be violated, or the particular controlling record to prove the invalidity, has been pleaded and presented to the lower court. The question of the constitutionality of the statute was not before the lower court and as a consequence is not before this court. (Missionary Baptist Convention v. Wimberly Chapel Baptist Church, 170 Kan. 684, 228 P. 2d 540; State, ex rel., v. Richardson, 174 Kan. 382, 256 P. 2d 135; and see, Stelling v. Kansas City, 85 Kan. 397, 116 Pac. 511.)
This rule is based upon considerations of practical necessity in the orderly administration of the law and of fairness to the court and the opposing party, and upon principles underlying the doctrines of waiver and estoppel. Obviously, the ends of justice are served by avoidance of the delay and expense incident to appeals, reversals, and new trials upon grounds of objection which might have been obviated or corrected in the trial court if the question had been raised. There would be no assurance of any end to litigation if the new objections could be raised on appeals. (3 Am. Jur., Appeal and Error, § 246, p. 25.)
For a collection of cases and numerous special acts of the legislature having application to Shawnee and Mission Townships in Johnson County, Kansas, which have been held constitutional or remain unchallenged, see the recent case of Water District No. 1 v. Robb, 182 Kan. 2, 11, 318 P. 2d 387.
Reference is made to Duggins v. Board of County Commissioners, 179 Kan. 101, 293 P. 2d 258, wherein the statute in the instant case was before the court. There the action of the zoning board of Mission Township was challenged and the appellant alleged and presented the constitutional question to the lower court, but on appeal to this court waived any contention of unconstitutionality. Appellant relied upon his rights under the zoning regulations on appeal. In the instant case appellant relied exclusively upon his rights under the zoning regulations in the lower court and places reliance upon them in this appeal.
The appellant contends that the zoning board in granting the building permit to build the garage on January 5, 1956, knew that the building to be constructed was for a commercial use and that the same was tantamount to the rezoning of the premises for commercial use. The evidence does not support this contention. The building permit was issued to replace the building which was destroyed by fire. At the time Mrs. Brown obtained the building permit there is no evidence to disclose that she had knowledge the building would be used for an automobile garage and body repair shop. Her application for a permit was for a structure of certain dimensions without any disclosure of its intended use. Conse quently, the intervenor, appellant, who came upon the premises seven months after the issuance of the building permit, is in no position to state the contrary.
Appellant argues that the zoning board having granted the building permit to replace a building used for raising birds is now estopped to deny its use for commercial purposes.
Few definitions of estoppel can be considered satisfactory, for the reason that an equitable estoppel rests largely on the facts and circumstances of the particular case and consequently any attempted definition usually amounts to no more than a declaration of an estop-pel under those facts and circumstances. The following definition has been stated in summing up the cases in 10 R. C. L., § 19, pp. 689, 690:
“. . . That a xserson is held to a representation made or a position assumed, where otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances of the case, has, in good faith, relied thereon. Such an estoppel is founded on morality and justice,
For a further discussion of equitable estoppel and definitions, see 31 C. J. S., Estoppel, § 59, p. 236; and 19 Am. Jur., Estoppel, § 34, p. 634.
The property in question was agricultural land zoned for residential purposes. Zoning under these circumstances does not prevent the use of the premises for agricultural purposes. The zoning regulations emerge to control when the agricultural uses are abandoned, or reasonable regulations have been adopted for the gradual elimination of nonconforming uses. (Spurgeon v. Board of Commissioners, 181 Kan. 1008, 317 P. 2d 798.)
The appellant contends that the raising of canary birds for sale constitutes a use of the premises for commercial purposes. Under the appellant’s definition most any agricultural pursuit would be for a commercial purpose. It may be said without equivocation that the raising of canary birds is similar to the raising of chickens, or other poultry, which is commonly regarded as an agricultural pursuit. In this sense the premises have been used consistent with the permissive uses by Mrs. Brown in raising canary birds. The County Commissioners had no objection to the raising of canaries, but took a dim view of the operation of a garage and body shop, which is classified as business under the zoning regulations.
The appellant has never appeared before the zoning board of Shawnee Township for a building permit or the rezoning of the premises prior to the filing of this action. He just moved in and opened up a garage as if it were his absolute right to do so in a building used for agricultural purposes.
The landowner, Mrs. Brown, has not changed her position in any way. She is still raising canaries in part of the building. She knew this property came under the zoning regulations of the township or she would not have applied for her building permit. To evoke estoppel, one must act in good faith and with diligence. The doctrine of equitable estoppel does not operate in favor of one who has knowledge of another’s rights, or who has convenient and available means of obtaining such knowledge. (Gray v. Zellmer, 66 Kan. 514, 72 Pac. 228; and Wichita Federal Savings & Loan Ass’n v. Jones, 155 Kan. 821, 130 P. 2d 556.) Under these facts and circumstances appellant cannot assert the defense of estoppel.
It is argued that the granting of an injunction would work an undue and unnecessary hardship upon appellant. The appellant did not build the building in which he operated the automobile garage and body repair shop. He just moved into the premises and started operating. The owner of the premises has not appealed to this court from the ruling which granted the injunction but the appellant, intervenor, desires to remain on the premises with his business, contrary to the zoning regulations of the township, because it would be a hardship on him to move his business elsewhere. The County Commissioners in the instant case acted promptly. The intervenor did not move onto the premises until August, 1956, and this action was filed in September of 1956. We are therefore of the opinion that upon the facts and circumstances herein presented the hardship of which the appellant complains is not one for which he is entitled to relief.
The hardship of which the law sometimes takes cognizance is that hardship which results to an individual property owner. In 58 Am. Jur., Zoning, § 139, pp. 1015, 1016, the following is stated:
"The fact that a zoning law results in hardship to an individual property owner does not necessarily invalidate the ordinance, or prevent its application to him. In proper cases the private interest may be subordinated to the public good. However, neither the legislature nor the local authorities acting under power delegated by the legislature regarding zoning may impose special hardship unnecessarily and unreasonably, and most zoning laws grant boards of appeal authority to vary tire application of zoning restrictions, subject to appropriate conditions and safeguards, in cases involving practical difficulties and unnecessary hardships. Where such authority exists, a zon ing regulation will not be ruled invalid by the courts because of unnecessary hardship or damage to the owner of particular property, at least until the variation has been refused.”
As heretofore stated the appellant, intervenor, has never attempted to get the premises upon which he is operating his business rezoned prior to the filing of this action and the hearing thereon.
For the reasons heretofore stated the trial court did not err in overruling the appellant’s motion for a new trial and in entering judgment against the defendants below, which permanently enjoined them from operating and permitting a garage and body shop on the premises.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover compensation for services rendered by the plaintiff to the defendants, Builders, Inc., and Industry, Inc. Judgment was entered in favor of the plaintiff. Following the overruling of post-trial motions, the defendants have appealed.
We make no summary of the pleadings except to say that plaintiff’s petition alleged generally that he was hired by defendants under a written contract of employment at a base salary of $5,600, which was later modified by an oral agreement placing him upon a commission or bonus arrangement against which the salary he was being paid would be credited; that he was placed in charge of defendants’ commercial real estate business and performed services, the reasonable value of which was $44,121.20, for which judgment was prayed.
The defendants’ answer denied the oral agreement modifying the written contract of employment, and affirmatively alleged plaintiff was paid a salary at regular intervals for the entire period of his employment, which he accepted, and that he was estopped to claim compensation in excess of that amount; further, that the action was barred under G. S. 1949, 60-306, Third.
Plaintiff’s reply denied all allegations in the answer inconsistent with those alleged in his petition.
With the issues thus joined, trial was had by a jury, which returned its verdict in favor of plaintiff for $27,943.42, and made answers to special questions, as follows:
"Q. Were the semi-monthly payments made by the defendants, Builders, Inc., and accepted by the plaintiff, salary or wages, or were they a drawing account against commission?
“A. Drawing account.
“Q. Do you find that the parties on or about February 1, to 10, 1953, altered their original salary agreement to an agreement for bonus or commission and drawing account?
“A. Yes.
“Q. Do you find that the parties ever at any time altered their original salary agreement to an agreement for bonus, or commission and drawing account?
“A. Yes.
“Q. If your answer to Question No. 3 is ‘yes’, when did they alter it?
“A. February 1, 1953.”
The defendants have appealed from the following orders of the trial court: (1) The overruling of their demurrer to plaintiff’s evidence; (2) the trial court’s refusal to give defendants’ requested instruction No. 6; (3) the overruling of their motion for judgment notwithstanding the verdict, and (4) the overruling of their motion for a new trial. Eight specifications of error are assigned, but only three are briefed and argued. Under such circumstances specifications of error which are neither briefed or argued are regarded as abandoned, and on appeal will not be reviewed or considered. (Brent v. McDonald, 180 Kan. 142, 150, 300 P. 2d 396.)
Defendants first contend the trial court erred in overruling their demurrer to plaintiff’s evidence and submitting the case to the jury, and in refusing to sustain their motion for judgment notwithstanding the verdict. The claim is that plaintiff’s evidence was insufficient to establish an oral modification of the written contract of employment. In making the claim, they concede the rule prevailing in this jurisdiction is that evidence for that purpose must be clear and convincing, that it need not be uncontroverted, but a preponderance of the evidence will suffice. (Alexander v. Wehkamp, 171 Kan. 285, 232 P. 2d 440.)
The evidence as disclosed by the record is as follows: Builders, Inc., was engaged in the business of acquiring vacant tracts of land in Wichita and developing the same by erecting buildings and other improvements thereon. Two segments of real estate operations were conducted; the sale and management of residential real estate, and the development, leasing and management of business or commercial properties.
In November, 1952, plaintiff was hired by Willard W. Garvey and C. H. Havens, the managing officers of Builders, Inc., under a written contract of employment, to assist Havens, at a salary of $5,600 per year. Beginning with his employment and continuing until he resigned in January, 1955, plaintiff received from Builders, Inc., semi-monthly payroll checks in an amount computed according to his annual salary. In the years 1953 and 1954 plaintiff returned his income for tax purposes as wages. He was given periodic wage reviews, and his wages were increased from the original monthly rate of $466.68 a month ($5,600 per year) to $490 per month ($5,880 per year) on January 1, 1954. In all, plaintiff was paid $11,510 for the period from November 1, 1952, to February 1, 1955, which, as previously indicated, the jury found to be a drawing account.
On or about February 1, 1953, after he had been employed for some six weeks, it came to the attention of Garvey and Havens that the plaintiff had received a more lucrative job offer from a Kansas City concern. They immediately had a conversation with plaintiff in Garvey’s office, which was continued in the West Shack Cafe over a cup of coffee, as to whether he was planning to accept the Kansas City offer. Plaintiff testified that during the conversation in the cafe an oral agreement was entered into by Garvey and Havens and himself to the effect that plaintiff would go on a commission or bonus basis rather than a salary basis; that he would receive a commission for the leases he negotiated if he performed satisfactorily, and would continue to receive the monthly salary as a “drawing account” which would be deducted from earned commissions. During the conversation Garvey told plaintiff they were thinking of establishing a commercial development, and planned on him being at its head, and stated:
. . we don’t argue with the market, Vern, we pay the going wage in the commercial field. You should be able to make Ten Thousand Dollars ($10,000.00) easily.”
Garvey told plaintiff to submit to Havens, through channels, a proposed commission or bonus arrangement, which plaintiff did, the details of which being literally a copy of the Wichita Real Estate Board’s recommendations for commercial salesmen to receive as commissions on commercial property.
Both Garvey and Havens were called as witnesses by the defendants. Each testified as to the conversation with plaintiff in the cafe concerning his offer of employment in Kansas City, but denied any promise was made to him that he would then or in the future be given a commission on the company’s business, and denied any discussion about any change in his salary or method of compensation.
Following the conversation in the West Shack Cafe, and on February 10, 1953, Industry, Inc., was incorporated and plaintiff was made vice-president. That company took over the part of the business pertaining to the leasing and developing of property owned by Builders, Inc., and leased to tenants for commercial purposes. Havens’ testimony defined the term “commercial” as follows:
“In our own company, a commercial is a building owned by the company where the ownership is retained by the company, and a tenant is found to occupy that building on a lease basis.”
Plaintiff first began his duties for Industry, Inc., on the development and leasing of the Friendly Shopping Center. He also leased space in the Derby Building. While working on the Friendly Shopping Center he renegotiated existing leases in Parkwood Village Shopping Center. Under the new leases, the base rentals were more than doubled. About the same time, plaintiff was given supervision of a hardware store owned by the Garvey family, a barber shop, and a beauty shop, and he was asked to start negotiations for a new shopping center now known as Parklane. Plans and blueprints were drawn up, and plaintiff began contacting tenants for the new area. He obtained the first lease for Parklane in July, 1953.
In November, 1953, more than nine months after the conversa tion in the cafe, plaintiff had secured leases for a major portion of Parklane, 20,000 square feet of which was committed to the F. W. Woolworth Company. The T. G. & Y. Stores contacted plaintiff and offered a larger rental: Garvey told the agent of Woolworth Company that they could no longer be considered, and instructed plaintiff to renegotiate with the T. G. & Y. Stores. Plaintiff told Havens he was going to quit because of Garvey’s interference with the Woolworth lease and Havens said, “you can’t quit now, otherwise you will lose all the commissions you have been working for.”
The original plans for Parklane were changed in November, 1953, and plaintiff worked with the tenants and architects to get the changes that were approved by the tenants into the new plans which were being 'drawn up. In addition, he negotiated new leases for the unleased portion and worked with loan men concerning the financing. In May, 1954, construction of Parklane was commenced. During July, 1954, plaintiff and Garvey interviewed finance people. Plaintiff, with regard to a conversation with Garvey following the interview, testified:
“Mr. Garv.ey told me that rental received hadn’t been enough for me to get any bonus yet. That I should wait until the rent was coming in, so that they could pay me the bonus. That I needn’t worry about it. I told him that if the business wasn’t making money, I certainly couldn’t ask for it. That I certainly could wait.”
Kenneth Kueny, testifying for the plaintiff, stated that in the latter part of October or the first part of November, 1954, he was employed by Garvey for Builders, Inc., on a drawing account and a commission or bonus arrangement. When he discussed the amount of money he could make based upon that arrangement Garvey told him there was every possibility he could make $10,000 to $12,000 per year and cited the plaintiff as an example of how well the defendants were willing to pay people who could produce. Garvey stated that things were starting to roll, and that plaintiff wouldn’t have any trouble in making $20,000 to $30,000 per year with bonuses.
Various interoffice memorandums between the defendants and the plaintiff were introduced concerning the payment of his commissions. They are too numerous to set forth. The language of some is ambiguous, but on the whole, all tend to support the plaintiff’s testimony that his employment relation with the defendants was changed in the early part of February, 1953, from a base salary to a bonus or commission arrangement for the leasing and development of commercial properties owned by Builders, Inc., and turned over to Industry, Inc., for management.
The record affirmatively shows that plaintiff performed satisfactorily in the commercial department. During the time he worked for the defendants he negotiated some 36 leases for space in the commercial shopping centers, most of which were 20-year leases, and in Parklane alone the base rentals amounted to approximately two million dollars. Plaintiff’s commission was due when the leases were signed by both parties.
In December, 1954, plaintiff asked either Garvey or Havens for a part of his commission so it would not all be paid in 1955. Plaintiff was told to wait until after the first of the year when he got back from his vacation and defendants would discuss the situation then. Upon his return, plaintiff submitted the amount of his commission he then claimed to be due based upon the Wichita Real Estate Board’s recommendations. The defendants denied they had agreed to pay him any commission, and plaintiff resigned and commenced this action.
We think plaintiff’s evidence preponderates a parol modification of the written contract of employment. That evidence was not, as defendants urge, vague and indefinite. Neither do we think, as defendants contend, that the conversation at the cafe was ambiguous. But, assuming arguendo, that it was, we need look no further than to Havens’ statement to plaintiff in November, 1953, to the effect that if he quit he would lose all the commissions he had been working for, and to Garvey’s statement to plaintiff in July, 1954, that rentals received had not yet been enough to pay commission on, but that he was to wait until the rentals came in so they could pay him a bonus and for him not to worry about it, since, in determining the meaning of an indefinite or ambiguous contract, the interpretation placed upon it by the parties themselves is to be considered by the court and is entitled to great, if not controlling, weight. (12 Am. Jur., Contracts, § 249, p. 787; Brick Co. v. Bailey, 76 Kan. 42, Syl. ¶ 3, 90 Pac. 803; Kirkpatrick v. Chrysler Sales Corp., 127 Kan. 724, 275 Pac. 155.) An ambiguity may be said to exist as to whether the commissions were in addition to the semimonthly payments, but if so, it may be ignored because plaintiff sued for the aggregate amount of the commissions earned less a credit for the aggregate amount of the semimonthly payments received. Furthermore, plaintiff did not seek to enforce the oral contract as a full and complete contract in itself. He made proper allegations for quantum meruit for the amount of his commission- as being the fair and reasonable value of his services in procuring lessees for the defendants’ buildings, evidenced by an understanding, not only by the conversation at the cafe but also by later conversations and interoffice memorandums. The case of Stewart v. Fourth Nat’l Bank, 141 Kan. 175, 39 P. 2d 918, is a perfect and complete analysis of this type of action. In the course of the opinion it was said:
“Appellant cites on the first point involved many cases concluding that the contract upon which recovery was sought was too indefinite to establish or be an enforceable contract. Such might have been said as to the contract here under consideration, if the plaintiff had attempted to enforce it as a full and complete contract in itself. The plaintiff in her petition specifically acknowledged its incompletenéss in itself by proper allegations for quantum, meruit, which of course would not have been necessary if the promise and agreement had contained a definite sum as compensation. Some of the cases cited have reference to enforcing liens on lost property, when discovered, after a reward had been offered. The case of Nichols v. Coppock, 124 Kan. 652, 261 Pac. 652, is cited where it was held that the sale of property on ‘easy terms’ was too indefinite. The missing feature there could not be supplied under quantum meruit and it was not so attempted. That is very different from employing one and agreeing to pay him reasonable wages. His contract is definite and an action for quantum meruit is decidedly proper.” (l. c. 177, 178.)
The defendants next contend that by his acceptance of the semimonthly wage checks, plaintiff is estopped to recover the commissions sued for. Not so. The plaintiff claimed, and the jury found, that there was an oral modification of the written contract of employment; that the payment of wages, or the “drawing account,” was only a partial compensation of plaintiffs services, and that the remainder was to be paid later in the form of commissions or bonuses. As we have seen, there was sufficient evidence to support that finding. Certainly, the acceptance of the semimonthly checks as a “drawing account” to be deducted from total commissions earned could not operate as an estoppel to a recovery of the reasonable value of the remainder of such services in quantum meruit when the amount had not been definitely fixed. We have reviewed the cases of Harris v. City of Topeka, 183 Kan. 359, 327 P. 2d 1088; Jenkins v. City of Lindsborg, 152 Kan. 727, 107 P. 2d 705; Sheets v. Eales, 135 Kan. 627, 11 P. 2d 1020, and other authorities cited by the defendants and they are not in conflict with the views expressed herein. In those cases the wages paid were in full payment of the obligation and not paid under an arrangement such as is disclosed by the record before us.
Defendants lastly contend that plaintiff’s recovery is barred under G. S. 1949, 67-1019 because he failed to plead or prove he was a licensed real estate broker or salesman, and further, that the court erred in refusing to give their requested instruction No. 6. It is argued that since plaintiff alleged and testified that it was agreed he would be put on a ‘bonus or commission arrangement” and computed his services on the basis of 50 percent of the normal real estate commission, the statute clearly bars recovery. In discussing this contention we quote G. S. 1949, 67-1019:
“Any person engaged in the business of or acting in the capacity of a real estate broker or real estate salesman within this state, shall not be permitted to bring or maintain any action in the courts of Kansas for the collection of compensation for the sale of real estate without alleging and proving that such person was a duly licensed real estate broker or real estate salesman or a partnership, association or corporation whose members, officers and employees are licensed as required by this act at the time the alleged cause of action arose.”
The term “real estate” as used in the foregoing section, relates to the term “sale of real estate” and is defined in subsection (c) of G. S. 1949, 67-1002 to mean, “leasehold, as well as any and every interest or estate in land.” The term “real estate broker” is defined in subsection (a) of the same section to include any person who acts “in the expectation or upon the promise of receiving or collecting a fee, commission or other valuable consideration.” The term “real estate salesman” is defined in subsection (b) to mean “any person employed or engaged by or on behalf of a real estate broker or by a partnership, association or corporation having one or more real estate brokers licensed under this act to perform any act set out in section 2 (a) of this act for compensation or otherwise.” Requested instruction No. 6 was to the effect that if the jury found and believed from the evidence that the plaintiff acted in the capacity of a real estate broker or a real estate salesman, that plaintiff could not recover commission as such because he failed to plead and prove that he was, during the time in question, a licensed real estate broker or salesman.
We think the trial court properly overruled the defendants’ demurrer to plaintiff’s evidence for the reason he was not required, as hereafter noted, to plead and prove he was a licensed real estate broker or salesman, and correctly refused to give the requested in struction. This action pertains entirely to transactions in which the defendants, as lessors, executed to various lessees, leases upon parcels of rental space in defendants’ buildings. Although the defendants contend otherwise, the record clearly indicates Builders, Inc., acquired the tracts upon which the shopping centers were constructed and developed them for commercial purposes. The testimony of Garvey and Havens as well as the plaintiff supports this fact. Under such a situation, the plaintiff was not required to plead or prove he was a licensed real estate broker or salesman because the' services performed for the defendants falls clearly within the exceptions of G. S. 1949, 67-1003, which, in part, reads:
“The provisions of this act shall not apply to the following: (a) Any person, partnership, association or corporation who, as owner or lessor, ¡performs any act set out in section 2 (a) [67-1002(«)] of this act with reference to property owned or leased by that person, partnership, association or corporation where such act is performed in the regular course of, or as incident to, the management of such property and the investment therein; . . . (f) any employee of any person, partnership, association or corporation enumerated in paragraphs ‘a ’ ‘b,’ ‘c,’ ‘d,’ or V of this section when engaged in the performance of his duties as such employee.”
This section in effect relieves any owner or lessor of property and his employees from the duty of pleading and proving their status as a licensed real estate broker or salesman in order to maintain an action in relation to property owned, leased or managed by such owner. As previously indicated, in all of the transactions involved in this case the defendants were acting in the capacity of lessors of the real estate leased and in so doing they were acting in the regular cpurse of the management of the property and the plaintiff was their agent-employee. Thus, in negotiating and effecting the leases in question, the plaintiff was acting in the performance of his duty as an employee of the defendants, and he was, therefore, exempted from pleading and proving his status as a licensed. real estate broker or salesman by subsection (/) of G. S. 1949, 67-1003.
In summary, our review of the record indicates there was ample evidence to justify the trial court in overruling the defendants’ demurrer to the evidence, and their motion for judgment notwithstanding the verdict. The matter was submitted to the jury under proper instruction, which, by its general verdict, found all issues in favor of the plaintiff. The special findings were that the written contract of employment was modified by an oral agreement on February 1, 1953, to an arrangement for commissions or bonuses and a drawing account. These findings were supported by substantial evidence and are binding upon appellate review. We find no merit in the defendants’ contention that plaintiff was not their employee. While the oral agreement modified the written contract of employment from a base salary to that of a drawing account plus a bonus or commission arrangement, he nonetheless continued in their employment and was exempt by G. S. 1949, 67-1003 from being a licensed real estate broker or salesman to perform the services of his employment.
We have thoroughly reviewed the record and find no error requiring a reversal. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action founded on a written instrument for the unconditional payment of money.
The petition alleges that the plaintiffs are the holders of a promissory note upon which there is due the sum of $3,000 together with interest at the rate of 6% per annum from the 19th day of May, 1956. A copy of the note was attached to the petition and by reference made a part thereof.
The trial court sustained a demurrer to the answer filed and thereupon the defendant filed an amended answer and cross petition which was not verified. The action was commenced between the original parties to the note but during the pendency of the action in the trial court one of the plaintiffs, John Mertes, died testate on the 9th day of March, 1957, and the action was revived in the name of Don Kimel, executor of the estate of the deceased plaintiff.
The amended answer of the defendant admitted the execution of the note and then alleged defensive matter which was also made the basis of the cross petition, the substance of which is immaterial to relate.
The plaintiffs filed a motion for judgment on the pleadings “for the reason that the amended answer and cross petition raises no issue of fact; states no defense to the petition filed herein by the plaintiffs, and states no cause of action against said plaintiffs.” After hearing, the trial court overruled this motion. The journal entry recites:
“It Is Now Therefore, Ordered, Adjudged and Decreed that the motion of the plaintiffs herein for judgment on the pleadings should be, and hereby is, overruled and that. said defendant is hereby granted leave to file a verification to his amended ansioer filed herein.” (Emphasis added.)
The plaintiffs appeal to this court from the above order and the defendant (appellee) makes no appearance.
The appellants in their brief proceed directly to the question:
“Does an answer to an action based on a promissory note state sufficient facts to constitute a defense where the defense consists of a parol agreement executed prior to or contemporaneous with the execution of the promissory note, the effect of which would alter the terms of unconditional liability expressed by the note to one of conditional liability?”
Unfortunately, we do not reach this point. The decisive question is whether the appellants have an appealable order.
On appellate review this court has the duty to raise and determine the extent of its jurisdiction to hear an appeal where the record discloses the lack of jurisdiction, and it may dismiss the appeal although the parties have not raised the issue. (Curtis v. Kansas Bostwick Irrigation District, 182 Kan. 301, 320 P. 2d 783, and authorities accumulated therein.) The appellate jurisdiction of this court is only that conferred by statute. (Const., Art. 3, § 3.)
In all actions founded on written instruments for the unconditional payment of money, the defendant, his agent, or attorney, under the provisions of G. S. 1949, 60-729, is required to verify defenses contained in his answer, and this is true notwithstanding that the answer expressly admits the execution of the written instrument on which the action is founded. (Christy v. Kinsinger, 149 Kan. 437, 87 P. 2d 615.) Under such circumstances, where there is no showing that lack of verification was waived, the answer presents no issue. (Topping v. Tuckel, 159 Kan. 387, 155 P. 2d 427, and authorities cited therein.) See, also, Wimmer v. Filizola, 170 Kan. 476, 226 P. 2d 841.
In an action founded on a written instrument for the unconditional payment of money, where an unverified answer fails to raise an issue under G. S. 1949, 60-729, it is a common and proper practice for the plaintiff to move for and obtain judgment on the pleadings. (Durham State Bank v. Wolf, 142 Kan. 775, 51 P. 2d 980; Lukomske v. Harris, 143 Kan. 916, 57 P. 2d 20; Rose v. Boyer, 92 Kan. 892, 141 Pac. 1006; and Nation v. Clay, 125 Kan. 735, 266 Pac. 45.)
In the instant case, however, the trial court recognized that the amended answer of the defendant (appellee) had to be verified under 60-729, supra. Ráther than sustain the motion for judgment on the pleadings, the trial court overruled the motion and granted the defendant leave to file a verification to his amended answer filed in the case. The record does not disclose whether this was on die motion of the defendant, or whether the defendant com plied by filing the verification. Presumably the defendant may still comply.
The code of civil procedure specifies the particular matters on which a trial court’s rulings will supply the basis for an appeal to the Supreme Court. (G. S. 1949, 60-3302.) Resort to its provisions does not reveal that an order overruling a motion for judgment on the pleadings is one of them. Clearly this motion does not involve the merits of the action. It cannot be said that the ruling of the trial court is a final order, nor can it be said that it is equivalent to a ruling on demurrer, for if the motion were treated as a demurrer, it must concede, the facts alleged in the amended answer and cross petition as true. Without the amended answer and cross petition being verified, there exists no alleged defense to plaintiffs’ petition. The amended answer has no force or effect. It is thus impossible at this time to look to 'the allegations of the amended answer to see whether a valid defense is stated.
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The opinion of the court was delivered by
Robb, J.:
This consolidated appeal is from every part and portion of the ruling, decision, order and judgment of the court below, generally against plaintiffs, who have appealed, and is the second appearance of the controversy in this court. The former appeal (Simmons v. Reynolds, 179 Kan. 785, 298 P. 2d 345) was from the trial court’s order overruling defendants’ demurrers to plaintiffs’ petitions, and the details in respect to the parties and the propriety of the actions need not be repeated here as they were sufficiently set out therein.
Two portions of the will of, Elizabeth Yetter, deceased, dated September 10, 1938, are sought to be construed in this declaratory judgment action. The following is the first portion:
“First. To the Christian Church, called by me the Christian Church of Ogallah, Kansas, to which church I am now a member, I give, devise and bequeath . . . [correct description of land devised: west half of the west half of 25-12-22, Trego county]. I make this gift to the said church to be kept and maintained as a perpetual memorial to my deceased daughter, Bernice Benson and my daughter Nora Tawney with whom I am living. This land shall not be sold, conveyed, mortgaged nor alienated. I appoint my daughter Nora Tawney as trustee to manage and take care of the income from said property so long as she may wish or until her death. She should advise with my sons Judd H. Yetter and Culver D. Yetter in the management of said trust. The income shall be paid first in the payment of the taxes assessed against said land, then in keeping up the improvements on said property, and the remainder shall be paid toward the salary of the minister of said church. Such net income shall not be used for any other purpose except the payment of the salary of the minister of said church. Should my daughter Norah Tawney resign from such trusteeship or upon her death her successor shall be appointed from the membership of said church and if my sons be living upon their or his recommendations but if neither son recommends then the trustee shall be selected by the members of said church and shall serve only while a member of said church and a resident of the Ogallah Community. . . .”
The second portion of the will under which plaintiffs claim is the residuary clause. It reads:
“Eighth. I hereby authorize and direct and empower my executrix hereinafter named to sell and convert into cash all the balance of my real estate not devised as especially bequeathed as soon after my death and the probating of this will as the same may be done to the best advantage, such sale not to be made in time or times of great depression, and after payment of the above legacies, I devise, give, and bequeath said moneys to the following persons, Sadie B. Simmons, my granddaughter, Robert Graham Yetter, Keith Bartlett Yetter, Warren Hill Yetter, my grandsons, and my great grandson now called James Randolph Simmons, share and share alike all of the moneys arising from the said sale after payment of the legacies to my son Judd H. Yetter and Maria E. Courtright. And that all the rest and residue of my estate not aforesaid provided for be paid to my said grandchildren after payment of my debts in equal shares.”
The facts admitted by the pleadings, exhibits and stipulations of the parties are:
Elizabeth Yetter, a long-time Trego county resident and member of the unincorporated Christian Church of Ogallah in that county, died testate on November 21, 1938, owning the 160 acres of real estate above set out. The will was duly proved and admitted to probate by the Trego county probate court in which proceeding the 160 acres of land were inventoried at the value of $2,730.00. Upon the petition of Norah Tawney, executrix of Elizabeth’s will, the probate court on July 28, 1941, after due notice to all the present parties, entered its final settlement order, the salient parts of which, in brief, are:
“It is further shown to the court and the court finds that in the will of said Elizabeth Yetter the real estate devised in trust to the Christian Church of Ogallah is described as the W 1/2 of the NW 1/4 and the SW 1/4 of 25-12-22, Trego County . . . [but] that the trust set up for the benefit of said church should describe only the W 1/2 of W 1/2 of 25-12-22, Trego County, Kansas.
“It is further shown to the court and the court finds that said executor has received income and made disbursements from the real estate specifically devised as follows:
“From the [160 acres] devised to Norah Tawney in trust for the Christian Church of Ogallah:
“Receipts: $546.29 Disbursements: $372.36
“Balance: $173.93 .
“It Is Further Considered, Ordered and Adjudged by the court that the correct description of the real estate devised to Norah Tawney as Trustee for the Christian Church of Ogallah, Kansas, under and by the terms of the will of said Elizabeth Yetter, is the W 1/2 of W 1/2 of Section 25, Township 12, Range 12, Trego County, Kansas . . . that said [land] be assigned to said Norah Tawney as Trustee be and she is hereby directed to take possession of the same; that said executor pay to said Trustee the sum of $173.93, being the balance due on income from said trust property during the administration of said estate.”
Upon the petition of Norah Tawney the probate court on August 29, 1941, issued an order which, in pertinent part, reads:
“It is thereupon shown to the court and the court finds that under and by virtue of the terms of the will of Elizabeth Yetter', deceased, Norah Tawney was devised (as) Trustee for the Christian Church of Ogallah, Kansas, the following described real estate lying and situated in Trego County, Kansas [describing it] to control and manage said property and to use the net income therefrom toward the payment of the salary due the minister of said church.”
The probate court further ordered:
", . . that the appointment of said Norah Tawney as Trustee for said Christian Church of Ogallah, Kansas, under the will of Elizabeth Yetter, deceased, be and the same is hereby confirmed. ...”
On October 13, 1951, oil was discovered on the 160 acres of land and on January 1, 1952, the first oil proceeds were paid. Norah died on June 6, 1952, and her executor thereafter accounted for the income from the trust property of 160 acres. On July 7, 1952, the probate court found:
“. . . it is imperative that a trustee should be appointed at an early date in order that the assets and the income of said trust property may be preserved and properly accounted for . . .,”
and it appointed Clarence Reynolds as trustee, with bond fixed at $20,000. His bond was obtained on July 25, 1952, and filed July 26, 1952, after letters of trusteeship had been issued to him on July 22, 1952. He is the present trustee and his bond has been increased to the sum of $40,000.
The church came into existence in 1888, was incorporated on May 19, 1950, and now operates as such with Reynolds as resident agent. All the real estate of the church was conveyed to the corporation but no mention was made of the 160 acres of land. In 1953 Jack Clough became the first resident minister. He was paid $300.00 a month plus the use of the improvements on the 160 acres of land. During her lifetime Elizabeth made donations toward the minister’s salary, which averaged about $158.00 a year from 1936 to 1941. In 1938 there were 116 regular members of the church. In 1956 the number had increased to 160 with 98 inactive members living elsewhere and 62 active members living in Ogallah, an unincorporated village with a population of 125 inhabitants on December 5, 1956. The present minister, Reverend Wayne Parrish receives $85.00 a week. Reynolds, as trustee, with approval of the probate court has expended certain money for repair of the improvements on the 160 acres, for trustee fees, and for attorneys’ fees in a tax proceeding before the U. S. director of revenue.
Elizabeth first leased the 160 acres for oil exploration for a ten year term on May 15, 1936, which lease has been extended and ratified by all parties concerned. There are now five wells — three of which are producing their allowables of twenty-five barrels daily. The other two are not making their allowables. The trustee for a time kept the farm income and the oil proceeds in separate accounts but he now keeps them in one account. He has an accumulated amount of $46,000 in his possession.
The named residuary legatees under the will assigned an undivided one-fifth interest in the 160 acres to Judd C. Benson on September 29, 1953. No appeals were taken from any of the orders .of the probate court and no court proceedings were commenced for any purpose regarding the trust estate until the institution of the proceedings now being considered in this appeal. An annual account has been filed in and approved by the probate court. Since Reynolds’ trusteeship amounts have been entered in the annual ac-countings showing trustees’ bond premiums of $90.00, trustees’ fees, $2,265.00, unclassified items, $242.22, attorneys’ fees, $2,346.00, and court costs, $303.61. These expenditures, together with an increasing annual amount spent for the preacher’s salary, have been approved by the probate court.
The record in this case shows a tireless effort on the part of industrious counsel to furnish the court with all available authority on every point likely to be pertinent in the appeal and the court appreciates such consideration.
The first point of controversy is whether this is a collateral attack to contest a will so that the final settlement of the probate court was res judicata to its institution and maintenance. This question was sufficiently settled by our holding that the action was proper under G. S. 1949, 60-3129 in the former appeal (Simmons v. Reynolds, 179 Kan. 785, 298 P. 2d 345) and we adhere thereto without further discussion.
The duty of a probate court at the time it enters its decree of final settlement in a proceeding to probate a will is set out in Sharpe v. Sharpe, 164 Kan. 484, 190 P. 2d 344, as follows:
“Probate courts, in order to comply properly with G. S. 1947 Supp., 59-2249, should set forth in final decrees closing estates the nature and extent of the title which devisees acquire in real property in order that examiners of title can determine from the decrees whether the devisees may convey their interests without limitation.” (Syl. ¶ 1.)
Thus when Nor ah, as executrix, filed her correct accounting, it had to be settled and allowed by the probate court. Thereupon that court had to determine the heirs, devisees, legatees, describe the property, and state the proportion or part thereof to which each was entitled and such decree was binding as to all the estate of Elizabeth. (G. S. 1949, 59-2249.)
In addition to that involved herein, other real property was devised under Elizabeth’s will and at the time of final settlement thereof, the probate court had authority and the duty to interpret or construe the will and to determine who was to receive each part and parcel of such real property. (In re Estate of Weidman, 181 Kan. 718, 725, 314 P. 2d 327.) The time of the final settlement is the proper time for such determination to be made by the probate court (In re Estate of Burling, 179 Kan. 687, 693, 298 P. 2d 290) and since in our present case the time for appeal had elapsed and no appropriate appeal had been taken, the matters that had been finally determined by the probate court were conclusive and binding on the parties. (In re Estate of Rothrock, 173 Kan. 717, 722, 252 P. 2d 598.) There is merit in having finality of judicial decisions so that subsequent purchasers of real property can rely on the strength of a probate court’s decree of final settlement. (Bindley v. Mitchell, 170 Kan. 653, 657, 228 P. 2d 689.) To hold otherwise would require such purchasers to deal with executors, administrators or trustees at their peril. (In re Estate of Johnson, 180 Kan. 740, 748, 308 P. 2d 100.)
From the record before us it is conclusively shown there is a sharp conflict between the parties as to what their present rights are in their particular capacities and positions under the trust created by the provisions of Elizabeth’s will. It is evident that at the time of the commencement of this action there had been definite changes in' conditions and circumstances since the probate court’s decree of final settlement which in reality was not, or was it intended to be, a complete final determination and settlement of all final rights of these parties under the trust.
In a preliminary consideration of this testamentary trust, it must be remembered that this court has, in its many decisions, consistently adhered to general rules of construction as they appear in the revised edition of Bartlett’s Kansas Probate Law and Practice. Two of them are:
“The rules of construction applied to wills . . . recognize that each will must be construed by its own terms and the circumstances under which it was executed . . .,” and,
“The cardinal rule in the construction of wills to which all other rules are subordinate is that the intention of the testator must be ascertained, if possible, and must be given effect if it is not contrary to an established rule of positive law or in violation of public policy. . . .” (1 Bartlett’s Kansas Probate Law and Practice, rev. ed., § 441, p. 517; § 443, p. 520.)
On occasion Mr. Bartlett in his text has quoted appropriate rules stated in the opinions of this court, such as the following:
“ ‘It is elementary that the primary, the supreme, test in the construction of a will is the intention of the testator. It also is elementary that such inten tion must be ascertained not from any single or isolated provision but from all provisions contained within the four corners of the instrument and from circumstances surrounding its execution if they are needed to clarify the testator’s true purpose and intent.’ ” (1 Bartlett’s Kansas Probate Law and Practice, rev. ed., § 444, p. 523; Shannep v. Strong, 160 Kan. 206, 160 P. 2d 683.)
Elizabeth’s dominant scheme was to create a charitable trust for the advancement of religion by applying the net proceeds from the rents and profits derived from the real estate, after payment of taxes and upkeep, toward the payment of the salary of the minister of the church. (Restatement, Trusts, Volume II, §371, p. 1149.) Irrespective of what motive Elizabeth may have had for creating the trust, since the purpose, as established by the clear and unambiguous terms of her will and so decreed by the probate court in its decree of final settlement, appeared to be to create a charitable trust to serve and promote religion (Restatement, Trusts, Volume II, § 368 d., p. 1142), then this court is committed by its rule of long standing to carry out this charitable religious trust because our courts will look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law. (Barnhart v. Bowers, 143 Kan. 866, 869, 57 P. 2d 60.) See, also, 2 Bogert on Trusts, § 350, p. 514; In re Estate of Porter, 164 Kan. 92, Syl. ¶ 7, 187 P. 2d 520. Stated in plain terms, it is immaterial whether the net proceeds from the farm land, to be applied toward the payment of the minister’s salary, are in small or in substantial amounts as those proceeds must be applied to the purpose stated and determined.
From all that has been narrated herein it is clear that at Elizabeth’s death Norah was in being, the church was in existence, and it had a minister. Thus the legal title then vested in Norah and the equitable title vested in the church to carry out the trust. After the probate court put this religious charitable trust into operation by so vesting those titles and the time for appeal had expired, such vesting could not be attacked. It follows that when the present trustee was appointed, qualified and began to act, he replaced Norah in all respects, both factually and legally. The trust is active and the probate court continues to exercise jurisdiction over the trustee in his management thereof. In trust matters a court retains jurisdiction to control the trustees in their management thereof and the probate code empowered the probate courts of Kansas with equity jurisdiction for that purpose. (In re Estate of Woods, 181 Kan. 271, 311 P. 2d 359.)
In the Woods case a general and public charitable trust was created by the clear, unambiguous language in the will of the testator and for that reason we there disregarded the application of the doctrine of cy pres. Here we have a particular religious charitable trust with a narrow intent and purpose created by the plain, clear, unambiguous and concise language in Elizabeth’s will and the doctrine of cy pres is not applicable.
Subsequent to the decisions in the Simmons and Woods’ appeals this court has handed down the opinion in Coolbaugh, Trustee v. Gage, 182 Kan. 145, 319 P. 2d 146, where, as a part of a property settlement in a divorce action, a trust was amicably created in writing by parents for the support of their four minor children. We there held the trustee had the legal capacity to sue, in an action independent from the divorce proceeding, to determine the rights of an assignee of the father and his present wife. That opinion shows the necessity of the aforesaid rule that courts must have and exercise jurisdiction over trusts to assure interested parties that their rights and property will be protected when involved in such trusts. While the facts in the two cases are not congruent, the general legal rules discussed in the Coolbaugh case (p. 150) are applicable here.
The surplus of $46,000 now reposing in the possession of the trustee gives rise to the vital question of this appeal. Plaintiffs claim they are entitled thereto under the residuary clause while the defendants claim plaintiffs are not so entitled if the devise to the church is not wholly void. We have carefully considered the unambiguous provisions of paragraph 8 of the will, previously set out herein, and while we are not passing judgment on any of these matters, it appears that Elizabeth expressed no limitation as to time or amount and no provision was made for reverter or gift over. The present surplus could not have been anticipated by Elizabeth. (State, ex rel., v. Board of Regents, 176 Kan. 179, 189, 269 P. 2d 425.) Our state legislature has not as yet passed any statute governing an exigency created by the accumulation of such a surplus. Some of our sister states have passed legislation patterned after the English Thellusson Act and attention is directed to the annotation appearing in 71 A. L. R. 417, where a comprehensive discussion on such statutes is found.
No one can anticipate what accumulations or surplus will be added to the .existing fund. There is no assurance that it will continue to pyramid and, on the other hand, there is no assurance that it will cease to be supplemented beyond the amount needed for the particular and narrow intent of this trust. The income from the land might fail entirely. We certainly cannot determine from a careful study of her will that Elizabeth intended to support and maintain this church entirely or to create any general charity. (Shannep v. Strong, 160 Kan. 206, 160 P. 2d 683.) She had a size-able estate during her lifetime and she did not then support and maintain the church entirely so it cannot be concluded that she intended to do so after her death. In fact, the contrary is manifested by her disposal, through other channels, of the other portions of her estate. When these proceedings were begun the church was in existence and had a full-time salaried minister. The trust, therefore, continued active. It was not passive, dry, inoperative, fully executed, or terminated. (For a discussion thereof, see In re Estate of Sheets, 175 Kan. 741, 267 P. 2d 962.) Also, without determining the matter, it may be noted that upon the occurrence of any of the latter events, there is authority to support the proposition that the trustee could not retain the property but it should revert to Elizabeth’s successors or residuary devisees. (2A Bogert on Trusts, § 418, p. 305; Shannep v. Strong, supra.)
Under the rules of construction above stated, however, we must consider Elizabeth’s expressed intention in the first paragraph of her will that, “Such net income shall not be used for any other purpose except the payment of the salary of the minister of said church,” and until her expressed purpose has terminated, there can be no justification for court interference with any surplus fund accumulated unless this court abrogates stare decisis, or our legislature enacts appropriate statutes for the purpose of controlling the accumulation of a surplus such as we have here.
Plaintiffs argue the trustee has exceeded his power and violated his trust but, as correctly stated by defendants, this will not terminate the trust but merely provide justification for the removal of the trustee and the appointment of a successor. (Daughters of American Revolution v. Washburn College, 160 Kan. 583, 164 P. 2d 128.) It is not necessary to discuss the fiduciary relationship of and the resulting duty owed by the trustee in the administration of a trust. The trial court found the trust is being properly managed and on the record before us on this appeal we agree.
All questions raised have been considered and we have not overlooked any of the many casebook and text authorities submitted but those referred to herein are sufficient for the determination of the questions involved. The judgment of the trial court must be affirmed and it is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff brought this action in the court of common pleas of Sedgwick County against the defendants, to recover damages sustained to his automobile as the result of a collision between two motor vehicles on a public highway, and failed to recover. He then perfected an appeal to the district court where, under issues joined by the pleadings in the court of first resort, the case proceeded to trial and a demurrer to his evidence, based on the ground such evidence failed to establish a cause of action, was sustained. Following this action judgment was rendered against him for costs of the action. Thereupon, without filing a motion for a new trial, he perfected the instant appeal, under a notice reciting that he was appealing from the judgment, order and decision rendered and made, and particularly from rulings made during the trial, and the ruling sustaining the demurrer to his evidence.
In a general way it may be said that claims advanced by appellant as grounds for reversal of the judgment are that the trial court erred (1) in failing to allow questions in a deposition to be read in the same manner as if witnesses were present in open court; (2) by striking evidence relating to medical bills paid by him; (3) in' erroneously excluding evidence pertaining to damages sustained to his automobile as a result of the collision in question; (4) in denying his motion to reopen the case for the purpose of introducing further evidence; (5) in reading ahead in the deposition in a manner unlike a trial in open court with the witness present; and (6) in sustaining the demurrer to his evidence.
Before giving any consideration to the merits of the foregoing claims we must first determine whether, absent a motion for a new trial, they are subject to review on this appeal. We therefore turn to that question.
The rule in this jurisdiction, so well-established as to scarcely require citation of any of the numerous authorities supporting it, is that where there is no motion for a new trial filed in the district court, trial errors are not open to appellate review. See King v. King, 183 Kan. 406, 327 P. 2d 865; Marshall v. Bailey, 183 Kan. 310, 327 P. 2d 1034; Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233; Brewer v. Hearne Motor Freight Lines, Inc., 179 Kan. 732, 297 P. 2d 1108; State, ex rel., v. Miller, 176 Kan. 175, 268 P. 2d 964. For numerous other decisions of like import see Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 366; West’s Kansas Digest Appeal & Error, § 281 (1).
See, also, Marshall v. Bailey, supra, where, in applying the foregoing rule, it is said that trial errors “include rulings of the district court on dilatory pleas, orders setting the cause for trial, denial of additional time to plead, the overruling of a motion for judgment on counsel’s opening statement, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, the erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on timely motion of a defeated litigant. (Citing decisions.)” (p. 313.)
. Pointing to our decisions, holding that a motion for a new trial is neither necessary nor required in order to obtain review of a ruling on a demurrer to evidence, appellant suggests the rule first above mentioned has no application to trial errors committed prior to the making of such a ruling. This suggestion lacks merit and cannot be upheld. See, e. g., Jett-Wood Central Mercantile Co. v. Pringle, 128 Kan. 159, 277 Pac. 37, which holds:
“An error in excluding evidence is not reviewable on appeal unless sucb excluded evidence has been produced and presented to the trial court by affidavit or otherwise at the hearing of the motion for a new trial, and this rule applies under R. S. 60-3004 in cases where a demurrer to the evidence has been sustained.” (Syl. If 2.)
See, also, Yarberry v. Hertzler, 151 Kan. 651, 654, 100 P. 2d 629.
The rationale of the decisions last above cited is that appellate review of a trial court’s ruling on a demurrer to evidence is restricted to the evidence which has been admitted and considered in ruling on the demurrer and, on appeal from such a ruling, trial errors involved in the admission or rejection of evidence are not subject to review unless they are raised by a motion for a new trial.
What has been heretofore stated makes it clear that claims 1 to 5 inclusive, advanced by appellant, relate to trial errors. It follows the only claim here subject to review is whether the trial court erred in sustaining the demurrer to the evidence.
After a careful and extended examination of a confusing and incomprehensive record, due to the manner in which the case was presented in district court as well as the manner and form in which it is presented on appellate review, which has left much to speculation and conjecture and has made a decision of all questions raised by the parties extremely tedious and difficult, we are inclined to the view the ruling sustaining the demurrer to the evidence was based on grounds that the appellant had wholly failed, by the evidence admitted during the trial, to establish either the damages sustained to his automobile as a result of the collision, or that the driver of the other vehicle involved was acting as the agent of the appellees at the time of such collision.
Under the existing conditions and circumstances it would serve no useful purpose and certainly add nothing to the body of our law to here attempt to set forth the evidence before the trial court at the time of its ruling. It suffices to say, that when the admitted evidence upon which that tribunal based its decision is examined in the light of the same confusing. and incomprehensive record to which we have heretofore referred, we are convinced there is nothing in such evidence, or in contentions advanced by appellant respecting the matters relied on in support of its position on the point now under consideration, which makes it affirmatively appear the trial court’s action in sustaining the demurrer was erroneous. In any event, in the face of such record, we are constrained to hold appellant has failed to establish any plain, palpable error warranting a reversal of that ruling. Since, as we have heretofore indicated, trial errors of which the appellant complains are not open to review either of the conclusions just announced. requires an affirmance of the ruling on the demurrer as well as the judgment (West’s Kansas Digest, Appeal & Error, § 901; Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, § 583; Jones v. Crowell, 167 Kan. 415, 420, 207 P. 2d 435; Huycke v. Kramer, 133 Kan. 41, 47, 298 Pac. 787; Fairbanks, Morse & Co. v. Inglitt, 106 Kan. 488, 492, 188 Pac. 248).
The judgment is affirmed. | [
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McAnany, J.:
Charles Cook appeals his convictions for battery (Koch), battery of a law enforcement officer (Huff), and two counts of resisting arrest (Huff and Arellano.) We affirm the convictions for battery and for one count of resisting arrest, but reverse Cook’s second resisting arrest conviction.
Wichita animal control officer Koch issued a citation to Cook for permitting his dog to run at large. Cook became verbally and physically aggressive, screaming profanities and grabbing at the ticket book. When Koch attempted to get into his vehicle, Cook came after him and slammed the van door on Koch’s arm and leg. This ultimately resulted in one of the battery convictions.
Officers Huff and Arellano then arrived at the scene. They approached the residence and told B.J. Carmichael that they wished to speak with Cook, who had gone inside the house. Carmichael was living with Cook at the time, and they married shortly after this incident. Despite Carmichael’s refusal to allow the officers inside, they entered the house and found Cook sitting on the couch speaking on the phone. Cook refused to hang up the phone when Huff requested him to do so. Huff reached over to the base of the phone and pushed the button to terminate the phone call. As he did so, Cook slapped Huff s hand away from the phone. This ultimately resulted in Cook’s second battery conviction.
Cook was placed under arrest. When the officers attempted to handcuff Cook, he began to jerk and pull away, making it difficult for the officers to handcuff him. Eventually, the officers were able to get him handcuffed. As tire officers escorted him to the patrol car, Cook went limp, fell to the ground, and began kicking his legs. The officers subdued Cook and forcibly led him to the patrol car. These events ultimately resulted in Cook’s two convictions for resisting arrest.
Cook pled no contest to all counts and was found guilty as charged in municipal court. Cook appealed to the district court where he was found guilty as charged in a jury trial. Cook now appeals.
Cook criticizes Instruction No. 14 which states:
“A person is not authorized to use force to resist an arrest which he knows is being made by a law enforcement officer even if the person believes that the arrest is unlawful and the arrest is, in fact, unlawful.”
His counsel did not object to the instruction at trial. Thus, we apply the clearly erroneous standard on review and reverse on an erroneous instruction only if there is a real possibility that the jury would have rendered a different verdict if tire error had not occurred. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
Cook contends this instruction should not have been given since he claims he was legally correct in remaining on the phone and Officer Huff s actions to terminate the call constituted excessive force.
To begin with, the instruction deals with acts incident to an arrest. Cook’s striking Huff was not in the course of an arrest. Huff was simply terminating Cook’s phone call when Cook struck him. It was only after Cook struck Huff that he was placed under arrest. Huff s actions in terminating the phone call were neither excessive nor performed during the course of an arrest.
Cook relies on State v. Heiskell, 8 Kan. App. 2d 667, 666 P.2d 207 (1983), in his challenge to this instruction. In Heiskell the court gave, and defendant did not challenge, an instruction much like No. 14 which informed the jury that a person is not authorized to use force to resist even an unlawful arrest. The real issue in Heiskell was whether defendant was entitled to a self-defense instruction. Instruction No. 14 was an accurate expression of tire law, and giving it was not error.
Next, Cook claims the district court should have given either a self-defense instruction (which was not requested) or tire following requested instruction:
“A person is justified in the use [of] force when and to the extent he reasonably believes it necessary to prevent another [person] from improper interference with lawful conduct.
“In this case, Defendant would be justified in using reasonable force to prevent Officer Huff from terminating Defendant’s telephone call to 911 if you find such termination by Officer Huff to be improper and if you find that Defendant’s making such telephone call was lawful.”
Cook’s trial counsel asserted at trial that Cook was entitled to this instruction because “[h]e used no more force than was necessary to meet an unlawful act by the police officer, that unlawful act being terminating against Mr. Cook’s wishes his telephone call.” Cook cites no legal authority for this proposition. The trial court did not err in refusing to give this proposed instruction. However, this still leaves for consideration whether the court should have given some other form of self-defense instruction, though no such alternative was requested at trial. We review the trial court’s failure to give an alternative self-defense instruction using the clearly erroneous standard. State v. Sperry, 267 Kan. 287, 294, 978 P.2d 933 (1999).
K.S.A. 21-3211 codifies the right to self-defense and states:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.”
In order to warrant a self-defense instruction, Cook must show that he sincerely and honestly believed it was necessary to use force in order to defend himself, and that a reasonable person in his circumstances would have perceived self-defense as necessary. State v. Lutter, 27 Kan. App. 2d 858, 860, 10 P.3d 16, rev. denied 270 Kan. 902 (2000). “A self-defense instruction is not generally available for resisting arrest by an identified, uniformed police officer.” Lutter, 27 Kan. App. 2d 858, Syl. ¶ 1. Huff was in uniform at the time of Cook’s battery. When Cook struck Huff, Huff s only action had been to terminate Cook’s phone call by pushing the button on the base of the phone. There had been no physical contact whatsoever between them before Cook struck Huff. No reasonable person in Cook’s circumstances would have believed it was necessary to strike Huff to defend himself from imminent use of unlawful force. The district court did not err in failing to give a self-defense instruction.
Cook criticizes instruction No. 11, claiming it was not in accordance with the complaint and the bill of particulars. The relevant portion of instruction No. 11 stated “[t]hat the defendant intentionally caused physical contact with Russell Huff in a rude, insulting or angry manner.” Cook objected to the instruction, claiming it should be limited to the instance identified in the bill of particulars, i.e., striking Huff s arm to prevent Huff from hanging up the phone. The court overruled the objection but limited the City’s closing argument to the instance identified in the bill of particulars.
“ ‘A bill of particulars serves the dual purpose of informing the defendant of the nature of the charge and the evidence against him to enable him to prepare his defense, and of enabling the defendant to avoid further prosecution for the same offense. The State is restricted in its proof to tire items specified in the bill of particulars. The purpose of this restriction is to prevent the State from charging the defendant with one crime and convicting him of something else.’ [Citation omitted.]” State v. Wright, 259 Kan. 117, 126, 911 P.2d 166 (1996).
Cook was charged using the language of the section of the city code he was accused of violating. The district court properly used the language of the ordinance in its instruction. See State v. Crawford, 247 Kan. 223, 225, 795 P.2d 401 (1990). Further, the court limited the City’s evidence to the event identified in the bill of particulars. Cook makes no claim that the City breached this line either in its évidence or in its jury argument. It was not necessary to instruct the jury regarding the factual allegations contained in the bill of particulars. There was no possible jury confusion. The district court did not err in overruling Cook’s objection to the jury instruction.
Cook next claims the district court erred in failing to give a multiple acts jury instruction. Cook failed to request such an instruction and failed to object to the trial court that no such instruction was given.
Cook first argues the court should have given a multiple acts instruction with respect to the battery charge against Huff. The evidence showed only one possible instance of a battery committed against Huff, i.e., Cook slapping Huff s hand away from the phone. There was no evidence that Cook struck Huff at any other time. Cook was charged with one count of battery against Huff. The district court did not err in failing to give a multiple acts instruction regarding this battery charge.
Cook next argues a multiple acts instruction should have been given regarding the two counts of resisting arrest. Cook was charged with two counts of resisting arrest: one for resisting Huff and one for resisting Arellano.
Officer Huff testified that Cook’s phone call was to the police dispatcher, and that Cook was “yelling at the dispatchers over the phone about us, accusing us of assaulting his wife.” Huff and Ar ellano then struggled with Cook to overcome his resistance and to get him handcuffed. Huff and Arellano immediately led Cook outside. Koch, who was outside preparing his report, saw Cook being led from the house and observed:
“He was still yelling . . . but the officers holding on to him, he was still fighting, resisting arrest is what you call it. . . he was just fighting them all the way, you know, trying to run away, tiying to fall to the ground, whatever he was trying to do.”
As they led Cook to the patrol car, Huff testified that Cook “just stopped walking and went to the ground” where “he struggled, he was flailing on the ground with his legs.” Cook “began yelling, he’s not getting in the car until his supervisor gets here.” Cook “eventually calmed down, and we stood him back up and told him we were going to put him in a patrol car and supervisor was on their way, and he could talk to him when they got there.”
Our first task is to determine whether these events constituted multiple acts, as Cook asserts. In State v. Hill, 271 Kan. 929, 939, 26 P.3d 1267 (2001), the court stated:
“Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motived by ‘a fresh impulse.’ ”
In Hill, defendant was charged with one count of rape. The evidence established that penetration occurred while he and the victim were in the bathroom and again while they were in the kitchen. “[Mjore than one act was presented as evidence of a single criminal offense.” Hill, 271 Kan. at 940. The outcome depended on the jury’s resolution of issues of credibility. The victim testified to these two acts of penetration. Defendant, in his written statement to the police, stated that he knocked on the front door, found out that the victim’s father was not at home, and immediately left.
Hill involved one rape charge arising out of two acts of penetration. Our case is the reverse: two charges of resisting arrest arising out of one continuous, ongoing act. There was no meaningful time-lag in the events that made up Cook’s arrest and his resistance to that arrest. Cook did not present distinct defenses to the events inside the house and the events outside the house. His acts outside the house were not motivated by a fresh impulse. They were, in fact, motivated by the same impulse that began his resistance: his insistence upon talking to a police department supervisor about the abuse being heaped upon him and Ms. Carmichael by the police officers.
There was ample evidence to support the finding that Cook resisted the efforts of Huff and Arellano to arrest him. When viewed as one event, the jury could not have been confused about this. The problem is, the City asserted separate charges against Cook for resisting each officer in the same arrest. Multiple convictions on multiple counts of resisting arrest arising out of a single episode, even if more than one officer is involved, constitute double jeopardy in violation of the 5th and 14th Amendments to the United States Constitution. See Fogle v. State, 754 So. 2d 878 (Fla. Dist. App. 2000).
“After Appellant was told he was under arrest, he struck a police officer, ran away, fell, and when four officers caught him, continued to resist. Although a defendant may commit more than one offense in an altercation with police officers, he can be convicted of only one count of resisting arrest where his altercation with a number of officers was in the course of his continuous resistance to an ongoing attempt to effect his arrest. Wallace v. State, 724 So.2d 1176 (Fla. 1998); Jones v. State, 711 So.2d 633 (Fla. 1st DCA 1998).” Fogle, 754 So. 2d at 878-79.
Cook’s resistance was a single, ongoing event that commenced inside the house when Huff told him he was under arrest and ended when Huff and Arellano successfully got him to the police car. Cook could be convicted of only one resisting arrest charge in this incident. Accordingly, we reverse Cook’s second resisting arrest conviction.
Following his arrest, Cook complained to the City that Huff unlawfully entered his house and used excessive force in dealing with him. Cook contends the district court erred when it admitted evidence that the city had exonerated Huff on the complaint of excessive force. We review the trial court’s admission of evidence, subject to exclusionary rules, for any abuse of discretion. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
During Huff s cross-examination, and over the City’s objection, defense counsel inquired about an internal affairs investigation. Huff admitted that the City found his entry into Cook’s house was improper. On redirect, the City introduced evidence that Huff was exonerated by the city on the complaint of excessive force. The defense having opened the door on cross-examination, the City could properly pursue the topic of the Cooks’ complaints on redirect. There was no abuse of discretion.
Cook challenges the sufficiency of the evidence for all four charges. We review the evidence in the light most favorable to the prevailing party in determining whether the jury could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
Cook first claims he could not be found guilty of resisting arrest because the arrest and entry into his home were unlawful. The city ordinance provides that “[i]t is unlawful for any person to resist or oppose any police officer in the discharge of any official duty.” Cook’s argument ignores the plain language of K.S.A. 21-3217 that a person is not authorized to use force to resist an arrest he knows is being made by a law enforcement officer, even if the person arrested believes the arrest is unlawful. There was sufficient evidence for the jury to convict Cook on this charge.
Cook next claims there was insufficient evidence to convict him of the batteries against both Huff and Koch. The applicable city ordinance provides that a person is guilty of a misdemeanor if that person “intentionally causes physical contact with another person when done in a rude, insolent or angry manner.” There was evidence of physical contact, anger, and intent as required by the ordinance. There was sufficient evidence presented to support the finding of guilt on the battery charges.
Cook also claims he was denied the effective assistance of trial counsel. This allegation was not presented to the district court. We will not consider an allegation of ineffective assistance of counsel asserted for the first time on appeal. State v. Mann, 274 Kan. 670, 691, 56 P.3d 212 (2002).
We affirm the convictions for battery and for one count of resisting arrest, but reverse Cook’s second resisting arrest conviction. | [
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VlEUX, J.:
David L. Kuzanek appeals the trial court’s denial of his motion to terminate maintenance payments to Karen K. Kuzanek. We reverse.
David and Karen were divorced in June 1999 following an 18-year marriage. The journal entry of divorce incorporated the parties’ separation agreement, which ordered David to pay spousal maintenance for 110 months, or until any of three alternative conditions occurred, one of which was Karen’s cohabitation with an unrelated adult male for more than 30 days.
In October 2002, David filed a motion to terminate maintenance based on Karen’s alleged cohabitation with Robert Potemski. A hearing was held in February 2003, at which time David’s motion was denied. In denying the motion, the trial court found that David had failed to meet his burden of proof to demonstrate cohabitation as defined in In re Marriage of Kopac, 30 Kan. App. 2d 735, 47 P.3d 425 (2002). The trial court noted that some marital-like obligations occurred in the relationship, but because there was a landlord-tenant arrangement with a written lease, no sharing of finances, and no holding out as husband and wife, cohabitation as defined in Kopac had not been proven. David timely appeals.
Kansas has an unambiguous and accepted legal meaning for cohabitation. In order for two adults to cohabitate, they must live together and assume the marital rights, duties, and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations. Kopac, 30 Kan. App. 2d at 737. The definition of cohabitation supplied by the courts is most imprecise in actual practice and application. This court appreciates the difficulty of applying this concept to any particular case. While many of the common attributes of marriage should be considered and are important to any decision involving cohabitation, the court must also focus upon the financial aspects of the matter. In Kansas, spousal maintenance is predicated upon financial need and financial ability. In re Marriage of Sommers, 246 Kan. 652, 658, 792 P.2d 1005 (1990).
Where a significant relationship exists between an individual receiving spousal support and an unrelated adult of the opposite sex which carries colorable attributes of a marriage-like relationship, and where the unrelated adult supplies a material financial gain or benefit, either through direct exchange of money or in-kind services to the one receiving spousal support, then it is cohabitation within the context of domestic law in Kansas. Such relationships should not be masked by use of a legal device, such as a lease agreement if, when stripped away, cohabitation clearly exists.
Under the facts of this case, it is important to first examine the evidence and determine if Karen and Potemsld were in fact landlord and tenant.
It is undisputed that Karen leased rooms in her home to Potemski, with whom she had a significant long-term romantic relationship, which included occasional sexual relations. Karen contends that notwithstanding these facts, her relationship with Potemsld was essentially a landlord/tenant relationship with a written lease. This is a suspect contention. At the time of the hearing, Potemsld had lived in Karen’s home with her and her two children for approximately 1 year. He did not maintain a separate residence. Potemsld kept some of his clothes and his computer in Karen’s bedroom. They had an exclusive sexual relationship for approximately 4 years. Potemsld had attended some of Karen’s children’s school functions and had power of attorney to authorize medical treatment of the children. He purchased sports equipment for one child and sometimes gave the children money. Potemsld was listed as a contact person on one of the children’s sports rosters. He spent Christmas with Karen and her family, did household chores, occasionally cooked for the family, babysat the youngest child without compensation, and provided Karen’s oldest child with a cell phone. Potemsld testified that he generally bought his own groceries and paid rent to Karen as a tenant in her home. He admitted to doing die family’s laundry in exchange for the use of the laundry facilities.
The nature and extent of the relationship between Karen and Potemsld is clearly not that of a landlord/tenant or a mere friend. Tenants and mere friends simply do not commonly conduct themselves in tire manner that Karen and Potemsld have.
On appeal, this court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. An appellate court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Here, the trial court’s reliance on the parties’ written lease to refute a finding of cohabitation is misplaced. Within the facts of this case, which included an exclusive 4-year sexual relationship, the lease was a transparent legal device.
When the lease is stripped away, it is abundantly clear that Karen and Potemsld were cohabitating. There is clear evidence of a material and significant sharing of expenses through payments nominally denominated as rent as well as payment in kind with personal and household services to the party receiving spousal support. Additionally, within the factual confines of this case, the fact that Karen and Potemsld did not hold themselves out to be husband and wife and had no joint property is of no particular consequence.
The trial court erred when it denied David’s motion to terminate maintenance payments.
Reversed. | [
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Green, J.:
Brad Thompson appeals from the trial court’s denial of relief in proceedings under K.S.A. 60-1507. Thompson’s arguments relate to sentencing in his underlying conviction, resulting from a plea bargain, for possession of methamphetamine as a severity level 1 offense under K.S.A. 65-4160(a). On appeal, Thompson raises three arguments. First, Thompson argues that both of his prior convictions could not be used to elevate his possession of methamphetamine charge from a severity level 4 offense to a severity level 1 offense under K.S.A. 65-4160. We disagree. Thompson’s prior convictions followed the proper sequential pattern in order for him to be found guilty of a severity level 1 offense. The fact that Thompson’s first and second convictions were both sentenced as first offenses does not affect his sentence in the present case.
Next, Thompson contends that he must be resentenced to a severity level 4 offense because the complaint failed to allege his prior convictions. We again disagree. The complaint was only required to state the severity level of the offense under K.S.A. 65-4160. Evidence of Thompson’s prior convictions did not have to be brought forth until sentencing. Because the complaint adequately informed Thompson of tire severity level with which he was being charged, we find that Thompson’s argument lacks merit.
Finally, relying on his two previous arguments, Thompson raises an ineffective assistance of counsel issue. Because we have determined that Thompson’s previous arguments lack merit, it is unnecessaiy to conduct any further analysis of this issue. Accordingly, we affirm the trial court’s ruling.
During December 1999, Thompson was charged with manufacturing methamphetamine in violation of K.S.A. 65-4l59(a). The complaint was later amended to include the charge of possession of methamphetamine as a severity level 1 felony in violation of K.S.A. 65-4160(a).
To be convicted of possession of methamphetamine as a severity level 1 offense under K.S.A. 65-4160, a defendant must have two prior convictions under that statute. The complaint did not detail Thompson’s two prior convictions; however, it clearly set forth that Thompson was being charged with a severity level 1 offense under K.S.A. 65-4160(a).
The record reveals that before Thompson’s commission of the offense in the present case, he had two convictions for possession of methamphetamine. Specifically, on March 30,1998, Thompson pled guilty to possession of methamphetamine as a severity level 4 felony in case number 97 CR 2841. He was sentenced for that offense on May 22, 1998. After Thompson pled guilty but before he was sentenced in 97 CR 2841, the State again charged Thompson with possession of methamphetamine as a severity level 4 offense under K.S.A. 65-4160(a) in case number 98 CR 1032. The complaint was filed on April 21,1998, and alleged that the act was committed on or about April 19, 1998. Thompson pled guilty to that offense during July 1998 and was sentenced as a level 4 offender during August 1998.
In the instant case, during July 2000, Thompson entered into a plea agreement with the State in which he pled guilty to the charge of possession of methamphetamine, a severity level one felony, in violation of K.S.A. 65-4160(a). As part of the plea agreement, the State agreed to dismiss the remaining charge of manufacturing methamphetamine. Thompson and the State also agreed to a downward durational departure sentence of 112 months’ incarceration. The trial court accepted the plea agreement and sentenced Thompson to 112 months in prison.
During March 2003, Thompson brought an action under K.S.A. 60-1507, requesting that the trial court correct his sentence. Thompson raised the same three issues that he now argues on appeal. The trial court denied the motion in a memorandum decision filed during June 2003.
Seventy Level of Crime
First, Thompson argues that both of his prior convictions for possession of methamphetamine could not be used to enhance his sentence to a severity level 1 felony under K.S.A. 65-4160.
It is important to note that Thompson’s conviction in this case arose from a plea agreement. In this collateral attack of his sentence, Thompson is not arguing that his plea should be withdrawn; instead, he seeks to accept the benefits of his plea while also asking the trial court to correct his sentence.
In State v. Boswell, 30 Kan. App. 2d 9, 37 P.3d 40 (2001), this court noted that we generally lack jurisdiction to consider sentencing issues on appeal when the sentence results from a plea agreement between the State and the defendant and the trial court approves the agreement on the record. Nevertheless, an appellate court may consider a claim that the sentence is illegal. In Boswell, the trial court granted an upward durational departure sentence that was recommended by the State under a plea agreement. This court found that the sentence was illegal and should be vacated. 30 Kan. App. 2d at 10-11. Adopting the holding of Jolly v. State, 392 So. 2d 54 (Fla. 5th Dist. App. 1981), this court stated:
“[W]hen a plea agreement includes an agreement to recommend to the court an illegal sentence, the sentencing court imposes the recommended but illegal sentence, and the illegal sentence impermissibly increases the defendant’s term of imprisonment, the State may either allow the defendant to withdraw his or her guilty plea, or agree that tire illegal portion of the sentence be vacated and the defendant be resentenced to the proper lesser term.” 30 Kan. App. 2d at 14.
Applying the Boswell holding to the instant case, we determine that if Thompson had been illegally sentenced, the State could either allow Thompson to withdraw his plea or agree drat his sentence be vacated and resentence him to the proper punishment. Nevertheless, such a result is unnecessary in this case because we determine that Thompson’s sentence was legal.
Turning to the merits of Thompson’s argument, whether Thompson’s prior convictions can be used to elevate his present conviction to a severity level 1 felony requires us to interpret K.S.A. 65-4160. “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. [Citation omitted.]’’ State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
K.S.A. 65-4160 is a self-contained habitual criminal statute, which states in pertinent part:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to possess or have under such person’s control any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b) and (c), any person who violates this subsection shall be guilty of a drug severity level 4 felony.
“(b) If any person who violates this section has one prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, tiren that person shall be guilty of a drug severity level 2 felony.
“(c) If any person who violates this section has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony.” (Emphasis added.)
In the instant case, Thompson was sentenced as a severity level 1 offender under K.S.A. 65-4160, based on his two prior convic tions. The dispute in this case occurs because Thompson committed and was charged with his second offense of methamphetamine possession in case number 98 CR 1032 before he was sentenced for his first offense in 97 CR 2841. Furthermore, Thompson was sentenced to a severity level 4 felony for each of his prior convictions.
Thompson asserts that his first conviction was not final before the commission of his second offense. Thompson contends that under State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078 (1981), only convictions that are final and predate each other and the charged offense may be used to enhance crime severity levels.
The trial court determined that the rule from Wilson applied in this case. Nevertheless, the trial court found that Thompson was convicted for his first offense before he committed his second offense. As a result, the trial court found that Thompson had “two prior convictions requisite to be sentenced pursuant to K.S.A. 65-4160(c).”
In State v. Wilson, 6 Kan. App. 2d at 306, this court found that to enhance the defendant’s sentence as a third-time offender under the Habitual Criminal Act, K.S.A. 1980 Supp. 21-4504(2), each succeeding offense must be committed after the conviction for the preceding offense. In other words, “it is required that there be the commission and conviction of one offense, followed by the commission and conviction of a second offense, followed by commission of the principal offense upon conviction of which sentence enhancement is sought.” 6 Kan. App. 2d at 306. Our Supreme Court affirmed the decision.
In State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), our Supreme Court extended the reasoning from Wilson to a self-contained habitual criminal statute. Our Supreme Court determined that in order for a defendant’s sentence to be enhanced as a second time offender under K.S.A. 8-1567(d), the succeeding offense must be committed after the conviction for the preceding offense. 234 Kan. 443, Syl. ¶ 1.
State v. Bandy, 25 Kan. App. 2d 696, 971 P.2d 749 (1998), departed from the decisions in Wilson and Osoba. In Bandy, the defendant was convicted of a third offense of driving with a suspended license in violation of K.S.A. 1994 Supp. 8-262(a)(l)(C). The defendant argued that the Wilson rule applied and that any prior conviction used to enhance his current conviction must occur before the date of his current offense. In rejecting the defendant’s argument, the Bandy court noted that the Kansas Sentencing Guidelines Act (KSGA) had all but eliminated the Habitual Criminal Act (HCA) and, thus, the accompanying rule from Wilson. The Bandy court looked at the fact that K.S.A. 21-4710(a) allows the use of all prior convictions in a defendant’s criminal history, regardless of when the prior offenses occurred. 25 Kan. App. 2d at 697-700. In extending this rule to other self-contained habitual violator statutes, the Bandy court stated:
“The intent of the legislature in determining a defendant’s criminal history in the KSGA is to allow all prior convictions regardless of the timing of the previous offense(s). We extend by analogy this intention and apply it to other self-contained habitual violator statutes, such as the driving with a suspended license statute, K.S.A. 1997 Supp. 8-262(a)(l). This provides a harmonious application of all habitual violator statutes regardless of whether an individual statute is silent as to the timing of prior offenses.” 25 Kan. App. 2d at 700.
Nevertheless, distinct from the statute at issue in Bandy, the plain language of K.S.A. 65-4160 requires that prior convictions used to enhance the severity level of the current offense must have occurred before the date of the crime. Here, it is undisputed that both of Thompson’s prior convictions occurred before the date of the current offense.
Our Supreme Court’s reasoning in Wilson indicates, however, that Thompson’s prior convictions must occur in sequence in order for Thompson’s sentence to be enhanced to a severity level 1 offense. Stated another way, there must be the commission and conviction of a first offense, followed by the commission and conviction of a second offense, followed by the commission and conviction of a third offense. On the other hand, this court’s decision in Bandy indicates that all prior convictions are considered, regardless of the timing of the previous offenses. It is unnecessary to conduct a lengthy analysis of whether the rule in Bandy or the rule in Wilson applies here because the analysis below indicates that Thompson’s prior convictions fit under both of these rules.
Under Wilson, our analysis turns to whether Thompson was convicted for his first possession of methamphetamine offense at the time he committed his second possession of methamphetamine offense.
The State contends that a conviction occurs when the defendant pleads guilty to an offense. To support its decision, the State cites to the decision in State v. Holmes, 222 Kan. 212, 214, 563 P.2d 480 (1977), where the defendant was convicted of possession of a firearm as a previously convicted felon under K.S.A. 21-4204(b)(l). The issue was whether the defendant had the status of a convicted felon on the date he possessed the firearm. In the previous case, the defendant had pled nolo contendré to attempted aggravated robbeiy but had not yet been sentenced on the date he possessed the firearm. Our Supreme Court looked at K.S.A. 21-3110(4), which states: “ ‘Conviction’ includes a judgment of guilt entered upon a plea of guilty.” 222 Kan. at 212-13. Finding that the defendant was a convicted felon at the time he possessed the firearm, our Supreme Court stated:
“It is clear to us that once the statutory procedure has been complied with and the plea of guilty or nolo contendré has been accepted and a finding of guilty entered thereon, the defendant stands convicted of the offense unless the court thereafter sets aside the finding of guilty and permits the defendant to withdraw his plea of guilty or nolo contendré." 222 Kan. at 214.
See also State v. Fisher, 233 Kan. 29, 34, 661 P.2d 791 (1983) (when trial court accepts plea of nolo contendré and enters finding of guilt, defendant stands convicted).
. On the other hand, Thompson contends that a conviction is not final until sentencing. Thompson points to State v. Jacobson, 18 Kan. App. 2d 788, 860 P.2d 47 (1993), where this court quoted a lengthy passage from the Indiana case Ford v. State, 570 N.E.2d 84, 87 (Ind. App. 1991). Within that passage was the statement: “ ‘The sentence is the final judgment of conviction in a criminal proceeding.’ ” 18 Kan. App. 2d at 792. Ultimately, this court in Jacobson determined that the failure of the trial judge to orally articulate acceptance of the defendant’s plea did not invalidate the plea and conviction. 18 Kan. App. 2d at 793.
In addition, Thompson cites to State v. Dubish, 236 Kan. 848, 696 P.2d 969 (1985). In that case, our Supreme Court noted that the sentence is a final judgment in a criminal case and that the trial court’s action of placing the defendant on probation did not affect the finality of the judgment. 236 Kan. at 851.
Neither of the above-referenced cases change our Supreme Court’s decision in Holmes. Although tire sentence may be the final judgment of conviction in a case, the Holmes court made clear that a defendant stands convicted at the time his guilty plea is accepted by the trial court. Furthermore, K.S.A. 21-3110(4) clearly states: “ 'Conviction’ includes a judgment of guilt entered upon a plea of guilty.”
Thompson contends that such an interpretation negates the purpose of habitual criminal statutes: that a defendant who has failed to learn from his previous punishment is subject to an enhanced sentence. Thompson cites to City of Dodge City v. Wetzel, 267 Kan. 402, 409, 986 P.2d 353 (1999), where our Supreme Court noted the following policy behind recidivist statutes:
“The basic philosophy underlying recidivist statutes might be expressed in this fashion: where die punishment imposed against an offender for violating the law has failed to deter [die offender] from further infractions, a harsher and more severe penalty is justified, the idea being, hopefully, that the greater punishment may serve as an object lesson and cause [the offender] to accomplish . . . reformation, where the lesser penalty had failed in that respect.” ’ ” (Quoting State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 [1975].)
Thompson contends that it is necessary to interpret the recidivist provision of K.S.A. 65-4160 as requiring a charge, conviction, and sentence before the next charge.
In the context of a plea agreement, Thompson’s argument lacks merit. While it is true that the trial court does not impose a particular punishment until sentencing, the defendant is well aware of the consequences of the plea agreement when it is accepted by the trial court. Specifically, under K.S.A. 2003 Supp. 22-3210(a)(2), the trial court must inform the defendant of the consequences of the plea, as well as the maximum penalty which may be imposed upon the acceptance of tire plea. Thus, a defendant whose plea agreement has been accepted is well aware of the parameters of the punishment that will be imposed when he chooses to commit another offense.
Applying the Holmes decision here, we determine that Thompson committed his first offense under K.S.A. 65-4160 during November 1997 and was convicted on March 30, 1998. Thompson committed his second offense during April 1998 and was convicted during July 1998. His third offense occurred during January 1999, and conviction took place during July 2000. Therefore, Thompson’s prior convictions occurred in the proper order that would allow the trial court to sentence him as a level 1 offender under K.S.A. 65-4160(c).
Therefore, we find that when a defendant has pled guilty to an offense and the trial court has accepted his or her plea, the defendant stands convicted and his or her conviction can be used to enhance the severity level of a subsequent offense.
Nevertheless, Thompson asserts that because he has never been punished as a level 2 offender, he was not given the opportunity to rehabilitate his conduct before the harsh provisions of a level 1 offense were imposed. Thompson’s argument implicitly concedes that he has two prior convictions.
As noted previously, Thompson’s two prior convictions were both sentenced as level 4 offenses. From our analysis above, it is clear that Thompson could have been charged and sentenced as a severity level 2 offender for his second possession of methamphetamine offense. The fact that he was actually sentenced as a level 4 offender does not affect his sentence in this case. The plain language of K.S.A. 65-4160 does not require that a defendant be sentenced first to a severity level 4 offense, then' to a severity level 2 offense, and then to a severity level 1 offense. The level of the offense is dependent solely on the number of previous convictions. Thompson does not offer any proof that would overcome the plain language of the statute.
As a result, we find that Thompson was properly sentenced under K.S.A. 65-4160(c) to a level 1 offense based on his two prior convictions for possession of methamphetamine.
Prior Convictions Not Included In Complaint
Next, Thompson argues that he should be resentenced to a severity level 4 offense because the complaint failed to allege his prior convictions that were used to elevate the possession of methamphetamine charge from a severity level 4 offense to a severity level 1 offense under K.S.A. 65-4160. Thompson contends that a complaint must allege the prior convictions so that the defendant has sufficient notice of the charges against him and an opportunity to challenge the allegations.
In rejecting Thompson’s argument, the trial court relied on our Supreme Court’s decisions in State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 (1976), and State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996). In Loudermilk, our Supreme Court noted that there was a distinction between prior convictions that were an element of the offense and prior convictions that were used to establish the class of felony or the penalty to be imposed in a case. Prior convictions that are contained within the statutory definition of the crime rather than in the penally section of the statute constitute elements of the crime. 221 Kan. at 159-61. Our Supreme Court determined that prior convictions under K.S.A. 1975 Supp. 65-4127a, a self-contained habitual criminal statute, do not constitute elements of the charged offense and “are pertinent only to the sentence which shall be rendered in the event of a conviction.” 221 Kan. at 161. Our Supreme Court went on to state: “The [Sjtate is not obliged to prove the prior conviction during the presentation of its evidence before the jury; evidence of the prior conviction should be presented to the court after conviction in the same manner as such evidence is presented when the habitual criminal act, K.S.A. 21-4504, is invoked.” 221 Kan. at 161.
Masterson, 261 Kan. 158, applied the reasoning in Loudermilk to the driving under the influence (DUI) statute, K.S.A. 1995 Supp. 8-1567. Under that statute, prior DUI convictions were not elements of the offense but were used to classify the offense as part of the penalty provisions. In that case, our Supreme Court determined that the complaint charging a defendant with violating K.S.A. 1995 Supp. 8-1567 must specifically allege the severity level of the offense. 261 Kan. 158, Syl. ¶ 1. Our Supreme Court went on to state: “However, proof of a prior conviction is not an element of DUI to be established at trial and need not be brought out until the sentencing phase.” 261 Kan. 158, Syl. ¶ 1; see also State v. Rome, 269 Kan. 47, 52, 5 P.3d 515 (2000) (applying reasoning from Loudermilk to defendant’s argument that complaint was defective), and Wetzel, 267 Kan. at 410 (defendant had right to know severity level of charged crime before trial).
From our Supreme Court’s decisions in Loudermilk and Masterson, we know that the State is required to set forth the severity level of the offense when charging a defendant with a crime under a habitual criminal statute. Evidence of the prior convictions, however, does not need to be brought out until the sentencing phase of the case.
Thompson has brought to our attention our Supreme Court’s recent decision in State v. Seems, 277 Kan. 303, 84 P.3d 606 (2004). There, the State failed to present evidence at the preliminary hearing of the defendant’s two prior DUI convictions that were used to elevate his current DUI charge to a felony offense under K.S.A. 2003 Supp. 8-1567(f). Our Supreme Court agreed with this court’s decision affirming the magistrate’s dismissal of the case. Our Supreme Court noted that when a defendant is charged with felony DUI under 8-1567(f), the defendant is entitled to a preliminary hearing where the State “must present sufficient evidence to establish that a felony has been committed and that there is probable cause to believe that a felony has been committed by the defendant.” 277 Kan. 303, Syl. ¶ 3; see K.S.A. 2003 Supp. 22-2902(3). Under K.S.A. 2003 Supp. 8-1567(f), felony DUI requires that the defendant have two prior DUI convictions. Because the State failed to offer evidence at the prehminary hearing of the defendant’s two prior DUI convictions, it had not shown that a felony had been committed and that probable cause existed to believe a felony had been committed by the defendant. Therefore, the magistrate’s dismissal of the case was proper. 277 Kan. at 306.
The Seems decision does not aid Thompson’s argument. First, the facts of Seems involved a different procedural stage of the case. The defendant in Seems argued that the State’s failure to present evidence of his prior convictions at the preliminary hearing stage did not allow the magistrate to find that a felony DUI had been committed. Here, however, Thompson argues that the State’s failure to specify his prior convictions within the complaint requires the trial court to sentence him as a severity level 4 felony offender instead of a severity level 1 felony offender. Although not the issue in Seems, the amended complaint in that case also failed to specify the dates of the prior convictions of the felony DUI charges under K.S.A. 2003 Supp. 8-1567(f). Nevertheless, our Supreme Court in Seems noted that the defendant had been properly charged with a felony DUI offense under K.S.A. 2003 Supp. 8-1567(f). 277 Kan. at 306. Similarly, the amended complaint charging Thompson with possession of methamphetamine as a severity level 1 offense under K.S.A. 65-4160(a) failed to specify the dates of the prior convictions.
Moreover, the Seems decision is distinguishable because it involved K.S.A. 2003 Supp. 8-1567 where a misdemeanor DUI offense is elevated to a felony offense only after two prior convictions. Here, Thompson’s conduct of possessing methamphetamine constituted a felony under K.S.A. 65-4160 regardless of the number of prior convictions that he had under that statute. Thus, the State would only need to set forth evidence of Thompson’s current offense of possession of methamphetamine, and not evidence of his prior convictions, to establish that a felony had been committed and that probable cause existed to believe that a felony had been committed by Thompson.
We find that our Supreme Court’s decisions in Loudermilk and Masterson are applicable to the particular facts of this case. As a result, the State was required to set forth in the complaint the severity level of the charged offense under K.S.A. 65-4160. The State was not required to bring forth evidence of Thompson’s prior convictions under K.S.A. 65-4160 that were used to enhance his offense from a severity level 4 felony to a severity level 1 felony until the sentencing phase of the case.
Under the facts of this case, Count II of the amended complaint clearly set forth that Thompson was being charged with possession of methamphetamine as a severity level 1 offense under K.S.A. 65- 4160(a). In addition, Thompson entered a plea of guilty to possession of methamphetamine as a severity level 1 felony. Therefore, Thompson was adequately notified of the severity level of the offense with which he was charged and to which he pled guilty.
Moreover, the record indicates that Thompson received notice of his prior convictions at the sentencing stage. Thompson’s prior convictions for methamphetamine possession were referenced in his presentence investigation report. At the sentencing hearing, Thompson’s counsel pointed out that those convictions were not calculated in Thompson’s criminal history score because they were used to determine the severity level of the current offense. Thompson did not raise any objection to those prior convictions. The trial court was proper in its decision to sentence Thompson to a severity level 1 felony under K.S.A. 65-4160.
Ineffective Assistance of Counsel
Finally, Thompson contends that his counsel was ineffective by permitting him to be sentenced as a severity level 1 offender. Thompson raises the same arguments that were discussed in the previous two issues. Because we have found that Thompson’s previous two arguments lack merit and that Thompson was properly sentenced as a severity level 1 offender, it is unnecessary to discuss his ineffective assistance of counsel issue further.
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Malone, J.:
Dan Prendiville appeals the district court’s grant of summary judgment on a negligence claim against his residential contractor. The issue is whether the economic loss doctrine, recognized in Kansas in Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 209, 960 P.2d 255, rev. denied 265 Kan. 885 (1998), applies to a claim against a contractor in residential construction defect cases. We conclude that it does and affirm the grant of summary judgment.
Facts and procedural background
The essential facts of the case are not in dispute. On December 21, 1993, Prendiville entered into a contract with Young Home Construction, Inc. (Young Construction), in which Young Construction agreed to build a house for Prendiville. In an addendum to the contract, the seller’s name was changed from Young Construction to Contemporary Homes, Inc. (Contemporaiy Homes). Dryvit, an artificial stucco product, was selected by Prendiville as the exterior finish for his house. Young was on-site during the construction of the house and supervised subcontractors and suppliers throughout the process.
Prendiville took possession of the house on November 7, 1994. Also on that date, Larry Young, the president of Contemporaiy Homes, and Prendiville signed a “NEW HOME WARRANTY,” which terminated after 1 year. The written agreement contained a claims procedure that must be followed as a condition precedent to any claim. The agreement also contained a provision where Prendiville acknowledged that Contemporaiy Homes, its agents, and representatives, made “no warranties or representations regarding the quality and construction of the home not specifically contained in this warranty.” The agreement also stated that it did not affect the implied warranties of merchantability and fitness for a particular purpose. Furthermore, the agreement stated the law of Kansas applied to the interpretation and application of the warranty.
Prendiville’s basement flooded shortly after he moved into the house. When Prendiville contacted Young, Young arranged for a subcontractor to install a sump pump in the basement pursuant to the warranty.
Prendiville testified that he noticed water infiltration through the Dryvit siding and into the house in May or June 1999. On March 16, 2000, Prendiville filed this action against Contemporary Homes, Young, Young Construction, Dryvit Systems, Inc. (Dryvit Systems), Contour Products, Inc. (Contour), and Caradco Corporation (Caradco). Prendiville filed an amended petition on October 24, 2000. In the amended petition, Prendiville claimed Contemporary Homes, Young, and Young Construction (collectively referred to as “the defendants”) breached the terms of the warranty, were negligent in construction of the house, and violated the Kansas Consumer Protection Act. In the negligence claim, Prendiville specifically stated the defendants were negligent by
“failing to employ that degree of professional skill, diligence, knowledge and attention to detail that [Prendiville] had reason to expect from a reputable home builder charged with the duty to provide building services in a workmanlike manner, and said defendants negligently failed to:
a. Properly select and supervise the workmen on the work site;
b. Properly install or supervise the installation of the Dryvit exterior stucco; and
c. Properly construct a home in accordance with those duties and standards placed upon said defendants by Uniform Building Code practices.”
In the pretrial order, Prendiville claimed damages of $76,154.63. The damages were computed as follows: (1) $27,680.63 for replacement cost of windows; (2) $12,250 for labor to install new windows; (3) $4,500 for interior painting after window installation; (4) $27,724 for a complete skim of the exterior of the property; and (5) $4,000 to repaint and caulk. The defendants filed a motion for summary judgment. After a hearing on the motion, the district court granted the summary judgment on the negligence claim, but denied it on the remaining two counts. The district court ruled that Prendiville’s negligence claim was barred by the economic loss doctrine, since Prendiville’s damages were only to the house itself.
Dryvit Systems and Caradco were voluntarily dismissed from the case with prejudice. Contour was dismissed from the case without prejudice. Additionally, the remaining two counts against the de fendants were dismissed without prejudice. Prendiville filed a timely notice of appeal.
Standard of review
Prendiville claims the district court erred by granting the summary judgment motion on his negligence claim. The standard of review when examining a grant of summary judgment was stated in Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002):
“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 tire same rules and where we find reasonable minds could differ as to the conclusions drawn from tire evidence, summary judgment must be denied. [Citation omitted.]”
The economic loss doctrine
The single issue on appeal is whether the economic loss doctrine applies to a claim against a contractor in residential construction defect cases. The economic loss doctrine states that a buyer of defective goods cannot sue in tort where the injuiy consists only of damage to the goods themselves. East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 866-76, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986). Although originally considered a products liability doctrine, its application has been extended to a wide variety of cases. The doctrine is designed to prevent a party from asserting a tort remedy in circumstances governed by the law of contracts. The economic loss doctrine is “the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby encourages citizens to avoid causing physical harm to odiers.” Barnett, Recovery of Economic Loss in Tort for Construction Defects: A Critical Analysis, 40 S.C. L. Rev. 891, 894 (1989).
Recognition of the economic loss doctrine in Kansas
The issue of whether the economic loss doctrine applies to a claim against a contractor in residential construction defect cases is an issue of first impression in Kansas. A brief review of Kansas case law on the economic loss doctrine is helpful. Prior to the enunciation of the economic loss doctrine, Kansas courts recognized the distinction between warranty liability and tort liability in a claim by a home buyer against a contractor for faulty construction. However, it was considered that tort liability was limited to injury to people and damage to property other than the work performed. In Owings v. Gifford, 237 Kan. 89, 93-94, 697 P.2d 865 (1985), where the issue was whether the contractors insurance provided coverage, the court stated:
“When a contractor builds a home, warranties arise both under his contract with the buyer and by operation of tort law. . . . The risk that the builder may incur liability under warranty is a normal part of doing business.
“Under operation of law, a second type of risk that arises is injury to people and damage to property other than the work performed. Unlike the first type of risk, where liability is limited to the cost of replacement or repair, the duty imposed by law (tort liability) subjects the builder to unlimited liability.” (Emphasis added.)
The principles of the economic loss doctrine were discussed in Elite Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d 625, 827 P.2d 1195 (1992). In Elite Professionals, the plaintiff was a company engaged in the business of interstate transportation of commodities. The plaintiff sued the manufacturer of a truck refrigeration unit after the unit malfunctioned causing spoilage of a cargo of meat. The plaintiff did not sue for the damage to the refrigeration unit, but did sue for the loss of the meat that was spoiled. The court recognized the principle that recovery for an economic loss is not available in a tort action. However, the court ruled that this principle did not preclude recovery because the plaintiff was attempting to recover damage to other property and not damage to the refrigeration unit. 16 Kan. App. 2d at 633.
In Koss Construction, 25 Kan. App. 2d 200, the plaintiff brought suit against the manufacturer of a vibratory roller after the roller caught fire and was damaged. Koss alleged that the fire was caused by defective hydraulic hoses and sought judgment only for damage to the roller itself. The district court granted the manufacturer’s motion for judgment on the pleadings because the plaintiff could not recover for simple economic loss by claiming negligence or strict liability. This court affirmed the district court’s decision and expressly adopted the economic loss doctrine established in East River. 25 Kan. App. 2d at 205-06. The court in Koss Construction went on to hold: “[A] commercial buyer of defective goods cannot sue in negligence or strict liability where the only injury consists of damage to the goods themselves.” 25 Kan. App. 2d at 207.
The economic loss doctrine was explained further in Jordan v. Case Corp., 26 Kan. App. 2d 742, 993 P.2d 650 (1999), rev. denied 269 Kan. 933 (2000). In Jordan, the plaintiff brought suit against the manufacturer and supplier of a combine after the engine to the combine caught fire and destroyed the combine, along with the wheat inside the combine. The plaintiff claimed it should recover based on negligence, strict liability, implied warranty, and res ipsa loquitur. The district court granted summary judgment to the defendant based on the holding in Koss Construction. Addressing only the negligence and strict liability theories, this court affirmed. In making its ruling, this court expressly stated that the economic loss doctrine applies equally to a consumer of defective goods as it does to a commercial buyer of defective goods. 26 Kan. App. 2d at 744.
The economic loss doctrine was recently discussed in Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 29 Kan. App. 2d 735, 31 P.3d 982, rev. denied 272 Kan. 1419 (2001). The plaintiff was a subcontractor that purchased Type S masonry cement powder from a supplier. The plaintiff used this powder to make walls for a commercial building. The walls did not meet the specified strength, and the plaintiff believed it was the result of the cement powder. The plaintiff sued the manufacturer, supplier, and packager of the cement powder for damage to the walls. The district court granted summary judgment in favor of the supplier and a directed verdict in favor of the other parties based upon the economic loss doctrine. On appeal, the plaintiff only sought damages for the other materials to which the cement powder had been applied. The court did not accept plaintiff s contention that it was only pursuing damages to “other property” and affirmed the district court’s decision. 29 Kan. App. 2d at 744-45.
Another recent case that discussed the economic loss doctrine is Full Faith Church of Love West, Inc. v. Hoover Treated Wood, 224 F. Supp. 2d 1285 (D. Kan. 2002). In Full Faith, a building owner brought a negligence claim inter alia against the manufacturer of a fire retardant chemical product that caused the roof structure to decay and lose strength. The building owner claimed damages to the roof caused it to incur costs to
“(1) inspect and test the existing roof system; (2) design and repair the existing roof structure; (3) repair and replace other property damaged as a result of the treated wood deterioration; and (4) relocate students and staff during roof repairs and during periods in which the facilities are unsafe. [Citation omitted.]” 224 F. Supp. 2d at 1290.
The court ruled that the Northwest Arkansas decision precluded the building owner from recovering for any damages other than those alleged in the third category of damages. 224 F. Supp. 2d at 1290. It was unclear what the “other property” was in this case; however, the court had to assume the allegation that “other property” was damaged was true because it was ruling on a motion to dismiss. 224 F. Supp. 2d at 1290.
Application of the economic loss doctrine to residential construction defect cases
As the foregoing cases indicate, the economic loss doctrine has been applied in Kansas to many situations, including commercial construction defect cases. The defendants argue that application of the doctrine to residential construction defect cases is the next logical step.
Prendiville, however, argues that a negligence action is appropriate in the residential construction context. Prendiville argues that a house is not a “product” and that he contracted for the delivery of competent and workmanlike services from the contrac tor. He claims that the negligent services caused tire damage and not a defective product.
The defendants counter that Prendiville ultimately purchased a house and the land on which it was situated. A house, like most other products, is made up of different parts and requires services to be completed. If Prendiville’s argument is accepted, the defendants assert that the economic loss doctrine would be severely limited because a party could always claim that it was purchasing the workmanship that resulted in the product and not the final product itself.
Prendiville relies on Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618, 675 P.2d 361 (1984), Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P.2d 986 (1959), Ware v. Christenberry, 7 Kan. App. 2d 1, 637 P.2d 452 (1981), and Scantlin v. Superior Homes, Inc., 6 Kan. App. 2d 144, 627 P.2d 825 (1981). However, all of these cases hold that a claim for breach of an implied warranty, not an express warranty, may be brought in contract or tort. In this case, Prendiville had an express new home warranty and did not need to rely on implied warranties. Furthermore, all of these cases predate East River, 476 U.S. 858, and Koss Construction, 25 Kan. App. 2d 200, and are of limited precedential value.
Prendiville also points to Kristek v. Catron, 7 Kan. App. 2d 495, 644 P.2d 480, rev. denied 231 Kan. 800 (1982), where a homeowner brought suit against the contractor for negligent construction. In Kristek, the plaintiff was a third party, who lacked privity of contract with the contractor. In this case, however, Prendiville is not a third party to the transaction and does possess privity of contract with Young. Additionally, the economic loss doctrine was not discussed in Kristek.
Other jurisdictions have held that the economic loss doctrine applies to claims against contractors in residential construction defect cases. In Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000), the court ruled that a class of townhouse owners could not recover for damages resulting from water intrusion in a negligence action against subcontractors who framed the buildings. The court recognized that a house is not a “product” under products liability law, but still held that the economic loss doctrine applied. The court held: “We conclude that damages sought, in tort, for economic losses from a defective building are just as offensive to tort law as damages sought for economic losses stemming from a defective product.” 116 Nev. at 261; see also Nastri v. Wood Bros. Homes, Inc., 142 Ariz. 439, 444-45, 690 P.2d 158 (1984) (holding second purchaser s failure to show damage to more than the structure itself prohibited a claim of negligence against die builder); Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 176-78, 441 N.E.2d 324 (1982) (holding second owners of house could not recover in a negligence action against a builder for economic damages); Crowder v. Vandendeale, 564 S.W.2d 879, 884 (Mo. 1978), overruled on other grounds by Sharp Brothers Contracting Co. v. American Hoist & Derrick Co., 703 S.W.2d 901 (Mo. 1986) (holding a builder s liability for structural defects is in contract and that a second theory based on tort should not be allowed); Atherton Condominium Ass’n v. Blume Dev. Co., 115 Wash. 2d 506, 526-27, 799 P.2d 250 (1990) (holding owners’ failure to claim any personal or physical injury to other property prohibited a claim of negligent construction).
Some jurisdictions have not applied the economic loss doctrine in construction defect cases. In Rowe v. Akin & Flanders, 240 Ga. App. 766, 769, 525 S.E.2d 123 (1999), the court rejected the use of the economic loss doctrine in a negligent construction suit by a landowner against a contractor for negligent construction of a parking area. The court specifically stated:
“ ‘The “economic loss” versus “physical damage” dichotomy that is used in products liability cases can find no application in this [negligent construction] case. . . . “(I)ndependently of any duty under the [paving] contract, the law imposed upon [both the general contractor, defendant A&F, and its subcontractor, defendant FCI,] the duty not to negligently and wrongfully injure and damage the property of [the owner, Rowe].” [Citation omitted.]’ ” 240 Ga. App. at 769 (bracketed changes in original).
In Delaware, the resolution of this issue was made by the legislature. In Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992), the court applied the economic loss doctrine in an action by a homeowner against the seller of building kits. The court con- eluded that the economic loss doctrine precluded the plaintiff s suit. 608 A.2d at 1201. In response to the decision in Danforth, the Delaware General Assembly passed the Home Owners Protection Act. See Del. Code Ann. tit. 6, § 3651-52 (1999). This act states:
“No action based in tort to recover damages resulting from negligence in the construction or manner of construction of an improvement to residential real property and/or in the designing, planning, supervision and/or observation of any such construction or manner of construction shall be barred solely on the ground that tire only losses suffered are economic in nature.” Del. Code Ann. tit. 6, § 3652.
Both parties argue that public policy supports their positions. This court has stated some of the general policies that support the application of the economic loss doctrine as follows: “(a) It encourages the party best situated to assess the risk of economic loss to insure against it; (b) it maintains a distinction between tort and contract law; and (c) it protects a party’s freedom to allocate economic risks by contract.” Jordan, 26 Kan. App. 2d at 744.
The defendants claim the policy factors listed in Jordan favor application of the economic loss doctrine in this case. By applying the economic loss doctrine to residential construction defect cases, the defendants argue that this court would be protecting the freedom of parties to allocate economic risks by contract. In Ford Motor Cred. Co. v. Suburban Ford, 237 Kan. 195, 203-04, 699 P.2d 992, cert. denied 474 U.S. 995 (1985), the court explained in depth tire problem with confusing contract law and tort law. Essentially, tire court stated that when parties enter into a contract they set out their duties and obligations, while in tort law the duties and obligations of the parties are set forth by the legislature. The effect of confusing tort law with contract law is to nullify the limited liability for which the parties bargained. This social intervention into contract law by tort law should only be tolerated in the most extreme cases. 237 Kan. at 203.
If Prendiville is allowed to proceed with his negligence claim, this would essentially nullify the express warranty agreed upon by the parties. The warranty specifically allowed Prendiville to make claims regarding defects or deficiencies in the house for 1 year following the issuance of the warranty. The effect of allowing Prendiville to proceed on the negligence claim is to extend the defendants’ potential for liability for a greater period of time.
Prendiville claims the nature of a purchase of a house from a contractor supports his argument. He claims that due to the expense of a house, and the inexperience of a buyer in negotiating contracts, a buyer should not be precluded from maintaining a negligence action against a contractor. This argument was best addressed in Casa Clara v. Charley Toppino and Sons, 620 So. 2d 1244, 1247 (Fla. 1993), when the court stated:
“Buying a house is the largest investment many consumers ever make, [citation omitted] and homeowners are an appealing, sympathetic class. If a house causes economic disappointment by not meeting a purchaser’s expectations, the resulting failure to receive the benefit of the bargain is a core concern of contract, not tort, law. [Citation omitted.] There are protections for homebuyers, however, such as statutory warranties, the general warranty of habitability, and the duty of sellers to disclose defects, as well as the ability of purchasers to inspect houses for defects. Coupled with homebuyers’ power to bargain over price, these protections must be viewed as sufficient when compared with the mischief that could be caused by allowing tort recovery for purely economic losses.”
After analyzing the Kansas case law, the law of other jurisdictions, and the policy arguments, we find no compelling reason why the economic loss doctrine should not be applied to a claim against a contractor in residential construction defect cases. Whether or not a house is deemed to be a “product,” we find that the principles underlying the economic loss doctrine apply to a residential construction transaction where the rights and liabilities of the parties are governed by contract and an express warranty. This does not bar all of Prendiville’s claims against the defendants, but only those claims based on tort. If an exception to the economic loss doctrine is to be made for homeowners, it should be up to the state legislature, as we have seen in Delaware. We note that in 2003, the legislature enacted the Kansas Residential Construction Defect Act, K.S.A. 2003 Supp. 60-4701 et seq. See L. 2003, ch. 74. This Act primarily addresses notice requirements that must be met by a homeowner prior to filing a lawsuit against a contractor for con struction defects. However, the Act is silent concerning the legal theories upon which such a lawsuit may be based.
Prendiville has not claimed damage to “other property”
The economic loss doctrine does not preclude recovery in tort for damage caused by defective goods to “other property.” Northwest Arkansas, 29 Kan. App. 2d at 741. Prendiville argues his claim should not be barred by the economic loss doctrine because he is not seeking recovery for damage to the Dryvit exterior, but is seeking recovery for damages to other parts of the house. Prendiville’s argument is without merit.
Kansas has adopted the integrated system approach, which states that “ ‘[d]amage by a defective component of an integrated system to either the system as a whole or other system components is not damage to “other property” which precludes the application of the economic loss doctrine.’ [Citation omitted.]” Northwest Arkansas, 29 Kan. App. 2d at 744. Furthermore, in Northwest Arkansas, the court favorably cited cases that used the integrated system approach to buildings. 29 Kan. App. 2d at 743-44. The court in Northwest Arkansas, specifically held that the wall that was faulty due to the defective cement powder was an integrated system, so that the plaintiff could not recover for damages in tort to other components that made up the wall. 29 Kan. App. 2d at 744.
Northwest Arkansas is similar to the present case. Prendiville’s house is an integrated system. Prendiville has not claimed any damages other than to the structure of the house. Therefore, Prendiville’s damages do not constitute “other property.”
Conclusion
We hold the economic loss doctrine recognized in Kansas in Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 209, 960 P.2d 255, rev. denied 265 Kan. 885 (1998), and subsequent cases applies to a claim against a contractor in residential construction defect cases where the rights and liabilities of the parties are governed by contract and an express warranty. Accordingly, Prendiville is barred from bringing a tort claim against his contractor for purely economic loss consisting of damage to the house itself. The district court did not err in granting summary judgment against Prendiville on his negligence claim.
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Greene, J.:
John P. Doub, III, appeals his conviction of second-degree murder pursuant to K.S.A. 21-3402(b), claiming insufficiency of evidence. We affirm.
Factual and Procedural Overview
Following a party for his softball team at a club where he admitted drinldng six beers, Doub admitted that his pickup struck two parked vehicles and that he left the scene because he was concerned that he had been drinking. Doub ultimately admitted that approximately 2 hours after striking the parked cars, he drove his pickup into the rear of a Cadillac in which 9-year-old Jamika Smith was a passenger. According to the State’s accident investigator, the collision occurred as Doub’s pickup, “going tremendously faster,” drove “up on top of [the Cadillac],” initially driving it down into the pavement, and ultimately propelling it off the street and into a tree. Doub offered no aid to the victims, left the scene of the accident, and initially denied any involvement in the collision, suggesting that his pickup had been stolen. Some 15 hours after the collision, Smith died as a result of blunt traumatic injuries caused by the collision.
Approximately 6 months after these events, Doub admitted to a former girlfriend that he had a confrontation with his second ex-wife the evening of the collision, had been drinking alcohol and smoking crack, and had subsequently caused the collision. The girlfriend approached the authorities with Doub’s statements, which suggested that Doub left the softball party, caused the collisions with the parked vehicles, left that scene, subsequently consumed the additional alcohol and crack cocaine, and then caused the collision resulting in Smith’s death, all within a 2- to 3-hour period.
Doub was charged with: (1) second-degree depraved heart murder, with lesser included offenses of involuntary manslaughter and vehicular homicide; (2) involuntary manslaughter while driving under the influence of alcohol and/or drugs, with the lesser included offense of driving under the influence of alcohol and/or drugs; and (3) leaving the scene of an injury accident. The juiy found Doub guilty of all three primary offenses, but the court later dismissed fhe second offense of involuntary manslaughter. Doub appeals, challenging the sufficiency of evidence to support his conviction of second-degree depraved heart murder.
Standard of Review
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000).
Elements of Second-degree “Depraved Heart” Murder
K.S.A. 2003 Supp. 21-3402 defines second-degree murder as follows:
“Murder in the second-degree is the lolling of a human being committed:
(a) Intentionally; or
(b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”
When fhe offense is committed pursuant to subsection (b), our courts have employed the common-law nomenclature of “depraved heart” second-degree murder. See, e.g., State v. Hebert, 277 Kan. 61, 104, 82 P.3d 470 (2004).
In State v. Robinson, 261 Kan. 865, 876-78, 934 P.2d 38 (1997), our Supreme Court discussed the requirements for depraved heart murder:
“Both depraved heart murder and reckless involuntary manslaughter require recklessness—that tire killing be done under circumstances showing a realization of the imminence of danger and a conscious disregard of that danger. Depraved heart murder requires the additional element that the reckless killing occur under circumstances manifesting extreme indifference to the value of human life.
“We hold that depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. Recklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter. Conviction of depraved heart second-degree murder requires proof that the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. This language describes a land of culpability that differs in degree but not in land from the ordinary recklessness required for manslaughter.” (Emphasis added.) 261 Kan. at 876-78.
In Robinson, the court specifically rejected the argument that the offense required general indifference to the value of all human life and concluded that the elements could be met if the defendant manifested an extreme indifference to tire value of one specific human life. 261 Kan. at 880. In State v. Davidson, 267 Kan 667, 684, 987 P.2d 335 (1999), the court reiterated the Robinson criteria and held that the offense was committed by a defendant who created an unreasonable risk and then consciously disregarded it in a manner and to the extent that it reasonably could be inferred that she was extremely indifferent to the value of human life.
We find no reported decision in Kansas construing and applying K.S.A. 21-3402(b) in the context of a vehicular collision and therefore approach this appeal as a case of first impression.
Overview of Depraved Heart Murder by Vehicle in Other Jurisdictions
The state of mind or mens rea required for second-degree murder has been somewhat problematic throughout the history of Anglo-American jurisprudence. As early as 1762, Sir Michael Foster termed the requisite mental state for the common-law offense as a “heart regardless of social duty and fatally bent upon mischief.” Foster, Crown Law 257 (1762). Since the advent of the automobile in the nineteenth century, many jurisdictions have struggled with the application of second-degree murder statutes in this context, and die debate seems to have been focused largely on whether malice, whether express or implied, should be required. See, e.g., State v. Chalmers, 100 Ariz. 70, 411 P.2d 448 (1966). We need not enter this debate, however, since our Supreme Court has determined that the 1993 amendment to the second-degree murder statute eliminated malice as an element of second-degree murder in Kansas. State v. McCown, 264 Kan. 655, Syl. ¶ 1, 957 P.2d 401 (1998). Instead, our focus is the statutory language adopted in Kansas that apparently had its genesis in the Model Penal Code first proposed in 1962, which required killing “recklessly under circumstances manifesting extreme indifference to the value of human life.” A.L.I., Model Penal Code § 210.2 (Proposed Official Draft 1962).
Since 1975 the appellate courts of many states have acknowledged that the required state of mind for depraved heart murder can be attributed to the driver of an automobile. See, e.g., Davis v. State, 593 So. 2d 145, 148 (Ala. Crim. App. 1991) (holding that under Alabama depraved heart statute, driver could be convicted if the driver was “conscious of his acts, the impending dangers surrounding him, and the probable results of the acts, and, with reckless indifference to the probable consequences of his acts, brought about the collision and the death of the deceased”). Our review of such cases reveals that most jurisdictions with statutory provisions patterned after the Model Penal Code have acknowledged that the offense may be committed by automobile. Cases to the contrary generally construe and apply statutes that retain some requirement of malice. See, e.g. State v. Ellison, 561 So. 2d 576 (Fla. 1990) (holding that under Florida law, defendant’s conviction of second-degree murder for speeding and eluding officers during a high speed pursuit could not stand without evidence of “ ‘ill-will, hatred, spite or an evil intent’ ”); see Annot., Homicide By Automobile As Murder, 21 A.L.R.3d 116.
One commentator surveyed 20 cases between 1975 and 1986 and found the following factors as persuasive of the requisite state of mind:
“1. Intoxication. The driver was using alcohol, illegal drugs, or both.
“2. Speeding. Usually excessive rates are recorded.
“3. Near or nonfatal collisions shortly before the fatal accident. Courts believe that collisions should serve as a warning to defendants that their conduct is highly likely to cause an accident. Failure to modify their driving is viewed as a conscious indifference to human life.
“4. Driving on the wrong side of the road. Many cases involve head-on collisions. Included here is illegally passing or veering into oncoming traffic.
“5. Failure to aid the victim. The driver left the scene of the accident and/or never attempted to seek aid for the victim.
“6. Failure to heed traffic signs. Usually more than once prior to the fatal accident, the driver ran a red light and/or stop sign.
“7. Failure to heed warnings about reckless driving. In Pears v. State, for example, the court cited as proof of Pears’ extreme indifference to life the fact that he continued driving after he had been warned by police officers not to drive because he was intoxicated. In other cases a police pursuit of the driver for earlier traffic violations was an implicit warning that the defendant’s driving was dangerous.
“8. Prior record of driving offenses (drunk or reckless driving or both). The relevance of a defendant’s prior record for reckless or intoxicated driving is, as United States v. Fleming pointed out, not to show a propensity to drive while drunk but ‘to establish that defendant had grounds to be aware of the risk his drinking and driving while intoxicated presented to others.’ ” Luria, Death on the Highway: Reckless Driving as Murder, 67 Or. L. Rev. 799, 823 (1988).
Application of these factors seems appropriate to determine whether evidence in a particular case meets the requisite state of mind, but we are mindful that no precise universal definition or exclusive criteria is appropriate. The comments to the Model Penal Code declare that “recklessness” must be of such an extreme nature that it demonstrates an indifference to human life similar to that held by one who commits murder purposely or knowingly, but precise definition is impossible.
“The significance of purpose of knowledge as a standard of culpability is that, cases of provocation or other mitigation apart, purposeful or knowing homicide demonstrates precisely such indifference to die value of human life. Whedier recldessness is so extreme that it demonstrates similar indifference is not a question, it is submitted, that can be further clarified. It must be left directly to die trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter.” A.L.I., Model Penal Code & Commentaries, Part II § 210.2, Comment. 4, pp. 21-22 (1980).
Did the Evidence Against Doub Establish the Requisite State of Mind for Second-degree Murder?
Many of the factors cited as relevant to the requisite state of mind in similar prosecutions beyond Kansas are present here. Viewing the evidence in die light most favorable to the prosecution, our examination of the record shows:
(i) The State presented evidence of intoxication, both the consumption of beer at the club, but the later consumption of alcohol and use of crack cocaine;
(ii) The State presented evidence of nonfatal collisions shortly before the fatal collision, specifically the collision with two parked vehicles;
(iii) The State presented evidence of speeding at the time of the fatal collision, specifically that Doub’s vehicle was moving “tremendously faster” than the vehicle struck;
(iv) The State presented evidence of driving on the wrong side of the road when one of the parked vehicles was hit;
(v) The State presented evidence of leaving the scene of all incidents, both with parked vehicles and the vehicle containing Smith; moreover, Doub did not attempt to render aid to Smith but rather chose to flee to avoid criminal liability;
(vi) The State presented evidence of residents near the parked vehicles shouting at Doub to stop, but Doub failed to heed these warnings.
Doub argues that his conduct was not even sufficiently egregious to constitute vehicular homicide, citing State v. Krovvidi, 274 Kan. 1059, 58 P.3d 687 (2002), which reversed a conviction for vehicular homicide. The following language defines the crime of vehicular homicide, which is quite different from the language defining depraved heart murder:
“Vehicular homicide is the unintentional killing of a human being committed by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.” K.S.A. 21-3405.
The facts in Krovvidi, however, differed greatly from those before us. In Krovvidi, the State pointed exclusively-to inattentive driving and the fact that the driver drove through a red light as factors showing conduct that rose to the level of culpability required under the vehicular homicide statute. 274 Kan. at 1070-71. Here, the facts are far more egregious. Moreover, depraved heart murder requires an entirely different level of culpability from that required for vehicular homicide. The following language from Krovvidi is instructive:
“In this case, there are no aggravating factors present. Krovvidi had not been drinking and was not under the influence of any drug, both factors which may provide the additional evidence to establish a material deviation. None of the passengers in his vehicle warned him as he was about to enter the intersection; none were concerned that his driving appeared reckless or that he was accelerating or speeding as he approached the intersection. Krovvidi was not speeding and proceeded through the intersection thinking his light was green. Absent additional aggravating factors, we conclude that his conduct does not amount to the material deviation required under the provisions [of] K.S.A 21-3405.” 274 Kan. at 1075.
In contrast to Krovvidi, Doub had been drinking, was undoubtedly under the influence of crack cocaine, ignored commands to stop, was speeding at least by comparison if not illegally, and otherwise exhibited additional factors of recklessness. Doub’s reliance on Krovvidi is simply misplaced.
Considering the presence of many of those factors significant to other courts, we are convinced that a rational factfinder could have found Doub guilty of depraved heart second-degree murder beyond a reasonable doubt. The evidence against Doub is particularly damning considering that (a) he admits that his driving was preceded by drinking; (b) he admits that he struck two parked cars and ignored commands to stop because he was concerned that he had been drinking; (c) he then consumed additional alcohol and used crack cocaine; (d) he then resumed driving and caused a fatal collision, due in part to excessive speed; (e) he failed to render aid to the victims; and (f) he fled the scene in order to avoid criminal liability. We conclude that these facts clearly demonstrate an extreme indifference to human life.
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Greene, J.:
Marilyn Labra appeals the district court’s entry of summary judgment against her in this sexual harassment action pursuant to the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq., arguing that genuine issues of material fact precluded summary judgment. The defendants cross-appeal, requesting that we hold that the damage limitations of K.S.A. 44-1005(k) applicable to administrative proceedings are also applicable to independent civil actions. We reverse the district court’s summary judgment and remand for trial, but we decline to address the premature cross-appeal.
Factual and Procedural Background
Marilyn Labra is a cousin of Ronald Eakes, owner and president of Mid-Plains Construction, Inc. and Plains Redi-Mix, Ltd. Labra started working out of her home for Eakes in 1984 and moved to the companies’ office as a full-time secretary in 1990. The alleged harassment began sometime in 1997, when Eakes returned from a trip with his employees and discussed with Labra what the men had told him about their sex lives. Following this incident, Eakes began discussing his sex life with Labra and making multiple inquiries about hers. Labra also claims that over the next 2-3 years, Eakes engaged her in numerous discussions of a sexually provocative nature, including telling her that she turned him on, telling her that he fantasized about her in the shower, and telling her several times that he had masturbated in the office restroom immediately after discussing sexual topics with her. Specifics of these claims are detailed below. During this time frame, Eakes allegedly propositioned Labra, but Labra declined the offer.
Labra contends that she was never the aggressor in such discussions and conduct but merely responded to Eakes’ behavior because she feared for her job and thought she might help Eakes get counseling for his problems. She contends that on some occasions she asked Eakes to stop the “stuff’ he was doing. After requesting that the behavior be abated on one occasion in late 1998, Eakes complied for a time but then renewed his misconduct sometime during 1999.
Sometime in early 2000, Eakes suggested that Labra make an appointment for breast cancer screening in Garden City, and she later learned that he planned to accompany her on the trip. Eakes offered her $3,400 in cash, a negligee, and a diamond necklace if she would agree to have sex with him on the trip. According to Labra, when Eakes learned that she had arranged to take her son on the trip, he was disturbed and he offered her an additional $1,000 to leave the son at home. Sometime after the trip failed to materialize, Eakes asked Labra to find someone with whom he could have an affair. She suggested another local woman, which prompted Eakes to inquire whether she was trying to “get [him] to think about someone else” so he would “leave [her] alone.”
In May 2000, Eakes told Labra that he had made the decision to lay off her husband (who also worked for the companies) or put him to work on a construction crew, and Labra contends that this was motivated by Eakes’ desire to gain better opportunities to be with Labra. Shortly thereafter, Labra secretly tape-recorded a conversation with E alces wherein he admitted propositioning her, and then both she and her husband, Bruno Labra, resigned their positions with the companies.
After exhausting their administrative remedies, Labra and her husband filed suit on July 6, 2001, against Eakes, Mid-Plains, and Plains Redi-Mix under the KAAD, alleging sexual harassment and hostile work environment, constructive termination, quid pro quo harassment, and intentional infliction of emotional distress.
After discovery had closed, the defendants filed a motion for summary judgment, which the district court granted following a January 16, 2003, hearing. Concerning the hostile work environment claim, the district court found that Labra had failed to adequately demonstrate that Eakes’ conduct was unwelcome and that the conduct was sufficiently severe or pervasive to be actionable. The court also issued an advisory opinion that should the matter be remanded for trial the $2,000 limitation on incidental damages for pain, suffering, and humiliation within K.S.A. 44-1005(k) was inapplicable to independent civil actions filed under the KAAD.
Marilyn Labra filed a timely appeal, but Bruno Labra perfected no appeal. Moreover, Labra apparently abandoned her claims of constructive termination and quid pro quo harassment. The defendants timely cross-appealed the district court’s advisory ruling concerning the inapplicability of the statutory damage limitations.
Standard of Review
Our standard for reviewing the district court’s entry of summary judgment is well known:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of tire 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 dre dispute must be material to die conclusive issues in the case. On appeal, we apply die same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citations omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
“ ‘An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact.’ [Citations omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Although federal cases construing Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000), are not controlling, they are persuasive authority in the interpretation and application of the KAAD. Woods v. Midwest Conveyor Co., 231 Kan. 763, 767, 648 P.2d 234 (1982); see Kansas Human Rights Comm’n v. Dale, 25 Kan. App. 2d 689, 692, 968 P.2d 692 (1998). We further note that summary judgment is seldom appropriate in employment discrimination cases. See, e.g., O’Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999).
The District Court’s Ruling and Rationale
The district court concluded that defendants were entitled to judgment as a matter of law on two separate grounds: (i) Labra failed to show that the behavior was unwelcome and (ii) Labra failed to show that Eakes’ behavior was sufficiently severe or pervasive. The court’s memorandum order included the following conclusions:
“After reviewing Mrs. Labra’s deposition and the briefs submitted, it is evidence that Plaintiffs have not shown that Mr. Eakes’ conduct was unwelcome. . . . [T]here was no mention made that she was subjected to anything unwelcome until after learning Mr. Eakes was changing her husband’s employment. . . .
“The Court finds Mrs. Labra has failed to present evidence constituting sufficiently severe or pervasive behavior. Mr. Eakes’ conduct was not physically threatening or humiliating. It did not unreasonably interfere with Mrs. Labra’s job performance. The conduct occurred over a period of two or three years, and most involved the utterances which were of a sexual nature but during which discussions ensued in which Mrs. Labra willingly participated. This environment does not meet the baseline criteria to allow for a sexual harassment/hostile work environment claim to continue.”
The court specifically relied upon several federal cases as establishing the baseline requirements for a claim of this nature, including Shepherd v. Comptroller Public Accounts of Texas, 168 F.3d 871 (5th Cir. 1999), Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999), Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998), and Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir. 1993).
Did the District Court Err in Concluding Labra Did Not Sufficiently Establish that Eakes’ Conduct was UnwelcomeP
The defendants suggested it was uncontroverted that Labra never told Eakes that his conduct was unwelcome. Labra’s testimony on this subject, as cited by the parties in connection with their statements of uncontroverted fact and controversions thereof, included the following:
“Q. Did you ever say to him, ‘[Qjuit asking me those questions’?
“A. I don’t remember saying, ‘[Q]uit asking these questions.’ I remember telling him to stop the stuff he was doing.
“Q. When do you recall asking him that?
“A. When he asked me to go to the motels and stuff with him. I told him no. Then—and he said he would quit asking me that and quit saying stuff, and I believed that he would and he didn’t.
“Q. I understand that when he said, according to you, T want to have sex,’ you responded no. My question really goes to, when he would ask you questions about sex or your sex life and tell you about his sex life, did you ever say to him, ‘Quit saying those land of things to me’?
“A. I don’t know if I ever actually said, ‘[Qjuit saying those’—I told him I wasn’t having sex with him, and he kept going on about his stuff. I don’t recall if I said that.
“Q. You indicated that Mr. Eakes’ approaches, my word ‘approaches,’ slowed down in 1998 after the initial start. Did you say that earlier?
“A. Yes.
“Q. Do you know why they did?
“A. Because I told him no, and he said he would quit bothering me about it. And I told him I didn’t want to lose my job because I had a family to support, and right there in Plains I didn’t want to have to drive to work. And he kept saying he would stop approaching me about it.
“A. When Ron told me what he was going to do [meet in Garden City for sex] and I told him no, that I would not have sex with him, he waited—•
“Q. Is this during the conversation before you [went] to Garden City?
“A. Yes. He waited a while and he came back out and wanted to know if another thousand dollars cash would interest me.” (Emphasis added.)
In determining whether the behavior in question is unwelcome for purposes of a sexual harassment claim, “[t]he question is whether under the totality of the circumstances plaintiff indicated by her conduct that the alleged harassment was unwelcome. [Citations omitted.]” Rahn v. Junction City Foundry, Inc., 161 F. Supp. 2d 1219, 1233 (D. Kan. 2001). Moreover, “the conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” 161 F. Supp. 2d at 1233. The question whether particular conduct was indeed unwelcome generally presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact. Meritor Savings Bank v. Vinson, 477 U.S. 57, 68, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Moreover, engaging in or responding to sexual banter does not necessarily waive a plaintiff s legal protections against unwelcome harassment. See, e.g., Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 963 (8th Cir. 1993); Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987).
The district court acknowledged that Labra refused to have sex with Eakes, but the court accepted the defendants’ characterization that Labra never “complained about behavior other than the two sexual advances.” We disagree. Viewing the testimony most favorably to Labra, her statement that she told him “to stop the stuff he was doing,” coupled with the express refusals to have sex, establish a genuine issue of material fact on this issue. Moreover, Eakes’ abatement of the behavior for some period of time after she told him to cease and his statements in response to Labra’s suggestion of another woman with whom to have an affair suggest that Eakes understood that his behavior was not welcome, thus further supporting our conclusion that a fact question on this issue precluded summary judgment.
In summary, we believe that Labra sufficiently controverted the defendants’ proposed fact that “she never told [Eakes] his conduct was inappropriate or asked him to stop.” From our analysis of the Labra testimony quoted or referenced above, we conclude that a jury could determine that Eakes’ conduct was unwelcome under the totality of the circumstances. Defendants were not entitled to judgment as a matter of law on this issue.
Did the District Court Err in Concluding that Labras Claims were Insufficient to Establish Severe and Persistent Misconduct to Support Her Sexual Harassment Claim?
The testimony cited in support and in opposition to the purported uncontroverted facts established the following details of La-bra’s claims of purported harassment:
• Sometime in 1997 Eakes took some of his male employees on a trip to Las Vegas. When he returned, he repeated to Labra what the men told him about their sex lives.
• Eakes asked Labra questions about her sex life, and Labra would answer them “because she wanted him to realize that he needed to get some help for his wife or get counseling for them . . . .”
• Eakes asked Labra about adult movies.
• Eakes asked Labra about sexual positions and inquired whether Labra “ever gets on top.”
• Labra claims that Eakes would leave the door open while using the bathroom at the office.
• Labra claims that in July 1998, Eakes asked her to have sex with him.
• Between January 1998 and December 1998, Eakes made complimentary remarks to Labra about her perfume, how she looked, how small her waist was, and how she turned him on. The frequency of such comments was characterized by Labra as “a lot”—no less than five times each.
• During 1999 and 2000, Labra alleges that Eakes told her he masturbated while thinking about her and that he fantasized about her while he showered.
• In January 2000, Eakes initiated discussions with Labra about the frequency of her sexual relations with her husband.
• In 2000, Eakes urged Labra to set up an appointment in Garden City for breast cancer screening; after the appointment was made, Labra claims that Eakes told her he wanted to go along and that he offered her cash and gifts if she would agree to have sex with him on the trip.
• Labra claims that after she scheduled her son out of school to accompany her on the trip, Eakes offered her an additional $1,000 to leave the son at home.
• In May 2000, Labra claims that Eakes told her he wanted to find someone to have an affair with while his wife was out of town.
• Labra claims that Eakes’ conduct interfered with her job performance. She explained, “I was nervous thinking that I was going to be there alone with him, and I was not concentrating as good as I should have. Didn’t know if I was making mistakes because [of] a lack of concentration.”
In order to be actionable, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. Whether an environment is sufficiently hostile or abusive must be determined by looking at all tire circumstances, including frequency of discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. Faragher v. Boca Raton, 524 U.S. 775, 787-88, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998); see Garvey Elevators, Inc. v. Kansas Human Rights Comm’n, 265 Kan. 484, 493, 961 P.2d 696 (1998). Simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not suffice. Faragher, 524 U.S. at 788. The severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is “ ‘ “quintessentially a question of fact.” ’ [Citations omitted.]” O’Shea, 185 F.3d at 1098. When allegations are made which, if believed by a jury, may constitute a severe and hostile work envi ronment, summary judgment is inappropriate. Jones v. Rent-a-Center, Inc., 240 F. Supp. 2d 1167, 1181-82 (D. Kan. 2002).
The United States Supreme Court recently commented that the standards for hostile environment are intended to filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing. Faragher, 524 U.S. at 788. We concede that synthesizing federal case law in this area is problematic, but we respectfully disagree with the district court that Labra’s claims are insufficient, even if we rely solely on the cases cited in the court’s memorandum order.
Cases cited and relied upon by the district court address the insufficiency of isolated offensive incidents. In Shepherd, 168 F.3d at 872-75, tire conduct deemed insufficient included incidents of unwanted touching on the arm, making offensive remarks, and attempting to look down an employee’s dress. In Mendoza, 195 F.3d at 1247-52, the conduct deemed insufficient included one instance in which a supervisor said to an employee “I’m getting fired up,” one occasion in which a supervisor rubbed his hip against an employee’s hip, two instances in which a supervisor made a sniffing sound while looking at an employee’s groin area, one instance of sniffing without looking at her groin, and a supervisor’s constant following and staring at an employee in a very obvious fashion. In Adusumilli, 164 F.3d at 361-62, the conduct deemed insufficient included sexual innuendo about bananas, staring at breasts, touching an arm, poking at buttocks, and making unnecessary eye contact. In Weiss, 990 F.2d at 337, the conduct deemed insufficient was that the employee’s supervisor asked her for dates, called her a “dumb blonde,” put his hand on her shoulder several times, placed “I love you” signs in her work area, and attempted to kiss her in a bar. These cases stand for the principle that isolated incidents of conduct that may be merely offensive or boorish are not actionable. See Shepherd, 168 F.3d at 874; Barden v. Cargill Inc., 176 F. Supp. 2d 1103, 1112 (D. Kan. 2001).
The commonality of these cases is that the conduct deemed insufficient was isolated in the sense that the employee was not the target of a persistent pattern of sexually provocative conduct that was intended to satisfy the supervisor s prurient desires in the workplace and beyond. Eakes’ persistent sexually provocative discussions with Labra, coupled with his alleged exhibitionism, masturbation, and outright attempts to achieve sexual encounters with Labra at virtually any cost, move the facts of this case significantly beyond those cases relied upon by the district court. Faced with facts like those before us, other courts have had little difficulty in finding that the baseline requirements for a claim of hostile environment were satisfied. See, e.g., Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993); Smith v. Norwest Financial Acceptance, Inc., 129 F.3d 1408, 1412-15 (10th Cir. 1997); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 781-86 (10th Cir. 1995); Rahn, 161 F. Supp. 2d at 1228-35; Cadena v. Pacesetter Corp., 18 F. Supp. 2d 1220, 1226-28 (D. Kan. 1998); Haug v. City of Topeka, Equipment Management Div., 13 F. Supp. 2d 1153, 1162 (D. Kan. 1998).
We conclude that Labra’s allegations, if believed by a juiy, are sufficiently severe and pervasive to satisfy the baseline requirements for her claim of sexual harassment and hostile work environment, and that the district court erred in granting summary judgment against her as a matter of law.
We decline to address the cross-appeal requiring construction and application of the KAAD as restricting damage recoveries in actions of this nature. Until liability has been established, issues of damages are premature, and we decline to issue an advisory opinion. See Commerce Bank v. Liebau-Wood & Assocs., L.P., 28 Kan. App. 2d 674, 682, 20 P.3d 88 (2001).
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Malone, J.:
Leslie A. Servantez appeals the district court’s grant of summary judgment in favor of Craig J. Shelton based on the exclusive remedy provision of the Workers Compensation Act, K.S.A. 44-501 et seq., barring one employee from suing a fellow employee for a job injury. Servantez claims the district court erred because Shelton was off duty and in violation of certain employment policies at the time of Servantez’ injury.
The parties agree on the following facts:
“1. The accident at issue occurred on the evening of January 29, 2001, in the adjoining parking lot owned, operated and controlled by Walmart Supercenter, Topeka, Kansas.
“2. At the time of the accident, Leslie A. Servantez (herein Plaintiff) was employed as a customer service manager at Walmart Supercenter, Topeka, Kansas. A customer service manager’s duties include supervising the front end cashiers, handling the money, approving checks and generally making sure that the front end of the store runs efficiently.
“3. At the time of the accident, Defendant was employed as a lot guard at Walmart Supercenter, Topeka, Kansas. The lot guards were supervised by the Loss Prevention Department at Walmart. A lot guard’s duties include assisting customers in the parking lot, looking for suspicious activity, watching for car bréale ins and generally maintaining the safety of the parking lot.
“4. Defendant has assisted loss prevention personnel in the apprehension of suspected shoplifters at least once a week while working at Walmart.
“5. When Defendant did assist in the apprehension of shoplifters, he would hear the call over his two-way radio that a shoplifter was about to leave the store, he would go to the door and would stop them, then walk back in and wait for the loss prevention specialist to arrive. Defendant would then stay and be ready to assist if the shoplifter caused any further problems.
“6. Immediately prior to the accident on the evening of January 29, 2001, Defendant clocked out of his regular shift at Walmart at 6:30 p.m. He notified one of the customer service managers that he was going off duty. After Defendant clocked out, he then proceeded to his car in the south parking lot of Walmart.
“7. On the evening of January 29,2001, immediately prior to the accident, Plaintiff was called to the electronics section of Walmart for a check approval. Once she arrived there she discovered that the individual was attempting to forge another person’s signature to purchase over $1,000.00 worth of Walmart merchandise.
“8. At that time Plaintiff called the Walmart Loss Prevention Department for assistance with the check forger. Jordan Mathews, a Walmart loss prevention specialist, was sent to assist Plaintiff. When the individual realized that the Walmart employees had discovered the check was forged she left the scene.
“9. At that time, Mr. Mathews requested the Plaintiff to join him in pursuing the suspect. As they began the pursuit, Mr. Mathews called management over the two-way radio explaining that he and Plaintiff were heading out of the north door pursuing a suspect and to call the Topeka Police Department.
“10. The call was a general call to all Walmart employees who carry two-way radios. Defendant still had his two-way radio in his possession after he had clocked out.
“11. In the meantime, Defendant had gotten into his car in the Walmart parking lot and began driving his car north in the parking lot driving lane directly in front of the Walmart building. While in his car in front of the Walmart building, Defendant heard the call over his two-way radio regarding tire pursuit of the suspect leaving the building.
“12. At all times between clocking out and the occurrence of the accident, Defendant was on Walmart’s premises.
“13. The suspect exited the Walmart store on the north side, followed by Mr. Mathews and Plaintiff. Mr. Mathews and Plaintiff caught up to and apprehended the suspect in the northeast portion of the Walmart parking lot as she reached her car.
“14. Defendant had seen Mr. Mathews pursuing tire suspect through the northeast portion of the Walmart parking lot. He then drove his car to where Mr. Mathews, Plaintiff and the suspect were located to assist Mr. Mathews with the suspect. “15. Plaintiff was standing to the east of Mr. Mathews and the suspect. Plaintiff claims that as Defendant drove up to the location Defendant hit her from behind with his car. She claims that some portion of Defendant’s car, which was being driven from the south or southeast, hit her right arm while she was facing north. “16. Plaintiff filed a workers compensation claim for this injury.
“17. Although the claim is still pending, Walmart does not dispute that Plaintiff was injured while at work and it has already paid workers compensation benefits, including medical bills.”
Additionally, under Wal-Mart’s policies and procedures, a lot guard is not authorized to perform any work or engage in any activities on behalf of Wal-Mart when off duty. Also, a lot guard is prohibited from using a personal vehicle in any activity on behalf of Wal-Mart, and all employees are prohibited from leaving Wal Mart with a Wal-Mart two-way radio. Finally, Wal-Mart never reprimanded Shelton for anything relating to this incident, and he worked for Wal-Mart for over a year after the incident.
Servantez filed a personal injuiy lawsuit against Shelton in district court. Shelton filed a motion for summary judgment, alleging he was Servantez’ fellow employee and that under the exclusive remedy provision of the Workers Compensation Act, her claim for negligence was barred. The district court granted summary judgment in favor of Shelton, finding Shelton was acting in good faith under the scope of his employment at the time of the accident.
Servantez timely filed this appeal.
“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 parly 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.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
Servantez claims that material disputed facts should have precluded summary judgment in this case. As the district court determined, however, the facts presented in the motion were essentially uncontroverted, and any disputed facts that existed were considered in the light most favorable to Servantez. We conclude that the facts are sufficiently uncontroverted to permit summary judgment and that only the application of the facts to the law is in dispute.
K.S.A. 44-501(g) states: “It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of tire workers compensation act to both.” K.S.A. 44-501(b) provides in pertinent part that “no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act.”
In Fugit, Administratrix v. United Beechcraft, Inc, 222 Kan. 312, 314, 564 P.2d 521 (1977), the court noted that under the exclusive remedy provision,
“the well established rule is that if a workman can recover benefits from an employer under the workmen’s compensation act for an injury, he cannot maintain a common-law action against that employer for damages based on a theory of negligence. [Citations omitted.] This exclusive remedy provision also bars a common-law action against another employee of such an employer. [Citation omitted.]”
However, in Wells v. Anderson, 8 Kan. App. 2d 431, 433, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983), the court concluded “that mere co-employee status is not sufficient for immunity. There must be some connection between the defendant’s acts and his employment for immunity to attach.” See Bay v. Funk, 19 Kan. App. 2d 440, 442, 871 P.2d 268 (1994). The Wells court stated that the test to determine whether immunity applies is whether the coemployee “would have been entitled to receive compensation had he been injured in the same accident.” 8 Kan. App. 2d at 434.
Thus, the test to determine whether Shelton was immune from the lawsuit is whether Shelton himself would have been entitled to receive compensation had he been injured in the same accident. Servantez argues that Shelton would not have been entitled to receive compensation since he was off duty and in violation of certain employment policies at the time of the accident. Thus, according to Servantez, the injury did not arise “out of and in the course of Shelton’s employment.”
Servantez relies heavily on Wells to support her position. In Wells, the plaintiff and defendant were coemployees of a service station. The defendant drove his own vehicle into the service bay to change the antifreeze while the plaintiff was working on a customer’s truck. The defendant alternated between changing the antifreeze in his own vehicle and pumping gas for the station. The defendant testified that when he was working on his own car, he could not always see what was going on in front of the station. When the defendant finished working on his car and started it, the car was in gear and hit the plaintiff, pinning him between the defendant’s car and the customer’s truck. The employer’s official policy was to forbid employees from working on their own vehicles on company time. However, the service station manager testified it was the custom and practice of the station’s employees to work on their own vehicles as long as it did not interfere with company business. The plaintiff was awarded workers compensation benefits for his injuries.
The Wells court determined summary judgment was improper because the record did not conclusively establish “whether, if defendant had been injured in the same accident, his injuries would be deemed to have arisen out of and in the course of his employment.” 8 Kan. App. 2d at 434. The Wells court explained that “if an employee is performing work which has been forbidden, as distinguished from doing his work in a forbidden manner, he is not acting in the course of his employment. Hoover v. Ehrsam Company, 218 Kan. 662, 544 P.2d 1366 (1976).” 8 Kan. App. 2d at 434.
In Hoover v. Ehrsam Company, 218 Kan. 662, 544 P.2d 1366 (1976), the employee had performed manual labor for many years for the company, but had sustained various physical injuries. Therefore, the company changed his job to a supervisor and forbade him from doing any manual labor. The employee was injured while using a jack bar to help another employee unjam a sheet metal press.
The Hoover court recognized the rule that any activity undertaken by the employee in good faith to advance the employer’s interests is generally within the course of employment. 218 Kan. at 666. However, the court found that, in attempting to release the jammed press, the employee “was doing a prohibited act and therefore his activity at the time of his injury was outside the scope of his employment.” 218 Kan. at 667.
We believe this case is distinguishable from Wells and Hoover. As Shelton asserts, when he stopped to help Matthews, he was merely performing one of his job duties. The uncontroverted evidence established that when a call about a shoplifter went out over the radio, Shelton would wait for the shoplifter to come out and then help to apprehend the shoplifter. He had assisted loss pre vention personnel in apprehending suspected shoplifters at least once a week. Thus, the accident was causally connected to Shelton’s specific job duties.
Further, as addressed in Hoover, even if Shelton’s actions had not been a part of his duties, his act in seeing if Matthews needed assistance was a good faith effort to advance Wal-Mart’s interests in stopping shoplifters and malting sure its loss prevention specialists were not harmed. Shelton’s actions were entirely for WalMart’s benefit. In Wells, the employee’s actions in working on his personal car benefitted only the employee.
Although Shelton had clocked out from his workday, it is significant that he had not left the Wal-Mart premises before the incident occurred. Under the “going and coming” rule, an employee is not acting in the course of employment “while the employee is on the way to assume the duties of employment or after leaving such duties.” K.S.A. 44-508(f). However, this rule does not apply when the employee is still on the employer’s premises at the time of the injury. K.S.A. 44-508(f); see Brobst v. Brighton Place North, 24 Kan. App. 2d 766, 773, 955 P.2d 1315 (1997). As the district court found:
“If [Shelton] had clocked out, gotten in his car and left the premises of his employer by crossing the street in front of Walmart, heard the call over the two-way radio and then turned around to help, there may exist a genuine issue of material fact as to whether [Shelton] was acting under the scope of employment. No such issue exists here.”
Shelton’s violation of certain employment policies was incidental to the fact that his overall conduct was within the course of his duties. Shelton was not performing a forbidden act at the time of Servantez’ injury. At best, he was doing his work in a prohibited manner. The fact that Shelton was never reprimanded by Wal-Mart supports this conclusion.
Here, the record conclusively establishes that Shelton would have been entitled to receive workers compensation had he been injured in this accident. Shelton’s actions were specifically related to his job duties and were performed in good faith while on WalMart premises. As the district court noted:
“A thorough review of the facts indicates that [Shelton] not only acted in the capacity that he believed were the duties of his employment, but also acted in good faith for the benefit of Walmart. In fact, had the suspected check forger escaped the premises and it became known that [Shelton] was in the general escape area and was aware of the pursuit one has to wonder what the consequences of a lot guard lying idle in that situation would be.”
Thus, under the Wells test, Servantez and Shelton were fellow employees at the time of Servantez’ injury.-.
The uncontroverted evidence supports the conclusion that Servantez’ lawsuit against Shelton was barred by the exclusive remedy provision of the Workers Compensation Act. Thus, the district court did not err in granting summary judgment in favor of Shelton.
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Brazil, J.:
This is an action on a contract and to foreclose two mechanics’ liens. The trial court granted the plaintiff, The Huber Company, a judgment on the contract and foreclosure of the two liens. Defendants Derrick J. DeSouza and Cherilyn DeSouza have appealed only the foreclosures.
The defendants first contend that the two mechanics’ liens are invalid because the itemization of the lien claims was insufficient. We agree.
K.S.A. 60-1102(a) provides in relevant part:
“Any person claiming a lien on real property, under the provisions of K.S.A. 60-1101, shall file . . . within four (4) months after the date material, equipment or supplies, used or consumed was last furnished or last labor performed under the contract a verified statement showing:
“(4) a reasonably itemized statement and the amount of the claim, but if the amount of the claim is evidenced by a written instrument ... a copy thereof may be attached to the claim in lieu of the itemized statement.” (Emphasis supplied.)
“Since the mechanic’s lien is purely a statutory creation, only strict compliance with the provisions in the statute will give rise to an enforceable lien. [Citation omitted.]” Scott v. Strickland, 10 Kan. App. 2d 14, 20, 691 P.2d 45 (1984).
K.S.A. 60-1102 was last amended in 1963 and the language “reasonably itemized statement” replaced the requirement of itemization “as nearly as practicable.” L. 1963, ch. 303, 60-1102; see Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 571, 620 P.2d 1167 (1980). Two recent Court of Appeals cases have considered this new language. In Kopp’s, the court rejected defendant’s claim that the lienholder’s “failure to separate the labor cost from the materials cost is unreasonable itemization and renders the lien invalid.” 5 Kan. App. 2d at 571. In Scott v. Strickland, the court restated the Kopp’s analysis of the statute: “K.S.A. 60-1102(a)(4) requires that a statement be given which is neither excessive nor insufficient in detail but which is fair and sufficient to inform the landowner of the claim and to enable him to ascertain whether the material was furnished and the charges fair. [Citation omitted.]” 10 Kan App. 2d at 23.
Scott involved a lien statement which incorporated attached photocopies of invoices that were largely illegible. The court noted that, despite the poor quality of the copies, it was possible to determine that most of the materials were a type that would have been used in the work and the total charge on each invoice could be read. The court held that this was enough to allow the landowner to determine whether the material was furnished and the amount claimed reasonable. 10 Kan. App. 2d at 23-24.
In the instant case, the lien statements as filed are before the court and no factual issues were raised about them. The September 30 agreement was attached to each hen statement as the only supporting document. Therefore, applying the statute and precedent to these facts, it seems clear that the lien statements filed by Huber were not “fair and sufficient” to inform the DeSouzas of Huber s claims. For the business property, the statement and contract at best indicate that the parties agreed that some work would be done and that the price would be figured on a cost-plus basis. There is no indication what labor was actually done nor what materials were actually provided, except the bare assertion that money was due for “materials and labor to repair and renovate.” There is no indication how Huber arrived at the amount due on the property— no statement of total charges due or credit for payments made. The contract added no true itemization to the description of the work or amount contained in the statement itself. For the residence, the statement and contract do not even indicate that the parties agreed to any work or price.
The trial court apparently upheld the liens by determining that the dealings between the parties and the itemized billings Huber sent the DeSouzas remedied any deficiencies in the filings. The question then arises whether the filings may be supplemented in this way.
The requirement, noted in Scott, of strict compliance with the statute indicates that the answer is no. K.S.A. 60-1102 requires the lien statement to contain a “reasonably itemized statement.” In a recent case involving a challenge to a verification that was signed by someone other than the claimant, the Supreme Court said: “The lien statement’s validity must be ascertained from its four comers.” Trane Co. v. Bakkalapulo, 234 Kan. 348, 352, 672 P.2d 586 (1983). Two older cases held that statutory liens are valid only if the lien statement is complete by itself. Reeves v. Kansas Coop. Wheat Mk’t Ass'n, 136 Kan. 306, 309-10, 15 P.2d 446 (1932) (thresher’s lien); Blattner v. Wadleigh, 48 Kan. 290, 295, 29 Pac. 165 (1892). In Blattner, the mechanic’s lien statement was filed by the district court clerk under the name of tire property owner but did not contain the owner’s name. The court held the lien invalid, rejecting arguments that other records in the clerk’s office gave the name. These cases indicate that the lien statement may not be supplemented by evidence outside its contents.
The plaintiff argues that if the court finds the hens were not reasonably itemized then they are valid by reason of the written contract attached to each.
The plaintiff cannot prevail on this argument. K.S.A. 60-1102(a)(4) permits substitution of the written instrument for the itemized statement only when it evidences the amount of the claim. Since K.S.A. 60-1101 requires the lien to be based on a contract with the owner of the property, applying the exception in this case would make it available whenever a written contract with some dollar figure in it existed. The more sensible approach is to limit the exception to cases where the writing contains exactly the dollar amount claimed by the lienholder.
The defendants also contend that the liens are invalid because the amounts of the claims do not relate to labor and materials furnished to the respective properties and that the liens were not timely filed. In view of our finding that the liens were not “reasonably itemized,” we need not address these issues.
During oral argument, the plaintiff conceded the mechanics’ hens might be invalid but urged this court to affirm the trial court’s judgment on the contract. From our review of the record, that portion of the trial court’s judgment has not been challenged on appeal. Prior to trial, the defendants filed a motion to dismiss the liens, and on at least three occasions they asked for a jury trial on the issue relating to what amount, if any, was owed to the plaintiff. The requests for a jury were denied prior to trial and the case proceeded to trial to the court. The defendants have not appealed from the order denying a jury and have not briefed that issue. Where a party fails to brief an issue, that issue is waived or abandoned. Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 254-55, 679 P.2d 206 (1984).
The trial court’s judgment for monetary damages is affirmed. The court’s judgment granting foreclosure of the two liens is reversed. | [
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Marquardt.:
Jennifer Lynn Pemberton appeals a trial court order requiring her to serve her probation with community corrections rather than court services. We affirm.
In April 2001, MBNA approved an application for credit for an individual named Jennifer Barker, and a Gateway computer was shipped to Lenexa. The individual who received the computer signed for it with the name of Jennifer Barker. However, Jennifer Barker, a resident of Missouri, never purchased a computer.
The manager of the Lenexa apartment complex where the computer was delivered identified Pemberton from a photograph as the individual who had used the name of Jennifer Barker. Pemberton was charged with one count of forgeiy.
Pemberton pled guilty to the forgeiy charge in exchange for dismissal of a bad check case. The trial court accepted Pemberton’s plea after determining there was a sufficient basis to support Pemberton’s guilt.
Pemberton had no criminal histoiy, and her sentence fell in a presumptive probation box on the sentencing guidelines grid. Pemberton requested that she be given probation with court services. Pemberton was sentenced to 18 months’ probation, with an underlying prison term of 9 months. The trial court stated: “You’re to be supervised by Adult Court Services for standard supervision and follow all the rules and regulations of that program.” At that point, the trial court became aware that Pemberton had not cooperated with the presentencing risk needs assessment. Due to Pemberton’s lack of cooperation, the trial court placed her with community corrections for intensive supervision. Pemberton timely appeals the placement.
Pemberton contends that the trial court’s order of court services supervision was a final order and her placement with community corrections was illegal.
An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Cullen, 275 Kan. 56, 60, 60 P.3d 933 (2003). The court may correct an illegal sentence at any time. See K.S.A. 22-3504(1).
“ ‘Probation’ means a procedure under which a defendant, found guilty of a crime upon verdict or plea, is released by the court after imposition of a sentence, without imprisonment except as provided in felony cases, subject to conditions imposed by the court and subject to the supervision of the probation service of the court or community corrections.” K.S.A. 2003 Supp. 21-4602(c).
Probation is an action of the trial court where a defendant, after being found guilty of a crime, is sentenced to a term of incarceration and is then released to serve a period of supervision without serving the period of incarceration. Probation is not the sentence and does not affect the sentence. State v. Dubish, 236 Kan. 848, 851, 696 P.2d 969 (1985).
Pemberton’s sentence was a 9-month term of imprisonment. Any subsequent adjustment to the terms of her probation did not affect her sentence. Pemberton’s argument alleging an illegal sentence is without merit.
Pemberton contends that the trial court’s decision to score her as high risk and subsequently place her with community corrections for her probation constituted an impermissible burden on her for exercising her right against self-incrimination. Pemberton maintains that her Fifth Amendment privilege against self-incrimination extends through the preparation of a presentence investigation.
Resolution of this matter requires us to utilize a plenary standard of review. See Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
In order to invoke the Fifth Amendment privilege against self-incrimination, putative testimony must not only be compelled by the government, but it must also be incriminating. See State v. Durrant, 244 Kan. 522, 528, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989). A matter will incriminate a person if it constitutes, or forms an essential part of, or, taken in connection with other matters disclosed, is a basis for a reasonable inference of such a violation of the laws of this state as to subject the person to liability or punishment therefor. State v. Johnson-Howell, 255 Kan. 928, 939-40, 881 P.2d 1288 (1994).
Under K.S.A. 2003 Supp. 75-5291(a)(2)(E), an individual maybe assigned to a community correctional service program if the convicted individual is determined to be high risk or needs, or both, by the use of a statewide, mandatory, standardized risk assessment questionnaire.
The risk assessment questionnaire that is utilized does not ask about the underlying facts of the crime of which tire defendant has been convicted. Instead, the questions focus on academic and employment history, financial management, marital and family, relationships, and emotional stability. It seeks to determine the defendant’s alcohol and drug usage, if any, plus the histoiy of mental and physical health problems, and sexual behavior.
A risk assessment questionnaire that does not inquire about the underlying facts of the crime of conviction or the circumstances surrounding a guilty plea, does not in any way incriminate the convicted individual. Therefore, the Fifth Amendment privilege against self-incrimination does not apply. The trial court did not err in Pemberton’s probation assignment.
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