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Pierron, J.:
Johnny McCurry, Jr., argues his sentence is illegal because it violates the “double rule” under K.S.A. 1997 Supp. 21-4720(b)(4). We agree and reverse and remand for resentencing.
In three separate cases consolidated for trial, a jury convicted McCurry of three charges of aggravated robbery and one charge of kidnapping stemming from a series of robberies of Subway sandwich shops in May 1998. The court sentenced McCurry, the so-called “meatball bandit,” to a controlling term of 653 months’ incarceration. On appeal, this court reversed the kidnapping conviction and remanded the case for resentencing based on the incorrect use of McCurry’s criminal history score. See State v. McCurry, case No. 84,856, an unpublished opinion filed November 16, 2001.
On remand, the district court sentenced McCurry to 64 months’ incarceration for each of the three aggravated robbery convictions, using criminal history level G and crime severity level 3, for a controlling term of 192 months’ incarceration. McCurry filed a pro se motion to correct an illegal sentence and argued that since all three cases were consolidated for trial, his maximum sentence could not exceed 128 months—twice his base sentence—under 21-4720(b)(4). The district court denied McCurry’s motion.
The issue on appeal is apparently simple—when separate cases are consolidated for trial and sentenced on the same date, does the “double rule” in 21-4720(b)(4) prevent the trial court from sentencing a defendant to greater than twice the base sentence? We believe it does.
The interpretation of the Kansas Sentencing Guidelines Act is a question of law, and, thus, our review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. The general rule is that a criminal statute must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The strict construction rule, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
K.S.A. 2003 Supp. 21-4720(b)(4), which has been unchanged since McCurry’s conviction, provides in part:
“The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. This limit shall apply only to the total sentence, and it shall not be necessary to reduce the duration of any of the nonbase sentences imposed to be served consecutively to the base sentence.”
Several cases have interpreted 21-4720(b)(4). Our Supreme Court has discussed the breadth of the “double rule” in State v. Roderick, 259 Kan. 107, 911 P.2d 159 (1996), where it examined whether 21-4720(b)(4) applied to separate cases pled to on the same date. In finding 21-4720(b)(4) did not apply, the court reasoned that the legislature’s elimination of all references of “conviction event” in 1994 limited the application of the double rule only to multiple convictions arising from multiple counts in the same charging document. The Roderick court held that the double rule “applies only to cases involving multiple convictions arising from multiple counts within an information, complaint or indictment, not multiple convictions arising from separate cases pled to on the same date.” 259 Kan. at 114. See also State v. Bolin, 266 Kan. 18, 19, 968 P.2d 1104 (1998) (Where several cases were pled and sentenced on the same day, the court stated: “A multiple conviction is a case involving multiple crimes arising under a single charging document. The definition applies for all provisions of K.S.A. 21-4720[b].”).
The State argues the Roderick rule should apply whether cases were tried or pled to on the same date. As a result, McCuny should be excluded from tire rule because his multiple convictions did not arise from a single complaint. The State contends McCurry’s case does not fit the statutory definition of multiple convictions because his cases were separate cases consolidated for trial, not multiple counts in thé same charging document. However, the State’s argument does not give sufficient consideration to the fact that all three cases at issue could be and were consolidated for trial.
In State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), the court considered a situation where the defendant pled guilty to nine counts in three complaints which had been consolidated for trial. One of the appellate issues was whether the trial court erred in not considering the criminal history in each case as affecting the criminal history in the other cases during sentencing, i.e., the Roderick rule. Although the Taylor court did not address the issue because the State’s reserved question did not include the issue, the court noted that effective July 1,1995, the legislature amended the “prior convictions” definition in K.S.A. 1994 Supp. 21-4710(a) to preclude the use of other counts joined for trial in the current offense in determining criminal history.
The double rule was not at issue in Taylor, but the case demonstrates the legislature’s intent to apply a different rule for prior convictions when cases are actually consolidated for trial as opposed to pleading in several independent cases on the same date. See K.S.A. 21-4710(a).
The current case presents the next step in this line of cases of whether consolidation of cases invokes the double rule and theoretically treats that situation as though the cases had been brought together in the first place.
McCurry argues it would be fundamentally unfair to allow the State the benefit of presenting additional prejudicial evidence in the consolidated case, which otherwise would be subject to the prohibitions of K.S.A. 60-455, while the defense receives nothing. He suggests not applying the double rule would deter defendants from agreeing to consolidation. The State counters that the purpose of the compulsory joinder rule is to prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged, and tíren in effect retrying defendant for the same offense in a trial where it is charged. See State v. Todd, 262 Kan. 916, 919, 941 P.2d 1374 (1997); See also State v. Arculeo, 29 Kan. App. 2d 962, 970, 36 P.3d 305 (2001)(effect of former prosecution; the prosecution must be careful that no significant evidence of the subsequent case is presented in the prosecution of the first case). The State argues the joinder of McCurry’s cases saved the potential of a much harsher sentence from three separate trials where his criminal history score could have been category A or B by the third prosecution and a presumptive sentence of 206 months’ incarceration for aggravated robbery with a criminal history category of A.
The consolidation for trial of McCurry’s three aggravated robbery cases is the central issue to this case. In Taylor, 262 Kan. at 479, the court stated: “When separate complaints are consolidated for trial, there is a single trial and the jury is to determine each charge on the evidence submitted on each count of the separate complaints.” In State v. Boone, 220 Kan. 771, Syl. ¶ 1, 556 P.2d 880 (1976), the court stated: “When two or more complaints, in-formations or indictments against a single defendant are tried together under K.S.A. 22-3203, the procedure should be the same as if the prosecution were under a single complaint, information or indictment.” (Emphasis added.)
The trial court consolidated all three cases based on K.S.A. 22-3203, which provides that the court can consolidate two or more complaints against a single defendant “if the crimes could have been joined in a single complaint, information or indictment.” McCurry cites State v. Aspinwall, 173 Kan. 699, 710, 252 P.2d 841 (1953), and the common definition of “consolidate” in arguing that the legal effect of the consolidation was the merger into a single complaint or information. The effect of consolidation does not technically merge all the cases into one single complaint or infor mation, but the practical effect of the consolidation is exactly the same. To rule otherwise could lead to anomalous results. Counts that could, and possibly should, be charged together, could be charged individually and then consolidated just to avoid the legislatively mandated double rule.
The State also argues McCurry cannot present these consolidation issues because they were not raised in the original direct appeal. The State contends this violates the “mandate rule” in that this appeal exceeds the issues which the mandate of the decision covers. McCurry’s original sentence violated 21-4720(b)(4), and this should have been raised in the first appeal. However, we reversed and remanded his original sentence because the trial court improperly determined the criminal history, and the kidnapping count was reversed. Upon remand, McCurry was completely re-sentenced with a new criminal history ranking and the absence of the kidnapping conviction. He should not be prevented from raising issues surrounding 21-4720(b)(4) where he was resentenced on all crimes. The matter under appeal is a new issue, but concerning a new sentence.
In multiple conviction cases where consecutive sentences are imposed, 21-4720 requires the trial court to establish a “base sentence for the primary crime. The primary crime is the crime with the highest crime severity level ranking.” See State v. Vontress, 266 Kan. 248, 260, 970 P.2d 42 (1998). Even in a consolidated case situation, the trial court can still determine the primary crime from all the cases together and use that crime for purposes of determining a violation of the double rule. The double rule in 21-4720(b)(4) applies to cases consolidated for trial.
The sentence is vacated and the case is remanded for resentencing consistent with this decision. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of a claim filed in the probate court by Robert M. Rath against the estate of Bertha Rath Meyers, deceased, for an accounting of the property of the Carrie R. Bain-bridge estate. The claim was disallowed by both the probate and district courts. Pending this appeal, Robert died and his widow, Ida Ellen Rath, executrix of his estate, was'substituted in his stead as appellant.
Briefly stated, the record discloses the following:
Carrie R. Bainbridge, a resident of Ford County, died testate in 1923. The principal beneficiaries under her will were her three children, Robert M. Rath, Roy Bainbridge and Bertha Rath Meyers. Bertha was executrix of Carrie’s will, and the estate was closed in 1926. The will provided for a five-year trust as to certain property, and this trust was subsequently terminated and an accounting filed in the probate court.
Shortly thereafter the three principal beneficiaries under the will, Robert, Roy and Rertha, entered into an oral agreement under which Rertha undertook the continued duty of looking after the real estate and personal property devised and bequeathed to them by Carrie. Under this agreement Bertha was to retain control and possession of the property and was to manage it, collect the rents and profits, and in all matters was to have general and complete control of it, and was to make distribution of the proceeds in equal shares to Robert, Roy and herself. At the time of this agreement Robert was indebted to both Roy and Bertha, and over the years he continued to borrow money from Bertha in varying amounts. Some time prior to 1946 or 1947 Robert conveyed his interest in the property involved to Bertha as security for his indebtedness to her and Roy. Bertha collected rents and profits and proceeds from sales and made partial distributions from time to time to Robert, Roy and herself. Roy was paid the amount due him from Robert, and prior to Bertha’s death in August, 1954, she made final settlement with Roy for his interest in the Carrie R. Bainbridge estate.
A deed to the last remaining land in which Robert had an interest was delivered to him prior to Bertha’s death. When she died she had in her possession Robert’s note for $6,930.30, with no payments endorsed thereon.
The gist of Robert’s claim, after setting out the chronological background of the matter, a portion of which has just been related, was that during all of the period in question Bertha had collected large sums of money as rentals and from sales of property; that she made various distributions and paid out large sums for taxes and improvements, but commingled the funds and property of the estate with her own private funds, and that she did not at any time render an accounting for the funds received and disbursed. The prayer of his petition sought to require Bertha’s surviving husband, as executor of her estate, to render a full and complete accounting, and that upon such final accounting Robert’s claim be allowed in the sum of $20,000, or as much as the court finds is due him.
No mention need be made of the contents of the answer other than to state that it denied various allegations of Robert’s petition and alleged that any accounting allowed by the court would disclose a credit balance in favor of Bertha’s estate.
Robert did not testify and his evidence consisted of the testimony of his brother Roy. The evidence in behalf of Bertha’s estate consisted of the testimony of her surviving husband. A number of exhibits were introduced.
In denying Robert’s claim the trial court made the following findings:
“The court further finds that the expressed trust under oral agreement as alleged by the claimant is void under 67-401 G. S. 1949.
“The court further finds that the evidence in this cause is insufficient to give rise to a trust by implication of law since neither actual nor constructive fraud on the part of the decedent is shown and since although the evidénce indicates that there were financial dealings between claimant and die decedent, the actual nature of said financial dealings is left to conjecture.”
The specifications of error are that the court erred in concluding the trust agreement alleged in claimant’s petition was void under G. S. 1949, 67-401; in concluding the evidence was insufficient to give rise to a trust by implication of law and that the financial-transactions involved were left to conjecture; that the judgment is contrary to the undisputed evidence, and that the court erred in overruling claimant’s motion for a new trial and in rendering judgment against him.
G. S. 1949, 67-401, provides:
“No trust concerning lands except such as may arise by implication of law shall be created, unless in writing signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.”
In his brief Robert frankly concedes that
“. . . if the allegations of the petition and the evidence in support thereof are insufficient to give rise to a trust by implication of law, then the claim of Robert M. Rath should be denied.”
In view of the record it is unnecessary to go into a discussion of the principles relating to the creation of trusts by implication of law, and neither is it considered necessary to burden this opinion with a detailed discussion of the evidence. It is sufficient to say there is no evidence that any real estate belonging to claimant was in Bertha’s possession at the time of her death. There is nothing to indicate that her estate was augmented by any property, real or personal, belonging to claimant, and neither is there any evidence to indicate bad faith or fraud on the part of Bertha, or any betrayal of any confidence arising out of the relationship of the parties. The record has been read and given careful consideration, and we are in complete accord with' the holding of the trial court that the matters in issue are left to “conjecture.” The burden was on claimant to prove his claim and he failed utterly to establish any sum due him. Further discussion of the facts would serve no useful purpose. Under ‘the record before us the trial court properly disposed of this case and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This appeal requires construction of two wills, a determinatidn of the devisees and legatees under the terms of such instruments, and a review of rulings made by the district court.
The facts necessary to a proper understanding of the appeal and a determination of the issues therein involved are not in dispute and will be related as briefly as the state of the record permits.
On October 25, 1950, Sydney E. Walton and Helen M. Walton, husband and wife, executed identical wills, wherein each left all property, both real and personal, to the survivor with a residuary clause which, so far as here pertinent, reads:
“Third [£>] All the rest, residue and remainder I devise and bequeath to nieces and nephews of myself and my wife, Helen M. Walton, who are the natural sons and daughters of Marjorie Miller, Alex Walton and N. C. Miller, share and share alike.”
At the time of the making of such wills Sydney had two brothers and two sisters, namely, Alex Walton; Max Walton; Christine Tennyson and Marjorie Miller. Helen had three brothers, namely, Warren Miller; Frank Miller and N. C. Miller. All were of middle age. No provision was made in the wills for the brothers and sisters and it is to be noted the residuary clause, above quoted, bequeathed and devised all the rest, residue and remainder of the estate of the respective testators to the natural children of only two brothers and one sister. Of these Alex Walton .had two natural children (Madelon and Rruce); N. C. Miller had three (Terry, Juleen and Joandel); and Marjorie Miller had two (Maxine and Joan).
Ry subsequently executed identical codicils certain real estate was devised to Joyce Gill, the niece and adopted child of the makers of the wills. In addition those codicils provided that Joyce was to share equally in the residue of the testators’ estates with the other nieces and nephews, described in the residuary clauses of the wills.
Sydney and Helen died simultaneously in an airplane accident which occurred on January 31, 1956. On that date they were residents of Lane County, Kansas. Thereafter, and on March 15, 1956, the probate court of that county admitted their respective wills to probate in one proceeding and pursuant to provisions of such instruments appointed H. W. Hall as executor.
Kim Ivan Miller, the natural son of N. C. Miller, one of the brothers named in the residuary clauses of the wills in question, was bom on October 27, 1956, two hundred seventy days after the' date on which the testators met accidental death.
On February 15, 1957, the executor filed a petition in probate court for final settlement. Pertinent portions of that pleading read:
“Petitioner further shows that under the terms of Paragraph 3 of each will, that the residuary estate is devised to the nieces and nephew of the decedents who are the natural sons and daughters of Marjorie Miller, Alex Walton and N. C. Miller, share and share alike, all as more fully set out in said will and that the court should construe the terms of said will to determine who are or were the natural sons and daughters of Marjorie Miller, Alex Walton and N. C. Miller, so that the proceeds and assets of said estate can be distributed and an orderly closing of the estate be effected.”
“Wherefore, petitioner prays . . .; that the court determine the heirs, devisees and legatees entitled to the estate and assign the same according to the will of the decedents and that the court construe the terms of Paragraph 3 of said wills as above prayed for;”
Thereafter, and on March 9, 1957, Kim, by his next friend and natural guardian N. C. Miller, filed his written defenses in such petition wherein he set up his claim as one of the class named in the residuary clauses of the wills and asked that he be decreed to be a devisee and legatee of the decedents under the terms of such wills and that he have set aside and assigned to him his proper share of the residue of the deceased testators’ estates.
Thereupon the executor and other devisees and legatees entitled to share in the estates filed written defenses to Kim’s pleading.
On April 13, 1957, the issues raised by the pleadings just mentioned proceeded to trial in the probate court of Lane County where, after the introduction of evidence and arguments of counsel, a judgment and decree was rendered, which held in substance that Kim was not a devisee or legatee of the decedents or entitled to any interest in their estates under the terms and provisions of their wills.
Kim perfected an appeal from the foregoing judgment to the district court of Lane County. Thereafter a trial on the issues raised by the pleadings in probate court at which evidence consisting of an exemplified copy of Kim’s birth certificate and all matters of record in probate court was adduced judgment was rendered decreeing Kim to be a member of the class of nephews and nieces described in the residuary clauses of the wills and assigning him his proportionate share of the residue of the decedents’ estates. In addition such court held that the estates could not have been safely closed unless the status of Kim under the terms of the wills had been first established; that the services of his attorneys had been to the benefit of the estates; that it would be inequitable to require such infant to bear all of the costs of the same; and that an attorney fee, which we pause here to note — if otherwise proper — was entirely reasonable considering the size of the estates and the services rendered, should be taxed as a part of the costs of the action.
Upon rendition of the foregoing judgment the executor and some of the devisees and legatees entitled to share in the estates, namely, the natural children of Alex Walton and Marjorie Miller, perfected the instant appeal where, under proper specifications of error, they raise four questions as grounds for reversal of the judgment. These questions will be stated and disposed of in the form and order in which they are presented and argued in the briefs.
1. Since appellee’s claim was not filed in the probate court within nine months from the date of the first publication of the notice of the appointment of the executor, is it therefore barred by the nonclaim statute (G. S. 1949, 59-2239) of the probate code?
The fundamental weakness of appellants’ position with respect to this question is that it assumes Kim’s assertion of rights as a legatee and devisee under the terms of the wills is to be regarded as a claim against the estates. The same question has been raised and all arguments advanced by appellants with respect thereto decided by former decisions which require that it be' answered in the negative.
See In re Estate of Welch, 167 Kan. 97, 104, 204 P. 2d 714, which holds:
“A marriage contract, assuming it cuts off all rights of an heir, the decedent’s widow, to inheritance, to a widow’s allowance and to homestead rights, and assuming it grants the entire estate to another heir, the decedent’s daughter, takes nothing out of the estate which would otherwise be distributed to the other heir, the widow. It only determines which one of the heirs shall receive the assets of the estate and does not constitute a claim or demand against decedent’s estate which must be asserted by the daughter within the period of the nonclaim statute.” (Syl. ¶ 1.)
And what is said and held at page 104 of the opinion and page 105 of the concurring opinion in that case with respect to what constitutes a demand against an estate within die meaning of that term as used in the nonclaim statute of the probate code.
See, also, In re Estate of Weidman, 181 Kan. 718, 314 P. 2d 327, where it is said and held:
“The gist of all claims advanced on the point now under consideration is that the rights of Julia under her written defense are those of a person contesting a will or making a claim or demand against an estate hence, since she did not appeal from the order admitting the will to probate or file a claim against the estate within the time prescribed by G. S. 1949, 59-2239, the distict court’s judgment should be set aside and the case dismissed. The difficulty from appellants’ standpoint is that the record does not sustain their position respecting the nature of the involved controversy. Under the undisputed facts Julia is relying on the will, not contesting it, and her claims with respect thereto are in no sense to be regarded as a claim or demand against the estate, within the meaning of that term as used in 59-2239, supra. Indeed the real issues, in fact the only controverted issues, involved in probate court in connection with the final settlement of the estate were the construction to be given'the will and the determination of persons entitled to share in the estate under its terms and provisions. Under our decisions appellants’ claim the district court had no jurisdiction to hear and dispose of the appeal from tire decision made by the probate court with respect to such issues on final settlement of the estate lacks merit and must be denied. See Bindley v. Mitchell, 170 Kan. 653, 228 P. 2d 689, where it is held:
“ ‘At the final settlement of the estate of a testate decedent the probate court has not only the authority but the duty of interpreting or construing the will and determining the respective beneficiaries of the estate named in the will and assigning to each the share of the property bequeathed or devised by the will.
“ ‘The method provided by statute for correcting any error the court might make interpreting or construing the will and determining the respective shares of the beneficiaries named therein is ■ by an appeal from the order of final distribution. (Syl. ¶¶ 1, 2.)’ ”
2. Did the trial court err in allowing an attorney fee to the attorneys for the appellee which would be taxed as part of the costs of the action?
In fairness to counsel for appellants it should be stated that in raising this question they challenge the legality of the fee only, not the propriety of its= amount. It may be stated that, without citing any authorities to support their position, the essence of all arguments advanced by appellants on this point is that no claim was made by appellee in probate court for the allowance of an attorney fee and no such claim was allowed by that tribunal, hence the district court had no power or authority to allow the fee in disposing of the issues involved on appeal from probate court. We do not agree. All such arguments ignore the fact that under our statute (G. S. 1949, 59-2408) the appeal from the decision of the probate court was in district court for trial de novo as though that court would have had original jurisdiction on all matters therein involved; and that in their determination such court could exercise the same jurisdiction and power as though the controversy had been there commenced. Indeed, in construing the force and effect of such section of the statute we have said (see In re Estate of Hawk, 171 Kan. 478, 483, 233 P. 2d 1061) that on appeal from orders involving final settlement the trial is to be de novo and the issues therein to be determined are not to be restricted by failure of the parties to appear, or by the evidence introduced, or the absence or insufficiency thereof, in the probate court. Moreover, with direct application to the allowance of attorney fees, we have held (see, e. g., Singer v. Taylor, 91 Kan. 190, 137 Pac. 931) that where — as here— there is ambiguity in the provisions of a will and a real controversy as to its construction it is competent for the court to allow reasonable attorneys’ fees out of the estate to the defeated as well as the successful party; and in connection with the same subject have held that under the provisions of what is now G. S. 1949, 60-3706, the district court, in its discretion, has authority to tax costs and allow attorney fees and to determine from what source they should be paid, as it may deem right and equitable. (In re Estate of Reynolds, 176 Kan. 254, 270 P. 2d 229; Hurst v. Weaver, 75 Kan. 758, 763, 90 Pac. 297.)
Based on what has been heretofore stated and the foregoing decisions we have no difficulty in concluding that under the facts and circumstances of this case the question last above posed must be answered in the negative.
3. Was it the intention of the testator(s) that a child bom to N. C. Miller 270 days after their death should inherit under the provisions of their wills? It goes without saying this question requires a construction of the involved wills. The rule to be applied in such a situation under the existing facts and circumstances is well-established. See, e. g., In re Estate of Hauck, 170 Kan. 116, 223 P. 2d 707, which holds:
“Where construction of a will is necessary the court must put itself in the situation of the testator when he made his will and from a consideration of the language used in the entire will determine as best it can the. intention he en deavored to convey, the cardinal rule being that the intention of the testator as gathered from the whole will must control unless contrary to settled rules of law.” (Syl. ¶ 3.)
Mindful that when any ambiguity exists in its provisions every will must be construed by its own terms in accord with the rule last above stated, we see no necessity for prolonging this opinion by an extended statement of reasons responsible for the conclusion we have reached regarding the proper construction to be given the wills now under consideration. It suffices to say that when we place ourselves in the situation Sydney and Helen were in at the time they made their wills and then read those instruments in their entirety, in the light of the limited facts of record, we are impelled to conclude that under the residuary clauses of their wills they intended, except for Joyce their niece and adopted child, to give the residue of their estates to the nieces and nephews who were the natural sons and daughters of the sister and brothers specified in such residuary clauses; and further that they intended, particularly since they knew or should have known that under our decisions (see, e. g., In re Estate of Ellertson, 157 Kan. 492, 142 P. 2d 724; In re Estate of Works, 168 Kan. 539, 213 P. 2d 998) their wills became effective as of the date of their death, such gifts and devises should include all natural children of the persons therein named who, in contemplation of law, were in being on the date of the death of the surviving testator. To hold otherwise would result in attributing to them, which we refuse to do, an intention to discriminate between the living natural children of their favored sister and brothers on the date of the making of the wills and children of the same status born after the date of the making of those instruments. If, as appellants contend, the testators intended to limit their bounty to children living on the date of the making of the wills and exclude after born children they could have easily accomplished that result by specifically naming the then seven living children of Alex Walton, Marjorie Miller and N. C. Miller, instead the residue of their estates was devised and bequeathed to nieces and nephews, without naming them, who where the natural sons and daughters of such persons. Indeed, in our opinion, the very fact they failed to name the living children, considered in connection with their knowledge of the ages of the respective sister and brothers which must be assumed, is highly persuasive of the fact they contemplated such persons might have additional children who would be entitled to share in the residue of their estates.
4. Thus we come to the final question. Was Kim Ivan Miller in being at the date of the death of the testators?
Appellants’ position on this point is not strenuously argued and, we may add, unsupported by authorities. As we understand their argument, it is claimed there was no evidence to sustain appellee’s position he was in being on the date of the death of the testators, which occurred on January 31, 1956. Let us see. The undisputed facts are that appellee was born 270 days after that date on October 27, 1956.
Courts take judicial notice of the normal period of gestation (20 Am. Jur., Evidence, 95 § 73; Estate of McNamara, 181 Cal. 82, 183 Pac. 522, 7 A. L. R. 313, 319). What that period is has been decided by the Supreme Court of our sister state of Nebraska on several occasions. See Masters v. Marsh, 19 Neb. 458, 27 N. W. 438, where the following statement appears:
“The period of gestation may be safely stated as a general proposition at from two hundred and fifty-two to two hundred and eighty-five days. Allowing the greatest latitude of enquiry I think it should be confined to a period of time between the lowest number of days above stated and that of three hundred days before the birth of the child. . . .” (p. 461.)
For later decisions where the same statement is quoted and applied see Sang v. Beers, 20 Neb. 365, 373, 30 N. W. 258; and Souchek v. Karr, 78 Neb. 488, 492, 111 N. W. 150.
For those who are interested in further information on the same subject see the following well-recognized medical — legal texts and treatises where, although there is some difference of opinion, it appears the Nebraska court’s conclusion respecting the normal period of gestation is not out of line with such authorities. Glaister, Medical Jurisprudence and Toxicology, (9th Ed.) 377, 378; Schat-kin, Disputed Paternity Proceedings, (3rd Ed.) 519-523 Inch; 2 Taylor’s, Principles and Practice of Medical Jurisprudence, Period of Gestation (10th Ed.) 32; Gradwohl, Legal Medicine, 806; Greenhill on Obstetrics (11th Ed.) 100. See, also, 32 Words and Phrases (Perm. Ed.), Period of Gestation, 87.
From the foregoing authorities it becomes clear the time elapsing between the date on which the testators died and the date on which Kim was born was within the normal period of gestation. It re mains to be seen whether the trial court properly concluded he was in being as of the date of the testators’ simultaneous deaths. We think it did. See, e. g., In re Seabolt, 113 Fed. 766, which reads:
“. . . ‘A child in ventre sa mere is a child while yet unborn. From the time of conception the infant is in esse for the purpose of talcing any estate which is for his interest, whether by descent, devise, or under the statute of distributions.’ 10 Am. & Eng. Enc. Law (1st Ed.) p. 624. The early English doctrine that an unborn child is not to be regarded as in esse has been long ago exploded, and the decisions of the courts now are uniformly to the effect that children in ventre sa mere are included within the meaning of the word ‘children.’ This principle is so well established and so fully understood by the profession that it is not deemed necessary to cite authorities to support it. . . .” (p. 771.)
See, also, 41 Am. Jur., Perpetuities and Restraints on Alienation, 62 § 16, where it is said:
“In the operation of. the rule against perpetuities, it is a well-established principle that a child en ventre sa mere at the time of the testator’s death, who is subsequently born alive, is to be treated as having been alive at the testator’s death and is a life in being for purposes of the rule. This is on the theory that the period of gestation is necessarily covered by .the words ‘within a life or lives in being.’ ...”
Having disposed of all questions raised by appellants and finding nothing in them or in arguments advanced in their support constituting reversible error the judgment of the trial court must be and it is hereby affirmed. '
It is so ordered. | [
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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 in an equity suit for an accounting sought by a landlord from his tenant under a lease and option to purchase contract. The trial court entered judgment for plaintiff requiring defendant to make the ac counting and holding the option to purchase portion of the contract was unenforceable.
Our attention is first directed to plaintiff’s motion to dismiss the appeal for failure of defendant to set out in his brief the separately numbered questions involved, as required by our rule 6 (3). An attorney is an officer of tire court (State v. Majors, 182 Kan. 644, 323 P. 2d 917) and he should make every effort to meet the requirement that the rules of the court are to be complied with and followed in every particular. It is by exercising this degree of particularity that an attorney guards against dismissal of his appeal. However, this court is committed to the practice of favoring appeals and before an appeal is dismissed, the court will go further into the record and determine whether such failure to comply with the rales results in hardship or disadvantage to the opposition. (Taylor v. State Highway Commission, 182 Kan. 397, 320 P. 2d 832.) The record before us has been carefully examined. It is well-presented in all other particulars, no apparent prejudice is shown by the above-mentioned failure, and in consideration of the furtherance of justice, we conclude the motion to dismiss should be and it is hereby overruled.
The principal question in this appeal relates to the enforceability of that portion of the contract providing for defendant’s right to exercise his option to purchase certain farm land consisting of 771.5 acres. The pertinent portion reads:
“In consideration of the leasing of said premises and the mutual promises of the parties hereto, it is agreed by and between the parties hereto that landlord is to buck all timber and brush into windrows, and tenant is to burn the timber and brush in the windrows. Tenant has the option to purchase landlord’s one-half of all crops grown on said premises at the prevailing market price for said crops, when they are harvested.
“In consideration of the leasing and promises of the parties, and in consideration of the further sum of one dollar paid by tenant to landlord, the receipt of which is hereby acknowledged by landlord; landlord gives the tenant the option to purchase the above described real property at the price of One Hundred Dollars per acre of measured ground at any time, up to and including July 1, 1955. If tenant elects to purchase the above described real property, he is to notify the landlord in writing on or before July 1, 1955, and then said real property is to be measured and the purchase price is to be $100.00 per acre for the measured acres in said tract. In case tenant purchases said property, landlord is to furnish tenant abstracts of title showing a good and merchantable title to said real property to be vested in landlord; upon approval of said abstracts, tenant is to pay landlord one-fourth (K) of the purchase price; tenant is to pay landlord an additional one-fourth (K) of the purchase price on or before February 1, 1956, and landlord is to execute and deliver to tenant a good and sufficient warranty deed conveying the above described real property to tenant, and tenant is to give landlord a first mortgage on said real property for the remaining one-half of the purchase price, the terms of the mortgage to be agreed upon by the parties at that time. If tenant purchases said real property, tenant is to pay the taxes on said premises for the year 1955. Landlord has approximately 15 acres more to clear on said premises, and if tenant purchases said real property, he is to pay landlord $40.00 per acre for said land so cleared and pushed into windrows.”
Defendant pin points the following allegation in plaintiff’s original petition and first amended petition,
“Plaintiff further alleges that he has performed all duties required of him under said lease and option and is ready and willing to perform all further requirements under the said contract . . .,”
which he claims is an election by plaintiff to rely on and affirm the lease and option contract in its entirety. An additional portion of the first and second amended petitions sets out a signed and written election by defendant to exercise the option to purchase which was delivered to plaintiff on June 29, 1955. A copy of such written election was attached as an exhibit to each of these petitions. Defendant then argues that plaintiff attempted to assert a remedy inconsistent with that relied on in his first petition by omitting from the second amended petition that part of the above-quoted allegation reading as follows,
■ . and is ready and willing to perform all further requirements under the said contract . . .,” (our emphasis)
and for the first time alleging in his second amended petition that:
. . under the terms of said lease and option to purchase the terms of the mortgage to be given by the defendant to the plaintiff to secure the unpaid balance of the purchase price of the lands covered by said lease and option to purchase are left for future determination by the parties. That as a result the option to purchase provisions of the contract are void and unenforceable; that said contract constitutes a cloud upon plaintiff’s lands. That the provisions of the contract providing for the sale of land by the plaintiff to the defendant should be held for naught and set aside by this court.”
Defendant contends the above cannot be done and cites as authority Davidson v. McKown, 157 Kan. 217, 139 P. 2d 421; Christy v. Gaylord:, 158 Kan. 753, 150 P. 2d 164.
All three of plaintiff’s petitions sought an accounting of the 1955 crops produced on the farm by defendant. In brief, the answer of defendant was a general denial but it also admitted fee simple title to the farm in plaintiff, the execution of the contract, and de fendant’s election to purchase the farm. Subsequent to defendant’s election to purchase, plaintiff had furnished abstracts which defendant submitted to his attorney for examination. Plaintiff was presented with copy of such attorney’s opinion,- which opinion required that a quiet title action be brought to establish good and merchantable title in plaintiff. On November 9, 1955, defendant wrote the plaintiff asking that a survey be made and on November 14, 1955, he wrote plaintiff a second letter in which he stated that he desired to pay the 1955 taxes and again requested that a survey be made immediately. On November 17, 1955, defendant’s attorney also wrote to plaintiff and requested a survey. After another letter from this same attorney to plaintiff asking for a survey so defendant could pay the 1955 taxes and requesting a meeting of the parties with their attorneys, such a meeting took place. Defendant was there informed that plaintiff had paid the 1955 taxes but the payment would not jeopardize or be considered as a waiver of defendant’s rights. If plaintiff would execute a warranty deed and show title as stated, defendant at all times stood ready to do whatever the court required and to pay one-fourth of the purchase price together with another one-fourth on or before February 1, 1956, to execute a promissory note, secured by a first mortgage on the farm, for the remaining half of the purchase price. and to comply fully with the terms of the agreement. If further required by the court defendant would remit the amount of the 1955 taxes to plaintiff with any interest paid thereon. Defendant had paid the 1956 taxes. He would comply with any order made by the court and would pay all the purchase price if so ordered. Prior to exercise of the option he had planted 350 acres of corn, 200 of which had started to grow and after the exercise of the option, 150 additional acres of corn were planted. Plaintiff had had the property surveyed. It was intended by the parties that upon defendant’s election to purchase, he would pay the 1955 taxes, plaintiff would not furnish any seed or fertilizer and the landlord-tenant relationship would be replaced by that vendor-vendee. Plaintiff on several occasions had orally and in writing stated he would comply with the agreement, he would have the land surveyed, and would convey the land if defendant would give him half the 1955 crops.
The answer further stated that by having the abstracts extended, in not furnishing half the seed or fertilizer, in having the farm sur veyed, in his willingness to convey on condition, in allowing the examination of the abstracts by defendant and allowing defendant to pay the 1956 taxes, and allowing defendant to exercise ownership over the farm, plaintiff was estopped from claiming the option to be indefinite and unenforceable. Plaintiff had elected to comply with the lease and option to purchase and when defendant exercised the option to purchase, the landlord-tenant relationship was thereby replaced by that of vendor-purchaser. The letters from defendant and his counsel to plaintiff were attached to the answer as exhibits.
Plaintiff’s reply denied generally every material allegation of new matter in the answer.
It was stipulated that shortly after November 7, 1955, plaintiff had obtained a survey showing 771.5 acres in the farm, which survey was filed March 12, 1956, in the Atchison county engineer’s office.
In a pretrial order dated May 22, 1957, all exhibits attached to the pleadings were received in evidence and in effect the facts were established that if the option to purchase was good, then defendant’s serving of his election to purchase on plaintiff on June 29, 1955, at which time none of the crops were mature, had terminated the landlord-tenant relationship and henceforth there was a vendor-purchaser relationship; for whatever consideration it merited, the survey was admitted; plaintiff had had abstracts posted to date and had submitted them for examination by defendant’s attorney, Katherine A. Tarwater, whose opinion showing that it was necessary to quiet title to make it merchantable was given plaintiff on November 7, 1955; and that defendant had attempted to pay the 1955 taxes but before he could do so, plaintiff had paid them.
The contested issue of law to be determined was,
“Is the option to purchase the real estate in question in the ‘Option-Lease Agreement’ valid and enforceable?”
After a trial on May 22, 1957, the court thereupon entered an order determining that the option to purchase was unenforceable and ordering defendant to make an accounting before June 5, 1957. On May 24, 1957, defendant filed a motion for new trial which was overruled on June 5, 1957. An accounting of the 1955 crop was made by defendant showing the landlord’s share to be $13,887.06 which amount the court ordered defendant to pay to plaintiff. On the same day defendant filed another motion for new trial which the trial court also overruled on June 5, 1957.
In a counter abstract plaintiff submits certain orders of the trial court relating to other motions filed by him but since there is no cross-appeal from those orders and we can see no reason to discuss them, we will not do so.
The facts were stipulated or admitted in the pleadings and on the pretrial conference. We, therefore, have everything before us that was before the trial court and must consider the same question as did the trial court, namely, is the option clause in' the contract enforceable?
Plaintiff argues the clause providing that defendant is to give plaintiff a first mortgage on the farm property for the remaining half of the purchase price and that the terms of the mortgage to be agreed upon by the parties at the time make the option so indefinite and indeterminate that it is unenforceable. He relies on Nichols v. Coppock, 124 Kan. 652, 261 Pac. 574, wherein the parties corresponded over the price and quantity of land from June, 1924, to February, 1925. Finally, the defendant wired plaintiff to the effect he was not anxious to sell, especially the north half, but would take $34,000 for Iris entire piece of land, which was about the same rate as he had priced the south half, with easy terms. The court there held the contract unenforceable for indefiniteness of terms because “That was something to be mutually agreed upon in the future. . . .” (p. 656.) The negotiations had first started between plaintiff as agent to acquire the land for the Mission Hills Golf Club but the above telegram related to plaintiff as an individual purchaser. Later on in the opinion the court pin pointed the future material agreements as follows:
“But as already stated, a sale to plaintiff was a new proposition, distinctly different from the one relating to the sale of one-half of the tract to the golf club, and nothing in the correspondence relating to the sale to plaintiff himself indicated that the terms previously made to the golf club would be carried forward and constitute a part of the proposition for the sale of the whole tract to plaintiff.” (p. 656.)
This court there further commented that the words easy terms did not determine cash to be paid, times or amounts of subsequent payments, or security for deferred payments. We cannot agree with plaintiff that the Nichols case controls here because the cases are not only distinguishable, as contended by defendant, but they present entirely different situations.
The difference in our case lies in the undisputed facts that defendant exercised his option to purchase the land described in the contract and under the option he had to pay one-half the purchase price in cash before February 1, 1956, and execute to plaintiff a first mortgage on the land for the remaining one-half. The purchase price was $100.00 per acre and by multiplying that figure by the 771.5 acres determined by the survey, the amount of the mortgage was ascertainable. This complies with our rule that in order to maintain an action for specific performance of a contract, it is essential that its terms and conditions be sufficiently definite and certain or that they may be made definite and certain by reference to other data. (Wing v. Mollett, 115 Kan. 116, 222 Pac. 88.) The questions of when the first mortgage became due and the rate of interest it bears, of course, remain. While plaintiff does not seriously attack these points, in determining the first point in earlier similar cases, we have, in substance, said that where the time of performance of some stipulated act is not specified, it is to be done within a reasonable time and want of a stipulation as to the time of performance does not necessarily render the contract void. (Leis v. Sinclair, 67 Kan. 748, 74 Pac. 261; Eakin v. Wycoff, 118 Kan. 167, 171-172, 234 Pac. 63; Brunhoeber v. Brunhoeber, 180 Kan. 396, 400, 304 P. 2d 521.)
As to the element of interest, we have a statute (G. S. 1949, 16-201) which controls the legal rate of interest in such a situation by the following provision:
“Creditors shall be allowed to receive interest at the rate of six percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due. . . .”
Plaintiff had never questioned, withdrawn or repudiated the rights of defendant to exercise the option to purchase the farm until he filed his second amended petition and at that time, as already stated, there had been part performance of the terms thereof by both parties. Defendant contends, and we think properly, that such conduct and part performance estops plaintiff from contending that the option to purchase is unenforceable. An equitable es-toppel rests largely on the facts and circumstances of a particular case and consequently any attempted definition usually amounts to no more than a declaration of an estoppel under those particular facts and circumstances. In Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P. 2d 584, a definition from 10 R. C. L., page 689, is restated in part:
“The following, however, may be ventured as the sum of all cases: That a person 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 of the circumstances of the case, has, in good faith, relied thereon. Such an estoppel is founded on morality and justice.” (pp. 435-436.)
See, also, Board of County Commissioners v. Brown, 183 Kan. 19, 325 P. 2d 382.
The defendant, in reliance on his right to exercise the option and in reliance on the conduct of the plaintiff, altered his position to his detriment so that he should be allowed to compel the complete performance of the contract. (Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 83.)
In Tinkler v. Devine, 159 Kan. 308, 154 P. 2d 119, under an option clause if the landlords found a purchaser to whom they were willing to sell, their tenant had the first right to purchase at the same price and terms as agreed between the landlords and the other purchaser. After receiving notice the tenant had seven days to accept or reject the option and if there was a sale or assignment of the lease by the landlords to a third party, the option contract would be binding on such other purchaser or assignee of the lease. This court held that the lessee had to accept or reject the offer in seven days but had a reasonable time to comply with the terms of the contract of sale and that even though the land Had been conveyed to a third party who had had notice of the lessee’s option, the lessee had not been notified of the sale and lessee was entitled to specific performance of the contract.
A recent decision repeating the rule that a tenant has a reasonable time after he exercises an option to pay the money and complete a contract is Reger v. Sours, 181 Kan. 423, 311 P. 2d 996.
In view of the authorities, we can only conclude the option to purchase was a definite contract and the lessee was entitled to specific performance thereof. The trial court erred in its ruling that such option provision was unenforceable and in decreeing the accounting in favor of defendant.
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The opinion of the court was delivered by
Jackson, J.:
In the court below, appellant filed his action for a declaratory judgment against The Prince Hall Grand Lodge, Free and Accepted Masons of Kansas, and against certain persons as officers of the Grand Lodge and individually. An original petition and an amended petition were filed in which appellant sought to have the court interpret a certain constitutional provision in the constitution of the Grand Lodge differently than said constitutional provision had been interpreted by the Jurisprudence Committee of the Grand Lodge. This particular constitutional provision will be summarized below. Certain demurrers and motions were leveled at the first and amended petitions, and thereafter appellant filed his supplemental petition. This petition is in reality an amended and supplemental petition and was so treated by the court below and will be so considered by this court. While not important, the date of the filing of this pleading apparently does not appear in either the abstract or the counter abstract. Appellees demurred to the amended and supplemental petition and the district court sustained the demurrer. Appellant appeals from that ruling.
In making the ruling below, the district court wrote a memorandum opinion which summarizes the pleadings and the reasons for his ruling. The opinion is a part of the abstract, and we shall quote it in its entirety:
“The plaintiff filed this action on March 10, 1956, for a declaratory judgment and the matter is now pending before me on a demurrer to the supplemental petition of the plaintiff.
“The defendants contend that the plaintiff's amended petition was stricken so that there is nothing to support a supplemental petition in this action, and that the supplemental petition must at least be strictly construed against the pleader, and the defendants direct the Court’s attention to the rulings on numerous motions heretofore argued before the other divisions of the court. To attempt to review all of these rulings for the purpose of answering the above contentions of the parties would involve considerable time and effort and in view of the Court’s ruling would serve no useful purpose. The petition is, in fact, an amended and supplemental petition and it will be considered as such for the purpose of this ruling.
“The gist of the plaintiff’s contention as set forth in the supplemental petition is that the defendant, Prince Hall Grand Lodge, is a corporation, and that the other defendants are officers of the lodge; that there is a provision in the Constitution of the lodge limiting the tenure of the grand master and deputy grand master to not to exceed four consecutive terms, but that notwithstanding this provision the defendants P. G. Porter and William H. Towers have been elected to the offices of grand master and deputy grand master respectively continuously since 1947; that at the annual meeting of the Grand Lodge in 1956 the defendants in order to perpetuate themselves in office conspired to repeal the section of the Constitution referred to above, and in furtherance of such conspiracy the defendants, among other things, refused to recognize or properly count and tally the votes of members opposing the repeal of this section and declared the section repealed, whereas in truth and fact there were sufficient votes against the repeal of said section to defeat it had the votes been properly counted. The petition further alleges that following the vote on the amendent the defendants immediately held an election for officers of the Grand Lodge without permitting nominations or recognizing members in opposition thereto, and that as a result all were re-elected to their respective offices. The plaintiff prays the Court for a declaratory judgment decreeing the original Constitutional provision limiting tenure to be in full force and effect. He does not ask that any of the officers of the defendant lodge be ousted, but asks that the Court decree that the Constitutional limitation on tenure was not properly and validly repealed, and that the same is in full force and effect.
“The question before the Court is whether the supplemental petition sets forth an actual controversy within the meaning of the declaratory judgment act. If it does, the law is well settled that the demurrer should be overruled. If not, then the demurrer should be sustained.
“The defendant Prince Hall Grand Lodge is a corporation organized under the laws of Kansas. Insofar as the question here is concerned, however, I do not believe that the laws governing ordinary business corporations are applicable; rather, the laws governing fraternal and mutual benefit societies, whether incorporated or not, are applicable.
“The defendant lodge is organized for fraternal and benevolent purposes, and it is the general rule that courts will not interfere with the internal affairs of such an organization except so far as may be necessary to protect pecuniary or property rights (10 C. J. S. 311, Beneficial Associations, Section 65; 38 Am. Jur. 481, Mutual Benefit Societies, Section 481; Reno Lodge v. Grand Lodge, 54 Kan. 73). To invoke the aid of the Court, therefore, plaintiff’s supplemental petition must allege facts showing that defendants’ actions jeopardize or in some manner violate a pecuniary or property right of the plaintiff. Although the petition in this case alleges that the plaintiff is a member of the lodge and that he pays certain monthly dues for the support of the lodge and for various benevolent activities including a widows’ and orphans’ fund and a burial fund from which the beneficiaries of each member in good standing upon his death are entitled to receive certain benefits, the petition does not allege nor state facts showing that the rights of the plaintiff or any of his beneficiaries in and to such benefits have been jeopardized by the acts of the defendants in getting themselves re-elected to office in the manner complained of. The most the petition alleges is that such practices on the part of the defendants P. G. Porter and William H. Towers may seriously affect the financial stability of the lodge, may cause loss of memberships, inability to pay benefits, and lack of confidence in its officers, and will destroy the peace and harmony of the lodge. In my opinion this is not a sufficient allegation of injury or invasion of a property or pecuniary right of the plaintiff to entitle him to invoke the aid of the Court.
“It is therefore my opinion that the supplemental petition does not state an actual justiciable controversy within the meaning of the declaratory judgment act, and that the defendants’ demurrer should be sustained. This ruling is to be effective as of the date an approved journal entry is presented for my signature.” '(Italics by the district court.)
It would seem that the trial court has sufficiently summarized the allegations of the appellant’s supplemental petition for the purposes of this appeal. The learned trial judge very pertinently pointed out that the only interest held by appellant in this dispute, referred to in the supplemental petition, was as a mere member of the organization. Appellant was not even a candidate, as far as shown by the supplemental petition, at any of the annual elections referred to in the supplemental petition. He only feared that the Grand Lodge “may” fall upon evil days, if the present Grand Master and Deputy Grand Master remain in control of the Grand Lodge. It would seem that there is little indication of any property or monetary interest of the appellant shown in the supplementary petition. One is reminded of the classical, old case on the question of justiciable controversy found in the reports of the Supreme Court of the United States. In the case of Muskrat v. United States (1911), 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246, Congress had directed a member of the Cherokee Indian Tribe to determine the constitutional validity of an act of Congress to increase the number of persons entitled to participate in the division of Cherokee lands and funds by bringing a suit against the United States in the Court of Claims. On appeal from that court the Supreme Court held that there was no justiciable controversy involved in the case which it, a constitutional court, could consider since the United States had no interest in the land and funds of the Cherokees.
For additional cases of our own upon the same point, we would refer to Zeidler v. Knights of Columbus, 172 Kan. 557, 241 P. 2d 761, where the present Mr. Chief Justice Parker, in speaking for the court, said:
“There can be no doubt that in ruling on the demurrer the trial court was laboring under no misapprehension as to what plaintiff was required to set forth in his petition in order to state a cause of action under our decisions. Whatever may be held elsewhere the rule in this jurisdiction has always been that courts will not interfere and take jurisdiction of cases involving the disciplining, expulsion, or suspension of members of fraternal and benevolent societies unless and until it appears such members have exhausted the remedies available to them within the Orders to which they belong. For our latest decision on the subject, to which we adhere, see Porth v. Local Union 201, 171 Kan. 177, 231 P. 2d 252. For others, wherein the same rule has been recognized, applied, and adhered to, see Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003; Moore v. National Council, 65 Kan. 453, 70 Pac. 352; Modern Woodmen v. Taylor, 67 Kan. 368, 71 Pac. 807; Flynn v. Brotherhood of Railroad Trainmen, 111 Kan. 415, 207 Pac. 829; Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 28 P. 2d 976; Radio Station KFH & Co., v. Musicians Ass’n, Local No. 297, 169 Kan. 596, 220 P. 2d 199; and other decisions therein cited.” (p. 558.)
In the Zeidler case, Zeidler had himself been disciplined. Here, appellant Hill has been compelled to see officers elected in the Grand Lodge, whom he seems to have opposed.
We are convinced that the declaratory judgment act (G. S. 1949, 60-3127) was not designed to interpret the constitutions of fraternal organizations, if the members thereof be disputing among themselves over the proper construction to be applied. (See Wellenvoss v. The Grand Lodge of Knights of Pythias of Ky., 103 Ky. 415, 420, 45 S. W. 360.)
Appellant raises in this court the question of whether the issue of justiciable controversy in the supplemental petition is not res judicata. To support the affirmative of such proposition, appellant attempts to point out certain statements of one of the trial judges handling the pleadings on motions to make definite and certain and to strike. There are no cases holding that even orders relative to such motions would be considered sufficient to invoke the principle of res judicata.
In Restatement, Judgments, § 41, it is said:
“The rules of res judicata are not applicable where the judgment is not a final judgment.”
There has been no judgment in this case at all. See: Sherburne v. Strawn, 52 Kan. 39, 34 Pac. 405; Parks v. Monroe, 99 Kan. 368, 161 Pac. 638; Tootle v. Coleman, 107 Fed. 41, at page 47; Fitzgerald v. Merard Holding Co., 106 Conn. 475, 138 Atl. 483, 54 A. L. R. 361; Bancroft, Code Pleading, § 226, p. 376; Clark, Code Pleading, 2d ed., § 84.
All other matters raised by the parties have been considered carefully, but this opinion need not be extended.
The order of the district court sustaining the demurrer to the appellant’s supplemental petition is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is a workmen’s compensation case. The claimants appeal from a judgment denying compensation.
The proceeding was instituted by LaVern LaRue, hereinafter referred to as the claimant or appellant, as widow and guardian of the minor children of Arthur LaRue, deceased, against the employer, Sierra Petroleum Company, and its insurance carrier, Travelers Insurance Company.
In submitting the cause to the commissioner the parties stipulated the only controverted issues were: (1) Whether or not deceased’s accidental death arose out of and in the course of employment with the respondent; (2) whether or not the claimant was wholly dependent upon the decedent for support; and (3) the amount of compensation due the claimant, if any. A hearing on such issues resulted in an award to claimant and respondents appealed to the district court.
After a hearing in district court in conformity with the provisions of Laws pf 1955, Chapter 250, Section 10, now G. S. 1957 Supp., 44-556, the district court found, among other things, that “the decedent’s accidental death did not arise out of and in the course of his employment” and rendered judgment denying the claimant an award. This appeal followed.
The issues, to be presently discussed, will be simplified by a short factual statement, about which there can be no dispute, relating to events leading up to and resulting in the death of LaRue.
Sometime after 7:30 p. m. on the evening of June 15, 1956, Robert Delaney, a driller, and Arthur LaRue, a derrick man, who, as members of one of Sierra’s drilling crews had just completed drilling a well for Sierra, near Windom, and were scheduled to report for work the next day at a new Sierra well location, four miles south of Moundridge in Harvey County, decided to leave Lyons, where they had been staying, for the purpose of going to their respective homes. LaRue lived at Stockton and Delaney at Woodston. Roth towns were located slightly more than one hundred miles from Lyons and the Windom well location. After reaching this decision they started toward their homes in an automobile owned and driven by Delaney, proceeding in a northwesterly direction until they reached U. S. Highway 24. They then proceeded west on such highway to a point approximately four miles west of Alton in Osborne County when, for some unexplained reason, at about 10:30 p. m., and after having driven more than one hundred miles from Lyons, the automobile, with Delaney still driving, left the road and crashed into a tree. As the result of this accident Delaney was slightly injured and LaRue sustained serious injuries which caused his death on the same evening.
In their presentation of the cause counsel for appellant frankly concede the only questions involved on appellate review are: 1. Did Arthur LaRue receive his fatal injuries as a result of an accident which arose out of or in the course of his employment, or [Hi] whether his death occurred after leaving his duties of his employment. 2. Was the proximate cause of the collision killing Arthur LaRue the negligence of his employer even though he may have left the duties of his employment as defined by G. S. 44-508(K) 1949.
There can be no doubt that questions hereinabove denominated 1/2 and 2 are pure questions of fact. Doubt might exist in the minds of some as to whether the question identified as (1) is in the same category but that too has been expressly decided by this court.
See, e. g., Gregg v. American Walnut Lbr. Co., 137 Kan. 201, 19 P. 2d 463, where it is held:
“The question whether the disability of the workman is due to an accident arising out of and in the course of his employment is a question of fact, and when once determined by the commissioner of workmen’s compensation and the district court, it will not be disturbed by this court where there is substantial evidence to sustain it.” (Syl. ¶ 2.)
For another, and more recent decision of like import, see Kafka v. Edwards, 182 Kan. 568, 569, 322 P. 2d 785.
Having established that we are here concerned with an appeal from findings of fact made by a district court in a workmen s compensation proceeding we feel called upon to once again point out the jurisdiction and function of this court upon review of such findings in compensation cases.
For a comparatively recent decision dealing with the subject see Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259, where it is said:
“Under G. S. 1949, 44-556, appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether die record contains any evidence which tends to support the judgment rendered, and in so considering, this court is required to view all testimony in the light most favorable to the prevailing party below. If when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed; being conscious at all times of the fact that this court has little concern with disputed questions of fact in ordinary lawsuits and none whatever in workmen’s compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence would justify the trial court’s finding or conclusion of fact, (citing cases.)” (pp. 259, 260.)
Another recent decision is Angleton v. Foster Wheeler Construction Co., 177 Kan. 134, 276 P. 2d 325, which holds:
“The supreme court of this state is not vested with original jurisdiction in workmen’s compensation cases, its jurisdiction on review being limited entirely to questions of law.
“On review this court is not concerned with findings made by an examiner and approved by the workmen’s compensation commissioner, or with testimony which might support findings contrary to those made by the district court. Our sole function is to determine whether the record contains substantial competent evidence to support findings made by the district court.” (Syl. ¶¶ 3, 4.)
See, also, McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652, where it is held:
“In an action under the Workmen’s Compensation Act it is the function of the trial court to pass upon the facts and its factual findings cannot be disturbed on appellate review if they are supported by any substantial competent evidence.
“Whether the judgment of the trial court in such an action is supported by substantial competent evidence is a question of law as distinguished from a question of fact.” (Syl. ¶¶ 1, 2.)
And where, in elaboration of the same subject, it is said:
“The rule in this jurisdiction, so often repeated as to hardly require reference to our decisions, is that it is the function of a trial court to pass upon the facts in a.workmen’s compensation case and that under G. S. 1949, 44-556 this court is limited on appellate review to ‘questions of law’ which in final analysis, simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial competent evidence . . .” (p. 251.)
And, for one of our latest reported decisions dealing with the same subject, see Madison v. Key Work Clothes, 182 Kan. 186, 318 P. 2d 991, where it is said:
“The jurisdiction of the supreme court on appeal in a workmen’s compensation case is specifically limited to the determination of questions of law. As to questions of fact this court reviews the record only to determine whether it contains substantial evidence to support the trial court’s finding, and in so doing, all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial evidence appears such finding is conclusive and will not be disturbed on review. (Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681.) The latest application of the rule is found in Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P. 2d 725; and Murray v. Ludowici-Celadon Co., 181 Kan. 556, 313 P. 2d 728.)” (p. 189.)
In the instant case we are not limited to a single finding of fact such as was involved in Kafka v. Edwards, supra. Here the trial court not only found that the accidental death of the deceased workman (LaRue) was not due to an accident arising out of and in the course of his employment but it made other specific findings which, we pause to note, inhere in such over-all findings. These findings read:
“1. That the decedent was not furnished transportation by the respondent as a part of or as an incident of the employment.
“2. That the driller, Delaney, was not authorized by the respondent to furnish or provide transportation to the decedent as a part or as an incident of the employment.
“3. That the driller, Delaney, did not furnish and provide decedent transportation as a part of or as an incident of the employment, but rather the transportation was furnished purely as a personal matter between them and had nothing to do with respondent. Delaney merely intended the arrangement for transportation to be one of sharing rides with each other as they had done in the past when they worked together.
“4. The decedent was not under the direction and subject to the control of the respondent or of the driller, Delaney, or any one else after he left work at the well location, while on the trip home and at the time of his death.
“5. The trip home by the decedent, which was more than 100 miles from his place of work, was purely a personal mission having no connection with his employment and no work was being performed for the respondent and no benefit was received by it by reason of the trip home.
“6. That at the time of the accident the decedent was not moving to another location at the request of his employer, but rather he was going home after leaving the duties of his employment.
“7. That the proximate cause of the decedent’s death was not the negligence of the respondent.
“8. That the driller, Delaney, was not acting as the agent of respondent and was not within the scope of his employment or under the control of the respondent at the time of the accident.”
Many other decisions, where like principles are announced, discussed and applied, are to be found in our reports. For just a few of them see Snedden v. Nichols, 181 Kan. 1052, 1054, 317 P. 2d 448; Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 514, 313 P. 2d 725; Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681; Beaver v. Tammany Industries, 180 Kan. 440, 304 P. 2d 501; Pinkston v. Rice Motor Co., 180 Kan. 295, 299, 303 P. 2d 197; Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259, and the decisions there cited.
In the face of the foregoing decisions and what has been heretofore related it is apparent the all decisive question involved in this appeal is whether the record discloses substantial evidence to sustain the factual findings made by the trial court. It would add nothing to our reports and we are not inclined to prolong this opinion by laboring the evidence adduced by the parties. It suffices to say that after a painstaking and extended examination of the entire record we are convinced such record discloses sufficient competent evidence on which that court could make each and every factual finding to which reference has been heretofore made in this opinion. That, under the decisions to which we have previously referred, means such findings cannot be disturbed and compels an affirmance of the judgment. This, it may be added, must be our conclusion under the established law of this jurisdiction even though it be conceded, as appellant contends, the record discloses some evidence which, if the trial court had seen fit to give it credence, would have supported contrary findings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The sole question presented by this appeal is whether the Kansas Turnpike Authority, hereafter referred to as defendant, is liable in damages for injuries of a personal nature alleged to have been sustained as a result of its operations in the construction of the turnpike.
The trial court answered the question in the negative, and plaintiff has appealed.
The background of the case, as alleged in the petition, is this:
Plaintiff, Vernie Hosterman, is a farmer living in Lyon County. In the summer of 1956 defendant maintained and operated a hot-asphalt plant for the production of paving material used in the construction of the turnpike. The plant was located about one-half mile south of plaintiff’s farm and about three-fourths mile from his house, bams, corrals and equipment buildings. In the processing of the hot asphalt the plant gave off large "clouds” of refuse, resulting in a "fall-out” of powdery silt which covered and permeated everything with which it came in contact. The refuse contained foul-smelling and noxious gases, and as it was carried by the wind over plaintiff’s property made living conditions generally unbearable, resulting in the following items of damage to plaintiff:
“1. Pain and Suffering and inescapable contacts which the fall-out from said Refuse Clouds .
2. Permanent injury to plaintiff’s health.$10,000.00
3. Food Contamination. 500.00
4. Contamination of all the air plaintiff had to breathe. 5,000.00
5. Loss of all the comforts of living in his farm home and the farm environment. 10,000.00
6. Contamination of his water supply. 5,000.00”
Defendant filed a motion to strike items 1, 2, 4 and 5, and allegations pertaining thereto, its theory being that such items covered damages for injury to the person for which, under the law, it was not hable.
This motion was sustained, thus leaving in the petition only items 3 and 6 pertaining to food and water-supply contamination. It is from this ruling that plaintiff appealed.
In addition to a number of cases arising out of condemnation awards involving defendant, three cases have reached this court which sought recovery from defendant for damage to private property.
In Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P. 2d 849, the action sought “to recover damages as a result of construction activities on the Kansas Turnpike.” Defendant’s demurrer to the petition, on the ground (2). it did not state facts sufficient to constitute a cause of action, was overruled. In affirming that order we called attention to certain statutes, hereafter mentioned, -as being authority for maintaining the action.
In Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P. 2d 172, the action sought recovery of damages for injury to plaintiff’s cattle which were “molested, annoyed and ex cited” by the presence of defendant’s employees and the noise and disturbance created by construction activities. One ground of defendant’s demurrer to the petition was that it did not state facts sufficient to constitute a cause of action, and it was contended that defendant was clothed with immunity in such an action because it was created a body politic and corporate and constitutes a public instrumentality. The demurrer was overruled, and this court affirmed. The reasoning of our decision will be discussed later in this opinion.
Wilson v, Kansas Turnpike Authority, 181 Kan. 1025, 317 P. 2d 843, was an action by a landowner to recover a sum equal to the cost of removal and relocation of a building made necessary by defendant’s construction activities. As in the two cases just mentioned, a demurrer to the petition was overruled and, on appeal, this court affirmed, calling attention to the special statutory right of action created by the legislature in the enactment of the turnpike law.
It is to be noted that each of those cases sought recovery for damage to private property under G. S. 1955 Supp. 68-2015, which reads in part:
“All private property damaged or destroyed in carrying out the powers granted by this act shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of this act.”
and that in none of them was the question of right, of redress for injuries of a “personal nature” presented or decided.
In the instant case, the alleged injury and damage having occurred in the summer of 1956, the parties are likewise governed by the provision just quoted.
The Anderson case, above, contains a thorough discussion of 'die question there presented, and much of what was said and held is applicable to the question now before the court. We summarize briefly from the decision:
The Kansas Turnpike Authority is an arm or agency of the state, created by the legislature to perform an essential governmental function for the people of the state. (G. S. 1955 Supp. 68-2003; State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198.) It does not follow, however, that as such it is immune from suit in all cases. Under G. S. 1955 Supp. 68-2004 (d), it is authorized and empowered to sue and be sued in its own name. Under the provision of G. S. 1955 Supp. 68-2015, above quoted, there is created a special statutory right of action against it for all private property damaged or destroyed in carrying out the powers granted by the turnpike act. The phrase “all private property” is all-inclusive of private property and includes both personalty and realty. The authorization by the legislature that the authority may be sued under circumstances limited by the act creating such agency, that is, for damage to or destruction of private property, does not mean that immunity has been waived for all purposes. At no place in the act is there any waiver of the state’s immunity from tort liability— rather the waiver extends to and is limited only to the statutory right of action created by the act and which is contained in G. S. 1955 Supp. 68-2015, above.
In applying what was said and held in the Anderson decision to the case before us the analogy is clear — items 3 and 6, pertaining to food and water-supply contamination, remain in the petition, and properly so, for they relate to damage or destruction of “private property” for the recovery of which the state’s immunity has been waived by the creation of the special statutory right of action heretofore referred to. But, .as to the items which were stricken — for pain and suffering, injury to health, contamination of the air plaintiff was forced to breathe and loss of the comforts of living — all are in the nature of injuries to the person — torts—and for which immunity from suit has not been waived.
It is quite true that in one sense of the word the stricken items are “property rights,” but it is clear that they are not within the contemplation of “private property” as used in G. S. 1955 Supp. 68-2015. In deciding these matters we are not concerned with or governed by what it legitimately may be urged the law should be — that is something for the legislature to determine.
The force and effect, therefore, of our decision is this:
The turnpike act (G. S. 1955 Supp. 68-2001, et seq.) does not waive the state’s immunity from tort liability. It does, however, create a special statutory right of action whereby recovery may be had for “all private property” damaged or destroyed in carrying out the powers granted by the act. This means that plaintiff may not recover for the alleged injuries to his person — his recovery is limited to damage to or destruction of his private property.
The ruling of the trial court was correct and is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the trial court dismissing an injunction action prior to its hearing on the merits and other adverse rulings related thereto.
The decisive question presented is whether the petition for in-junctive relief was properly construed by the trial court as one seeking to enjoin the defendant from interfering with the construction of a water pipe line across his land only, or whether it sought to enjoin the defendant from interfering with the construction, operation and maintenance of the water pipe line across his land.
This action is an outgrowth of a case previously reported by this court, Bumm v. Colvin, 181 Kan. 630, 312 P. 2d 827. For a full understanding of the question before the court it will be necessary for the reader to acquaint himself with the facts in that case.
The petition of the City of Wichita set up its ownership and right of possession of a certain easement or right of way acquired by eminent domain proceedings for the purpose of installing, maintaining and operating a municipal water supply pipe line with appurtenances. ' The defendant refused to permit the' City of Wichita to enter upon his land and as a result the City of Wichita sought both a temporary and a permanent injunction. On January 25, 1957, a temporary injunction was issued by the trial court upon the posting of a statutory bond.
Pertinent allegations of the petition read as follows:
“4. That defendants, despite repeated demands made on behalf of plaintiff have refused and are refusing to surrender possession of said rights-of-way and easements to the plaintiff for the purpose of installing a water transmission line, air inlet and relief manholes and appurtenances; that plaintiff is being prevented from entering upon said easements and rights-of-way for such purposes.
“5. That the action of defendants in denying the city and its authorized representatives entry on said lands is causing delay in the installation of said water supply pipe line, air inlet and relief manholes and appurtenances; that the rapid completion of such project is necessary in order to supply the indispensable water supply needs of plaintiff city.
“6. That defendants’ denial of possession of said rights-of-way is illegal and wholly without any color of legal right and that unless enjoined and restrained therefrom defendants will continue their illegal refusal to surrender possession of said lands to plaintiff, which will result in irreparable loss and damage to plaintiff and its inhabitants. Plaintiff has no adequate remedy at law and is entitled to a restraining order and permanent injunction, restraining and enjoining defendants from interfering with the exclusive right and possession of plaintiff to the above described easements and rights-of-way.
“Wherefore, plaintiff prays the court to temporarily and permanently restrain and enjoin defendants from interfering with or preventing plaintiff possession of the easements and rights-of-way above described and designated and for such other relief as may be equitable and proper in the premises.” (Emphasis added.)
On January 30, 1957, following the issuance of the temporary injunction the defendants were cited to show cause why they should not be adjudged in contempt of the January 25th temporary injunction order. (The hearing disclosed that Frederick H. Bumm and Frederick H. Bumm, Jr., were one and the same person.) At the hearing on February 4, 1957, the evidence disclosed that the defendant, after the temporary injunction order was served upon him, refused entry on the right of way in question to the plaintiff’s construction crew foreman and workers, and as a result thereof was found guilty of contempt. Thereafter his motion for a new trial was overruled on May 15, 1957. The order adjudging the defendant guilty of contempt awarded no sentence or fine but ordered the sheriff of Harvey County, Kansas, to be present upon the defendant’s land while contractors for the City of Wichita completed the installation of the additional equipment upon the water pipe line of the City of Wichita crossing the defendant’s land, with instructions to arrest and confine the defendant or any other person who may attempt to interfere with or prevent such installation by the plaintiff.
Thereafter on the 12th day of November, 1957, the opening day of the November term of the District Court of Harvey County, counsel for the respective parties being present, and after the call of the docket the court on its own motion dismissed the plantiff’s action. The City of Wichita promptly filed a motion to set aside the dismissal and to reinstate the cause for trial. This motion was set for hearing on the 19th day of December, 1957, and after due notice and hearing was overruled by the court.
Counsel for the City of Wichita refused to approve the journal entry of dismissal and order overruling the motion to set aside the dismissal. The following is recited in the court’s journal entry:
“Thereupon, the Court finds that the water supply pipe line and other appurtenances which are the subject matter of this action, have been installed by the plaintiff, and that such facts and circumstances bring this case within the rules stated in Dick v. Drainage District No. 2, 175 Kan. 869, and the case of Bumm v. Colvin, 181 Kan. 630, and that the real issue in the instant case has ceased to be justiciable and is moot, and that this action should accordingly, therefore, be and it hereby is dismissed.”
The appellee states that the true situation with respect to the occurrence of November 12, 1957 (the opening day of the 1057 term), was that during the call of the docket and immediately preceding the calling of the instant case, the district court had just spread the mandate of this court in the case of Bumm v. Colvin, supra, in which this court held that the phase of this controversy, wherein Bumm was the plaintiff, was moot because the installations which were the subject matter of the action, had been completed. Obviously, the court, under such circumstances, was fully aware of the identical situation in this case.
It is readily apparent that the Rial court construed the petition of the City of Wichita as requesting injunctive relief only for the purpose of installing a water transmission line, air inlet and relief manholes and appurtenances, and not for the additional purposes of operation and maintenance. A careful reading of the petition indicates that this is a reasonable construction of the petition which the City filed. Further proceedings in contempt indicate that this was the trial court’s view of the action as a result of the presentation made by the parties. Where it is possible this court strives to uphold the ruling of the trial court. In our opinion the trial court properly construed the petition.
The appellee contends that the situation presented by this case grew out of the defendant’s attempt to prevent his injunctive action in Bumm v. Colvin, supra, from becoming moot under the authority of Dick v. Drainage District No. 2, 175 Kan. 869, 267 P. 2d 494. As a result he was met with an injunction against himself and a contempt citation which permitted the City of Wichita to complete the installations. Bumm’s action against the City of Wichita was subsequently determined by the trial court to be moot and was affirmed by this court in Bumm v. Colvin, supra.
The appellant contends that in an injunctive action where a temporary injunction is issued, a trial court cannot, without evidence or prior notice to the parties, make a finding that an action is moot and dismiss it on that ground over plaintiff’s objections. Appellant argues that under the circumstances dismissal of the action was an abuse of the trial court’s discretion. Reddington v. Rank, 176 Kan. 484, 271 P. 2d 807, and Huber v. Schmidt, 180 Kan. 80, 299 P. 2d 33, are cited. These cases are not applicable to the facts and circumstances here presented.
Since this action was not dismissed without prejudice to a future action, G. S. 1949, 60-3105, is cited as authority that appellant is entitled to a trial on the merits under the last paragraph, reading: “In all other cases, upon the trial of the action the decision must be upon the merits.” If this statute is all inclusive of a party’s right to dismissal of an action, obviously neither the trial court nor this court could dismiss any action that has become moot if the plaintiff objected to a dismissal.
Where it appears by reason of changed circumstances between the institution of an action and a trial thereof that a judgment would be unavailing as to a particular issue presented the case concerning such issue-is moot and judicial action ceases. (Andeel v. Woods, 174 Kan. 556, 258 P. 2d 285; Asendorf v. Common School District No. 102, 175 Kan. 601, 266 P. 2d 309; Dick v. Drainage District No. 2, supra; and Bumm v. Colvin, supra.)
On the opening day of the November term both parties were present through counsel in open court and the objection as to notice is more technical than real. The litigation between the City of Wichita and the farmers in the equus bed area of Harvey County is of long standing. If the City of Wichita was prejudiced by the court’s order on November 12 by reason of not having notice, it had full opportunity at the hearing on its motion to set aside the order of dismissal on the 19th day of December, 1957, to present its position to the court.
The objection that the trial court made a finding that the action was moot without evidence is likewise more technical than real.
In Bumm v. Colvin, supra, where the commissioners were little more than nominal parties, it was the contention of the City of Wichita before the trial court, and this court that the water pipe line installations were complete and that the action was moot. These facts were readily conceded by counsel for Bumm in that action. Under these circumstances, the City of Wichita would be in no position to prove that the same water pipe line installations in this injunctive action are not complete.
While it is true that a court does not take judicial notice of its own records in other cases, the burden of the appellant’s argument in the instant case, both in the trial court and on appeal to this court, rests upon a construction of its petition. The appellant states:
. . It should be pointed out, however, that regardless of whether or not the installations had been completed, there still remained judicially undetermined the issue of whether the appellee should be permanently restrained from denying appellant’s possessory rights. The point is that this suit has as its purpose the restraining of unlawful acts of appellee preventing and interfering with appellant’s possession of the right-of-way for the purpose of operating and maintaining the pipeline as well as constructing it initially. It is a complete non sequitur to reason that because the pipeline has been installed it necessarily follows that appellee will refrain from interfering with its operation and maintenance . . .”
The construction of the petition has been determined adversely to appellant. Inferentially, the above argument concedes that all the installations of the water pipe line were completed as the trial court found. Technicalities cannot be stretched to the point where they become absurd. Here the appellant has shown no prejudice as a result of the trial court’s dismissal.
The appellant asserts that the trial court erred in entering a disputed journal entry without providing appellant with notice and opportunity to be heard on its objections thereto, citing Rule No. 49 of the Supreme Court. (G. S. 1949, 60-3827, rule No. 49.) The record indicates that counsel for the City of Wichita declined and refused to approve the journal entry of dismissal and order overruling the motion to set aside the dismissal submitted by counsel for Rumm, and thereupon submitted a journal entry which in their opinion properly reflected the ruling made and orders entered by the court. The court declined to sign either journal entry. On January 4, 1958, the court filed its own journal entry which counsel for the appellant refused to sign upon submission by counsel for appellee. The record does not disclose what, if any, objection counsel for the appellant noted for their refusal to sign the journal entry. The appellee states the City’s objection is founded upon the fact that the trial court’s journal entry recited the reason for its ruling. On the facts and circumstances presented by the record before this court the trial court was fully justified in making its own journal entry and filing the same without the approval of counsel for either party or both. (See: Chaney v. Edmonds, 153 Kan. 668, 113 P. 2d 81.) The error, if any, on this point standing alone is conceded by counsel for the appellant to be no more than a procedural technicality.
Upon all the facts and circumstances presented by the record in the instant appeal it does not affirmatively appear that technical errors or irregularities have substantially affected the rights of the City of Wichita. Upon the whole record substantial justice has been done by the judgment of the trial court dismissing the action as moot. (G. S. 1949, 60-3317.)
The judgment of the trial court dismissing the action is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
In a proceeding commenced to probate the will of a testatrix the probate court, in its journal entry of final settlement, allowed fees to the administrator for his services and for the services of his attorney. Appeal was taken therefrom to the district court by the present appellees and that court modified and substantially reduced such fees, from which order the administrator perfected this appeal.
A question vital herein relates to the jurisdiction of the trial court on the appeal from the probate court and in determining that question we must keep in mind the following salient portions of the record.
The will of Nellie Cramer dated March 10, 1953, contains two paragraphs pertinent to the questions before us. They read:
“Second: I hereby give, devise and bequeath all the rest and residue of my property of every kind and character, and wherever situated, unto my brother, Fred S. Cramer, absolutely and in fee simple.
“Third. In the event of the death of my brother, Fred S. Cramer, prior' to my death, or in the event of the death of my said brother and myself at or about the same time as a result of the same accident or casualty, then and in any of said events, I hereby give, bequeath and devise all of my property, both real and personal to the Division of Foreign Missions and Division of Home Missions and Church Extension of The Methodist Church.”
On May 13,1954, Nellie died leaving an estate consisting of some personal property and a one-half interest in six parcels of real property in the city of Wichita. At the time of Nellie’s death, her brother Fred S. Cramer, in his own right owned the other one-half interest in those same parcels.
Fred survived Nellie and on November 24, 1954, he was appointed and qualified as executor o£ her estate. Morris H. Cundiff was appointed and acted as attorney for Nellie’s estate and for the executor thereof. In February, 1955, Otto J. Koerner, appellant, was appointed guardian for the estate of Fred S. Cramer, then an incompetent person, and in his search to determine the ownership of the properties in Fred’s estate, he learned of Nellie’s one-half interest in the real property in which Fred owned the other one-half interest. He also learned that Morris Cundiff was attorney for Fred as executor of Nellie’s estate. Koerner contacted Cundiff and Fred was thereafter removed as executor of Nellie’s estate. (It should be noted that while Koerner and Cundiff are both attorneys at law they are not associated in the practice.) On March 22, 1955, Koerner was appointed and qualified as administrator de bonis non cum testamento annexo with a bond of $10,000.
The Division of Foreign Missions and Division of Home Missions and Church Extension of The Methodist Church, as specifically named in the will, notified Koerner by letter on January 25, 1956, that service of all proceedings requiring notice was to be made on their counsel. No showing of any change in identification of the religious corporations was made by pleading or proof.
In order to pay some fees, bills, and expenses in the administration of Nellie’s estate, the probate court ordered two of the properties sold, which left four remaining parcels of real property. On June 10, 1955, Fred died and Koerner was appointed administrator cum testamento annexo of his estate.
On February 25, 1957, in its order for partial distribution, the probate court directed Koerner, as administrator of Nellie’s estate, to deliver the four remaining parcels of real property to Koerner, as administrator of Fred’s estate. Again the Division of Foreign Missions and Division of Home Missions and Church Extension of the Methodist Church as described in Nellie’s will, waived service of notice, entered their appearances, and approved the order for partial distribution.
On June 17, 1957, the probate court entered its journal entry of final settlement in Nellie’s estate and therein made the following pertinent findings:
“The court further finds that the names and residences of the heirs, dev-isees and legatees who are entitled to the estate under the said will are as follows:
“Fred S. Cramer, her brother, now deceased, but living at the time of the death of this decedent, and now vested in the estate of Fred S. Cramer, deceased, being administered by Otto J. Koemer, administrator cum testamento annexo.
“The court further finds that under the will of Nellie M. Cramer, deceased, Fred S. Cramer is the devisee and legatee of all of the residue of the estate, real and personal.”
The probate court ordered the four remaining parcels of realty and all other property transferred to Koerner as administrator of Fred’s estate. In addition to allowance of appraisers’ fees, publication and court costs, Koerner, as administrator of Nellie’s estate, was allowed $4,500 as his fee together with a $1,500 fee for his attorney, Morris Cundiff. This journal entry was approved by counsel for the “Division of Foreign Missions and Division of Home Missions and Church Extension of the Methodist Church” which is the same identity that appeared in Nellie’s will.
A notice of appeal from the allowance to the administrator of a fee of $4,500 and an attorney’s fee of $1,500 by the probate court’s journal entry was filed by “The Division of National Missions of the Board of Missions of the Methodist Church,” and “The Division of World Missions of the Board of Missions of the Methodist Church,” which is the first appearance of these identities with no showing in the record as to who these parties were.
By stipulation the record of the probate court proceedings in Nellie’s estate was introduced into the record of the trial on appeal in the district court and the evidence of Koemer, together with that of several other witnesses, regarding the services of Koerner and his attorney and the reasonableness of fees for those services, was introduced. At the conclusion of the trial in the district court, suggested findings of fact and conclusions of law were submitted by each party and the trial court entered its journal entry containing these pertinent findings of fact:
“4. That the Division of Foreign Missions referred to in paragraph numbered Third in the last will and testament of Nellie M. Cramer, is one and the same as ‘Board of Foreign Missions of the Methodist Church, whose name has now been changed to Division of World Missions of the Board of Missions of the Methodist Church,’ and that Division of Home Missions and Church Extension of the Methodist Church is one and the same as ‘Division of Home Missions and Church Extension of the Methodist Church, whose name is now changed to Division of National Missions of the Board of Missions of the Methodist Church.
“12. That the residuary legatees and devisees, Division of World Missions of the Board of Missions of the Methodist Church and Division of National Missions of the Board of Missions of the Methodist Church filed a petition on the 13th day of February, 1957, in the Probate Court of Sedgwick County, Kansas, requested the administrator d. b. n. c. t. a. to show cause why said estate should not be closed. That said petition was set to be heard on the 25th day of February, 1957.
“13. That order of partial distribution, dated the 25th day of February, 1957, was entered in said estate, assigning all of the real estate which remained in the estate as of said date to Division of National Missions of the Board of Missions of the Methodist Church and Division of World Missions of the Board of Missions of the Methodist Church.
“16. That an appeal from the award of administrator fee and attorney fee of the probate court of Sedgwick County, Kansas, entered on the 27th day of June, 1957, was perfected to the District Court of Sedgwick County, Kansas.
“17. That the just and reasonable value of the services of the administrator d. b. n. c. t. a. of the estate of Nellie M. Cramer, deceased, is an amount in the sum of $950.00.
“18. That a just and reasonable fee for the services of Morris M. Cundiff, as attorney for Otto J. Koerner, administrator, d. b. n. c. t. a. is an amount in the sum of $950.00, and that said administrator should be allowed said amount as and for attorney fees for said attorney.”
Conclusion of law No. 1 reads:
“The Court has jurisdiction over the parties and the subject matter in this cause of action.”
Koerner filed motions for new trial and to strike the trial court’s findings of fact and conclusions of law, which were overruled. Koerner then perfected his timely appeal from the trial court’s findings and conclusions, orders, decisions, and judgments and from the orders overruling motions to strike and for new trial, and, in addition, the record before us indicates that Koerner certified that,
“. . . there is no evidence offered or admitted in the Probate Court, or in the District Court in the trial of the appeal from the Probate Court, that the appellants (appellees herein), namely; The Division of National Missions of .the Board of Missions of the Methodist Church and The Division of World Missions of the Board of Missions of the Methodist Church, were or are one and the same, or identical with, Division of Foreign Missions and Division of Home Missions and Church Extension of the Methodist Church as named in the Last Will and Testament of Nellie M. Cramer, deceased, or in the Last Will and Testament of Fred S. Cramer, deceased, as determined by the Probate Court to be the legatees and devisees of Fred S. Cramer, deceased, under the provisions of his Last Will and Testament.”
The foregoing certification was not denied, modified, or qualified in any manner by appellees herein. (We are not determining in this opinion any part of the appeal in case No. 41,120, In re Estate of Cramer, 183 Kan. 816, 332 P. 2d 560, this day decided.)
On appeal in this court appellees for the first time attach four private statutes of the state of New York which disclose the change of the corporate names and identities of the Division of Foreign Missions and Division of Home Missions and Church Extension of The Methodist Church, as described in Nellies will, to that of the corporate names and identities as they appeared in the notice of appeal from the probate court to the district court and as they appeared in the appeal to this court.
Our first concern is whether the record shows that the parties seeking to appeal from the probate court’s order of final settlement in Nellie’s estate were proper parties for that purpose. Appellees contend that they were aggrieved persons and as such were proper parties while Koerner claims that nothing was pleaded or proved to establish their identities so that they could come within the category of aggrieved persons.
The applicable provision of our probate code (G. S. 1949, 59-2404) in part reads:
“Such appeal may be taken by any person aggrieved within thirty days after the making of such order, judgment, decree, or decision: Provided, . . . The right of appeal shall not he denied nor abridged for failure of the party appealing to present his defenses in the probate court or to appear therein.”
Koerner cites In re Estate of Johnson, 164 Kan. 45, 187 P. 2d 376, where Alice Knight Kirkpatrick, daughter by a former marriage of Sarah A. Johnson, the widow of a deceased testator, who named his widow as a beneficiary in his will, attempted an appeal from the probate court to the district court from the order of final settlement of the testator’s estate. At the time of the attempted appeal Sarah A. Johnson had died, but her will making Alice a beneficiary therein had not been offered for probate nor had a personal representative been appointed. Since Alice was not entitled to object to the order of final settlement of testator’s estate in the probate court and therefore she was not entitled to appeal from such order to the district court, it can readily be seen Alice was not a proper party to take the appeal as an aggrieved person, or otherwise, and rules of law applicable there are not applicable here.
On the other hand, appellees call our attention to In re Estate of James, 168 Kan. 165, 211 P. 2d 123, where, upon the death of the executor named in testator s will, a dispute arose between heirs at law or next of kin of the testator and the legatees under his will over the appointment of a successor administrator de bonis non cum testamento annexo. As was substantially held in that case, such parties were interested and aggrieved persons. Another case is In re Estate of Demoret, 169 Kan. 171, 218 P. 2d 225. There an appeal by the executor from the probate court to the district court was dismissed on jurisdictional grounds because proper notice required by G. S. 1949, 59-2405 had not been given. Part of the testatrix’s property sought to be inventoried, as here, was determined by the probate court to be trust property. It would be impossible to say that the executor under those circumstances was not an aggrieved person. Appellees also cite In re Estate of Case, 180 Kan. 53, 299 P. 2d 589, wherein the state of Kansas petitioned for administration of the estate of a deceased intestate alleging that such intestate bachelor left an estate but his heirs were unknown, or that he had no known heirs, and that the state of Kansas was a person aggrieved when a decision adverse to its interests was rendered. That case, while interesting, is neither analogous to nor conclusive of our case. We have no trouble in agreeing with the proposition that in these three instances the appealing parties were “persons aggrieved.”
Koemer raises a very germane element when he argues that the appellees here neither pleaded nor proved their identities (Memorial Home v. Collins Estate, 97 Kan. 87, 88, 154 Pac. 274) so as to establish themselves as “persons aggrieved” and to determine that feature we must turn to our controlling statutes and decisions. G. S. 1949, 60-2878 provides:
“Every court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States.”
G. S. 1949, 60-2880 provides:
“The determination of such laws shall be made by the court . . . and shall be reviewable.”
G. S. 1949, 60-744 provides:
“In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title, and the day of its approval, and the court shall thereupon take judicial notice thereof.”
In A. T. & Santa Fe Rld. Co. v. Blackshire, 10 Kan. 477, the court held:
“Courts do not take judicial notice of a private act of the legislature. It must be proved or pleaded, or no attention will be paid to its existence.” (Syl. f 2.)
In the same opinion the court stated:
“It is sufficient ... to say that the act incorporating the A. T. & S. F. Eld. Co. is a private act, and, as it was neither pleaded nor proved the court was under no obligation to notice its existence, or refer to its provisions. Courts take judicial notice of the public statutes of their own state, and these peed to be neither pleaded nor proved. But the rule is otherwise with the private laws. They are matters of proof. In pleading them, or a right derived from them, it is sufficient under the code to refer to them by their title and the dates of their approval, and thereupon the courts take judicial notice of them: Code § 124. Nothing of this kind was done in this case.” (p. 487.).
The above case is still the law in respect to our courts talcing judicial notice of the private statutes of Kansas and it would be unwise and injudicious to say that courts of Kansas must take judicial notice of private acts of other jurisdictions, irrespective of whether they are pleaded or proved by reference to such statutes by title and the dates of their approval, and in the same breath say that Kansas courts cannot consider such private statutes of Kansas unless they are so pleaded or proved. This would lead to unlimited confusion and indefiniteness in titles of real property in the state of Kansas.
In view of Koerner’s certificate as to appellees’ failure to offer proof of their identities, previously set out herein, they could not be persons aggrieved whereby they could maintain their attempted appeal from the probate court to the district court. Neither the record in the probate court nor the record in the district court makes it possible to determine who the appellees were or what their position was at any time during the proceedings in those courts. As a result and because of their failure in the district court to sustain the required burden to establish affirmatively by competent proof their identities and interests in the estate so as to constitute them persons aggrieved within the meaning of G. S. 1949, 59-2404, and where they rely upon private statutes of New York which were neither pleaded nor proved and there is nothing in the record to show their identities or interests, they were not persons aggrieved and were not entitled to maintain the appeal. The district court obtained no jurisdiction of the purported appeal and it should have been dismissed.
Appellees have not helped themselves by presenting the private acts of the state of New York for the first time in the appeal to this court because we do not consider matters which have not previously been presented to the trial court. (Emerson v. Peters, 110 Kan. 87, 202 Pac. 601.)
The judgment of the trial court is reversed with directions to dismiss the appeal from the probate court. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an original action in quo warranto brought by the attorney general against the director of Alcoholic Beverage Control to secure a determination of the invalidity of regulation 14-6-6 promulgated by tire director and to oust the director from enforcing the regulation. The regulation permits the director to authorize licensed alcoholic beverage distributors to bottle, label and sell alcoholic liquors purchased in bulk under labels owned by them. The present director, W. E. Murphy, has been substituted as defendant in place of Charles W. Pratt, the director holding office when the action was commenced. By leave of this court, two licensed distributors owning private labels, Famous Brands Distributors, Inc., and D. A. Winters (hereinafter called intervenors), were permitted to intervene on the side of the director. The director, while appearing by counsel, left the defense entirely in the hands of the intervenors.
This court appointed the Honorable Byron M. Gray as commissioner to hear evidence and make suggested findings of fact and conclusions of law. The commissioner, in his report, found the regulation in question valid and recommended that the writ be denied.
The pertinent portion of regulation 14-6-6, promulgated by the director in 1954 and approved by the Alcoholic Beverage Control Board of Review, provides:
“A licensed distributor may be authorized to bottle, label and sell to licensed retailers, under labels owned by the distributor, alcoholic liquors . . . purchased in bulk . . .” (Emphasis added.)
Generally speaking, there are three different levels of activity in the liquor industry: manufacturing (including distilling and rectifying), distribution, and retail sale to the ultimate consumer. It was stipulated by the parties that at the time the Kansas Liquor Control Act was enacted in 1949, manufacturers offered alcoholic liquor for sale to distributors under two basic methods; one, as case goods (liquor bottled, labeled and cased by the manufacturer), and, two, in bulk. Bulk sales might .occur at different stages in the aging process and the label ultimately affixed to the bottled product might be the manufacturer’s label or the distributor’s private label. Distributors might purchase (1) liquor already warehoused, aged, bottled, sealed and labeled by the manufacturer; (2) liquor in bulk at the moment the freshly made or distilled product was run, with the liquor then warehoused, aged and bottled by the manufacturer with the manufacturers label; (3) liquor in bulk already warehoused and aged and suitable for immediate bottling, for bottling by die manufacturer under the manufacturer’s label; (4) liquor in bulk at the moment the freshly made or distilled product was run with the liquor then warehoused and aged by the manufacturer and ultimately bottled by the manufacturer or another distiller under the distributors private label; (5) liquor in bulk already warehoused and aged and suitable for immediate bottling, for bottling by the manufacturer or another distiller under a private label owned or controlled by the distributor. The eight major national manufacturers, however, do not permit bottling of their products except under their own labels. Wine was purchased either bottled and labeled by the manufacturer under his own label; in bulk for bottling by the manufacturer under the manufacturer’s label or under the distributor’s private label; or in bulk for bottling by the distributor under his private label or under the manufacturer’s label.
Notwithstanding the industry practice of labeling liquor purchased in bulk with the distributor’s private label, plaintiff contends that the regulation which purports to authorize such practice conflicts with the intent of the Kansas Liquor Control Act, G. S. 1949, 41-101, et seq., and with specific sections thereof. Three major arguments are advanced in support of this contention. All reference to the act is directed to G. S. 1949 unless otherwise noted.
Plaintiff first maintains that the act does not specifically provide that a distributor may label his wares with a private label and hence it was the intention of the legislature to withhold the privilege. It argued that 41-104 forbids the manufacture, bottling or sale of alcoholic liquor except as specifically provided in the act. Plaintiff concedes, however, that 41-306 authorizes distributors to purchase liquor in bulk and bottle it before resale, and that 41-210 and 41-211 empower the director to promulgate rules and regulations “necessary to carry out the intent and purposes of this act” including regulations determining the nature of and the representations to be shown upon the labels, but maintains that these sections are silent with respect to label otmership, and, therefore, distributors purchasing liquor in bulk are limited to bottling the same under the manufacturer’s label only. We cannot accept this contention. The pertinent portions of the statute cited by plaintiff are as follows:
“41-104. No person shall manufacture, bottle, blend, sell, barter, transport, deliver, furnish or possess any alcoholic liquor for beverage purposes, except as specifically provided in this act. . . (Emphasis supplied.)
“41-210. The director shall adopt and promulgate such rules and regulations as shall be necessary to carry out the intent and purposes of this act. . . . It is intended by this grant of the power to adopt rules and regulations, that the director shall be clothed with broad discretionary powers to govern the traffic in alcoholic liquors, and to enforce strictly all the provisions of this act. . . .”
“41-211. The rules and regulations established by the director, among other things, shall include regulations . : . (2) determining the nature of and the representations to be shown upon the labels attached to the containers . . . (9) in the case of manufacturers and distributors of alcoholic liquors, requiring the labels attached to all containers of such liquors, which are intended for sale in this state to set forth, among other things, in plain legible print in the English language, the name and kind of alcoholic liquors contained therein, together with their alcoholic content, and if a blended product (except wine) to so state, except that the director, if he deems it unnecessary to show the alcoholic content of beer on labels of containers of beer, shall not be required to make a regulation requiring it to be shown thereon. . . .”
“41-306. An alcoholic liquor distributor’s license . . . shall permit the purchase of such alcoholic liquors in barrels, casks or other bulk containers and the bottling of such alcoholic liquors before resale thereof, but all bottles or containers so filled shall be sealed, labeled, stamped, and otherwise made to comply with all provisions, rules and regulations governing manufacturers in the preparation and bottling of alcoholic liquors. . . .”
At the outset plaintiff assumes that the broad prohibition of 41-104 extends to the sale of any liquor by a distributor under his own private label. The argument necessarily implies that a specific exception to this prohibition is found in other sections of the act for the sale of liquor in containers labeled by distributors with manufacturers’ labels, but that no exception is found which permits label ing under a distributor’s private label. In fact, plaintiff makes the broad assertion that no such exception exists. Assuming, arguendo, that 41-104 prohibits a distributor from labeling containers with his own private labels, we cannot say that 41-306, which authorizes a distributor to purchase liquor in bulk and bottle, seal, label and stamp the same before resale, applies only to labeling with a manufacturer’s label. Liquor purchased in bulk and bottled by a distributor must be labeled, and the statute, by necessary implication, gives distributors this right. We find nothing in 41-306 which indicates the legislature intended to limit the right to label only with a manufacturer’s label.
In cases involving statutory construction this court has often stated the rule that in determining legislative intent the court must look to the situation and existing conditions at the time of enactment. (State v. Kelly, 71 Kan. 811, 81 Pac. 450; Ruppenthal v. Maag, 153 Kan. 588, 113 P. 2d 101; Perkins v. Lenora Rural High School, 171 Kan. 727, 237 P. 2d 228.) In Parsons v. City of Birmingham, 223 Ala. 610, 137 So. 665, the court declared:
“In ascertaining the meaning of constitutional and statutory terms, we should construe them in the light of accepted and well-known trade customs. . . .” (p. 611.)
The parties stipulated that at the time of passage of the Kansas act it was customary in the liquor industry for manufacturers to offer their products to distributors in bulk for bottling and labeling either under the manufacturer’s label or under the distributor’s private label. In determining the intention of the legislature in providing that distributors might label liquor bought in bulk, we must assume that it was aware of this practice and that in granting to distributors the broad right to label, no qualification was intended. The fact that labeling under distributors’ private labels was a “minority” practice cannot affect this conclusion.
Next, plaintiff argues that regulation 14-6-6 is repugnant to section 41-1101, and therefore section 41-306 must be interpreted as countenancing the bottling of bulk liquors only under the manufacturer’s label, to bring it in harmony with 41-1101.
Pertinent portions of 41-1101 are as follows:
“(1) It shall be unlawful for any distributor licensed under this act to purchase any alcoholic liquor from any manufacturer . . . unless such manufacturer . . . shall file with the director a written statement . . . in which he agrees that he will sell any of the brands or kinds of alcoholic liquor manufactured or distributed by him to any distributor licensed in this state and that such sales will be made at the same current price and without dis crimination and that price lists showing the current prices will be filed by him in the office of the director ... if any manufacturer . . . shall not have a sufficient supply of alcoholic liquor of any of the brands or kinds which he manufacturers or distributes to supply the demands of all licensed distributors, he may ration such alcoholic liquor and apportion the available supply among the licensed distributors purchasing or attempting to purchase the same. ...”
“(2) It shall be unlawful for any retailer licensed under this act to purchase any alcoholic liquor from any distributor licensed under this act unless such distributor shall file with the director a written statement ... in which he agrees that he will sell any of the brands or kinds of alcoholic liquor distributed by him to any retailer licensed in this state and that such sales will be made to all such licensed retailers at the same current price and without discrimination ... if any licensed distributor making any such agreement shall not have a sufficient supply of alcoholic liquor of any of the brands or kinds which he distributes to supply the demands of all licensed retailers he may ration such alcoholic liquor and apportion the available supply among the licensed retailers purchasing or attempting to purchase the same. . . .”
Plaintiff asserts that the purpose of 41-1101 is to outlaw exclusive franchises by Kansas distributors, to insure that each distributor is able to purchase and handle every brand or kind of liquor which every other distributor is able to purchase and handle, so that all distributors can operate upon terms of absolute equality. Plaintiff points to the stipulation of facts where it is admitted that to allow a disributor to use a private label enables him to sell a brand which other distributors are unable to acquire and handle, unless the distributor possessing the private label is willing to sell, and then only at the price that distributor sets. It is argued that to permit a distributor to use a private label in effect grants him an exclusive franchise, a competitive advantage which 41-1101 (1) was intended to prohibit.
We are not persuaded. 41-1101 (1) merely grants to distributors equal rights of purchase from manufacturers and protects distributors against discrimination by manufacturers, while 41-1101 (2) protects retailers against discrimination by distributors. Under the challenged regulation distributors retain their equal right to purchase from manufacturers. The statute provides that each distributor may purchase the same brands or kinds of liquor at the same prices and under the same conditions as every other distributor. The use of the words “brands or kinds” in the statute clearly indicates that the legislature intended the nondiscriminatory sale provision to cover both sale of case goods and sale in bulk. A manufacturer who offers his bulk product for sale to one distributor for bottling under a private label must offer the same kind of liquor, i. e., the bulk product, to every other distributor at the same price and under the same conditions. Conversely, every distributor may purchase the same kind of liquor from that manufacturer as is purchased by the distributor who bottles under a private label. 41-1101 (1) does not attempt to control the subsequent affixing of brand labels by distributors nor does it provide for competitive equality among distributors after the initial purchase on equal terms from the manufacturer. As between themselves and the retailer, each distributor must scrupulously avoid discrimination; but as between themselves, the law is silent. As long as he avoids discrimination against retailers, each distributor apparently is free to compete with all distributors in whatever way he can, subject, of course, to the valid regulations of the director. We find no basis for die argument that competition among distributors after their initial purchase from manufacturers is repugnant to the purpose of the law to prevent manufacturers from discriminating against distributors.
Finally, plaintiff maintains that private labels enable distributors to secure tie-in sales which conflict with the policy of the act and are specifically enjoined by other valid regulations of the director. Regulation 14-4-8 (4) (d) provides that distributors must sell at list prices any quantities ordered in lots of one or more cases, and regulation 14-4-18 provides that distributors may absorb transportation costs only on orders from retailers exceeding 100 pounds (three cases). According to the stipulation of facts, Kansas retailers generally purchase a specific brand from a distributor in less than case lots and then order quantities of other brands from the same distributor to fill out a case or three cases. The testimony introduced before the commissioner indicated that distributors owning private labels use them to get extra business on other brands. If a distributor successfully builds up consumer demand for his private label, the retailer will re-order that brand from him. Supposedly, the retailer will not buy a full case of the private label, but will buy enough of other nationally advertised brands, carried in stock by other distributors, to fill up a case or .three cases. Plaintiff claims that the actual effect of the use of private labels is to force retailers to buy from the private label distributor other brands of liquor they would normally buy elsewhere, thus a tie-in device proscribed by regulation 14-2-10 is made possible. Regulation 14-2-10 reads:
“Tie in sales prohibited. No licensee of any cla'ss shall, as a condition for the sale or delivery of alcoholic liquor to any other licensee or to a customer, require that such other licensee or customer purchase or contract to purchase alcoholic liquor of another form, quantity or brand in addition to or partially in lieu of that specifically ordered or desired by such other licensee or customer. No licensee of any class shall sell or deliver alcoholic liquor in any form or quantity or of any brand to another licensee or to a customer, under any arrangement, agreement or understanding, direct or implied, that such sale or delivery will be made only if such other licensee or customer also buys or accepts delivery of a quantity of alcoholic liquor of another form or brand.” (Emphasis supplied.)
Plaintiff’s point is not well taken. The essence of a tie-in device, as recognized by regulation 14-2-10, is the conditioning of the sale of one product or quantity desired by the purchaser upon the purchase of another product or quantity and the refusal to sell the desired product unless the other product is also purchased. No claim is made that distributors of private label products condition the sale of these goods on the purchase of other nationally advertised brands. If a retailer chooses to purchase quantities of nationally advertised brands to fill out a case or three cases, and voluntarily takes advantage of case-lot prices or the saving on transportation costs, regulation 14-2-10 is not violated by such purchases. There is nothing in this record to indicate compulsion on the part of private label distributors. The fact that distributors depend on that voluntary action by retailers to secure profit on handling of private label merchandise does not prima facie make the device a tie in.
We have examined plaintiff’s other contentions and find them substantially without merit.
We find nothing in this record which indicates that regulation 14-6-6 is not authorized by the Kansas Liquor Control Act or is in conflict with any section of that act, or any other valid regulation of the director. Judgment must necessarily be entered for the defendant. The writ prayed for is denied. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an action to recover damages for injuries sustained in a motor vehicle collision; The appeal is from an order sustaining the plaintiff’s motion to strike a portion of the defendants’ answer.
Our review of the facts will be limited strictly to matters essential to a disposition of the single appellate issue involved.
On May 4, 1956, plaintiff filed a petition in the district court of Butler county, setting forth the status of the parties and alleging the occurrence of a motor vehicle collision on June 17, 1955, in which he sustained injuries and for which he claimed damages.
The defendants first challenged the petition by a motion to strike which was ' overruled. Thereafter they filed separate demurrers to such' pleading on the ground it failed to state facts sufficient to constitute a cause of action. Subsequently by its order, dated August 1,1956, the trial court sustained such demurrers and granted plaintiff ten days in which to amend his petition. No appeal or cross-appeal has ever been taken from this order.
Following the order sustaining the demurrers plaintiff took no action whatsoever until March 15, 1957, when, with consent of the defendants, he was granted leave to file an amended petition. Thereafter, and on March 19, 1957, he filed an amended petition in his own name, such pleading containing no allegations of any interest or right of subrogation on behalf of his employer at the time of the collision or its workmen’s compensation insurance carrier.
Defendants first attacked the amended petition by a motion asking that the plaintiff be required to set forth the interest of his insurance carrier. Later, and with the consent of the court, this motion was withdrawn and defendants were given twenty days in which to answer or otherwise plead. Thereafter, and within the time fixed by the court, defendants filed a verified answer. For our purpose it may be stated such pleading, among others, pleaded the following defense:
“Fifth: Defendants allege that at the time of the accident, plaintiff was employed by the W. J. Small Division of the Archer-Daniels-Midland Company. Plaintiff and his employer were under the Workmen’s Compensation Act of the state of Kansas. The Fidelity and Casualty Company of New York was die Workmen’s Compensation insurance carrier for plaintiff and his employer. It paid benefits to plaintiff under the Workmen’s Compensation Act and its policy. Any pretended cause of action of plaintiff was assigned, by operation of law, to the said Fidelity and Casualty Company of New York one year after the date of accident. The said insurance carrier is the real party in interest and the only party autíiorized to maintain this action. That the action is barred by the statute of limitations.”
Thereupon, without stating the ground therefore but obviously on the basis it constituted no defense to his amended petition, plaintiff filed a motion to strike ‘paragraph labeled Fifth” from the defendants’ answer. The court heard arguments on the motion to strike during which one of plaintiff’s counsel, in clarifying plaintiff’s position respecting such motion, made the following statement:
“Let me remind the court at all times, this is not an action brought by the insurance company for the benefit of the plaintiff; it is an action brought by the plaintiff, claimant in the Comp case.”
At the conclusion of arguments on such motion the court took all questions raised by the parties under advisement and thereafter rendered its decision, wherein it sustained plaintiff’s motion, struck the fifth paragraph of the answer and gave defendants time in which to answer or otherwise plead to the amended petition. Thereupon defendants perfected the instant appeal.
From what has been related up to this point it is clear this is a common law action to recover damages from third parties which, in any event, could be commenced only within two years from the date the cause of action accrued by the person entitled to maintain it. (G. S. 1949, 60-306, Third.) Ordinarily the person sustaining an injury is the person entitled to maintain the action throughout the limitation period. However, as will be presently noted, this is not always true.
Under the provisions of G. S. 1957 Supp., 44-504, a part of the Workmen’s Compensation Act of this state, when an injury for which compensation is payable under such Act is caused under circumstances creating a legal liability against someone other than the employer to pay damages, an injured workman has the right to receive compensation .under the Act and to pursue his remedy by proper action in a court of competent jurisdiction against the negli gent third party. However, under the terms of this section of the statute, such- action if prosecuted by the workman must be brought within one year from the date of the injury and failure on his part to bring it within such period operates as an assignment to the employer of any cause of action in tort which the workman may have against the third party, and the employer may enforce the same in his own name or in the name of the workman. (Erb v. Atchison, T. & S. F. Rly. Co., 180 Kan. 60, 66, 299 P. 2d 35.) Indeed, under the provisions of the same Act (G. S. 1949, 44-532) we have held that if the workman fails to file the action within one year, and the employer likewise fails to bring it the insurer may do so before it becomes barred in his name or in the name of the workman for their benefit as their interest may appear. (Wise v. Morgan-Mack Motor Co., 173 Kan. 372, 377, 378, 246 P. 2d 308.)
Since, in passing on the propriety of the ruling on his motion to strike the Fifth paragraph of the answer, we must accept all factual statements set forth in that pleading as true it is equally clear from what has been heretofore stated that appellee, having elected to take compensation from his employer and at the same time maintain his common law action, is subject to and governed by the provisions of G. S. 1957 Supp., 44-504. This, under our decisions construing such section of the statute, means, among other things, that one who comes within the purview of its terms (1) must bring a proper action within one year or his right to do so will be barred and (2) that, in the event of failure to bring the action within that period of time, allegations of the kind and character here stricken from the answer constitute a proper defense and bar his right to maintain the action.
See Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444, where it is said and held:
“Defendant contends the court erred in striking the aforementioned quoted portion from its answer. There is nothing in the original petition to indicate that plaintiff’s action was brought by his employer in his name. So far as the record disclosed, it was a suit by plaintiff in his individual capacity against the defendant. There was no allegation in the petition that plaintiff received any compensation or was under tire Workmen’s Compensation Act at the time of the injury. G. S. 1949, 60-710, provides that a defendant may set forth in his answer any new matter constituting a defense or right to relief concerning the subject of the action. This defendant did by setting forth that plaintiff at the time of the injury was an employee of Shimer; had been paid compensation, furnished hospitalization and medical attention under the Workmen’s Compensation Act; that more than one year had expired prior to the filing of the action, and that the same was barred by the limitation provided in section 44-504. It is obvious that if the defensive matter was proved, the plaintiff would be barred from maintaining the action, and the court erred in striking the quoted portion from the answer.” (pp. 87, 88.)
See, also, Erb v. Atchison, T. & S. F. Rly. Co., supra; Whitaker v. Douglas, 179 Kan. 64, 292 P. 2d 688.
Mindful that the amended petition was filed considerably more than one year after the involved injury, for and on behalf of ap-pellee only, it should be pointed out at the outset that, under the decisions to which we have heretofore referred, the allegations of the Fifth paragraph of the answer set forth a good and sufficient defense to the amended petition standing alone. In other words, such amended pleading must relate back to the original petition in order to avoid the bar of the statute (44-504). Appellee strenuously argues that it does. The difficulty with all arguments advanced by him on this point is that it has been squarely decided against him in one of our decisions which has never been set aside or disapproved and is therefore the settled law of this state. See Clark v. Wilson, 149 Kan. 660, 88 P. 2d 1070, to which we adhere, where it is held:
“Where a demurrer to a petition is sustained on the ground that the petition does not state a cause of action, the filing of such petition does not arrest the running of the statute of limitations, and the filing of an amended petition does not relate back to tire date of the filing of the original petition so as to deprive the defendant of the defense of the statute.” (Syl.)
For decisions where the rule of Clark v. Wilson, supra, is quoted verbatim, see Turner v. Jarboe, 151 Kan. 587, 593, 100 P. 2d 675; Waddell v. Woods, 160 Kan. 481, 487, 163 P. 2d 348. For others where that decision is cited with approval see Springer v. Roberts, 151 Kan. 971, 977, 101 P. 2d 908; Roberts v. Setty, 154 Kan. 505, 506, 119 P. 2d 539; Bortko v. Polish National Alliance, 154 Kan. 533, 536, 119 P. 2d 536.
Moeller v. Moeller, 175 Kan. 848, 267 P. 2d 536, relied on by ap-pellee as here precluding application of the rule just quoted is clearly distinguishable. There no demurrer was ever filed to the original petition and this court was not confronted with an adjudication, unappealed from, holding such pleading failed to state a cause of action.
In attempting to avoid the force and effect of the conclusion heretofore announced appellee insists that in Clark v. Wilson, supra, there is no showing that the original petition stated a cause of action. The answer to this contention is to be found in the opinion of that case where it is said that since the general demurrer to the original petition was sustained on the ground it did not state a cause of action, and no appeal was taken from that ruling, the court must treat the demurrer as properly sustained. And so here, whatever the fact may be, at the time the trial court sustained the motion to strike the Fifth paragraph of the appellants’ answer, it had been adjudicated that appellee had not pleaded a cause of action against appellants when the statute of limitations (G. S. 1957 Supp., 44-504) had run against his claim. Unappealed from that ruling became and remains the law of the case and the only ruling here involved, as we have previously indicated, is the one sustaining the motion to strike the Fifth paragraph from the answer as a defense to the amended petition.
We find nothing in contentions advanced by appellee warranting a conclusion that appellants’ action in consenting to the filing of appellee’s belated amended petition constituted a waiver of appellants’ right to thereafter make any and all legal defense that might be available to them by answer and for that reason will not labor arguments advanced by appellee respecting such contentions.
What has been heretofore stated and held compels the conclusion that, in the face of the record before us, the trial court’s action in striking the Fifth paragraph of the involved answer resulted in depriving appellants of a meritorious defense. Therefore its order with respect thereto is reversed with directions to set it aside and proceed in accord with the views expressed in this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
Defendants were found guilty by a jury of violating the provisions of what now appears as G. S. 1957 Supp., 75-427. Each was ordered to pay a fine of $5.00 and the costs of the action, and this appeal followed.
Due to the nature of the case, it will be necessary to set out or summarize the provisions of Chapter 397, Laws of 1953, relating to the registration of names and insignia of certain organizations, now appearing as G. S. 1957 Supp., 75-421 to 427, inclusive. Unless otherwise indicated, all references are to G. S. 1957 Supp.
75-421 provides:
“Any association, lodge, order, fraternal society, beneficial association, or fraternal and beneficial society or association, historical, military or veterans’ organization, labor union, foundation, federation, or any other society, organization or association, degree, branch, subordinate lodge or auxiliary thereof, whether incorporated or unincorporated, may register in the office of the secretary of state, a facsimile, duplicate or description of its name, badge, button, decoration, charm, emblem, rosette or other insignia, and may by reregistration, alter or cancel the same.”
75-422 provides:
“Application for such registration shall be made by the chief officer or officers of said association, lodge, order, fraternal society, beneficial association or fraternal and beneficial society or association, historical, military or veterans’ organization, labor union, foundation, federation, or any other society, organization or association, degree, branch, subordinate lodge or auxiliary thereof, upon blanks to be provided by the secretary of state, and such registration shall be for the use, benefit and on behalf of all associations, degrees, branches, subordinate lodges and auxiliaries of said association, lodge, order, fraternal society, beneficial association, or fraternal and beneficial society or association, historical, military or veterans' organization, labor union, foundation, federation, or any other society, organization or association, degree, branch, subordinate lodge or auxiliary thereof and the individual members and those who thereafter become members thereof throughout the state of Kansas.”
75-423 provides that the secretary of state shall keep a properly indexed record of the registrations provided for, which record shall also show any altered or canceled registration.
75-424 provides:
“No registration shall be granted to any association, lodge, order, fraternal society, beneficial association, or fraternal and beneficial society or association, historical, military, or veterans’ organization, labor union, foundation, federation, or any other society, organization or association, degree, branch, subordinate lodge or auxiliary thereof, having a name, badge, button, decoration, charm, emblem, rosette or other insignia similar to, imitating or so nearly resembling as to be calculated to deceive, any other name, badge, button, decoration, charm, emblem, rosette or other insignia whatsoever, already registered pursuant to the provisions of this act: Provided, That nothing contained in this act shall deny the use of any emblem, name, badge, button, decoration, charm, rosette or other insignia to any organization which has been peaceably using the same for a period of twenty-five years or more prior to the date of this enactment.”
75-425 provides that upon granting registration the secretary of state shall issue his certificate to the petitioners showing that a search of his records fails to disclose any conflict between the name, badge, button, decoration, charm, emblem, rosette or other insignia proposed to be registered, and any other name, badge, button, decoration, charm, emblem, rosette or other insignia registered pursuant thereto.
75-426 provides for the fee to be charged by the secretary of state for each registration made pursuant to the act.
75-427 provides:
“Any person who shall willfully wear, exhibit, display, or use for any purpose, the badge, button, decoration, charm, emblem, rosette or other insignia of any such association or organization herein mentioned, duly registered hereunder, unless he or she shall be entitled to use and wear the same under the constitution and bylaws, rules and regulations of such association and organization, shall be guilty of a misdemeanor, and upon conviction shall be punished as provided in section 21-1308 of the General Statutes of 1949 and any amendments thereto.”
G. S. 1949, 21-1308 (enacted in 1903) provides:
“Any person who shall willfully wear the badge, insignia, button, uniform or other emblem of the Independent Order of Odd Fellows, the Ancient, Free and Accepted Masons, the Knights of Pythias, or other secret and fraternal beneficiary societies, or who shall use the same to obtain aid or assistance within this state, unless he shall be entitled to use and wear the same under the laws, rules and regulations of the grand lodges of said orders in the state of Kansas, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed twenty-five dollars, or by imprisonment not to exceed thirty days, or by both such fine and imprisonment.”
The information upon which defendants were tried charged:
. . that at said County of Wyandotte, State of Kansas, within the l'urisdiction of this Court, on or about the 1st day of October, 1955, in Kansas City, Wyandotte County, Kansas, H. B. Turner, Arthur L. Sweeney, P. C. Copeland and Peter L. Menser, did wilfully and unlawfully wear, exhibit, display and use for the purpose of misleading and confusing the public, a name, badge, button, decoration, charm, emblem, rosette and other insignia of the Prince Hall Grand Lodge of Kansas and Jurisdiction F. and A. M., an incorporated fraternal society of Kansas, this same having already been duly registered pursuant to the provisions of Sections 75-421 and 75-427 inclusive, G. S. of Kan. Supp. 1953; that the said defendants, H. B. Turner, Arthur L. Sweeney, P. C. Copeland and Peter L. Menser, and the Masonic organization to which they belong has not been peaceably using the emblem, name, badge, button, decoration, charm, rosette, or other insignia for a period of twenty-five (25) years or more, and all of said unlawful actions done as aforesaid, while the said H. B. Turner, Arthur L. Sweeney, P. C. Copeland and Peter L. Menser were not members of nor entitled to use and wear the same, under the Constitution, and by-laws, rules and regulations of the said Prince Hall Grand Lodge of Kansas and Jurisdiction F. and A. M., an incorporated fraternal society of Kansas, contrary to the statute in such case made and provided.”
At the close of the state’s evidence the trial court sustained defendants’ motion for discharge insofar as their use of a “name” similar to the Prince Hall organization was concerned. Defendants introduced their evidence and the case was submitted to the jury on the question whether defendants had violated the provisions of the statute by “wearing and displaying a Masonic emblem and apron which had been duly registered by the Prince Hall Grand Lodge in accordance with said statutes.”
As stated, a verdict of guilty was returned. Defendants filed a motion for a new trial containing nineteen grounds, most of which had to do with alleged errors and irregularities during the trial. This motion was overruled and sentence, as heretofore mentioned, was imposed.
Defendants’ notice of appeal reads that they “. . . have and do hereby appeal to the Supreme Court of Kansas from the judgment rendered on a verdict returned by a jury in the above entitled action, on the 22nd day of May, 1957, whereby it was by the District Court of Wyandotte County, Kansas, decided, ordered and adjudged that defendants were guilty of a violation of Sections 75-421 to 75-427 inclusive, G. S. Supplement 1953, and whereby the court fined $5.00 each and costs.”
Defendants assert nine specifications of error, one of which is that the court erred in overruling their motion for a new trial.
It is to be noted, however, that they did not appeal from the order overruling the motion for a new trial. Therefore, despite their assignment of that order as error, alleged errors and irregularities occurring during the trial, that is, trial errors, are not reviewable. Application of this rule has been invoked under varying facts and circumstances. The most frequent instance is where an appeal is taken from the order overruling a motion for a new trial, but an appellant neglects to assign such ruling as error in his specifications of error. Here we have just the reverse, but the end result is the same and amounts simply to this — matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and when an appellant seeks to have this court review alleged trial errors he must appeal from the order overruling his motion for a new trial, and, in addition, must assign such ruling as error. We cite but a few of our decisions on the subject—Hardman Lumber Co. v. Spitznaugle, 130 Kan. 346, 286 Pac. 235; In re Estate of Young, 169 Kan. 20, 217 P. 2d 269; Crowder v. Lindbergh, 175 Kan. 671, 265 P. 2d 851; McCarty v. Kansas-Nebraska Natural Gas Co., 176 Kan. 386, 389, 271 P. 2d 264; Baker v. Maguire’s, Inc., 176 Kan. 579, 580, 272 P. 2d 739; State, ex rel., v. Miller, 177 Kan. 324, 279 P. 2d 223, 52 A. L. R. 2d 691, and King v. King, 183 Kan. 406, 408, 327 P. 2d 865. The rule is equally applicable to appeals in criminal cases and thus precludes our review of alleged trial errors in the case before us.
Application of the rule does not, however, prevent a review of pure questions of law. (See State, ex rel., v. Miller, supra, at pp. 329, 330.)
At the close of all of the evidence defendants moved for discharge on several grounds, one of which was that “the law under which the prosecution in this case is had is violative of the rights of the defendants under the Constitution of the United States and the Fourteenth Amendment thereof.” The same general contention was included in the motion for a new trial and the specifications of error.
Defendants’ brief likewise deals in generalities, but, if we understand their position correctly, it is to the effect the statutes in ques tion deprive defendants’ organization of its property without due process of law and amount to an unlawful exercise of the police power of the state. Some reference also is made to the first amendment to the federal constitution. (See Sester v. Belvue Drainage District, 162 Kan. 1, 6, 173 P. 2d 619, in which it was said that the first ten amendments to the federal constitution are limitations only on the power of the federal government and do not apply to the state.)
Be that as it may, we nevertheless will discuss briefly the apparent contention of defendants insofar as section 1 of the fourteenth amendment to the federal constitution is concerned.
The case of Hammer v. State (1909), 173 Ind. 199, 89 N. E. 850, also reported at 24 L. R. A. (NS) 795, 140 Am. St. Rep. 248, 21 Ann. Cas. 1034, is perhaps the leading case on the subject. There the defendant was charged with unlawfully wearing the badge and emblem adopted by an incorporated secret society of the state, he at the time not being a member of the society. He was convicted and fined. On appeal to the Indiana supreme court it was contended, among other things, that the law under which the prosecution was had was violative of the fourteenth amendment to the constitution. In rejecting this contention it was held that no constitutional privileges or immunities are denied a citizen by a statute forbidding him to wear the badge of a secret society of which he is not a member, nor are exclusive privileges unlawfully conferred by such legislation, and that the legislature may under its police power pass such legislation. In the course of the opinion it was said:
“It can scarcely be urged that the right to wear a badge or emblem of a society of which a person is not a member is a right conferred by the Constitution or laws of the United States. The statute confers no right, exemption or privilege on any class or individual to do a thing denied to others as of common right, except it may be said negatively to authorize one who is a member of the society to wear a badge if he chooses, but prevents all who are not members from doing so. The Constitution and laws of the United States do not furnish, nor guarantee such right, nor can a person under them claim that right as a privilege, or that he shall be immune from regulation by the State, so far as the federal Constitution is concerned. It is simply the denial by the State, under its police power, of a claim of a right by appellant. It is the negation of a claim, and is a matter that concerns the State only.” (p. 203.)
“. . . It is a matter of common knowledge that the membership in most, if not all, societies or organizations, whether secret or otherwise, is the result of fitness and selection, which give members standing and character, at least among their fellows, and to a greater or lesser degree with the public and he who wears a badge or emblem of the order or society without being a member holds himself out to the public and to actual members as guilty of a false personation. It is of itself a deceit and a false pretense, and its object could be nothing else than deception, with possibly ulterior motives. . . . and
the object of the statute was the prevention of this species of fraud, not only in the interest of the members of the society, but of the public at large, who might be deceived through their good opinion of the society and its members. It is a police regulation, pure and simple, upon grounds of public policy, directed against false personation and false pretenses of that particular kind.” (pp. 205, 206.)
See also 4 Am. Jur., Associations and Clubs, § 38, p. 479; 22 Am. Jur., False Pretenses, § 77, p. 486, and annotations found at 43 A. L. R. 914, and 62 A. L. R. 798.
We agree with the holding of the supreme court of Indiana, and, there being no decision of this court to the contrary, believe that it should be followed in the case before us. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action for specific performance of an alleged contract to issue a health and accident insurance policy and to recover a money judgment in accord with the terms of such policy for a sustained disability. After a full and complete trial by the court judgment was rendered for the defendant and the plaintiff appealed.
The pleadings are not in controversy and, for that reason, allegations thereof will be highly summarized and limited strictly to matters disclosing the claims of the respective parties.
Pertinent portions of the amended petition and an amendment thereto, on which the cause went to trial, can be stated thus: On October 19, 1953, Joseph E. Allen, a licensed resident agent of defendant, authorized to solicit applications for insurance to be written by defendant and to receive checks payable to defendant for the first year’s premium thereon, approached plaintiff at his home in Kansas City and solicited his application for a health and accident disability policy, stating orally that if the annual premium for such policy was paid at the time the application was made, such policy, if issued, would be dated from and cover the plaintiff from the date of the application; plaintiff agreed to make the application; thereupon the application was prepared by Allen and presented to the plaintiff who signed it and then delivered it along with his check for the annual premium to the agent; Allen took the check and application and delivered both instruments to defendant’s divisional office, the Frank L. Stephens Insurance Agency; upon receipt of such instruments the agency endorsed the check, deposited it in the bank, and caused it to be paid out of the plaintiff’s account in the bank on which it was drawn.
Further allegations of the amended petition and the amendment thereto are: That defendant at its home office in Omaha, or at the office of its agent in Kansas City, held the application in its possession for an unreasonable length of time without delivering plaintiff the policy applied for, and without ever giving him any notice it declined to issue such policy and rejected said application; that defendant did not notify plaintiff of its decision either to issue such policy or not to issue the same until long after plaintiff sustained an accident resulting in disability; that by its delay in notifying plaintiff either as to acceptance or rejection of the application defendant in effect and in law accepted said application and became liable to plaintiff to issue and deliver the policy at a time prior to plaintiff’s accident, and by presumption of law impliedly, accepted such application long prior to the time he sustained his injuries; that the conduct and delay of the defendant as alleged led plaintiff to believe his application had been accepted and that he would receive a policy dated from the day on which he had delivered the check; and that plaintiff thus believing was prevented and obstructed from applying for and obtaining similar insurance and, but for being mislead into thinking his application had been accepted, could have obtained other insurance of like kind prior to the time of his accident.
Further allegations of such pleadings are: That on December 15, 1953, plaintiff sustained total disability by reason of accidental bodily injuries and since that date has been totally disabled therefrom; that due proof of the sustaining of such injuries was made to defendant, which neglected and refused to make any payments under the policy for such disability; that on March 18, 1954, defendant, by and through the Stephens Agency, notified plaintiff in writing that his application for insurance had been rejected and denied all obligation to issue plaintiff a policy of insurance under such application; that defendant has failed to issue and deliver the policy; and that plaintiff is without relief at law and therefore demands specific performance of defendant’s obligation to issue such policy.
Finally it is to be noted that, after alleging the statement is included therein to comply with the court’s order in connection with a motion lodged against the petition, the amended petition states “that at the time the application was taken there was no express agreement, oral or in writing, that the policy would be issued by the defendant, but the plaintiff says that under the facts above alleged the defendant impliedly agreed either to reject the application or to issue the policy and to give notice thereof to the plaintiff within a reasonable time after such application was made.”
Summarized in the manner heretofore indicated the defendant’s answer contains:
Admissions that Allen was its soliciting agent and salesman on October 19, 1953; that on such date plaintiff signed and executed a written application for health and accident insurance and delivered such application to Allen with his personal check in the amount of the first full annual premium for the policy applied for; that the application and check was delivered to the Stephens Agency and the check subsequently cashed; that it never issued or delivered a policy of insurance by reason of the application; and that both before and after the institution of the action it has and now declines to pay any sum or sums whatsoever by reason of plaintiff’s application for insurance or his claim for total and continuous disability resulting from and by reason of accidental bodily injuries.
Full and complete denials of each and all other factual statements and claims made, set forth and relied on by plaintiff in the amended petition, and the amendment thereto, as grounds for recovery.
And, without reciting all averments therein set forth and relied on by way of defense, allegations to the effect that plaintiff’s application for insurance was duly rejected, refused and declined in its Underwriting Department in Omaha by reason of his uninsurability; that notices of the rejection of such application and a return of the advanced premium were sent and made to plaintiff within a reasonable time, and prior to December 15, 1953; that no contract either express, implied or otherwise ever existed between plaintiff and defendant by reason of the application for insurance; and that, under the facts and circumstances as alleged, plaintiff should be denied all relief sought in the action and judgment rendered for defendant.
Plaintiff’s reply to the answer contains a general denial and allegations charging that defendant’s offer to return the advanced premium was not made until long after he had received the injuries mentioned in his pleadings, and after defendant had received notice and claim of such injuries.
With issues joined as heretofore stated the case was tried by the court which, after introduction of evidence by the parties and argument of counsel, took the cause under advisement. What happened thereafter will be related, without comment, from the record submitted. It discloses:
1. That on August 23, 1957, the court by a letter, in which it enclosed its findings of fact and conclusions of law, advised counsel for the parties it had decided judgment should be entered in favor of the defendant and that it would enter such judgment as of the date an approved journal entry was submitted.
2. That on August 26, 1957, plaintiff filed a motion for a new trial; a motion to set aside findings of fact and conclusions of law; and a motion to amend paragraph 5 of die findings of fact.
3. That on September 9, 1957, the court, without ruling on the foregoing motions, made and entered its findings of fact and conclusions of law and thereupon rendered judgment in favor of defendant and against plaintiff for the costs of the action.
4. That on September 11, 1957, defendant filed a motion to amend, enlarge and make additional findings of fact and conclusions of law.
5. That on October 30, 1957, the court, again by letter, advised counsel for the parties of its intended rulings, presently to be mentioned, with respect to the motions mentioned in preceding paragraphs numbered 2 and 4.
6. That on the same day, notwithstanding a discrepancy in the journal entry indicating its action was taken prior to that date, the trial court overruled and denied plaintiff’s motions for a new trial, to amend findings of fact and conclusions of law to set aside the findings of fact and conclusions of law. It also sustained a portion of defendant’s motion to amend and enlarge the findings of fact and conclusions of law. In connection with the latter ruling it added fifteen words to the last sentence of finding of fact No. 14 and then deleted the first sentence (eight words) of finding No. 15 on the basis it was superfluous by reason of the amendment to finding No. 14.
Following the action, last above indicated, and on December 23, 1957, plaintiff gave notice that he was appealing from all rulings and decisions (specifying them) made and entered by the trial court on October 30, 1957.
It is obvious that what has been stated up to this point is not sufficient to give readers of this opinion a proper understanding of the basic facts on which the rights of the respective litigants depend. We are constrained to state that our task in this respect has been made difficult by the parties themselves, who have disregarded requirements of our Rule 6(3) (c) and (4) (b) and so slanted their respective briefs with biased versions of the import to be given their own evidence as to preclude our making a proper statement of the essential facts of the case without making a detailed and tedious review of a long, confusing and somewhat incomprehensive record. We are neither disposed nor required to assume that burden. Therefore since the trial court’s findings of fact and conclusions of law are involved on appellate review, give its version of the factual situation disclosed by the evidence, and when carefully analyzed and read in connection with what has been heretofore stated suffice to give a fair understanding of what the case is about, we have decided to use such findings and conclusions to implement what would otherwise, for reasons heretofore noted, result in a somewhat vague and incomplete factual statement. Such findings of fact and conclusions of law, keeping in mind that the portion of finding No. 14, enclosed by brackets, is the addition made to that finding and the portion of finding No. 15, likewise enclosed, is the language deleted from that finding, read:
“Findings of Fact.
“1. From December 21, 1934, to December 15, 1953, the plaintiff was totally, wholly, and continuously disabled from engaging in his trade of cabinet making and carpentry due to a severe laceration to his left hand sustained in a power saw accident.
“2. On October 19, 1953, the plaintiff’s income was derived mainly from investments and a 340-acre farm in Western Kansas. The soliciting agent, Joseph Allen, knew this and knew of plaintiff’s injured left hand when he took the application (Ex. 1) on October 19, 1953.
“3. Plaintiff suffered and complained of shortness of breath and periodic shooting pains in his back and chest prior to 1953, and particularly during 1948 after John M. Gineau’s assault on him. Neither Joseph Allen nor defendant had any knowledge of this on October 19, 1953.
“4. Prior to December 15, 1953, the plaintiff suffered, in addition to the laceration and tremor of his left hand, certain tremors in his neck and right hand.
“5. When the plaintiff signed the printed application (Ex. 1) on October 19, 1953, he believed that he was applying for and reasonably expected to receive, subject to the approval and acceptance of defendant’s home office, additional health and accident insurance of the same kind which he already had with defendant company, the policy to be effective as of October 19, 1953, and in form similar to the policy issued by the defendant to the plaintiff on February 1, 1953, except that the new policy would pay $300 monthly benefits in case of total disability.
“6. Joseph Allen was a soliciting agent for the defendant and was not empowered by the defendant to contract, to commit, or to incur liabilities on behalf of defendant except upon its later review and approval in its Omaha, Nebraska, home office.
“7. At the time of executing the application for insurance (Ex. 1) plaintiff delivered to Joseph Allen, the soliciting agent, his check for $312 in payment of the first year’s premium on the insurance applied for.
“8. The application which plaintiff signed (Ex. 1) was in fact an application to defendant for insurance paying $100 per month benefits in case of total disability. The soliciting agent, Joseph Allen, copied the information from this application on an application form to United Benefit Life Insurance Company, applying for insurance from said company paying $200 per month benefits in case of total disability, and delivered the plaintiff’s check and both applications to his employer, the Frank L. Stevens Agency. Joseph Allen, or some person in the employ of the Frank L. Stevens Agency, signed plaintiff’s name on the application form to United Benefit Life Insurance Company. Thereafter the plaintiff’s check was deposited to the credit of the Frank L. Stevens Agency and the applications were each forwarded to the home offices of the respective insurance companies.
“9. United Benefit Life Insurance Company is a companion insurance •company to defendant, and its home offices are also located in Omaha, Nebraska.
“10. On or about November 3, 1953, the defendant’s underwriting department in Omaha, Nebraska, after investigation and evaluation of the information it had concerning plaintiff, declined and refused plaintiff’s application for insurance. About the same time the application to United Benefit Life Insurance Company was likewise declined and refused by that company.
“11. According to the records of the defendant company, written notice of its refusal to insure plaintiff was mailed in the regular course of business from •defendant’s home office to plaintiff on or about November 17, 1953. The plaintiff denies that he ever received such a notice.
“12. On or about November 10, 1953, Joseph Allen, the soliciting agent, was notified of the rejection of plaintiff’s applications for insurance and instructed to return the premium paid. Instead of returning the premium, he
requested the defendant’s underwriting department for a reconsideration, and was advised to submit additional information concerning plaintiff. Joseph Allen then called plaintiff about the request for additional information and plaintiff gave him the name of a bank for reference.
“13. The defendant thereafter in good faith investigated the plaintiff in order to obtain further and additional information as to his insurability, but refused to change its underwriting decision of November 3, 1953, and Joseph Allen was promptly notified of this by defendant on or about the 1st of December, 1953.
“14. On December 3, 1953, Joseph Allen obtained two checks from his employer, the Frank L. Stevens Agency, payable to the plaintiff in the total amount of $312 in refund of the premiums paid by plaintiff, and went to the plaintiff’s residence to deliver them and advise plaintiff that his application for additional insurance had been refused. Plaintiff was not at home, so tire checks and written notice of refusal were mailed to plaintiff from Allen’s office in the normal course of business the same day, [and the said two checks and written notice of refusal were received by the plaintiff.]
“15. [Plaintiff denies receiving said checks and the notice.] The checks have never been presented for payment.
“16. Subsequently on February 12, 1954, the soliciting agent, Joseph Allen, obtained two more checks from the Frank L. Stevens Agency payable to plaintiff in the total sum of $312 and tendered the same to the plaintiff in refund' of the premium paid by plaintiff. This tender was refused by the plaintiff.
“17. Defendant has subsequently offered and tendered and presently offers and tenders to plaintiff a refund of the premiums paid by plaintiff in the amount of $312, together with interest at the rate of six per cent per annum. Plaintiff has refused such tenders.
“18. On December 15, 1953, the plaintiff fell on a sidewalk in Kansas City, Kansas, and was subsequently hospitalized and under a doctor’s care. His disability and physical inability to work subsequent to that date is due to heart trouble, which condition manifests itself as angina pectoris.
“Conclusions of Law
“1. Defendant’s agent Allen was a soliciting or collecting agent and not a general or countersigning agent.
“2. This action is upon a contract remedy.
“3. At no time has the defendant, by implication or otherwise, accepted the plaintiff’s application for insurance dated October 19, 1953.
“4. Under the facts and circumstances as disclosed by the evidence in this case, the time spent by the defendant in its investigation of plaintiff’s insura-bility was not an unreasonable length of time.
“5. No action or conduct upon the part of the defendant reasonably misled or harmed the plaintiff to his detriment, and the defendant is not now estopped or precluded from establishing that it affirmatively rejected and declined the application in question.
“6. The plaintiff was not injured or damaged as a proximate cause of the defendant’s actions or conduct in respect to the said application for disability and health insurance.
“7. The plaintiff has failed to sustain his necessary burden of proof as to the various elements of his claims herein.”
Preliminary to consideration of other issues involved it should be stated at this point that we are at a loss to understand why appellant devotes time and space in his brief to the question whether he may maintain the instant action in its present form. Appellee makes no claim that he had no right to do so and we find nothing in the record to indicate the trial court’s rulings and judgment were based on that premise. In such a situation that question is not here and it is neither necessary nor required that we prolong this opinion by a discussion of arguments raised by appellant with respect thereto.
The first claim of error raised in appellant’s brief is that the court erred in finding that a period of fifty-seven days was not an unreasonable length of time to delay the issuance of a health and accident insurance policy pursuant to the soliciting agent’s representations and the application executed by appellant on October 19, 1953, and prior to his accident on December 15, 1953. The short and simple answer to this contention is that reference to the findings discloses the court made no such finding.
In connection with the same question, and based on the same erroneous assumption as to the state of the findings, it is argued that appellee is estopped to deny that it had issued a policy pursuant to the application and is deemed to have waived its right to refuse to issue a policy by failing to notify appellant of its purported denial of coverage within a reasonable time. Conceding the ap-pellee was bound to act upon appellant’s application one way or another within a reasonable time the question of what was a reasonable time, as held in Harvey v. United Ins. Co., 173 Kan. 227, 245 P. 2d 1185, was for the trier of facts. Resort to the findings clearly reveals the court, while acting in that capacity, concluded that under the evidence of record the appellee had not only declined to insure appellant but had also notified him to that effect on more than one occasion prior to the accident, the last time being on December 3, 1953; and that appellee’s action in that respect was within a reasonable time under the existing facts and circumstances. Treating this contention as directed against the findings as actually made it lacks merit and cannot be upheld if such findings are supported by evidence.
After a careful and extended examination of the record we have concluded that under the issues joined by the pleadings, as well as the theory on which it was presented and tried, this is primarily a fact case where the appellant’s right to the relief sought in his petition was not only fairly submitted but conscientiously determined by the court in accord with its version of the credence and import to be given the evidence presented by the respective parties.
Thus we come to what both the appellant and appellee concede in their briefs, and we from our examination of the record have decided, is the all decisive issue involved in this case. Such issue, we pause here to note, underlies all questions raised, regardless of how they are presented and argued, by the parties relating to the propriety of the trial court’s judgment. Simply stated that question is: Are the trial court’s findings sustained by the evidence? In approaching the question just posed it must be remembered that no rule in this jurisdiction is better established than the one that, when supported by competent evidence, a trial court’s findings of fact are conclusive and will not be disturbed on appellate review even though the record discloses conflicting evidence which, if that tribunal had seen fit to believe it, might have warranted entirely different findings of fact and a contrary judgment. For some of our more recent decisions where this rule is considered, discussed, applied and adhered to see Paul v. Paul, 183 Kan. 201, 326 P. 2d 283; Lowdermilk v. Lowdermilk, 183 Kan. 174, 181, 182, 326 P. 2d 248; Norris v. Nitsch, 183 Kan. 86, 325 P. 2d 326; In re Estate of Guest, 182 Kan. 760, 324 P. 2d 184; Grace v. Martin, 182 Kan. 33, 318 P. 2d 1007; Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681; Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Wood v. Board of County Commissioners, 181 Kan. 76, 309 P. 2d 671. Numerous other decisions of like import are cited in Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error §§507, 508; West’s Kansas Digest, Appeal & Error, §§ 1010[1], 1011[1],
Touching the sufficiency of the evidence to support the findings of fact, as heretofore quoted, it would add nothing to our reports and we are not disposed to labor a long and tedious record. It suffices to say that after a painstaking and extended review of the testimony of all the witnesses involved in the case, we are constrained to hold the record is replete with substantial competent evidence to support each and every finding made by the trial court. The result, as we have heretofore indicated, is that such findings must be accepted as true and cannot be disturbed.
In passing we note appellant assigns, but does not argue, error in the overruling of that portion of its motion relating to the setting aside of its conclusions of law. This, no doubt, is due to the fact that his counsel, with commendable candor, includes in his brief a statement to the effect he concedes that if this court is satisfied the judgment of the trial court is supported by evidence such judgment will not be disturbed on appeal. It should perhaps be added, that even in the absence of this commendatory concession, this court would have no difficulty in concluding that the findings which, we are forced to accept in view of the fact there is evidence to support them, were sufficient to warrant the trial court’s conclusions of law and its subsequent judgment.
After having given careful consideration to all contentions advanced by appellant we find nothing in the record presented which warrants a reversal of the involved judgment. Moreover, what has been heretofore stated and held requires that it be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s order overruling defendant’s demurrer to plaintiff’s petition.
Defendant’s demurrer stated in substance that the petition did not state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant and further that plaintiff consented to and participated in all acts alleged to have been perpetrated by defendant, and having so consented and participated, she cannot recover for the resulting damage.
The trial court overruled the demurrer and gave defendant twenty days to answer or otherwise plead and gave plaintiff five days thereafter to respond. The defendant filed his answer within time and plaintiff responded as ordered by the trial court. Defendant then perfected his appeal to this court. Plaintiff contends that by reason of defendant having answered, he cannot now maintain his appeal.
Without detailing the contents of the answer, it will be sufficient to say it contains nothing which is inconsistent with defendant’s demurrer. This court has held that in order to constitute an abandonment of his right to appeal from an adverse ruling on a demurrer when a defendant answers his attitude in the answer must be inconsistent with that which he maintained in support of his demurrer. This rule was announced in Scovill v. Scovill, 144 Kan. 759, 763, 62 P. 2d 852, and several Kansas cases are therein cited pertaining to this subject.
Turning to the question as to whether the trial court erred in overruling the demurrer, it is necessary only to set out the following portion of the petition seeking damages for personal injury:
“9. Plaintiff’s damages as described above are the direct and proximate consequence of defendant’s gross and wanton negligent acts and omissions, as follows:
“(a) Defendant’s representations to plaintiff that he was fully qualified to perform an abortion, when he well knew that he was specifically forbidden by law to perform surgery of any kind or description.
“(b) Defendant’s wanton disregard of ordinary and usual techniques of sterilization and asepsis in the preparation of his instruments and plaintiff’s genital organs prior to the insertion of said instruments and the penetration and incision of the tissues of plaintiff’s body with said septic and infected instruments.
“(c) By the insertion of dirty and septic instruments into plaintiff’s body which infected plaintiff’s genital organs as described above.”
The above allegations set out specific acts of negligence and were we to consider them alone we believe they sufficiently allege a cause of action upon which the damages sought could be recovered so that the trial court was correct in overruling the general demurrer. This follows the rule that where a petition sufficiently alleges a cause of action on any theory, a general demurrer thereto cannot be sustained. (Fernco, Inc., v. Kennedy, 181 Kan. 25, 31, 309 P. 2d 400; 4 Hatcher’s Kansas Digest, rev. ed., Pleading, § 159, p. 460; 8 West’s Kansas Digest, Pleading, § 204 (2), p. 42.) The trial court did not err in its order overruling defendant’s demurrer.
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Beier, J.:
This consolidated appeal addresses the district court’s refusal to dismiss sexually violent predator actions filed against Donald Hunt, William Sells, Sutton Lovingood, Daniel Ingold, Steven Robbins, George Dudley, William Craft, Billy Stanley, George Gilmore, Boyd Huntington, III, Randy Taylor, and Charles Snyder.
Each of these men was found to be a sexually violent predator and civilly committed for treatment pursuant to the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq. Each now argues that he should be discharged because his trial did not begin within 60 days of his probable cause hearing, as required by K.S.A. 2002 Supp. 59-29a06, and that the district court therefore lacked jurisdiction.
Factual Background
The nature of the appellant’s claims requires us to focus on the timing of events' in each case.
Donald Hunt
In September 1995, the State filed its petition against Hunt. His probable cause hearing was September 19, 1995. The court found probable cause existed and ordered that Hunt be transferred to Lamed State Security Hospital (LSH) for an evaluation. The order provided trial would be set within 60 days.
On November 6,1995,1 week before the 60-day period expired, Hunt orally moved at a hearing to continue his trial pending the decision of the Kansas Supreme Court on the constitutionality of the SVPA. The motion was granted.
On March 1,1996, the Kansas Supreme Court issued its decision in In re Care & Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996), rev’d Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), holding the SVPA unconstitutional.
Several weeks later, the United States Supreme Court stayed the mandate in Hendncks, pending further consideration. Kansas v. Hendricks, 517 U.S. 1153 (1996).
On April 26, 1996, within 60 days after the Kansas Supreme Court issued its ruling in Hendncks, the district court held another hearing in Hunt’s case. Hunt’s attorney again asked for a continuance until the temporary stay of the United States Supreme Court was resolved. The continuance was granted.
On June 17, 1996, the United States Supreme Court granted certiorari. Kansas v. Hendricks, 518 U.S. 1004 (1996).
Hunt’s case remained inactive for another 5 months before he was found to be a sexually violent predator at a trial on September 16 and 17, 1996.
In February 2002, Hunt filed a pro se motion to dismiss the case, apparently raising for the first time the State’s failure to bring him to trial within 60 days of his probable cause hearing. In March 2002, after a hearing on Hunt’s motion and similar motions filed in a number of other SVPA cases, the district court ultimately denied Hunt’s motion. The court concluded Hunt’s requests for continuance waived his right to a speedy trial.
William Sells
In May 1999, the State filed its petition against Sells. At his probable cause hearing on June 18, 1999, Sells stipulated to the existence of probable cause. The court ordered Sells transferred to LSH for evaluation, and the order provided trial would be set within 60 days.
October 1999 bench notes indicate Sells’ trial was continued, apparently on the court’s motion, because the court was unable to schedule tire matter. These notes were made approximately 120 days after the probable cause hearing. A month later, the State obtained a continuance because its witnesses were not available.
In December 1999, Sells waived his right to jury trial and, after hearing evidence, the district court found he was a sexually violent predator. Sells does not claim on this appeal that he challenged the timeliness of his trial at that point.
In March 2002, Sells filed a motion to dismiss his case because the trial was not held within 60 days of the probable cause hearing. After a hearing, the district court denied Sells’ motion, holding Sells waived his claim by stipulating to the court’s finding that he was a sexually violent predator.
Sutton Lovingood
In November 1994, the State filed its petition against Lovingood. The district court held a probable cause hearing on November 16, 1994; found probable cause; and ordered Lovingood evaluated. The order provided trial would be scheduled for January 11,1995.
On January 4, 1995, more than 45 days but fewer than 60 days after the probable cause hearing, the court granted a written motion filed by Lovingood’s attorney for a continuance of “at least” 45 days in order to locate an expert witness and complete discovery. The court rescheduled trial for March 20, 1995.
Shortly before the March trial date, Lovingood’s attorney filed another motion for continuance, asserting that his expert was unavailable on the scheduled trial date. According to bench notes, the court granted the motion “for good cause shown.”
Lovingood was found to be a sexually violent predator after trial commencing May 30, 1995, fewer than 90 days after his second continuance. On the day of trial, Lovingood filed a motion to dismiss the action, claiming tire SVPA was unconstitutional, but he did not assert any jurisdictional flaw or violation of a right to speedy trial. Lovingood’s claims were rejected on appeal in In re Care & Treatment of Lovingood, Case No. 74,653, unpublished opinion filed April 30, 1999.
In March 2002, Lovingood filed a motion to dismiss his case because he was not brought to trial within 60 days of the probable cause hearing. The district court denied the motion, holding Lovingood had waived any speedy trial claim by requesting two continuances.
Daniel Ingold
In September 2000, the State filed its petition against Ingold. After his probable cause hearing on September 15, 2000, the district court found probable cause and ordered Ingold evaluated. The order scheduled trial for November 13, 2000.
On November 13, 2000, 59 days after the probable cause hearing, the court granted Ingold’s motion for continuance for “good cause shown.” The matter was rescheduled for January 12, 2001.
On January 12, 2001, Ingold appeared, waived his right to a trial, and stipulated there was sufficient evidence from which to find him a sexually violent predator. The court so found.
In March 2002, Ingold filed a motion to dismiss because he was not brought to trial within 60 days after tire probable cause hearing. The court denied the motion, holding Ingold waived his right to assert the argument by stipulating to his status.
Steven Robbins
In September 1996, the State filed its petition against Robbins. The district court held the probable cause hearing on September 27, 1996; found probable cause; and ordered Robbins evaluated. The order provided trial would be set within 60 days.
On November 14, 1996, 48 days after the probable cause hearing, Robbins’ counsel requested a continuance; the continuance was granted to allow Robbins to be evaluated by his own expert. The case was apparently reset for trial; but, on February 10,1997, Robbins’ counsel filed a written motion for continuance, asserting he needed additional time for his expert to complete his assess ments. Robbins requested at least 30 days’ additional time. The court granted the request.
Between February and September 1997, Robbins was actively pursuing written discovery from the State. Robbins served written interrogatories and requests for production of documents, as well as two motions to compel. On September 29, 1997, the parties appeared for trial. At this time, Robbins waived his right to a trial and stipulated that there was sufficient evidence to find him to be a sexually violent predator.
In March 2002, Robbins filed a motion to dismiss the case, claiming the court lacked jurisdiction over him because he was not brought to trial within 60 days of his probable cause hearing. The trial court denied Robbins’ motion, holding he waived his right to speedy trial by requesting and obtaining two continuances and by stipulating to the finding he was a sexually violent predator.
George Dudley
In January 2001, the State filed its petition against Dudley. The district court held his probable cause hearing on January 19, 2001; found probable cause; and ordered Dudley evaluated. The matter was set for trial on March 12, 2001.
Approximately 1 week before expiration of the 60-day period, the State requested a continuance because Dudley was still at LSH. The trial court continued the trial for good cause shown until a report from LSH had been received. Dudley claims he objected to this continuance, but the judge’s bench notes do not reflect any objection.
On May 7, 2001, 48 days after the prior continuance, Dudley appeared for a trial. Dudley waived trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court so found.
On March 5, 2002, Dudley filed a motion to dismiss based on the 60-day limitation for commencement of trial. The district court denied the motion, holding that trial had been continued for good cause and that Dudley had waived his right to speedy trial by stipulating to the court’s ultimate finding.
William Craft
In August 1998, the State filed its petition against Craft. The district court held his probable cause heating on August 14, 1998; found probable cause; and ordered Craft evaluated. The order provided trial would be set within 60 days.
According to the court’s bench notes, on September 24, 1998, within the 60-day period, the court set the case for trial in December “per agreed upon requests for both sides.” The transcript from this hearing indicates the State requested the delay because tire court’s trial docket was full; Craft’s attorney had no objection to the continuance and noted he might want Craft to undergo another evaluation anyway.
On December 14, 1998, Craft appeared, waived his right to a juiy trial, and stipulated there was sufficient evidence to find him a sexually violent predator. The court made that finding.
In March 2002, Craft filed a motion to dismiss his case, citing the 60-day time limit. In his motion, Craft asserted no continuances had been granted. The district court denied the motion, holding Craft had waived any right to pursue the issue by stipulating to the court’s ultimate finding.
Billy Stanley
In April 1999, the State filed its petition against Stanley. The district court held the probable cause hearing on May 7, 1999; found probable cause; and ordered Stanley evaluated. The order provided trial would be set within 60 days.
On June 29, 1999, within the 60-day time limit, the parties and court agreed that the court’s calendar would not accommodate a trial before September. A journal entry was signed by attorneys for both sides.
On August 16, 1999, fewer than 50 days after tire continuance was ordered, the parties appeared for trial. Stanley waived his right to a trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
In March 2002, Stanley filed a motion to dismiss based on the 60-day time limit. The trial court denied the motion, holding Stan ley waived his right to advance this issue by stipulating to the court’s ultimate finding.
George Gilmore
In April 1999, the State filed its petition against Gilmore. The district court held the probable cause hearing on May 7, 1999; found probable cause; and ordered Gilmore evaluated. The order provided trial would be set within 60 days.
On June 29, 1999, within the 60-day time limit, the parties and court agreed that the court’s calendar would not accommodate a trial before September. A journal entry was signed by attorneys for both sides.
On August 16, 1999, fewer than 50 days after the continuance was issued, the parties appeared before the court. Gilmore waived his right to trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
In March 2002, Gilmore filed a motion to dismiss his case based on the 60-day time limit. The district court denied the motion, holding Gilmore waived his right to pursue this issue by stipulating to the court’s ultimate finding.
Boyd Huntington, III
In September 2000, the State filed its petition against Huntington. The district court held the probable cause hearing on September 15, 2000; found probable cause; and ordered Huntington evaluated. Trial was set for November 13, 2000.
On November 13, 2000, the day before the 60-day limit expired, the parties appeared before the court. Contemporaneous bench notes state: “Stipulation hearing continued, case to be set for trial at Respondent's] request.”
On January 12, 2001, fewer than 60 days after the continuance was ordered, the parties appeared for trial. Huntington waived his right to trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
Huntington claims he filed a motion to dismiss his case based on the 60-day time limit in March 2002, but the motion is not included in the record on appeal and the appearance docket does not reflect its filing. However, a journal entry was filed in which the district court denied such a motion. The court held Huntington waived the right to pursue the issue by stipulating to the court’s ultimate finding.
Randy Taylor
In February 2000, the State filed its petition against Taylor. On February 18, 2000, the district court held the probable cause hearing, at which Taylor stipulated to the existence of probable cause. The court found probable cause and ordered Taylor evaluated. The order provided trial would be set within 60 days.
On June 1, 2000, approximately 100 days after the probable cause hearing, Taylor waived his right to trial and stipulated there was sufficient evidence to find him a sexually violent predator. The district court then made that finding. Taylor’s appearance docket reflects no motion for continuance filed before April 18, 2000, when the 60 days from the time of his probable cause hearing would have run. The record also contains no bench notes reflecting any continuances requested or granted orally before that date.
In March 2002, Taylor filed a motion to dismiss because his trial was not held within 60 days of the probable cause hearing. After hearing, tire trial court denied Taylor’s motion, holding he waived his claim by stipulating to the court’s ultimate finding.
Charles Snyder
In July 2000, the State filed its petition against Charles Snyder. The district court held the probable cause hearing on August 18, 2000; found probable cause; and ordered Snyder evaluated. The order set an October 9, 2000, trial date.
On October 2, 2000, within the 60-day limit, the court held a hearing and found its calendar was overcrowded. The court ordered a continuance. Bench notes from several days later indicate the court received a report from LSH.
December 1, 2000, bench notes indicate trial was continued at Snyder’s request so he could obtain an independent evaluation.
Six weeks later, on January 12, 2001, the parties appeared for trial. Snyder waived his right to a trial and stipulated there was sufficient evidence to find him a sexually violent predator. The court then made that finding.
In March 2002, Snyder filed his motion to dismiss based on the 60-day time limit. The district court denied the motion, holding Snyder waived his claim by stipulating to the court’s ultimate finding.
Analysis
Each of the appellants contends the district court lost jurisdiction of his case because he was not brought to trial within the 60-day time frame set forth in K.S.A. 2002 Supp. 59-29a06. At the time of the filing of these cases, that statute read:
“Within 60 days after the completion of any hearing held pursuant to K.S.A. 59-29a05 and amendments thereto, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial maybe continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced.” (Emphasis added.) K.S.A. 2002 Supp. 59-29a06.
The district court’s rationale for rejecting appellants’ motions to dismiss varied from case to case among three possibilities. The first rationale was that one or more properly granted continuances, sometimes sought by the appellant, tolled the running of the 60 days. The second rationale was that the appellant’s ultimate stipulation to his status as a sexually violent predator excused the State from compliance with the 60-day requirement. The third rationale was a combination of the first two.
In order to decide the issue in this case, we must interpret the SVPA, K.S.A. 59-29a01 et seq. Statutory interpretation raises a question of law subject to de novo review. In re Care & Treatment of Brown, 26 Kan. App. 2d 117, 118, 978 P.2d 300 (1999).
Appellants contend that, if the 60-day statutory period expired without the granting of a continuance, the district court lost jurisdiction. They assert that even a later stipulation to their status as sexually violent predators could not cure the jurisdictional defect. If, on the other hand, a timely continuance was granted, they assert that the case had to be brought to trial within 60 days of the continuance order.
Appellants point to several recent Court of Appeals and Supreme Court cases in support of their jurisdictional argument. See In re Care & Treatment of Searcy, 274 Kan. 130, 49 P.3d 1 (2002); In re Care & Treatment of Blackmore, 30 Kan. App. 2d 90, 94, 39 P.3d 89 (2002); In re Care & Treatment of Goracke, 27 Kan. App. 2d 837, 839, 9 P.3d 595 (2000); In re Care & Treatment of Brown, 26 Kan. App. 2d at 120.
The starting point for these cases was the Supreme Court’s decision in In re Care & Treatment of Ingram, 266 Kan. 46, 965 P.2d 831 (1998). In Ingram, the Supreme Court interpreted the SVPA’s statutory time limit for filing of petitions, interpreting K.S.A. 1997 Supp. 59-29a04. That statute required that a petition be filed within 75 days of the date the attorney general received written notice from the custodial agency holding the person subject to consideration for SVPA proceedings. 266 Kan. at 47-49.
In Ingram, the petition was not filed within the 75-day time limit. The Supreme Court held that the statute was clear and unambiguous. Because it provided the “sole authority” for the State to pursue a SVPA commitment, the court held the 75-day provision “jurisdictional.” 266 Kan. at 49. There was, in the court’s view, no provision for commencement of an SVPA proceeding beyond that point. 266 Kan. at 49.
Several years later, the Court of Appeals was faced with interpreting the 60-day time limit at issue here. In In re Care & Treatment of Brown, 26 Kan. App. 2d 117, the respondent was not brought to trial within 60 days of the court’s finding of probable cause, and no continuances were requested or granted. The respondent filed a pretrial motion to dismiss the case based on the 60-day time limit. The district court held the time limit was merely directory.
A panel of our court reversed, citing Ingram and concluding that, like the 75-day time limit in 59-29a04 for filing a petition, the 60-day time limit for trial in 59-29a06 was “mandatory and jurisdictional.” 26 Kan. App. 2d at 120.
Brown did not consider whether Ingram’s holding should be distinguished because it dealt with a time limit for commencing an action, i.e., investing the court with jurisdiction, rather than a time limit related to trial scheduling. Brown simply interpreted 59-29a06 to divest a court of jurisdiction even after an action had been properly commenced.
The Brown panel’s use of the “jurisdictional” label was unnecessary because the respondent had made a timely objection to the lack of a “speedy trial.” In addition, it appears the panel may not have been aware that the 1999 legislature had amended the statute cited in Ingram. After Ingram was filed, the statute was amended to add a subsection specifically stating that the 75-day time limit was not jurisdictional. L. 1999, ch. 140, sec. 4; see K.S.A. 2002 Supp. 59-29a04(b).
The next case to arrive at the Court of Appeals was In re Care & Treatment of Goracke, 21 Kan. App. 2d 837. It presented a slightly different factual scenario. In that case, the State had requested and received one continuance within the 60-day time limit. Thereafter two of the attorneys appointed to represent Goracke withdrew, and a third filed a motion for an independent psychological exam. Approximately 4 months after the motion was filed, Goracke waived his right to jury trial and was found to be a sexually violent predator.
The Court of Appeals panel noted that the 60-day time limit was mandatory and that only a “specific motion for continuance” would toll it. 27 Kan. App. 2d at 839. Because a timely continuance was ordered and the subsequent delays were caused primarily by the changes in Goracke’s counsel and the request for an independent medical evaluation, the panel upheld the ultimate commitment decision. 27 Kan. App. 2d at 840.
The third case before the Court of Appeals was In re Care & Treatment of Blackmore, 30 Kan. App. 2d 90. In Blackmore, trial was scheduled for August 2000, approximately 4 months after the probable cause hearing. Before expiration of the 60-day statutory period, no recorded motions for continuance were filed. Shortly before trial was set to begin, Blackmore filed a motion for continuance because witnesses were not available. The motion was granted, and the case rescheduled for trial in October 2000. After Blackmore was found to be a sexually violent predator, he appealed, challenging the delay in his trial.
The Blackmore panel discussed both Brown and Goracke. Noting that Brown had held that the 60-day time limit was “mandatoiy and jurisdictional” and that subject matter jurisdiction issues could be raised at any time, the panel excused Blackmore’s failure to object to the timing of his trial before the district court. 30 Kan. App. 2d at 93-94. The Blackmore panel specifically rejected the State’s argument that the 60-day period should be treated like a speedy trial claim in a criminal case and thus be considered waived if not raised in a timely fashion. 30 Kan. App. 2d at 94. The panel also observed that 59-29a06 contained a timing provision virtually identical to that under examination in Ingram and, “absent language to the contrary, the statute is jurisdictional.” 30 Kan. App. 2d at 95. Because no motion for extension was made or granted before the expiration of the 60-day time limit, the panel agreed with Blackmore that the district court lost jurisdiction of the matter and reversed his SVPA commitment. 30 Kan. App. 2d at 95-96.
Most recently, the Supreme Court weighed in on this issue in Searcy, 274 Kan. 130. In Searcy, the respondent was tried and found to be a sexually violent predator; the trial occurred approximately 9 months after his probable cause hearing was waived. For the first time on appeal, Searcy raised the 60-day limit in K.S.A. 2002 Supp. 59-29a06.
Before the waiver, Searcy had attempted to remove the case to federal court and had filed a motion to change venue. The case was originally set for trial more than 60 days after the probable cause determination. Between the probable cause determination and the trial date, there were a number of motions in the state and federal courts and Searcy’s attorney conducted discovery. After the 60 days had run, but before the trial date, the State filed two motions for continuance; each was granted.
Our Supreme Court reversed Searcy’s commitment. 274 Kan. at 144. The Supreme Court first discussed the 75-day time limit in K.S.A. 2002 Supp. 59-29a04, which had been designated “jurisdictional” in Ingram, noting it was the sole authority for commencing an action. The court also noted that the legislature had amended 59-29a04 less than a year after Ingram was decided and that the statute now stated explicitly that its time limit was not jurisdictional. 274 Kan. at 137. After reviewing Brown and Blackmore, the court stated 59-29a06 was “analogous to the statutory right to speedy trial in criminal cases.” 274 Kan. at 142. The court nevertheless held that the 60-day period was “jurisdictional, mandatory, and a statutory right granted to respondents.” Because of the absence of a motion for continuance within the 60 days, the court reversed. 274 Kan. at 144.
One might justly criticize Searcy and at least the Brown and Blackmore decisions from panels of our court for being too quick to equate the terms “mandatory” and “jurisdictional” with regard to 59-29a06. This provision is, in fact, analogous to our statutes of limitations or speedy trial statute, which are mandatory but subject to waiver. Furthermore, by the time Brown, Blackmore, and Searcy were decided, the legislature had stated unambiguously through its 1999 amendment to 59-29a04 that the 75-day time limit on which Ingram rested was not intended to be jurisdictional. And that time limit was a far more likely candidate for the “jurisdictional” label than the 60-day time limit in K.S.A. 2002 Supp. 59-29a06, because 59-29a04 set forth the requirements for proper commencement of an SVPA action rather than merely the procedure employed once an action was under way.
At this stage, however, we are duty bound to follow our Supreme Court’s precedent. See Mueller v. State, 28 Kan. App. 2d 760, 763, 24 P.3d 149, rev. denied 271 Kan. 1037 (2001), cert. denied 535 U.S. 997 (2002). Searcy must carry the day unless subsequent developments in the legislature or in Supreme Court cases have altered or limited its holding or called it into question. Absent such developments, Searcy requires us to reverse each of the cases before us in which no formal motion for continuance was granted within the 60-day time limit. It does not matter that the “jurisdictional” issue has been raised for the first time on appeal or later; a defect in subject matter jurisdiction may be raised at any time.
There have been legislative developments we must address. As discussed above, the 1999 statutory amendments addressed only the 75-day time limit in 59-29a04. See L. 1999, ch. 140, sec. 4; K.S.A. 2002 Supp. 59-29a04(b). At that point, there had been no cases in which the 60-day time limit of 59-29a06 had been held to be jurisdictional. Since oral argument in this case, the legislature attempted to respond to Brown, Blackmore, and Searcy.
During the 2003 session, the legislature passed, and the governor signed, House Substitute for Senate Bill No. 27, L. 2003, ch. 152, which contained amendments to the SVPA. These amendments specifically provide that none of the time limits in the SVPA is intended now or ever was intended to be mandatoiy or to otherwise affect the district courts’ subject matter jurisdiction.
As amended in 2003, 59-29a01 now reads:
“Notwithstanding any other evidence of legislative intent, it is hereby declared that any time requirements set forth in K.S.A. 59-29a01 et seq. . . ., either as originally enacted or as amended, are intended to be directory and not mandatory .... [Emphasis added.]” L. 2003, ch. 152, sec. 1.
In addition, a new subsection to K.S.A. 2002 Supp. 59-29a06 reads:
“(e) The provisions of this section are not jurisdictional, and failure to comply with such provisions in no way prevents tire attorney general from proceeding against a person otherwise subject to the provision of K.S.A. 59-29a01 et seq., and amendments thereto.” [Emphasis added.] L. 2003, ch. 152, sec. 3.
These revisions went into effect on publication, i.e., on July 1, 2003. See L. 2003, ch. 152, sec. 9. We must therefore analyze whether the amended language applies retroactively to appellants’ proceedings.
In determining whether the provisions of any statute apply prospectively or retroactively, the general rule is that a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise. In re Tax Appeal of Alsop Sand Co., Inc., 265 Kan. 510, 523, 962 P.2d 435 (1998). However, the United States Supreme Court and other jurisdictions have recognized at least two exceptions to this general rule that are relevant here.
The first exception applies when an amendment affects a court’s subject matter jurisdiction. The other applies when an amendment merely clarifies rather than changes a statute.
In Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), the United States Supreme Court addressed whether 1991 amendments to 42 U.S.C. § 1981 (1988 ed. Supp. IV) applied retroactively to cases pending before the amendments’ effective date. The 1991 amendments gave plaintiffs the right to recover compensatory and punitive damages and to receive a jury trial for certain violations of Title VII of the Civil Rights Act. Some of the amendments were enacted in response to a series of Supreme Court decisions interpreting various civil rights statutes.
In Landgraf, the Court discussed at length the presumption against retroactivity of statutes. 511 U.S. at 263-73. The Court found the 1991 amendments affected substantive rights and, therefore, the presumption against retroactivity applied. Because the new statute did not explicitly state it would apply retroactively, the Supreme Court held the amendments could not apply to cases arising before their enactment. 511 U.S. at 286.
In doing so, however, the Supreme Court also recognized there were a number of circumstances where the presumption against retroactivity simply did not apply. 511 U.S. at 273. One such circumstance involved statutes conferring or deleting a court’s subject matter jurisdiction in particular cases. The Court noted:
"We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. Thus, in Bruner v. United States, 343 U.S. 112, 116-117[, 96 L. Ed. 786, 72 S. Ct. 581] (1952), relying on our ‘consistent]’ practice, we ordered an action dismissed because the jurisdictional statute under which it had been (properly) filed was subsequently repealed. [Citations omitted.] Conversely, in Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607-608, n. 6[, 56 L. Ed. 2d 570], 98 S. Ct. 2002 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount-in-controversy requirement for federal-question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was ‘now of no moment.’ [Citations omitted.] Application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ Hallowell [v. Commons], 239 U.S. 506, 508[, 60 L. Ed. 409, 36 S. Ct. 202 (1916)]. Present law normally governs in such situations because jurisdictional statutes ‘speak to the power of the court rather than to the rights or obligations of the parties’ Republic Nat. Bank of Miami [v. United States], 506 U.S. [80,] at 100 [121 L. Ed. 2d 474, 113 S. Ct. 554 (1992) (Thomas, J., concurring)].” (Emphasis added). 511 U.S. at 274.
The reasoning in Landgraf seems to be applicable in this case to the extent our courts have treated the time limits of 59-29a06 as a question of subject matter jurisdiction. Because the amendments can be characterized as speaking only to the power of the court to hear appellants’ commitment cases rather than granting or denying any substantive rights to the appellants, retroactively applying the statute would be appropriate under this exception. This result leads to an anomaly, however, given the 2003 amendments’ language clearly indicating the 60-day time limit was never intended to be interpreted to affect the existence of a court’s subject matter jurisdiction.
The second exception to the presumption against retroactivity potentially applicable here involves amendments designed purely to clarify the" meaning of an earlier enactment. For example, in Beverly Community Hosp. Ass’n v. Belch, 132 F.3d 1259 (9th Cir. 1997), cert. denied 525 U.S. 928 (1998), the court addressed the retroactivity of a statutory amendment relating to Medicare. Noting that the Secretary of Health and Human Services and federal courts had disagreed over the meaning of the prior statute, the amendments constituted a clarification of existing law rather than a substantial change in that law. The application of the amendment to pending cases, including those on appeal, consequently did not pose potential constitutional problems. 132 F.3d at 1266-67.
Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. 1999), cert. denied 528 U.S. 1136 (2000), also is illustrative. In that case, the court applied the law as set forth in a clarifying amendment to a pending proceeding because the amendment accurately restated the prior law. In Quinlan v. Koch Oil Co., 25 F.3d 936, 941, (10th Cir. 1994), the court held that, under Oklahoma law, a clarifying amendment that explained an ambiguous statute to more clearly express legislative intent would be given retroactive application if it did not impair vested rights.
Application of the clarifying amendment exception would require us to determine whether the 2003 amendments to the SVPA truly “clarified” the statute rather than changed it. In Piamba Cortes, the Eleventh Circuit Court of Appeals suggested various factors that should be considered:
“A significant factor is whether a conflict or ambiguity existed with respect to the interpretation of the relevant provision when the amendment was enacted. If such an ambiguity existed, courts view this as an indication that a subsequent amendment is intended to clarify, rather than change, the existing law. [Citation omitted.] Second, courts may rely upon a declaration by the enacting body that its intent is to clarify the prior enactment. [Citation omitted.] Courts should examine such declarations carefully, however, especially if the declarations are found in the amendment’s legislative history rather than the text of the amendment itself. [Citation omitted.]” 177 F.3d at 1283-84.
Previously, the 60-day time limit of 59-29a06 has been consistently interpreted as jurisdictional, by our court and our Supreme Court, even if that interpretation now appears to be incorrect. The counterweight to this interpretation is the 2003 amendments’ expression of the 2003 legislature’s obvious intention that the changes be seen as clarifying the intention of the legislature that enacted the original language. The amended version of K.S.A. 2002 Supp. 59-29a01 states: “[A]ny time requirements set forth in K.S.A. 59-29a01 et seq. . . ., either as originally enacted or as amended, are intended to be directory and not mandatory . . . .(Emphasis added.)” L. 2003, ch. 152, sec. 1. There can be little doubt that legislators were aware of Brown, Blackmore, and Searcy and did not agree with their results.
The Tenth Circuit Court of Appeals has expressed some skepticism about such legislative attempts to overturn a judicial interpretation by passing “clarifying” amendments. In DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 911 F.2d 1377 (10th Cir. 1990), cert. denied, 498 U.S. 1074 (1991), the court rejected retroactivity as an effect of clarification without an additional clear statement that retroactivity was intended:
“When a subsequent Congress amends the law in response to the Supreme Court’s interpretation, it does not revive the original enacting Congress’s interpretation of the statute which existed before the Supreme Court’s interpretation. Rather, the result of a subsequent Congress’s ‘restoration’ efforts is newly created law. As with any newly enacted legislation, Congress must state clearly its intentions with regard to retroactivity.” 911 F.3d at 1388.
Given our ambivalence about the soundness of the jurisdictional holding of the Brown-Blackmore-Searcy line of decisions and our confidence that those cases probably would come out the other way if decided today, we are unwilling to apply either the subject matter jurisdiction exception or the clarifying amendment exception to avoid the presumption of no retroactivity in this case. As mentioned, application of the subject matter jurisdiction exception leads to an anomalous result, an analytical disconnect. We are also troubled by the fact that the supposedly clarifying amendments were clearly motivated not by inconsistent decisions exposing an ambiguity but by consistent decisions the legislature merely found unpalatable and wished to overturn. Especially given our position as an intermediate court, we are reluctant to grant the legislature that absolute power here.
The latest Kansas Supreme Court case to examine retroactivity did not address either the subject matter jurisdiction or clarifying amendment exceptions to the general rule that statutory amendments are not retroactive. Moreover, it provided for further court review of a potentially retroactive enactment, even when the legislature had expressed a clear preference for retroactive application. In that case, Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-28, 73 P.3d 753 (2003), the court merely stated the presumption of no retroactivity absent a clear legislative intent to the contrary. It required courts to engage in a further inquiry to discern whether retroactive application would affect vested or substantive rights. If so, even the legislature’s clear statement of its intention would not trump constitutional guarantees of due process. If retroactive application affected vested or substantive rights, it would not be permitted, period.
In our view, the 2003 legislature’s inclusion of the “as originally enacted” language in the amendments to K.S.A. 2002 Supp. 59-29a01 constitutes a clear statement not only that legislators wanted the amendments to be seen as clarifying but that they intended them to be applied retroactively. In short, legislators and their constituents saw men eligible for adjudication as sexually violent predators who were able to escape indefinite civil commitment because the State was slow to get to trial or, worse, merely neglected to move for a formal continuance. They did not like these results, and they did what they could to ensure that such results stopped.
Owen Lumber therefore demands that we move to the question of whether retroactive application would affect the appellants’ vested or substantive rights and thus violate due process.
Our Supreme Court enumerated three factors to be considered in identifying the sometimes hazy line between vested and non-vested rights. Owen Lumber involved amendments to mechanics’ hen statutes. The amendments added notice requirements for holders of equitable interests in property. In determining whether the amendments could be applied retroactively without running afoul of due process, the Supreme Court looked to: (1) the nature of the rights at stake, i.e., whether those rights were procedural, substantive, or remedial; (2) how the rights would be affected, i.e., whether the rights would be partially or completely abolished or whether there would be any substitute remedy provided; and (3) “the nature and strength of die public interest furthered by the legislation.” 276 Kan. at 225.
The Supreme Court concluded that retroactive application of the mechanics’ lien notice provisions would be unconstitutional. Contractors would lose otherwise valid liens unless they were given a reasonable time to comply with the statutory amendments. 276 Kan. at 227-28.
Moving to an application of the factors in this case, we note initially that, on the one hand, Searcy compared the 60-day time limit to a civil statute of limitations or a criminal speedy trial provision. 274 Kan. at 142. The United States Supreme Court has ruled that Kansas’ SVPA contemplates a civil, rather than a criminal, proceeding. See Kansas v. Hendricks, 521 U.S. 346, 372-73, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997) (involuntary confinement pursuant to SVPA not criminal, punitive; no double jeopardy, ex post facto violation; neither statutoiy nor constitutional speedy trial guarantees in issue). Assuming therefore that we are operating in the civil realm, we note that a statute of limitations may be waived by a party or lost as a defense if not timely raised. In addition, our Supreme Court has held that a party has no vested, right in a particular statute of limitations and that retroactive amendment to a statute extinguishing a right to prosecute an accrued cause of action does not implicate due process. See Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668-69, 831 P.2d 958 (1992).
More important, because it is more analogous to this case, the United States Supreme Court has held tire converse to be true as well: Retroactive changes extending statutes of limitation do not violate defendants’ constitutional rights. See Chase Securities Corp. v. Donaldson, 325 U.S. 304, 311-14, 89 L. Ed. 1628, 65 S. Ct. 1137 (1945) (state legislature’s retroactive change to statute of limitations lifting bar of prior statute not deprivation of defendant’s property without due process); Campbell v. Holt, 115 U.S. 620, 628, 29 L. Ed. 483, 6 S. Ct. 209 (1885) (law eliminating statue of limitations defense after perfection constitutional); but see Chenault v. United States Postal Service, 37 F.3d 535, 539 (9th Cir. 1994) (newly enacted statute not applied retroactively to revive plaintiff s claim; to do so would alter substantive rights of defendant, increase liability). These decisions paint the rights at stake in this case as more procedural than substantive, more nonvested than vested.
The fact that, even under Searcy, SVPA trials may be continued beyond the 60 days on a formal motion also weighs in favor of treating the time limit as creating merely procedural and not substantive or vested rights. See Searcy, 274 Kan. at 144.
On the other hand, Searcy also stated that the 60-day time limit was “jurisdictional, mandatory, and a statutoiy right granted to respondents.” 274 Kan. at 144. In effect, the Searcy opinion treated the time limit more like a substantive statute of repose. See Harding, 250 Kan. at 663, 670 (implying amendment to statute of repose could not apply retroactively; however, amendments in question dealt only with statute of limitations).
Regarding the second of the three Owen Lumber factors, it is clear the 2003 amendments would effectively deprive at least some of the appellants of a complete defense to the State’s effort to commit them involuntarily for an indefinite period. The “jurisdictional” label placed on the 60-day time limit by Brown, Blackmore, and Searcy had given those whose trials were not formally continued within the 60-day period a complete defense.
The final Owen Lumber factor, the interest of the public furthered by the legislation, weighs heavily in favor of the State’s position here. The public has an enormous interest in seeing that persons who qualify as sexually violent predators are removed from society and treated in appropriate facilities. Both the appellants and the public have an interest in prompt and orderly proceedings to determine sexually violent predator status. In our view, retroactive application of the 2003 amendments protects the first interest without doing significant harm to the second.
This analysis of the Owen Lumber factors leads us to conclude that the balance tips in favor of retroactive application of the 2003 amendments. Even if we begin with the customary presumption of no retroactive application, the legislature has expressed its clear view to the contrary, and we detect no due process violation. In the peculiar context at hand, this conclusion also has the virtue of working a practical correction in the direction of the law set by Brown, Blackmore, and Searcy. This is a correction we believe our Supreme Court would endorse if given the opportunity to do so.
Our conclusion also requires us to affirm each of the appellants’ cases. Because the 60-daytime limit of K.S.A. 2002 Supp. 59-29a06 is directory and not mandatory, the failure to bring each appellant to trial within 60 days of the determination of probable cause did not divest the district court of subject matter jurisdiction in any properly commenced proceeding. The appellants were not entitled to relief from their commitment orders. Their challenges based on the 60-day time limit were purely procedural and thus came too late.
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Johnson, J.:
Christopher Logsdon appeals the denial of his K.S.A. 60-1507 motion, which claimed the statute under which he was charged, convicted, and sentenced violated his equal protection rights. We affirm.
Logsdon walked- away from the Hutchinson Correctional Facility. He subsequently pled guilty to aggravated escape from custody in violation of K.S.A. 2001 Supp. 21-3810(a)(7) and received a presumptive sentence. Shortly after sentencing, he filed for postconviction relief, challenging the constitutionality of K.S.A. 2001 Supp. 21-3810.
As a preliminary matter, we note the record does not contain the transcript of the district court hearing or the district court’s memorandum decision. Such omission hampers our review. “The burden is upon the appellant to designate a record sufficient to present his or her points to the appellate court and to establish die claimed error.” Sterba v. Jay, 249 Kan. 270, 280, 816 P.2d 379 (1991). Nevertheless, in the interest of judicial economy, we will address the constitutionality question.
“Whether a statute violates equal protection is a question of law over which this court has unlimited review.” State v. Mueller, 271 Kan. 897, 902, 27 P.3d 884 (2001). A statute is presumed to be constitutional, and if there is “any reasonable way to construe a statute as constitutionally valid, the court must do so.” Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
K.S.A. 2001 Supp. 21-3810(a) sets forth seven scenarios constituting aggravated escape from custody; it is escaping while held in lawful custody:
“(1) upon a charge or conviction of a felony or (2) upon a charge or adjudication as a juvenile offender . . . where the act, if committed by an adult, would constitute a felony or (3) prior to or upon a finding of probable cause for evaluation as a sexually violent predator . . . or (4) upon commitment to a treatment facility as a sexually violent predator ... or (5) upon commitment to the state security hospital . . . based on a finding that the person committed an act constituting a felony or (6) by a person 18 years of age or over who is being held on an adjudication of a felony or (7) upon incarceration at a state correctional institution . . . while in tire custody of the secretary of corrections.”
The penalties under the statute are based on two factors: (1) the individual’s escape scenario and (2) whether violence or tire threat of violence was employed. K.S.A. 2001 Supp. 21-3810(c). For instance, a sexually violent predator escaping from a treatment facility without using violence would be charged with a severity level 8, nonperson felony, while a sexually violent predator escaping from a treatment facility using violence would be charged with a severity level 6, person felony. K.S.A. 2001 Supp. 21-3810(c)(l) and (2). In contrast, an individual escaping from incarceration at a state correctional institution without using violence would be charged with a severity level 5, nonperson felony, while an individual escaping from the state institution using violence would be charged with a severity level 5, person felony. K.S.A. 2001 Supp. 21-3810(c)(2) and (4). Logsdon claims that the disparate penalties for similarly situated individuals, i.e., persons who escape from custody, violates his equal protection rights and renders the statute unconstitutional.
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution demands that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of .the laws.” The guiding principle of the Equal Protection Clause is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Chiles v. State, 254 Kan. 888, 895, 869 P.2d 707, cert. denied 513 U.S. 850 (1994).
When analyzing an equal protection claim, the United States and Kansas Supreme Courts employ three levels of scrutiny: strict scrutiny, intermediate scrutiny, and the rational basis test. Chiles, 254 Kan. at 891. The level of scrutiny applied by the court depends on the nature of the legislative classification and the rights affected by that classification. Romer v. Evans, 517 U.S. 620, 632, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). The general rule is that a law will be subject to the rational basis test unless the legislative classification targets a suspect class or burdens a fundamental right. 517 U.S. at 631. In Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987), the Kansas Supreme Court stated:
“When a statute is attacked on equal protection grounds, the general rule is that the statute is presumed constitutional, and the burden is on the party attacking the statute to prove otherwise. Only in cases involving ‘suspect classifications’ or ‘fundamental interests’ is the presumption of constitutionality displaced and the burden placed on the party asserting constitutionality to demonstrate a compelling state interest which justifies the classification.”
Logsdon maintains that strict scrutiny should be used to analyze his equal protection claim because the legislative classifications in K.S.A. 2001 Supp. 21-3810 burden his fundamental “right to be free from cruel or unusual punishment” under the Eighth Amendment to the United States Constitution. Logsdon argues that the sentencing disparities are so disproportionate as to shock the conscience and offend fundamental notions of human dignity.
Logsdon’s strict scrutiny argument appears to combine the analyses for alleged violations of the Eighth Amendment and the Equal Protection Clause into one framework. However, Eighth Amendment claims are analyzed separately from equal protection claims. See State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (1980); State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978); State v. Sherk, 217 Kan. 726, 538 P.2d 1399 (1975).
The Eighth Amendment is violated by punishment that “is so disproportionate to the crime . . . that it shocks the conscience and offends fundamental notions of human dignity.” Freeman, 223 Kan. at 367. The Eighth Amendment analysis focuses on whether the punishment is grossly disproportionate to the crime committed, i.e., whether the punishment fits the crime. 223 Kan. at 367; see also State v. Tyler, 251 Kan. 616, 645-46, 840 P.2d 413 (1992) (in Eighth Amendment case, court refused to consider whether defendant’s sentence was disproportionate to other sentences for other crimes; instead, court looked to whether defendant’s sentence was grossly disproportionate to his crimes). The Equal Protection Clause, in contrast, does not look to whether the punishment was proportionate to the crime; rather, it focuses on why similarly situated individuals received different punishments. Logs-don does not argue or allege that his sentence of 53 months is grossly disproportionate to the crime of aggravated escape from custody. He alleges that his sentence of 53 months is more severe than the punishments administered to other individuals who escape from facilities other than a state correctional facility. As such, Logsdon cannot show that K.S.A. 2001 Supp. 21-3810 burdens his right to be free from cruel and unusual punishment under the Eighth Amendment.
Without a showing that K.S.A. 2001 Supp. 21-3810 targets a suspect class or burdens a fundamental right, Logsdon’s equal protection claim is examined under the rational basis test. Kansas courts have previously applied the rational basis test to equal protection challenges of sentencing classifications. See State v. Perez, 269 Kan. 340, 11 P.3d 52 (2000) (court applied rational basis test to sentencing guidelines classifications); Chiles, 254 Kan. 888 (classifications created by retroactivity provision of Sentencing Guidelines Act were subject to rational basis test); Freeman, 223 Kan. 362 (court applied rational basis test to statute that denied probation and parole to certain defendants).
Under the rational basis test, a law will be upheld if it is reasonably related to a legitimate State interest. Perez, 269 Kan. at 342. “ The rational-basis test contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals.’ [Citations omitted.]” Chiles, 254 Kan. at 892. The legislature apparently believes that individuals who escape from state correctional facilities pose a greater threat to society than those who escape from security hospitals or county jails. Indeed, an argument may be made that a convicted felon imprisoned in a state correctional facility is not similarly situated to a juvenile offender in the custody of the juvenile justice authority or to a misdemeanant on work release from a county jail. Granted, Logsdon can concoct scenarios which might tempt us to opine on the appropriateness of the penalties imposed by the legislature. However, “[t]he power to prescribe the penalty to be imposed for the commission of a crime rests exclusively with the legislature, not the courts.” State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985). Applying the deferential rational basis scrutiny, we find that K.S.A. 2001 Supp. 21-3810 does not violate the Equal Protection Clause.
We note Logsdon’s brief mentions that the statute is vague. Without a complete record, we do not know if the district court addressed the question of whether K.S.A. 2001 Supp. 21-3810 is unconstitutionally vague. Again, to expedite the judicial process, we find that K.S.A. 2001 Supp. 21-3810(a)(7) and (c)(4), together with K.S.A. 75-5202, gave Logsdon fair warning that when he made his nonviolent escape from Hutchinson Correctional Facility, he was committing a severity level 5, nonperson felony. The statute is not unconstitutionally vague.
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Larson, J.:
In this medical malpractice case, Roger Handy appeals from the trial court’s grant of summary judgment in favor of William O. Reed, Jr., M.D., based upon the bar of the statute of limitations, K.S.A. 60-513(a)(7), and the 4-year statute of repose, K.S.A. 60-513(c).
Because the facts, dates, and reasons for actions taken by Handy are critical to the decision we reach, they will be set forth in considerable detail.
Factual and procedural background
In September 1994, Handy, while working as a certified nurse assistant and home health aide, suffered a rotator cuff injury which ultimately required surgery. Following rehabilitation treatment, Handy returned to his former employment. Shortly thereafter, Handy was injured again and a second rotator cuff surgery was performed. Rehabilitation treatment again was performed, and Handy again returned to work. In 1996, Handy suffered a third work-related shoulder injury. Handy’s medical care was covered by his employer’s workers compensation carrier during this period.
The third shoulder injuiy resulted in Handy first being sent to Occupational Health Service, which referred Handy to Dr. Reed in July 1996. Dr. Reed initially recommended only physical therapy but ultimately performed a third rotator cuff surgeiy on Handy on October 16,1996. After this surgery, Handy was treated with physical therapy and then underwent a work-hardening program.
Handy’s progress was followed by Dr. Reed until Januaiy 20, 1997, when he released Handy to return to work without any restrictions. Prior to his release, Handy had told his physical therapist he felt something unusual in his shoulder during the work-hardening exercises. He attempted to further contact Dr. Reed, but a break in communications existed and no further contact between the two resulted.
Handy felt there was still something wrong with his shoulder which would not allow a return to work without restriction. Handy applied for social security disability in Januaiy 1997 and was subsequently examined by several physicians who felt it was possible he still had a rotator cuff tear. Handy’s attempt to obtain a second opinion was apparently hampered by a workers compensation controversy over coverage. It was not until May 1998 that the administrative law judge authorized further treatment by Dr. Larry Frevert.
In February 1998, Dr. Reed rendered an opinion in the ongoing workers compensation case based on a recent arthrogram and MRI but without seeing Handy. It was his opinion Handy might have a pinhole or suture tract communication in the rotator but did not have a significant tear and did not need or require further surgeiy.
It appears that Handy had seen Dr. Frevert on December 10, 1997, for a followup after an arthrogram of his shoulder. Dr. Frevert’s letter of that date states the arthrogram revealed a “full thick ness rotator cuff tear.” Dr. Frevert noted he had discussed Handy’s condition with him and informed him of the need and risks for surgery to repair his injury.
Subsequent to the approval for additional medical treatment ordered by the administrative law judge, Handy again saw Dr. Frevert on July 23, 1998. A report of this consultation reiterates the existence of the rotator cuff tear and indication of Handy’s understanding of his condition. The report further indicated that it was .unrealistic to expect Handy to return to work in his previous occupation regardless of the outcome of his subsequent surgery.
Dr. Frevert did a fourth surgeiy on Handy on September 4, 1998. A significant rotator cuff tear was repaired. On November 20, 1998, Dr. Frevert informed Handy he would not be able to return to his former employment and as .to “specific restrictions at this time, he is basically at no use of his left arm.” The record reflects numerous additional office visits by Handy to Dr. Frevert and ultimately in a letter to Handy’s workers compensation counsel opined on June 28, 1999, that Handy “has somewhere between a twenty-five and thirty percent (25 and 30%) impairment at the level of the shoulder of the left arm.”
Handy’s affidavit in response to Dr. Reed’s motion for summary judgment states that he sought legal counsel concerning Dr. Reed’s care subsequent to the November 20,1998, appointment with Dr. Frevert. Handy was informed that any claim against Dr. Reed would only be that he lost a significant chance for a better recovery because of the manner in which Dr. Reed managed the rehabilitation of his shoulder and that any recovery would be subject to the statutory lien in favor of his former employer’s workers compensation carriers. His affidavit acknowledges that he knew his claim could not be prosecuted economically as long as the lien existed.
Handy’s first case (Handy I) was filed against Dr. Reed on September 5, 2000, but Dr. Reed was never served during the initial 90 days after the filing or during the 30-day extension Handy obtained. Handy contends this was because his workers compensation claim was still unresolved. On January 3, 2001, the district court granted Handy’s request for a voluntaiy dismissal of Handy I “with out prejudice subject to refiling within a six-month period from this date.” It is important that Dr. Reed never appeared in Handy 1 and was not served with process in Handy I.
Exactly 6 months later on July 3, 2001, Handy filed a second malpractice action against Dr. Reed (Handy II) reasserting the same claims he had made in Handy I. Handy had settled his workers compensation claim and obtained waiver of the statutory lien by the compensation carrier, and Dr. Reed was served with process in Handy II on October 21, 2001.
Dr. Reed answered. After discovery, Dr. Reed moved for summary judgment based on several statute of limitations and statute of repose defenses. Handy responded, oral argument was held, and on January 2,2003, the trial court issued its memorandum decision granting Dr. Reed’s summary judgment motion and dismissing the case. The trial court stated:
“This motion raises two points as the basis of the position of the defendant; one, whether this action is time-barred for not having been commenced within the two (2) year period wherein the plaintiff s injuries were reasonably ascertainable, and two, whether the plaintiffs claim falls outside the four (4) year statute of repose. After much consideration, the Court finds and holds that Summary Judgment is granted as to both issues.
“Plaintiff maintains that the case of Jones v. Neuroscience Associates, 250 Kan. 477 (1992) is on point as to the determination of when a plaintiffs injuries are reasonably ascertainable, and that this determination is a ‘jury question.’ The Court has examined the Jones case in detail, and is convinced that the facts of that case greatly differ from the case at bar. In Jones the experts [doctors] were in dispute as to this issue. In this case it seems clear that the injuries were known, were told to the plaintiff, and that from that point it was more than two years before the filing of the case.
“The plaintiff further argues that this case was dismissed, and then refiled, after input from the Court. While this may be true, it is clear that under Kansas law, a case is not commenced until the defendant is served. As that act did not take place until after the Statute of Repose time period, the second basis for summary is also well founded.”
Contentions of Handy
Handy has timely appealed. He contends (1) the granting of summary judgment was erroneous because there are controverted issues of material facts existing in die case, and (2) he properly relied on the trial court’s authority under K.S.A. 60-241(a)(2) to enter the order in Handy I on January 3, 2001, allowing him to refile within a 6-month period, resulting in Handy II being timely commenced, relating back to September 5, 2000, and not being barred by either the statute of limitations or die statute of repose.
Contentions of Dr. Reed
Dr. Reed argues, as he did before the trial court that (1) Handy I was not “commenced” on September 5, 2000, (2) Handy had actual knowledge of the extent and severity of his injuries prior to September 5,1998, (3) Handy did not commence his action against Dr. Reed within 2 years of the time he admits his injuries were reasonably ascertainable or within 4 years of the occurrence of the act giving rise to his claims, (4) K.S.A. 60-241(a)(l) rather than K.S.A. 60-241(a)(2) applies to Handy’s dismissal of Handy I, and (5) even if K.S.A. 60-241(a)(2) applies, the dismissal order was invalid because it affects Dr. Reed’s rights despite the fact the court had never acquired jurisdiction over him at the time the order was issued and because the trial court did not have the power or statutory authorization to enter an order overriding and contrary to Kansas statutory law which has been legislatively established.
Standards of review
The standard of review where summary judgment is granted is well known. The trial court (and appellate court on review) is required to resolve all facts and inferences which may reasonably be drawn from die evidence in favor of the party against whom the ruling is sought. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). However, if the disputed fact, however resolved, could not affect tire judgment, it does not present a genuine issue of material fact. Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Ultimately, the issues in this case are controlled by various statutes and their interrelation. Resolving these questions are questions of law over which our appellate review is unlimited. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000). Our rules of statutory construction, like the review of grants of summary judgment, are well known and need not be restated here.
Statutes of limitations and repose
Handy’s allegations in his petition in regards to the rendering of services by a health care provider and with the statutes of limitation and repose in issue relate directly to the following statutory provision of K.S.A. 60-513 which states: “(a) The following actions shall be brought within two years: ... (7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.” Additionally, K.S.A. 60-513(c) is directly applicable in this case and states:
“(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then tire period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action.”
Statutes relating to commencement of actions, dismissal of actions, and saving of actions
The result in this complex case will turn on the wording and construction of the statutes relating to commencement, dismissal, and saving of Handy I and Handy II. We next set forth the applicable provision of these statutes.
K.S.A. 60-203 provides:
“(a) A civil action is commenced at the time of (1) filing a petition with the court, if service of process is obtained or tire first publication is made for service of publication within 90 days after the petition is filed, except that tire Court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.” (Emphasis added.)
Dr. Reed argues that because he had never been served at the time of the dismissal in Handy I, the provisions of K.S.A. 60-241(a)(l) relating to voluntary dismissal apply, and because the dismissal is to be entered “as a matter of course,” the court does not have the power to set terms and conditions upon which such dismissal can be achieved when the dismissal is in effect voluntary.
The facts of our case show tire dismissal in Handy I was by order of the court. We set forth here and will ultimately reach our conclusion based on the language of K.S.A. 60-241(a)(2), which states:
“(2) By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed at the plaintiffs instance save upon order of the judge and upon such terms and conditions as the judge deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.”
Finally, if tire refiling of Handy II relates back to the filing of Handy I, it is only because of the authorization of the savings statute, K.S.A. 60-518:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.”
Analysis
We have previously set forth the contentions of both Handy and Dr. Reed. We will respond to those arguments, but we resolve this appeal by answering the following three questions:
1. On what date is Handy II deemed to have been commenced? ANSWER: July 3, 2001.
2. Was it legally proper for the trial court to judicially extend the statute of limitations beyond that which has been legislatively established? ANSWER: No.
3. Does a material fact remain to be determined that requires summary judgment in favor of Dr. Reed to be reversed? ANSWER: No. Even taking the latest date when Handy admits he reasonably ascertained his injury (November 20, 1998), the period of limitations within which to bring his cause of action against Dr. Reed has expired.
Although Handy II was filed on July 3, 2001, and service was obtained on Dr. Reed making this the commencement date of this action, Handy argues the actual commencement date of Handy II must be determined to relate back to September 5, 2000, the date Handy I was filed.
Critical to our analysis of this issue is the fact that Dr. Reed was never served with process in Handy I.
K.S.A. 60-203(a)(l) allows the time an action is commenced to be the date the petition is filed “if service of process is obtained.” (Emphasis added.) In order for a subsequent action to relate back to the commencement of a prior action, K.S.A. 60-518 requires the prior action must be “commenced within due time.” (Emphasis added.)
These statutory requirements have been the subject of several decisions by our Kansas courts. In Dunn v. City of Emporia, 7 Kan. App. 2d 445, Syl. ¶ 6, 643 P.2d 1137, rev. denied 231 Kan. 799 (1982), it was held:
“(a) A previous identical action against the city was not ‘commenced within due time’ under K.S.A. 60-518, where service was made upon the city attorney and not upon the mayor or clerk as required by K.S.A. 60-304(d); (b) such service on the city attorney was void, not merely voidable; and (c) the provisions of K.S.A. 60-518 being inapplicable to extend the statute of limitations, the action of the trial court in dismissing this cause was proper.”
The identical rule was applied in Newell v. Brollier, 239 Kan. 587, 589, 722 P.2d 528 (1986), where it was said: “K.S.A. 60-518 is inapplicable herein as the original action was not ‘commenced within due time.’ ” See Elliott v. White, O’Conner & Werner, P.A., 750 F. Supp. 451 (D. Kan. 1990). For an excellent discussion of this precise question, see Smith, Is Your Lawsuit Properly CommencedP, 21 K.T.L.A.J. 19 (Sept. 1997).
We hold tire mere filing of the petition and dismissal of the action without ever serving the defendant does not allow the case to be deemed to have been commenced under K.S.A. 60-203(a) to allow the provisions of K.S.A. 60-518 to operate to save Handy’s subsequent action. Thus, we hold that Handy II was commenced on July 3, 2001, not September 5, 2000.
It is only if the trial court’s order of Januaiy 3, 2001, in Handy I would be deemed to have been legally sufficient to invoke the savings provisions of K.S.A. 60-518 that Handy II could be deemed to have been commenced on September 5, 2000.
We recognize Dr. Reed’s argument that because he had never been served in Handy I at the time of the dismissal that K.S.A. 60-241(a)(1) rather than (a)(2) applies and thus the dismissal would be automatic, preventing the trial court from having the power to set terms and conditions upon which such dismissal can be achieved. While such an argument may be correct, the dismissal in our case was not voluntary by the plaintiff and involved a court order. We reach the same result based on the application of either 60-241(a)(l) or (a)(2) and since a court order was involved here, we will consider whether the trial judge legally allowed the savings clause of K.S.A. 60-518 to be applied to a case that had never been legally “commenced” when the Januaiy 3, 2001, order in Handy I was entered.
It is fundamental to our system of government that the legislature makes our laws dealing with periods of limitations and the judiciary interprets and enforces such laws. In KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 674-77, 941 P.2d 1321 (1997), the authority of the legislature regarding adoption of periods of limitations was discussed and acknowledged. The KPERS opinion quotes from Harding v. KC Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992), which in turn relied on Chase Securities Corp. v. Donaldson, 325 U.S. 304, 89 L. Ed. 1628, 65 S. Ct. 1137, reh. denied 325 U.S. 896 (1945), and teaches us that “ ‘[t]he Court further stated statutes of limitations . . . are creatures of the legislature and not the judiciary, expressing public policy on the right to litigate. The shelter afforded by the running of the statute of limitations ... is subject to a large degree of legislative control.’ ” KPERS, 262 Kan. at 676 (quoting Harding, 250 Kan. at 667).
As we have clearly set forth, the trial court never obtained jurisdiction over Dr. Reed in Handy I. Dr. Reed has been given by the Kansas Legislature the right to be free of claims which have not been timely commenced against him within the time set forth in K.S.A. 60-513. It was improper for the trial court to deny Dr. Reed his statutory rights by a court order in a case in which he was not a party.
The cases as to tire necessity of having “jurisdiction over the person” are legion and well summarized in Casad, Jurisdiction and Forum Selection, § 4.13, p. 44 (2d ed. 2002), by the following statement:
“The right to be heard is fundamental to our conception of justice. Before the power of the state can be used to deprive a person of life, liberty, or property the person must have an opportunity for a day in court. And before the day in court, the person must receive some notice [i.e., service of process], . . .”
The trial court’s order in Handy I dated January 3, 2001, does not comply with the requirements of K.S.A. 60-203 and K.S.A. 60-518 and does not validly extend the statute of limitations within which Handy had to file a claim against Dr. Reed.
• We have considered but completely discounted that the ruling in Peterson v. Garney Constr. Co., 2 Kan. App. 2d 587, 584 P.2d 1269 (1978), requires the trial court to be considered to have the authority to judicially extend the statute of limitations without statutory authority. Peterson differs greatly factually and does not justify granting a trial court authority that does not exist.
The trial court in this case correctly recognized that the power to extend the statute of limitations did not exist for both of the reasons above stated and correctly held that Handy II was not lawfully commenced until July 3, 2001, a time when both the statute of limitations and the statute of repose had run. The trial court correctly granted summary judgment to Dr. Reed in this case.
Had we decided that Handy II was .deemed commenced on September 5, 2000, the language of K.S.A. 60-513(c) that if “the ■fact of injuiy is not reasonably ascertainable until some time after the initial act, then the period of limitations shall not commence until the fact of injuiy becomes reasonably ascertainable to the injured party” would be material in this case.
Dr. Reed appears to have valid arguments that Handy should not only have actually known but also that the facts of his injury were reasonably ascertainable at the time of his appointments witb Dr. Frevert on December 10, 1997, and July 23, 1998. However, Handy argues the facts were not known or reasonably ascertainable to him until the first appointment after his September 4, 1998, surgery or November 20,1998, when Dr. Frevert informed Handy he would never return to his former employment and have limited use of his left arm.
We need make only slight comment on the parties’ disagreement over the application of Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 827 P.2d 51 (1992), to the facts of our case. We agree with the trial court’s conclusion that Jones is factually different because there the opinion of the experts (doctors) were in dispute. Here, it is clear the fact of the injuries were known and told to Handy and from the latest of those times, November 20,1998, it was more than 2 years before this case was filed.
Therefore, the disputed facts, however resolved, do not present a genuine issue of material fact which precluded the granting of summary judgment. Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2002).
We agree that taking the latest possible date that Dr. Reed treated Handy as being Januaiy 31,1997, more than 4 years passed between such date and the time Handy II was commenced on July 3, 2001. The 4-year statute of repose of K.S.A. 60-513(c) had clearly expired. The trial court correctly granted summary judgment based on the statute of repose.
Finally, the actions taken on Handy’s behalf in this case were a deliberate attempt to extend the limitations period based on the wording of K.S.A. 60-241(a)(2) and the language of Peterson, 2 Kan. App. 2d 587. It was a reasonable attempt to set up a situation where Handy might enjoy an economic benefit if his claim against Dr. Reed could be established. An earlier timely filed action would only have benefitted the holder of the workers compensation lien and the counsel who might have successfully prosecuted such an action. We find no fault with the actions taken on Handy’s behalf; that they were not successful represents nothing more than the risks of iitigation.
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The opinion of the court was delivered by
Herd, J.:
This is a civil action against the estate of Bert Stratmann by several charities—Central Kansas Medical Center, First Presbyterian Church of Ellsworth, Sterling College, Ellsworth County Veterans Memorial Hospital, and Lutheran Society Good Samaritan Home. The claimants allege Bert Stratmann and his brother and sister made mutual and contractual wills, leaving all their property to the claimants. The claimants contend Bert breached the contract when he executed a new will giving all his property to Edith Stratmann, his wife. Following a jury trial, a verdict was returned in favor of the claimants.
The facts of this case reveal a long history of litigation within the Stratmann family. Tena Stratmann was the mother of seven children: Chris, Bert, Edwin, Otto, Marvin, Ervin, and Mathilda. Edwin predeceased his mother and the other children. Chris, Marvin, and Ervin each married and were thereafter treated as outsiders by the three single Stratmanns, Bert, Otto, and Mathilda. After Tena Stratmann’s death in 1960, numerous lawsuits and partition actions were filed among the children. Eventually, Bert, Otto, and Mathilda each held a one-third interest of Tena Stratmann’s considerable estate.
On April 23, 1970, Bert revoked all prior wills and executed a new will wherein he left all his property to Otto and Mathilda to share absolutely and forever, or to the survivor of them. In the event that Otto and Mathilda predeceased Bert, the will provided for disposition of the estate in the following manner:
St. Peter’s Lutheran Cemetery Assoc., Holyrood $1,000
Good Samaritan Center Bldg. Fund, Ellsworth 10%
Ellsworth County Veterans Memorial Hosp. 10%
First Presbyterian Church of Ellsworth Bldg. Fund 30%
Sterling College Endowment for Scholarship Fund 50%
On July 16, 1970, Otto executed a similar will. He left his entire estate to Bert and Mathilda to share absolutely and forever, or to the survivor of them. In the event that Bert and Mathilda predeceased Otto, the will provided for division as follows:
St. Peter’s Lutheran Cemetery Assoc., Holyrood $2,000
Good Samaritan Center Bldg. Fund, Ellsworth 10%
Ellsworth County Veterans Memorial Hosp. 10%
First Presbyterian Church of Ellsworth Bldg. Fund 25%
Central Kansas Medical Center, Great Bend 10%
Sterling College Memorial Endowment Scholarship
Fund, as follows: 45%
Memorial Scholarship Fund In Memory of
Bert J. Stratmann
Otto Stratmann
Mathilda Stratmann of Lorraine, Kansas
There is no record of a 1970 will executed by Mathilda. Testimony by Mathilda in the probate of Otto’s will, however, indicates she executed a reciprocal will on the same day as Otto. The drafting attorney also testified that Mathilda executed a will on July 16, 1970, and left her estate to Bert and Otto or, if neither survived, to the same charities in the same percentages as Otto’s will.
Otto Stratmann died August 9, 1973, and the 1970 will was probated. Bert and Mathilda received the bulk of Otto’s estate estimated at a value of $549,730.
Mathilda executed a will in 1974 and again in 1976. The June 24, 1976, will left all her property to Bert, and if he did not survive Mathilda the following disposition was ordered:
St. Peter’s Lutheran Cemetery Assoc., Holyrood $ 1,500
Ellsworth Memorial Cemetery $ 1,000
First Presbyterian Church of Ellsworth Bldg. Fund $20,000
Mathilda’s grave maintenance $ 1,000
Bert’s grave maintenance $ 1,000
Central Kansas Medical Center Bldg. Fund, Great Bend undivided Va interest in remainder
Sterling College Memorial Endowment Scholarship Fund, as follows: undivided Va interest in remainder
Memorial Scholarship Fund In Memory of
Bert J. Stratmann
Mathilda Stratmann
Otto Stratmann
Bert also executed a new will on June 24, 1976. Bert left his entire estate to Mathilda and directed the following disposition if Mathilda failed to survive him:
St. Peter’s Lutheran Cemetery Assoc., Holyrood $ 1,500
Ellsworth Memorial Cemetery $ 1,000
First Presbyterian Church of Ellsworth Bldg. Fund $20,000
Bert’s grave maintenance $ 1,000
Mathilda’s grave maintenance $ 1,000
Central Kansas Medical Center Bldg. Fund, Great Bend undivided Va interest in remainder
Sterling College Memorial Endowment Scholarship Fund, as follows: undivided Va interest in remainder
Memorial Scholarship Fund In Memory of
Bert J. Stratmann
Mathilda Stratmann
Otto Stratmann
Mathilda Stratmann died October 28, 1981, and her 1976 will was probated. Bert received the entire estate valued at $1,360,717.
Edith Oeser became acquainted with the Stratmanns while she worked at the Central Kansas Medical Center where Mathilda was frequently a patient. In 1979, Edith began to occasionally care for Mathilda in the Stratmann home. In November 1981, Bert and Edith began to date. The relationship flourished and culminated in marriage on April 3, 1982, at which time Bert was 81 and Edith was 64.
On November 10, 1983, Bert executed his final will. Under the new will Bert left most of his estate to Edith and her children. Certain property was left in trust with the income to be paid to Edith and her children in designated percentages. After the trust had been in effect for twenty years, the will authorized disposition of the principal and income in the following manner:
Sterling College Memorial Endowment Scholarship Fund $ 5,000
or, if Edith is deceased $50,000
In Memory of
Otto Stratmann
Mathilda Stratmann
Bert J. Stratmann and Edith Stratmann
First Presbyterian Church of Ellsworth Bldg. Fund $ 5,000
or if Edith is deceased $50,000
Edith Stratmann undivided Vz interest in remainder
Edith’s children individually undivided Ve interest in remainder
Bert Stratmann died July 1, 1986, survived by his wife Edith. A petition to admit the 1983 will was filed, but the claimants prevented probate by filing a dissent to the petition wherein claimants alleged breach of the contractual wills. Following a jury trial to determine if claimants were entitled to recover against Bert’s estate, the jury found contractual wills existed among Otto, Mathilda, and Bert in 1970, and between Mathilda and Bert in 1976. Edith filed motions for a judgment notwithstanding the verdict, or, in the alternative, a new trial. The motions were denied and Edith appeals.
Preliminary to considering the issues of error raised, let us review the standard of proof required in cases such as this. The burden of proof is placed upon the claimants to establish an agreement existed for mutual and contractual wills among the testators. The trial court instructed the jury that claimants must prove the existence of a contract by clear and convincing evidence. On appeal, in an unpublished opinion filed June 1, 1990, the Court of Appeals ruled that where the claimant of an alleged contract with a decedent is merely a third-party beneficiary of an alleged mutual contract among several decedents, the claimant need only prove the mutual contract by a preponderance of the evidence. We disagree with the Court of Appeals.
It is well established that in an action against an estate to enforce an oral contract with a person since deceased the existence of the contract must be established by clear and convincing evidence. Lostutter v. Estate of Larkin, 235 Kan. 154, 163, 679 P.2d 181 (1984); In re Estate of Mueseler, 188 Kan. 407, 409, 362 P.2d 653 (1961); Jones v. Davis, 165 Kan. 626, 632, 197 P.2d 932 (1948); Bond v. Bond, 154 Kan. 358, 360, 118 P.2d 549 (1941). In these actions the ordinary civil standard of proof of a preponderance of the evidence is insufficient because of the inherent danger of fraud in claims against the estate of a decedent. Jones v. Estate of Cooper, 216 Kan. 764, 766, 533 P.2d 1273 (1975); In re Estate of Shirk, 194 Kan. 424, 429, 399 P.2d 850, modified and reh. denied 194 Kan. 671, 401 P.2d 279 (1965); Woltz v. First Trust Co., 135 Kan. 253, 259, 9 P.2d 665 (1932).
In Braden v. Neal, 132 Kan. 387, 295 Pac. 678 (1931), the beneficiary under a contractual will between a husband and wife brought an action to enforce the agreed upon will. The court held that where a definite contract was clearly and certainly established, equity would grant relief to the third-party beneficiary. 132 Kan. at 391. See Eikmeier v. Eikmeier, 174 Kan. 71, 254 P.2d 236 (1953).
We find no reason or authority to support the position that the less burdensome standard of proof of a preponderance of the evidence should apply in circumstances where the claimant is a third-party beneficiary of an alleged contract between deceased parties. The temptation to set up fraudulent claims against the estate of a deceased person is not less when the claimant is a third-party beneficiary to the alleged agreement than when the claimant is a direct party to the contract. In fact, it appears logical that the temptation for fraud is greater for a third-party beneficiary. Therefore, we hold the Court of Appeals erred in finding claimants needed to establish evidence of an agreement among Otto, Mathilda, and Bert by a mere preponderance of the evidence. In an action to enforce a contractual will against the estate of a decedent, the claimants must produce evidence of a clear and convincing nature to establish the existence of the alleged contract.
Now, let us turn to the first substantive issue of error raised on appeal. Edith Stratmann argues the jury verdict that the wills of 1970 and 1976 are contractual is not supported by clear and convincing evidence. In situations such as this, where the trial court found a contract existed, on appeal we review the record to determine if there is substantial evidence to support the finding and, in addition, consider the evidence to determine if it is clear and convincing. In re Estate of Shirk, 194 Kan. at 427. In order to establish a contract existed by clear and convincing evidence, the witnesses must be credible and the facts to which they testify must be distinctly remembered and narrated exactly and in due order; the testimony must be clear, direct, and weighty. 194 Kan. at 430.
Edith contends there is no evidence of a contract among the testators. She correctly points out the wills are not expressly contractual and alleges there is no direct testimony of a contract among the siblings. Finally, Edith asserts the only evidence of a contract is general statements of an intent to leave property to the church or college, and such evidence is insufficient to establish the existence of a contract.
Mutual wills made in pursuance of a contract and in consideration of reciprocal provisions do not violate public policy and have long been held valid in Kansas. Carle v. Miles, 89 Kan. 540, 543, 132 Pac. 146 (1913). Mutual wills made pursuant to an agreement not to revoke are contractual as well as testamentary in nature and impose an irrevocable obligation on the surviving testator upon the death of the other testator. In re Estate of Wade, 202 Kan. 380, 385-86, 449 P.2d 488 (1969). Nevertheless, the contractual will may be revoked and probate prevented. Menke v. Duwe, 117 Kan. 207, 216, 230 Pac. 1065 (1924). The revocation breaches the contract, however, so that any beneficiary under the revoked will is entitled to make a claim against the estate of the testator. 117 Kan. at 216.
The existence or nonexistence of a contract is a question of fact. Reznik v. McKee, Trustee, 216 Kan. 659, 671-72, 534 P.2d 243 (1975). Claimants must establish by direct or circumstantial evidence that mutual and contractual wills were made in consideration of one another. The contract must be established by full and satisfactory proof which cannot be supplied by a presumption arising from the fact the wills were mutual. 216 Kan. at 672; In re Estate of Wade, 202 Kan. 380, 387, 449 P.2d 488 (1969). Therefore, the fact that the wills contain no reference to a contract is not conclusive, nor can a contract be presumed because two persons simultaneously make reciprocal testamentary dispositions. See In re Estate of Chronister, 203 Kan. 366, 372, 454 P.2d 438 (1969); In re Estate of Miller, 186 Kan. 87, 96, 348 P.2d 1033 (1960). The terms of the will itself, however, may be circumstantial evidence of a contract and may show by implication, along with other known circumstances such as family relations, that execution of the will was the product of a pre-existing agreement. Finally, the contract must be definite, certain, and unequivocal as to parties, subject matter, and consideration. Reznik, 216 Kan. at 674, 678.
As we have already noted, neither the 1970 wills nor the 1976 wills are contractual on their face. Therefore, we must look to circumstantial evidence to determine whether a contract existed among the testators. In 1970, Otto and Bert each executed reciprocal wills wherein the survivors of the three unmarried Stratmann children received the entire estate. In the event Otto and Mathilda predeceased Bert or Bert and Mathilda predeceased Otto, certain named charities received the property in designated percentages. Otto’s will, however, included two charities not listed in Bert’s will, and provided for different percentages of disposition. Thus, although the wills are similar they are not identical.
The 1976 wills of Bert and Mathilda are mutual, reciprocal, and identical in all substantive aspects. The testator left his or her entire estate to the other and bequeathed the residue to the same charities under the will of the survivor.
The reciprocal and similar provisions of these wills is indicative of an overall pattern of disposition of the family estate. See Reznik, 216 Kan. at 674; Chronister, 203 Kan. at 373. In addition, the 1976 wills made by Bert and Mathilda expressed their specific intent to omit other heirs. However, the 1970 wills of Otto, Bert, and Mathilda fall in a much weaker position since those wills are not mutual and Mathilda’s 1970 will was not produced at trial. We have only oral testimony concerning its contents.
Oral testimony at trial can provide circumstantial evidence of contractual wills. Testimony of Bert and Mathilda which had been given during the probate of Otto’s will was read into evidence at this trial. Mathilda had testified she and Otto executed the 1970 wills on the same date and that neither of them asked the other to make a will, but that for some time they had discussed leaving their property to the other. There was no direct evidence of a contract. Bert, however, testified he did not know that Otto and Mathilda were planning to make new wills in 1970, and did not gain such knowledge until after the wills were executed. Bert indicated he decided on his own to make a similar will with a few changes.
Reverend William McCreery testified he met with Otto, Mathilda, and Bert in the spring of 1970 in an effort to cultivate interest in Sterling College. After meeting with the Stratmanns, McCreery felt they were going to do something for the college but did not receive a definite commitment on the amount of their contribution. Although the Stratmanns did not state they had a contractual agreement, McCreery held the opinion they were in agreement on helping the college and at one point Bert told him the college was taken care of in the “Stratmann Estate.”
Sister Miriam Schremmer testified that she visited with Bert while Mathilda was a patient at the Central Kansas Medical Center. Bert told Sister Schremmer they were going to do something nice for the hospital because its staff was nice to Mathilda.
Reverend Don Ray, pastor for the First Presbyterian Church of Ellsworth, testified that Otto, Mathilda, and Bert acted as a team. Reverend Ray made regular calls on the Stratmanns and from conversations with them believed they intended to do something for Sterling College; however, no specific amounts or percentages were ever given. On one specific occasion, in response to a request for a $70,000 gift for an organ for Sterling College, Bert told Reverend Ray, “No, you will get our money when we die.”
Edith contends the testimony presented general statements of an intent to give property to the church or college, which are not sufficient to establish the existence of a contract. In Jones v. Estate of Cooper, 216 Kan. 764, 767-68, 533 P.2d 1273 (1975), we held that definite evidence of an alleged contract with a decedent must be produced and the claimant could not rely merely upon witnesses’ testimony of the decedent’s intent to devise property as a reward for claimant’s services. 216 Kan. at 767-68.
John O’Donnell, an attorney who represented the Stratmanns for many years, testified that Otto, Bert, and Mathilda owned and dealt with most of their property separately and distinctly. O’Donnell stated that Otto and Mathilda were not present when Bert executed his 1970 will, nor did Bert indicate to him the existence of a contract. Otto also made no mention to O’Donnell about any contractual arrangement when he executed his 1970 will.
Thus, we are presented from the foregoing facts with the question of whether there is clear and convincing evidence the Stratmanns contracted among themselves, each to the other, to will their property as the three of them did in 1970 or as Bert and Mathilda did in 1976.
Let us first examine the 1970 wills. The wills were not mutual and reciprocal in all respects between Otto and Bert, and from Bert’s preserved testimony from the probate hearing in Otto’s probate we know that Bert and Otto had no contract. There is no evidence to support a conclusion that there was a contract. John O’Donnell, the attorney who drafted the wills, testified there was no contractual arrangement among the Stratmanns. He said had there been one he would have so stated in their wills. Claimants’ failure to produce direct testimony of a contract and O’Donnell’s testimony are persuasive. We hold there was no contract among the Stratmanns in the 1970 wills. Had a contract existed, it would have rendered any subsequent wills ineffective.
Now we turn to the 1976 wills of Bert and Mathilda. These two wills are clearly mutual and reciprocal and show that the two testators saw the proper disposition of their estates the same way at that time. The question presented is: Does that mutuality constitute a contract which precludes each of them from changing their will thereafter, absent agreement by the other?
We stated in In re Estate of Pennington, 158 Kan. 495, Syl. ¶ 1, 148 P.2d 516 (1944):
“The separate wills of two persons which are reciprocal in their provisions giving the property of each to the other are not inherently contractual, where the wills do not so declare, and where there is no evidence of an agreement by the testators to that effect.”
We amplified the Pennington holding in In re Estate of Miller, 186 Kan. 87, 95, 348 P.2d 1033 (1960), stating:
“To establish an agreement for mutual wills there must be full and satisfactory proof of the agreement, which cannot be supplied by presumption. Merely to argue that wills are contractual because they are mutual begs the question. The contractual character of a will is a fact to be established by evidence, showing that such was the understanding and the deliberate agreement.
“It is essential to the validity and enforcement of a contract for the execution of wills containing bequests which are reciprocal between the parties that the contract be definite, certain and unequivocal as to the parties, the subject matter and the considerations.”
As we previously stated, neither of the 1976 wills contain a reference to a contract, nor do we have any information from the testators which asserts a contract. Thus, we must search the extrinsic evidence for guidance. To prevail, the claimants must produce evidence that Bert and Mathilda each intended their 1976 mutual wills to be binding on both of them and that they understood the consequences of such agreement and that they so agreed deliberately. We have no direct evidence on any of these points. Rather, the will draftsman, Attorney Ed Moses, testified to the contrary. He says nothing about a contract was mentioned to him by either testator. Thus, we must examine the testimony of the claimants. Does it provide any contract information which is definite, certain, and unequivocal as to parties, subject matter, and consideration and which is clear, direct, and weighty? Our thorough search of the record reveals no evidence of a contract, let alone evidence which meets the requirements of the contract being definite, certain, unequivocal, clear, direct, and weighty.
The claimants have the burden of proving the wills were contractual by clear and convincing evidence. They failed to produce witnesses who distinctly remembered and narrated exactly and in due order, and whose tsetimony was clear, direct, and weighty that a contract existed between Bert and Mathilda Stratmann. Thus, the claimants failed to sustain the burden of proof. There was insufficient evidence of a contract to submit that issue to the jury.
Bert Stratmann’s 1983 will is not subject to the contractual claim of appellees. The other issues raised need not be discussed.
The judgments of the trial court and the Court of Appeals are reversed and judgment is entered for appellant.
Abbott J., not participating. | [
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From May 16, 1989, through May 9, 1990, 15 separate complaints were filed against respondent. The complaints generally alleged neglecting clients’ interests, failing to adequately communicate with clients, failing to perform legal services for which retainers had been paid, abandoning clients, and converting to respondent’s own use his clients’ funds.
Following investigation, five cases were set for hearing before a panel of the Kansas Board for Discipline of Attorneys on December 6, 1989. On December 7, 1989, respondent filed a petition for voluntary transfer to disability inactive status.
On December 18, 1989, this court placed respondent on disability inactive status and directed that he “submit to an examination by a qualified medical expert.”
Respondent has failed to respond to the disciplinary administrator’s attempts to schedule respondent for evaluation by a medical doctor as directed by this court. Respondent has failed to inform this court, the disciplinary administrator’s office, or his attorney of his whereabouts for over a year. Respondent has failed to continue receiving any treatment or counseling from his psychologist.
In October and November 1990, the disciplinary administrator attempted, unsuccessfully, to contact respondent. On December 6, 1990, the disciplinary administrator filed a motion for an order to show cause why respondent should not be disbarred for his failure to comply with the court’s order of December 15, 1989.
On January 4, 1991, this court ordered respondent and his counsel of record, Kevin P. Moriarty, to appear before this court on March 1, 1991, at 9:30 a.m., to show cause, if any, why respondent should not be disbarred from the practice of law in the State of Kansas.
On March 1, 1991, counsel Moriarty appeared before this court; respondent failed to appear. Counsel Moriarty informed the court that he believed respondent to be in California, that he was sure respondent was aware of these proceedings, and that it has been one year since he last had contact with respondent.
Effective this 12th day of April, 1991.
The court, being fully advised and having reviewed the record, finds that the facts alleged in the complaints, if true, would constitute grounds for disbarment. The court further finds that respondent has failed to show cause why he should not be disbarred for his failure to abide by the order of this court as entered on December 15, 1989.
It is Therefore Ordered that Steven R. Zieber be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It is Further Ordered that the Clerk of the Appellate Courts strike the name of Steven R. Zieber from the roll of attorneys licensed to practice law in the State of Kansas and that respondent shall forthwith comply with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
It is Further Ordered that the costs of this proceeding be assessed to the respondent, and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Lockett, J.:
An inquisition conducted by the Kansas Attorney General’s specially appointed prosecutors pursuant to K.S.A. 22-3101 et seq. to investigate alleged violations of the Campaign Finance Act, K.S.A. 25-4142 et seq. resulted in separate criminal complaints being filed against defendants David C. Owen, Elliot M. Kaplan, and John E. Palmer. Owen was charged with seven felony counts in case K-61870: four counts of theft, one count of conspiracy to commit theft, one count of making a false writing, and one count of criminal solicitation. In addition, he was charged with 11 misdemeanor counts: one count of making excessive campaign contributions, one count of conspiracy with Palmer to make an excessive campaign contribution; and nine counts of making a campaign contribution in the name of another. Kaplan was charged with two felony counts in case K-61869: one count of theft and one count of conspiracy to commit theft. Palmer was charged in case K-61871 with one misdemeanor count of conspiracy with Owen to make excessive campaign contributions. A motion to consolidate cases K-61869 and K-61870 was granted November 27, 1989.
A preliminary examination was scheduled to determine whether there was cause to bind over Owen and Kaplan on the felony charges. Prior to Owen’s and Kaplan’s preliminary examination, the parties stipulated that if the district judge found that the statute of limitations barred prosecution of the felony charges, prosecution of the misdemeanor charges against Owen and Palmer would also be barred. Because of the agreement to include the misdemeanor charges, after the evidence had been submitted, the State also argued facts alleged in the affidavit for the warrant on the misdemeanor charges.
After the State had presented its evidence in the preliminary examination the district judge (1) found there was no evidence the alleged felonies had been committed; (2) held the prosecution of the felonies and the misdemeanors alleged in the complaints was barred by the statute of limitations, K.S.A. 21-3106(3); and (3) dismissed the complaints against the defendants. The State appealed pursuant to K.S.A. 22-3602(b)(l).
STATUTE OF LIMITATIONS
K.S.A. 21-3106(3) requires that prosecution of the offenses alleged against the three defendants must be commenced within two years after the alleged offenses were committed. The State alleged that the illegal acts occurred between September 16, 1986, and December 29, 1986. The criminal complaints against the defendants were filed on October 31, 1989, approximately three years after the alleged offenses occurred. The State admits that the charges were not commenced within the statutory two-year period but claims that the two-year limitation for prosecution was tolled by K.S.A. 21-3106(4)(c) because the defendants concealed the fact that a crime had been committed.
CONCEALMENT
Statutes of limitation are favored in the law and are to be construed liberally in favor of the accused and against the prosecutor. State v. Bentley, 239 Kan. 334, 336, 721 P.2d 227 (1986); State v. Mills, 238 Kan. 189, 190, 707 P.2d 1079 (1985). Exceptions to the statute are to be construed narrowly or strictly against the State. Bentley, 239 Kan. at 336; Mills, 238 Kan. at 190.
“Unless the statute of limitations contains an exception or condition that will toll its operation, the running of the statute is not interrupted.
. . . Under statutes so providing, there may be deducted from the period of limitation the time during which the accused . . . conceals the fact of the crime. However, to suspend the operation of the statute the concealment of the fact of a crime must be the result of positive acts done by the accused and calculated to prevent discovery; mere silence, inaction, or nondisclosure is not concealment. [State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937).] Thus, for example, a loan officer’s failure to inform an investor in the lending business of a principal payment on a mortgage loan was more than mere silence and inaction, and his instruction to the company secretary to pay the regular amount of interest to the investor to cause him to believe the principal was still loaned out constituted an active step toward the concealment of the crime of embezzlement where the investor has previously expressed his desire not to leave any more money with the loan company.” 21 Am. Jur. 2d § 227.
K.S.A. 21-3106 sets out the various time limitations within which a prosecution must be commenced. The offenses alleged here by the State require the prosecution to begin within two years after they were committed. The period within which the prosecution must be commenced does not include any period during which the fact of the crime is concealed. K.S.A. 21-3106 (3), (4)(c).
The State contends that the trial court erred in finding there was no concealment of the alleged crimes by the defendants. Before determining whether the defendants concealed the fact that the alleged crimes were committed, we will first review prior Kansas cases that discuss the issue of concealment and the tolling of the statute of limitations.
In Kansas, concealment has been applied mainly in embezzlement or theft/larceny cases. One of the earliest cases discussing concealment and determining the statute of limitations was not tolled is State v. Heinz, 121 Kan. 547, 247 P.2d 631 (1926), which dealt with larceny of a surveyor’s transit. In Heinz, the State relied on R.S. 1923, 62-504, the predecessor to K.S.A. 21-3106(4)(c), which provided that, if any person “conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitations.” Heinz, 121 Kan. at 548. In Heinz, the larceny was committed on February 23, 1921; the transit was known to be missing the next day, but the item was not seen again until 1925 when it was found in the defendant’s possession. The defendant claimed that there was no evidence that he had concealed the crime; therefore, the statute of limitations prevented the State from prosecuting him for the larceny. The Heinz court noted that the defendant’s secretion of the item did not conceal the fact that it had been stolen. The court stated that for concealment to toll the statute of limitations, some positive affirmative acts designed to prevent the discovery of the commission of the offense was needed and not mere silence or inaction. Heinz, 121 Kan. at 548. It determined that the statute of limitations precludes an accused from availing himself of the defense where he conceals the fact of the crime. To prevent the limitation from operating in the defendant’s favor, he must have concealed the fact of the crime and not merely his connection with the crime. The concealment must result from the defendant’s affirmative act, designed and calculated to prevent discovery of the commission of the offense with which he is charged; mere silence is not enough.
In State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937), a justice of the peace in 1930 embezzled money he collected as a fine from the sale of a car. The information filed September 25, 1935, alleged that ever since the commission of the offense the justice of the peace had continuously concealed the fact of the crime. After reviewing the statute of limitations, G.S. 1935, 62-503, the Watson court noted that concealment must be action or conduct by the accused which is calculated to prevent discovery of the crime and mere silence, inaction, or nondisclosure is not enough. Watson, 145 Kan. at 794. There was no tolling of the statute of limitations in Watson because the magistrate did not make statements or do any acts to conceal the conversion of money; he just took the money. The magistrate’s mere silence, inaction, or nondisclosure of the taking was not sufficient to toll the statute of limitations.
In State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980), the defendant stole guns from his neighbor’s attic in January 1977. The theft was not discovered until April 1979. A theft charge was filed. At the preliminary examination the defendant claimed that the statute of limitations barred prosecution of the theft. The defendant did testify that after taking the guns he hid them in his attic for six months. The magistrate observed that the defendant concealed the crime for six months by his act of hiding the guns in the attic. The magistrate found the two-year statute of limitations was tolled during the six months that the defendant had hidden the guns; therefore, even though the information was filed more than two years after the offense was committed, the prosecution was timely. Though the prosecution was not time barred, the magistrate dismissed the complaint and referred the defendant to the juvenile authorities because the defendant was 17 when the alleged offense was committed. The State appealed, claiming that when the crime was discovered, the defendant was no longer a juvenile and should be prosecuted as an adult because the crime of theft is a continuing offense and prosecution was not barred by the statute of limitations.
The Gainer court first determined that the crime of theft as described in K.S.A. 21-3701(a) is not a continuing offense. To constitute a continuing offense it must plainly appear in the statute defining such offense that there is a clear legislative intent to make the prohibited course of conduct a continuing offense. The court then observed that hiding or disposing of stolen property by a thief does not constitute concealment of the fact of the crime. It noted that to constitute concealment of the fact of the crime of theft sufficient to toll the statute of limitations there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the theft by those owning or having possession of the property prior to the theft. Gainer, 227 Kan. at 674. The court stated that silence, inaction, or nondisclosure is not concealment of the crime as required for tolling of the statute of limitations. The Gainer court noted the magistrate was correct in dismissing the criminal charges, although he did so for the wrong reason, and affirmed the dismissal of the charge.
In State v. Bentley, 239 Kan. 334, we determined that there can be no tolling of the statute of limitations unless the accused’s statements or conduct was calculated and designed to prevent discovery of the crime charged; mere silence, inaction, or nondisclosure is not enough. 239 Kan. at 337. In State v. Mills, 238 Kan. 189, this court held that, to toll the statute of limitations due to the concealment of the crime through the acts and statements of a third party, “there must be some positive action by the accused along with a direct connection between the accused and the third party which results in the concealment.” 238 Kan at 190-91.
We have recognized that affirmative acts that conceal the fact a crime was committed toll the statute of limitations. In State v. Wingett, 136 Kan. 436, 16 P.2d 486 (1932), Wingett, a loan officer, was charged with defrauding a loan association of the amount of a loan made to one of the defendant’s relatives. The crime was committed in March 1921 and the complaint was not filed until December 1928. The State relied on R.S. 1923, 62-504 to toll the two-year limitation for prosecution. The Wingett court found that the defendant’s regular payment of interest due on the note for several years and his obtaining an extra fire insurance policy, obtaining another abstract, and having the mortgage renewed were affirmative acts of concealment, which tolled the statute of limitations.
In State v. Taylor, 140 Kan. 663, 38 P.2d 680 (1934), the managing officer of a mortgage investment company, who was actively involved in the running of the business, concealed the fact that he had embezzled a $1,500 loan payment when he directed the secretary of the company to issue a check to the lender for $180, the amount of the interest due on the loan. The court noted that there was no reason for the defendant to cause the mailing of the interest check to the lender except to cause the lender to believe that his money was still on loan. The Taylor court determined that the mailing of the interest check by the defendant was an active step toward the concealment of the crime, which tolled the statute of limitations. 140 Kan. at 668.
In State v. McGinley, 129 Kan. 655, 284 Pac. 384 (1930), the defendant, a member of the board of directors of a bank, appealed his conviction of embezzlement of bank funds. The information charged the defendant with embezzlement in November 1924. The loss was discovered when the bank was closed on June 4, 1926. Prosecution commenced in July 1927, more than two years after the alleged act. The defendant was also an officer of an oil company that had an account with the bank. The defendant credited the bank’s clients’ deposits to his oil company account. By use of creative accounting with an “error entry” the defendant was able to conceal the fact that he was providing his oil company with money from other clients of the bank. The defendant argued that if the bank examiners and the board of directors had performed their duty, the crime would have been detected immediately; therefore, because the examiners and the bank officials had failed to do their duty, the statute of limitations barred prosecution for the embezzlement. We disagreed and found that the facts of the crime had been concealed from the depositors whose money had been embezzled by the defendant.
In State v. Grauerholz, 232 Kan. 221, 654 P.2d 395 (1982), the defendant, an attorney, was charged with two counts of felony theft based on shortages of funds in two estates of which he was the executor. Funds belonging to one estate were deposited in either the defendant’s own account or his law office account. From February 1975 through February 1979 defendant wrote, signed, and negotiated various checks upon the other estate’s trust account. Relying on the rationale of Gainer, Grauerholz argued that he did not conceal the fact of the thefts. This court found the defendant’s pattern of conduct was to conceal the fact that the crimes had been committed. We noted inter alia that the defendant’s preparation and execution of checks from the estate trust account in a secretive manner with incomplete and inaccurate accounting records was more than “mere silence, inaction, nondisclosure, or disposal of the stolen property”; therefore, the two-year statute of limitation was tolled by the defendant’s active concealment of the crimes. 232 Kan. at 228.
THEFT AND CONSPIRACY TO COMMIT THEFT
In order to bind a defendant over for arraignment and trial, the State must present evidence at the preliminary examination sufficient to show that it appears a felony crime was committed and that probable cause exists to believe the defendant committed the crime. Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of accused’s guilt. State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 (1986).
After reviewing the record of the preliminary examination, we find the charges of theft and conspiracy to commit theft against Owen and Kaplan are separate and distinct from the alleged violations of the Campaign Finance Act. We must therefore review those charges and the effect of the statute of limitations separately from the alleged violations of the Campaign Finance Act. For purposes of the appeal, we assume the facts to be true. Whether the facts are true is for the trier of fact to determine.
KAPLAN’S THEFT AND CONSPIRACY CHARGES
The State contends that on October 15, 1986, Kaplan unlawfully obtained $6,000 from AmVestors Marketing, Inc., (AmVestors) for legal services that he never performed. The State asserts that the corporation books and records do not indicate that Kaplan had performed the services or had invested in AmVestors; there fore, Kaplan had no legal right to the money, i.e., Kaplan must have stolen the money.
In addition, the State alleges in Count 2 of the complaint that Owen and Kaplan unlawfully, willfully, and feloniously conspired to commit the crime of theft charged in Count 1. The State contends that Kaplan and Owen caused AmVestors to issue the $6,000 check to Kaplan.
OWEN’S THEFT AND CONSPIRACY CHARGES
The State claims the three thefts (Counts 1-3) occurred on December 9, 22, and 29, 1986, when Owen caused AmVestors to issue checks to Owen and Associates, Inc., in the amount of $2,000, $3,000, and $5,000 for refund of consulting fees. The State alleged that Mark Crow, who was an employee of Owen and a corporate officer of AmVestors, refunded the consulting fees to Owen and Associates at the direction of Owen. The State asserts that there is no evidence that Owen and Associates was entitled to the refund of the consulting fees.
In Count 4, the State alleged that on September 16, 1986, Owen wrote a check to his wife from Kansas Microwave, Inc., for consulting fees for services which she never performed. Owen then endorsed his wife’s name to the check and deposited it to her account. The State charged Owen with stealing, funds belonging to Kansas Microwave.
In Count 6-7 of the complaint the State alleged that Owen solicited and conspired with Kaplan to commit the crime of theft on October 15, 1986, when Owen illegally caused AmVestors to issue a check for $6,000 to Kaplan. This is the same act charged in Count 2 of the complaint against Kaplan.
The district judge determined that the crimes of theft and conspiracy to commit theft were not continuing offenses. He noted that transactions alleged to have been thefts had been recorded in the books and records of the corporations. The books and records had not been altered by or at the request of the defendants and have been available for any officer or stockholder of the corporations to examine since October 1986. The district court found that there was no act by Kaplan and Owen to conceal the fact that they had received the money from the corporations; therefore, the two-year statute of limitations barred prosecution of the alleged thefts and conspiracies to commit theft.
All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. Continuing offenses are committed when the course of the prohibited conduct, or the accused’s complicity in the crime, has terminated. To constitute a continuing offense, it must plainly appear in the statute defining such offense that there is a clear legislative intent to make the prohibited conduct a continuing offense. The crime of theft as proscribed in K.S.A. 21-3701(a) is not a continuing offense. State v. Gainer, 227 Kan. 670, Syl. ¶ 2.
A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or a coconspirator. Conspiracy is not a continuing offense. The fact that the conspirators agree to be silent after the crime has been committed does not constitute concealment so as to toll the statute of limitations. Grunewald v. United States, 353 U.S. 391, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957). The crime of conspiracy as proscribed in K.S.A. 21-3302 is not a continuing offense.
Neither theft nor conspiracy to commit theft were intended by the legislature to be a continuing offense. Since theft and conspiracy to commit theft are not continuing offenses, the State is required to commence prosecution of the offenses within two years of the commission of the crime unless an accused has concealed the fact of the crime. To constitute concealment of the fact of the crime of theft sufficient to toll the statute of limitations, there must be a positive act done by or on behalf of the accused calculated to prevent discovery of the thefts by those owning or having possession of the property before the theft. Mere silence, inaction, nondisclosure, or disposal of the stolen property is not concealment of the fact of the crime as contemplated in K.S.A. 21-3106. State v. Gainer, 227 Kan. at 674-75.
Because there was no evidence that the defendants concealed the alleged thefts or conspiracy to commit theft, the district judge was correct in determining that prosecution of those offenses is barred by the statute of limitations. Since the prosecution is time barred, we are not required to determine if the district judge correctly determined the alleged crimes of theft and conspiracy to commit theft had not been committed.
MAKING A FALSE WRITING
It is a fundamental rule that a penal statute must be strictly construed in favor of the person sought to be subject to its operation. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Vakas, 242 Kan. 103, Syl. ¶ 1, 744 P.2d 812 (1987). A criminal statute cannot be extended by courts to embrace acts or conduct not clearly indicated within its prohibitions. State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978).
K.S.A. 21-3711 states:
“Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter is not what it purports to be, and with intent to defraud or induce official action.”
A report of receipts and expenditures is required to be filed by the treasurer of a candidate’s campaign committee pursuant to K.S.A. 25-4148 of the Campaign Finance Act. The State’s theory is that Owen had violated the false writing statute (count 5) by causing Ray Higley, Mike Hayden’s gubernatorial campaign treasurer, to prepare and file an inaccurate receipts and expenditures report with the Secretary of State.
K.S.A. 25-4168 states that fraudulent campaign finance reporting is the intentional making of any false material statement in a report or statement made under the Campaign Finance Act. Ray Higley testified that he had never spoken with Owen and that Owen had no involvement in the compilation, filing, or preparation of the contributions and receipts report. The trial court dismissed the charge, finding that there was no evidence that Owen had anything to do with causing Hayden’s campaign to make the receipts and expenditures report.
Owen claims, and the district judge agreed, that the State improperly charged Owen under a general criminal statute, mak ing a false writing, K.S.A. 21-3711, rather than the specific statute for making a false campaign report, K.S.A. 25-4168.
As authority, Owen cites State v. Kliewer, 210 Kan. 820, 504 P.2d 580 (1972), where the defendant, who had turned back an odometer, was convicted of two misdemeanors: (1) turning back the odometer used for registering the mileage on a motor vehicle, in violation of K.S.A. 1971 Supp. 8-611(b), and (2) committing a deceptive commercial practice, in violation of K.S.A. 1971 Supp. 21-4403. The defendant appealed. The Kliewer court pointed out that both crimes of which the defendant was convicted pertained to deception, fraud, and misrepresentation of a material fact. The court noted that where there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute will be favored over the general statute and controls. 210 Kan. at 826-27. It determined where a person is charged with and convicted of unlawfully turning back the odometer of an automobile, the specific statute, he cannot also be charged with and convicted of committing a deceptive commercial practice, a general statute, for the same wrongdoing. Kliewer’s conviction for committing a deceptive commercial practice was set aside. We agree with the reasoning in Kliewer, but do not agree with Owen’s claim that Kliewer implies he should have been charged with violating 25-4168 rather than 21-3711.
We note that under the rationale of State v. Doyen, 224 Kan. 482, Owen could not be charged with violating 25-4168. In Doyen, the defendant, a senatorial candidate, was alleged to have intentionally caused his treasurer to file a false report by withholding contributions from his treasurer. The State charged the candidate with three counts of fraudulent campaign finance reporting in violation of K.S.A. 1977 Supp. 25-4129, now 25-4168. The district court found that the complaint and supporting affidavit were insufficient and dismissed the complaint. The State urged that, although the candidate did not file a report containing any false material statement, he caused his campaign treasurer to file a false report by withholding certain contributions from his treasurer. We analyzed the legislative history of the statute and found that the legislature had intentionally omitted the “causing to be filed” language that is seen in other criminal statutes and which was not included in the definition of the crime set forth in K.S.A. 1977 Supp. 25-4129. Doyen, 224 Kan. at 488. This court said if the legislature had intended to make it a crime for the candidate to cause his treasurer to file a false report, it could easily have done so.
In State v. Kee, 238 Kan. 342, 350, 711 P.2d 746 (1985), the defendant, an officer and shareholder in a bank, had received substantial loans from the bank and, consequently, was unable to obtain additional loans from the bank. To complete the purchase of an oil and gas lease, Kee induced the seller of the lease to sign a note with the bank. The seller received $25,000, completing the purchase. Kee promised the seller he would pay the principal and interest. Kee failed to make the payments. To hide the fact that the note was due and unpaid from the bank examiners, Kee had another person sign the seller’s name to an extension of the note. This act caused the bank examiners to file a false report. The Kee court found that the defendant had caused a false writing which had induced official action and upheld the conviction under K.S.A. 21-3711.
To commit the crime of making a false writing one must have the intent to defraud or induce official action pursuant to K.S.A. 21-3711. The knowing delivery of the false document to the official who is intended to be induced to act is a type of participation that indicates an intent by the person making the delivery to further the success of the person making the false writing. State v. Reineking, 10 Kan. App. 2d 630, 633, 706 P.2d 483, rev. denied 238 Kan. 879 (1985).
To hide his alleged illegal campaign contribution, Owen delivered the checks to one of Hayden’s campaign personnel. The recording of the checks given by Owen caused Hayden’s treasurer, who was required by law to report the contributions, to make a false writing. The trial court incorrectly ruled that making a false writing, K.S.A. 21-3711, did not include the action by Owen.
Since Owen was properly charged by the State with making a false writing with the intent to induce official action, there still remains the question of whether the prosecution for this act is barred by the statute of limitations. That question will be decided by our review of the alleged violations of the Campaign Finance Act.
VIOLATIONS OF THE CAMPAIGN FINANCE ACT
Under the Campaign Finance Act it is illegal for a person to make a contribution in the name of another. K.S.A. 25-4154. The aggregate amount that may be contributed for the primary or general election to a candidate and the candidate’s committee for the office of governor and lieutenant governor is $3,000. K.S.A. 25-4153. Any person who intentionally exceeds that limitation is subject to prosecution for a misdemeanor. K.S.A. 25-4170.
The State alleges that Owen contributed more than $3,000 to Governor Hayden’s campaign by contributing money in the name of another. It also alleges that Owen and Palmer conspired to make an excessive campaign contribution. All of the alleged violations of the Act are misdemeanors.
Based on October 1986 conversations between Owen and members of Mike Hayden’s gubernatorial campaign, Owen agreed to raise approximately $25,000 in campaign contributions. On October 14, 1986, a meeting was held at Phillip Billard Airport in Topeka to thank Owen for his efforts in raising the campaign contributions, to collect the contributions, and to give Owen the opportunity to introduce Paul Bryant, Jr., to Mike Hayden. During the meeting, Owen gave John Petersen, a fundraiser for the Hayden campaign, an envelope containing several checks totalling $32,000.
As a result of his conversations with Owen and the meeting with Hayden, Bryant agreed to retain Owen to assist him in obtaining a license to operate a parimutuel race track in Kansas. Bryant wrote a check payable to Owen and Associates for $100,000 on the account of AIM, Inc. The computerized ledger sheet of Owen and Associates indicates a $50,000 cash receipt for a consulting fee from AIM, Inc., on October 15, 1986, and a $50,000 cash receipt on a note payable from AIM, Inc., on October 15, 1986.
On October 15, 1986, the following checks were recorded and reported as required by the Campaign Finance Act: Owen and Associates, David C. Owen, John Palmer, E.D.P. Enterprises, Inc. (EDP), Eagle Distributors, Inc., Kansas Microwave, Mark Crow, Sara Cedarholm, Richard Halford, Dee Halford, and AmVestors. All of the checks were in the amount of $3,000 except for EDP’s check for $2,000, Owen and Associates check for $500, and Owen’s check for $1,500. With these contributions EDP, Owen and Associates, and Owen reached their maximum allowable contributions of $3,000. On October 16, 1986, Elliot and Jeanne Kaplan’s checks for $3,000 each were recorded. The total of the alleged illegal contributions recorded between October 15-16 is $28,000.
The State argues that the $28,000 is actually an illegal campaign contribution made by Owen by using other individuals who did not actually contribute their money and a violation of K.S.A. 25-4154, K.S.A. 25-4170, and K.S.A. 25-4171. The State alleges that Owen concealed the illegal contribution by a series of entries in the books and records of AmVestors, EDP, Kansas Microwave, Eagle Distributors, and Owen and Associates, and acts of other individuals. The State asserts that corporation checks issued between October 15-16 to various individuals and corporations are reimbursements from Owen to those who had previously allowed Owen to use their identity. In essence, the State argues that through a scheme of checks and accounting entries Owen used the corporations and individuals to conceal his illegal contributions into the gubernatorial campaign.
Owen is a corporate officer of three of the corporations and has business relations with AmVestors and EDP. All of the checks written by individuals and delivered by Owen for the gubernatorial campaign are from employees and officers of the corporations associated with Owen and their wives. To understand the State’s allegations, it is necessary to examine the corporate structure and operations of these corporations and then trace the various transactions.
1. AMVESTORS
A Kansas corporation formed to market single premium annuities and single premium life insurance policies of American Life Insurance Company to securities dealers.
Richard Halford, president and sole stockholder;
Elliot Kaplan, secretary;
Mark Crow, treasurer.
Sara Cedarholm and Mark Crow, employees and friends of Owen, handled the daily operation of the corporation and had authority to write it's checks.
2. KANSAS MICROWAVE
An electronics development corporation.
Charles A. Ross, president;
David Owen, chief financial officer.
Owen maintained the books and records of the corporation.
3. EDP
John Palmer, president;
Sara Cedarholm, treasurer;
Elliot Kaplan; secretary.
Mark Crow handled the payroll, banking, accounting, and financial reporting of the corporation.
4. EAGLE DISTRIBUTORS
David Owen, president.
5. OWEN AND ASSOCIATES
A Kansas corporation whose sole stockholder is David Owen.
David Owen, president;
Mark Crow, secretary;
Sara Cedarholm, treasurer.
All of the corporations were located in the same building. Owen’s employees maintained the books and records for all of the corporations in Owen’s office.
The State’s theory is that $28,000 of the $32,000 in contributions delivered by Owen on October 14, 1986, was illegally reimbursed by Owen between October 15-16, 1986, when he caused Owen and Associates to issue checks totaling $32,000 to the four corporations. The corporations, after they were reimbursed their alleged $11,000 contributions, issued checks totaling $21,000 to reimburse the individuals who had contributed to the Hayden campaign. The alleged reimbursement actions occurred as follows:
TRANSACTION I
Owen and Associates on October 15, 1986, issued an $11,000 check to EDP.
EDP was reimbursed for its October 14, 1986, $2,000 contribution. (Count 14.)
EDP issued checks on October 15 and 16, 1986, to:
Sara Cedarholm $3,000 (Count 9)
Mark Crow $3,000 (Count 10)
John Palmer $3,000 (Count 13)
The total campaign contributions from the corporation, Cedarholm, Crow, and Palmer equalled $11,000. The $11,000 check to the corporation equals the contribution, and the subsequent disbursement reimbursed the corporate and individual donors for the amounts each contributed.
TRANSACTION II
Owen and Associates on October 15, 1986, issued a $15,000 check to AmVestors.
AmVestors is reimbursed for its October 14, 1986, $3,000 contribution. (Count 16)
AmVestors issued checks on October 15, 1986, to:
Richard Halford $6,000 (Count 8)
Elliot Kaplan $6,000 (Count 11 and 12)
(The $6,000 check is the basis for the felony theft and conspiracy to commit theft charges against Owen and Kaplan previously discussed.)
The total campaign contributions from the corporation, Richard Halford, Dee Halford, Elliot Kaplan, and Jeanne Kaplan equalled $15,000. The $15,000 check to the corporation equals this total donation. The subsequent disbursement reimbursed the corporate and individual donors for the amounts contributed.
TRANSACTION III
Owen and Associates on October 16, 1986, issued a $3,000 check to Eagle Distributors to reimburse it for its $3,000 contribution on October 14, 1986. (Count 15)
TRANSACTION IV
Owen and Associates on October 16, 1986, issued a $3,000 check to Kansas Microwave to reimburse it for its $3,000 contribution on October 14, 1986. (Count 17)
On December 12, 1987, a newspaper article by Dale Goter, a reporter, was published. The newspaper article indicated that Owen may have made excessive campaign donations to the Hay den campaign. An informal investigation by the Kansas Public Disclosure Commission began on January 5, 1988. The Disclosure Commission’s administrative and criminal investigation hearings were conducted from September to October 1989. On October 31, 1989, the State filed separate criminal complaints against Owen, Kaplan, and Palmer.
The defendants argue that, although the alleged crimes charged by the State are difficult to detect, that fact did not relieve the State of its burden of bringing the charges within the two-year statute of limitations. The defendants claim that the State failed to produce evidence of any overt acts by the defendants which occurred after October 1986. In addition, the defendants contend that the State is now trying to make violations of K.S.A. 25-4170 and K.S.A. 25-4154 continuing crimes. The defendants claim that, even if the contributions were illegally funneled through the various individuals and corporations, the entries were completed more than two years prior to the State commencing prosecution and, thus, prosecution for the alleged offenses is barred.
The district judge first determined that the alleged crimes were not continuing offenses. We agree with that determination. The judge, after acknowledging that there may have been misuse or perhaps laundering of funds going through the various corporations and individuals, determined that these acts were not done to conceal the fact that the crimes had been committed. We disagree with that decision.
There is evidence that Owen designed and executed a scheme calculated to prevent the discovery of his ties to the contributions made by the corporations and other individuals. On the surface the reports required by the Campaign Finance Act indicated legal contributions by those individuals and corporations and concealed Owen’s illegal contributions. Owen had daily control over all of these corporations, whose books were kept in Owen’s office and maintained by his secretary and his accountant at his direction. Owen used entries in corporate books, checks issued by the corporations, and checks of other individuals to conceal the fact that he was making the contributions. The State contends the entries in the corporate books for legal fees, advance commission checks, refund of consulting fees, and promissory notes were mere illusions to make the conduct appear as normal, legal business transactions and concealed the fact that the money had actually been contributed to Hayden’s campaign by one person, Owen. The net result, according to the State, was that the checks as delivered and recorded and reported by Hayden’s campaign prevented discovery of Owen’s illegal contribution because each individual contribution recorded did not exceed the $3,000 limitation. As a result, according to the State’s theory, it was Owen’s acts of concealment that prevented others from acquiring knowledge of the illegal contributions; thus, Owen’s illegal acts caused the receipts and expenditures report made by the Hayden campaign to be a false writing pursuant to K.S.A. 21-3711.
The Campaign Finance Act is designed to prevent unscrupulous persons and organizations from contributing unlimited sums of money in order to obtain improper influence over candidates for elective office or to affect the outcome of elections.
The fact that a newspaper reporter, without the subpoena power of the inquisition, reported there were suspicious circumstances regarding the contributions does not indicate that the alleged illegal contributions could have been discovered when the campaign finance reports were received or made public. Though the paper trail exists, it may be a false trail to conceal the fact that Owen made illegal campaign contributions. Under the facts presented, the question of concealment is a matter of fact for the jury to determine. State v. Taylor, 140 Kan. 663, 667, 38 P.2d 680 (1934); see State v. Wingett, 136 Kan. 436, 16 P.2d 486 (1932); State v. McGinley, 129 Kan. 655, 284 Pac. 384 (1930).
The judgment of the district court is affirmed in part and reversed in part. Counts 5 and 8 through 18 of the complaint against David C. Owen are hereby reinstated and remanded to the district court for further proceedings. Count 1 of the complaint against John E. Palmer is hereby reinstated and remanded to the district court for further proceedings. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against James Larry Linn, of Wichita, an attorney admitted to the practice of law in Kansas. The complaint filed against the respondent alleges violations of the Model Rules of Professional Conduct (1990 Kan. Ct. R. Annot. 210) and Supreme Court Rule 207 (1990 Kan. Ct. R. Annot. 141).
A formal hearing before a panel of the Board for Discipline of Attorneys was held on November 2, 1989. Linn appeared pro se. Prior to the taking of evidence, Linn stipulated that he did not cooperate with the investigations of the complaint and is in violation of Supreme Court Rule 207. The Disciplinary Administrator’s Exhibits D and E, letters dated June 19, 1989, and July 12, 1989, to Linn from the investigator appointed to investigate these complaints, were admitted into evidence. The July 12 letter was sent by certified mail and the receipt was signed by Linn on July 13, 1989. Linn admitted that he received the letters.
The facts are not in dispute. Jack Zollman contacted Linn on May 24, 1988, concerning a claim for wrongful termination against his former employer, the Boeing Military Airplane Company. On June 6, 1988, Zollman gave Linn a check for $100 as partial payment on the fee agreement of a $500 retainer plus an hourly charge of $100. On June 10, 1988, Zollman gave Linn a check for the balance of the retainer fee.
During a conference on May 25, 1988, or June 6, 1988, Zollman agreed to obtain documents stating the policies and rules of the employer. During the summer of 1988, Zollman delivered the documents to Linn. Zollman testified that Linn indicated that he would write a couple of letters to the employer. Although Linn’s office file did not contain copies of such letters, Linn testified that he thought he had written one letter to the employer. Linn stated that he did have telephone conversations with three different supervisory people employed by Roeing.
At the first meeting between Zollman and Linn, Linn suggested that Zollman file for unemployment benefits. Zollman handled his request for unemployment benefits himself until August 1988, when a hearing was set on Zollman’s appeal of the denial of unemployment benefits. Zollman requested that Linn represent him at the hearing. Due to Linn’s efforts, Zollman was awarded past due unemployment benefits in excess of $2,000.
When Linn and Zollman met in September 1988, Linn advised his client that he had expended more time than provided by the original retainer of $500. Zollman gave Linn a $200 check dated September 23, 1988. Thereafter, numerous telephone calls by Zollman to Linn went unanswered and several scheduled conferences or appointments between the client and his attorney were cancelled by Linn. Linn testified that, after the unemployment benefits hearing, although he had no contact with the client, he continued to pursue Zollman’s action against his former employer.
When Zollman was unable to contact Linn by telephone or keep a scheduled appointment with him, he wrote a certified letter to Linn on February 11, 1989, terminating Linn’s employment. In addition to advising Linn his services were terminated, Zollman requested that Linn return all documents and correspondence regarding his claim against his former employer and prepare an itemized accounting of services Linn had rendered. Though the receipt for the letter was signed by Linn on February 16, 1989, Linn did not comply with Zollman’s request.
On March 8, 1989, Zollman hired another attorney, who wrote to Linn and requested that Zollman’s documents be delivered to him. Linn did not recall receiving or answering the letter from Zollman’s new attorney.
On May 30, 1989, Zollman informed the Disciplinary Administrator by letter of Linn’s failure to respond to Zollman’s requests that his employment documents be given to his new attorney and that an itemized bill for services rendered be furnished. It was not until the November 2, 1989, hearing before the panel that Linn delivered the documents to Zollman.
In mitigation for his failure to respond to Zollman and the request of the investigator for the Disciplinary Administrator, Linn presented evidence of his psychological and physical problems associated with his diabetic condition, eye surgery, and other personal problems stemming from family illness. These mitigating circumstances were also considered by the disciplinary panel in case numbers B4386, B4416 and B4412 and by this court in In re Linn, 245 Kan. 570, 781 P.2d 738 (1989).
In the prior hearings, medical testimony established that Linn first sought medical attention for his diabetic condition on September 29, 1988. After treatment, Linn had his first normal blood sugar count on January 3, 1989. Linn appeared before the disciplinary panel on these prior complaints on January 18, 1989, and February 23, 1989, and assured the panel that he had his medical problems under control. It is important we note that it was between the January 18 and February 23 hearings that Linn received Zollman’s letter discharging Linn and requesting him to return Zollman’s documents and requesting an accounting for Linn’s services.
In the present complaint the panel found there was clear and convincing evidence that Linn violated Supreme Court Rule 207 by failing to cooperate in the investigation of the complaint. The panel unanimously found clear and convincing evidence that Linn violated MRPC 1.3 (1990 Kan. Ct. R. Annot. 219) in that Linn did not act with reasonable diligence and promptness in representing a client; that Linn violated MRPC 1.4 (1990 Kan. Ct. R. Annot. 220) in that Linn neither kept his client informed of the status of the matter nor answered the requests of the client for information; that Linn violated MRPC 1.15(d)(2)(iii) and (iv) (1990 Kan. Ct. R. Annot. 248) in that Linn failed to render an appropriate accounting to his client regarding his fee and failed to promptly deliver to the client’s new attorney the documents in his possession as requested; and that Linn violated MRPC 8.4(g) (1990 Kan. Ct. R. Annot. 290) as his conduct in this matter adversely reflects on his fitness to practice law.
In In re Linn, 245 Kan. 570, a panel of the Board for Discipline of Attorneys determined that the undiagnosed diabetes had substantially affected Linn’s behavior and was an extremely mitigating factor in determining the discipline to be imposed. It recommended that Linn be placed on probation by this court for a period of one year. We agreed with the panel’s recommendation and ordered that the imposition of discipline against Linn be suspended and he be placed on probation for one year under the following conditions:
1. that he not violate any of the Model Rules of Professional Conduct or the Disciplinary Rules;
2. that he cooperate fully with his supervising attorney and the disciplinary administrator;
3. that his practice of law be supervised by a practicing attorney to be named by and accountable to the disciplinary administrator;
4. that respondent make restitution to the complainant in the last complaint in the sum of $810, representing the retainer fee of $750 and costs of $60; and
5. that he pay the 1989-90 attorney registration fee together with any late penalty.
The panel here observed that a portion of the current complaint against Linn occurred while he was appearing before the previous panel. Based on Linn’s continuation of being unresponsive to his clients, the panel recommended that the respondent be disciplined by indefinite suspension from the practice of law pursuant to Rule 203(a)(2) (1990 Kan. Ct. R. Annot. 137).
At the hearing before this court, the respondent did not contest the finding of the panel but did take exception to the recommendation of the panel. The respondent requested we take notice of our previous orders regarding supervision of the respondent and note the report of the supervising attorney, Mel L. Gregory.
Gregory reported that since he was appointed to supervise Linn in April of 1990, Linn has complied with all requirements of this court. Gregory reported he had met with Linn weekly. Linn has furnished him with a complete report on each case and has and is attempting to obtain employment. Gregory and the Disciplinary Administrator recommended that Linn continue his probationary period under the supervision of the Disciplinary Administrator.
We find that there is clear and convincing evidence to establish that Linn violated Supreme Court Rule 207; MRPC 1.3; MRPC 1.4; MRPC 1.15(d)(2)(iii) and (iv); and MRPC 8.4(g). We agree with the panel that Linn’s conduct is serious. Contrary to the panel’s determination, we find that diabetes continues to substantially affect respondent’s behavior and is an extremely mitigating factor in determining the discipline to be imposed in this case. Through the help and guidance given by Mel Gregory, Linn has taken substantial steps towards rehabilitation. Gregory’s efforts are typical of many members of the Kansas Bar who freely give their time in an effort to rehabilitate a fellow attorney. Because of Linn’s response to Gregory’s efforts, we find that discipline should be suspended and that respondent’s probation be extended for an additional one-year period.
Respondent is required to continue to cooperate with Gregory; to make all his files, bank statements, books, and records available to Gregory at any and all times; and to pay any and all travel, telephone, or other expenses necessarily incurred by Gregory in carrying out his supervisory duties.
It Is The Order Of The Court that Linn’s probation be extended for an additional period of one year under the conditions previously imposed by this court. The supervising attorney shall continue to report respondent’s progress to the Disciplinary Administrator on a quarterly basis. The Disciplinary Administrator shall submit a report to this court at the end of the extended period of probation and, upon receipt of the report, this court shall upon notice make such further order as justice may require.
It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to the respondent, and this court shall take whatever disciplinary action it deems just and proper without further formal proceedings.
It Is Further Ordered that this order be published in the Kansas Reports, and that respondent pay the costs of these proceedings. | [
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The opinion of the court was delivered by
Holmes, C.J.:
Plaintiffs, Dearborn Animal Clinic, P.A., and Central Animal Hospital, Inc., appeal from an order of summary judgment in favor of the defendant in a legal malpractice action filed against their former attorney, Charles R. Wilson. The trial court held the action was barred by the statute of limitations,
K.S.A. 60-513. The Court of Appeals affirmed the trial court in an unpublished opinion, Dearborn Animal Hosp. v. Wilson, No. 63,904, filed May 25, 1990. We granted review, and we now affirm the Court of Appeals and the district court.
The facts are complicated and will be set forth in detail. Dear-born Animal Clinic, P.A., (Dearborn) was a professional corporation owned by Jim Guglielmino, D.V.M., and Patricia Stewart, D.V.M. Dearborn owned and operated several veterinary clinics in the Johnson County area. Central Animal Hospital, Inc., (Central) was a corporation which owned veterinary equipment. Dear-born owned two-thirds of the capital stock of Central and William L. (Luke) Fry, D.V.M., owned the other one-third. Several area veterinary clinics used Central’s equipment and paid a percentage of their gross revenues to Central for the use of such equipment.
In the fall of 1984, Dearborn decided to sell one of its clinics, the Antioch 75 Clinic, and stock in Central to Thomas Holenbeck, D.V.M. Charles R. Wilson (Wilson or defendant), an attorney for Dearborn and Central, was asked to draft an asset purchase agreement between Dearborn and Holenbeck. Dr. Guglielmino testified he told Wilson to be sure Holenbeck was required to buy stock in Central. Wilson drafted the “Asset Purchase Agreement” which Dearborn and Holenbeck signed on November 30, 1984. Central was not a party to the agreement.
The contract provided for a purchase price of $82,500 to be paid in monthly installments for the Antioch 75 Clinic and $30,430 for one-fourth of the stock in Central. In December of 1984, Holenbeck began paying Dearborn $1,200 per month on the contract. In December of 1985, Holenbeck lowered his monthly payments to $879, informing Guglielmino that he had not purchased stock in Central and did not wish to exercise his option to purchase the stock.
On December 26, 1985, Glen Beal, an attorney for Dearborn, sent Holenbeck a letter, demanding full payment of the balance due on the $82,500 sales price plus interest and alleging that Holenbeck had breached the terms of the agreement. On December 30, 1985, Michael Merriam, an attorney for Holenbeck, responded by letter, stating in part: “I have advised Dr. Holenbeck that I see no duty on his part to do so under the terms of the agreement, as he is not in default in any respect, and even if he were, the contract does not provide for acceleration of the entire purchase price balance.”
On February 26, 1986, Dearborn sued Holenbeck in Johnson County District Court for breach of contract. As a part of the original asset purchase agreement, Holenbeck had agreed to pay Central 20% of his gross revenues for the use of Central’s equipment and services. Holenbeck stopped making such payments after Dearborn filed the Johnson County action.
The Johnson County lawsuit against Holenbeck will hereafter be referred to as the Holenbeck suit or the underlying action.
Discovery was undertaken in the Holenbeck suit and, although the record before us from that action is skimpy, it does include Dr. Stewart’s answers on behalf of Dearborn to extensive interrogatories, and it appears that Stewart and Guglielmino were both deposed at length. The principal allegations in the Holenbeck suit, which are relevant to this appeal, were based upon the contentions of Guglielmino and Stewart that Holenbeck had made a binding agreement to buy one-fourth of the stock of Central and that he had breached the agreement by refusing to purchase the stock. The relevant portion of the contract on this issue read:
“8. Seller [Dearborn] shall take appropriate steps to have Buyer [Holenbeck] placed as a member of the Board of Directors of Central Animal Hospital, Inc. Further, Seller and its officers shall take such steps as are necessary to grant an option to purchase one-fourth of the issued and outstanding shares of Central Animal Hospital, Inc., said option to be exercised within one year, but not sooner than following anticipated S.B.A. financing. The purchase price for said stock shall be $30,430.”
In Dearborn’s answers to Holenbeck’s interrogatories, signed by Stewart on June 12, 1986, Stewart referred to the stock provision as a stock option, contending that Holenbeck had “executed upon the option” and “accepted the stock option” but stopped paying for the stock in December of 1985. In her deposition she testified that at the time the interrogatory answers were signed, it had become “unfortunately obvious” that Holenbeck had received only an option and “that what we thought we had wasn’t really what we had.”
Unfortunately, the record before us only includes selected bits and pieces of the depositions of Guglielmino and Stewart. We have only been furnished 9 pages of Stewart’s deposition which apparently exceeded 154 pages and 3 pages of the Guglielmino deposition which exceeded 270 pages.
Following completion of discovery in the Holenbeck case, the defendant filed a motion for summary judgment and the court, on January 30, 1987, issued its order of partial summary judgment. In doing so the court found 42 uncontroverted facts and then concluded in part:
”2. With respect to Issue Number A-4 of Defendant’s Motion for Partial Summary judgment [the claim that Holenbeck was under an absolute requirement to purchase stock in Central and had breached that portion of the agreement], the Court makes the following findings:
“a. The provisions of Paragraph 8 of the Asset Purchase Agreement are as follows:
“8. Seller shall take appropriate steps to have Buyer placed as a member of the Board of Directors of Central Animal Hospital, Inc. Further, Seller and its officers shall take such steps as are necessary to grant an option to purchase one-fourth of the issued and outstanding shares of Central Animal Hospital, Inc., said option to be exercised within one year, but not sooner than following anticipated S.B.A. financing. The purchase price for said stock shall be $30,430.70.
“b. Plaintiffs contention is that the phrase ‘said option to be exercised within one year’ contained in such provision are words of mandatory obligation which require the defendant to purchase the stock within one year. However, the Court finds that the use of. the term ’option’ creates a true option on the part of the defendant which he alone may elect to exercise or not exercise, and no mandatory obligation is thus imposed.
“c. The Court further finds that plaintiffs contend the option to have been exercised by defendant. However, according to uncontroverted fact number 18 above, and uncontroverted facts numbers 20-27, inclusive, the Court must find that, for purposes of the Motion for Partial Summary Judgment, the uncontroverted fact is that the defendant did not exercise such option. Any payments made by the defendant which were applied by plaintiffs to the purchase price of such stock were made by the defendant in ignorance of such application.
“d. The Court therefore finds and concludes that the Defendant’s Motion for Partial Summary Judgment designated Issue Number A-4, should be sustained.”
The trial court went on to state, “[T]he Asset Purchase Agreement is interpreted to grant defendant an option to buy stock, which defendant did not exercise.” Although not part of the record, we were advised in oral argument and in the briefs that the parties ultimately settled other aspects of the case by Holenbeck making a substantial payment to Dearborn and/or Central.
On August 16, 1988, this action was filed by Dearborn and Central, in Leavenworth County District Court, against Wilson for alleged malpractice in the preparation of the Dearborn/Holenbeck asset purchase agreement. The plaintiffs claimed, inter alia, that Wilson was negligent in drafting the agreement which granted Holenbeck an option to purchase Central stock rather than requiring he purchase it. In this action, plaintiffs’ alleged damages included their legal expenses incurred in their litigation with Holenbeck in the underlying suit.
On April 14, 1989, Wilson filed a motion for summary judgment, contending that plaintiffs’ suit was barred by the statute of limitations. A hearing was held on the motion on May 12, 1989. The court granted Wilson’s motion. In the journal entry filed June 5, 1989, the court found:
“[T]he statute of limitations began to run in December of 1985, or at the latest February of 1986, when plaintiffs sustained substantial injury which was immediately ascertainable. The Court finds that at that time plaintiffs could have maintained an action against Charles R. Wilson and that nothing about the litigation between plaintiffs and Dr. Holenbeck precluded a claim against Charles Wilson.”
The Court of Appeals, though not specifically stating the date the statute of limitations began to run, found that Dearborn incurred damages “the moment Holenbeck reneged on the agreement,” suffering financial injury for Wilson’s negligence and incurring legal expenses. The Court of Appeals further found that “Dearborn knew as early as December 1985 that Wilson’s purported unskillful drafting had, in all likelihood, created a pure option contract. Dearborn then was on notice that it had suffered damages due to the purported negligence of Wilson.”
Though no final decision had been reached on the merits of the litigation between plaintiffs and Holenbeck until summary judgment was actually granted on March 9, 1987, the Court of Appeals observed that the critical information to trigger the running of the statute of limitations is knowledge of the fact, not the extent, of injury. Brueck v. Krings, 230 Kan. 466, 470-71, 638 P.2d 904 (1982). Accordingly, resolution of the underlying litigation would have affected the amount of the damages only, not the right to recover damages, if plaintiffs could prove the alleged malpractice of Wilson.
Plaintiffs then sought review of the Court of Appeals’ decision, and we granted their petition. Plaintiffs contend that their cause of action did not accrue until their suit against Holenbeck was resolved against them, March 9, 1987, because this was the point in time in which they actually incurred damages or had actual knowledge of the fact of injury and thus could legally maintain an action against Wilson. If they had been successful in the underlying litigation with Holenbeck, they would have had no damages attributable to Wilson. To hold that the cause of action accrues before the underlying litigation is resolved, plaintiffs contend, would be to require them to file their malpractice suit contemporaneously with their suit against Holenbeck. To support their position, plaintiffs rely upon our decisions in Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986); Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 976 (1967); and the Court of Appeals’ decision in Webb v. Pomeroy, 8 Kan. App. 2d 246, 655 P.2d 465 (1982), rev. denied 232 Kan. 876 (1983).
Wilson contends. that, under K.S.A. 60-513(b), the cause of action accrued more than two years before plaintiffs filed suit, because plaintiffs sustained damages and knew of his alleged negligent acts more than two years before they filed suit. Wilson distinguishes the cases plaintiffs rely upon and contends that nothing prevented plaintiffs from bringing their malpractice suit prior to the resolution of their suit against Holenbeck.
In granting summary judgment, the trial court adopted by reference 24 of the 25 uncontroverted facts alleged by Wilson in his motion for summary judgment and, in addition, made 3 additional findings of fact. The facts alleged by Wilson were meticulously keyed to the trial court record consisting primarily of the depositions of Guglielmino and Stewart and some documents. As the bulk of this record has not been furnished to us on appeal, most of the facts found to be true must be considered as such on appeal. The burden is on an appellant to designate a record sufficient to present appellant’s position to an appellate court and to establish the claimed error. State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, Syl. ¶ 6, 799 P.2d 1043 (1990).
We now turn to the issue before this court. Does the record which is before us, when read in the light most favorable to plaintiffs, require affirmance of the trial court’s determination that the action was barred by the statute of limitations? We conclude it does.
It is undisputed that plaintiffs’ malpractice action, based upon the alleged negligence of the defendant in preparing the Dear-born/Holenbeck asset purchase agreement, is governed by the two-year statute of limitations provided in K.S.A. 60-513(a)(4). K.S.A. 60-513(b) establishes when a cause of action based upon tort, with the exception of medical malpractice, accrues and provides in part:
“[T]he cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party . . . .”
The determination of when the cause of action in a legal malpractice action shall “be deemed to have accrued” has been the subject of several recent appellate cases. See Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42, modified 247 Kan. 699, 803 P.2d 205 (1990); Pancake House, Inc. v. Redmond, 239 Kan. 83; Webb v. Pomeroy, 8 Kan. App. 2d 246. In Pancake House we discussed the various theories which may be applied in determining when the statute of limitations begins to run, and stated:
“Depending upon the facts and circumstances of each case, there are at least four theories which can apply to attorney malpractice in Kansas as to when the accrual of a cause of action occurs and the statute of limitations begins to run. These include:
“(1) The occurrence rule—the statute begins to run at the occurrence of the lawyer’s negligent act or omission.
“(2) The damage rule—the client does not accrue a cause of action for malpractice until he suffers appreciable harm or actual damage as a consequence of his lawyer’s conduct.
“(3) The discovery rule—the statute does not begin to run until the client discovers, or reasonably should have discovered, the material facts essential to his cause of action against the attorney.
“(4) The continuous representation rule-—the client’s cause of action does not accrue until the attorney-client relationship is terminated. For cases discussing all four points see Annot., 32 A.L.R.4th 260; ABA/ BNA Lawyers’ Manual on Professional Conduct § 301:901 (1985); Mallen and Levit, Legal Malpractice § 388 et seq. (2d ed. 1981).” 239 Kan. at 87.
These four theories or “rules” were again recognized by this court in Pizel, 247 Kan. at 76.
While the wording of K.S.A. 60-513(b) appears to be straightforward and easily understood, the application of the statute to various factual situations has resulted in a substantial body of litigation in various areas of tort liability. As a result, certain general principles have evolved. In applying the language of the statute, two alternatives are recognized depending upon the facts of the case. Under the first alternative, the cause of action “shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury.” (K.S.A. 60-513(b). This court has found that this alternative codified the rule in Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64 (1951), that “the statute of limitations commences to run when the injury, resulting from the negligent act, occurs.” Roe v. Diefendorf, 236 Kan. 218, 221, 689 P.2d 855 (1984). See Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 189, 519 P.2d 661 (1974).
Under the second alternative, “if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” K.S.A. 60-513(b). We have found that this alternative “ameliorated the harsh result of the [first alternative] when applied to some of the malpractice cases where substantial injury occurs sometime after the negligent act but may not be ascertainable as such for several years” (Ruthrauff, Administratrix v. Kensinger, 214 Kan. at 190, and “[w]hen there is an isolated act resulting in immediate injury not readily apparent to the innocent party” (Olson v. State Highway Commission, 235 Kan. 20, 24, 679 P.2d 167 [1984]). See 1 Card’s Kansas C. Civ. Proc. 2d Annot. § 60-513 (1979).
The second alternative has frequently been applied in the areas of medical malpractice and products liability where the injury from the negligent act may not become apparent until some time after the act actually occurred. Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971).
In many cases of alleged legal malpractice there are at least two areas of possible delay which may make it difficult to determine just when the statute of limitations began to run. Many times, as in the present case, the negligent act occurs at the time the attorney performs, or fails to perform, services for the client. However, there may be considerable lapse of time before the client actually suffers injury. An additional delay may occur between the time that the client suffered injury and the time that the client knew, or reasonably should have known, that the injury was caused by the attorney’s malpractice. These delays have led to the recognition of the four theories set forth in Pancake House and Pizel. While some states have attempted to limit the issue to one particular theory, practice demonstrates that no matter how desirable it might be to have one black-letter rule that applied in every case, justice and fairness, as well as the statute, preclude the adoption of one theory to the exclusion of all others.
In the instant case the alleged negligent act of Wilson occurred at the time he prepared the Dearborn/Holenbeck agreement, and arguably the plaintiffs suffered injury at that time when they did not get the agreement that Dearborn hired Wilson to prepare. However, no actionable injury had occurred because Holenbeck might have elected to exercise his option in which case the plaintiffs would have suffered no injury even though Wilson was negligent in preparing the agreement. See Roe v. Diefendorf, 236 Kan. at 222-23. It is equally apparent that the fact that plaintiffs had suffered injury would not be reasonably ascertainable to them until some later time when the actual agreement became a matter of controversy between Dearborn and Holenbeck.
Plaintiffs contend that they could incur no damages or have knowledge of the fact of injury until the underlying litigation was resolved, because termination of the underlying litigation in their favor would have resulted in no injury caused by Wilson’s negligence. The Court of Appeals held that injury was sustained when Holenbeck refused to pay for the stock and appellants began incurring legal expenses to enforce the contract. Relying upon the rule that it is knowledge of the fact, not the extent, of the injury, the Court of Appeals found that resolution of the underlying litigation would have affected the amount of damages only. We think the Court of Appeals’ analysis was too simplistic.
While plaintiffs undoubtedly incurred monetary damage when they were forced to retain counsel to enforce the agreement as they understood it and suffered further damage when Holenbeck reduced his payments and declined to purchase the Central stock, the retention of counsel and the failure of Holenbeck to perform the agreement as contemplated by plaintiffs did not, per se, give rise to a cause of action against Wilson. In December of 1985 the plaintiffs were still under the impression that the Dearborn/ Holenbeck agreement required Holenbeck to purchase the Central stock and in February 1986, apparently on the advice of new counsel, filed suit to enforce the agreement. Although the act which ultimately caused injury occurred when the agreement was drafted, the fact the injury was a result of the negligent act was not ascertainable until the plaintiffs knew or should have known of the negligence of Wilson. There was no reason for plaintiffs, who were not lawyers, to know that the agreement had not been properly drafted. That is why they hired an attorney in the first place—to prepare the agreement they wanted and thought they had received. The trial court concluded that the date for purposes of the running of the statute of limitations was February 1986, when suit was filed to enforce the agreement. In so holding, the judge stated, “The fact of the underlying litigation was the first instance that injury became reasonably ascertainable.” We do not agree with the trial court. Suit was filed, presumably on the advice of counsel, to enforce what was alleged to be the mandatory obligation of Holenbeck to purchase the Central stock. It cannot be said that at that time it was reasonably ascertainable to plaintiffs that their monetary damages were the result of Wilson’s negligent performance.
Plaintiffs contend that so long as the underlying litigation remained unresolved they could not know whether their interpretation of the agreement was correct. It is argued that until the underlying litigation was decided they did not have reason to know that malpractice by Wilson had occurred. In support of their position, plaintiffs rely on several cases.
The first case appellants rely upon is Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 975 (1967), in which the administrator of Lillian Price’s estate sued Holmes, a banker, on June 4, 1965, for having secured the faulty execution of the will of Henry H. Weber. Weber was the uncle of Lillian Price and had contacted Holmes about a will. The uncle’s will, drafted by Holmes and signed on November 16, 1960, gave one-half of Weber’s estate to his wife and the other half to Lillian. After Weber’s death, his will was offered for probate on November 26, 1960, and his wife contested the will, claiming it had not been legally executed. The probate and district courts admitted the will to probate but, on December 7, 1963, the Kansas Supreme Court reversed their decisions, finding the will void. In re Estate of Weber, 192 Kan. 258, 387 P.2d 165 (1963). Lillian died while the appeal in that case was still pending.
In the suit against Holmes, the trial court granted Holmes’ motion for summary judgment, finding the cause of action barred by the statute of limitations and finding it did not survive Lillian’s death. On appeal, the Kansas Supreme Court found two causes of action—a tort action for negligence and a contract action for breach of implied warranty—and then considered whether either action survived Lillian’s death and was not barred by the statute of limitations.
Regarding the tort action, the court stated that the cause of action accrues when damage results and held that Lillian’s cause of action did not accrue until her uncle’s will was finally declared invalid by the Kansas Supreme Court on December 7, 1963. Because Lillian had died prior to the Supreme Court’s decision in Estate of Weber, the tort cause of action did not survive her death. In discussing the tort cause of action for negligence, the court stated:
“[W]e are constrained to hold that any cause of action existing.against Holmes for negligence accrued when this court declared Weber’s will void on December 7, 1963. That was the date on which the ground fell from under Lillian Price; prior to that time the will had been held valid by two courts, and Lillian had suffered no damage at the hands of Mr. Holmes.
“. . . In the instant case, had no contest of Weber’s will developed, Lillian Price would have sustained no such damage as plaintiff now claims. . . . [u]nder the circumstances present in this case, the tort action did not accrue until Weber’s will was finally declared invalid.” 198 Kan. at 105.
Price is clearly distinguishable from the facts in the present case in that the validity of the Weber will was upheld until final determination of the underlying lawsuit in this court. Prior to that time Lillian Price suffered no ascertainable injury.
Two other cases relied upon by plaintiffs, Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1984), and Webb v. Pomeroy, 8 Kan. App. 2d 246, 655 P.2d 465 (1982), along with our recent case of Pizel v. Zuspann, 247 Kan. 54, can arguably be said to stand for the general proposition that in a legal malpractice action, where there is underlying litigation, the statute of limitations does not begin to run until the underlying litigation is finally determined. However, those cases are clearly distinguishable from the case now before the court, and we see nothing to be gained by an exhaustive discussion of them.
The rationale for the argument of plaintiffs that the statute of limitations does not begin to run until the underlying litigation is finally determined was cogently stated by the Oregon Supreme Court in U.S. Nat’l Bank v. Davies, 274 Or. 663, 548 P.2d 666 (1976). In Davies, a malpractice suit was filed against the defendant attorneys to recover money the decedent had paid in settlement of a lawsuit with a corporation. The corporation had filed suit against the decedent on August 17, 1971, alleging that decedent’s acceptance of corporate trust funds in payment for selling his stock was illegal. The defendant attorneys had advised decedent in 1967 to sell his stock in that manner. Settlement occurred in May 1973. The malpractice suit was filed November 5, 1974, to recover the settlement money the decedent paid the corporation and to recover the attorney fees incurred in defending the suit.
After finding the statute of limitations in a negligence case should not run until the occurrence of harm, because harm is an essential element of a negligence action, the Oregon Supreme Court considered the question of when damage occurred. The court stated:
“Defendants contend it occurred when decedent was sued or, in any event, as soon thereafter as decedent could hire competent counsel and could ascertain whether the claim against him was likely to be a valid one; and that, in either case, such a time was more than two years prior to the commencement of this case by plaintiffs decedent. There is no doubt that decedent’s necessity to defend the action caused him damage more than two years prior to the commencement of the present action. It is not so clear, however, that at that time it could yet be determined that his expense was caused by negligent advice by defendants. In many situations the closeness of the legal questions involved would make it impossible to ascertain until the ultimate determination of the case whether it was brought as the result of the attorney’s bad advice or whether it was the result of a misapprehension on the part of the party who sued as to his legal rights. In the present instance, if decedent had won the case brought against him, he would not normally be in a position to claim that negligent advice on the part of the present defendants was a cause of his expense of defense.
“When this case is tried, it might be shown that the outcome of the claim made against decedent was so crystal clear that upon securing legal advice decedent immediately knew either that he had a valid claim against defendants or that he did not; or, it might appear that no one could tell for certain whether the claim Was good or bad. There is nothing about the filing of the claim against decedent together with the passage of any arbitrary lengths of time which, as a matter of law, demonstrates that decedent should have been aware at a time which makes the claim vulnerable to the statute that his necessity to defend the action was caused by defendants’ advice. [Citations omitted.] The following statement from the previously cited Harvard Law Review article [Developments—Statutes of Limitations, 63 Harv. L. Rev. 1177 (1950)], at 1200, is appropriate;
\ . . The commencement of the statutory period has occasionally been delayed, despite the existence of a theoretical right to recovery, until the occurrence of some later event the absence of which made suit impossible or improbable; for example, until the plaintiff learned of the wrong or until substantial damage occurred. * * * .’
The author could just as logically have added, ‘or until it appeared probable that the substantial damage actually suffered was caused by defendant.’ Kohler v. Woollen, Brown & Hawkins, 15 Ill. App. 3d 455, 304 N.E.2d 677, 680-81 (1973); Price v. Holmes, 198 Kan. 100, 422 P.2d 976, 980-81 (1967): Marchand v. Miazza, 151 So. 2d 372, 375 (La. App. 1963).
“Plaintiffs decedent could have played it safe by filing an action against defendants immediately upon his being sued, in the event it Subsequently appeared defendants’ negligent advice was the cause of the action brought against him. However, it does not seem wise to encourage the filing of such provisional actions. More important, it could prove to be disastrous to a plaintiffs defense of the action brought against him and, thus, perhaps disastrous to his former legal advisor as well. In the present case, plaintiffs decedent would have been defending one suit or action, claiming he had acted in conformance with the law, while simultaneously maintaining an action against defendants, claiming that he had not acted in conformance with the law because of faulty advice from defendants. Such an inconsistent position would have given rise to impeachment of decedent in his defense of the action brought against him, which certainly is not desirable from either of the present parties’ point of view.
“This is one of those situations in which common sense dictates that a ‘later event’ (the appearance of decedent’s probable liability) should take place before the statute commences to run.” 274 Or. at 668-70.
The rule applied in Davies is consistent with the requirement of K.S.A. 60-513(b) that the statute of limitations does not begin to run until it is reasonably ascertainable that the injury suffered was the result of the defendants’ malpractice. In a legal malpractice action in which there is underlying litigation which may be determinative of the alleged negligence of the attorney, the better rule, and the one which generally will be applicable under K.S.A. 60-513(b), is that the statute of limitations does not begin to run until the underlying litigation is finally determined. Ordinarily, as long as there is a good faith dispute, a layperson could not reasonably be expected to know that the dispute was caused by his attorney’s negligence and the mere filing of an underlying lawsuit would not automatically trigger the running of the statute but would usually require a final determination of such an action. However, the rule that the underlying litigation must be finally determined before the statute of limitations begins to run cannot be arbitrarily applied in every case. If it is clear that the plaintiff in a potential legal malpractice action has incurred injury and if it is reasonably ascertainable that such injury was the result of the defendant attorney’s negligence, then under K.S.A. 60-513(b) the statute begins to run at the time that it is reasonably ascertainable that the injury was caused by the attorney’s malpractice even though the underlying action may not have been finally resolved.
In the instant case the plaintiffs clearly suffered monetary damage when they had to retain counsel to enforce their interpretation of the contract and when Holenbeck reduced his payments and refused to purchase stock in Central. Further monetary damage was incurred in February 1986 when Holenbeck ceased making any payments to Central because of the lawsuit filed against him. However, it is not so clear that plaintiffs could reasonably ascertain at that time that such injury was the result of Wilson’s alleged negligence. In reliance upon new counsel, plaintiffs were still attempting to enforce their understanding of the Dearborn/ Holenbeck agreement. Thus, we conclude that the trial court’s determination that the statute began to run no later than February 1986 and the implied holding of the Court of Appeals that it began in December 1985 are not conclusively supported by the record before us. Nevertheless, this does not conclude our consideration of this case nor control our decision. “The reasons given by a district court for its decision are immaterial so long as its ruling was correct for any reason.” Prairie State Bank v. Hoefgen, 245 Kan. 236, Syl. ¶ 3, 777 P.2d 811 (1989).
The meager record before us makes it abundantly clear that at the time Dr. Stewart answered the interrogatories on behalf of Dearborn, on June 12, 1986, the Dearborn officers and stockholders knew that the Dearborn/Holenbeck agreement contained only an option for the Central stock and not a requirement that Holenbeck purchase the stock. Dr. Stewart, in her deposition taken after the interrogatories had been answered, testified that at the time the interrogatory answers were signed, it had become obvious to these plaintiffs that the agreement contained only an option for Holenbeck to purchase the Central stock.
We conclude that no later than June 12, 1986, the plaintiffs had suffered injury as a result of Wilson’s alleged malpractice and that such injury was not only reasonably ascertainable but, in fact, had been ascertained by plaintiffs. The statute began to run no later than June 12, 1986, and as this action was not commenced until August 16, 1988, more than two years thereafter, the result reached by the trial court and the Court of Appeals was correct. The two-year statute of limitations had run and the trial court was correct in granting summary judgment to the defendant.
The judgments of the Court of Appeals and the trial court are affirmed.
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Per Curiam:
This is an original attorney discipline proceeding filed by the Office of the Disciplinary Administrator against Sue Carpenter, of Topeka, Kansas, an attorney duly admitted and licensed to practice law in the State of Kansas.
At all pertinent times, Ms. Carpenter was employed as an Assistant District Attorney in Shawnee County. In such capacity, Ms. Carpenter served as the prosecutor in State v. Clarence E. Jackson, Case No. 85-CR-1692. Mr. Jackson was charged with two counts of rape. The alleged victim, A.V.W., was a mentally and physically handicapped resident of a Topeka nursing home. Mr. Jackson was an employee of that facility. A.V.W. had reported that on two occasions during the early morning hours of August 22, 1985, she was raped by Mr. Jackson. In a jury trial, held in April 1986, Mr. Jackson was found guilty on both counts. The convictions were affirmed by this court in an unpublished opinion (State v. Jackson, No. 60,134, filed October 30, 1987).
On June 25, 1987, A.V.W. filed a civil action against the nursing home seeking damages for the rapes. In connection with the civil suit, A.V.W.’s deposition was taken. Certain inconsistencies between A.V.W.’s trial and deposition testimony were brought to the attention of the Office of the Third Judicial District Public Defender. Said office made further investigations and a motion for a new trial based upon newly discovered evidence was filed. The portion of this motion pertinent herein concerns testimony and Ms. Carpenter’s trial comments and actions in regard to the subject of whether or not A.V.W. had contracted gonorrhea as a result of the alleged rapes. Whether or not A.V.W. had gon orrhea was of particular significance as defendant Jackson denied any sexual contact with A.V.W. If A.V.W. had gonorrhea, the inference was that she had contracted the disease from Jackson, which would tend to corroborate her version of the events on the morning in question. This was particularly so since testimony was introduced that she had tested negative for the disease later on the day of the charged rapes. The question of when the subject of gonorrhea was first known to Ms. Carpenter, according to her statement filed herein, was that “just prior to trial” A.V.W., her mother, and her social worker advised Ms. Carpenter of the treatment for gonorrhea. On the second day of trial, Ms. Carpenter requested that an employee of the district attorney’s office contact Memorial Hospital to corroborate A.V.W.’s having gonorrhea. Later the same day, the hospital called the employee back to advise that there were no hospital records indicating A.V.W. had ever been diagnosed with or treated for gonorrhea since the tests were negative. What the employee did with this information is unknown from the record before us. Ms. Carpenter’s written statement filed herein states that she did not learn of the hospital data until the motion for new trial was filed.
The final hearing report of the disciplinary panel contains the following procedural data:
“Prior to the scheduled evidentiary hearing, the Chairman was notified by telephone that a stipulation had been reached between the Office of the Disciplinary Administrator, the respondent, Sue Carpenter, and her attorney, Jerold Berger, of Topeka, Kansas. The Chairman was further advised that all exhibits would be admitted and considered as part of the evidence in this case by virtue of the stipulation. The stipulation was reduced to writing and mailed to the panel members by the Office of the Disciplinary Administrator on January 26, 1990.
“Through a telephone conference with members of the panel and after consideration of the stipulated evidence and all aspects of this case, it was determined that a full evidentiary hearing would not be required since the evidence to be presented would be identical to the written stipulation and agreement submitted to the panel. It was further agreed by the panel members that a complete review of the exhibits, written stipulation and other evidentiary items would be necessary before rendering a decision.”
The stipulation provides, in pertinent part:
“7. The public defender’s Motion for New Trial Based On Newly Discovered Evidence, And The Interests Of Justice noted a number of reasons why a new trial should be granted. One of the reasons raised in the mem orandum dealt with the state’s allegation at trial that [A.V.W.] had contracted gonorrhea as a result of the rapes.
“8. On June 11, 1988, Judge Thomas W. Regan ruled on Mr. Jackson’s Motion for New Trial Based On Newly Discovered Evidence, And The Interests Of Justice. Judge Regan granted a new trial to Mr. Jackson. The judge noted that the gonorrhea issue was ‘extremely important.’ In addition, Judge Regan imputed knowledge to the respondent that the victim did not have gonorrhea. The judge further found that the respondent ‘continued to use this inflammatory allegation and when the district attorney gained knowledge that there was no basis for that claim they withheld that information from the defendant, his attorney, the Court, and most importantly the jury. ’ Subsequently, the Shawnee County District Attorney’s Office made the decision not to prosecute Mr. Jackson a second time.
“9. The allegation that [A.V.W.] contracted gonorrhea was first raised by the respondent in her opening statement. The respondent informed the jury: ‘and you will hear testimony that the girl was subsequently treated for gonorrhea.’ Later in the trial and during the state’s presentation of evidence, two witnesses were asked questions by the respondent which elicited responses indicating that [A.V.W.] had contracted gonorrhea. Nancy Applehans, a social worker associated with the Indian Trails Nursing Home, answered in response to a question by the respondent that [A.V.W.’s] chart indicated that she had been receiving antibiotics for gonorrhea. An objection to this testimony was sustained, but it clearly was before the jury. Subsequent to the Applehans testimony, Dr. Steven Kowalski testified. He was asked detailed questions by the respondent regarding the transmission of gonorrhea and whether transmission could occur if a man does not ejaculate. The respondent also elicited testimony from Dr. Kowalski that he had tested [A.V.W.] for gonorrhea. Dr. Kowalski testified that he had tested [A.V.W.] and that the test showed no gonorrhea organism after 24 hours. In concluding her questioning of Dr. Kowalski, the respondent asked the doctor if his earlier testimony had not been that it could take about 5 days for the gonorrhea to develop and if a follow-up gonorrhea test had been conducted. The doctor’s answer was in the affirmative. The respondent also asked questions of [A.V.W.] which elicited information indicating that she had been treated for gonorrhea.
“10. On the second day of trial, April 16, 1986, at approximately 10:30 A.M., the respondent directed an employee of the Shawnee County District Attorney’s Office to place a call to Memorial Hospital and ask them for corroboration that [A.V.W.] had gonorrhea. An employee of the hospital returned the call on that same day and advised the district attorney’s office that there were no records indicating that [A.V.W.] had gonorrhea or that she ever had been treated for gonorrhea.
“11. At all times during the trial and for a significant time prior to the trial, medical reports and lab results existed which showed that [A.V.W.] had never tested positive for gonorrhea. In fact, [a] test administered on September 6, 1985, showed that [A.V.W.] had an inflammation caused by gardnerella, a common vaginal flora, and not caused by gonorrhea. The medical records of the nursing home, referred to in the testimony of Nancy Applehans, showed that the symptoms experienced by [A.V.W.] began not the week of the alleged assault, but approximately one month prior to the alleged assault. The medical records of the nursing home also show that the facility had been notified on August 24, 1985, by Memorial Hospital that the gonorrhea and venereal disease tests run on [A.V.W.] were negative. On September 10, 1985, the medical records of the facility show that the nursing home was notified by Memorial Hospital that the results of the lab work showed that [A.V.W.] had some gardnerella infection. All of the medical records and reports referred to were available to the respondent well in advance of trial and at the time of trial.
“12. At no time did the respondent take any action to clear up the impression left with the jury that [A.V.W.] had contracted gonorrhea from Clarence Jackson. In fact, the respondent cross-examined Mr. Jackson about the gonorrhea issue after she directed an employee of the District Attorney’s Office to call Memorial Hospital to determine if [A.V.W.] had contracted gonorrhea. Additionally, the respondent again brought up the issue of gonorrhea in her statements to Judge Regan at Mr. Jackson’s sentencing.
“13. The findings of Judge Thomas W. Regan in his Memorandum Opinion And Order are not disputed by the respondent. Although Judge Regan made no finding that the respondent had personal knowledge of the information concerning the gonorrhea, the respondent admits that she had an affirmative obligation to seek out tests and medical records concerning gonorrhea. These tests and records were available and accessible to the respondent. The respondent, as prosecutor, has an obligation to acquire all relevant information, regardless of its impact on the prosecution.
“14. Judge Regan, in his Memorandum Opinion And Order found that the issue of gonorrhea was ‘extremely important’ and that the evidence regarding gonorrhea ‘would weigh heavily on the jury.’ The respondent admits that she was negligent in not being diligent in obtaining the information provided to the district attorney’s office by Memorial Hospital on the second day of the Clarence Jackson trial. Further, the respondent was negligent in not interviewing Dr. Kowalski prior to the trial and in not obtaining and reviewing all of the medical records prior to trial. Had she done so, she would have determined that [A.V.W.] did not contract gonorrhea. The result of respondent’s negligence, was the denial of a fair trial to Clarence Jackson.
“15. The respondent’s conduct described in this Stipulation And Agreement violated DR 1-102(A)(5) and (6) [1990 Kan. Ct. R. Annot. 165].
“16. The Disciplinary Administrator’s Office recommends Public Censure as the appropriate sanction in this matter. The respondent understands that this is a recommendation and it is not binding on the hearing panel or the Kansas Supreme Court.” (References to exhibit numbers deleted.)
The final hearing report concluded:
“Factual and Legal Summary
“The facts in this matter, having been stipulated to, are set out in detail in the written Stipulation and Agreement. A copy of said Agreement is attached to this report and incorporated herein by reference.
“Finding of fact
“In consideration of the aforementioned stipulation, a specific listing of the factual findings made by the Panel will not be necessary. Having reviewed all of the exhibits and material presented, the Panel finds that the evidence supports the Stipulation and Agreement. Thus, it is the finding of this panel that the respondent’s conduct did, in fact, violate DR 1-102(A)(5) and (6).
“Recommendation
“It is the recommendation of this Panel that the respondent, Sue Carpenter, should be disciplined by public censure pursuant to Rule 203(a)(3) [1990 Kan. Ct. R. Annot. 137], The nature of this recommended form of discipline conforms, in our opinion, with the guidelines set out by the American Bar Association Standards specifically IV 2.5.”
DR 1-102(A)(5) and (6) (1990 Kan. Ct. R. Annot. 165) provide:
“DR 1-102 Misconduct.
“(A) A lawyer shall not:
“(5) Engage in conduct that is prejudicial to the administration of justice.
“(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
The only full evidentiary inquiry into this matter was apparently that held before Judge Regan on the motion for a new trial. A transcript of that proceeding is not included in the record. We do have, however, Judge Regan’s memorandum opinion and order. Its inclusion herein, in pertinent part, is necessary, as follows:
“This Court next turns to the issue of the claim made by the State that the victim [contracted] gonorrhea from the defendant and the method used by the prosecution to clearly leave that impression with the jury.
“The evidence is clear that the District Attorney’s Office knew that the victim did not have gonorrhea when she was tested for same shortly after this alleged attack. When the District Attorney’s Office knew of that information is unclear but they knew it by the second day of the trial yet the prosecutor who in her opening statement told the jury ‘You will hear testimony that [she] was subsequently treated for gonorrhea.’ Again when Nancy Applehans was on the stand the prosecution elicited information from the witness that [the] victim was treated for gonorrhea. Again when Dr. Kowalski testified the prosecution asked about gonorrhea. The State after introducing all of that evidence tried to cast a shadow over defendant when on cross-examination, the prosecutor went into the defendant’s knowledge of medication by stating ‘that all it takes to clear up any traces of gonorrhea was a prescription for antibiotics, to clear up a sore throat’ and then saying ‘penicillin is pretty easy to get from a doctor isn’t it.’
“The new evidence clearly shows that the victim did not have gonorrhea and that the District Attorney’s Office knew that, yet the evidence showed that the prosecutor continued to use this inflammatory allegation and when the district attorney gained knowledge that there was no basis for that claim they withheld that information from the defendant, his attorney, the Court and most importantly the jury.
“On April 15, 1986, twelve citizens of this community stood up and took an oath to decide this case only on the evidence and the law. They sat and listened to evidence for two (2) days and we now find they were misled as to what this Court considers a highly inflammatory allegation.
“A review of the newly discovered, evidence does not disclose that the prosecutor who tried this case had personal knowledge of the report but it clearly establishes that the District Attorney’s Office knew and that knowledge is imputed to the trial district attorney.
“A trial is not a sporting event where one should concern themselves with ’notches’ in their belt but instead is a fundamental method used by our society to determine the truth. Evidence which is favorable to the State is presented but evidence that is harmful to the State must not be hidden. It is insulting to the jury who must weigh the evidence but more importantly it is the very fundamental responsibility of those presenting the evidence to do so openly and honestly.
“Not all new evidence requires a new trial but here it is the Court’s opinion that the issue of gonorrhea was extremely important. The jury knew that the victim was not sexually active and the clear impression was that she contracted the virus and it came from the defendant since there was no other scientific evidence there can be no question that this alleged evidence would weigh heavily on the jury.
“The motion based on full review of the record is granted. The matter is set on the trial assignment docket for July 8, 1988, at 1:30 p.m. in Division One.” (Emphasis supplied.)
Judge Regan’s comments on the seriousness of the situation are appropriate. The majority of this court concludes that Judge Regan’s finding that there was not evidence that Ms. Carpenter had personal knowledge of the hospital’s response to the inquiry must be afforded credence and weight. There is nothing before us to indicate that additional information is available now that would not have been available for presentation before Judge Regan. This is the crucial area in this case. For Ms. Carpenter to proceed under the circumstances herein without learning the result of the hospital inquiry is, as stipulated, negligence. For her to proceed with actual knowledge of the hospital’s response would elevate the disciplinary rules violation into an area beyond negligence and into intentional wrongdoing. Under the circumstances herein, we take the case under the facts before us and accept the panel’s findings that Ms. Carpenter violated DR 1-102(A)(5) and (6) and that the discipline imposed should be that of public censure.
It is Therefore Ordered that Sue Carpenter be, and she is hereby, disciplined by public censure in accordance with Supreme Court Rule 203(a)(3) for her violation herein.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent. | [
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Per Curiam:
This is an original proceeding in attorney discipline filed by the disciplinary administrator against Edward Stephens of Leavenworth, an attorney admitted to the practice of law in Kansas. The facts are undisputed. They were determined by a hearing panel of the Kansas Board for Discipline of Attorneys.
On August 15, 1984, A.M. Miller & Associates (Miller), a collection agency from Edina, Minnesota, employed respondent to collect $2,627.45 owed by Lynn E. Looney to the Higher Education Assistance Foundation (HEAF). Looney had defaulted on a student loan that HEAF, as insurer, had paid to the lender. Respondent was to receive a one-third contingent fee on the amount collected.
When respondent contacted Looney, he admitted the debt and agreed to an entry of judgment against him in the amount of $2,627.45 with interest at the rate of 15% from the date of the judgment. Respondent obtained the judgment accordingly.
Looney agreed to make monthly payments of $50 to respondent to apply on the judgment. From July 1, 1985, to April 18, 1988, Looney paid respondent a total of $1,550.00. This sum was placed in respondent’s trust account. Only one check in the amount of $33.33 was sent to Miller. It was dated August 8, 1985. Respondent maintained no other contact with either Miller or HEAF. They were unaware Looney had made any payments after the July 1, 1985, payment. Thus, Miller closed its file and returned the account to HEAF on January 31, 1986, showing a balance owed of $2,577.45.
On May 5, 1988, Looney received notice from the Internal Revenue Service (IRS) that $2,632.70 of his income tax refund had been set off and applied to his debt to HEAF. Looney then learned from HEAF that none of his payments, after the first one to respondent, had been remitted to HEAF. Respondent advised Looney he was waiting to receive the entire amount of the judgment before remitting any funds to Miller or HEAF.
Looney requested a refund from respondent of the entire amount paid to him since the IRS setoff had satisfied the debt to HEAF. Looney also requested respondent to make the record show the judgment had been satisfied. Respondent failed to refund the money and to timely file the satisfaction of judgment, resulting in Looney filing a disciplinary complaint.
Respondent forwarded a $1,000 cashier’s check to HEAF after he was notified of the complaint. He retained $500 as his fee. It was later learned that respondent purchased the cashier’s check with his own funds, as his trust account had insufficient funds. Respondent admitted he had used trust account money to pay his personal obligations.
The majority of the disciplinary panel found there was clear and convincing evidence that respondent violated DR 1-102(A)(3) (1990 Kan. Ct. R. Annot. 165) and 9-102(B)(l), (3), and (4) (1990 Kan. Ct. R. Annot. 205) and MRPC 8.4(c) (1990 Kan. Ct. R. Annot. 290) and 1.15(d)(2)(i), (iii), and (iv) (1990 Kan. Ct. R. Annot. 248) by failing to deposit all of Looney’s payments in his trust account, by using the trust account for his personal expenses, and by failing to report Looney’s payments to his client.
It also found respondent violated DR 7-101(A)(2) (1990 Kan. Ct. R. Annot. 193) by failing to properly carry out an employment contract entered into with a client by not keeping the client apprised of the status of the case.
The panel recommended that the respondent be disciplined by public censure and that he make restitution to Looney in whatever amount necessary to make him whole, including additional interest paid due to the delayed payment by respondent. The panel also recommended that respondent receive no fee.
After a careful review of the record and the oral argument, we adopt the foregoing panel findings and conclusions. However, we hold the punishment should be suspension from the practice of law for a period of one year, the imposition of which should be suspended by a grant of two years’ probation conditioned upon respondent making restitution and maintaining an accurate trust account for all of his client funds, and that he make a semiannual report on June 1 and December 1 to the disciplinary administrator showing the status of his trust account during the period of probation.
It Is Therefore Ordered that Edward Stephens be and he is hereby suspended from the practice of law for a period of one year from this date for his previously enumerated violations of the rules of professional conduct.
It Is Further Ordered that imposition of the foregoing punishment is hereby suspended and the respondent be granted probation therefrom for a period of two years conditioned upon his making restitution to Looney, which includes his retained attorney fees, as above set out; that respondent keep and maintain proper and accurate trust accounts of all client funds; and that respondent render a semiannual report to the disciplinary administrator on June 1 and December 1 during the period of probation showing the status of his trust account.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The Kansas Board of Healing Arts (Board) revoked appellant John L. Vakas’ license to practice medicine and surgery. He applied for reinstatement. When reinstatement was . denied, appellant asked for reconsideration, which was also denied. Appellant then filed a petition for judicial review; the district court upheld the Board’s action, and this appeal followed.
Appellant was originally granted a license to practice medicine by the Board on January 15, 1966. On October 11, 1985, the Board issued an order of emergency limitation of license, prohibiting appellant from selling, dispensing, administering, and prescribing controlled substances designated or controlled by the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq. A presiding officer, designated pursuant to the Administrative Procedure Act, K.S.A. 77-501 et seq., issued an initial order on January 4, 1988, which recommended that the appellant be suspended from the practice of medicine for a period of five years beginning October 11, 1985, and that, following suspension, he not be allowed to prescribe controlled substances.
On February 6, 1988, the Board conducted a hearing to reconsider the initial order. In its final order, which was filed May 6, 1988, the Board accepted many of the findings of fact and conclusions of law from the initial order. Due to the seriousness of appellant’s professional incompetence and unprofessional conduct, however, his license to practice medicine and surgery was revoked. Revocation rather than suspension of appellant’s license enabled him to apply for reinstatement after one year. K.S.A. 1990 Supp. 65-2844. On August 25, 1989, appellant filed an application for reinstatement of his license. A hearing was held on October 14, 1989, where the Board determined that appellant’s license to practice medicine should not be reinstated. A final order setting forth the findings of fact and conclusions of law which formed the basis for the Board’s action was served on appellant on November 20, 1989. Appellant’s petition for reconsideration was denied.
On January 16, 1990, appellant filed a petition for judicial review pursuant to K.S.A. 77-621(c), asserting the following three grounds: (1) The Board denied appellant’s motion in order to punish him and did not evaluate his application impartially; (2) the Board’s findings of fact were not supported by substantial evidence when viewed in light of the record as a whole; and (3) the Board’s action was unreasonable, arbitrary, and capricious because it did not give due weight to appellant’s attempts at rehabilitation. Appellant challenged the constitutionality of the statute for the first time in his trial brief submitted on April 10, 1990. In a memorandum decision filed June 1, 1990, the court denied the petition for judicial review and entered judgment on behalf of the Board and against appellant.
The appellant first argues that the legislature violated Article 2, § 1 of the Kansas Constitution in delegating power to determine whether a medical license should be reinstated without setting forth the appropriate guidance. Article 2, § 1 of the Kansas Constitution provides: “The legislative power of this state shall be vested in a house of representatives and senate.” The question we must decide is whether this provision of the constitution is violated by K.S.A. 1990 Supp. 65-2844, which provides:
“Reinstatement of license; application; rules and regulations. At any time after the expiration of one year, application may be made for reinstatement of any licensee whose license shall have been revoked, and such application shall be addressed to the board. The board may adopt such rules and regulations concerning notice and hearing of such application as considered necessary.”
The Healing Arts Act, which is found at K.S.A. 65-2801 et seq., provides a comprehensive scheme to regulate those involved in the practice of the healing arts. The purpose of the Act is stated as follows:
“Recognizing that the practice of the healing arts is a privilege granted by legislative authority and is not a natural right of individuals, it is deemed necessary as a matter of policy in the interests of public health, safety and welfare, to provide laws and provisions covering the granting of that privilege and its subsequent use, control and regulation to the end that the public shall be properly protected against unprofessional, improper, unauthorized and unqualified practice of the healing arts and from unprofessional conduct by persons licensed to practice under this act.” K.S.A. 65-2801.
The Board administers the provisions of the Healing Arts Act. K.S.A. 1990 Supp. 65-2812. Qualifications of the 15-member Board are specified by statute to include five doctors of medicine, three doctors of osteopathy, three doctors of chiropractic, one podiatrist, and three representatives of the general public. K.S.A. 1990 Supp. 65-2813.
The Healing Arts Act sets out the application and examination procedures for those who wish to be licensed in the healing arts. K.S.A. 65-2824 to -2833. The Act also lists 30 grounds that may be the basis for which a licensee’s license may be revoked, suspended, or limited, or for which a licensee may be publicly or privately censured. K.S.A. 1990 Supp. 65-2836. Here, appellant’s license was revoked on grounds that he “has committed an act of unprofessional or dishonorable conduct or professional incompetency.” K.S.A. 1990 Supp. 65-2836(b). The term “professional incompetency” is defined as follows:
“(1) One or more instances involving failure to adhere to the applicable standard of care to a degree which constitutes gross negligence, as determined by the board.
“(2) Repeated instances involving failure to adhere to the applicable standard of care to a degree which constitutes ordinary negligence, as determined by the board.
“(3) A pattern of practice or other behavior which demonstrates a manifest incapacity or incompetence to practice medicine.” K.S.A. 1990 Supp. 65-2837(a).
The definition of “unprofessional conduct” lists 28 different acts, but the 2 relevant to this case are found at K.S.A. 1990 Supp. 65-2837(b):
“(11) Prescribing, ordering, dispensing, administering, selling, supplying or giving any amphetamines or sympathomimetic amines, except as authorized by K.S.A. 65-2837a and amendments thereto.
“(23) Prescribing, dispensing, administering, distributing a prescription drug or substance, including a controlled substance, in an excessive, improper or inappropriate manner or quantity or not in the course of the licensee’s professional practice.”
The grounds for the revocation of appellant’s license are set forth in the final order, filed May 6, 1988, and can be summarized as follows: administering or prescribing controlled substances in antagonistic, irrational, or illogical combinations; failing to adequately document medical records to support administering or prescribing controlled substances; failing to monitor or provide follow-up care to patients; providing controlled substances inappropriately for diagnosed conditions, particularly the use of Preludin in treatment of obesity, narcolepsy, and depression; and providing prescription drugs on intermittent or short-term basis for conditions requiring long-term care. Rather than suspend appellant for five years as recommended by the presiding officer, the Board, in its final order revoked appellant’s license to practice medicine and surgery “[d]ue to the serious nature of the professional incompetence and unprofessional conduct.”
Appellant does not question this revocation or the procedure surrounding it. Instead, appellant challenges the refusal to grant reinstatement of his license. Appellant argues that K.S.A. 1990 Supp. 65-2844 does not provide the Board with guidelines to govern the Board’s discretion in determining whether to reinstate a license to practice medicine. According to appellant, the Board’s “unfettered discretion as to whether a license should be reinstated” violates Article 2, § 1 of the Kansas Constitution because the legislature failed to provide the Board with reasonable and definite standards regarding reinstatement.
Our review of this case is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The scope of review is set out at K.S.A. 77-621, which provides, in pertinent part:
"(a) Except to the extent that this act or another statute provides otherwise:
“(1) The burden of proving the invalidity of agency action is on the party asserting invalidity; and
“(2) the validity of agency action shall be determined in accordance with the standards of judicial review provided in this section, as applied to the agency action at the time it was taken.
“(c) The court shall grant relief only if it determines any one or more of the following:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
Here, if the action of the Board is constitutionally authorized, it is presumed valid on review unless not supported by substantial competent evidence and is so wide of its mark that it is outside the realm of fair debate, or is otherwise unreasonable, arbitrary, or capricious and prejudicial to the parties. Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 475, 749 P.2d 21 (1988).
Appellant cites several cases in which this court has considered whether the legislature unlawfully delegated its legislative power to administrative agencies. In Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 618 P.2d 837 (1980), this court found a statute unconstitutional that required an applicant for a license as a pharmacist to be a graduate of a pharmacy school accredited by a private organization. The legislature can enact general provisions to regulate and can grant state agencies discretion to fill in details if the legislature establishes reasonable and definite standards to govern the exercise of this authority. 228 Kan. at 584. The legislative power that is vested in the legislature cannot be delegated to nongovernmental organizations or groups, however. 228 Kan. at 585. Appellant recognizes that, unlike the private pharmacy agency in Gumbhir, the Board here is a state agency.
Appellant relies upon Wesley Medical Center v. McCain, 226 Kan. 263, 597 P.2d 1088 (1979), where this court upheld legislation that delegated the fixing of unemployment contribution rates for- hospitals to the secretary of human resources. The secretary had only to determine which of the detailed category of employers applied and then apply a formula mandated by the legislature. According to appellant, McCain established that the legislature must set the standards, while the agency’s rule is limited to making factual determinations. The Board argues that application of a mathematical formula mandated by the legislature to determine the unemployment compensation rate is distinguishable from the balancing that must occur to determine whether a medical license should be reinstated, and, therefore, McCain is not helpful in deciding the case before the court. We agree.
The legislature is given great leeway in setting forth guidelines and standards. General rather than minute standards are permitted. What constitutes an adequate standard necessarily depends upon the nature of the power delegated in a particular case, as well as the constitutional grants or prohibitions pertaining thereto. State ex rel., v. Bennett, 222 Kan. 12, 21, 564 P.2d 1281 (1977). Standards have been defined as a definite plan or pattern that must fit with essential facts before specified action is authorized. 222 Kan. at 21. Although recognizing the difficulty in defining standards because of their variable nature, this court stated:
“[T]he test of the sufficiency of standards is whether they are sufficiently definite and certain to enable one reading them to know his rights, obligations, and limitations thereunder. Stated in another way, the power given an administrative tribunal must be ‘canalized’ so that the exercise of the delegated power must be restrained by banks in a definitely defined channel. Professor Davis in his Administrative Law Treatise, Section 2.15, suggests that, in considering a delegation of legislative powers to an administrative agency, courts should be less concerned with standards than with safeguards to provide protection against arbitrary action, unfairness, or favoritism.” 222 Kan. at 21.
Appellant argues that the rules governing reinstatement of doctors are inadequate because (1) the legislation contains no operative facts that would allow reinstatement, (2) no standards guide whether the license should be reinstated, and (3) no guidelines enable either the Board or the licensee to know their rights, obligations, or limitations. Unlike the legislation in McCain and Bennett, appellant asserts that the provision here allowing reinstatement of the license does not contain any detail or any guidance as to when such action is appropriate.
Both parties discuss Boswell, Inc. d/b/a Broad Acres v. Harkins, 230 Kan. 738, 640 P.2d 1208 (1982). At issue in Boswell was whether the statute, as well as the regulations adopted by the department of health and environment, regarding licensing of adult care homes constituted an unlawful delegation of legislative authority. This court concluded that the law and regulations had to be considered in their entirety. The statute in question fully defined an intermediate care nursing home and clearly stated the purpose of the Act. The statute set out requirements governing issuance of a license, inspections and investigations, renewability, nontransferability, and display and contents of the license. The Act specifically authorized the department of health and environment as the licensing agency to establish necessary standards, rules, and regulations for the operation and licensing of these facilities. 230 Kan. at 740-41.
In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), this court recognized that the stated purpose for enacting the Healing Arts Act is found at K.S.A. 65-2801. The court then noted:
“The objective always in statutory construction is to ascertain and give effect to legislative intent. In so doing, where police power is to be exercised, we must fairly read the entire context of legislation on the subject, rather than only an isolated section, and consider the object of that legislation and the evils or mischief sought to be prevented or remedied. The general purpose of the legislation as shown by the statute as a whole is of primary importance [citation omitted].” 200 Kan. at 452.
At the time of the decision in Foote, K.S.A. 65-2836 (Corrick) listed unprofessional conduct as one of the grounds for revocation or suspension of a license to practice the healing arts. Fifteen acts constituting unprofessional conduct were listed in K.S.A. 65-2837 (Corrick), but incompetency was not included. Dr. Foote’s license to practice medicine was revoked on the ground of ex treme incompetence in the management of his cases. In upholding the action by the board, this court stated:
“The doctrine of expressio unius has limited application (see discussion in Johnson v. General Motors Corporation, 199 Kan. 720, 722, 433 P.2d 585, 589). Considering the entire policy expressed in the act, we believe the legislature, by enumerating certain acts and classifying them as unprofessional conduct, did not thereby intend to exclude all other acts or conduct in the practice of the healing arts which by common understanding render the holder of a license unfit to practice. It would indeed be difficult, not to say impractical, in carrying out the purpose of the act, for the legislature to list each and every specific act or course of conduct which might constitute such unprofessional conduct of a disqualifying nature. Nor does any such failure leave the statute subject to attack on grounds of vagueness or indefiniteness. Our statute makes no attempt to delineate what acts are included in the terms immoral or dishonorable conduct, which are also made grounds for revocation. The determination whether by common judgment certain conduct is disqualifying is left to the sound discretion of the board.” 200 Kan. at 453-54.
This court described the purpose behind enactment of the Healing Arts Act in Kansas State Board of Healing Arts v. Seasholtz, 210 Kan. 694, 504 P.2d 576 (1972), as follows:
“[T]he healing arts act is designed to protect members of the public against the unprofessional, the improper and the unqualified practice of the healing arts. Kansas has sought to attain this objective by requiring potential practitioners to be licensed, in the first instance, and by suspending or revoking the licenses of those who are later found to be incompetent or engaging in dishonorable, shady or unprofessional conduct. The purpose both of granting and of suspending or revoking a license is to eliminate the unscrupulous or incompetent doctor from practice of the healing arts.” 210 Kan. at 697.
This court interpreted the Certification of Psychologists Act in Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P.2d 614 (1973). Citing Seasholtz, we noted that the underlying purpose of licensing acts of this character is “to afford protection to members of the public against unscrupulous, immoral or incompetent practitioners of the healing arts and allied professions.” 212 Kan. at 111.
In the recent case of U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 802 P.2d 516 (1990), this court reaffirmed the principle that legislative intent must be determined from consideration of the entire Act. U.S.D. No. 279 involved a dispute between the school board and the teachers’ association concerning negotiations for the collective bargaining agreement. The school board contended that the broad grant of power to the Secretary of Human Resources was an unlawful delegation of legislative authority under Article 2, § 1 of the Kansas Constitution. The school board argued that K.S.A. 1990 Supp. 72-5430a failed to provide adequate guidelines to the administrative body. We stated:
“[ Legislative authority may be delegated to an administrative body where guidelines are set forth in the statute which establish the manner and circumstances of the exercise of such power. [Citation omitted.] Where the legislature enacts general provisions for regulation and grants a particular state agency the discretion to fill in the details, we will not strike down the legislation as constitutionally impermissible unless such provisions fail to fix reasonable and definite standards to govern exercise of such authority. [Citation omitted.]” 247 Kan. at 533.
The Professional Negotiations Act, K.S.A. 72-5413 et seq., requires the Secretary to begin impasse resolution procedures and conduct a hearing. The Secretary is granted power to appoint a mediator and factfinder. The Secretary is required to make findings of fact and to dismiss the complaint or enter a final order granting or denying the relief sought. 247 Kan. at 534. This court concluded that these statutory provisions provide substantial guidelines and limitations on the Secretary’s authority concerning impasse procedures and prohibited practices. Under K.S.A. 1990 Supp. 72-5430a, the Secretary has the discretion to fill in the details of appropriate relief given the circumstances relating to any of the several prohibited practices. 247 Kan. at 534.
We further concluded that, in the Professional Negotiations Act, the legislature granted the Secretary the authority to exercise a quasi-judicial function rather than a legislative function. In performing this quasi-judicial function, the Secretary investigates, initiates, and conducts hearings on impasse resolution procedures and prohibited practice complaints. Therefore, this court concluded that the delegation of authority to the Secretary did not violate Article 2, § 1 of the Kansas Constitution.
Finally, in Guardian Title Co. v. Bell, 248 Kan. 146, 805 P.2d 33 (1991), the district court held that K.S.A. 1990 Supp. 40-2404b(14)(f) and (g) violated the constitutional requirement of separation of powers found in Article 2, § 1 of the Kansas Consti tution. Subparagraph (f) sets out prohibitions against the acceptance by a title insurer or agent of title insurance business that would “constitute controlled business” for that insurer or agent. Subparagraph (g) provides that the insurance commissioner shall adopt the necessary regulations to carry out the Act. The insurance commissioner then adopted regulations which included a definition of “controlled business.”
The district court found the term “controlled business” to be an unconstitutionally vague term and that the legislature cannot delegate the task of defining an unconstitutionally vague term because to do so violates Article 2, § 1 of the Kansas Constitution. The district court permanently enjoined the insurance commissioner from enforcing subparagraph (f) and any regulation relating thereto.
In reversing the district court, we said:
“We live in an increasingly complex society. To expect the legislature to have the time and expertise to deal with minute details statutorily is not realistic.
“In the case of In re Sims, 54 Kan. 1, 11, 37 Pac. 135 (1894), this court said that in its judgment a strict application of the separation of powers doctrine is inappropriate today in a complex state government where administrative agencies exercise many types of power and where legislative, executive, and judicial powers are often blended together in the same administrative agency.
“In the 97 years that have passed since In re Sims, this court has consistently stated that an absolute separation of powers is neither practical nor possible. State, ex rel. Schneider, v. Bennett, 219 Kan. 285, 288, 547 P.2d 786 (1976); see State, ex rel., Taylor v. Railway Co., 76 Kan. 467, 474, 92 Pac. 606 (1907), aff'd 216 U.S. 262, 54 L. Ed. 472, 30 S. Ct. 330 (1910).
“What is required is that a statute express the law in general terms and delegate the power to apply it to an executive agency under standards provided by the legislature. Wesley Medical Center v. McCain, 226 Kan. 263, 270, 597 P.2d 1088 (1979). This has been the fundamental rule since early statehood. See Coleman v. Newby, 7 Kan. 82, 89 (1871).
“Where flexibility in fashioning administrative regulations to carry out statutory purpose is desirable in light of complexities in the area sought to be regulated, the legislature may enact statutes in a broad outline and authorize the administrative agency to fill in the details.” 248 Kan. at 153-54.
We noted that the standards may be implied from the statutory purpose. We found the statutory purpose to be evident since it was set out in the statute. In concluding that subparagraph (f) provided sufficient standards to guide the commissioner and thus did not violate Article 2, § 1 of the Kansas Constitution, we said: “The modern trend, which we ascribe to, is to require less detailed standards and guidance to the administrative agencies in order to facilitate the administration of laws in areas of complex social and economic problems.” 248 Kan. at 154.
In support of its decision to deny appellant reinstatement, the Board directs this court’s attention to State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981), regarding reinstatement of a disbarred attorney. We agree with the Board that the exercise of discretion by this court in determining whether to grant reinstatement to an attorney is analogous to the exercise of the Board’s discretion in determining whether appellant’s license to practice medicine and surgery should be reinstated. In Russo, this court noted “that each petition for reinstatement must be considered on its own merits and that such decisions must be made on a case by case basis depending upon the facts involved.” 230 Kan. at 12. The court set out eight factors to be considered in determining whether to grant reinstatement. The factors include: (1) the present moral fitness of the petitioner, (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession, (3) the extent of petitioner’s rehabilitation, (4) the seriousness of the original misconduct, (5) conduct subsequent to discipline, (6) the time which has elapsed since the original discipline, (7) the petitioner’s character, maturity, and experience at the time of disbarment, and (8) the petitioner’s present competence in legal skills. 230 Kan. at 9. These eight factors are just as relevant in determining if a license to practice medicine and surgery should be reinstated. In Russo, we also said:
“It is the duty of the Supreme Court to preserve the high ethical and moral standards required before a person is entitled to enjoy the privilege to practice law. When one first petitions for admission to the bar, he must meet the qualifications required of a member of the profession. When a former attorney seeks reinstatement, he must meet an even greater burden than when he was originally admitted and must overcome the prior adverse conclusions of the court as to his fitness to practice law. Matter of Keenan, 313 Mass. 186, 221, 47 N.E.2d 12 (1943); State, ex rel. Sorensen v. Goldman, 182 Neb. 126, 153 N.W.2d 451 (1967).” 230 Kan. at 9.
Here, the Board has the same duty as it relates to appellant’s privilege to practice medicine, and the appellant has the same burden as to his fitness to again practice medicine. The factors considered by the Board include knowledge that appellant’s license was revoked on May 6, 1988, just 15 months before appellant sought reinstatement. The Board also knew revocation was based on 5 instances of unprofessional conduct against separate patients, and 26 instances of unprofessional conduct against 12 patients. The Board argues that the knowledge of these incidents, appellant’s age, the length of time appellant practiced before revocation, his conduct subsequent to discipline, the extent of appellant’s rehabilitation, and his present competence and professional skills were all factors to be balanced by the Board in determining whether to reinstate appellant.
K.S.A. 1990 Supp. 65-2844, when viewed alone, does not provide notice of what conduct will allow or prevent reinstatement. But if this statute is viewed in light of its stated purpose together with the other provisions of the Healing Arts Act, the necessary requirements to receive a license to practice the healing arts become evident, particularly when K.S.A. 1990 Supp. 65-2836 and 65-2837 are considered.
When the constitutionality of a statute is attacked, this court must resolve all doubts in favor of its validity and, if possible, uphold the statute under attack if a reasonable way exists to construe it as constitutionally valid. Federal Land Bank of Wichita v. Bott, 240 Kan. 624, 628-29, 732 P.2d 710 (1987); State, ex rel., v. Fadely, 180 Kan. 652, 658-59, 308 P.2d 537 (1957).
Pursuant to K.S.A. 65-2805, the Board “may refuse to grant a license to any person, otherwise qualified, upon any of the grounds for which a license may be revoked under the provisions hereafter contained.” The provisions regarding grounds for revocation are set out and defined in K.S.A. 1990 Supp. 65-2836 and 65-2837. Appellant’s license was revoked for grounds set forth in these statutes. In determining whether to reinstate appellant, the Board must consider those factors that would prevent appellant from being licensed.
In Foote, 200 Kan. at 453, this court outlined the purpose for enacting the Healing Arts Act:
“The whole purpose and tenor of the healing arts act is the protection of the public against unprofessional, improper, unauthorized and unqualified practice of the healing arts. The goal is to secure to the people the services of competent, trustworthy practitioners. The act seeks to do this through licensure. The licensing by the state, granted only after minimal standards of proficiency are met, amounts to the state’s recognition of the licentiate as a qualified practitioner. The continued holding of the license may be taken by the public as official indication those standards are being maintained. The object of both granting and revoking a license is the same—to exclude the incompetent or unscrupulous from the practice of the healing arts.”
The objective in determining whether to reinstate a license is the same objective in deciding whether to grant a license initially—to exclude the incompetent and unscrupulous from the practice of the healing arts. When the Healing Arts Act is read in its entirety, the legislation contains sufficient guidance from the legislature to enable the Board to exercise its discretion in determining whether to reinstate an individual to the practice of medicine and surgery. The legislature did not improperly delegate its power to the Board by failing to set out adequate guidance in the specific statute relating to reinstatement.
Appellant next contends that the Board applied K.S.A. 1990 Supp. 65-2844 in an arbitrary and capricious manner that violated his due process rights under the Fourteenth Amendment to the United States Constitution. First, appellant criticizes the Board for placing the burden upon him to show why his license should be reinstated, arguing that no authority exists for such a conclusion of law. Appellant asserts that this is evidence of the Board’s continuing effort to punish him for his past actions rather than considering his efforts at rehabilitation.
In stating the scope of review, K.S.A. 77-621(a)(l) clearly provides that, unless this Act or another statute provides otherwise, the burden of proof in asserting that an agency action is invalid is upon the party asserting invalidity. Therefore, appellant has the burden of proving that the Board erred in denying his reinstatement.
Under the Act for Judicial Review and Civil Enforcement of Agency Actions, the party seeking change of an agency order has the burden of showing the district court that the agency’s order is invalid for one of the reasons set forth at K.S.A. 77-621(c). The two that are applicable to appellant’s argument are as follows:
“(c) The court shall grant relief only if it determines any one or more of the following:
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
Although appellant speaks only in terms of the Board’s acting in an arbitrary and capricious manner, this court has stated that arbitrary, oppressive, or capricious conduct is shown “ ‘where an order of an administrative tribunal is based upon findings which are not substantially supported by evidence in the record.’ ” U.S.D. No. 461 v. Dice, 228 Kan. 40, 50, 612 P.2d 1203 (1980) (quoting Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 212 Kan. 137, Syl. ¶ 3, 510 P.2d 160 [1973]). Therefore, it is appropriate for this court to consider both reasons in determining whether the appellant has met the burden of showing that the Board acted improperly in denying reinstatement.
In Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 497, 720 P.2d 1063 (1986), this court held that the Act for Judicial Review and Civil Enforcement of Agency Actions codified established principles of review, which include the rule that an agency’s findings are presumed valid on review. In examining whether substantial evidence supports the district court’s decision, K.S.A. 77-621(c)(7), the district court may not set aside an agency’s order merely because it would have reached a different conclusion if it had been the trier of fact. Instead, the evidence must show that the agency’s determination “ ‘is so wide of the mark as to be outside the realm of fair debate,’ ” which would mean the agency’s action is not supported by substantial competent evidence. Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. at 474 (quoting Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 [1975]). This court has defined “substantial evidence” as “evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another wáy, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981) (citing Jibben v. Post & Brown Well Service, 199 Kan. 793, 433 P.2d 467 [1967]).
The district court must evaluate the agency record to determine whether sufficient evidence supports the agency’s decision. The appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court, and must disregard any conflicting evidence or other inferences which might be drawn therefrom. Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 244, 736 P.2d 882 (1987). Where the trial court has made findings of fact and conclusions of law, the appellate court must 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. 241 Kan. at 243.
K.S.A. 77-621(c)(8) provides that agency action must be set aside if it “is otherwise unreasonable, arbitrary or capricious.” Unreasonable action has been defined as action taken without regard to the benefit or harm to all interested parties. Zinke & Trumbo, 242 Kan. at 474-75. In determining whether an agency acted arbitrarily or capriciously, this court is limited to determining whether a particular action should have been taken or is justified, such as the reasonableness of the agency’s exercise of discretion in reaching a determination or whether the agency’s action is without foundation in fact. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 381, 673 P.2d 1126 (1983). As previously noted, arbitrary or capricious conduct may be shown where an administrative order is not supported by substantial evidence. Dice, 228 Kan. at 50.
The Board in its final order stated that an application for a license to practice the healing arts may be denied based upon any ground for which a license may be revoked. Appellant argues that this is true only if an act has been committed after the initial revocation of his license that would justify revocation. We do not agree.
A similar issue was addressed in State v. Russo, 230 Kan. 5. Russo surrendered his certificate and privilege to practice law following his conviction in the United States District Court for the District of Kansas for conspiracy to violate Kansas laws against prostitution and bribery. Five years after voluntarily surrendering his license, during which time he served approximately 17 months at the United States Penitentiary in Leavenworth and paid a $10,000 fine, petitioner Russo sought reinstatement to practice law. Twenty-five witnesses were called at the hearing, and all testimony was favorable to petitioner. The disciplinary administrator presented no evidence in opposition to petitioner’s reinstatement.
Although admitting that all evidence was favorable to the petitioner, a majority of the members of this court concluded that the petition for reinstatement should be denied. 230 Kan. at 7. The basis for the court’s decision was the conviction that occurred prior to the attorney’s surrendering his license. The court explained its decision by emphasizing that conspiracy to bribe a police officer in order to protect and promote other illegal activities is an offense that is totally repugnant to the administration of justice and the duties of an attorney. 230 Kan. at 12. Such an offense strikes at the very heart of the criminal justice system and, if tolerated, could completely destroy our system of justice. Each petition for reinstatement must be considered on its own merits and a decision must be made on a case-by-case basis, depending upon the facts involved. Yet, in spite of the recommendation of the hearing panel and the favorable testimony on petitioner’s behalf, the gravity of the offense for which petitioner was convicted was adequate ground for denying reinstatement.
The question here is whether the Board’s decision to refuse reinstatement was based upon substantial competent evidence or was arbitrary and capricious. Appellant criticizes the Board’s final order because it did not list as findings of fact the factors that it relied upon in denying the application. As examples, appellant points out that the Board stated that appellant did not exhibit an understanding of the serious nature of his prior misconduct but did not list this as a finding of fact. Furthermore, the Board stated that appellant’s efforts at rehabilitation were done to satisfy the Board and not to improve his professional skills. The Board also characterized appellant’s proposal that he would not treat patients for obesity and depression as avoidance of his past problems rather than an attempt at rehabilitation. None of these decisions is stated as a finding of fact.
In its final order denying reinstatement, the Board included a section entitled “Matters Officially Noticed,” which discusses the grounds for the prior revocation. It points out that appellant had committed 5 instances of unprofessional conduct against 5 patients under his care and 26 instances of professional incompetence against 12 patients under his care, all in violation of the Healing Arts Act. The acts of unprofessional conduct involved appellant’s failure to adequately document his patients’ needs for Schedule II controlled substances. The five acts of professional incompetence are contained in the final order revoking appellant’s license; appellant was given an opportunity to rebut or contest this material but did not. The Board listed six findings of fact, as follows:
“1. Petitioner filed an application for licensure with the Board of Healing Arts on August 11, 1989. The application is for a license to practice medicine and surgery.
“2. Petitioner truthfully answered questions on the license application regarding previous disciplinary matters before the Board.
“3. Petitioner’s license to practice medicine and surgery was revoked by the Board on May 6, 1988.
“4. Petitioner’s acts of unprofessional conduct were stated as grounds for revoking Petitioner’s license.
“5. Petitioner’s acts of professional incompetency were stated as grounds for revoking Petitioner’s license.
“6. Since May 6, 1988, Petitioner has read medical journals, reviewed medical files, and taken an unspecified number of correspondence courses.”
The Board listed seven conclusions of law, summarizing the contents of the Healing Arts Act. The Board then stated:
“NOW IT IS THEREFORE ORDERED that petitioner’s application for reinstatement be denied. The Petitioner has not exhibited an understanding that the prior acts for which his license was revoked are serious in nature and inconsistent with the Kansas healing arts act. Without this understanding about his misconduct, it appears that statements made by Petitioner indicating rehabilitation are made to satisfy the Board, and are not aimed at improving his professional skills. Petitioner’s willingness to adhere to the California Medical Society guidelines for use of controlled substances and his desire not to treat depression and obesity, which are practice areas involved in the revocation proceedings, indicates avoidance of the past problems rather than attempts at rehabilitation.”
These reasons rest primarily upon the same grounds as used for appellant’s initial revocation.
The Board’s brief enumerates many reasons to support the decision to not reinstate appellant’s license. The application for reinstatement was filed less than 15 months following the effective date of the final order revoking appellant’s license. Appellant has received notice from the State of California that an effort will be made to revoke his license in that state, although apparently the ground for this revocation is the loss of his license in Kansas. The Board points out that appellant was the subject of a previous action to suspend, which was terminated when the district court found the hearing conducted by the Board violated appellant’s due process rights.
Appellant included as part of the application for reinstatement a copy of the denial of an application for professional liability insurance, which apparently will not be issued as long as appellant’s license is revoked. Appellant also indicated that he has concluded 50 hours of continuing medical education, but the Board criticized him for not providing documentation that this has been completed since the date of the revocation and for not attending on-site programs. Appellant testified that his participation in such programs was limited because his license has been revoked. The Board also criticized appellant’s response to questioning about prescribing controlled substances and his reliance upon guidelines developed by the California Medical Association. Finally, the Board asserts that the record is devoid of any evidence of appellant’s rehabilitation that would rectify the unprofessional conduct and professional incompetence that were the grounds for the revocation of his license.
The summary of the evidence by the Board in its brief is one-sided. Yet, in considering whether substantial evidence supports the decision of the trial court, this court must accept the evidence as true and all such inferences to be drawn therefrom that support the findings of the court. Conflicting evidence must be disregarded. When the evidence is reviewed in the light most favorable to supporting the findings of the trial court, the record contains sufficient evidence to support the decision of the court upholding the actions of the Board. Furthermore, the trial court is correct in finding that the Board’s decision was not arbitrary and capricious. There is no Kansas statute that precludes consideration of the grounds for the initial revocation in denying reinstatement. On the contrary, appellant, upon seeking reinstatement, has an even greater burden than when he was initially granted a license because he must overcome the prior finding by the Board as to his fitness to practice medicine. The conduct which results in the revocation of a license to practice medicine may be so serious in and of itself as to preclude reinstatement. Although the Board does not have specific guidelines promulgated by the legislature to guide its decision specifically in considering reinstatement, the statute anticipates that, in determining whether a license will be reinstated, the Board will consider the grounds for revoking a license as well as the stated purpose of the Act. Here, the Board considered all the evidence and concluded that reinstatement was not appropriate at this time. We find that the Board did not act arbitrarily or capriciously in refusing to reinstate appellant’s license.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal from the trial court’s ruling that K.S.A. 1989 Supp. 21-4603(3)(a), which provides that a district court shall modify a defendant’s sentence when recommended by the State Reception and Diagnostic Center (SRDC) (now the Topeka Correctional Facility-east) unless specific findings are made by the trial court, is unconstitutional on separation of powers grounds.
The facts are not in dispute and have no real significance to the question before us. The defendant, Keith Reed, previously was charged as a juvenile, on two separate occasions, with rape. His defense was consent. Defendant was adjudicated a juvenile offender for the crime of aggravated sexual battery on the first offense and for the crime of indecent liberties with a child on the second offense. He served five months at the Youth Center at Topeka (YCAT).
The night defendant (thén 18 years of age) was released from YCAT, he committed criminal offenses which led to his being bound over for trial as an adult on three counts of rape. Pursuant to a plea bargain, he pled guilty to one count of aggravated sexual battery (K.S.A. 21-3518[l][b]), with the understanding that the State would recommend that he receive a sentence of three to ten years with the right to request a sentence modification upon receipt of a report and recommendation from the SRDC.
Reed was examined by the SRDC, and it recommended: “The recommendation for this inmate is to continue incarcerated [sic]. A second recommendation is issued in regard to a sentence length modification that will allow the inmate to return to society at an earlier date.”
The defendant was adjudged guilty of aggravated sexual battery, a class D felony. The penalty statute, K.S.A. 21-4501, provides for a chapter 35 crime a minimum penalty of not less than 2 years nor more than 3 years and a maximum sentence of not less than 5 years nor more than 10 years. Thus, the trial court had the option of reducing Reed’s minimum sentence from 3 years to as low as 2 years and the maximum from 10 years to as low as 5 years.
The history of the statute in question is confusing and will be set forth later in this opinion. In order to avoid confusion, we point out that the statute the trial court cited as being unconstitutional was erroneously cited. The statute cited, K.S.A. 1989 Supp. 21-4603(4), refers to the secretary of corrections making a recommendation for sentence modification. The statute the trial court discussed and intended to declare unconstitutional is L. 1989, ch. 92, § 2, subparagraph (3)(a), codified as K.S.A. 1989 Supp. 21-4603(3)(a), which reads, in pertinent part:
“[T]he court . . . shall modify such sentence if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.” (Emphasis supplied.)
The trial court, apparently on its own volition and without benefit of briefs or argument and without citing any authority, held the statute unconstitutional, reasoning as follows:
“The Court is of the view that Chapter 92 of the 1989 Session Laws and, more particularly, Section (2), subparagraph (4) [sic], is an unconstitutional violation of the separation of powers. Modification of sentence is a judicial function. This places the power to modify in an executive branch official, and, more particularly, a psychiatrist working for the Secretary of Corrections. The standard is an impossible standard in most cases because the Court has to find not only that the safety of the public will be jeopardized, but also that the welfare of the inmate will [not] be served by modification. This gives carte blanche authority for modification to a psychiatrist working for the Secretary of Corrections.
“Furthermore, the Court as a second ground finds that this statute is an unlawful delegation of legislative power over sentences in criminal cases with inadequate standards contained in the statute for the Secretary of Corrections or a psychiatrist working under him to determine when a sentence should be modified. The legislature has a right to set the sentence, but there is no constitutional basis to give a power to modify to a doctor working for the Secretary of Corrections on any basis whatsoever. The statute contains no standards whatsoever. It simply provides the power to modify and requires that the Court follow the recommendation unless it meets extremely difficult and unreasonable standards on the part of the Court with no standards whatsoever on the executive branch official. As far as this statute is concerned, the Secretary of Corrections could modify for any reason whatsoever and the Court would have to accept it unless these unreasonable standards were able to be met by evidence in the case and a finding by the Court.”
This offense occurred on September 20, 1989. Thus, the law that was in effect on that date, K.S.A. 1989 Supp. 21-4603, applies. Historically, K.S.A. 1987 Supp. 21-4603 (the “1987 statute”) was effective between July 1, 1986, and July 1, 1988. Subsection (3) of that statute stated that the district court “may” modify a sentence within 120 days of the date the sentence is pronounced.
The 1988 legislature passed two bills which modified the 1987 statute. On April 14, 1988, the legislature approved L. 1988, ch. 116, § 1, which changed only subsection (3) of the 1987 statute but retained the “may” language of the subsection. On May 10, 1988, the legislature adopted L. 1988, ch. 115, § 8, which made numerous changes to the statute but left subsection (3) as it had been previously and did not reflect the changes made in L. 1988, ch. 116, § 1.
The result of these two independent bills was reflected in the 1988 statute books as two different, but largely identical, statutes. L. 1988, ch. 115, § 8, was reported as K.S.A. 21-4603 (the “1988 statute”) and L. 1988, ch. 116, § 1, was reported as K.S.A. 21-4603a (the “1988a statute”).
The 1988a statute was repealed by the 1989 legislature. L. 1989, ch. 95, § 12. Nevertheless, for a time, we had two versions of the authorized dispositions statute because the legislature passed two independent bills modifying the 1988 statute. On April 18, 1989, the legislature passed L. 1989, ch. 95, § 5, which modified the 1988 statute in a number of ways but left the “may” language in subsection (3). On April 25, 1989, the legislature passed L. 1989, ch. 92, § 2, which modified the 1988 statute in a number of other ways and did not incorporate the changes made in chapter 95. Most significantly, for present purposes, the legislature changed subsection (3) such that “may” was changed to “shall”; thus, the district court “shall” modify a sentence as recommended by the SRDC unless the court makes certain specified findings.
The result was two authorized dispositions statutes: K.S.A. 1989 Supp. 21-4603 (the “1989 statute”) and K.S.A. 1989 Supp. 21-4603c (the “1989c statute”). The former contains “shall” in subsection (3) and the latter retained “may.”
The history of the 1989 statute and the 1989c statute indicates they both originated from modifications of the same statute, the 1988 statute, which in turn originated from the 1987 statute. The changes represented in the 1988a statute were not replicated, as it was repealed; both the 1989 statute and the 1989c statute derive from the 1988 statute rather than the 1988a statute. It appears the legislature twice intended to modify the 1987 statute in the 1988 session, and twice intended to modify the 1988 statute in the 1989 session, but never intended to create two inconsistent authorized dispositions statutes.
The legislature subsequently repealed K.S.A. 21-4603a and has amended K.S.A. 1989 Supp. 21-4603(3)(a) so that it now reads, in pertinent part:
“[T]he 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 safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification." (Emphasis supplied.) K.S.A. 1990 Supp. 21-4603(4)(a).
Obviously, changing “and” to “or” is a significant change. K.S.A. 1989 Supp. 21-4603(3)(a), the statute in effect when this crime occurred, required a finding by the trial court that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.
It is the “and” version of the statute that is before us. See State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991). If the requirement that the court make both findings (“and”) is constitutional, then the requirement that the court find either (“or”) would likewise be constitutional.
Like the Constitution of the United States, the Kansas Constitution contains no express provision establishing the doctrine of separation of powers. However, it has been recognized that the very structure of the three-branch system gives rise to the doctrine. State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 59, 687 P.2d 622 (1984); State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980); State ex rel. v. Bennett, 219 Kan. 285, 287, 547 P.2d 786 (1976).
In State v. Greenlee, we discussed the doctrine, and established general principles governing the doctrine’s application, as follows:
“The basic meaning of the separation of powers doctrine is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Dreyer v. Illinois, 187 U.S. 71, 47 L. Ed. 79, 23 S. Ct. 28 (1902); Van Sickle v. Shanahan, 212 Kan. 426 [, 511 P.2d 223 (1973)]. It does not necessarily follow, however, that an entire and complete separation is either desirable or was ever intended by the framers of the Constitution. The fact that the powers of one department may overlap with another department’s powers has long been a recognized fact. Throughout the judicial history of this state early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers. [Citation omitted.] The more recent cases have modified the doctrine, taking a more pragmatic, flexible and practical approach giving recognition to the fact there may be a certain degree of blending or admixture of the three powers of government and that absolute separation of powers is impossible. Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975). See also Nixon v. Administrator of General Services, 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977).
"There have been a number of cases in Kansas dealing with the separation of powers and in them the following general principles are established:
“(1) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Leek v. Theis, 217 Kan. 784.
“(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. Leek v. Theis, 217 Kan. at 785; State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957).
“(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department. State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
“(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature and (d) the practical result of the blending of powers as shown by actual experience over a period of time. State, ex rel., v. Bennett, 219 Kan. 285.” 228 Kan. at 715-16.
Greenlee teaches us that an absolute separation of powers is impossible, and a flexible, pragmatic, and practical approach to the doctrine is the proper approach, with a usurpation of powers existing only when there is “a significant interference” by one department with another department’s operations. State v. Greenlee, 228 Kan. at 715-16.
Clearly, the sentencing function in a criminal case is considered a judicial function. State v. Owens & Carlisle, 210 Kan. 628, 635-36, 504 P.2d 249 (1972). Equally clear is the legislature’s exclusive role in providing, through our statutes, for the punishment of convicted criminals. The power of the legislature to specify the punishment for a crime is controlled only by the Constitutions of the United States and the State of Kansas. State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).
We have previously rejected separation of powers challenges to mandatory sentencing provisions which limit the sentencing discretion of a district court. See State v. Freeman, 223 Kan. 362, 370-71, 574 P.2d 950 (1978) (K.S.A. 1977 Supp. 21-4618 mandatory sentencing provisions for those convicted of certain crimes involving use of a firearm upheld); City of Junction City v. Griffin, 227 Kan. 332, 338-39, 607 P.2d 459 (1980) (ordinance requiring mandatory jail sentence for prostitution offense upheld). See also State v. Coutcher, 198 Kan. 282, 286-87, 424 P.2d 865 (1967) (prosecutorial discretion in seeking sentence enhancement against habitual offenders no violation of separation of powers); State v. Gibson, 8 Kan. App. 2d 135, 137-38, 651 P.2d 949 (1982) (mandatory fine provision of K.S.A. 1980 Supp. 8-1909 [overweight truck] no violation of separation of powers).
To determine whether K.S.A. 1989 Supp. 21-4603(3)(a) constitutes a violation of the separation of powers, we must consider the factors set forth in State, ex rel., v. Bennett, 219 Kan. at 289-90 and restated in Greenlee.
First, we look to the nature of the power being exercised. We do not believe that the enactment of K.S.A. 1989 Supp. 21-4603(3)(a) unnecessarily or unconstitutionally restricts the discretionary powers of a district court. Under the statute, the court has the discretion to reject an SRDC recommendation for modification of sentence when both (1) the safety of the public will be jeopardized, and (2) the welfare of the inmate will not be served by the modification. SRDC merely recommends. The final determination rests, as it should, with the district court, which considers not only the SRDC recommendation, but other sentencing provisions as well. See K.S.A. 21-4601 et seq. Significantly, K.S.A. 21-4601 provides that nondangerous offenders “shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.” (Emphasis supplied.)
K.S.A. 21-4601 contains nearly identical language to the findings required by K.S.A. 1989 Supp. 21-4603(3)(a). Similar language is found in K.S.A. 1989 Supp. 21-4603(4), which mandates the modification of sentence when recommended by the secretary of corrections. The language of K.S.A. 1989 Supp. 21-4603(3)(a) reenforces the basic policy of 21-4601 with respect to nonviolent offenders, that is, a disposition short of incarceration wherever practicable, without jeopardizing the public safety and the offender’s welfare. Such a policy underscores the emphasis in 21-4601 of individual treatment “in accordance with their individual characteristics, circumstances, needs, and potentialities” rather than application of a blanket template. The SRDC report furthers that policy.
In considering whether the welfare of the inmate will be served as required by K.S.A. 1989 Supp. 21-4603(3)(a), the trial court can consider that the aim of sentencing is to accomplish behavior modification of the inmate. It is in the best interests of the inmate’s welfare that the antisocial refusal to obey the criminal laws of this State be modified. Behavior modification can be accomplished by incarceration. That fact was recognized by the mental health professionals in this case when they recommended that Reed be incarcerated. That recommendation is followed by a somewhat vague recommendation that gives no indication as to whether the sentence should be modified so that the inmate would be parole eligible one day or one year earlier than the present minimum sentence.
The United States of America has the highest percent of its population in prison of any country in the world. Kansas has long recognized the need to involve mental health professionals in the behavior modification process. If we ever hope to reverse the trend of incarcerating more and more people, the courts must rely on the expertise of others in determining how to best accomplish behavior modification.
Here, the legislature has clear authority to set the range of sentence; thus, it could lower the minimum sentence. It could also authorize the executive branch to grant paroles (and it has granted the executive branch wide discretion to grant paroles in many areas, depending on the crime or crimes involved). Studies show the trial judges were not following SRDC’s recommendations to modify (reduce) sentences in over 50 percent of the cases. O’Neal, Criminal Law, Procedures and Sentencing, 58 J.K.B.A. 27, 28 (July/August 1989). The legislature, under pressure from the United States District Court for the District of Kansas to reduce overcrowding, is attempting to encourage the trial courts to follow SRDC’s recommendations by modifying more sentences or to articulate reasons in the two designated areas as to why théy are not following the recommendations. The nature of the power being exercised is advisory in nature because of the great amount of discretion given to the trial courts to reject the recommendations by making specific findings.
Second, we must seek to determine the degree of control by the executive over the judicial branch. Admittedly, the SRDC report will receive closer scrutiny and attention than formerly may have been the case. The SRDC reports, however, are not developed lightly. Rather, the reports are normally developed on sound, professional bases. In this case, the report included (1) interviews with the defendant; (2) a background questionnaire completed by defendant’s mother; (3) the district attorney’s report to the secretary of corrections; (4) an affidavit of the Shawnee County District Court; (5) a Home Base Termination Study; (6) high school transcripts; (7) a battery of psychological examinations; (8) a psychiatric examination; and (9) the results of consultation among a team of diagnostic professionals.
The controls placed upon the district court do not represent “an unlawful delegation of legislative power over sentences in criminal cases” as the trial court found. Rather, the statute channels the discretionary authority of the court in the same fashion as the mandatory presumptive sentencing provisions of K.S.A. 1989 Supp. 21-4606a. Still, the sentencing decision rests with the trial court, with the statute in question providing limitations on a motion to modify sentence.
The third and fourth factors require us to look at the objective sought to be obtained and the pretrial result. The objective sought by the legislature, clearly, was to provide immediate relief to the overcrowded conditions of Kansas prisons. A consideration of this factor, the foundation policy for sentencing decisions set forth in K.S.A. 21-4601, and all the facts before this court leads to the conclusion that K.S.A. 1989 Supp. 21-4603(3)(a) is a valid legislative determination, does not interpose a significant interference by the executive branch upon the judicial branch, does not impose unreasonable standards on the courts, and does not constitute an unconstitutional usurpation of powers.
The trial court also found the statute to be an unlawful delegation of legislative power over sentences in criminal cases with inadequate standards contained in the statute for the executive branch to determine when a sentence should be modified, thus giving unfettered right to a mental health professional to modify sentences. For the reasons set forth above, the SRDC recommendation does not give unfettered discretion and authority to the executive branch. The ultimate authority remains in the judicial branch of government.
The purpose of the State Reception and Diagnostic Center at the time in question was to “provide a thorough and scientific examination and study” of male felony offenders to aid the secretary of corrections in determining whether to parole the inmate or where to place the inmate in the correctional system. K.S.A. 75-5262. Thus, general guidelines are furnished to the executive branch. The standards are sufficient under the circumstances and do not violate the separation of powers doctrine. See, e.g., Guardian Title Co. v. Bell, 248 Kan. 146, 805 P.2d 33 (1991).
The trial court, because it found the statute unconstitutional, did not consider the mandate of K.S.A. 1989 Supp. 21-4603(3)(a). Because we have found the statute constitutional, the trial court is directed to reconsider the motion for modification of sentence and should either reduce the sentence or make the necessary findings pursuant to K.S.A. 1989 Supp. 21-4603(3)(a).
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The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment action wherein Continental Western Insurance Company (Continental) seeks to rescind, ab initio, a temporary automobile liability insurance binder issued to Mark Clay. The district court held that: (1) Clay made fraudulent misrepresentations in his application for coverage; (2) Continental had the right of rescission ab initio as to Clay’s claim; and (3) Continental’s right of rescission does not extend to claims made by Michael D. Johnson, a passenger in the Clay vehicle who was injured in the accident giving rise to this litigation. Continental appeals from the district court’s judgment denying rescission as to Johnson’s claim.
The facts are not in dispute. On September 1, 1988, Clay applied to Kent O. Carpenter, a Continental agent, for a binder and policy of automobile liability insurance on his 1972 AMC Gremlin. The insurance application form was completed by Carpenter in response to questions asked of Clay. Clay asserted he: (1) had a valid Kansas driver’s license; (2) had been involved in no accidents within the last three years; and (3) had not received any tickets in the same period of time. Clay signed the application under a printed statement which provided:
“I have read the above application and I declare that to the best of my knowledge and belief all of the foregoing statements are true, and that all of these statements are offered as an inducement to the Company to issue the policy for which I am applying.”
In fact, (1) Clay’s driver’s license had been suspended since June 21, 1987; (2) Clay had been in an accident on December 15, 1986; and (3) Clay had been ticketed for two moving violations within the three-yeár period.
Carpenter could have declined to issue the binder and just forwarded the application to Continental. However, based upon the information supplied by Clay, he saw no reason to delay and issued the binder. Had Clay answered the questions previously mentioned truthfully, no binder would have been issued. In fact, Clay would not have been accepted for insurance under Continental’s guidelines.
Clay was driving the Gremlin on September 3, 1988, when he was involved in an accident in Wilson County. Michael D. Johnson was a passenger in the vehicle at the time and was injured. Johnson has uninsured motorist coverage with Mid-Century Insurance Company.
On September 7, 1988, Continental ordered a copy of Clay’s driving record. The true information on Clay’s driving record was received on September 9 or the next workday. On September 15, 1988, Continental mailed a notice of cancellation to Clay (and Carpenter), effective October 18, 1988. Continental then filed this action to rescind the binder. Mid-Century was permitted to intervene in the action because of its uninsured motorist coverage on Johnson. At the time of the judgment herein, Johnson had incurred medical expenses of $5,733.24 and had received $4,500 in personal injury protection benefits from Mid-Century.
There is really no issue before us as to the propriety of the district court’s determinations (1) that Clay’s misrepresentation was material and fraudulent, and (2) that Continental’s common-law right of rescission as to Clay had not been abrogated by enactment of our “no-fault” insurance law. However, it is impossible to discuss the issue of whether the rescission applies to Johnson, an innocent third party, without some discussion of these matters.
Although not particularly helpful herein, American States Ins. Co. v. Ehrlich, 237 Kan. 449, 701 P.2d 676 (1985), deserves some mention as it appears to be the only case we have which touches upon the issue before us. In Ehrlich, the coinsureds misrepresented their marital status in the application for automobile insurance. One of the insureds was a passenger in a vehicle operated by the other insured at the time of the accident and died as a result thereof. The heirs of the deceased brought an action against the insured driver. Coverage was litigated in a declaratory judgment action. In our opinion, we stated:
“Based upon this evidence the trial court held that the policy of insurance issued by American States was in force at the time the accident occurred. The court found that Lavem E. Ehrlich and Esther McCorkle were not husband and wife at the time the application for insurance was completed, nor at the time of the accident. The court held that the insurance policy should not be cancelled or rescinded as a result of any fraudulent misrepresentation made by either Lavern or Esther at the time the application for insurance was submitted. The court further held that, because Kansas law now has compulsory automobile liability insurance for licensees, the policy in this case provided coverage and could not be rescinded ab initio.
“On this appeal, American States essentially presents two basic issues for determination: (1) Were the findings of the trial court supported by the evidence that American States had failed to show justification for cancellation of the insurance contract on the basis of a fraudulent misrepresentation; and (2) may an insurer rescind ab initio an automobile liability insurance policy under a compulsory insurance law for fraudulent misrepresentation? We have concluded that this case may be determined on the basis of the first issue and that it is not necessary in this case to decide the second issue presented.” 237 Kan. at 451.
We then concluded that the false statements as to marital status were not material misrepresentations and, accordingly, could not serve as a legal basis for cancellation or rescission.
Dunn v. Safeco Ins. Co., 14 Kan. App. 2d 732, 798 P.2d 955 (1990), provides a good discussion pertinent to this case. Cheri Dunn completed an automobile insurance application on behalf of herself and her husband Robert. A binder was issued by Safeco. In the application, Cheri stated Robert would be driving the vehicle ten percent of the time and that no listed driver had ever had his or her license suspended or revoked. Safeco subsequently discovered Robert’s license had been suspended several times and had been cancelled once. Letters were sent to the Dunns by certified mail advising that, as a result of the misrepresentation, no policy was in effect and returning the premium. Due to the Dunns having moved, the letters were not received. On May 19, 1989, the agent sent a letter to the insureds advising that their policy would become void in the near future. On May 28, 1989, the insured vehicle was wrecked and the Dunns filed a claim for collision coverage. No third parties were involved. Safeco denied coverage. The Dunns brought an action to recover under the policy. The district court entered summary judgment in favor of Safeco.
In affirming the district court, the Court of Appeals stated:
“The insureds argue that the provisions of K.S.A. 1989 Supp. 40-3118(b) apply and that, despite their misrepresentations, the policy or ‘binder’ could only be cancelled in strict accordance with that statute. That statute reads in relevant part:
“ ‘(b) Except as otherwise provided in K.S.A. 40-276, 40-276a and 40-277, and amendments thereto, and except for termination of insurance resulting from nonpayment of premium or upon the request for cancellation by the insured, no motor vehicle liability insurance policy, or any renewal thereof, shall be terminated by cancellation or failure to renew by the insurer until at least 30 days after mailing a notice of termination, by certified or registered mail or United States post office certificate of mailing, to the named insured at the latest address filed with the insurer by or on behalf of the insured. Time of the effective date and hour of termination stated in the notice shall become the end of the policy period.’ (Emphasis added.)
“It is apparent that, if the above-quoted statute applies to this factual situation, rescission ab initio would not be permitted, and the insurance company would be required to have given the insureds at least 30 days’ notice of termination.
“The question presented for our resolution is one of first impression in this state. We must determine whether K.S.A. 1989 Supp. 40-3118(b) is controlling under these facts. To put the question even more succinctly, we must determine whether the common-law right of rescission ab initio has been abrogated by our ‘no-fault insurance’ law.
“There is no question but that, at common law, the right of rescission ab initio for fraud and misrepresentation was available to an insurance company. See, e.g., American States Ins. Co. v. Ehrlich, 237 Kan. 449, 701 P.2d 676 (1985); Klein v. Farmers & Bankers Life Ins. Co., 132 Kan. 748, 297 Pac. 730 (1931).
“The issue is what impact, if any, K.S.A. 1989 Supp. 40-3118(b) has on the right of rescission. That statute was passed in 1974 as part of the Kansas Automobile Injury Reparations Act. That legislation, more commonly known as the ‘no-fault insurance law’ was described in Manzanares v. Bell, 214 Kan. 589, 595, 522 P.2d 1291 (1974), as follows:
“ ‘The liability insurance prescribed by the no-fault legislation is mandatory, and the coverage afforded is extensive. Stated in summary fashion, Section 4 requires every motor vehicle owner to purchase liability insurance as specified by the Act. The operation of a motor vehicle on a highway of this state or property open to public use is prohibited, unless the prescribed liability insurance coverage is in force.’
“This type of legislation has spread throughout the United States and is in effect in nearly all of our states today. The courts have interpreted ‘no-fault’ insurance legislation as expressing a public policy that one who suffers loss due to an automobile accident shall have a source and a means of recovery, hence, the mandatory requirement of liability insurance. American Underwriters Group v. Williamson, 496 N.E.2d 807 (Ind. App. 1986).
“In pursuance of that public policy, the courts that have considered the issue have universally held that in the case of an innocent third party who has suffered injury from the insured’s operation of an automobile, there is no right of rescission ab initio even for the most blatant fraud. In some, but not all, of those cases, the rationale for the decision was a statutory enactment similar to K.S.A. 1989 Supp. 40-3118(b). Those courts have held that rescission has been abrogated and that the only remedy for an insurance company is cancellation in strict accordance with the terms of the statute. Teeter v. Allstate Insurance Company, 9 App. Div. 2d 176, 192 N.Y.S.2d 610 (1959), aff'd 9 N.Y.2d 655, 212 N.Y.S.2d 71, 173 N.E.2d 47 (1961).
“Regardless of the reasoning used, all courts that have considered the question as it pertains to an innocent third party have held that an insurer cannot, on the ground of fraud or misrepresentation, retrospectively avoid coverage under a compulsory insurance or financial responsibility law so as to escape liability to an innocent third party. See, e.g., American Underwriters v. Williamson, 496 N.E.2d 807; Sentry Indemnity Co. v. Sharif, 248 Ga. 395; Safeway Insurance Co. v. Harvey, 36 Ill. App. 3d 388, 343 N.E.2d 679 (1976); Fisher v. New Jersey Auto. Full Ins., 224 N.J. Super. 552, 540 A.2d 1344 (1988); 7 Am. Jur. 2d, Auto Insurance § 37; Annot., 72 A.L.R.3d 804; Annot., 83 A.L.R.2d 1104.
"The cases cited above have all dealt with the question of rescission of a compulsory liability policy under facts wherein the injured party was an innocent victim of an insured’s negligence. The instant case is not controlled by those decisions. Here, we have a dispute between an insurer and its insureds. There is no injured third party, and the insurance company seeks only to avoid paying on a collision claim made by insureds who are guilty of having made material misrepresentations. We note that 40-3118(b) deals only with the cancellation of automobile liability policies. In this case, the insurance company seeks to rescind to avoid a claim made under the collision feature of its policy, which is not mandated by our no-fault law.
“The absence of an innocent third party is a significant distinction from the cases cited above and most courts which have considered the question from this standpoint have upheld the right of rescission. In United Security v. Ins. Comm'r, 133 Mich. App. 38, 348 N.W.2d 34 (1984), the insured had obtained an insurance policy by misrepresenting facts on his application. He was injured in an accident after the policy was issued and then filed suit claiming PIP benefits under that policy. The insurance company defended, arguing that it had the right to rescind ab initio. The commissioner of insurance argued that a statute similar to K.S.A. 1989 Supp. 40-3118(b) controlled the case and that it was the exclusive method of cancelling an insurance policy. The Micnigan court ruled in favor of the insurance company, holding that rescission was a remedy distinct from cancellation. The court explained its decision as follows;
“ ‘We emphasize that the person making the claim under the insurance policy here is the insured who made the intentional material misrepresentations; this is not a case in which the claimants are innocent third parties. Panels of this Court have held that the liability of an insurer with respect to insurance becomes absolute whenever injury covered by the policy occurs and that no statement made by or on behalf of the insured or violation of the policy may be used to avoid liability under such circumstances. Detroit Automobile Inter-Ins. Exchange v. Ayvazian, 62 Mich. App. 94, 99-100, 233 N.W.2d 200 (1975); Frankenmuth Mutual Ins. Co. v. Latham, 103 Mich. App. 66, 68, 302 N.W.2d 329 (1981). See also the dicta in State Farm-Mutual Automobile Ins. Co. v. Kurylowicz, supra, 67 Mich. App. 574, 242 N.W.2d 530. However, in those cases the insurance companies were attempting to use acts or misrepresentations by the insured to rescind a policy ab initio and thus avoid liability to other claimants.
“ ‘Michigan’s comprehensive scheme of compulsory no-fault automobile insurance arguably requires as a matter of policy that the insurer rather than innocent third parties bear the risk of intentional material misrepresentations by the insured. However, we see no reason in law or policy for the burden of such a risk to be placed on the insurer in preference to the insured who made the intentional material misrepresentations. . . .
“ \ . . Here, however, no question of reliance on the binder by the public is presented, because the claim for personal protection benefits is made by an insured who made intentional material misrepresentations, rather than an innocent third party.’ 133 Mich. App. at 43-44.
“The point made by the Michigan court is that, in those cases where an innocent third party is involved, there is a public policy which requires a holding that the insurance company cannot avoid liability by rescission. However, in a case where there is no innocent third party involved and the dispute is only between the insurer and its insured, no compelling public policy reasons exist for holding that the insurance company has lost the right of rescission.
“Our decision is limited to those cases where the compulsory features of our no-fault law are not involved and where the controversy is between the insurer and its insured only and no third parties are involved. The question of whether rescission would be permitted in a case involving liability to an innocent third party is not before this court and its resolution is not necessary to our decision. As a result, we do not consider that issue, and our comments on that factual scenario should be considered as dicta only.” 14 Kan. App. 2d at 734-39.
As noted by the Court of Appeals in Dunn, its comments relative to rescission where innocent third parties are involved are dicta. However, there, as here, both situations have to be discussed in order to show why the public policy is better served by treating claims of the fraudulently insured differently from those of innocent third parties.
The position taken by the Court of Appeals in Dunn is consistent with 7 Am. Jur. 2d, Automobile Insurance § 37, which states:
“Since the purpose of a compulsory insurance statute is to assure, so far as possible, that there will be no certificate of registration outstanding without concurrent and continuous liability insurance coverage, and since, once a certificate of insurance has been issued and filed with the commissioner of motor vehicles, the contract of insurance ceases to be a private contract between the parties and a supervening public interest then attaches and restricts the rights of the parties in accordance with the statutory provisions, it is impossible to reconcile the existence of a right to rescind the insurance contract ab initio for fraud with the general scheme of the compulsory insurance law.
“Thus it has been universally held or recognized that an insurer cannot, on the ground of fraud or misrepresentations relating to the inception of the policy, retrospectively avoid coverage under a compulsory or financial responsibility insurance law so as to escape liability to a third party." (Emphasis supplied.)
To the same effect see Annot., 83 A.L.R.2d 1104 § 2, and cases cited therein.
We conclude that the rationale expressed by the Court of Appeals in the portions of Dunn quoted herein is sound. We hold:
1. K.S.A. 1990 Supp. 40-3118(b) is a part of the Kansas Automobile Injury Reparations Act and applies only to the cancellation of automobile liability insurance policies and other features of such liability policies mandated by the Kansas No-Fault Insurance Law.
2. An insurance company has the right, upon proper proof, to rescind a policy or binder ab initio for fraud or misrepresentation where the controversy involves only the insurer and its insured over nonliability, noncompulsory features of the insurance policy.
3. Where claims have been made by both the insured acquiring the insurance through fraudulent misrepresentation and an injured innocent third party, severance of the nonliability, non-compulsory features of the policy is proper, thereby permitting rescission ab initio as to the claim of the insured involving provisions not mandated by the Kansas Automobile Injury Reparations Act.
As an additional ground for permitting complete rescission ab initio so as to cut off Johnson’s claim, Continental points out Johnson has uninsured motorist coverage so he will not be hurt by rescission of the Clay policy. Whatever insurance the injured third party may have in his own right in this particular case has no bearing on our determination herein. We have construed K.S.A. 1990 Supp. 40-3118(b) as a statutory abrogation of an insurance company’s common-law right of rescission ab initio as to features of automobile liability policies mandated by the Kansas No-Fault Insurance Law. Johnson’s claim is under such mandated liability provision and, therefore, rescission ab initio is not available to Continental. Further, Clay is an insured motorist under our holding as to Johnson’s claim, and, hence, not within the purview of Johnson’s uninsured motorist coverage.
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The opinion of the court was delivered by
Holmes, C.J.:
This case originated as a medical malpractice action filed in the United States District Court for the District of Kansas. Judge Sam A. Crow, pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., has certified to this court the question of the constitutionality of K.S.A. 1990 Supp. 40-3403(h). The specific question certified to this court reads:
“Does K.S.A. 40-3403(h) violate Sections 1, 5 and 18 of the Bill of Rights of the Kansas Constitution?”
The facts as submitted by the federal court are:
“This is a medical malpractice action against two treating physicians, defendants Roger Peck and Perry Smith, for negligence in the care and treatment of the plaintiff Stephen Bair during the period of November 25, 1985, through December 19, 1985. Plaintiff also seeks to recover damages from the defendants, Great Bend Internists, P.A. and Alderson, Schuekman and Smith, P.A. (‘defendant associations’), on the basis of vicarious liability for the actions of the treating physicians. The parties tacitly agree that each of the defendants is a ‘health care provider,’ as that term is defined at K.S.A. 40-3401(f), who is ‘qualified for coverage under the iund.’ K.S.A. 40-3403(h).
“Defendant associations move for judgment on the pleadings. After noting that plaintiff did not allege any specific, independent act of negligence by them, the moving defendants argue that K.S.A. 40-3403(h) precludes them from being vicariously liable for the negligent acts of the treating physicians. Plaintiff attacks the constitutionality of this provision charging it violates sections 1, 5 and 18 of the Bill of Rights of the Kansas Constitution for the same reasons the Kansas Supreme Court has found other portions of the Health Care Act, K.S.A. 40-3401 et seq., unconstitutional.”
As the individual defendants, Roger Peck, M.D., and Perry Smith, M.D., are not directly involved in the issues before this court, we will refer to the two “defendant associations” simply as the defendants.
K.S.A. 1990 Supp. 40-3403(h) as enacted in 1986 provides:
“(h) A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act.”
This statute is a part of the Health Care Provider Insurance Availability Act (Act), K.S.A. 40-3401 et seq., which was originally enacted in 1976 to address the perceived medical malpractice crisis, including the problems of obtaining and maintaining affordable malpractice insurance and maintaining the availability of medical services in Kansas. State ex rel. Schneider v. Liggett, 223 Kan. 610, 611, 576 P.2d 221 (1978). The history and rationale for the adoption of the Act and other legislation intended to alleviate the “insurance crisis” and bring about “tort reform” have been discussed in numerous cases and need not be repeated at length herein. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990); McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984); State ex rel. Schneider v. Liggett, 223 Kan. 610. Suffice it to say the Act has not had smooth sailing and has been reviewed, amended, and/or supplemented one or more times during nearly every session of the legislature since its original enactment.
The legislature has amended and/or supplemented the Act numerous times and has adopted considerable other legislation on the subject of “tort reform.” However, at the time of the adoption of K.S.A. 1990 Supp. 40-3403(h) in 1986, the desired results have not been realized. Although medical malpractice insurance rates have declined in the last couple of years, the rates still remain high and in 1986 were continuing to rise. In response to the continued increase in the cost of obtaining medical malpractice insurance and after recommendations of the Special Committee on Medical Malpractice (See Proposal No. 47—Medical Malpractice, Report on Kansas Legislative Interim Studies to the 1986 Legislature 817 [December 1985]), the legislature enacted additional major tort reforms in 1986, including H.B. 2661. See L. 1986, ch. 229.
One of the 1986 reforms included in H.B. 2661 was K.S.A. 1990 Supp. 40-3403(h), which eliminated the vicarious liability of one health care provider for the acts of another provider when both are covered by the Health Care Stabilization Fund (Fund). The proposal to eliminate vicarious liability under the Act came from the Special Committee on Medical Malpractice. In its report to the legislature the committee stated:
“The Committee concludes there is a problem with rising medical malpractice insurance premium costs which, if not addressed, will affect health care delivery and availability in Kansas. The Committee does not believe Kansas licensees in medicine and surgery will be willing to continue business as usual in their practices if costs of professional liability insurance are not stabilized. The Committee believes that ample evidence has been presented to show that a problem of affordability now exists which requires legislative action.” Report on Kansas Legislative Interim Studies to the 1986 Legislature, p. 858.
Before addressing the specific issues and arguments of the parties, we deem it appropriate to review certain principles and background pertaining to statutory construction and also the doctrine of vicarious liability.
In considering the constitutionality of statutes, we recently stated:
“ ‘This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution.’ Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877 (1965). The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Brown v. Wichita State University (Brown II), 219 Kan. 2, 9-10, 547 P.2d 1015 (1976) (citing Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506 [1971], and Tri-State Hotel Co. v. Londerholm, 195 Kan. 748).” Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 340, 757 P.2d 251 (1988).
In addressing the plaintiffs contention that K.S.A. 1990 Supp. 40-3403(h) violates various sections of the Rill of Rights of the Kansas Constitution, it must be recognized that the common-law doctrine of vicarious liability has long been a part of Kansas negligence law. The doctrine was succinctly explained in Simpson v. Townsley, 283 F.2d 743 (10th Cir. 1960), where the court stated:
“Under the law of Kansas, there is no distinction between the liability of a principal for the tortious acts of his agents and the liability of a master for the tortious acts of his servant. In both relationships, the liability is grounded upon the doctrine of respondeat superior. Under that doctrine, the liability of the master to a third person for injuries inflicted by a servant in the course of his employment is derivative and secondary and that of the servant is primary.
“Moreover, under the law of Kansas, while a master whose liability is predicated solely on the doctrine of respondeat superior and not on any wrong on his part may be sued jointly with his servant for a tort committed by the latter within the scope of his employment, they are not joint tortfeasors in the sense they are equal wrongdoers. Where a master becomes liable to a third person for personal injuries caused solely by the act of his servant, under the doctrine of respondeat superior, and is required to respond to such third person in damages by reason of such liability, he will be subrogated to the rights of the injured third person and may recover over from his servant who is primarily liable.” 283 F.2d at 746.
The modern theory underlying the common-law doctrine has been described by one authority as follows:
“What has emerged as the modem justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.” Prosser and Keaton on Torts § 69, pp. 500-01 (5th ed. 1984).
As a practical matter vicarious liability was recognized as a method of providing a source of recovery for the innocent victim of another’s negligence when the actual tortfeasor was unable to respond financially for the damage caused.
We now turn to the specific issues presented.
Section 1 of the Bill of Rights of the Kansas Constitution
Section 1 of the Bill of Rights provides:
“Equal Rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,”
and is commonly referred to as the equal protection clause.
Equal protection arguments under the Kansas Constitution and the United States Constitution are generally based upon allegations that a particular statutory classification denies to the person or parties falling within the classification some right which is not denied to others alleged to be similarly situated. Classifications which create specific burdened as well as benefited classes are not necessarily unconstitutional so long as certain safeguards are met and there is a necessity for the classification. See Farley v. Engelken, 241 Kan. 663, 668, 740 P.2d 1058 (1987).
In applying the equal protection clause of either constitution, this court must first determine the appropriate standard of review to be applied in analyzing the statute in question. Three standards of review in equal protection cases are generally recognized by the various courts and were recently defined in Farley v. Engelken, 241 Kan. 663, as follows:
“The ‘rational basis’ test for determining whether a statutory classification is constitutional requires consideration of whether the classification bears some reasonable relationship to a valid legislative objective.” Syl. ¶ 3.
“The ‘heightened scrutiny’ test for determining whether a statutory classification is constitutional requires a determination of whether the classification substantially furthers a legitimate legislative purpose.” Syl. ¶ 4.
“The ‘strict scrutiny’ test for determining whether a statutory classification is constitutional requires a determination of whether the classification is necessary to serve a compelling state interest.” Syl. ¶ 5.
All parties agree that the strict scrutiny test is inappropriate in this case. Plaintiff contends, though, that this court should apply a heightened scrutiny test, sometimes referred to as the substantial relationship test, instead of the rational basis test urged by the defendants.
Numerous cases considering the impact of various statutes upon persons allegedly injured by medical malpractice have adopted the rational basis test as the appropriate one. Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989) (cap on nonpecuniary damages in wronglul death actions); Farley v. Engelken, 241 Kan. 663, (abrogation of common-law collateral source rule); Stephens v. Snyder Clinic Ass'n, 230 Kan. 115, 130, 631 P.2d 222 (1981) (shortened statute of limitations in medical malpractice cases). In State ex rel. Schneider v. Liggett, 223 Kan. 610, the court was faced with the first constitutional attack upon the Act. Dr. Liggett, a health care provider, contended the statutes mandating medical malpractice insurance were unconstitutional as a violation of the equal protection and due process clauses of both the federal and state constitutions. In reliance upon McGowan v. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), this court stated, “Traditionally, the yardstick for measuring equal protection arguments has been the ‘reasonable basis’ test.” 223 Kan. at 616. We conclude the rational basis or reasonable basis test is the appropriate test to be utilized in determining whether K.S.A. 1990 Supp. 40-3403(h) violates Section 1 of the Kansas Bill of Rights.
Having determined that the rational basis test is the appropriate one to be utilized in determining the equal protection arguments of the plaintiff, the issue is whether the elimination of vicarious liability for health care providers which denies to medical malpractice victims, but not other personal injury victims, a potential source for the recovery of damages is a classification that bears some reasonable relationship to a valid legislative objective.
Plaintiff contends that eliminating vicarious liability bears no reasonable or substantial relationship to the goals of the legislation, which are to ensure that the injured parties receive adequate compensation and to maintain quality health care in Kansas. Because the negligent tortfeasors would be the beneficiaries of reduced rates in those situations where the negligent health care provider owned an interest in the corporation, partnership, or association, quality health care would not be furthered by eliminating vicarious liability. Adequate compensation would not be available, because K.S.A. 1990 Supp. 40-3403(h) eliminates an additional source of recovery and the tortfeasor’s insurance and the Fund’s liability may not equal the jury’s verdict. In the end, plaintiff contends that the burden of this legislation falls mostly on the seriously injured medical malpractice victim, and it is unjust to deny these victims the compensation that other personal injury victims receive.
Defendants, on the other hand, contend that the elimination of vicarious liability bears a reasonable relationship to the goals of assuring the availability of liability insurance, promoting quality health care, and preserving a litigant’s right to reasonable compensation. The costs of insurance will be reduced and thus affordable malpractice insurance will be available because the overall riálc will be reduced and because subrogation suits will be unnecessary once vicarious liability is eliminated. Quality health care and the litigant’s right to recover compensation are still protected because the negligent health care provider is still fully responsible for the judgment while the employer health care provider remains subject to liability if the tortfeasor is not insured under the Act or if the employer is guilty of independent acts of negligence.
The Special Committee on Medical Malpractice concluded that, absent stabilization of malpractice insurance costs, Kansas physicians will not be willing to continue practicing in this state and that a failure to take legislative action in this area will affect health care delivery and availability in Kansas. The Committee’s conclusions were essentially adopted by the legislature in H.B. 2661 (L. 1986, eh. 229, new § 1), currently codified at K.S.A. 1990 Supp. 60-3405. The statute provides:
“Substantial increases in costs of professional liability insurance for health care providers have created a crisis of availability and affordability. This situation poses a serious threat to the continued availability and quality of health care in Kansas. In the interest of the public health and welfare, new measures are required to assure that affordable professional liability insurance will be available to Kansas health care providers, to assure that injured parties receive adequate compensation for their injuries, and to maintain the quality of health care in Kansas.”
Regarding vicarious liability, the Special Committee made the following conclusion and recommendation:
“The Committee notes that licensees in medicine and surgery are now required to pay medical malpractice premiums and surcharges as individuals and, additionally, must pay these costs for professional associations they may belong to (albeit at a reduced rate). The Committee believes this dual coverage requirement is not necessary to protect the public welfare and is aggravating a problem that already exists with high insurance costs.” Report on Kansas Legislative Interim Studies to the 1986 Legislature, p. 859.
“[Recommendation] Other Insurance Changes. The bill requires partnerships of persons who are health care providers to obtain the mandatory insurance coverages so that vicarious liability of one health care provider for another may be abolished if both are covered by the Fund. Further, insurers may exclude from coverage liability for those health care providers already required to maintain professional liability insurance.” p. 861.
The legislative history clearly supports defendants’ contention that the limitation of vicarious liability bears a rational relationship to the State’s objective of decreasing the costs of obtaining and maintaining malpractice insurance, an objective plaintiff ignores. If an insurer does not have to provide coverage for one claim from two policies or, stated otherwise, knows that claims under the employer health care provider’s policy will be limited to the employer’s acts of negligence, the insurer will be assuming less risk of loss and arguably the employer’s malpractice insurance premium will be reduced or stabilized. Such a reduction or stabilization should make it easier for the individual health care provider to obtain malpractice insurance in excess of the Fund’s liability and provide a greater incentive to do so.
In Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, the court was faced with an amendment to K.S.A. 1975 Supp. 60-513, which reduced the statute of limitations for medical malpractice actions. In upholding the statute against an equal protection argument, the court noted:
“The public interest in solving the medical malpractice problem is discussed in depth in State ex rel. Schneider v. Liggett, 223 Kan. 610. That discussion shows clearly that there is a reasonable basis for dealing with malpractice actions against health care providers in a different manner than in cases involving other tortfeasors.” 230 Kan. at 130-31.
Leiker v. Gafford, 245 Kan. 325, involved a constitutional attack upon K.S.A. 1988 Supp. 60-1903, the statute which established a cap of $100,000 for certain nonpecuniary damages in a wrongful death action. After determining that the equal protection issue was subject to the reasonable basis test, the court stated:
“The ‘reasonable basis’ test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. at 425-26; Farley v. Engelken, 241 Kan. at 669; State ex rel. Schneider v. Liggett, 223 Kan. at 616.
“Under the reasonable basis test, it is unnecessary to ascertain the specific purpose the Kansas Legislature espoused, if any, in establishing the challenged classification. Rather, if any state of facts reasonably may be conceived to justify the alleged statutory discrimination, the statute will not be set aside as a violation of equal protection. McGowan v. Maryland, 366 U.S. at 426.
“A statute comes before the court cloaked in a presumption of constitutionality, and it is the duty of the party attacking the statute to sustain the burden of proof. State ex rel. Schneider v. Liggett, 223 Kan. at 616, and cases cited therein.” 245 Kan. at 363-64.
We conclude that K.S.A. 1990 Supp. 40-3403(h) bears a reasonable relationship to the objectives sought by the legislature and does not violate Section 1 of the Bill of Rights of the Kansas Constitution.
Section 5 of the Bill of Rights of the Kansas Constitution
The next question certified by the federal court is whether K.S.A. 1990 Supp. 40-3403(h) violates Section 5 of the Kansas Bill of Rights, which provides:
“Trial by jury. The right of trial by jury shall be inviolate.”
Plaintiff contends that the statute violates Section 5 because it takes “away the right of a plaintiff to have damages awarded by a jury without providing anything in return.” Plaintiff argues that the elimination of vicarious liability operates like a cap on damages and limits the plaintiffs right to have the jury award damages. In doing so, the plaintiff relies primarily on Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988). In that case the court was faced with the constitutionality of K.S.A. 1987 Supp. 60-3407 and 60-3409 which, inter alia, limited recovery of “noneconomic loss” to $250,000 and total recovery to $1,000,000. The court discussed at some length the nature of the right to trial by jury under Section 5 and stated:
“Section 5 of the Bill of Rights of the Kansas Constitution provides that the right of trial by jury shall be inviolate. It guarantees the right of every citizen to trial by jury. ‘ “The right of trial by jury is a substantial and valuable right. The law favors trial by jury and the right should be carefully guarded against infringement.” ’ Waggener v. Seever Systems, Inc., 233 Kan. 517, 520, 664 P.2d 813 (1983) (quoting Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 497 P.2d 110 [1972]). ‘Trial by jury is guaranteed only in those cases where the right existed at common law.’ Kimball et al. v. Connor et al., 3 Kan. *414, *432 (1866). Common law allows for the recovery of damages for negligent injury (Tefft v. Wilcox, 6 Kan. *46 [1870]), and therefore the right to jury trial applies here.
“Kansas cases hold that the right to a jury trial includes the right to have a jury determine damages. Plaintiffs contend that the cap provisions of H.B. 2661 impair the right to a jury trial ‘by truncating the jury’s ability to fix damages.’
“The jury’s traditional role is to decide issues of fact. Hasty v. Pierpont, 146 Kan. 517, 520-21, 72 P.2d 69 (quoting Walker v. Southern Pacific Railroad, 165 U.S. 593, 596, 41 L. Ed. 837, 17 S. Ct. 421 [1897]). The determination of damages is an issue of fact. Therefore, it is the jury’s responsibility to determine damages. ...”
“Further support for the conclusion that Section 5 includes the right to have a jury determine damages comes from the ancient distinction between legal and equitable actions. At common law and under the Kansas Constitution, a party in a suit in equity (such as an action for specific performance, foreclosure, or to quiet title) is not entitled to a trial by jury. Waggener v. Seever Systems, Inc., 233 Kan. 517. On the other hand, suits seeking monetary recovery or money damages have always been considered actions at law which must be considered by a jury unless waived. Windholz v. Willis, 1 Kan. App. 2d 683, 686, 573 P. 2d 1100 (1977). See City of Osawatomie v. Slayman, 182 Kan. 770, 323 P.2d 910 (1958). The right to a jury trial, then, turns on the type of remedy sought. It would be illogical for this court to find that a jury, empaneled because monetary damages are sought, could not then fully determine the amount of damages suffered.” 243 Kan. at 342-43.
Plaintiff s reliance upon Malpractice Victims and his arguments in support of his contention that the statute violates the constitutional right to a trial by jury are misplaced. Nothing in the statute limits the jury’s right to determine the full amount of damages due the injured plaintiff and nothing limits the jury’s right to assess the full amount of such damage against the actual tortfeasor. Likewise, nothing in the statute limits the plaintiff who recovers such a judgment from resorting to every legal means available to collect the full amount of the judgment from the tortfeasor. The elimination of the vicarious liability of the non-negligent employer has no effect whatsoever upon the jury’s factual determinations of the amount of damages or the extent of the liability of the negligent health care provider. The constitutional right to trial by jury does not guarantee that every jury damage award will be collectible or guarantee any source for payment of such an award. The duty of the jury is to determine liability and determine the amount of damages suffered. It has nothing to do with the collection of the damages. As we stated in Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974), the statute “represents a legislative change in tort liability reparation and does not violate the right to trial by jury.”
K.S.A. 1990 Supp. 40-3403(h) does not deprive the plaintiff of the constitutional right of trial by jury and does not violate Section 5 of the Bill of Rights of the Kansas Constitution.
Section 18 of the Bill of Rights of the Kansas Constitution
Section 18 of the Kansas Bill of Rights provides:
“Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
Plaintiff contends K.S.A. 1990 Supp. 40-3403(h) violates Section 18 because it abolishes a remedy previously held by medical malpractice victims without providing an adequate substitute remedy or quid pro quo. Plaintiff, relying upon Neely v. St. Francis Hospital & School of Nursing, 192 Kan. 716, 391 P.2d 155 (1964), compares the elimination of vicarious liability here to the statute which prohibited garnishment in Neely. In Neely the statute under attack (G.S. 1949, 17-1725 [1959 Supp.]) provided that the property of nonprofit hospital corporations was exempt from at tachment, garnishment, execution, or forced sale except for obligations owed to a governmental entity or obligations contractually incurred by the corporation. Neely had obtained a malpractice judgment against St. Francis Hospital, which remained partially unpaid, and attempted to collect through garnishment proceedings. The hospital relied upon the statute in asserting that it was exempt from garnishment, and the trial court granted judgment for the hospital.
On appeal by Neely, this court held the statute to be unconstitutional as a violation of Section 18. 192 Kan. at 723. In doing so, the court relied upon its earlier decision in Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934 (1954), wherein the court abolished the common-law doctrine of tort immunity granted to charitable and nonprofit organizations. In Noel the plaintiff suffered injury through acts of negligence by a Menninger employee. Though recognizing that a grant of immunity to charitable institutions may have been a basis for encouraging charity and that charitable institutions had limited resources in public funding early in history, the court in Noel found these concerns no longer existed. The court not only found the public policy and need behind the doctrine of charitable immunity no longer viable but also found the doctrine violated Section 18 of the Kansas Bill of Rights.
The Noel court, in discussing Section 18, stated:
“It is somewhat surprising to note that in none of the decisions establishing the immunity doctrine in this state was the question ever presented or consideration given to the provisions of our constitution. Section 18 of our bill of rights reads: ‘All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.’ It is clear from plaintiff’s petition that he has suffered injuries in person, and under our state constitution he shall have remedy by due course of law. (Rowell v. City of Wichita, 162 Kan. 294, 300, 176 P.2d 590.) Neither our constitution nor our statute says anything about releasing charitable, educational or religious organizations from liability for negligence which results in personal injuries to another. Section 18 of our bill of rights is to the contrary. Thus it would appear that the public policy of this state, as enumerated by its constitution, is to put justice ‘by due course of law’ above or before charity. The constitution, article 11, section 1, and our statute, G.S. 1949, 79-201, do make provisions for releasing such institutions from taxation. Had it been the intent of the framers of our constitution to grant immunity to charitable organizations for their torts, provisions would have been made for such. The constitutional provision guaranteeing to every person a remedy by due course of law for injury done him in person or property means that for such wrongs that are recognized by the law of the land the court shall be open and afford a remedy, or that laws shall be enacted giving a certain remedy for all injuries or wrongs. ‘Remedy by due course of law,’ so used, means the reparation for injury ordered by a tribunal having jurisdiction in due course of procedure after a fair hearing. It is the primary duty of the courts to safeguard the declaration of right and remedy guaranteed by the constitutional provision insuring a remedy for all injuries. (11 Am. Jur. 1124, 1125, Constitutional Law, § 326.)
“To exempt charitable and nonprofit corporations from liability for their torts is plainly contrary to our constitutional guaranties (Bill of Rights, § 18). It gives to certain favored ones, selected arbitrarily, immunity from that equal liability for civil wrongs which is a sign of equality between citizens. It undertakes to clothe charitable and nonprofit organizations with special privileges denied to other corporations, and society. It takes from individuals the right to assert in the courts claims against all who tortiously assail their person and property and to recover judgment for the injuries done. It prevents all persons from having recourse to law for vindication of rights or reparation for wrongs against the privileged charitable, nonprofit organization. It frees one set of corporations from obligations to which their competitors, and individuals, are subjected. In short, it destroys equality and creates special privilege. (In re Opinion of the Justices, 211 Mass. 618, 98 N.E. 337.)
“For the foregoing reasons, we are of the opinion that if public policy ever required that charitable institutions should be immune from liability for the torts of their servants, that public policy no longer exists.” 175 Kan. at 762-63.
Plaintiff asserts that the statutory abrogation of vicarious liability now before the court constitutes the denial of a remedy under Section 18 in the same manner as did the charitable immunity in Noel and the garnishment exception in Neely. It could be argued that the court in Noel mixed an equal protection analysis under Section 1 with its concerns under Section 18 and that the basis of the decision was actually a Section 1 equal protection determination rather than a violation of the Section 18 requirement of a “remedy by due course of law.” Regardless of the basis for the decision in Noel, we think it is clear that the statutory curtailment of vicarious liability does affect a “remedy” within the purview of Section 18.
It has long been recognized that no one has a vested right in common-law rules governing negligence actions which would preclude substituting a viable statutory remedy for one available at common law. Manzanares v. Bell, 214 Kan. at 599. As stated in Kansas Malpractice Victims Coalition v. Bell, 243 Kan. at 350, “The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished.” Therefore, the issue we must now determine is whether the legislature has provided a sufficient quid pro quo, or substitute remedy, for its abrogation of the common-law doctrine of vicarious liability as it applied to employer health care providers.
Plaintiff contends no adequate remedy has been provided, because the original quid pro quo of the Act, mandatory insurance and excess coverage provided by the Fund, was enacted long before the adoption of K.S.A. 1990 Supp. 40-3403(h), which modifies or supplements the original act. Defendants take the position that the original remedy provided by the Act, mandatory insurance and Fund coverage, provides a sufficient substitute remedy and does not preclude subsequent modification or fine tuning of some provisions of the Act.
The Health Care Provider Insurance Availability Act was a comprehensive compulsory insurance plan mandating minimum amounts of malpractice insurance as a condition of providing health care in Kansas. The purposes and details of the Act have been discussed and reviewed in numerous cases and we need not repeat that history here. See Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988); State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978). The Act, as originally adopted, consisted of nineteen sections (K.S.A. 1976 Supp. 40-3401 through 40-3419; L. 1976, ch. 231), practically all of which have been amended one or more times or repealed, and four new sections have been added (K.S.A. 40-3420 through 40-3423). Some of the changes in the original Act have been beneficial to malpractice claimants while others have benefited medical care providers and/or the Fund.
Recognizing that Section 18 of the Kansas Bill of Rights requires an adequate substitute remedy before the legislature can abolish a common-law remedy, the question squarely before us is whether a quid pro quo providing a substitute remedy must be adopted simultaneously with the abrogation of the common-law remedy. Put another way, is the substitute remedy granted upon original adoption of the Act sufficient to support subsequent changes in the Act abrogating a common-law remedy which was not affected by the original terms of the Act?
In asserting that the substitute remedy must be provided at the same time as the common-law remedy is abolished or limited, the plaintiff relies heavily on Malpractice Victims. In that case, this court held that statutes limiting a medical malpractice victim’s recovery of noneconomic losses and total recovery to a certain amount and requiring future benefits to be paid from an annuity violated Section 18 because they infringed upon the malpractice victim’s right to a remedy without providing an adequate substitute remedy or quid pro quo. 243 Kan. at 352. In doing so, the court adopted the position that “[t]he legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed.” 243 Kan. at 350. “[T]he court looks to insure that due process requirements are met and, when a common-law remedy is modified or abolished, an adequate substitute remedy must be provided to replace it.” 243 Kan. at 346-47. The court did not adopt defendants’ argument that the guaranteed insurance recovery provided in the original Act was a sufficient quid pro quo for subsequently placing a monetary cap on recovery. Instead, the court stated:
“Assuming, then, that H.B. 2661 limits a plaintiffs right to a remedy under Section 18, we must then decide if the plaintiff has received a quid pro quo, or an adequate substitute remedy. Again, defendant and intervenors argue that the plaintiff receives a guaranteed recovery because doctors Will have available, affordable insurance coverage. In a somewhat circular argument, they contend that H.B. 2661 lowers the cost of insurance, thereby encouraging doctors to continue their practices, increasing the number of doctors available, and guaranteeing the availability of quality health care to seriously injured malpractice victims. This is not a sound argument. If it were not for negligent health care providers, their victims would not need the continuing health care. The argument also ignores the fact that health care providers have been required to carry malpractice insurance since 1976. Thus a plaintiffs source of recovery is already provided by K.S.A. 40-3402 and K.S.A. 1987 Supp. 40-3404.” 243 Kan. at 351.
In Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990), the court again considered the need for an adequate quid pro quo in a Section 18 attack upon statutes. The court upheld a legislative cap on recovery for noneconomic losses in personal injury cases, finding no violation of Section 18 or Section 5 of the Kansas Bill of Rights. The rationale for upholding the constitutionality of this limitation was that a quid pro quo existed. Although the statutes eliminated plaintiffs right to receive noneconomic losses in excess of $250,000, the court found an adequate quid pro quo in that the legislation prevented the court from exercising its discretion to award less than $250,000 when higher damages were awarded by the jury. 246 Kan. at 362.
In reaching this conclusion, the court stated:
“Statutory modification of the common law must meet due process requirements and be reasonably necessary in the public interest to promote the general welfare of the people of the state. Due process requires that the legislature substitute the viable statutory remedy of quid pro quo (this for that) to replace the loss of the right. See generally Note, Restrictive Medical Malpractice Compensation Schemes: A Constitutional ‘Quid Pro Quo’ Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143 (1981).
“The majority of this court in Malpractice Victims,. 243 Kan. 333, asserted that the legislature’s modification of the common law, by placing caps on the amount of damages an injured plaintiff could recover in medical malpractice actions, without substituting a sufficient quid pro quo, violated the right to have a jury determine damages under §§ 5 and 18. In addition, a statutory scheme of compulsory liability insurance (though purchased by the defendant) was not a quid pro quo for caps on damages suffered by the injured plaintiff, since the liability insurance had been mandated by the legislature prior to the passage of the caps legislation.” 246 Kan. at 358.
Although Samsel, in referring to Malpractice Victims, implies that the substitute remedy must be simultaneous with the abrogation of the common-law remedy, such a determination was unnecessary as the court found a separate, simultaneous quid pro quo had been provided. Thus, any implication in Samsel that the substitute remedy must be provided at the same time that a change is made in the existing remedy was not germane to the actual basis for the decision that the statute was constitutional.
Defendants do not contend that K.S.A. 1990 Supp. 40-3403(h), by its terms, provides a separate substitute remedy for the abrogation of the vicarious liability which previously existed for employer health care providers. Hence, we are directly faced with a determination of whether the comprehensive remedy of mandatory insurance and excess coverage from the Fund, provided by the original Act, is a sufficient quid pro quo for this subsequent amendment or modification of the Act.
We have long recognized, at least tacitly, that major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparation in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo. Provisions of the original Workmen’s Compensation Act adopted in 1911 and upheld as constitutional in Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, aff'd on rehearing 93 Kan. 257, 144 Pac. 249 (1914), have been repeatedly amended without the adoption of an additional quid pro quo each time an amendment operated to the detriment of the employee. The original quid pro quo providing recovery for injury regardless of fault or negligence has been deemed sufficient to support dozens of amendments to the original act, many of which involved the abrogation of an existing common-law right.
In Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251 (1983), the court, in a unanimous opinion, found that the Kansas Workmen’s Compensation Act, in providing immunity to fellow employees when compensation is recoverable under the Act, did not violate Section 18. In doing so, the court expressly stated that it did not “view as significant” the fact that fellow employee immunity was not enacted until 1967. “The Workmen’s Compensation Act removes certain common law remedies for injured employees but provides a statutory substitute therefor.” 233 Kan. at 441. While not specifically stated, the court obviously held that the 1967 amendment, which provided fellow employee immunity, did not require a new quid pro quo because the comprehensive remedy afforded by the Workmen’s Compensation Act, already in existence, was sufficient.
Likewise, the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq., first adopted in 1974, is a comprehensive legislative scheme affecting the common-law rights of persons injured in vehicle accidents to recover reparations from the negligent parties. The act was upheld against constitutional claims, including Section 18, in Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974). Since that time the act has been amended numerous times. For example, in 1987, the legislature raised the threshold requirement for medical expenses incurred before a person could recover damages for pain and suffering and other nonpecuniary damages from $500 to $2,000.
In considering the adequacy of the quid pro quo of comprehensive legislation, which substitutes a statutory remedy for one that formerly existed at common law, and its sufficiency to support subsequent amendments or modifications which diminish the substitute remedy originally granted, no hard and fast rule can apply to all cases. It is obvious that the needs and goals of comprehensive legislation such as the Workers Compensation Act, the Kansas Automobile Injury Reparations Act, and the Health Care Provider Insurance Availability Act will change with the passage of time and the needs of a fluctuating society. It would take the wisdom of Solomon to devise comprehensive remedial legislation, such as that now before us, which would never need fine tuning, change, or modification. The Act is a piece of ongoing legislation which will, of necessity, require continuous modification to accomplish its goals.
The theory behind the common-law doctrine of vicarious liability was that the employer should be liable for the employee’s negligence to assure that an innocent injured third party would not have to suffer the loss due to the inability of the tortfeasor employee to respond in damages. Indeed, as pointed out earlier, the employer’s liability is secondary to that of the employee and only comes into play when the employee is financially unable to pay the damages. If an employer who is vicariously liable is required to pay damages for the tort of the employee, the employer has a cause of action against the employee to recover the amounts paid. It was never the purpose of the common law to impose liability on a non-negligent third party employer when the actual tortfeasor was financially capable of responding for the injured person’s damages.
At the time of the malpractice alleged by the plaintiff in this case, each individual health care provider who was alleged to be negligent was required to maintain $200,000 malpractice coverage and, in addition, the Fund provided $3,000,000 excess coverage for each tortfeasor. Without the Act, there would be no guarantee that a plaintiff injured because of the negligence of a health care provider could ever recover for his injuries, let alone have an assured fund available of $3,200,000. That is a sizeable quid pro quo, established by the Act, and certainly is an adequate substitute remedy for the common-law rights given up by injured malpractice victims. No argument is made that if the elimination of the employer’s vicarious liability had been a part of the original Act, the quid pro quo would somehow be insufficient. We conclude that in reviewing the sufficiency of the substitute remedy as it applies to amendment or modification of comprehensive remedial legislation, each determination must be made on a case-by-case basis. Recognizing that all such legislation may need periodic modification, we think the proper test to apply is whether the substitute remedy would have been sufficient if the modification had been a part of the original Act. If so, then no new or additional quid pro quo is necessary to support the modification against a Section 18 attack. Any other holding would require that every modification of a substitute remedy provided by comprehensive legislation that originally abrogated a common-law remedy would require a new and additional substitute remedy. As already noted, it would be virtually impossible to draft such legislation in a form that would anticipate all contingencies and which would not thereafter need change and modification.
We recognize that there is a limit which the legislature may not exceed in altering the statutory remedy previously provided when a common-law remedy was statutorily abolished. The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy. K.S.A. 1990 Supp. 40-3403(h) does not amend the Act to such a degree that the substitute remedy is no longer sufficient and we hold that the statute is not unconstitutional under Section 18 of the Kansas Rill of Rights. Statements in Samsel, 246 Kan. 336, and Malpractice Victims, 243 Kan. 333, contrary to the views expressed herein are disapproved.
One final matter should be addressed. Although not a part of the question certified by the federal court, the plaintiff attempts to raise the issue that K.S.A. 1990 Supp. 40-3403(h) is not severable from the legislation found to be unconstitutional in Malpractice Victims. Any such argument is wholly without merit, as K.S.A. 1990 Supp. 40-3418a specifically provides for severability.
We therefore hold that the answer to the certified question, “Does K.S.A. 40-3403(h) violate Sections 1, 5 and 18 of the Bill of Rights of the Kansas Constitution?” is No. | [
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The opinion of the court was delivered by
Abbott, J.;
This is a title insurance law case in which the trial court held K.S.A. 1989 Supp. 40-2404b(14)(f) and (g) unconstitutional.
Section 2404b prohibits unfair methods of competition and deceptive acts or practices in the insurance industry. In 1989 House Bill No. 2502 added subparagraphs (e), (f), and (g) to subsection 14 of K.S.A. 40-2404b. Subparagraph (e) was not challenged, but needs to be considered in determining whether (f) and (g) are unconstitutional.
The subparagraphs provide:
“(e) No title insurer or title agent may accept any order for, issue a title insurance policy to, or provide services to, an applicant if it knows or has reason to believe that the applicant was referred to it by any producer of title business or by any associate of such producer, where the producer, the associate, or both, have a financial interest in the title insurer or title agent to which business is referred unless the producer has disclosed to the buyer, seller and lender the financial interest of the producer of title business or associate referring the title insurance business.
“(9 No title insurer or title agent may accept an order for title insurance business, issue a title insurance policy, or receive or retain any premium, or charge in connection with any transaction if: (i) The title insurer or title agent knows or has reason to believe that the transaction will constitute controlled business for that title insurer or title agent, and (ii) 20% or more of the gross operating revenue of that title insurer or title agent during the six full calendar months immediately preceding the month in which the transaction takes place is derived from controlled business. The prohibitions contained in this subparagraph shall not apply to transactions involving real estate located in a county that has a population, as shown by the last preceding decennial census, of 10,000 or less.
“(g) The commissioner shall adopt any regulations necessary to carry out the provisions of this act.” (Emphasis added.)
The Insurance Commissioner then adopted K.A.R. 40-3-43 (1990 Supp.), which provides, in part:
“(f) ‘Controlled business’ means any portion of a title insurer’s or title agent’s business in this state that was referred by any producer of title business or by any associate of such producer, where the producer of title business, the associate, or both, have a financial interest in the title insurer or title agent to which the business is referred.”
Guardian Title Company and Wichita Title Associates, Inc., (petitioners) filed this case seeking a temporary injunction against Fletcher Bell, Commissioner of Insurance, (respondent) arguing that House Bill 2502 was unconstitutional. They also sought a declaratory judgment that subparagraphs (f) and (g) were unconstitutional and sought a permanent injunction against their enforcement.
The trial court found that subparagraph (f) violates the Due Process Clause of the United States Constitution and the Due Process and Equal Protection Clauses of the Kansas Constitution, Kansas Bill of Rights § 18 and Kansas Bill of Rights § 1, and that subparagraph (g) violates the constitutional requirement of separation of powers found in Article 2, Section 1 of the Kansas Constitution. The trial court also permanently enjoined the Insurance Commissioner from enforcing subparagraph (f) and any regulations promulgated by the Commissioner relating to K.S.A. 1989 Supp. 40-2404b(14)(f).
In enjoining enforcement of the provisions, the trial court found that there is no statutory or judicial definition of the term “controlled business” and that there is no technical meaning of the term that is commonly understood by persons in the title insurance industry in Kansas. The trial court found it significant that legislation in numerous other states has used the phrase “controlled business” and that most other states have provided an expansive definition of “controlled business.”
The trial court also concluded that the subparagraphs in issue lack sufficient standards to satisfy principles of nondelegation under article 2, § 1 of the Kansas Constitution and that the legislature cannot delegate to an administrative agency the task of defining an unconstitutionally vague term, because to do so violates the separation of powers doctrine (Kan. Const, art. 2, § 1). In addition, the trial court held that the classification in subsection (14)(f) exempting counties of 10,000 or less from the bill’s prohibitions violates the equal protection clause because it is not rationally related to any legitimate state purpose.
1. Vagueness Argument
The constitutionality of a statute is presumed and all doubts must be resolved in favor of its validity. Before the statute may be struck down, it must clearly appear the statute violates the constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P.2d 630 (1980).
Most challenges against statutes for vagueness are against criminal statutes. With a criminal statute,
“[t]he test to determine whether a criminal statute is unconstitutional by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” State v. Meinert, 225 Kan. 816, Syl. ¶ 2, 594 P.2d 232 (1979).
K.S.A. 1989 Supp. 40-2404b is not a criminal statute, although it is penal in nature because K.S.A. 1989 Supp. 40-2407 provides that the commissioner may levy penalties against companies engaging in practices prohibited by section 40-2404b. The same standard is not applied, however, when the statute regulates a business as is applied when the statute is criminal or is regulating a constitutionally protected interest such as free speech. In In re Brooks, this court said, “In determining constitutional challenges for vagueness, greater leeway is afforded statutes regulating business than those proscribing criminal conduct.” In re Brooks, 228 Kan. 541, 544, 618 P.2d 814 (1980) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 [1972]).
A common-sense determination of fairness is the standard for determining whether a statute regulating business is unconstitutional for vagueness, i.e., can an ordinary person exercising common sense understand and comply with the statute? If so, the statute is constitutional. Harris v. McRae, 448 U.S. 297, 311 n.17, 65 L. Ed. 2d 784, 100 S. Ct. 2671, reh. denied 448 U.S. 917 (1980).
In order to determine if this statute is vague, this court is called upon to interpret the statute, because if there is a valid interpretation of the statute, there is no reason to declare it unconstitutional. Interpretation of a statute is a question of law, not a question of fact. Here, the only persons subject to the statute are title insurers and title agents. If the statute gives fair notice to those subject to the statute, the fact that academic questions might be posed over the statute’s meaning will not defeat its validity. See Communications Ass’n v. Douds, 339 U.S. 382, 412-13, 94 L. Ed. 2d 925, 70 S. Ct. 674, reh. denied 339 U.S. 990 (1950).
The trial court found that this statute is vague because “controlled business,” as used in subparagraph (f), is not expressly defined. Respondent suggests that subparagraph (e) defines “controlled business” as business which has been referred to the title insurer or title agent by a producer of title business who also has a financial interest in the title insurer or agency receiving the referral.
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. “In construing statutes, the legislative intention is to be determined from a general consideration of the entire act.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). In order to construe one part of a statute, it is permissible to look at other parts of it. “The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.” Easom v. Farmers Insurance Company, 221 Kan. 415, Syl. ¶ 3, 560 P.2d 117 (1977).
In this case, subparagraph (e) sets forth the requirements applicable when a customer is referred to a title insurer by one having a financial interest in the title insurer—the financial interest must be disclosed. Then, the other major part of the amendment to the act, subparagraph (f), goes on to set forth prohibitions against some, but not all, transactions that would constitute “controlled business.”
These two parts are compatible if “controlled business” is defined as referred business by one who has a financial interest in the title insurer. Subparagraph (e) sets forth general requirements for such transactions. Subparagraph (f) sets forth specific limits. It is not surprising that the two major parts of a bill amending a statute would both refer to the same subject.
The testimony heard by House and Senate committees supports the conclusion that “controlled business” in subparagraph (f) is defined by subparagraph (e). Dick Brock, of the Insurance Department, testified to the House Committee on Insurance in favor of the bill. He testified that the Department had been studying complaints about persons offering or receiving special inducements, rebates, and other advantages in the sale or placement of title insurance that is not generally available to others similarly situated, causing increased costs to consumers. (Testimony by Dick Brock before the House Insurance Committee, March 2, 1989.) One of the proposals reached by the study group was to enact the prohibitions contained in subparagraphs (e), (f), and (g) limiting controlled business which, he said, generally meant “a situation where a person can direct or cause a prospective purchaser to be directed to a title insurance agent or company in which the person making the referral has a financial interest.”
Testimony against portions of the bill also supports the proposition that “controlled business” means referrals by one having a financial interest. These witnesses obviously realized the meaning of subparagraph (f). See, e.g., Testimony of Karen McClain France, Kansas Association of Realtors, before the House Insurance Committee, March 2, 1989, attachment 6, p. 2.
The minutes of the Senate Financial Institutions and Insurance Committee reveal express statements by legislators showing their concerns and what they hoped to accomplish with the bill. One senator said the problem with the controlled business situation is that it is “anti-competitive—the title companies try to steer customers to the title company they own and they have no incentive to look out for the consumer.” Minutes of the Senate Committee on Financial Institutions and Insurance, March 23, 1989.
Petitioners argue that constitutional requirements are not satisfied by looking at legislative history to overcome a vagueness argument. This statute does not apply to the average citizen. It applies to a heavily regulated industry that has specialized knowledge of the industry and its terms. Obviously, different states have defined “controlled business” differently, but with a common theme.
We also believe the vagueness argument cannot be completely separated from the separation of powers argument that is addressed later in this opinion. If the statute is not as clear and concise as one would like it to be, but gives sufficient guidance so as not to violate the separation of powers doctrine, then the regulation eliminates any question as to the meaning of a “controlled business.”
Although the amendments to section 40-2404b would have been clearer if an express definition of “controlled business” had been included, when read together, subparagraphs (e) and (f) of section 14 indicate a legislative intent to limit business which has been referred to the title insurer or title agent by a producer of title business who also has a financial interest in the title insurer or agency receiving the referral. Thus, the trial court erred in holding subparagraph (f) unconstitutionally vague.
2. Separation of Powers
Respondent argues that the trial court erred in holding that subparagraphs (f) and (g) violate the separation of powers doctrine because they lack sufficient standards to govern the rulemaking power of the insurance commissioner. Having determined sub-paragraph (f) not to be vague, and finding that it therefore provides sufficient guidance to the agency to carry out the directives of (g), this issue is moot. However, we believe a discussion of applicable law to be worthwhile because to some extent this issue cannot be divorced from the vagueness issue. We live in an increasingly complex society. To expect the legislature to have the time and expertise to deal with minute details statutorily is not realistic.
In the case of In re Sims, 54 Kan. 1, 11, 37 Pac. 135 (1894), this court said that in its judgment a strict application of the separation of powers doctrine is inappropriate today in a complex state government where administrative agencies exercise many types of power and where legislative, executive, and judicial powers are often blended together in the same administrative agency.
In the 97 years that have passed since In re Sims, this court has consistently stated that an absolute separation of powers is neither practical nor possible. State, ex rel. Schneider, v. Bennett, 219 Kan. 285, 288, 547 P.2d 786 (1976); see State, ex rel., Taylor v. Railway Co., 76 Kan. 467, 474, 92 Pac. 606 (1907), aff'd 216 U.S. 262, 54 L. Ed. 472, 30 S. Ct. 330 (1910).
What is required is that a statute express the law in general terms and delegate the power to apply it to an executive agency under standards provided by the legislature. Wesley Medical Center v. McCain, 226 Kan. 263, 270, 597 P.2d 1088 (1979). This has been the fundamental rule since early statehood. See Coleman v. Newby, 7 Kan. 82, 89 (1871).
Where flexibility in fashioning administrative regulations to carry out statutory purpose is desirable in light of complexities in the area sought to be regulated, the legislature may enact statutes in a broad outline and authorize the administrative agency to fill in the details. Nicholas v. Kahn, 62 App. Div. 2d 302, 306, 405 N.Y.S.2d 135 (1978), modified 47 N.Y.2d 24, 416 N.Y.S.2d 565, 389 N.E.2d 1086 (1979).
In testing a statute for adequacy of standards, the character of the administrative agency is important. See Warren v. Marion County, 222 Or. 307, 314-15, 353 P.2d 257 (1960). Here, we are dealing with the insurance commissioner, an expert in regulation of the insurance industry, with a large staff and paid consultants available. The insurance commissioner is charged with regulating a huge, complex industry, and to require explicit, definitive statutes would severely impede, if not make impossible, the regulation of the insurance industry. What is a sufficient standard must necessarily vary somewhat according to the complexity of the area sought to be regulated. See Senior Citizens League v. Department of Social Secur., 38 Wash. 2d 142, 161, 228 P.2d 478 (1951); Quesenberry v. Estep, 142 W. Va. 426, 95 S.E.2d 832 (1956).
Standards may be implied from the statutory purpose. People v. Wright, 30 Cal. 3d 705, 713, 180 Cal. Rptr. 196, 639 P.2d 267 (1982). Here, the statutory purpose is set forth in K.S.A. 40-2401, as follows:
“The purpose of this act is to regulate trade practices in the business of insurance ... by defining, or providing for the determination of, all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.”
Here, the legislative purpose for the statute is evident.
The modern trend, which we ascribe to, is to require less detailed standards and guidance to the administrative agencies in order to facilitate the administration of laws in areas of complex social and economic problems. See Kalbfell v. City of St. Louis, 357 Mo. 986, 993, 211 S.W.2d 911 (1948); Ward v. Scott, 11 N.J. 117, 93 A.2d 385 (1952); City of Utica v. Water Control Bd., 5 N.Y.2d 164, 182 N.Y.S.2d 584, 156 N.E.2d 301 (1959). See also Pierce, Shapiro & Verkuil, Administrative Law & Process, § 3.4.5 (1985).
We conclude that subparagraph (f) gives sufficient standards to govern the rulemaking power of the insurance commissioner; thus, the legislature did not violate the separation of powers doctrine.
3. Equal Protection
Subparagraph (f) exempts from its prohibition those “transactions involving real estate located in a county that has a population ... of 10,000 or less.” The trial court found that this classification was not rationally related to the purpose of the statute and, therefore, violated the equal protection clause of the Kansas Constitution.
The first step in an equal protection analysis is to determine what level of scrutiny applies. The classification in K.S.A. 1989 Supp. 40-2404b(14)(f) is based on geography and population— counties with populations of less than 10,000 are exempted from part (f). Here, because no “suspect classification” or “quasi-suspect” classification has been set forth and because no fundamental rights are at issue, the least strict level of scrutiny is appropriate. Under the least strict level of scrutiny, legislation is valid so long as it is reasonably (or rationally) related to a legitimate state interest. F. Arthur Stone & Sons v. Gibson, 230 Kan. 224, 227, 630 P.2d 1164 (1981). The United States Supreme Court has said:
“The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961).
See Brown v. Wichita State University, 219 Kan. 2, 13, 547 P.2d 1015 (1976).
When a statute is under judicial review, it is the constitutionality of the statute, not the wisdom of the legislature in enacting it, that is at issue. Caban v. Mohammad, 441 U.S. 380, 392 n.13, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979). The fact that the legislative response to a perceived societal evil is not a perfect response is not a sufficient reason to strike down a statute. See Dandridge v. Williams, 397 U.S. 471, 501, 25 L. Ed. 2d 491, 90 S. Ct. 1153, reh. denied 398 U.S. 914 (1970).
The purpose of the Unfair Trade Practices Act is to prevent unfair methods of competition and unfair or deceptive acts or practices in the business of insurance. K.S.A. 1989 Supp. 40-2404b. The purpose of (14)(e) and (f) is to stimulate competition by decreasing vertical integration between producers of title business and title insurers.
There are obvious reasons for the exception provided in part (f). In less populated counties, there is a limited market for title insurance and, generally, there will be only two title insurers and in the smaller counties only one. In order to survive in the less populated county, the title insurer is generally tied to another financial entity. This exception promotes the availability of title insurance in these counties. If one of the agents is removed from competition, there would generally be no competition in a county having a population of less than 10,000 people and, in those counties having only one title insurance agent, there would be no title insurance available. The very nature of the title insurance business is such that, generally, it is not economically feasible for an agent for a title insurance company to cross county lines. There is a rational basis for this classification.
As in all cases, one can argue that the drawn line is arbitrary. The legislature is not required to draw a perfect line and can always later refine the one it has drawn if circumstances warrant it.
Guardian argues that State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987), stands for the proposition that geographical classifications are, by nature, violative of equal protection. We disagree. In Smith, this court held that the state indigent criminal defense system violated equal protection. Under the system, attorneys from less populated areas were required to donate their services to a greater extent than attorneys living in the more populated areas. The holding in Smith, however, was that under the facts there at issue, there was no basis for that classification.
Here, there is a rational basis for the classification adopted by the legislature. Thus, the exception for less populated counties does not violate equal protection.
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The opinion of the court was delivered by
Abbott, J.:
This is an action on an unsecured promissory note.
The appellant, Joseph A. Maderak, executed a promissory note in favor of Indian Springs State Bank of Kansas City, Kansas, (the Bank) on October 19, 1983. The Bank became insolvent and was taken over by the FDIC. Eventually, the FDIC discounted the note and sold it to the appellee, Diversified Financial Planners, Inc. (Diversified).
Diversified filed suit on the note on January 10, 1990, alleging that payment was last made on the note on March 25, 1985. Maderak answered, but did not deny any of the allegations in Diversified’s petition. Maderak did set up four affirmative defenses in his answer. He claimed payment in full; that the claim is barred by the statute of limitations; usury (contending that because Diversified purchased the note at a discount, payment of interest on the full amount of the unpaid balance of the note would amount to usury); and unjust enrichment.
Maderak failed to comply with orders of the trial court and, as a result, the trial court struck all four of his affirmative defenses.
The case proceeded to trial, and the trial court entered judgment for Diversified for principal and interest due as of the date of trial in the amount of $14,390.01.
Maderak appeals, contending that the trial court erred in striking his defenses; that the statute of limitations bars Diversified’s cause of action; that the trial court erred in admitting hearsay evidence of business records; and that Diversified was not a holder in due course and, thus, is subject to any and all defenses of defendant.
1. Abuse of Discretion
Maderak concedes that rulings on motions to strike defenses rest in the sound discretion of the trial court. Bobo v. Mutual of Omaha Mutual Benefit Health & Accident Assn., 193 Kan. 465, 395 P.2d 317 (1964).
Maderak argues that the trial court abused its discretion and that his defenses do have merit. Maderak, however, ignores the fact that he failed to respond at trial. First, Maderak failed to file motions briefing how his defenses were relevant, as ordered by the trial court in its scheduling order. Then, Maderak failed to file a response to the motion to strike. Then, at the beginning of trial, when Diversified reminded the trial court that it had granted the motion to strike, Maderak failed to argue the court’s ruling was improper.
The trial court was acting well within its authority when it ordered Maderak to brief its defenses. K.S.A. 1990 Supp. 60-216 allows a court broad leeway in pretrial procedure in formulating the issues for trial. K.S.A. 1990 Supp. 60-216(b) provides that for failure to abide by a pretrial order, a court may order sanctions as set forth in K.S.A. 60-237(b)(2)(B), (C), or (D). Subsection (b)(2)(C) of section 60-237 allows a court to strike pleadings.
There are other reasons to uphold the trial court’s order. “A point not raised before or presented to the trial court cannot be raised for the first time on appeal.” Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987). Maderak did not argue the propriety of the court’s order at trial and he cannot do so for the first time on appeal.
2. Statute of Limitations
Maderak’s second issue is that the statute of limitations bars plaintiffs cause of action. This issue was stricken and Maderak did not deny in his answer that a payment was made on March 25, 1985, as alleged in Diversified’s petition. Thus, by failing to deny the last payment was made within five years and not affirmatively setting forth a statute of limitations defense, the páyment was admitted. K.S.A. 1990 Supp. 60-208(d).
The defense of the statute of limitations is an affirmative defense that must be pleaded and proved by one who asserts it. Washington Avenue Investments, Inc. v. City of Kansas City, 213 Kan. 269, 270, 515 P.2d 744 (1973). The failure to raise an affirmative defense at trial waives that defense on appeal. U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 354, 629 P.2d 196, rev. denied 230 Kan. 819 (1981).
3. Business Records
Maderak contends that the trial court erred in admitting business records concerning the note and payment. He bases this issue on a contention that the records are hearsay and not admissible under the business records exception because they were not prepared by Harlan Dietz, the only witness at trial, or someone under his supervision.
This issue is nearly irrelevant. The note was attached to the petition and Maderak failed to deny the allegations in Diversified’s petition.
K.S.A. 1990 Supp. 60-208(d) provides: “Averments in a pleading to which a responsive pleading is required or permitted, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.”
The only open issue then is the amount of damages. As this is not proven by the admissions to the pleadings, the amount of the original debt and the interest rate can be determined from the face of the note. At trial, Maderak objected to the introduction of all exhibits, including the note, as hearsay and argued that they did not fall under the business records exception.
We are of the opinion that Maderak’s complaints go to the weight of the evidence and that, under the circumstances, the trial court did not err in admitting the records as business records. Here, the records in question were made and kept by the Bank. When the Bank became insolvent, the FDIC sold the note in question to Diversified as part of a package of over 300 notes. The ledger sheets were delivered to Diversified with the notes. The Bank ceased to exist.
Harlan Dietz was an account manager for Diversified and was custodian of the records in question. Although he had never worked for the Bank or the FDIC, he had worked for a bank for 32 years prior to his current position. He testified he was familiar with bank records regarding loans and loan payments and how payments are credited to various loans. He testified he was familiar with the Maderak note and payment ledgers since their purchase from FDIC. He testified there was an unpaid balance of $7,400.88, plus interest of $6,989.13 due on the note and that the last payment on the note was made on March 25, 1985.
Maderak presented no evidence, but did offer to confess judgment for $3,000 (the sum Maderak alleges Diversified paid FDIC for the note) plus interest.
The Supreme Court of Maryland has held that the foundation necessary to establish that the records were made in the regular and normal course of business does not always require testimonial evidence. Morrow v. State, 190 Md. 559, 59 A.2d 325 (1948). In Thomas v. Owens, 28 Md. App. 442, 448, 346 A.2d 662 (1975), the Maryland Court of Appeals held: “At times a court may properly conclude from the circumstances and the nature of the document involved that the proffered document was made in the regular course of business.”
We have previously held that in considering admissibility of business records, it is the policy of K.S.A. 1990 Supp. 60-460(m) that the trial court determine whether the source of information, method, and time of preparation reflect trustworthiness. State v. Beasley, 205 Kan. 253, 257, 469 P.2d 453 (1970), cert. denied 401 U.S. 919 (1971).
Here, the trial court implicitly found the records were made in the regular course of the Bank’s business and were trustworthy. The determination of the presence of factors concerning admissibility is within the trial court’s discretion. Schraft v. Leis, 236 Kan. 28, 43, 686 P.2d 865 (1984). The admissibility of the records rested in the trial court’s sound discretion and, based on the record before us, we cannot say the court abused its discretion in admitting the ledger sheets showing the outstanding balance into evidence.
4. Holder in Due Course
We need not address this issue as plaintiff conceded in its brief and at oral argument that it did not rely on this theory for recovery.
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The opinion of the court was delivered by
Lockett, J.:
Thomas A. Berberich was convicted by a jury of: (1) possession of methamphetamine, K.S.A. 1988 Supp. 65-4127b(a)(2); (2) possession of drug paraphernalia, K.S.A. 65-4152; (3) possession of marijuana, K.S.A. 1988 Supp. 65-4127b(a)(3); and (4) possession of methamphetamine without affixing the official Kansas drug tax stamp, K.S.A. 79-5208. The trial court denied Berberich’s motion to dismiss the charge of possession of methamphetamine with intent to sell as an included offense of the violation of K.S.A. 79-5201 et seq., the Kansas Drug Tax Act. Subsequent to his conviction, Berberich filed a motion to set aside his conviction, claiming that the Kansas Drug Tax Act violates the due process clause of the Fourteenth Amendment to the United States Constitution on the grounds the act is an unconstitutional penalty and not a tax. The trial court found the Kansas Drug Tax Act did not violate the Fourteenth Amendment right to due process. Berberich also filed a motion asking that the trial court declare the penalties of the Kansas Drug Tax Act violate the separation of powers doctrine. This motion was also denied.
The relevant facts are as follows: When Officer Scott Holladay went to a house to execute a search warrant, he saw Berberich arrive at the house and carry a duffel bag to the door. Officer Holladay intercepted Berberich at the door of the house and searched him. Beside the doorway officers found a paper sack and a black duffel bag. Inside the duffel bag officers found Deering scales, which are commonly used to weigh drugs, with powder residue on the interior; a box that contained a bag with razor blades, a package of paper folds, and an empty package for an insulin syringe; a brass bowl which could screw into a pipe for smoking marijuana; a white cardboard box containing four plastic baggies of marijuana; and a pillbox with two separate compartments containing six grams of white powder and four and one-half grams of yellow-brown powder later proven to be methamphetamine. Neither of the prohibited substances had the required tax stamps.
At trial, Berberich admitted the drugs in the duffel bag were his. He stated he purchased and repackaged the drugs only for his own use due to job pressure and personal problems.
Prior to instructing the jury, the trial court denied Berberich’s motion to dismiss the charge of possession of methamphetamine with intent to sell as being an included offense of the charge of possession of methamphetamine without a drug tax. The trial court determined even though possession is a common element of both crimes, there are other elements in each offense which distinguish them. On appeal, Berberich claims that the possession of methamphetamine is an included crime of the failure to pay the Kansas drug tax and the Kansas tax is an unconstitutional criminal penalty disguised as a tax and therefore violates the due process clause of the Fourteenth Amendment. It should be noted that on appeal the defense and the State argue the issue of whether possession of methamphetamine is an included crime of failure to pay the Kansas drug tax. However, the defendant was charged with, the jury was instructed on, and the defendant was convicted of a violation of K.S.A. 79-5208, possession of methamphetamine without affixing a Kansas drug tax stamp. It is this crime which we will consider in our discussion, not any civil penalty which could be imposed in another proceeding for failure to pay taxes.
POSSESSION OF METHAMPHETAMINE AS AN INCLUDED CRIME OF POSSESSION OF METHAMPHETAMINE WITHOUT AFFIXING THE KANSAS DRUG TAX STAMP
The record reflects that Berberich’s motion to dismiss the charge of possession of methamphetamine with the intent to sell as being an included offense in the charge of possession without affixing a drug tax stamp was denied by the trial court.
Although Berberich was charged with possession of methamphetamine with intent to sell pursuant to K.S.A. 1988 Supp. 65-4127b(b)(2), the jury found Berberich guilty of the lesser offense of possession of methamphetamine. The instruction on Count One stated:
“If you cannot agree that the defendant is guilty of possession of methamphetamine with intent to sell, you should then consider the lesser included offense of possession of methamphetamine.
“To establish this charge each of the following claims must be proved:
“1. That the defendant possessed a stimulant drug known as methamphetamine;
“2. That the defendant did so intentionally;
“3. That this act was done on or about the twelfth day of October, 1988, in Shawnee County, Kansas.”
The instruction for Count Three read:
“The defendant is charged in Count 3 with the offense of possessing methamphetamine without having paid Kansas drug tax.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally possessed methamphetamine;
“2. That the methamphetamine weighed more than one gram;
“3. That the defendant intentionally did not affix an official drug tax stamp on methamphetamine in his possession;
“4. That this act occurred on or about the 12th day of October, 1988 in Shawnee County, Kansas.”
K.S.A. 21-3107(2) provides:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or
“(d) A crime necessarily proved if the crime charged were proved.” (Emphasis added.)
In determining whether a lesser crime is a lesser included offense under K.S.A. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 21-3107(2)(d) if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime. State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988).
Berberich asserts that under either test set out in Fike, the illegal possession offense is a lesser included offense of the drug tax act violation; therefore, he cannot be convicted of both crimes. Berberich claims the first prong of Fike, the elements test, reveals that illegal possession is an included crime of the drug tax act violation as each offense requires proof that he intentionally possessed methamphetamine. Berberich claims the second prong of Fike, the evidence test, would require the State to prove possession of the same methamphetamine for him to be convicted of either offense. We disagree with Berberich’s analysis of K.S.A. 21-3107(2)(d).
Prior to the adoption of the Kansas Criminal Code in 1969, Kansas followed the traditional common-law rule on instructing the jury on lesser included offenses, i.e., the elements test. G.S. 1868, ch. 82, § 121 provided that upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto or of an attempt to commit the offense. G.S. 1868, ch. 82, § 122 stated that upon the trial of an indictment for a felony the defendant may be found guilty of any other felony or misdemeanor necessarily included in that with which he is charged in the indictment or information. When the Kansas Criminal Code was adopted, K.S.A. 21-3107(2)(a), (b), and (c) replaced the 1868 codification of the common law.
Regarding the lesser included offense, 3 Wright, Federal Practice and Procedure: Criminal 2d § 515 (1982) states:
“This doctrine developed at common law to aid the prosecution in cases where the proof failed to show some element of the crime charged. It can be beneficial to the defendant, however, since the jury may temper justice with mercy by acquitting defendant of the offense charged and finding him guilty of the lesser offense. If the evidence is such that the jury could rationally find defendant guilty of the lesser offense but not of the greater, an instruction on the lesser offense must be given.
“One offense is necessarily included in another if it is impossible to commit the greater without also having committed the lesser. Thus murder includes such lesser offenses as second-degree murder, manslaughter, and negligent homicide. Robbery necessarily includes larceny, and assault with intent to rob. Rape necessarily includes assault with intent to rape. Assault with a dangerous weapon includes simple assault. Theft of property in excess of $100 includes the lesser wrong of theft of property of value not exceeding $100. In each of these instances some of the elements of the greater crime charged are in themselves enough to constitute the lesser crime.
“The rule also provides in terms that the jury may find the defendant guilty of an attempt to commit the offense charged—or an offense necessarily included therein—if an attempt is an offense. Although this is spelled out in the rule, in principle it seems indistinguishable from the general case of an offense necessarily included.
“The lesser offense doctrine does not apply if the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses, and the lesser offense is, therefore, completely encompassed by the greater. It is thought that to hold otherwise would invite the jury to pick between the two offenses in order to determine the punishment to be imposed, a duty traditionally left to the judge.
“The doctrine also does not apply if some element is required for the lesser offense but not for the greater. In this situation two different crimes are involved, and the lesser is not necessarily included in the greater, since it would be possible to commit the greater without also having committed the lesser.
“Conviction of a lesser-included offense is an implied acquittal of the greater offense. If the defendant has the conviction vacated on appeal, he cannot thereafter be tried for the greater offense.”
Berberich cites State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987), for authority that possession of methamphetamine is an included offense of the drug tax act violation and that a conviction of a drug tax count bars a conviction of possession of methamphetamine. In State v. Adams we noted that by proving the charge of involuntary manslaughter, the State necessarily had to prove the charge of driving under the influence; therefore, the conviction for the underlying misdemeanor, driving under the influence, had to be set aside. K.S.A. 21-3107(2)(d) incorporates the common-law doctrine of merger, which doctrine was involved in Adams.
“Where commission of one crime necessarily involves commission of a second, the offense so involved is said to be merged in the offense of which it is a part. However, when one of the two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both, though both are, in a sense, successive steps in the same transaction. Thus, the doctrine of merger does not apply where the offenses are separate and distinct, but only where the identical criminal act constitutes both offenses. The merger doctrine had its origin in the fact that, at the early common law; persons charged with misdemeanor were entitled to certain privileges not available to persons charged with felony. Since this situation no longer obtains and the distinction, if any, runs in the opposite direction, the original reason for the rule has disappeared and thus the conventional merger doctrine has become disfavored and either confined within narrow limits or abolished altogether.” 21 Am. Jur. 2d, Criminal Law § 21. When the underlying crime merges with the offense charged, the trial judge does not instruct the jury that the accused can be convicted of the underlying crime.
When the legislature enacted the Kansas Code of Criminal Procedure in 1969, it modified and enlarged the common law duty to instruct on lesser included offenses (the elements test) by adding subsection (d) to K.S.A. 21-3107(2). In addition to the common-law elements test, judges are now required to also instruct the jury on lesser included offenses when there is evidence submitted to the jury of a crime necessarily proved if the crime charged were proved. Therefore, all cases interpreting K.S.A. 21-3107 decided prior to 1969 are not applicable to the second test of K.S.A. 21-3107(2)(d).
Berberich asks this court to overrule the Court of Appeals’ holding in State v. Matson, 14 Kan. App. 2d 632, Syl. ¶ 1.
In Matson, the defendant argued that the charge of possession of methamphetamine with the intent to sell was necessarily proved when he was convicted of the charge of conspiracy to sell methamphetamine; therefore, his conviction on the possession charge must be vacated as being an included crime. The Court of Appeals found that cases considering the applicability of K.S.A. 21-3107(2) have consistently interpreted it to prohibit prosecution for “lesser included crimes” and found State v. Fike, 243 Kan. at 367, holds that the “ ‘included crime’ to which the proscription of the statute applies is a lesser crime or offense, i.e., ‘a crime’ which carries a lesser penalty than the penalty for the crime charged. ” 14 Kan. App. 2d at 634. The Court of Appeals reasoned that since possession of methamphetamine was a class C felony and conspiracy was a class E felony, and the possession charge was not a lesser included crime, the defendant could be convicted of both offenses. 14 Kan. App. 2d at 634.
Berberich asserts that the Court of Appeals’ decision in Matson eliminated included offenses under 21-3107(2)(d) and violates the legislative intent prohibiting more than one conviction based upon a single act. We disagree with Berberich’s statement. He misreads the Court of Appeals’ opinion, which merely defined “lesser included crime” and did not limit the scope of K.S.A. 21-3107(2)(d). K.S.A. 21-3107(2) does not require an included offense to be a lesser degree of the same crime having a lesser penalty. In State v. Anthony, 242 Kan. 493, 497, 749 P.2d 37 (1988), we determined that possession of cocaine is an included offense of possession of cocaine with intent to sell. At the time Anthony was decided, both offenses had the same penalty.
“The general rule is that a conspiracy to commit a crime is an offense separate and distinct from the crime that is the object of the conspiracy, and the legal consequences of a conspiracy to commit a crime are separate and distinct from the commission of the crime itself. Because the conspiracy is the crime and not its execution, it is punishable both where it fails in its object and where the intended crime is accomplished.” 16 Am. Jur. 2d, Conspiracy § 5. In Matson, the Court of Appeals followed the general rule that conspiracy is a separate crime from the object of the conspiracy.
K.S.A. 21-3107(3) does not always require the trial court to give a full range of lesser included offense instructions when two or more separate offenses are committed during the same transaction. The merger doctrine previously discussed is one example. Another example is felony murder, K.S.A. 1990 Supp. 21-3401. When a death occurs during the commission of a felony, the felonious conduct is tantamount to the elements of deliberation and premeditation required for first-degree murder. State v. Rider, Edens & Lemons, 229 Kan. 394, 625 P.2d 425 (1981). The crime of first-degree murder resulting from the perpetration of a separate and distinct felony which is inherently dangerous to human life is a separate and distinct statutory crime from that constituting the underlying felony and a prosecution for both crimes does not violate the prohibition against double jeopardy as proscribed by the Fifth Amendment to the United States Constitution. State v. Crump, 232 Kan. 265, Syl. ¶ 4, 654 P.2d 922 (1982).
A third example is burglary, K.S.A. 1990 Supp. 21-3715. Rurglary is knowingly and without authority entering into or remaining within a type of structure described in the statute with the intent to commit a felony or theft therein. An individual must have the intent to commit the underlying felony or theft to be convicted of the burglary. There is no constitutional prohibition to a conviction of both the burglary and the underlying felony or theft,
The same is true for the crime of possession of a controlled substance without affixing the tax stamp and the offense of possession of marijuana or a controlled substance. The Kansas Drug Tax Act provides “a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or other indicia is guilty of a crime and, upon conviction, may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000 or both.” K.S.A. 79-5208. A violation of K.S.A. 79-5208 for possession of a controlled substance without affixing the appropriate stamps showing payment of the tax is a separate and distinct offense from possession of marijuana or a controlled substance and one is not an included offense of the other.
CONSTITUTIONALITY OF KANSAS DRUG TAX ACT
Subsequent to the district court determination that the Kansas Drug Tax Act did not violate the defendant’s Fourteenth Amendment right to due process, the Court of Appeals in State v. Matson, 14 Kan. App. 2d 632, 798 P.2d 488 (1990), determined K.S.A. 79-5201 et seq., which imposes a tax on marijuana and controlled substances, does not violate the due process provisions of the Fourteenth Amendment and is constitutionally valid. Berberich requests we overrule Matson, arguing the Kansas Drug Tax is in reality a criminal penalty and as such is an unconstitutional denial of due process under the Fourteenth Amendment.
K.S.A. 79-5201 et seq. was passed by the legislature in 1987 and became effective July 1 the same year. The relevant provisions of the act are summarized: K.S.A. 1990 Supp. 79-5201 defines marijuana and controlled substances by reference to the appropriate subsections of K.S.A. 65-4101. A dealer is defined by reference to minimum amounts of drugs involved and the manufacture, production, shipping, transportation, importation, acquisition, or possession when done in violation of Kansas law. K.S.A. 79-5210 exempts from taxation doctors, hospitals, pharmacists, and others legally possessing the specified substances. K.S.A. 1990 Supp. 79-5202 provides for the imposition of the tax and sets the rate for taxation. K.S.A. 79-5203 provides for the administration of the tax by the director of taxation and requires certain forms to be completed and filed at the time of payment of the tax.
K.S.A. 1990 Supp. 79-5204 prohibits a dealer from possessing the marijuana or controlled substance unless the tax has been paid. It provides for the issuance of the tax stamps, labels; or other official indicia evidencing payment of the tax and directs the usage of the tax stamps, labels, or indicia. Subsection (b) of 79-5204 states: “Any person may purchase any such stamp, label or other indicia without disclosing such person’s identity.” K.S.A. 1990 Supp. 79-5205 sets forth the procedures for assessing the tax by jeopardy assessment and authorizes collection of the tax in any manner provided in article 32 of chapter 79 of the Kansas Statutes Annotated. The director of taxation is to assess a tax based on personal knowledge or information; inform the taxpayer of the amount of tax, penalties, and interest; demand immediate payment of that amount; and, if payment is not immediately made, collect the tax, penalties, and interest as provided in article 32 of chapter 79 of the Kansas Statutes Annotated. Within 15 days from the date of mailing of the notice, the taxpayer may submit a written request for a hearing. The burden is upon the taxpayer to show the incorrectness or invalidity of the assessment, which is presumed to be valid. K.S.A. 1990 Supp. 79-5205.
K.S.A. 79-5208 sets out both the civil and criminal liabilities and penalties. A civil penalty of 100% of the original tax can be imposed on a delinquent taxpayer. If a dealer is convicted of a criminal offense for distributing or possessing a prohibited substance without affixing a tax stamp, a penalty of imprisonment for not more than five years or payment of a fine of not more than $10,000, or both, can be imposed. K.S.A. 79-5208. A person charged with possession without affixing the tax stamp is provided the protection of a criminal trial.
Berberich asserts the legislature when enacting the law recognized that dealers were unlikely to pay the tax, little revenue would be raised thereby, and the primary purpose of the tax would be to further punish drug dealers. Berberich argues although the legislative history indicates revenue collection is a motive for the act, the real intent is to make the tax a punishment.
“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.’ ” State v. Durrant, 244 Kan. 522, 526, 769 P.2d 1174, cert. denied _ U.S --, 106 L. Ed. 2d 600 (1989) (quoting Federal Land Bank of Wichita v. Bott, 240 Kan. 624, Syl. ¶ 1, 732 P.2d 710 [1987], The burden of proof is on the party challenging the constitutionality of the statute. Durrant, 244 Kan. at 526.
In State v. Durrant, we found that K.S.A. 79-5201 et seq. does not violate the Fifth Amendment prohibition against self-incrim ination and is not unconstitutional on such grounds. Although this is a tax on an illegal activity, Justice Holmes, speaking for the Durrant court, stated:
“While some have questioned the propriety of a government entity imposing a tax upon an illegal act, the United States Supreme Court has held that a tax may be imposed on an activity that is wholly or partially unlawful under state or federal statute. [Citation omitted.] In doing so, however, the government may not violate constitutional restrictions . . . .” 244 Kan. at 528.
The Court of Appeals in Matson, after reviewing our decision in Durrant, stated:
“[T]he United States Supreme Court has considered in a number of different circumstances whether a tax is, in fact, a penalty. In Lipke v. Lederer, 259 U.S. 557, 66 L. Ed. 2d 1061, 42 S. Ct. 549 (1922), the court considered a federal prohibition era statute which made the manufacture and sale of liquor illegal and imposed a tax on the “ ‘illegal manufacture [and] sale’ ” of liquor. The court stated:
‘The mere use of the word “tax” in an act primarily designed to define and suppress crime is not enough to show that within the true intendment of the term a tax was laid. [Citation omitted.] When by its very nature the imposition is a penalty, it must be so regarded. [Citation omitted.] Evidence of crime ... is essential to assessment . . . [of the tax]. It lacks all the ordinary characteristics of a tax, whose primary function “is to provide for the support of the government” and clearly involves the idea of punishment for infraction of the law—the definite function of a penalty.’ Lipke, 259 U.S. at 561-62.
“In more recent decisions, however, the Court has backed away from this strong position against such taxes. In United States v. Sanchez, 340 U.S. 42, 95 L. Ed. 2d 47, 71 S. Ct. 108 (1950), the Court upheld a federal tax on marijuana. The statute levied a tax on ‘every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, prescribes, administers, or gives away marijuana.’ 340 U.S. at 43. Additional penalties were provided for failure to pay the tax.
“The Court held that in enacting the statute, Congress had two objectives, namely, to raise revenue and at the same time to make it extremely difficult for persons to obtain the drug for illegal purposes. It said:
‘It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. [Citation omitted.] The principle applies even though the revenue obtained is obviously negligible [citation omitted].
‘The tax levied ... is not conditioned upon the commission of a crime. The tax is on the transfer of marijuana, to a person who has not paid the special tax and registered. Such a transfer is not made an unlawful act under the statute.’ Sanchez, 340 U.S. at 44-45.
“The Supreme Court has essentially followed the same reasoning in subsequent cases in which the question has been considered. In two separate cases, it upheld the constitutionality of a federal statute, 26 U.S.C. § 3285 (1952) (now 26 U.S.C. § 4401 [1988]), which taxed gambling earnings. In both cases, it was argued that, because gambling was illegal, the tax was merely a penalty. The Court stated:
‘It is conceded that a federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained is negligible. Appellee, however, argues that the sole purpose of the statute is to penalize only illegal gambling in the states through the guise of a tax measure. As with the above excise taxes which we have held to be valid, the instant tax has a regulatory effect. But regardless of its regulatory effect, the wagering tax produces revenue. As such it surpasses both the narcotics and firearms taxes which we have found valid.’ United States v. Kahriger, 345 U.S. 22, 28, 97 L. Ed. 754, 73 S. Ct. 510, reh. denied 345 U.S. 931 (1953).
See Lewis v. United States, 348 U.S. 419, 99 L. Ed. 475, 75 S. Ct. 415, reh. denied 349 U.S. 917 (1955).
“Again, in Pittsburgh v. Alco Parking Corp., 417 U.S. 369, 41 L. Ed. 2d 132, 94 S. Ct. 2291 (1974), the court held, that a 20 percent tax on privately operated parking lots is not a penalty even though it was designed to discourage operation of such lots.
“Although the tax on marijuana considered by the Court in Sanchez was later repealed after it was found to be violative of the prohibition on self-incrimination (Leary v. United States, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 [1969]), the reasoning of the Court in Sanchez is persuasive here.
“Although the minutes of the Kansas House and Senate Committees show that the primary purpose of the act was to combat drug usage, raising revenue was a motive that was definitely considered. The committee minutes reflect the following statement by Rep. Robert Miller: ‘The taxes would provide a way to tax part of the flourishing underground economy that is normally operating on a tax-free basis.’ Hearings on HB-2140 before the House Taxation Committee, 1987 Session. Other testimony before the committee reflects similar goals, including suggestions that the revenue collected be used not only to combat illegal drug usage but also for a program for the prevention, education, and rehabilitation of those adversely affected by the drug trade.
“Because revenue collection is one of the objectives of the statute and because imposition of the tax does not expressly depend on the illegal nature of the sale or possession of marijuana, we hold that the statute is constitutionally valid under the United States Constitution.
“Defendant also argues that the drug tax violates Article 11, § 5 of the Kansas Constitution, which provides: ‘No tax shall be levied except in pur suance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.’ However, Article 11, § 5 applies only to property taxes and not to excise taxes or licenses. Farmers Union C.C.E. v. Director of Revenue, 163 Kan. 266, 268, 181 P.2d 541 (1947). The drug tax does not violate this section of the Kansas Constitution.” 14 Kan. App. 2d at 638-40.
In United States v. Sanchez, 340 U.S. 42, 95 L. Ed. 47, 71 S. Ct. 108 (1950), the United States Supreme Court held that the tax imposed by § 2590(a)(2) of the Internal Revenue Code (now repealed) of $100 per ounce on all transfers of marijuana to any person who has not paid the special tax and registered under §§ 2590 and 2591 of the Code was not invalid, despite the regulatory effect and the close resemblance to a penalty, merely because Congress, in enacting the tax statute, had the objective, in addition to raising revenue, to render extremely difficult the acquisition of the drug by persons who so desire for illicit uses and to develop adequate means of publicizing dealing in the drug in order to tax and control the traffic effectively. The civil character of the tax thus imposed is not altered by its severity in relation to the tax assessed. A tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activity taxed, even though the revenue obtained is obviously negligible or the revenue purpose of the tax is secondary. Even though the transferor becomes liable for a tax imposed upon the transfer of marijuana if the transferee fails to pay, the tax is a civil rather than a criminal sanction where the transfer is not made unlawful by the taxing statute, particularly where it provides a civil procedure for collection, thus indicating an intention of Congress that the tax be treated as such, and the Government seeks to collect the levy by a judicial proceeding with its attendant safeguards.
We note that other states have found similar drug tax statutes constitutional. The Minnesota Supreme Court found its drug tax statute did not violate the right against self-incrimination or procedural and substantive due process rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. Sisson v. Triplett, 428 N.W.2d 565 (Minn. 1988). The Minnesota Supreme Court found due process was provided under the act despite the fact that seizure of property could occur before á hearing where an opportunity for the ultimate judicial determination of liability is provided. The Minnesota Supreme Court based its decision on Commissioner v. Shapiro, 424 U.S. 614, 47 L. Ed. 2d 278, 96 S. Ct. 1062 (1976), finding the safeguards necessary for due process notice and hearing were provided and that mere postponement of the hearing until after the seizure was not a denial of due process if there is an adequate opportunity ultimately for judicial determination. It noted that the act makes clear the standards for determining who is a dealer and what controlled substance is subject to tax, and thus does not violate state or federal guarantees of substantive due process, even though the act allows assessment of tax based on the Commissioner of Internal Revenue’s personal knowledge or information.
In Harris v. State, Dept. of Revenue, 563 So. 2d 97 (Fla. Dist. App. 1990), the Florida Court of Appeals upheld the constitutionality of Fla. Stat. § 212.0505 (1987), which provided for a drug tax similar to that of Kansas. Like Berberich, Harris contended that the Florida statute was unconstitutional because it imposed an improper penalty or fine and not a tax. The Florida Court of Appeals reviewed United States v. Sanchez, 340 U.S. 42, found Sanchez controlling, and upheld the constitutionality of the act.
Berberich relies on a South Dakota Supreme Court decision, State v. Roberts, 384 N.W.2d 688 (S.D. 1986), which found the State’s statutory luxury tax on controlled substances violated the Fifth Amendment. Unlike the Kansas statute where the tax information cannot be released to law enforcement officials, the South Dakota statute allowed tax information acquired by the Secretary of Revenue to be released to law enforcement officials. The South Dakota court found that such a release of information creates a real and appreciable risk of self-incrimination prohibited by Leary v. United States, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969). Since Roberts was decided exclusively on Fifth Amendment privileges against self-incrimination grounds and is not similar to our statute, this decision is not applicable.
The Utah Court of Appeals in State v. Davis, 787 P.2d 517 (Utah App. 1990), cited this court’s decision in State v. Durrant, 244 Kan. 522, and found that the Utah drug stamp act was broad enough to provide the protections required by the Fifth Amend ment and upheld the constitutionality of that statute. The Davis court also found the defendant did not have standing to make a constitutional vagueness challenge under the due process clause of the federal and Utah constitutions since he did not pay the tax and receive the stamps. The Davis court said that even if the defendant had standing to assert the vagueness of the statute, his claim had no merit as the law imposes criminal sanctions for the failure to affix stamps to the controlled substances. The act placed those who deal in controlled substances on notice that their failure to place stamps on the controlled substance will result in prosecution.
The Kansas Drug Tax Act, K.S.A. 79-5201 et seq., which imposes a tax on marijuana and controlled substances, does not violate due process provisions of the Fourteenth Amendment and is constitutionally valid.
Affirmed.
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The opinion of the court was delivered by
Six, J.:
Defendant Shari Lyn Bierman was convicted of theft over $500 (K.S.A. 21-3701) and first-degree murder (K.S.A. 1989 Supp. 21-3401) in the killing of her 17-year-old sister, Syndi.
The issues for resolution relate to: (1) Bierman’s motion for change of venue; (2) her right to a speedy trial under K.S.A. 22-3402(1); and (3) the sufficiency of the evidence to sustain a conviction for premeditated first-degree murder.
We find no error and affirm.
Facts
On Sunday, February 19, 1989, at approximately 3:11 a.m., a Wyandotte County Sheriffs dispatcher received a phone call from Shari Bierman. Bierman stated that her house had been broken into. She believed someone might still be inside. She was advised to go next door and call back. Officers were dispatched to the residence. Approximately 30 seconds after her first call, Bierman called back stating that her sister was on the floor and there was blood all over. The second call also was placed from the Bierman home.
The first officers arrived at the Bierman home at approximately 3:20 a.m. As the officers approached, Bierman opened the front door, grabbed one of them, and pulled him toward an inside stairway. She was hysterical. She told the officers that someone had killed her sister and that the suspects might still be in the house. The body of Bierman’s sister, Syndi, was found in Syndi’s upstairs bedroom. No one else was in the house. Portions of the house had been ransacked and several items were missing.
Bierman, who was recently divorced, lived with her two sons, ages one and three, in the finished basement of her parents’ home. Her parents and Syndi, her only sibling, lived in the upstairs.
Bierman told the police officers that she left home at 11:00 p.m., returned at 3:00 a.m., and discovered the burglary and her sister. She stated that Syndi and two of Syndi’s friends, Renea and Lisa, were at the residence when she left. She said no one else was at the house that evening. Bierman was not a suspect at this time.
Bierman became a suspect after the police questioned Renea and Lisa.
Renea and Lisa told police that someone named A.J. (Archie Owens, Jr.) was home with Bierman. They also stated that Syndi was scared of Bierman.
Matt, Syndi’s boyfriend, testified that on the Thursday before her death, Syndi told him that Bierman had threatened her. Syndi was scared and did not want to go home. Matt talked to Leonard Bierman, Shari and Syndi’s father, the morning after Syndi was killed. Matt testified the father said, “I bet my last dollar she [Shari] did it.” Mr. Bierman did not remember making the statement, but did not deny it.
Shari Bierman was taken to the police station for questioning. Initially, she repeated her statement that she left at 11:00 p.m., returned at 3:00 a.m., and no one else was with her at the house. When confronted with the fact that other people knew she had someone at home that evening, Bierman said that Brian (apparently an acquaintance) was there. She then admitted that Joseph Hernandez and Archie Owens were at the house with her and that they all left at 11:00 p.m. She said Hernandez and Owens would not do anything like stealing property or killing her sister. The stolen property was later found at Owens’ apartment.
On February 21, 1989, Hernandez and Owens were charged in Wyandotte County District Court with first-degree murder and theft over $500. Bierman was charged with theft over $500 and with aiding a felon. On February 23, 1989, a second amended information also charged Bierman with first-degree murder.
Hernandez pled guilty to first-degree murder. In a plea agreement, he agreed to testify against Bierman and Owens.
The trial of Bierman and Owens commenced on June 26, 1989.
Hernandez’ Story
Hernandez testified that he had known Bierman about a year. He had seen her one to three times a month. They were not dating. He saw her for sexual relations. On February 18, 1989, Hernandez was living with Owens and Owens’ girlfriend, Tambi Lewis. On that day, he phoned Bierman between 5:00 p.m. and 5:30 p.m. They agreed to see each other. Owens was driving Hernandez to Bierman’s residence in Lewis’ car. They stopped and called Bierman, who did not object to Owens coming along.
They arrived at Bierman’s house at approximately 6:30 p.m. After 20 to 25 minutes, Owens, Hernandez, Bierman, and Bier-man’s two children drove to a babysitter and left the children.
After driving around for a while, the three returned to the Bierman residence, parked in the garage, and then entered the basement apartment. Syndi’s car and two others were at the house. Bierman used the phone as an intercom and talked to Syndi upstairs to see who was there. Bierman did not want Syndi to know “she had two guys downstairs.”
According to Hernandez, they then had three-way bondage sex. Afterward, Hernandez and Owens suggested that they “steal” things from Bierman’s parents’ house. Bierman said she did not care. Hernandez admitted that he and Owens had talked earlier about stealing from the Biermans’ house.
Shortly before midnight, Owens, Hernandez, and Bierman left the Bierman home. Owens drove Lewis’ car back to his apartment. Bierman and Hernandez used Bierman’s car to pick up her children. They took the children to Owens’ apartment. Bier-man left the children with Lewis and Tina Reilly, a 15-year-old runaway, while Hernandez, Owens, and Bierman proceeded back to the Bierman home.
Hernandez testified that Bierman directed them to a construction site to pick up two-by-fours “in case they had to knock someone out.”
Bierman said that only her sister would be home and that if they were quiet they would not wake her up; they could just take the things and leave. Upon arriving, Hernandez tried to go downstairs while Owens and Bierman went upstairs. The basement door was locked so Hernandez followed Owens and Bierman upstairs. Hernandez and Owens each carried a two-by-four.
Bierman “stomped” on the way up the stairs to make noise. They were outside Syndi’s bedroom. The bedroom door was open. Syndi began to wake up and asked who was there. Hernandez hit Syndi three or four times with a two-by-four. Owens hit her two or three times with a two-by-four. Owens’ two-by-four had nails it it. Syndi rolled off the bed and began screaming. Hernandez pushed a pillow over her face. Owens hit her on the head. Hernandez moved downstairs and gathered up things to take from the home.
Hernandez heard Owens tell Bierman “to get her.” Bierman said, “You fucking bitch.” Then he heard a thump. Owens told Bierman to get some knives. Bierman left and returned to the bedroom from downstairs with two knives. Hernandez denied cutting or stabbing Syndi or being present while anyone cut or stabbed her.
Four kitchen-type butcher knives were introduced as exhibits by the State. Blood was on the knife found on the floor in Syndi’s bedroom, and on the knife found under the dining room table. The blood could have been Syndi’s or Bierman’s; analysis excluded Owens’ blood as well as that of Hernandez.
Hernandez testified that he kicked open the locked basement door and unplugged the computer and printer. Bierman was still upstairs. Hernandez, Owens, and Bierman took a computer, printer, VCR, camera, two watches, tapes, a mirror, and $60. Hernandez identified the stolen property recovered from Owens’ apartment. All three helped load the car. They took the two-by-fours with them.
Bierman, Owens, and Hernandez moved the stolen property and the two-by-fours into Owens’ apartment. Lewis, Reilly, and Bierman’s children were there. Hernandez went to a downstairs apartment and asked Tina Buck and “some other girl” how to get blood off of his shoes. Bierman told him to shut up and come upstairs. Hernandez told her to go home and call the police. Bierman left with her children. He stated that he never threatened Bierman. The last thing Bierman said to Hernandez was, “I’ll talk to you later.”
The Stories of Reilly, Lewis, and Buck
Reilly testified that Hernandez told her that he, Owens, and Bierman had beaten Syndi and that he had slit her throat because Syndi was yelling.
Lewis pled guilty to aiding a felon. Lewis testified that she was at Owens’ apartment the night of February 18 and the morning of February 19, 1989. Owens, Hernandez, and Bierman dropped off Bierman’s children. They said they were going to burglarize Bierman’s parents’ house. Bierman did not object. When they came back, Bierman helped carry the stolen property into the apartment. Lewis said Owens told her that all three had beaten Syndi up. Owens said in front of Bierman, “Well, Shari don’t care about her little sister anyway.” Bierman replied, “I hate that little bitch.”
Tina Buck testified that Hernandez came to the apartment below Owens’ late that night or early the next morning. Hernandez told her that he had killed a 17-year-old girl. He said that he had slit her throat and that Owens had stabbed her. In front of Buck, Hernandez asked Bierman how to get blood out of leather. Bierman told him to shut up.
Bierman’s Story
Bierman testified that Hernandez and Owens came to her house on Saturday, February 18, 1989, at 7:00 p.m. The three took her children to a babysitter. Owens, Hernandez, and Bierman ultimately returned to her house. They went directly to Bierman’s basement bedroom. Syndi, Lisa, and Renea were upstairs. Bier- man stated that she, Owens, and Hernandez left around 11:30 p.m. Owens drove Lewis’ car to his apartment. Bierman and Hernandez picked up her children in Bierman’s car. After picking up the children, Hernandez and Bierman took them to Owens’ apartment. Owens was already there.
Bierman left her children at Owens’ apartment with Lewis. Owens, Hernandez, and Bierman returned to Bierman’s house. They went downstairs to her bedroom. Owens left the room; Bierman and Hernandez had sex. Bierman denied having three-way bondage sex. (However, Owens’ chain-belt was found in her bedroom.) After Hernandez and Bierman dressed, they went upstairs at Hernandez’ suggestion. Bierman had not seen Owens since he left the bedroom. Hernandez commenced throwing things off the TV. Bierman asked, “What are you doing?” Hernandez told her to shut up. She ran downstairs, locked the push button lock on the doorknob, and fastened the door chain.
Bierman testified that she heard things hitting the floor. She stated that she did not know if Syndi was home. The basement door was kicked in five to ten minutes later. Bierman did not use the phone in her bedroom to call the police. Hernandez said, “Lets go—Do what I say or I’m going to do it to you.” Bierman was scared. Hernandez put the computer in the car. Other items from the Bierman home were already in the car.
Bierman then drove back to Owens’ apartment because, as she stated, “I had to go get my babies.” She picked up her children. Bierman denied helping unload the stolen property. Hernandez told her to call the police, report a burglary, and not tell who did it.
Bierman left Owens’ apartment at approximately 2:00 or 2:30 a.m. She drove around trying to calm down before going home. Bierman used the kitchen phone to call 911 to report a burglary. At that time she was not aware that anything other than a burglary had taken place. She went upstairs to her parents’ bedroom and then to her sister’s bedroom. She saw her sister. Blood was everywhere. Bierman called the police from her parents’ bedroom. She denied any knowledge of the two-by-fours before seeing them in court.
The Coroner’s and the Pathologist’s Testimony
Dr. Alan Hancock, the Wyandotte County Coroner, went to the Bierman residence shortly after Syndi’s body was discovered. He testified at trial that there were wounds on Syndi’s hands and arms which appeared to be defensive, and that her throat was cut after she had been beaten and when she was in “deep profound shock.” Dr. Hancock concluded that the entire episode took several minutes to occur.
Dr. Philip vanThullenar, the pathologist who conducted the autopsy, testified that there were many wounds on Syndi’s head and neck, her cheekbone was fractured, and the bone above her eye was fractured and displaced. vanThullenar identified a faint oval bruise on Syndi’s right forehead. The bruise had a number of evenly spaced crossmarks. It was typical of a shoe mark. vanThullenar stated that the bruise was probably from the sole of a woman’s shoe. There were seven superficial wounds on the left side of Syndi’s neck. A wound on the right side of her neck cut the carotid artery and the jugular vein. Stab wounds were identified on each side of Syndi’s abdomen. vanThullenar determined from the amount of blood in the tissues that the head wounds were inflicted first, then the neck wounds, followed by the wounds to the abdomen. The cause of death was loss of blood.
Bierman’s Motion for Change of Venue
Bierman filed a motion for change of venue in April 1989. Owens also had filed a similar motion. The motions were heard together. Owens introduced two affidavits and numerous newspaper articles. Bierman introduced 63 newspaper articles. Her counsel read from a letter to the editor published in a local newspaper, the Kansas City Kansan. The letter concluded, “I hope the woman [Bierman] pays for her heinous crime.”
The motions were denied. The district court relied upon State v. Salem, 230 Kan. 341, 343-44, 634 P.2d 1109 (1981).
The district court found Bierman and Owens had not presented sufficient evidence to meet the Salem standards. The district court observed: “If, during the jury selection of the case at bar, it becomes evident that it will be inordinately difficult or practically impossible to select an impartial jury, then the issue of venue should be reconsidered.”
Bierman advances the conclusory argument that the trial court committed reversible error in denying her motion for change of venue. She repeats the argument made to the trial court—the extensive media coverage prevented Bierman from receiving a fair trial.
The State contends Bierman failed to show sufficient prejudice and failed to raise the issue at the time of jury selection. The State’s contention has merit.
K.S.A. 22-2616(1) states:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
In State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977), we listed the rules regarding change of venue: (1) the burden to establish prejudice is on defendant, (2) not only prejudice must be shown but the prejudice must be such as to make it reasonably certain the defendant cannot receive a fair trial, (3) speculation as to possible prejudice is not sufficient, (4) the State is not required to produce evidence to refute affidavits obtained by defendant, (5) the granting of a change of venue lies within the sound discretion of the trial court, and (6) the trial court’s ruling thereon will not be disturbed absent a showing of prejudice to the substantial rights of the defendant.
In State v. Myrick & Nelms, 228 Kan. 406, 417, 616 P.2d 1066 (1980), we again reviewed the question of the existence of prejudice against a defendant sufficient to justify a change of venue. Specific facts and circumstances must be established to indicate it will be practically impossible to obtain an impartial jury to try the case. Such a showing may not be based on speculation.
Extensive media coverage alone does not establish prejudice per se. State v. Hunter, 241 Kan. 629, 635, 740 P.2d 559 (1987).
In the case at bar, 150 jurors were called for selection to the jury and were sworn for the voir dire examination. The trial court excused eight persons for various reasons not related to impartiality.
At one point, the district attorney asked if anyone had not been exposed to the case. Only three of the remaining jurors had not. The jurors were asked if they could forget about any preconceived notions and decide the case on the evidence. After extensive examination, the district attorney passed the jury panel for cause.
Owens conducted an extensive voir dire examination. He also mentioned the publicity and asked if the jury could be impartial. Jurors Whytus and Chow admitted that they had already formed an opinion. They were challenged by Owens. The trial court excused them. Owens challenged a third juror who said she could not be fair and impartial. The trial judge excused the juror. Owens passed the jury panel for cause.
During her voir dire examination, Bierman challenged two jurors for cause because they could not look at gruesome pictures. The trial judge excused the jurors. Bierman challenged another juror who was acquainted with the victim; he was excused. Bier-man then passed the jury panel for cause. The voir dire examination lasted one and one half days. Only five jurors were challenged for cause. The trial judge excused all five. Bierman did not renew her motion for change of venue. There appears to have been no difficulty selecting an impartial jury. See State v. Hunter, 241 Kan. at 636.
Bierman has failed in her burden to (1) establish prejudice and (2) prove that there existed such prejudice that she reasonably could not have received a fair trial.
Bierman’s Right to a Speedy Trial
Bierman contends that her statutory right to a speedy trial under K.S.A. 22-3402(1) has been violated. She acknowledges that the trial commenced with the voir dire on the 90th day following arraignment. However, Bierman argues that the K.S.A. 22-3402(1) phrase “brought to trial” requires that the defendant must be placed in jeopardy within 90 days. She cites no authority for her position. Bierman’s contention is without merit.
Under K.S.A. 21-3108(l)(c), a defendant is placed in jeopardy when the jury has been impaneled and sworn to try the case. Bierman points out that the jury was not sworn to try the case until the 91st day. The K.S.A. 22-3402(1) phrase, “brought to trial,” does not coincide with the date a defendant is placed in jeopardy under K.S.A. 21-3108(l)(c), but rather relates to the date the jury panel is sworn for the voir dire examination.
The State advances three counterarguments: (1) Bierman filed numerous motions which were not ruled on for 13 days; the 13-day period should be charged to Bierman; (2) the trial court extended the 90-day period under K.S.A. 22-3402(3)(c) and (d); and (3) Bierman was brought to trial within 90 days.
K.S.A. 22-3402 requires any person charged with a crime and held in jail to be brought to trial within 90 days after arraignment unless the time of trial is extended under the statute.
Bierman was arraigned on March 28, 1989. On May 11, 1989, the case was set for trial on June 26, 1989. The journal entry reflecting the May 11, 1989, hearing stated:
“The Court further finds that all attorneys agree that a special setting is required with special notice being provided.
“The Court further finds that the criminal trial docket schedule is set through the week ending June 9, 1989; that the courts have prior commitments for the entire week of June 12, 1989; and, that a material witness for the prosecution will be out of the state from June 17, 1989 through June 24, 1989.
“The Court further finds that June 26, 1989 is the ninetieth (90th) day after both defendants were arraigned.”
The trial court’s order stated: “Wherefore, It Is Ordered that pursuant to K.S.A. 22-3402(c) and (d), the jury trial in this matter is set before the Honorable Bill D. Robinson, Jr., on June 26, 1989, at 9:00 A.M.” The order is a permissible extension under K.S.A. 22-3402(3)(c) (time of trial extended beyond the 90 days because material evidence is unavailable) and (d) (time of trial extended beyond the 90 days because of other cases pending for trial). Even if Bierman’s jeopardy argument were meritorious, the trial court properly extended the time.
Bierman was “brought to trial” within 90 days. K.S.A. 22-3405(1) states: “The defendant in a felony case shall be present at . . . every stage of the trial including the impaneling of the jury.” (Emphasis added.) A defendant is “brought to trial” when the jury panel is sworn for the voir dire examination.
The jury panel was sworn for the voir dire examination in the case at bar within 90 days of the arraignment. Bierman’s statutory right to a speedy trial under K.S.A. 22-3402(1) was not violated.
It is not necessary to address the State’s argument that the 13 days Bierman’s motions were pending should be charged to Bierman.
Sufficiency of the Evidence
The trial court instructed the jury on premeditated first-degree murder, felony first-degree murder, and second-degree murder.
The trial court also gave the following aiding and abetting instruction:
“A person who, either before or during its commission, intentionally aids, abets or advises another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
The jury returned a verdict of guilty of premeditated first-degree murder.
Bierman asserts that there was insufficient evidence to support the element of premeditation. Her assertion is not well taken.
The standard of review is whether a review of all the evidence, viewed in the light most favorable to the prosecution, convinces us that a rational factfinder could have found Bierman guilty beyond a reasonable doubt. State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).
We discussed the element of premeditation in State v. Hill, 233 Kan. 648, 652, 664 P.2d 840 (1983).
Direct evidence is not necessary to establish premeditation. It may be established by circumstantial evidence. Premeditation may be inferred from the established circumstances of the case provided the inference is reasonable.
In the case at bar, Matt, Renea, and Lisa (Syndi’s friends) all testified that Syndi told them that she was afraid of Bierman. Renea and Lisa also testified that Bierman got mad, on the night of the murder, when Syndi commented about Bierman wearing Syndi’s jeans.
Hernandez testified that Bierman directed the trip to the construction site to pick up the two-by-fours. Bierman was present while Hernandez and Owens brutally beat Syndi with the two-by-fours. Hernandez heard Owens tell Bierman “to get her,” and then heard Bierman say, “You fucking bitch,” followed by a thump. The pathologist testified that there was a bruise on Syndi’s forehead that was probably made by a woman’s shoe. Hernandez further testified that Bierman took the knives upstairs.
Lewis testified that after the murder Bierman said, “I hate that little bitch.”
There is no evidence of any provocation by Syndi. She was asleep in bed.
The coroner testified that there were many defense wounds on Syndi’s hands and arms. He stated that Syndi’s throat was cut after she was beaten and was in “deep profound shock.” He concluded that the death episode took several minutes.
We conclude there was sufficient evidence to support the jury’s verdict of premeditated first-degree murder.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Howard R. Luft, from his conviction by a jury of aggravated vehicular homicide, contrary to K.S.A. 1990 Supp. 21-3405a.
Luft raises a number of issues concerning ineffective assistance of counsel. We need not reach those issues because State v. Kelly, 14 Kan. App. 2d 182, 786 P.2d 623 (1990), entitles the defendant to a new trial in this case.
Luft was arrested immediately following the one-vehicle accident that resulted in the death of Luft’s passenger. The State introduced the results of a blood alcohol test of Luft into evidence. The State concedes that Luft was not advised of his statutory rights pursuant to K.S.A. 1990 Supp. 8-1001(f).
The Kansas Court of Appeals originally held in State v. Doeden, 12 Kan. App. 2d 245, 738 P.2d 876, rev. denied 242 Kan. 904 (1987), that failure to give the warnings required by 8-1001(f) does not result in exclusion of the blood alcohol test results. This court, in Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.2d 1337 (1988), overruled that part of Doeden which held 8-1001(f) was directory and not mandatory. We held:
“The clear language of the statute indicates that the legislature intended to ensure that a person arrested for driving under the influence was made aware, by the required notice procedure, of his statutory rights. Those rights include the right to obtain independent testing of his blood alcohol level following testing by or under the direction of a law enforcement officer. K.S.A. 1985 Supp. 8-1004 both establishes this right to an independent test, and enforces compliance by law officers. It provides that if the law enforcement officer refuses to permit the person tested to obtain such additional testing, the results of the test administered under the direction of the officer are inadmissible in evidence.
“K.S.A. 1985 Supp. 8-1001(f)(2) states in part:
“ ‘It shall not be a defense to any prosecution [for driving under the influence] . . . that the person did not understand the written or oral notice required by this section . . . ” (Emphasis added.)
See also similar language in K.S.A. 1985 Supp. 8-1002(c)(1)(B) and 8-1002(d)(3).
“The statute in question clearly requires that certain procedures shall be followed and certain notices shall be given to a defendant arrested for driving under the influence. K.S.A. 1985 Supp. 8-1001(f) was enacted as part of a comprehensive revision of the statutes pertaining to driving under the influence of alcohol or drugs. The language of the statute is clearly mandatory. For additional discussion of the distinction between mandatory and directory, as applied to statutes, see Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968); 2A Sutherland, Statutory Construction §§ 57.01-57.26 (Sands 4th ed. 1984); 73 Am. Jur. 2d, Statutes §§ 14-27. We conclude the notice provisions of K.S.A. 1985 Supp. 8-1001(f) are mandatory and not merely directory. The holding in Doeden to the contrary is overruled. The holding of the Court of Appeals in this case that the statute is directory and not mandatory is erroneous.” Barnhart, 243 Kan. at 212-13.
We concluded, as did the Court of Appeals, that the law enforcement personnel had substantially complied with 8-1001(f) and affirmed Barnhart’s conviction. Thus, this court never reached the question whether the test results would have been suppressed for failure to give the statutory warning required by 8-1001(f).
That was the posture of the law when this case was tried. Sixteen days after Luft was convicted, the decision in State v. Kelly was announced. In Kelly, the question of whether the failure to give the mandatory statutory warnings would result in suppression of the results of the blood alcohol test was answered, and the Court of Appeals held: “Suppression of the results of the test administered by the State pursuant to K.S.A. 1987 Supp. 8-1001 and any evidence obtained following a request for counsel after the test is administered by the State is the proper remedy for violation of 8-1001(f)(l)(E).” 14 Kan. App. 2d 182, Syl. ¶ 3.
In State v. Osbey, 238 Kan. 280, 283, 710 P.2d 676 (1985), this court said:
“The present case falls within the procedure set out in State v. Choens, 224 Kan. 402, 580 P.2d 1298 (1978), which holds that a later overruling decision should be applied retroactively to all similar cases pending at the time the decision was rendered. A conviction is not considered final until the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed. This court determined [the overruling decision] prior to the appeal in this case. The facts in this case are sufficiently similar to those in [the overruling decision], allowing Osbey to raise the issue on appeal.”
Thus, the defendant in this case, Howard R. Luft, is entitled to a new trial with the results of the blood alcohol test suppressed.
As a result of the reversal, the remaining issues are moot. We call the trial court’s attention to the Notes on Use to PIK Crim. 2d 56.07-A, which caution that the instruction must be accompanied by a definition of the proscribed act (driving while under the influence). Although not applicable on retrial, we draw the trial court’s attention to K.S.A. 1990 Supp. 8-1567, which prohibits a person with an alcohol concentration of. 10 from operating a motor vehicle.
Reversed and remanded for a new trial. | [
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The opinion of the court was delivered by
Six, J.:
Archie E. Owens, Jr., appeals his jury convictions of first-degree murder (K.S.A. 21-3401) and theft over $500 (K.S.A. 21-3701). We have jurisdiction under K.S.A. 22-3601(b)(l). This appeal considers as primary issues the defendant’s alleged amnesia and his competency to stand trial. Ancillary issues concern the validity of jury instruction PIK Crim. 2d 52.13 concerning a defendant’s choosing not to testify and of the trial court’s refusal to instruct on the lesser included offense of misdemeanor theft. We find no error and affirm.
Owens was a codefendant with Shari Bierman, the murder victim’s sister. Bierman was also convicted of first-degree premeditated murder and theft over $500. We affirmed Bierman’s conviction in State v. Bierman, 248 Kan. 80, 805 P.2d 25 (1991).
Facts
The facts relating to the murder of the victim, Syndi Bierman, are contained in State v. Bierman. We have set out additional facts relating to the issues Owens asserts in the instant case.
Tambi Lewis, the woman with whom Owens lived, pled guilty to aiding a felon. She was at Owens’ apartment the night of February 18, 1989, and the morning of February 19, 1989 (the victim’s body was found in the early hours of February 19, 1989). She testified that Owens, Joseph Hernandez, and Shari Bierman dropped off Bierman’s children at Owens’ apartment shortly after midnight. Owens, Hernandez, and Bierman said they were going to burglarize Bierman’s parents’ house in Wyandotte County. The three returned later with the stolen property.
Lewis testified that Owens did not seem to be intoxicated or under the influence of drugs when he left to burglarize the Bier-man house or when he returned with the stolen property. She talked with him for some time. Owens made sense and knew what was going on.
Lewis testified that on the Sunday afternoon or evening of February 19, 1989, Owens and Hernandez told her that they had beaten Syndi “real bad.” Lewis and her friend, Tina Reilly, accompanied Owens and Hernandez when they left Kansas City on the evening of February 19. She testified that during their escape trip out of Kansas City, Owens kept saying that he did not know if Syndi was dead or alive and that he did not see how anybody could survive such a beating.
Lewis further testified that Owens told her that he had left his motorcycle chain, which he wore through his belt loops, at either his apartment or the Bierman house. Lewis identified a chain found in Bierman’s bedroom as belonging to Owens.
Tina Reilly was also present at Owens’ apartment when Owens, Hernandez, and Bierman returned with the stolen property. Reilly testified that she saw Owens washing his hands. She was not sure but thought that Owens had blood on him. Reilly stated that Owens did not appear to be under the influence of any type of drugs. Reilly testified that during their trip out of Kansas City, Hernandez said that they (Hernandez, Owens, and Bierman) had beaten Syndi and that Hernandez had cut Syndi’s throat. She stated Owens did not want Hernandez to tell her.
Hernandez testified that during the night of the crime he drank gin and beer and Bierman smoked marijuana. He stated that Owens did not drink alcohol, smoke marijuana, or use any type of drugs during that time period.
Bierman testified that Hernandez drank alcohol and that she smoked marijuana, but that Owens did not smoke marijuana and was not “out of it” on drugs.
Hernandez and Reilly also lived with Owens at his apartment. Hernandez, Reilly, Lewis, and Owens were at Lewis’ father’s house when the police searched Owens’ apartment on Sunday, February 19, 1989. Through a neighbor, they learned that police were at the apartment. They left town in Lewis’ car, which broke down in Oklahoma.
Reilly and Hernandez were apprehended in Oklahoma. Owens and Lewis hitchhiked to Arizona. Owens turned himself in to the FBI in Arizona and was returned to Kansas City. Lewis was also apprehended and returned to Kansas City.
Alleged Amnesia
Owens and the State both moved for a determination of his competency to stand trial. The trial court ordered that Owens be examined by the Wyandot Mental Health Center (Health Center).
The Health Center filed its report with the trial court. The report included the following:
“Clinical Interview
“In reference to the date and time of the alleged act, [Owens] reported he had consumed a substance (‘PCP’), assumedly Phencyclidine. He stated that due to the intoxicating effect of the substance that he had no recollection of that particular evening. . . .
“Competency to Stand Trial Examination
“The client was oriented to time, place, person and situation. He stated he had an attorney but saw little sense in working with him so as to provide the best possible defense, because he feels he will be found guilty regardless of defense counsel’s efforts. His comprehension and knowledge of courtroom procedures and terminology was basic, yet sufficient. He has the ability, if he so desires, to work with his attorney to provide the best possible defense. He is cognizant of the charges against him and to the gravity of the situation. He comprehends right from wrong action and understands the concepts of guilt and innocence.
“Mental Status Examination
“. . . Remote and recent memory functions were intact except for his report of memory loss at the time of the alleged crime.” (Emphasis added.)
The report concluded:
“Summary
“A twenty year old Caucasian male was evaluated to assess his competency to stand trial. The Clinical Interview found him to be negative, focused and direct. The Competency to Stand Trial Examination proved him to be fully oriented, able to work with his attorney to provide the best possible defense and aware of courtroom procedures and terminology. The Mental Status Examination reveals an individual with memory functions intact, not depressed and not psychotic.
“In consideration of the results of this evaluation, Archie E. Owens, Jr. is found competent to stand trial.” (Emphasis added.)
Owens moved for a further determination of competency and for funds for psychiatric services. In this motion, Owens stated that he was suffering from amnesia, either hysterical, drug induced, or feigned and that he could not remember the events at the time of the crime.
During the hearing on the motion, Owens’ counsel stated that a psychiatrist, Dr. Claude Werth, and a sociologist had examined Owens. Owens requested funds for additional tests, stating that Dr. Werth advised taking the additional tests. It was claimed that these tests could possibly retrieve Owens’ memory or eliminate the possibility of feigned amnesia. The State opposed the motion, arguing that the Health Center had found Owens competent. The Health Center report was the only evidence before the trial court.
In response to Owens’ motion, the trial court appointed two psychiatrists as a commission to evaluate Owens’ competency and to report to the court. The doctors took an oath to examine Owens and determine whether “he is, at this time, able to comprehend his position and make his defense to the charges.” Both doctors found Owens competent to stand trial.
Following this second determination of competency, Owens filed a motion for a jury of six persons to assist in the determination and for psychiatric treatment to restore his memory.
Owens presented an affidavit from Dr. Werth which stated that Owens claimed to be under the influence of marijuana and PCP the morning of the crime. Owens claimed to have a “memory gap” between the time of the sexual encounter with Bierman and his waking up the next morning. Dr. Werth concluded the memory gap made it “virtually impossible” for Owens to aid in his defense, consequently, making him incompetent to stand trial. Dr. Werth recommended that Owens be admitted to Larned State Hospital where “a number of diagnostic methods can be employed which may aid in the retrieval of suppressed or repressed memory processes.” (Emphasis added.)
After taking note of the court-appointed psychiatrists’ reports, the trial court denied the motion.
The trial court found Owens competent to stand trial.
The first day of trial, Owens filed and argued a motion to dismiss. In the written motion Owens stated: “Defendant further contends that he is and has been competent to stand trial, and that the failure to be brought to trial, and the delay in doing so, is not the result or fault of the Defendant.” (Emphasis added.) The trial court denied the motion.
Owens filed a motion for a new trial, again raising the issue of Owens’ competency. The trial court overruled the motion.
Owens argues that his due process rights under the Fourteenth Amendment were violated because his amnesia rendered him incompetent to stand trial. Owens claims that because the trial court (1) failed to make a finding whether Owens had amnesia and (2) used an incorrect standard to determine competency, the case should be remanded for further findings or the conviction should be reversed because Owens was incompetent to stand trial.
Owens relies on Wilson v. United States, 391 F.2d 460 (D.C. Cir. 1968), and State v. Blake, 209 Kan. 196, 495 P.2d 905 (1972).
A significant factual distinction exists between Wilson and the instant case. In Wilson, the State conceded that Wilson suffered permanent retrograde amnesia resulting from a head injury. Here the State claims Owens’ alleged amnesia is a sham.
Because Wilson had a rational understanding of the charges against him and suffered no mental disorder aside from the amnesia, the trial court found him competent to stand trial.
On appeal, Judge Skelly Wright, speaking for a divided court, rejected the view that amnesia renders a defendant incompetent per se to stand trial. Judge Wright adopted a case-by-case approach, stating: “[T]he question must come down to whether, ‘in light of the personal intellectual or emotional deficiencies of the accused [defendant] can perform the functions essential to the fairness and accuracy of the particular proceedings in which he is presently involved.’ ” 391 F.2d at 463.
The test of competency must be whether the defendant has sufficient “ ‘present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’ ” 391 F.2d at 463 (quoting Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 [1960]).
Wilson lists six factors to aid the trial court in making findings concerning the effect of amnesia on the trial fairness issue. These factors are:
“(1) The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.
“(2) The extent to which the amnesia affected the defendant’s ability to testify in his own behalf.
“(3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.
“(4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.
“(5) The strength of the prosecution’s case. Most important here will be whether the Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so.
“(6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial.” 391 F.2d at 463-64.
Wilson’s case was remanded for the trial court to make these findings.
Owens contends that we adopted in Blake, 209 Kan. 196, the Wilson approach requiring post-trial findings and consideration of the six factors. Owens’ contention is not correct. Again we note a factual distinction between Blake and Owens’ case. In Blake the State made no contention that Blake’s amnesia was a sham. The evidence was unrefuted that Blake suffered from hysterical amnesia resulting in his inability to remember any of the critical events at the time of the murder of his small daughter. 209 Kan. at 198.
In Blake, the court stated: “We are persuaded that a case by case evaluation of the fair-trial effect of amnesia, adopted explicitly by the majority in Wilson and implicity by this court in [State t>.] Severns [184 Kan. 213, 336 P.2d 447 (1959)], is the sounder rule; we again reject the per se approach.” 209 Kan. at 200.
Although we reversed Blake on other grounds, we found that, under the circumstances of the case, Blake’s amnesia did not prevent him from making a “rational” defense. We did not re mand for findings nor did we discuss the six Wilson factors. In Blake, we adopted the fair-trial effect of amnesia case-by-case approach rather than the per se approach. Blake does not mandate, for every alleged amnesia case, the post-trial findings discussed in Wilson. In Blake, we held that the trial court’s implied finding that Blake was competent to stand trial was supported by the evidence. 209 Kan. at 201.
Amnesia alone should not supply the basis for declaring a defendant incompetent to stand trial. Amnesia is a factor to be considered in determining whether the defendant is able to meet the test of competency to stand trial and to obtain a fair trial. State v. Gilder, 223 Kan. 220, Syl. ¶ 3, 574 P.2d 196 (1977). See Annot., 46 A.L.R.3d 544. The danger of false claims is great. Fajeriak v. State, 520 P.2d 795, 802 (Alaska 1974). Amnesia can easily be feigned. State v. McClendan, 103 Ariz. 105, 108, 437 P.2d 421 (1968).
The State argues that Owens’ amnesia is a “sham.” The State contends that the trial court properly found Owens competent based on the report from the Health Center and the report of the two psychiatrists appointed as a commission to determine competency.
The State relies on the statement Owens made to the Health Center doctors: “[Owens] stated he had an attorney but saw little sense in working with him so as to provide the best possible defense, because he feels he will be found guilty regardless of defense counsel’s efforts.”
The State also relies on the presentence investigation report. Portions of the report were referred to by Owens’ counsel as well as the State during argument on post-trial motions. Owens told the court services officer his version of the events on the night of the crime. There was no mention of amnesia. He stated that Hernandez and Bierman dropped him off at the Woodlands Race Track while they went elsewhere to engage in sexual relations. They returned later with the stolen property. Owens explained that he did not testify at trial because he decided it would be difficult to. get a jury to believe his story.
K.S.A. 22-3301(1) states the standard for determining competency to stand trial:
“[A] person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable:
“(a) To understand the nature and purpose of the proceedings against him; or “(b) to make or assist in making his defense.”
K.S.A. 22-3302 provides the procedure the trial court should follow in determining competency.
The determination of competency is made by the trial court after conducting a hearing. K.S.A. 22-3302(1), (3). The statute does not require an adversarial hearing at which the accused may cross-examine the court-appointed physicians. State v. Costa, 228 Kan. 308, 317, 613 P.2d 1359 (1980). Absent an abuse of discretion, the trial court’s determination of competency will not be reversed on appeal. 228 Kan. at 317.
In the case at bar, the trial court ordered Owens examined by the Health Center at the request of both Owens and the State. The report submitt ed to the court found Owens to be aware of the charges against him and of the gravity of the situation. His comprehension and knowledge of courtroom procedures was sufficient. The report specifically stated that he had the ability, if he desired, to work with his attorney to provide the best possible defense. The report noted Owens’ claim of amnesia but found his memory functions intact.
In response to Owens’ request for an additional determination of competency, the trial court ordered a second competency evaluation. The two appointed psychiatrists found Owens competent to stand trial.
Owens has shown no abuse of discretion.
The record indicates that Owens’ memory was intact at the time of his evaluation by the Health Center and after trial during the presentence investigation. In his motion to dismiss filed on the first day of trial, Owens stated that he was and had been competent to stand trial.
Several witnesses testified that Owens did not consume drugs or alcohol in their presence and that he did not appear to be under the influence of drugs before or after the crimes.
The State’s case against Owens was overwhelming. The other two participants testified against him and detailed his involvement. Tambi Lewis, with whom he lived, testified that Owens told her about his involvement. The prosecutor had an “open file” policy. The evidence, which was made available to Owens prior to trial, sufficiently reconstructed the events during the period of the alleged amnesia.
Under the facts of this case, Owens’ alleged amnesia did not prevent him from receiving a fair trial.
Denial of Psychiatric Treatment
Owens asserts that the trial court erred in refusing to order funds for psychiatric treatment. Owens cites Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985).
The Ake test for determining whether expert psychiatric services should be provided is a three-factor test balancing (1) the private interest in the accuracy of the criminal proceeding, (2) the State’s interest that will be affected if the psychiatric assistance is provided, and (3) the probable value of the psychiatric assistance sought and the risk of error in the proceedings if the evidence is not offered. 470 U.S. at 77.
In State v. Dunn, 243 Kan. 414, 419, 758 P.2d 718 (1988), this court was asked to adopt the balancing test advanced by Ake. The court refrained from endorsing the Ake balancing test, stating that, before any balancing test is employed, the defendant must first clearly show that his or her mental capacity is a significant issue for a defense to the charges. 243 Kan. at 419-20. Dunn had not made the threshold showing that her mental capacity was a significant issue for a defense to the charges.
K.S.A. 22-4508 provides for authorization of funds for expert services if the judge determines that services are necessary and the defendant is financially unable to obtain them. The authorization of expert services in the criminal trial of an indigent defendant is a matter which lies within the discretion of the trial court. The trial court’s decision will not be disturbed unless the defendant shows prejudice to his or her substantial rights resulting from abuse in the exercise of the trial court’s discretion. Dunn, 243 Kan. at 418; see State v. Mayberry, 248 Kan. 369, 807 P.2d 86 (1991).
In the case at bar, Owens has not made the threshold showing that the effect of amnesia upon his mental capacity was a significant issue for a defense to the charges. The references to his amnesia were contained in the report of the Health Center, the affidavit of Dr. Werth, and statements of his counsel. The Health Center found his memory intact. Portions of the presentence investigation report were referred to by both Owens’ counsel and the district attorney in their arguments on Owens’ motion for a new trial. The report reflects Owens explained to the court services officer after conviction that his failure to testify was because he was not with anyone at the time of the incident and he decided the the jury would not believe him. No mention was made of amnesia.
Owens has shown no prejudice to his substantial rights resulting from abuse in the exercise of the trial court’s discretion.
Owens’ Choice Not to Testify—The Instruction
The trial court followed PIK Crim. 2d 52.13 and gave the following instruction: “You should not consider the fact that defendant, Archie E. Owens, Jr., did not testify in arriving at your verdict.”
Owens argues that the instruction is not itself erroneous; however, a defendant has the right to have the jury instructed that it must not consider that the defendant did not testify if the defendant so requests.
Owens requested four separate instructions regarding his failure to testify.
At trial, the court provided counsel with proposed instructions. When asked if he had any objections, Owens’ counsel stated that he had submitted a list of requested instructions and that he did object generally to the court’s proposed instructions.
The trial court then asked for objections to specific instructions. Owens’ counsel replied that the instructions given in Kansas are “not chatty enough.” Counsel then specifically mentioned that the trial court should define reasonable doubt and felony murder. He stated that he did not mean to preclude the other things laid out in his requested instructions. Owens’ counsel went on to discuss the felony-murder instruction in detail. He requested an instruction on voluntary and involuntary manslaughter. Owens’ counsel also objected to instruction No. 15 (burden of proof-reasonable doubt). There was no specific objection to instruction No. 22 (“should not consider the fact Owens did not testify”).
We have observed: “K.S.A. 22-3414(3) precludes a party from claiming instruction error where there is no contemporaneous objection, unless the instruction is clearly erroneous.” State v. Cummings, 242 Kan. 84, Syl. ¶ 6, 744 P.2d 858 (1987).
Although Owens objected to the instructions in general, he did not specifically object to instruction No. 22 and state the grounds for his objection. Our review is limited to whether the instruction is clearly erroneous.
Owens concedes in his brief that the instruction is not clearly erroneous. Although should is not as strong as must, the jury was instructed not to consider the fact that Owens did not testify. Before the numbered instructions were read, the jury was instructed to consider and follow the instructions. Owens has shown no prejudicial error.
Instruction—Lesser Included Offense
The trial court has a duty to instruct on all lesser included offenses supported by the evidence. K.S.A. 21-3107(3). State v. Cummings, 242 Kan. at 91. The evidence supporting such an instruction must be considered in the light most favorable to the defendant. The test is whether the evidence might reasonably cause a jury to convict the defendant of the lesser charge. 242 Kan. at 91.
Theft of property valued at $500 or more is a felony while theft of property valued less than $500 is a misdemeanor. Misdemeanor theft is a lesser included offense of felony theft. State v. Parsons, 11 Kan. App. 2d 220, 220-21, 720 P.2d 671 (1986).
Owens argues that the State did not present sufficient evidence from which the jury could determine the value of the stolen property was $500.
The State advances two counter-arguments. First, the State asserts that Leonard Bierman, the father of the homicide victim (Syndi) and the codefendant (Shari), testified the value of the property was greater than $500. Second, the State asserts that the jury was instructed on misdemeanor theft. The jury filled out a verdict form finding Owens guilty of theft and the value of the property to be $500 or more.
The following property was stolen from the Bierman residence: a computer and printer, a VCR, a beer-sign mirror, a camera, a radio, two watches, a flashlight, several cassette tapes, and $60.
The value to be used in determining whether theft is a felony or misdemeanor is the fair market value of the property. State v. Robinson, 4 Kan. App. 2d 428, 431, 608 P.2d 1014 (1980).
Although, there was no evidence supporting an instruction for misdemeanor theft, the jury was given the option to find the value of the property was less than $500. However, it found the value of the property was $500 or more. This finding is supported by the evidence.
The trial court did not err.
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The opinion of the court was delivered by
Lockett, J.:
Kerry Knudsen, plaintiff-appellant, contends that Lyle Koerper, Manager-Corporate Communications for Kansas Gas and Electric Company (KG&E), defendant-appellee, defamed his character and reputation at a meeting among Kansas City Star editors, KG&E personnel, and Kansas City Power and Light (KCPL) personnel. Knudsen appeals the trial court’s determinations that (1) his news story made him a public figure; (2) the statements were business communications made in good faith among individuals with a corresponding interest in the subject matter of the communications, and were, therefore, subject to a limited privilege; (3) the statements were not malicious; and (4) defendant’s motion for summary judgment should be granted.
Knudsen is the author of a story titled, “Wolf Creek accepts help on cooling lake but freezes out fishermen,” that the Kansas City Star purchased and published in its sports section. The article discusses KG&E’s policy regarding public access to the the Wolf Creek Nuclear Generating Station cooling lake for recreation. Knudsen is identified in the article’s byline as the author, vice president of the Outdoor Writers of Kansas, and a graduate student in journalism at the University of Kansas. Knudsen’s article had previously been published in the Olathe Daily News. In response to the Olathe article, both a KG&E attorney and Koerper contacted Knudsen with their concerns that the story contained inaccurate facts and misleading statements.
Subsequent to the Star’s publication of Knudsen’s article, Koerper requested and obtained a meeting with the Kansas City Star editors Joe McGuff, editor-in-chief; Brent Frazee, outdoor editor; and Greg Clark, assistant sports editor. Koerper, KG&E’s manager of corporate communications and spokesperson for Wolf Creek, is quoted by Knudsen in both articles. KCPL, one of the co-owners of Wolf Creek, was represented at the meeting by Joe Kramer, a public information specialist for KCPL.
During the meeting, Koerper informed the Star editors that Knudsen’s article contained misstatements and discussed the Star’s failure to verify the information with KG&E officials prior to publication. Following the meeting, Koerper wrote an interoffice memo which states:
“Report on a conference with Kansas City Star editors including Joe McGuff, executive editor of the Star and Times; Brent Frazee, outdoor editor; and Greg Clark, another sports department editor.
“Subject; Inaccuracies of the April 6 Star sports page article by Kerry Knudsen on Wolf Creek Reservoir.
“My evaluation of this session was that it was very productive in that McGuff acknowledged that not only did the Star err in printing the story without verifying information with utility officials, but that the story itself is in error. McGuff raised the question of what should be done to correct the situation. My indication was that we were primarily concerned with what we could expect in the future from the Star-Times in covering complicated utility issues. If we issued a news story in the future about the reservoir or invited reporters to the site we would expect Star-Times reporters to cover the story in a professional way and they would have the advantage of greater insight into constraints faced by utilities involved in nuclear projects. It’s important to understand that Mr. McGuff was only appointed to the top editorial position on these newspapers within the last three weeks. He previously was executive sports editor. It is also obvious that he is a thoughtful and experienced professional journalist.
“The meeting (April 17, 1986) ran from 11:00 am to 12:20 pm. Joe Kramer of Kansas City Power & Light and I participated. Joe is a longtime acquaintance/friend of McGuff.
“Frazee indicated that Knudsen had submitted the article in a standard way for purchase by the Star. Apparently Clark worked directly with Knudsen indicating at several points that he had as many as 11 telephone calls with Knudsen on checking information. Our continuous response was, why didn’t you ask us? At the conclusion of the conference when McGuff was summarizing indicating clearly that the story was not a good one and the actions of Star representatives left something to be desired, he asked Frazee and Clark their conclusion. The first response of the two, especially Clark, was ambiguous. But, they so.on agreed with Mr. McGuff as he continued to draw out their conclusions.
“I made it clear in concluding that we had to assume that Kerry Knudsen was an adversary and had forfeited the right to claim to be a professional journalist. We would point to the Kansas City Star article as an example of his willingness to print untrue information and to distort it to make an adversarial position.
“Joe Kramer continually raised the issue of why the Star would not use their own people on an adversarial story. It’s one thing to buy from a freelance writer a basic informative piece, and quite another to buy from a freelance writer a piece as obviously adversarial as this is.
“My opening statement was that Wolf Creek Station has been a major news story for more than 10 years. The utilities have issued news releases. But, probably the majority of news has been generated with reporters asking questions of the utilities. Many of the questions have come through the reporter being contacted by persons making some claim or allegation. We have appreciated being able, in most cases, to respond to the allegations before stories were run.
“The April 6 story on Wolf Creek reservoir raised two issues. 1) Is the story factually correct; we believe not. 2) The newspaper did not contact us to verify the information prior to running the story.
“The Star article is essentially a rewrite of articles printed March 26 and 27, 1986, in the Olathe Daily News. Kerry Knudsen, the reporter, talked with me on March 24, 1986 and at that point he indicated that he could not tell me where the stories would be run. After seeing the Olathe stories, I called Knudsen on April 3, 1986. I provided some additional information to him, actually correcting some information I had given to him on March 24, and indicated that I was very disappointed in the Olathe stories. He was aware of the inaccuracies. Í was disappointed that he had selected the Olathe Daily News to perpetuate information that he knew was inaccurate. His response, ‘Is that it?’ My response to him, ‘That’s it.’ That concluded that telephone conversation.
“For 10 years, sometimes even on a daily basis, we have talked with Star and Times reporters on the Wolf Creek project. In September, 1985, Barbara Musfeld of the Star was onsite and at that time talked with an associate of mine at some length about the fish population of the reservoir. On October 14, 1985, Barbara and I talked on the telephone about several issues, including the lake. I explained to her at that time that the essential function of the Wolf Creek reservoir was to serve the needs of the plant. Owners were, however, interested in the possibility of the lake someday being open to the public. I would be happy to talk with her about it sometime. I concluded, ‘let me know what you want to do.’
“As I reported at this meeting, the last we heard from the Star, was seeing the article printed on April 6.
“The issue here is not if we at KG&E or KCPL are disappointed in the Olathe article or the article ran by the Star. The issues center in, is the article correct, was the procedure proper as followed by the Star in not giving us an opportunity to respond to the allegations before the story was run.
“After this opening statement on my part, Kramer indicated that a concern of his centered in the newspaper buying an advocacy piece from a freelancer as opposed to doing the story themselves.
“We discussed the news story nearly paragraph by paragraph. I indicated that we felt the evidence pointed to Knudsen’s overstressing the role of the Fish and Game Commission. Clark indicated that two weeks before this article ran there was a piece printed whereby the Fish and Game people were complaining about lack of funds. He said that he felt that this article was more of a criticism of Fish and Game than the utilities. Clark said that one week Fish and Game complains that they don’t have any money and then here is [evidence] that they have spent funds on a preferential basis to utilities.
“We indicated that although the NRC quotes were correct, they are a distortion of the facts. Not only did I explain to Knudsen the complicated procedure of satisfying regulatory commitments, but I understood he had talked with Paul O’Conner of the NRC in Washington who explained the regulatory process. I indicated that my understanding was that the conversation with Mr. O’Conner took place on April 3. This means that Knudsen knew that his quotation of Mr. Hunnicut was a distortion.
“We discussed in detail the regulatory process of a nuclear plant. We indicated that the support for the reservoir from Fish and Game was essentially of the consultative, information type support, although that we continually invited Fish and Game people to observe activities ranging from poisoning of fish to stocking and testing. Invariably this activity would result in people from Fish and Game actually assisting, but actual work performed was limited and it seemed more logical that they participate in the activity as opposed to simply standing around watching what was going on. Wolf Creek station pays millions of dollars in taxes and there is no reason why a state agency such as Fish and Game could not be expected to provide services. We could not see that we had placed a financial burden on the agency and it seemed only prudent that we go to the closest source of expertise. And, it is also true that we did not always follow their suggestions. We had decided in 1975 that we would develop a reservoir ourselves while keeping in close contact with Fish and Game. But, the expense of developing the reservoir, the fish, etc. was that of the utilities.
“We emphasized the things that the utilities did at LaCygne. Kramer pointed out other examples of KCPL making available power plant facilities for recreation purposes. We emphasized that these activities reflect the intent of the utilities and our past record. Calling the Neosho lake an executive retreat is simply wrong and Knudsen knew it.
“I indicated that in terms of his quotation of me saying that I would not deny that there was a possibility that the lake could be used as an executive retreat, I said I made a mistake in not answering the question directly. My approach was to show that the question wasn’t even a valid one and to reduce it to the point of absurdity. But, Knudsen obviously wanted a yes or no answer. My answer was to refer to the intent of the utilities that we have given in public statements for years, point to LaCygne and suggesting that we needed time before [an] actual decision about final use of the lake could be made.
“As was indicated earlier, I think that Clark was the last ‘believer’ and apparently he is the person who worked directly with Kerry in the story. Frazee was generally quiet but seemed much more willing to accept the things we were saying. But most important, Mr. McGuff seemed to have little difficulty in appreciating the position of the utilities and as we were leaving the office, he was talking with Frazee and Clark, we assume about the conversation.
/s/ L. Koerper”
Prior to trial, KG&E moved for summary judgment, claiming Koerper’s statements at the meeting were covered by a qualified privilege and were made without malice. The district court found that the statements made at the business meeting were covered by a qualified privilege and that by writing the article Knudsen caused himself to become a limited public figure. It then determined that under either scenario Knudsen had failed to prove actual malice as required and granted summary judgment to KG&E. Knudsen’s appeal was transferred from the Court of Appeals to the Kansas Supreme Court.
Knudsen points out that Koerper has no privilege to communicate defamatory information if he knows the information is false or with a reckless disregard for the truth. Polson v. Davis, 635 F. Supp. 1130, 1148 (D. Kan. 1986). Knudsen argues that the memorandum was in reality a smoking gun that shows Koerper’s intent to maliciously defame Knudsen’s journalistic reputation. Knudsen alleges that Koerper’s statements that (1) Knudsen’s article is “an example of his [Knudsen’s] willingness to print untrue information and to distort it to make an adversarial position,” and (2) Knudsen “had forfeited the right to claim to be a professional journalist” are slander per se; therefore, a jury should decide whether Koerper’s intent when making the statements was malicious. In addition, he claims that the angry tone Koerper used in making the statements to the Star’s staff is important to show that the statements were made with the intent to injure Knudsen’s professional reputation.
Kansas and other states previously followed the common-law rule dividing slander into slander per se and slander per quod. Slander per se involved words from which malice was implied and damage was conclusively presumed to result. General damages from such a publication arose by inference of law and the plaintiff was not obliged, to establish damage by proof. After the United States Supreme Court decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), Kansas no longer permitted recovery based upon the establishment of slander per se.
WAS KNUDSEN A PUBLIC FIGURE?
Knudsen claims that the trial court erred in finding he was a limited public figure. He argues that he cannot achieve a limited public figure status by simply writing a news story that carried his byline. To support his argument, Knudsen cites Gertz v. Robert Welch, Inc., 418 U.S. at 352.
In Gertz, after a police officer had been convicted of murder, the attorney who represented the murder victim’s family in a civil suit against the officer was discussed in a magazine article which inaccurately (1) portrayed the attorney as an architect of a “frame-up” of the officer, (2) implied that the attorney had a criminal record, and (3) identified the attorney as a “Leninist,” a “Communist-fronter,” and a former official of a Marxist organization. In the attorney’s libel action against the publisher of the magazine, the United States District Court submitted the case to the jury under instructions that withdrew from the jury consideration of all issues except the measure of damages. The jury awarded $50,000 to the plaintiff. On further reflection the district court concluded that the First Amendment rule, requiring proof of defendant’s knowledge of the falsity or reckless disregard of the truth of the defamatory statements, protected discussion of any public issue without regard to the status of the plaintiff as a public officer or public figure. Accordingly the district court entered judgment n.o.v. for defendant. The United States Court of Appeals for the Seventh Circuit affirmed.
On certiorari, the United States Supreme Court reversed and remanded the case for a new trial. The Court held that (1) the First Amendment protection afforded news media against , defamation suits by public persons is not extended to defamation suits by private individuals even though the defamatory statements concern an issue of public or general interest; (2) so long as states do not impose liability without fault, they may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual; (3) defamation plaintiffs who do not prove the First Amendment rule are restricted to recovery of compensation for actual injury, excluding punitive damages; (4) the plaintiff-attorney was neither a public official nor a public figure within the First Amendment rule and has a remedy for defamation without having to prove the publisher had knowledge of the false statements or recklessly disregarded the truth of the defamatory statements; and (5) a new trial was necessary because the jury was allowed to impose liability without determining fault and to presume damages without proof of injury.
Knudsen argues that the publication of his article in a newspaper does not give others the right to destroy his professional reputation. Knudsen claims that the district court’s determination that he became a limited public figure creates a dangerous precedent in that all writers, journalists, and columnists who publish articles will forfeit their status as private individuals.
“There are two types of public figures: (1) All-Purpose Public Figures— those persons who occupy positions in society (not only in government) of ‘persuasive power and influence’ or achieve pervasive fame and notoriety. (2) Limited-Purpose Public Figures—those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Steere v. Cupp, 226 Kan. 566, 572, 602 P.2d 1267 (1979).” Ruebke v. Globe Communications Corp., 241 Kan. 595, 600, 738 P.2d 1246 (1987).
In Gertz v. Robert Welch, Inc., 418 U.S. 323, the United States Supreme Court defined public figure status as compared with that of private individuals. The Court pointed out that public officials accepted as one of the necessary consequences of involvement in public affairs the risk of closer public scrutiny than might otherwise be the case. Gertz, 418 U.S. at 344. It noted that private individuals relinquish no part of their interest in the protection of their own good name. Gertz, 418 at 345. And then it found that some private persons relinquish that interest to some degree by voluntarily injecting themselves into a limited range of public issues with the result that they thrust themselves to the forefront of a particular public controversy in order to, influence the resolution of the issue involved which invites attention and comment. Gertz, 418 U.S. at 345, 351. Unlike Gertz, Knudsen was not a private person who was involuntarily exposed to a public figure status. See McDowell v. Paiewonsky, 769 F.2d 942 (3d Cir. 1985) (architect who chooses to become involved in controversy surrounding government projects is a public figure). Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) (en banc) (professional football player is a public, figure for statements regarding professional’s ability to play). Contra Wolston v. Reader's Digest Ass’n., Inc., 443 U.S. 157, 61 L. Ed. 450, 99 S. Ct. 2701 (1979) (nephew of a couple arrested for espionage was not a public figure); Hutchinson v. Proxmire, 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979) (scientist criticized by Senator for waste of government grants is not a public figure); Time, Inc. v. Firestone, 424 U.S. 448, 47 L. Ed. 2d 154, 96 S. Ct. 958 (1976) (a party to a divorce action was not a public figure).
The common defamation case is initiated by the subject of the story against the reporter who authored the article and/or the newspaper which published the article. While neither Knudsen nor KG&E cite a reported decision where the defamation action is commenced by the reporter, this court refers to another jurisdiction’s decision with a similar issue.
In Pearson v. Fairbanks Publishing Co., 413 P.2d 711 (Alaska 1966), Pearson, a syndicated newspaper columnist, brought a libel action against a publisher who made unfavorable editorial comments about Pearson’s column. Pearson’s July 7, 1958, syndicated column described the then Governor of Alaska as a “Johnny-Come-Lately” in promoting statehood for Alaska and attributed súccess of the statehood movement to another. In response, the Fairbanks Publishing Company on July 8, 1958, published an editorial entitled “The Garbage Man of the Fourth Estate” criticizing Pearson’s accuracy. In another editorial, Fairbanks Publishing Company again referred to Pearson as a garbage man and advised it would no longer carry Pearson’s column because it did not wish to distribute garbage in its newspaper. The Alaska Supreme Court found that the article on Alaska’s statehood was of public interest and a quid pro quo existed between Pearson writing an article which then allows another to state their judgment, opinion, comment, or criticism on the position taken by Pearson.
The Alaska Supreme Court stated “[t]he evidence justifies a finding that appellee’s [Fairbanks] characterization of appellant [Pearson] as a garbage man and of his writings as garbage was not made with knowledge that it was false or with a reckless disregard of whether it was false or not.” Pearson, 413 P.2d at 715. Pearson’s claim that such “garbage” statements injured his reputation was not allowed to prevail. While Pearson involved a written editorial, Koerper’s statements at the meeting with the Star editors are similar. Koerper had only responded with his view about Knudsen’s article. Like Pearson, Knudsen is in no position to complain just because Koerper’s opinion, comments, or criticisms are adverse to his article.
Recently, in Rybachek v. Sutton, 761 P.2d 1013 (Alaska 1988), the Supreme Court of Alaska found that an owner of a gold mine who had articles that appeared in the opinion section of a mining newspaper was a limited public figure as to issues concerning natural resources and mining in Alaska. The article contained a disclaimer by the paper that the views expressed by Rybachek did not necessarily represent those of the mining newspaper.
The Alaska Supreme Court found that Rybachek voluntarily injected herself into public issues with regard to those articles she authored for the opinion column along with her involvement in various mining associations. A reader did not agree with one of Rybachek’s articles and had asserted that Rybachek had polluted the water quality and referred to her as a “flagrant violator. ” Rybachek, 761 P.2d at 1013. The Supreme Court of Alaska affirmed the trial court’s grant of summary judgment, finding that there was nothing in the record to indicate that the reader acted with reckless disregard for the truth or falsity. Rybachek, 761 P.2d at 1015. Knudsen’s action is very similar to Rybachek as both plaintiffs became limited public figures by voluntarily injecting themselves into a public controversy by writing articles and being officers of professional associations.
In contrast to Rybachek is Buckley v. Littell, 394 F. Supp. 918 (S.D.N.Y. 1975). Ruckley brought an action for libel against the author of a book who had characterized him as “an outstanding representative” of the function of “fellow traveler” with respect to fascism in the United States. The court found that such statements were libelous per se made with reckless disregard of truth and, although Ruckley was a public figure as a journalist, he was entitled to protection.
One’s participation in public and professional affairs does not create a public personality for all aspects of that person’s life. The designation of an individual as a “public figure” is a question of law. The nature and extent of an individual’s participation in a particular controversy giving rise to the defamation determines if an individual is a “public figure.” Ruebke v. Globe Communications Corp., 241 Kan. at 600; Hanrahan v. Horn, 232 Kan. 531, 533, 657 P.2d 561 (1983). An individual may become a public figure if he thrusts himself or his views into public controversy to influence others. See Hutchinson v. Proxmire, 443 U.S. at 135.
Though Wolf Creek is a public issue, Knudsen argues that he did not become a public figure by authoring the article about Wolf Creek. He claims his exposure to the public issue was involuntary and, therefore, he cannot be transformed into a public figure. We disagree. Knudsen, a free-lance writer, was not assigned to write the article by an employer. Rather, after defining the topic of the article, he initiated the investigation. Knudsen should have realized that his article about Wolf Creek would create a legitimate concern not only for KG&E but also for the public at large. He wrote the article under his byline in an investigatory tone to create a public controversy and influence the issue of the public’s right to use Wolf Creek’s cooling lake. By his choice, Knudsen voluntarily injected himself into the public’s attention and caused KG&E’s concern.
Even if Knudsen was entitled to a private individual’s status, he cannot prevail. In Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1985), the United States Supreme Court expanded protection for speech claimed to be defamatory by making a distinction between speech on matters of public concern and speech on matters of private concern in relationship to a private individual. The Court permitted recovery of actual and punitive damages in defamation cases absent a showing of actual malice when the defamatory statements do not involve matters of public concern. Since Knudsen’s article was devoted to a public concern rather than a private concern, he cannot prevail even if he had maintained his private individual status.
WERE THE STATEMENTS SUBJECT TO A QUALIFIED PRIVILEGE?
Knudsen claims that the trial court erred in holding that Koerper’s statements are within the qualified privilege. Communications are entitled to an absolute privilege, a limited privilege, or no privilege. An absolute privilege is granted to those in the legislative, executive, or judicial capacity by constitution, by legislative enactment, or by law as determined by the courts. A limited privilege is granted to those with a special interest or a duty in the subject matter of the communication.
Public figures, like public officials, are individuals who voluntarily expose themselves to be the subject of numerous and varied communications. Both public officials and public figures have better access to the media and other channels of communications than does a private individual and can readily respond to communications attacking their character. They are perceived as having less need for protection from communications. Redmond v. Sun Publishing Co., 239 Kan. 30, 33, 716 P.2d 168 (1986).
Certain communications are recognized as privileged and as such are not within the rules imposing liability for defamation. The defense of privilege is a matter of public policy in the furtherance of the right of free speech. The underlying idea is that by reason of a public or social interest that is entitled to protection, immunity is granted from liability for defamation that otherwise would be actionable. Privilege does not destroy the actionable character of a defamatory communication, but is available only by way of defense. Gobin v. Globe Publishing Co., 216 Kan. 223, 226, 531 P.2d 76 (1975) (citing 50 Am. Jur. 2d, Libel and Slander § 192 p. 695).
Legal authorities have found that qualified or conditional privilege exists under the following criteria:
“Conditional or qualified privilege is based on public policy. It does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege, and makes a showing of falsity and actual malice essential to the right of recovery.
“The qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest. The essential elements thereof are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty. The transmitter must have an interest or duty in the subject matter, and the addressee must have a corresponding interest or duty, but such duty may be moral or social, rather than a legal one. The defense of qualified privilege does not extend to a publication to the general public.
“In determining whether conditional privilege exists, the nature of the subject, the right, duty, and interests of the parties, the time, place, and circumstances of the occasion, and the nature, character, and extent of the communication should be considered. It has been held that a conditional privilege to reveal information to protect a sufficiently important interest has its origin in, and is governed by, the rule of good sense and customary conduct of people motivated by good will and proper consideration for others, including due consideration for the subject being informed about as well as the recipient being protected.” 50 Am. Jur. 2d, Libel and Slander § 195. (Emphasis added.)
Conversely, a qualified privilege does not exist if the privilege is abused. There is no privilege if the publication is made primarily for the purpose of furthering an interest that is not entitled to protection, or if the defendant acted principally through motives of ill will, or if he acted recklessly. 50 Am. Jur. 2d, Libel and Slander § 197.
The availability of a limited privilege is generally restricted to those situations where public policy is deemed to favor the free exchange of information over the individual’s interest in his or her good reputation. One such qualified privilege exists with respect to business or employment communications made in good faith and between individuals with a corresponding interest or duty in the subject matter of the communication. Turner v. Halliburton Co., 240 Kan. 1, 7-8, 722 P.2d 1106 (1986). Where there is no dispute as to material facts, the question of whether a publication complained of is privileged is a question of law to be decided by the court. Turner v. Halliburton Co., 240 Kan. at 8; Senogles v. Security Benefit Life Ins. Co., 217 Kan. 438, 443, 536 P.2d 1358 (1975); Gobin v. Globe Publishing Co., 216 Kan. 223; Munsell v. Ideal Food Stores, 208 Kan. 909, 921, 494 P.2d 1063 (1972).
In Welch v. Chicago Tribune Co., 34 Ill. App. 3d 1046, 340 N.E.2d 539 (1975), a sportswriter brought a libel action against the newspaper that had employed him and its sports editor. Welch was notified of his dismissal by a letter signed by the sports editor, following which a memo was posted on a bulletin board allowing the newspaper staff and anyone who entered to read the reasons for Welch’s termination, which were listed as “alcoholism, inefficiency, lack of punctuality, and unreliability.” Welch, 34 Ill. App. 3d at 1046.
The appellate court of Illinois found that the trial court erred in granting the newspaper’s motion for summary judgment as the distribution of the memo by posting it on the bulletin board was malicious and the allegedly defamatory statement could not be given an innocent construction. 34 Ill. App. 3d at 1052-53. Knudsen cites several similar cases regarding interoffice memos. See Pirre v. Printing Developments, Inc., 468 F. Supp. 1028 (S.D.N.Y. 1979); Dillard Dept. Stores, Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982); Tumbarella v. The Kroger Co., 85 Mich. App. 482, 271 N.W.2d 284 (1978).
His reliance on these cases is misplaced. Unlike the facts in Welch, Knudsen failed to show the widespread distribution of Koerper’s statement that occurred in Welch. Koerper used one of the Star’s procedures for receiving complaints, i.e., a meeting. Koerper’s statements at the meeting were confined to a subject matter of concern both to the Star’s editors and KG&E. Koerper fulfilled his job responsibilities to KG&E by making known to the Star’s editors KG&E’s concerns about the article. Attendance at the meeting was limited to those who had a managerial interest in the article. Koerper’s action in requesting the meeting was proper and his distribution of the memo was limited to KG&E management. The trial court correctly determined Koerper’s statements were business communications made in good faith among individuals who had a corresponding interest in the subject matter and were within a limited privilege.
STANDARD OF REVIEW
Knudsen claims that even if he is a limited public figure and Koerper’s statements were business communications, the trial court erred in concluding that there was no evidence of malice. In Ruebke v. Globe Communications Corp., 241 Kan. 595, 602, 738 P.2d 1246 (1987), this court adopted the standard announced by the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), that the standard for determining the existence of malice at the summary judgment stage in a libel action sought by a “public figure” requires the individual under the First Amendment to prove by. clear and convincing evidence that the defendant acted with “actual malice, a knowing or reckless disregard of the truth.”
An appellate court is required to read the record in the light most favorable to the party against whom summary judgment was entered. The appellate court takes the party’s allegations as true, and it gives him the benefit of the doubt when his assertions conflict with those of the movant. Factual inferences tending to show triable issues are to be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will be denied. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. Ruebke v. Globe Communications Corp., 241 Kan. at 602.
Summary judgment may be granted when the evidence shows no liability as a matter of law and where the central facts are not in dispute. Hein v. Lacy, 228 Kan. 249, 256, 616 P.2d 277 (1980). When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. K.S.A. 1990 Supp. 60-256(e). In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact could not affect the judgment, it does not present a genuine issue of material fact. Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, Syl. ¶ 2, 790 P.2d 404 (1990).
In general, the question of actual malice in a defamation action is a question of fact for the jury. However, under certain circumstances, a motion for summary judgment and the granting of that motion are appropriate. If the plaintiff fails to offer clear and convincing evidence of an extrinsic character to prove actual malice on the part of the defendant in the publication of a slander on a qualifiedly privileged occasion, there is no issue of material fact to be determined, and it is the duty of the trial court to grant the defendant’s motion for summary judgment. See Anderson, 477 U.S. at 252-55; Ruebke, 241 Kan. at 602.
We admit that Koerper’s language was critical of Knudsen’s journalistic style. But the record when read as a whole is susceptible to a construction as a matter of law that Koerper’s com ments at the meeting, although not complimentary, did not defame Knudsen’s reputation but were merely critical of Knudsen’s investigatory work for the article and, hence, were insufficient to show actual malice. The district court was correct in granting summary judgment.
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The opinion of the court was delivered by
Allegrucci, J.:
This appeal concerns distribution rights under a joint, mutual, and contractual will, executed by Ray and Maudie Burcham, husband and wife. At issue is how Maudie’s estate, as the survivor, should be distributed.
The facts are not disputed. Ray and Maudie Burcham were husband and wife. Maudie had one son from a prior marriage; Ray had no children. In a single-instrument will, which was executed on April 23, 1965, Ray and Maudie agreed to give their properties to the survivor of them and then, following the death of the survivor, to six named persons. Each beneficiary was to receive a one-sixth absolute interest. These six heirs included Ray’s three nephews and two nieces as well as Maudie’s son.
After Ray died on June 13, 1965, Maudie did not offer the will for probate because virtually all their property was held in joint tenancy with the right of survivorship. Maudie did initiate a determination of descent proceeding concerning the title to shares of stock held in Ray’s name only. Maudie died on May 14, 1989, without revoking or altering the joint, mutual, and contractual will. This will was admitted to probate in the Johnson County District Court on August 2, 1989. Between Ray’s death in 1965 and Maudie’s death in 1989, Ray’s three nephews, Hoyd, Reuben, and Hale Burcham, and Maudie’s son, James Greer, who had all been named as one-sixth beneficiaries of the will, died.
A petition for probate of will and issuance of letters of administration was filed July 6, 1989. The petition for final settlement in this action prayed that Maudie’s estate be distributed in one-third shares to Ray’s two surviving nieces, who were named as beneficiaries in the will, and Maudie’s granddaughter, Iris Marie Kersten, who was the daughter of James Greer.
Appellants are the heirs-at-law of Ray’s three nephews and include Hoyd’s son, Joe; Reuben’s sons, Reuben, Jr. and Robert; and Hale’s sons, Marion, Carl, and Dennis. These appellants objected to the petition for final settlement on grounds that the interest of their fathers vested upon Ray’s death. One of Ray’s surviving nieces, Rita Russell, joined appellants’ argument because she believes it reflects the intention of the Burchams, even though it will decrease her share of inheritance substantially. The other niece, Maxine Wright, is incapacitated. Appellees are Mau die’s granddaughter, Iris Marie Kersten, and the administrator of Maudie’s estate, Elva Greer.
The district court held that the will was a contractual instrument. It determined that the joint will contained no language to support a life estate in the surviving spouse. It further determined that the separate will of Ray Burcham was never admitted to probate and that, because no life estate was created for Maudie, no person could claim to take under the will of Ray Burcham. Therefore, the court concluded that the six beneficiaries had no vested interest in the estate upon Ray’s death.
The district court further held that, if Maudie Burcham committed a breach of contract, the remedy for the aggrieved party would be a suit for damages. Because she did not breach the contract and no vested remainder existed before her death, the interests of the named beneficiaries, who predeceased her, lapsed unless they were saved by the provisions of K.S.A. 59-615. Because Ray’s three nephews predeceased Maudie and were not her relatives by lineal descent or within the sixth degree, K.S.A. 59-615 did not save their interests. The court determined that Maudie’s granddaughter and Ray’s two surviving nieces each inherited one-third of the estate.
The first issue raised on appeal is whether, under the Burchams’ will, the interests of the named beneficiaries vested upon the death of Ray.
Appellants concede that the district court correctly ruled that the will was a contractual will. Appellants correctly point out that a joint, mutual, and contractual will cannot be unilaterally revoked and that this court has held that, when one of the parties dies and the other accepts benefits under the will, the survivor cannot thereafter revoke the will. However, appellants argue that it was not necessary for Maudie to probate Ray’s will and actually benefit from the joint contractual will for their rights to vest. In so arguing, appellants rely upon the language italicized in the following quote from this court’s holding in In re Estate of Jud, 238 Kan. 268, 273-74, 710 P.2d 1241 (1985):
“A first tenet to remember in contemplating this dispute is that a will, although jointly executed by two testators, is in legal effect the separate will of each testator and, as an individual will, pertains to each testator’s property at the time of his or her death. See 79 Am. Jur. 2d, Wills § 814. The Kansas Court of Appeals confirmed this principle in In re Estate of Duncan, 7 Kan. App. 2d 196, 638 P.2d 992, rev. denied 231 Kan. 800 (1982), stating in Syl. ¶ 2:
‘A joint will is, in effect, the separate will of each testator and speaks only as to the testator’s property as of the time of his or her death. ’
We must also consider the nature and effect of the testators’ contract on the disposition of their property. The contract is effective from the date of execution while the wills are effective from the date of death of each testator. This means that once the will is executed by both parties it becomes a binding contract incapable of unilateral revocation and, after the death of one of the parties, it is irrevocable. See Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065 (1924).” (Emphasis added.)
According to appellants, based upon the above language, this court, in Jud, held that it is the death of one of the parties to the contractual will that renders it irrevocable by the survivor. Therefore, it was not necessary for Maudie to probate Ray’s will and actually benefit from the contractual will for their rights to vest. We agree that the will became irrevocable after Ray’s death; we disagree that the appellants’ rights vested at Ray’s death.
Jud is factually distinguishable from the present case and does not support the appellants’ argument. The contractual will in Jud was probated upon the death of the first party to the contract and the survivor clearly benefited from the will. Therefore, it was not necessary for this court to address the question of whether the survivor must benefit from the will in order to resolve the issue.
Appellees direct this court’s attention to several prior cases that specifically state that the contractual obligations vest when the survivor of a contractual will elects to take the benefits of the will. In Long v. Buehler, 8 Kan. App. 2d 23, 25, 648 P.2d 270, rev. denied 232 Kan. 876 (1982), the Court of Appeals stated:
“The effect of a joint, contractual will between husband and wife is the creation of a binding, enforceable obligation upon the survivor who takes under the will to distribute the survivor’s estate in accordance with the terms of the contractual will. In re Estate of Duncan, 7 Kan. App. 2d 196, Syl. ¶ 3, 638 P.2d 992, rev. denied 231 Kan. 800 (1982).”
In In re Estate of Adkins, 161 Kan. 239, 167 P.2d 618 (1946), a will was executed by a husband and wife; when the husband died, the surviving wife made a second will with different bequests. The court held that the second will was entitled to probate as the last will of the testatrix but, because all the property of each testator passed according to the terms of the first will that was to be enforced as a contract, no one would take under the second will since the property had to be distributed under the first will.
Both parties refer this court to Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421 (1919). There, T.W. Lewis entered into a mutual and reciprocal joint will with his first wife. After her death, he remarried. After T.W.’s death, his second wife attempted to exercise her right under the statute of descents and distributions in electing to take under the law one-half of the value of all the real estate in which T.W., at any time during the marriage, had a legal or equitable interest. She argued that T.W.’s second marriage acted to revoke the prior will. The court noted that the authorities indicated confusion concerning the power of one of the parties to a mutual and reciprocal joint will to revoke it, but stated that “the rule supported by the better reasoning and by the weight of authority is that if such a will has been made and one of the parties thereto dies and the other accepts benefits thereunder, the survivor cannot thereafter revoke it.” 104 Kan. at 274. The court concluded that, at the time of his second marriage, T.W. did not have the power to revoke the will so as to render it inoperable after his death. The court stated: “Even if the testamentary part of the instrument now under consideration had been revoked, the contractual part could be enforced by the plaintiffs [who were the heirs under the contractual will].” 104 Kan. at 274. In support of this statement, the court cited numerous prior decisions.
Prior decisions by this court clearly establish that, if the survivor of a contractual will elects to take from the provisions of the will and benefits from it, then the will is irrevocable and enforceable. If Maudie had probated Ray’s will and taken property under it, then under prior Kansas case law, the six beneficiaries of the will would be entitled to equal shares even though they predeceased Maudie. Here, Maudie did not admit the will to probate and never took under it. Appellants argue that, if the terms of the contractual will are binding upon Maudie, their interests are vested and they are entitled to have the property distributed as specified in the Burcham will regardless of the fact that Ray’s nephews predeceased Maudie.
The case of In re Estate of Zimmerman, 207 Kan. 354, 485 P.2d 215 (1971), is strikingly similar to the present case and addresses the issues raised by appellants here. John and Abbie Zimmerman executed a joint will, leaving all their property to each other for use during his or her lifetime with full power and right to convey and transfer the property without court intervention. Upon the death of their survivor, they agreed that all the property not disposed of by the survivor was to be distributed as specified. Abbie died first. The joint will was never offered for probate at the time of her death nor was it ever produced until after John’s death more than seven years later. Before his death, John executed a codicil to the joint will, leaving various specific items of personal property, largely antiques, to specific individuals. Otherwise, John expressly ratified the will in every respect.
After John’s death, the will was offered and admitted to probate as his last will and testament. Prior to John’s death, Charles R. Minich, a named beneficiary, died. The will specified that Charles, a nephew, would receive a certain quarter section of land and was one of the 13 specified relatives who would receive an equal share in the residue and remainder of the Zimmermans’ property. The will also specified that the lawful issue of any of the 13 specified heirs was to take his or her parent’s share by representation and, if none, the share was to be divided pro rata among the other surviving heirs. 207 Kan. at 355. Although Charles was married at the time of his death, he had no children. His only heir was his wife, Bernice, who was the petitioner seeking the quarter section of land left to Charles and his share in the remainder of the property.
Bernice alleged that, upon Abbie’s death, Charles became the owner of a vested remainder interest in the quarter section of farm land and in 1/13 of the residue and remainder of Abbie’s estate, subject to John’s life estate with the power to convey and transfer the property. On appeal, counsel for Bernice argued that, after Abbie’s death, John held title to the property in a constructive trust that related back to the time of Abbie’s death. Using the constructive trust theory, Bernice argued that title vested in Charles by virtue of the joint will. 207 Kan. at 356.
This court noted that the issue before it was whether Charles became the owner of a vested interest in the Zimmerman property at the time of Abbie’s death. The court rejected this argument, pointing out that no title could vest in Charles by virtue of Abbie’s will because her will was not probated. The court stated that, under K.S.A. 59-616, no will can pass title unless it has been duly admitted to probate. The will that was admitted to probate following John’s death was his will, not Abbie’s. 207 Kan. at 357.
The court also rejected the argument that John became a constructive trustee upon Abbie’s death, holding title to the property devised to Charles as a fiduciary for the benefit of Charles. The court pointed out that a constructive trust is sometimes referred to as a trust “ex maleficio, or ex delicto,” and arises in cases where a person by fraud, actual or constructive, or by any form of unconscionable conduct or questionable ethics has obtained or holds title to property which in equity and good conscience he ought not to possess or which justly belongs to another. 207 Kan. at 357.
In applying this view of a constructive trust to the facts, the court in Zimmerman noted:
“An aroma of wrongdoing permeates the atmosphere surrounding a constructive trusteeship. Such an offensive odor does not emanate from the pages of this record. No improper motive can be ascribed to John Zimmerman in this case. If the will that he and Abbie executed was contractual in nature—and we are inclined to believe it was, . . . John was obligated under his covenant not to revoke the will, and equity would have enforced that agreement against his estate had he sought to avoid it. But John scrupulously observed his obligation; the will was not revoked by him after his consort’s demise. Indeed, John ratified and confirmed that joint document after Abbie’s death, so far as its provisions for Charles were concerned.” 207 Kan. at 357-58.
When this analysis is applied to the present case, it becomes clear that the decision in Zimmerman controls several of the issues here. At oral argument, the parties reconfirmed that they agree that the joint and mutual will between Ray and Maudie Burcham was contractual. The decision in Zimmerman made it clear that the interests of a beneficiary of a contractual will do not vest at the death of the first testator. Although the beneficiary may have the power to enforce the contractual terms of the will, the beneficiary does not have the power to enforce the will at the death of the first testator if that will is not probated. Furthermore, in the absence of any indication of fraud, chicanery, unconscionable conduct, or other form of wrongdoing, a beneficiary of a contractual will is not entitled to the property and does not have grounds for creating a constructive trust because the owner does not, in equity and good conscience, maintain title to property that the owner should not possess or property that justly belongs to another. Instead, the surviving testator of a contractual will has every right to possess the property. Therefore, based upon the decision in Zimmerman, it appears clear that the beneficiaries of a joint and contractual will that is not probated do not obtain an enforceable interest at the death of the first party to the contract.
We next consider whether the joint, mutual, and contractual will created a life estate in the survivor by operation of law. Appellants argue that, under Kansas law, the survivor of a joint and contractual will is classified as a life tenant, who possesses a life estate with power of disposition with the vested remainder belonging to the beneficiaries of the will. Appellants further argue that, in Jud, this court held that not only is the survivor of a joint and contractual will a life tenant, but also this life tenancy has a limited ability to dispose of the property because the survivor holds that property in a trust or quasi-trust relationship for the beneficiaries of the will.
However, as appellees point out, the express language in the will in Jud created a life tenancy. The will provided that the survivor of the joint testators
“ ‘shall have the use and enjoyment of such property during his or her lifetime; provided, however, said property . . . may not be given away or consumed by the survivor except to the extent necessary to maintain for the survivor the standard of living to which he or she was accustomed during our lifetime.’ ” 238 Kan. at 270.
Thus, appellees argue that the life tenancy was created in Jud by the terms of the will and not by the operation of law. Appellees argue that the issue is a question of fact to be determined under the circumstances of each case.
Appellees further argue that the district court’s decision that a life estate was not created in this case is supported by ¶ 1 of the will, which transfers the property to the survivor “absolutely.” Use of the term “absolutely” indicates that the will does not create a life estate, and no other language exists concerning such an interest. Because a life estate was not created, appellees argue that the deceased nephews cannot have a vested remainder in the survivor’s estate; therefore, the district court was correct in finding that the claims of the heirs of the deceased nephews failed. Appellees’ argument has merit.
Citing Baldwin v. Hambleton, 196 Kan. 353, 411 P.2d 626 (1966), appellants assert this court has held that, when a testamentary devise creates a life estate and a remainder, the remainder is vested even though the enjoyment of the interest is postponed until after the death of the life tenant. In Baldwin, the husband left all his property to his wife to have and dispose of during her natural life. Upon her death or remarriage, the remainder of the estate was to be divided among her children. The court concluded that the possibility that the wife would remarry did not prevent the interests of the beneficiaries from vesting. If the wife remarried, one-half of the estate was to go to her, and the other half was to go to the children. The court concluded that this did not affect the vesting, noting that a remainder may be vested subject to partial or complete divestment or defeasance. A remainder is vested subject to complete divestment when the taker is known but the life tenant exercises the power to sell the property. 196 Kan. at 358. The court also held that the remainder interest of a daughter, who predeceased the wife, would pass to the daughter’s daughter. 196 Kan. at 357.
The holding in Baldwin does not support appellants’ position. As in Jud, the creation of a life estate occurred as a result of a testamentary devise. The existence of a life estate was expressly recited in the will. The first decedent’s will had been admitted to probate and created the life estate for the surviving spouse. Here, the will contains no limitation upon the survivor, and clearly a life estate was not created for Maudie under the terms of the joint and contractual will. Further, even if the will created a life estate, the will was never probated after Ray’s death, and thus no testamentary life estate could arise.
Appellants next argue that they were third-party beneficiaries of the joint and contractual will and that their interests vested when Ray died. Appellants rely on In re Estate of Duncan, 7 Kan. App. 2d 196, 638 P.2d 992, rev. denied 231 Kan. 800 (1982). The Duncans, husband and wife, executed a joint, mutual, and contractual will in 1939. All properties were to go to the survivor of them for life with the power of disposition and then, after the death of the survivor, to their grandson, Maurice W. Duncan. Mr. Duncan died in 1946, and the will was admitted to probate. The grandson, Maurice, died in 1978, leaving a will that was admitted to probate. After her grandson’s death, Mrs. Duncan revoked her 1939 will and executed a new will that left everything to her great-grandson, Maurice, Jr. Mrs. Duncan died in 1979.
The parties conceded that the 1939 will of the Duncans was joint and contractual. The Court of Appeals noted that, under the laws of Kansas, it was appropriate for the second will to be probated, although it may be ineffective to transfer property because it violates the original contract. 7 Kan. App. 2d at 199. The court noted that, when Mr. Duncan’s will was admitted for probate, it was a separate will and spoke only to his property and his share in jointly owned property at the time of his death. 7 Kan. App. 2d at 199. The court concluded that, in viewing the will as a whole, the Duncans intended at the time the will was executed to give the survivor a life estate in the property with power of disposition, with the remainder to vest in Maurice, the grandson. Only the enjoyment of possession was postponed until the death of the survivor. Thus, the court held that, upon Mr. Duncan’s death and admission of his will to probate, a remainder interest in his property vested in Maurice, subject to Mrs. Duncan’s life estate. 7 Kan. App. 2d at 200.
The court further concluded that the untimely death of Maurice prior to Mrs. Duncan’s death did not cause the devise in the 1939 will to lapse. Maurice was a third-party beneficiary to the 1939 will and had a claim against Mrs. Duncan’s estate for the property not disposed of by the contractual will or under her power to dispose provided by that will. The court concluded that Maurice was vested with a recognized interest in the property by virtue of the will and could have maintained proceedings to prevent waste and protect his interests, to enforce the contract and impress a trust on the property, or to make a claim against Mrs. Duncan’s estate had she breached the will. 7 Kan. App. 2d at 201. Thus, the court held that Maurice’s contractual rights under the 1939 will were not extinguished by his untimely death and that the benefits were subject to distribution by him under his will. 7 Kan. App. 2d at 202.
Appellees argue that the third-party beneficiary relationship cannot be applied here because the appellants’ interests would vest only if Ray’s will were probated. Contrasting Duncan, appellees argue that the grandson’s remainder interest vested upon Mr. Duncan’s death and the admission of his will to probate, which created a life estate for Mrs. Duncan.
Appellees are correct that, here, appellants do not obtain any interest in the estate of the Rurchams pursuant to the operation of the testamentary provisions of the will. Recause Ray’s will was not probated, appellants could not obtain a vested interest in the estate pursuant to that will.
Here, as in Zimmerman, the will was not offered for probate at the death of the first testator. In addition, the language used in the joint and contractual will did not create a life estate in the survivor but, instead, Maudie was given the property “absolutely.” Therefore, based upon Zimmerman, Ray’s death did not create a life estate in Maudie; instead, she inherited the property in its entirety. The bequest of the property “absolutely” was consistent with the joint tenancy ownership created between the parties prior to Ray’s death. Maudie was, however, required to comply with the provisions of the contractual will, which she did by making no attempt to change the will.
The final issue raised by appellants is whether the beneficiaries’ interest lapsed under the anti-lapse statute, K.S.A. 59-615. The district court held that the will contained no language to support a life estate in the survivor and that Ray’s separate will was not admitted to probate, which meant that no party could arguably take an interest in the estate by virtue of Ray’s will. The court thus concluded that no vested remainder occurred in any of the six named beneficiaries at Ray’s death. The court further found that Maudie did not breach the contract, and therefore no beneficiary had a suit for damages. The court concluded that the only viable theory for the heirs of the beneficiaries, who died prior to Maudie, was the application of the anti-lapse statute. Pursuant to K.S.A. 59-615, Maudie’s granddaughter was saved from common-law lapse, but the interests of the heirs of Ray’s nephews lapsed because the heirs were not Maudie’s relatives by lineal descent or within the sixth degree.
K.S.A. 59-615(a) provides:
“If a devise or bequest is made to a spouse or to any relative by lineal descent or within the sixth degree, whether by blood or adoption, and such spouse or relative dies before the testator, leaving issue who survive the testator, such issue shall take the same estate which said devisee or legatee would have taken if he or she had survived, unless a different disposition is made or required by the will.”
In discussing the origin and history of anti-lapse legislation in Kansas, this court, in In re Estate of Thompson, 213 Kan. 704, 705-06, 518 P.2d 393 (1974), noted that at common law, in the absence of a statute or provision in the will showing the testator’s intent that the gift go to some other designated person, the gifts lapsed when the beneficiary predeceased the testator. The rule was based on necessity and the ambulatory character of a will. Anti-lapse statutes, such as K.S.A. 59-615(a), evolved to temper the application of the common-law rule. The Kansas statute has been amended repeatedly to include not only blood relatives but also adopted children.
Appellants argue that the contract evidenced by the joint and mutual will was effective from the date of execution, even though the will itself became effective at the date of the death of each testator. Once the will was executed by both parties, appellants argue, it became a binding contract incapable of unilateral revocation and, after the death of one of the parties, was irrevocable. According to appellants, the binding contractual nature of the joint will and the vesting of contractual rights of the third-party beneficiaries at Ray’s death suffice to comply with the language of K.S.A. 59-615(a), allowing an exception if a different disposition is made or required by the will. Appellants argue that it is inequitable and contrary to the intent of the parties and the contractual rights of the third-party beneficiaries for the court to allow Maudie’s granddaughter but not the heirs of Ray’s nephews to be saved by statute from common-law lapse. We do not agree.
This issue was also addressed in In re Estate of Zimmerman, 207 Kan. 354, 485 P.2d 215 (1971), as follows. The weight of authority in this country is that a devise or legacy in favor of a person in his individual capacity—not jointly with others—will lapse upon his death prior to the testator’s death unless the testator has expressed a different intention or unless a controlling statute otherwise directs. The court noted the Kansas anti-lapse statute now contained at K.S.A. 59-615. That statute did not apply in Zimmerman because Charles died without issue with his widow being his sole heir. K.S.A. 59-615 is called into effect when a lineal descendant or relative within the sixth degree dies, leaving issue who survive the testator. The will signed by John and Abbie Zimmerman contained nothing to suggest their intent that the devise or bequest to Charles should pass to his wife if he died before they did. Instead, an opposite intent is indicated by the provisions of the will specifying that lawful issue of a deceased heir would take his or her parent’s share by representation and, if none, the share would be divided pro rata among other surviving heirs. The court noted that this was an indication that the Zimmermans’ paramount concern was the material well being of their own kin. The court saw nothing to imply that a wife or collateral heir of a deceased relative should inherit the share. 207 Kan. at 358-59.
Once again, under the analysis in Zimmerman, it becomes clear that the anti-lapse statute does not save the inheritance of the heirs of Ray’s nephews. Although Maudie’s granddaughter was protected by the anti-lapse provision of K.S.A. 59-615, Ray’s nephews were not related to Maudie by lineal descent; therefore, their heirs cannot recover under 59-615. A review of the will here indicates that the property of the Burchams was left to the six listed individuals, designated “to be theirs absolutely, and to be shared by them share and share alike.” This language contains no indication that the Burchams intended the property to go to the heirs of the six individuals listed. Instead, it suggests that the Burchams wanted these six individuals to inherit the property and, if they did not survive to do so, then the property should be distributed among the surviving. Only the anti-lapse statute, which is not specifically overridden by the will, saves the inheritance of Maudie’s granddaughter.
Here, the will made a total, complete, and absolute bequest of all of Ray’s property, both real and personal, to Maudie, and the beneficiaries obtained no interests therein upon Ray’s death. When the beneficiaries named in the will predeceased Maudie, their individual bequests and devises lapsed unless saved by K.S.A. 59-615(a). Because Ray’s nephews were related to Maudie only by marriage, the provisions of the anti-lapse statute did not save the bequests.
In summary, we conclude that the interest of the six beneficiaries under the Burchams’ joint, mutual, and contractual will did not vest upon Ray’s death. Therefore, the beneficiaries of the will who died prior to Maudie’s death acquired no vested interest in the estate. The appellee, Iris Marie Kersten, is entitled to recover under Maudie’s will because the provisions of K.S.A. 59-615 save the interest from lapsing since she was a lineal descendant of Maudie. The district court correctly determined that Maudie’s granddaughter and Ray’s two surviving nieces, who are named in the will, each inherit one-third of the estate.
The judgment of the district court is affirmed. | [
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Now on this 11th. day of January, 1991, the court finds that, on November 7, 1989, respondent Dale Vernon Beming was disciplined by suspension for six months and directed to pay any applicable costs and to furnish proof of compliance with Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155).
Before resuming the practice of law, the respondent shall fulfill the court’s rules regarding registration, Supreme Court Rule 208 (1990 Kan. Ct. R. Annot. 143), and continuing legal education, Supreme Court Rule 801 et seq. (1990 Kan. Ct. R. Annot. 355).
The court further finds that the disciplinary administrator has verified that respondent has fully complied with the order of discipline entered by this court on November 7, 1989, that respondent should be discharged from any further obligation in this matter, except as set out above, and that this proceeding is closed.
It Is So Ordered. | [
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The opinion of the court was delivered by
Herd, J.:
Cain Dixon directly appeals his jury convictions for first-degree murder, K.S.A. 1989 Supp. 21-3401; attempted first-degree murder, K.S.A. 1989 Supp. 21-3301 and K.S.A. 1989 Supp. 21-3401; and aggravated burglary, K.S.A. 21-3716. Dixon was sentenced to life imprisonment for the first-degree murder conviction, 15 years to life for the attempted murder conviction, and 5 to 20 years for the crime of aggravated burglary. The sentences run consecutive to each other and consecutive to any sentence resulting from parole revocation. Dixon appeals.
The facts giving rise to this case are in dispute and, therefore, are set out in detail. Bonnie Dixon and Cain Dixon began dating in 1986. Bonnie and her daughters, Ada, Stephanie, and Brandy, moved from Wichita to Lawrence in the summer of 1987 to live with Dixon. Bonnie became pregnant and the couple married in January 1988. Anna was bom in September the same year.
By the summer of 1989, Bonnie and Dixon were having marital problems. Bonnie wanted to work; Dixon was jealous of anything she did out of his presence and accused her of seeing other men. Bonnie’s daughter, Ada, testified that Bonnie wanted to move back to Wichita but that Dixon threatened to kill her if she took baby Anna away. In August, Bonnie obtained a restraining order against Dixon and was granted temporary custody of Anna. In September, Bonnie came home with a black eye and told Ada that Dixon took her from a nightclub at knifepoint and demanded to know where Anna was. Bonnie reported this incident to the police.
In October, Bonnie and the children finally returned to Wichita. Bonnie shortly began to date Eddie McIntosh. Dixon continued to provide monetary support and visit on weekends.
On November 11, 1989, Dixon visited the children at Bonnie’s apartment. Dixon questioned Bonnie about a boyfriend, but she refused to answer. Dixon left around 10:45 p.m. and spent the night at a hotel. Bonnie left the children with 15-year-old Ada and spent the night with McIntosh.
On Sunday morning, Dixon returned to Bonnie’s apartment. He demanded to see Bonnie but Ada refused to tell him where she was, fearful of his prior threats to kill Bonnie if she had a boyfriend. Dixon threatened Ada that something bad would happen if she did not help him. Therefore, she directed him to McIntosh’s apartment.
When they arrived, Ada ran to the door and warned Bonnie not to open it. Dixon retrieved a tire iron from the trunk of his car and slashed the tires on Bonnie’s car. He pried open the door to McIntosh’s apartment and Ada ran inside.
Dixon and McIntosh confronted each other in the parking lot. Dixon asked McIntosh if he had feelings for Bonnie and if he wanted to see her blood. He also said he had an appointment with Bonnie and would be back after he got a weapon.
Ada returned with Dixon to Bonnie’s apartment and then left to take a cousin home and get breakfast. Dixon was gone when she returned. Stephanie, however, was upset and crying because she heard Dixon call someone and ask for a shotgun and state he would pay $100 for it. Dixon told Stephanie he was going bird hunting.
Dixon called Bonnie’s apartment twice that afternoon. Around 6:00 p.m., while Bonnie was preparing dinner for the family, Dixon arrived at the residence. Stephanie answered the door and tried to shut Dixon out when she saw he carried a shotgun; however, Dixon was able to force his way into the apartment. He walked directly to the kitchen. Bonnie begged him not to shoot, but he shot her three times in the legs and calmly walked away from the apartment.
Dixon drove directly to McIntosh’s apartment complex, seeking revenge for the problems he believed McIntosh caused. He went to his sister-in-law’s apartment in the same complex and learned that McIntosh was across the street at the laundry. McIntosh and other witnesses testified that Dixon drove directly to the laundry where McIntosh was sitting in his car with another male. These witnesses state that Dixon got out of his car, reached into the back seat, and then opened fire on McIntosh’s car. McIntosh and the other man crawled out of their car and McIntosh returned the gunfire with a revolver he had under the front seat. McIntosh testified he obtained the revolver that afternoon because he took Dixon’s threats seriously; however, he waited to shoot until he heard Dixon fire twice with the shotgun. McIntosh sustained gunshot wounds to his right elbow and right side.
Bonnie was rushed to the hospital where amputation of both her legs was performed as a lifesaving attempt. The shock proved too great for Bonnie, however, and she experienced heart failure. She died of hemorrhagic shock, secondary to multiple shotgun wounds of the thighs.
At trial, Dixon presented a very different picture. He testified that he was happy living with Bonnie until she began associating with alcoholics and drug users. At that point, he threatened to divorce Bonnie if she did not stop taking the children around those people. After he was served with a restraining order, he filed for divorce and custody of Anna.
Dixon testified that in September 1989, he flagged Bonnie down in her car on a road in Lawrence. A man got out of Bonnie’s car, whom he later recognized as McIntosh, and walked toward him with a gun. Dixon left in his car and reported the incident to the police. He denies any confrontation with Bonnie that resulted in kidnapping or bruising her.
Dixon also testified that Ada was upset with Bonnie on November 12, 1989, because she had been grounded, and Ada offered to take him to McIntosh’s apartment. Dixon was upset because Bonnie left the children alone all night and felt Anna and the other children were not well cared for. Dixon stated that Ada was angry and kicked and knocked at the door but no one would let her in. This conduct angered Dixon, and he slashed Bonnie’s tires. When he pried open the apartment door, two men came at him with drawn guns, and he recognized McIntosh as the man who had pulled a gun on him in Lawrence. In the parking lot, Dixon told McIntosh he wanted to speak with Bonnie, but when he saw McIntosh reach for a gun he took Ada and left.
Dixon testified he retrieved a shotgun from Bonnie’s apartment to protect himself from McIntosh. Dixon left for several hours and later called Bonnie’s apartment to speak with her. Some time in the afternoon, he loaded the shotgun. When Dixon learned Bonnie was home, he went to her apartment; however, he did not see her car outside and was afraid McIntosh might be inside so he took the shotgun with him. Once inside, Dixon asked Bonnie what was wrong and why she had left the children alone. She told him to stay out of her business. Dixon stated he “just lost it” then and shot Bonnie, although he did not mean to hurt or kill her.
The next thing Dixon remembered was driving to McIntosh’s apartment seeking revenge. However, Dixon stated he cooled off and went to his sister-in-law’s apartment to talk. While there, he learned McIntosh was at the laundry and decided to confront him. However, when he got out of the car and called McIntosh’s name, someone fired a gunshot at him. Dixon knelt and grabbed the shotgun. He claims he fired in self-defense.
Dixon was arrested and charged with first-degree premeditated murder of Bonnie Dixon, aggravated burglary, and attempted first-degree murder of Eddie McIntosh. Following a lengthy jury trial, he was cpnvicted as charged and sentenced. Dixon raises numerous issues on appeal.
I
Jury Instructions
Dixon contends the trial court erred in refusing to instruct the jury on the lesser degrees of homicide and on aggravated battery as lesser included offenses of attempted first-degree murder.
The general rules on the duty to instruct on lesser included offenses are well established. A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. K.S.A. 21-3107(3); State v. Hill, 242 Kan. 68, 73, 744 P.2d 1228 (1987). Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987). An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense. State v. Sullivan & Sullivan, 224 Kan. 110, 120, 578 P.2d 1108 (1978). The duty of the trial court to instruct on the lesser in- eluded offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249, cert. denied 482 U.S. 929 (1987). When the trial court refuses to give an instruction on a lesser included offense, the appellate court must view the evidence supporting the lesser charge in the light most favorable to the party requesting the instruction. See State v. Hunter, 241 Kan. 629, 644, 740 P.2d 559 (1987).
First, Dixon alleges error in the trial court’s refusal to instruct on attempted second-degree murder. Second-degree murder, K.S.A. 21-3402, is clearly a lesser included offense of first-degree murder, K.S.A. 1989 Supp. 21-3401. State v. Armstrong, 240 Kan. at 459. All the elements of second-degree murder are included in the elements of first-degree murder, which includes the additional element of premeditation. State v. Arney, 218 Kan. 369, 375, 544 P.2d 334 (1975).
Dixon argues the trial court forced the jury to choose between attempted first-degree murder and self-defense without allowing it to consider whether the act was premeditated.
The evidence presented at trial indicates Dixon either acted in self-defense or premeditated the shooting of McIntosh. Dixon claims he had no desire to injure McIntosh but wanted to confront him about the situation which had developed concerning Bonnie. He testified that he shot at McIntosh only after McIntosh fired several times at him. McIntosh testified that Dixon drove directly to the laundry parking lot, pulled a shotgun from the back seat of his car, and opened fire on McIntosh. There is additional evidence that Dixon drove to McIntosh’s apartment seeking revenge.
Under the facts of this case, there is no evidence to support a theory of second-degree murder. Thus, where the evidence to support a conviction on the lesser included offense of attempted second-degree murder is lacking, we find no error in refusing to give such instruction. State v. Hammon, 245 Kan. 450, 454, 781 P.2d 1063 (1989); State v. Hoy, 199 Kan. 340, 345, 430 P.2d 275 (1967).
Next, we examine Dixon’s argument that the trial court erred in refusing to instruct on the lesser included offense of attempted voluntary manslaughter, K.S.A. 1989 Supp. 21-3301(a); K.S.A. 21-3403. Voluntary manslaughter is defined as the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion. K.S.A. 21-3403.
Dixon’s assertion that there is evidence of a nonverbal quarrel or exchange of hostilities at the laundry parking lot sufficient to require an instruction on attempted voluntary manslaughter is without merit. We find no evidence in the record upon which the jury could reasonably convict Dixon of the lesser offense. No evidence of a quarrel in the parking lot was presented, and evidence of a quarrel between McIntosh and Dixon earlier in the day was too remote in time to support an allegation of provocation. See State v. Cates, 223 Kan. 724, 729, 576 P.2d 657 (1978). In addition, Dixon himself alleged the shooting was unintentional and committed in self-defense.
Dixon’s third argument is that the trial court abused its discretion in refusing to instruct on aggravated battery. K.S.A. 21-3414 provides, in part: “Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another . . . .”
In State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977), this court explicitly examined and compared the statutory elements of attempted first-degree murder and aggravated battery. We held that aggravated battery was not a lesser included offense of attempted first-degree murder because an element of the former offense, unlawful touching or application of force to the person of another, was not a necessary element of the latter offense. 223 Kan. at 270.
Since the decision in Daniels, however, we have adopted a two-prong test to determine whether a particular offense is a lesser included offense which requires a jury instruction thereon. State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987). First, the court must determine whether all the statutory elements of the alleged lesser included offense are required to prove the greater crime charged. 242 Kan. at 23. A jury instruction on a particular lesser offense is required whenever all of its statutory elements will be proved if the State establishes the elements of the crime charged. State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988). This “identity of elements” test was applied in Daniels and re- suited in a finding that aggravated battery, with its additional element, was not a lesser included offense of attempted first-degree murder.
If a comparison of the lesser offense and greater offense fails to disclose an “identity of elements,” the court must apply the second prong of the test. This analysis requires the trial court to examine the crime charged and determine if proof of the crime charged also proves a lesser crime. If so, an instruction on the lesser crime is required. State v. Fike, 243 Kan. at 368.
In the instant case, count three of the information alleged:
“CAIN DIXON, JR. did then and there unlawfully, willfully, towards the perpetration of the crime of First Degree Murder, as defined by K.S.A. 21-3401, commit the following overt act, to-wit: shot at Eddie C. McIntosh with a shotgun, with the intention to commit said crime, and the said CAIN DIXON, JR. failed, was prevented or intercepted in executing said crime by officers of the Wichita Police Department.” (Emphasis added.)
Dixon contends the information, read in the light of the facts adduced at trial, establishes that McIntosh was actually shot. Thus, argues Dixon, the State necessarily proved the elements of aggravated battery in establishing the elements of attempted first-degree murder.
Dixon’s argument misinterprets the second prong of the test to determine whether an offense is a lesser included offense of a particular crime charged. Under the two-part analysis set forth in Adams and Fike, a lesser crime may become a lesser included offense of a greater offense if the information actually alleges a lesser crime and the evidence which must be established to prove the crime charged also proves the lesser crime. In this case it was not necessary to prove McIntosh was actually shot to establish the elements of attempted first-degree murder. The State was required to prove only that Dixon committed an overt act towards the perpetration of first-degree murder.
Dixon’s argument fails to distinguish between what the State may prove and what the State is required to prove. State v. Gibson, 246 Kan. 298, 300, 787 P.2d 1176 (1990). The information does not allege unlawful touching or application of force to the person of another and the State was not required to adduce such evidence at trial to prove attempted first-degree murder. Therefore, aggravated battery is not a lesser included offense under the facts of this case, and we find no error in the trial court’s refusal to give an instruction thereon.
Additionally, although Dixon did not request an instruction on aggravated assault, K.S.A. 21-3410, we find no error in the trial court’s failure to so instruct. A necessary element of assault requires proof that the victim experienced immediate apprehension of bodily harm. K.S.A. 21-3408; State v. Warbritton, 215 Kan. 534, 537, 527 P.2d 1050 (1974).
Immediate apprehension of bodily harm is not a necessary element of attempted first-degree murder. We also find that the information filed against Dixon did not allege immediate apprehension of bodily harm and such proof was not required to prove the greater offense of attempted first-degree murder. Thus, there was no abuse of discretion in failing to provide this jury instruction.
Finally, Dixon contends the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter, K.S.A. 21-3404, for the killing of Bonnie. The jury was instructed on first-degree murder, K.S.A. 1989 Supp. 21-3401; second-degree murder, K.S.A. 21-3402; and voluntary manslaughter, K.S.A. 21-3403.
Where a defendant is charged with first-degree murder, involuntary manslaughter is considered a lesser included offense. State v. Franklin, 221 Kan. 739, 743, 561 P.2d 860 (1977). The trial court had a duty to instruct on the lesser crime if there was any substantial evidence tending to prove the lesser crime. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987).
The issue presented, therefore, is whether there was sufficient evidence of the commission of involuntary manslaughter presented at trial to require an instruction on the lesser included offense.
K.S.A. 21-3404(a) provides:
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.”
Dixon’s theory of defense at trial was that he became so upset with Bonnie for leaving the children alone and for improperly caring for them that he lost his wits and shot her with no intent to harm or kill her. He argues on appeal that an instruction on involuntary manslaughter was warranted because discharge of a firearm in the city violated a Wichita city ordinance and thereby constituted commission of an unlawful act in a wanton manner.
In State v. Cates, 223 Kan. 724, 576 P.2d 657 (1978), the defendant raised the very argument which Dixon presents. This court found that violation of a city ordinance was not a theory of defense raised at trial, and judicial notice of the ordinance was not requested. Thus, the court refused to find the defendant guilty of an unlawful act by violation of a city ordinance. 223 Kan. at 728.
In the case at hand, Dixon submitted a proposed jury instruction for involuntary manslaughter based upon the unlawful discharge of a firearm in the city of Wichita. In light of Dixon’s proposed jury instruction, we find the trial court had notice of a possible city ordinance violation and sufficient evidence of the unlawful act was presented.
However, before an instruction on involuntary manslaughter is required, the defendant must also present evidence the killing was unintentional. Did Dixon provide sufficient evidence the killing was unintentional to support an involuntary manslaughter instruction? We think not.
The sole evidence that Bonnie’s killing was unintentional was Dixon’s testimony that he did not intend to harm or kill Bonnie, but “lost it” once he entered her apartment. We considered a similar case in State v. Staab, 230 Kan. 329, 635 P.2d 257 (1981).
In Staab, the defendant shot and killed his ex-lover’s new husband. On the evening following the victim’s wedding, the defendant drove home to retrieve a gun, walked to the newlyweds’ home, forced his way into their house, and while being ushered out shot the victim three times. The defendant walked to his pickup and calmly drove home, where he called his ex-lover and gloated that he had done what he had said he would do. 230 Kan. at 332-33.
At trial, the defendant claimed the victim reached across his body for something and defendant shot in self-defense. We found the defendant’s testimony that he did not intend to kill was the only evidence of an unintentional killing. We found defendant’s statement, considered in light of all the other evidence, insub stantial and insufficient to support a theory of an unintentional killing. Thus, there was no duty to instruct on the lesser offense of involuntary manslaughter. 230 Kan. at 340.
In this case, the evidence reveals Dixon made threats to kill his estranged wife if she had a boyfriend, confronted Bonnie and McIntosh in a violent manner, and according to Dixon retrieved a shotgun from Bonnie’s home on the very day of her killing. In addition, Dixon spent several hours “thinking” and loaded the shotgun after learning Bonnie was home. He forced his way into Bonnie’s apartment and shot three times an unarmed victim who pled for her life. Finally, Dixon calmly walked from the apartment and drove directly to McIntosh’s apartment complex. In light of the overwhelming evidence presented at trial, we find Dixon’s sole statement denying intent to kill or harm Bonnie insufficient to support a finding of involuntary manslaughter. Thus, the trial court did not err in refusing to give the requested jury instruction.
II
Evidence
Dixon’s next argument on appeal is that the trial court erred in allowing the State to conduct an evidentiary demonstration during cross-examination of the defendant. During the prosecutor’s cross-examination of Dixon, she simulated inserting a round into the chamber of the shotgun, pointed the shutgun in the general direction of Dixon, and pulled the trigger. Dixon’s numerous objections were overruled and his motion for mistrial based on the State’s demonstrative use of the shotgun was denied.
The State contends its actions were not prejudicial or utilized to inflame the jury and intimidate the defendant. The State argues it merely attempted to refute Dixon’s testimony that he did not have a specific intent to kill Bonnie by demonstrating that a pump-action gun could not have been successively fired without conscious effort.
The allowance of demonstrations or tests, to be performed in the presence of the jury, rests in the sound discretion of the trial court, and exercise of that discretion will not be overturned on appeal unless an abuse of discretion is apparent. State v. Costa, 228 Kan. 308, 319, 613 P.2d 1359 (1980); Timsah v. General Motors Corp., 225 Kan. 305, 317, 591 P.2d 154 (1979). A dem onstration’s propriety, probative value, and assistance to the trier of fact are determinations properly left to the trial court. State v. Morton, 217 Kan. 642, 644, 538 P.2d 675 (1975). Generally, tests and experiments are admissible which reveal the ballistics of a weapon, the manner and ease of firing a gun, and the distance from a gun to a victim when the gun was fired. Malone v. New York Life Ins. Co., 148 Kan. 555, 560, 83 P.2d 639 (1938); 29 Am. Jur. 2d, Evidence § 827.
In the present case, we do not commend the State’s tactics but we cannot find the trial court’s ruling an abuse of discretion. Dixon testified on direct examination that he did not intend to hurt or kill Bonnie. The State through the use of demonstrative evidence and a visual aid attacked Dixon’s credibility and attempted to refute the testimony that specific intent was lacking when Dixon shot and killed his wife. The issue of intent was material to the case and, therefore, we find no abuse of discretion in allowing the State to demonstrate the mechanical operation of the shotgun to establish intent.
Ill
Jury
For his final argument, Dixon contends he was denied a trial by an impartial jury. He alleges the trial court erred in denying challenges for cause of three prospective jurors.
K.S.A. 22-3410 sets forth specific grounds upon which a party may challenge a prospective juror. Dixon relies upon K.S.A. 22-3410(2), which provides:
“A juror may be challenged for cause on any of the following grounds:
“(i) His state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party.”
Challenges for cause are tried to the district court and decided in its discretion. State v. Case, 228 Kan. 733, 737, 620 P.2d 821 (1980). We have consistently held that the trial court is in a better position than this court to view the demeanor of prospective jurors as they are questioned. State v. Mahkuk, 220 Kan. 74, 76, 551 P.2d 869 (1976); State v. Carpenter, 215 Kan. 573, 577, 527 P.2d 1333 (1974). Thus, the trial court’s ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown. State v. Sanders, 223 Kan. 273, 274, 574 P.2d 559 (1977).
Dixon first contends the trial court abused its discretion in refusing to sustain a challenge for cause of Ms. Slaymaker. Ms. Slaymaker stated she might have trouble being impartial in light of evidence of a prior similar crime. Ms. Slaymaker also stated during voir dire that she might give more credibility to the children’s testimony when compared to the defendant’s.
Dixon’s argument of abuse has no merit. Ms. Slaymaker was removed from the venire panel by peremptory challenge and did not serve as a juror. When a prospective juror is removed from the jury panel by peremptory challenge, her qualifications are no longer a controlling factor, and where the defendant is not prejudiced the trial court’s denial of a challenge of that juror for cause is not ground for reversal. State v. Sagebiel, 206 Kan. 482, 484, 480 P.2d 44 (1971).
Dixon next argues the trial erred in failing to dismiss Mr. Hurst. Mr. Hurst previously worked in the same law firm as had the district attorney and felt uncomfortable because the firm had supported the district attorney in the past election. Mr. Hurst stated the relationship would be a conscious factor in his deliberations but felt it would not affect his ability to make a fair judgment. Mr. Hurst also stated he might give more credibility to a child’s testimony than to defendant’s, but also noted that belief was not absolute and would depend on the individual’s testimony.
In State v. Taylor, 225 Kan. 788, 594 P.2d 211 (1979), we considered the appropriateness of a trial court’s refusal to strike two veniremen for cause who had worked in the district attorney’s campaign. The prospective jurors were closely examined and each declared his belief he could act as an impartial juror. We found there was no evidence of bias or prejudice and held the trial court did not abuse its discretion. 225 Kan. at 794.
In the present case, Mr. Hurst was subjected to extensive voir dire. He declared his ability to find the defendant not guilty if the State failed to prove all elements of the crimes charged and stated his prior relationship with the district attorney would not affect his ability to be a fair and impartial juror. Mr. Hurst’s statement that he might give more credibility to a child’s testimony was tempered by his declaration that this was not absolute and depended upon the individuals and testimony presented. This court has stated that a juror whose opinion or impression is contingent on the truth or falsity of the information presented and who is free to consider the evidence without regard to a former impression is a competent juror. State v. Sagebiel, 206 Kan. at 485; State v. Stewart, 85 Kan. 404, 410, 116 Pac. 489 (1911).
We find no evidence of prejudice by Mr. Hurst and find the trial court did not abuse its discretion in refusing to strike him from the jury panel.
Finally, we consider Dixon’s allegation of error in the trial court’s refusal to strike Mrs. Moore for cause. Mrs. Moore’s husband had recently sat as a juror on a case where one spouse killed the other in front of a child who later committed suicide. Because of the similarity between the cases, Mrs. Moore found it might be difficult for her to be a fair and impartial juror. Mrs. Moore also stated it would be difficult to remain unsympathetic to the victim. In light of the evidence of a past crime, Mrs. Moore believed it would be difficult to presume Dixon’s innocence. This information, coupled with the knowledge from the case on which her husband had served, led Mrs. Moore to conclude she might be an unfair and partial juror. Mrs. Moore had also learned from friends at the hospital that Bonnie Dixon was shot in front of her children. Mrs. Moore stated that this fact alone would not cause her to vote guilty but recognized that she did hold deep feelings on the matter.
Examination of the record clearly indicates Mrs. Moore did not desire to sit as a juror in the present case. She repeatedly told the court she would have trouble sitting as a fair and impartial juror. In denying the challenge for cause, the trial court stated, without explanation, that Mrs. Moore was a panelist who should be stricken by a peremptory challenge but not for cause.
We believe the trial court’s use of its discretion in refusing to excuse Mrs. Moore for cause is questionable but does not rise to the level of abuse. It would have been safer to excuse Mrs. Moore from the panel, but the defendant could have removed Mrs. Moore by peremptory challenge, which he did not do. The record does not indicate why the defendant failed to utilize a peremptory challenge as suggested by the trial court to strike Mrs. Moore from the panel. Dixon makes no argument that use of a peremptory challenge on Mrs. Moore would have forced him to accept other objectionable jurors. See State v. Mayberry, 248 Kan. 369, 807 P.2d 86 (1991). Under these circumstances, we find no reversible error in the trial court’s ruling.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The State of Kansas, through Attorney General Robert T. Stephan, filed this quo warranto action seeking the removal of Everett L. Johnson from the office of board member, District No. 10, Kansas State Board of Education (Board). The district court entered an order granting the State’s motion for summary judgment, and respondent appealed. The Court of Appeals affirmed the district court’s granting of summary judgment. State ex rel. Stephan v. Johnson, 14 Kan. App. 2d 542, 795 P.2d 411 (1990). We granted review.
Article 6, § 2 of the Kansas Constitution provides for a State Board of Education to supervise public schools, educational institutions, and all the educational interests of the state except those delegated to the state board of regents. The Board consists of 10 members with overlapping terms. These members represent 10 geographic districts as provided for by the legislature. Kan. Const, art. 6, § 3(a).
On April 8, 1989, Richard J. Peckham resigned his position as the duly elected board member for District No. 10, Kansas State Board of Education. On May 9, 1989, a district convention was held pursuant to K.S.A. 25-3902a, consisting of the Republican chairman and vice-chairman of each of the counties comprising District No. 10 of the Board. At the convention, respondent, a tenured faculty member of Wichita State University, was elected to fill the vacant position. The governor received a certificate of respondent’s election on May 11, 1989, and his appointment became effective seven days thereafter. Respondent filed his oath of office with the secretary of state on June 6, 1989.
As a tenured faculty member of Wichita State University, respondent is a state employee in the unclassified service. K.S.A. 75-2935(l)(f). He resides within District No. 10 of the Board.
An attorney general’s opinion was issued on May 26, 1989, concluding that K.S.A. 25-1904, which prohibits a state employee from serving as a member of the Board, bars respondent from service on the Board. Att’y Gen. Op. No. 89-65. Respondent refused to relinquish his claim to the position for District No. 10. Respondent has been acting as a Board member for District No. 10 since the filing of his oath of office on June 6, 1989.
On June 7, 1989, the State of Kansas, through the attorney general, filed a petition in quo warranto in Shawnee County District Court, requesting an order “ousting and removing” Johnson from his position on the Board pursuant to K.S.A. 60-1201 et seq. On June 9, 1989, another convention was held in District No. 10, and Gwendel A. Nelson was elected as Board member. The attorney general filed an amended petition on June 27, 1989, adding Nelson as a party, alleging Nelson’s election was null and void and requesting the court to find that a vacancy existed in the position. On June 28, 1989, the State filed a motion for suspension of public officer. This pleading asked the court to suspend both Nelson and respondent from performing duties of office until a decision was made on the amended petition in quo warranto. Respondent’s answer to this motion challenged the constitutionality of K.S.A. 25-1904.
On July 7, 1989, the district court found that respondent was a de facto member of the Board, that he had raised a bona fide legal question challenging the legality of K.S.A. 25-1904, that no public interest would be harmed by allowing him to continue in the position, and that Nelson had relinquished any claim to the position. The court denied the motion for temporary suspension.
The State moved for summary judgment on July 14, 1989. Respondent filed a counter-motion for summary judgment on July 26, 1989, acknowledging that the facts were undisputed but challenging the constitutionality of K.S.A. 25-1904. The district court granted the State’s motion for summary judgment on August 22, 1989. An order specifically dismissing Nelson from the case was entered by the district court on November 9, 1989, to clarify the status of the case. The Court of Appeals affirmed the decision of the district court in finding that the provisions of the Kansas Constitution did not provide qualifications for the Board that prohibited the legislature from enacting additional qualifications.
At oral argument before this court, counsel for respondent Johnson informed this court that, before the Court of Appeals decision was filed on July 6, 1990, respondent filed for election to the present position on the Board; he was defeated in the primary election. Thereafter, on August 16, 1990, he resigned his position as Board member from District No. 10. For that reason, we must first consider if this action is moot and should therefore be dismissed.
We have consistently followed the well-established rule that this court will not consider or decide a question on appeal when it appears that any judgment we might render would be unavailing. Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P.2d 1113 (1941). There must be an existing controversy requiring adjudication and not an abstract proposition requiring an advisory opinion. The rule as to moot questions is one of court policy, founded upon the proposition that, except when under some statutory duty to do so, courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual contro versy presented for determination. Knowles v. State Board of Education, 219 Kan. 271, Syl. ¶ 2, 547 P.2d 699 (1976).
In Moore v. Smith, 160 Kan. 167, 160 P.2d 675 (1945), D. D. Smith was nominated in the primary election to serve as sheriff for the “unexpired” or “short term.” At the general election, Keith Moore was elected sheriff for the regular two-year term beginning in January. Following the general election, Moore brought an action to enjoin the county commissioners from certifying Smith as sheriff for the “unexpired” term. The issue was whether the appeal should be dismissed as moot because the alleged short term had expired. We said:
“A ‘moot case’ has been variously defined. One common definition is that it is a case in which determination of an abstract question is sought when in reality there is no actual controversy existing. Another common definition is that it is one which seeks a judgment upon some matter which if rendered could not have any practical effect upon any then-existing controversy. (27 Words and Phrases, Perm. ed. 536, 538.) The fact that an issue has become moot does not necessarily mean that the appellate court is without jurisdiction to determine it. The rule is one of court policy, founded upon the sound proposition that except when under some statutory duty to do so courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination.
“The rule as to moot issues requires further statement at this point. The fact that the only relief directly sought upon appellate review can no longer be given, owing to expiration of a period of time involved or to other change in circumstances following judgment, is by no means always sufficient to justify dismissal of the appeal. One of the well-established conditions, as to dismissal, is stated in 4 C.J.S. 1945-1948, as follows:
“ ‘The appeal . . . will be dismissed . . . unless . . . the judgment, if unreversed, will preclude the party against whom, it stands as to a fact vital to his rights.’ (Italics supplied.) Similarly, it is said in 3 Am. Jur. 310: ‘It is not every change in circumstances which might be said to render the case a moot one so as to require a dismissal of the appeal or error proceeding, however. Thus, there will be no dismissal . . . whenever the judgment, if left unreversed, will preclude the party against whom it is rendered as to a fact vital to his rights, even though the judgment, if affirmed, may not be directly enforceable by reason of a lapse of time or change of circumstances.’ ” 160 Kan. at 170-71.
In NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan. 529, 531-32, 608 P.2d 920 (1980), we concluded the issue before the court was moot. We said:
“Appellate review is dependent upon the existence of an actual case or controversy, (Thompson v. Kansas City Power & Light Co., 208 Kan. 869, 871, 494 P.2d 1092, cert. denied 409 U.S. 944 [1972]), and none is present in a moot case. This court is not statutorily empowered to render advisory opinions. Knowles v. State Board of Education, 219 Kan. 271, 278, 547 P.2d 699 (1976); Thompson v. Kansas City Power & Light Co., 208 Kan. 869. We also find the court is without constitutional authority to render advisory opinions. Such an opinion would go beyond the limits of determining an actual case or controversy and would violate the doctrine of separation of powers. 16 C.J.S., Constitutional Law § 150.”
An exception to this general rule is recognized where the case involves a question of public interest even though it has become moot as to the parties involved.
5 Am. Jur. 2d, Appeal and Error § 768, pp. 210-11, provides:
“It is a well-established rule that an appellate court may retain an appeal for hearing and determination if it involves questions of public interest even though it has become moot so far as the particular action or the parties are concerned or though the parties desire that it be dismissed. The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions.”
What questions are of public interest are discussed at Annot., 132 A.L.R. 1185, 1188-89:
“In the first place it must be remembered that the general rule is to dismiss an appeal which has become moot or which the parties desire to have dismissed, and that the retention of such an appeal because of the public interest therein is an exception to that rule. Hence the inclination of the courts is to refuse dismissal on this ground only under exceptional circumstances and where the public interest clearly appears.
“The phrase ‘public interest’ as used in this connection means something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.
“Courts are more inclined to retain an appeal on the ground of public interest if the questions involved are likely to arise frequently in the future unless they are settled by a court of last resort. This appears both from cases which mention the fact that the question will arise frequently as a reason for hearing and deciding the appeal and from cases in which the fact that the question is not likely to arise again or at least not often is given as a reason for dismissing the appeal.”
However, this court has not been so inclined. In Moore we said:
“We conclude that although the injunction feature is no longer of consequence the motion to dismiss should be denied. Let it be made clear that this, conclusion is not at all based upon the ground that a question of public interest is involved. We have repeatedly applied the rule against deciding moot cases even though questions of great public interest were involved. (Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P.2d 1113, and cases there cited.) The motion is denied upon the ground that dismissal would unjustly affect vital rights of the appellant in a controversy not fully determined.” 160 Kan. at 176.
In Thompson v. Kansas City Power & Light Co., 208 Kan. 869, 871-73, 494 P.2d 1092, cert. denied 409 U.S. 944 (1972), appellant challenged the validity of the eminent domain statute as an unconstitutional delegation of legislative powers, a violation of appellant’s right to due process, and a.denial of equal protection of the law. We said:
“The constitutional issues raised by appellants are forcefully presented. However, appellee argues this project was completed on December 19, 1969, and the entire line has been in operation for over a year and by reason thereof all questions other than the value of the property taken have become moot.
“We have frequently said that it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. (Diehn v. Penner, 169 Kan. 63, 216 P.2d 815; Bumm v. Colvin, [181 Kan. 630, 312 P.2d 827]; also see Oil Workers Unions v. Missouri, 361 U.S. 363; 4 L. Ed. 2d 373, 80 S. Ct. 391.) The position of this court was clearly stated in Bumm v. Colvin, [181 Kan. at 636]. We said:
“ ‘The rule that when it appears by reason of changed circumstances between the commencement of an action and the trial thereof, a judgment would be unavailing as to the real issue presented, the case is moot and judicial action ceases, is not only applicable to actions seeking to enforce common-law remedies (Asendorf v. Common School District No. 102, supra; Andeel v. Woods, supra; Dick v. Drainage District No. 2, supra), but is equally applicable to actions under our declaratory judgment statute (G.S. 1949, 60-3127). This is manifest by the rule itself, by the express terms of the statute, and by our decisions which hold that in order to obtain an adjudication of any question of law under the declaratory judgment act, an actual controversy must exist (Kittredge v. Boyd, 137 Kan. 241, 242, 20 P.2d 811; Klein v. Bredehoft, 147 Kan. 71, 73, 75 P.2d 232; City of Cherryvale v. Wilson, 153 Kan. 505, 509, 112 P.2d 111; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P.2d 127), and when any legal question becomes moot, judicial action ceases (State, ex rel., v. Insurance Co., 88 Kan. 9, 10, 127 Pac. 761; State v. Allen, 107 Kan. 407, 408, 191 Pac. 476; State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P.2d 127).
“ ‘The soundness of that general rule seems obvious. If, when the action was commenced, the petition presented an actual controversy between plaintiff and the City and the commissioners justiciable under the declaratory judgment statute, clearly, on November 12, 1956, that controversy did not exist because of plaintiffs concession of changed circumstances. That being true, a judgment would be unavailing as to the real issue presented and the case was moot, hence judicial action ceased.’
“Appellants also claim the constitutional issues are subject to determination even if proximate relief is not available. The argument is that there are existing questions of public interest which should be answered to provide guidance for the courts in future condemnations. It has never been the policy of this court to write advisory opinions. In Bumm, constitutional issues were raised but we adhered to our rule that an actual controversy must exist. We do not feel inclined to depart from a rule so strongly embedded in our decisions.”
We conclude that the issues raised by respondent in this appeal are moot and the appeal should therefore be dismissed. In dismissing this appeal, we make no determination as to the merits of the issues raised by respondent in this appeal or as to the judgment entered by the Court of Appeals.
The appeal is dismissed.
Abbott, J., not participating. | [
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On November 7, 1985, respondent David H. Heilman was disciplined by indefinite suspension. In re Heilman, 238 Kan. 244, 712 P.2d 1186 (1985). On January 6, 1989, respondent filed a petition with this court for reinstatement to the practice of law in Kansas. On August 6, 1990, this court ordered that respondent be reinstated upon successful completion of the Multi-State Professional Responsibility Examination and the Kansas Bar Examination.
The Clerk of the Appellate Courts has verified that the respondent has taken and successfully passed the Multi-State Professional Responsibility Examination and the Kansas Bar Examination.
The court therefore finds that respondent has fully complied with the order of reinstatement entered by this court on August 6, 1990, and should be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that David H. Heilman be and he is hereby reinstated to the practice of law in the State of Kansas, and the Clerk of the Appellate Courts is directed to enter his name upon the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Abbott, J.:
The plaintiffs, Thomas Robert Vargas and Peoples National Bank (Bank), appeal from summary judgment granted in favor of Nautilus Insurance Company (Nautilus), Chris-Leef General Agency (Chris-Leef), and Bud Hamm Insurance & Real Estate, Inc., (Hamm). At issue is whether an insurance policy on a building and its contents was in force on the date the building and contents were destroyed by fire. Also at issue is the Bank’s status under the policy.
Vargas owned Robert’s Body Shop. The Bank had an insurable interest both in the building containing the body shop and in part of its contents. Vargas purchased an insurance policy from Nautilus in February 1987. The insurance policy was purchased through a local agent, Hamm. The policy was brokered through Chris-Leef. The Nautilus policy was obtained through a premium-financing agreement in which Premium Finance Specialists (PFS) paid the annual premium to Nautilus in exchange for a down payment and monthly payments from Vargas. Vargas failed to make timely payments and Chris-Leef sent a notice of cancellation to him. The cancellation was effective April 24, 1987.
The parties agree that Chris-Leef, on behalf of Nautilus, agreed to reinstate the policy without lapse if PFS received a check for the past-due premium by April 29, 1987. The defendants contend the agreement was that Vargas was to mail a check to PFS by April 27, 1987, which had to be received by PFS by April 29, 1987. Vargas filed an affidavit denying the agreement was that the check had to be mailed by April 27, 1987.
On the morning of April 29, 1987, the building and contents were destroyed by fire. With full knowledge that the premises and contents had been destroyed, Vargas took a check for the past-due premium to Hamm’s office. On advice of Mr. Puckett of Hamm, Vargas wired the premium payment by Western Union so that it was received by PFS on April 29, 1987. The policy was then reinstated “effective 12:01 a.m., 4/24/87, with no lapse in coverage.” When Nautilus learned of the loss, it denied coverage.
Vargas and the Bank filed suit. The Bank alleged that it had an insurable interest in the building arising from the contract for sale between the Bank as seller and Vargas as buyer and that the Bank was a loss payee on the Nautilus policy.
All defendants filed answers. Nautilus asserted a cross-claim against Hamm. Discovery proceeded and motions for summary judgment were filed by each of the parties.
The trial court granted summary judgment and explained his judgment, in pertinent part, as follows:
“On the morning of April 29th, 1987, the plaintiffs ‘Robert’s Body Shop’ was destroyed by fire, which was the insured premises. Subsequent to the fire, the plaintiff went to the defendant Hamm’s office with a check for the past-due premiums. Upon the advice of Mr. Puckett of that agency, plaintiff wired the premium payment by Western Union so that it was received by Premium Financing Specialists, who was financing the policy, on April the 29th. The defendant Nautilus then reinstated the policy dated April the 24th, 1987. The reinstatement endorsement checked the phrase ‘the policy is reinstated effective 12:01 a.m., 4-24-87, with no lapse in coverage.’ This form had blanks allowing for reinstatement with a lapse between the cancellation date and the reinstatement date, and also another which was ‘subject to the named insured’s warranty that there have not been any claims between the cancellation date and “blank”, being the date of the policy.’
“The plaintiffs contention is that by accepting the premium payment on the date previously agreed in issuing the reinstatement policy to the previous date, that the insurance company is bound by the express terms of the written instruments.
“The defendants contend that it was simply a case of one purchasing insurance while knowing that the insured premises were destroyed and concealing this fact from the insurer. The defendants rely on Matlock v. Hollis, 153 Kan. 227, which states that if an insured ‘applies for insurance knowing that the building has already been destroyed by fire, conceals the fact of the prior loss and secures a policy antedated to cover the time of the loss, the policy is void and no liability ever attaches.’
“According to the court:
“ ‘While insurance contracts are not technically wagering contracts, an applicant for insurance stakes his premium payment on the chance that there will be a loss. By the same token, the insurance carrier takes a chance—the heavy odds being represented by the face of the policy as against the premium—that there will be no loss. If the applicant knows his house has already burned down, he is taking no chance, and the policy is not merely voidable, but is void. The implied condition, requisite to the contract, is absent. Id.’
“The Court finds that defendant Nautilus Insurance Company is correct in application of the law to the relevant undisputed facts recited herein, and adopts said defendant’s briefs herein as this Court’s findings and conclusions of law herein.
“Because the plaintiffs claim relies on its claim versus Nautilus, the remaining defendants’ motions to dismiss are sustained. It is unnecessary under this conclusion of the case to determine the other issues raised as to agency, possible dual agency and choice of law questions.”
As we view the trial court’s reasoning, it held the property was destroyed prior to the policy being reinstated and, under Kansas law, the policy is void. The trial court then concluded that all of Vargas’ claims (including the Bank’s) were dependent upon his claim against Nautilus and granted summary judgment on the remaining defendants’ motions.
We hold that the trial court erred in granting summary judgment for a number of reasons.
There is one clear unambiguous piece of evidence to show the agreement reached on reinstatement of the policy and that is the reinstatement endorsement itself. It contains thrée options for the insurer to check: reinstatement with no lapse, reinstatement with a lapse between the cancellation date and the reinstatement date, and reinstatement subject to the named insured’s warranty that there have not been any claims during the lapse. The first option, reinstatement with no lapse, is checked and the policy was reinstated effective April 24, 1987.
The trial court relied, apparently, on Matlock v. Hollis, 153 Kan. 227, 109 P.2d 119 (1941), in holding that the fire was not covered. In Matlock, this court was presented with the question of whether an employee can recover compensation from a workers compensation insurance company for an injury received prior to the application of an antedated policy, with the fact of such injury having been fraudulently concealed by the employer when the application was made. This court held that a policy so obtained was void ab initio and could not confer upon the employee a right to recover because no insurance policy was in force when the injury occurred. 153 Kan. 227, Syl. ¶ 2.
Matlock presents a different issue. Here, a policy had been in force. It was cancelled. There was an offer by the company to reinstate the policy with no lapse. For the insurance company, reinstating with no lapse has obvious benefits: It does not have to go to the expense of issuing a new policy and it gets the premiums during the lapse period. But, for “without lapse” to have meaning to the insured, it would have to mean that a loss during this time would be covered. Otherwise, the insurance carrier would collect a premium for a period for which it did not take a risk.
Nautilus argues that this issue has been decided before in other jurisdictions and cites as an example Johnson v. Insurance Co., 119 Tenn. 598, 107 S.W. 688 (1907). In Johnson, the original insurance contract expressly denied coverage during any period when premiums were not paid. Based on this express language in the contract, the Tennessee Supreme Court held that the antedated reinstatement did not operate to cover a loss occurring when premiums were not paid up.
Here, the insurance policy (at least that part which is in the record), does not mention lapse and reinstatement. Further, there is in the present case a signed reinstatement endorsement stating that there is coverage during the lapse.
In State Farm Mutual Automobile Ins. Co. v. Bockhorst, 453 F.2d 533 (10th Cir. 1972), an insured had let his automobile insurance lapse and then had an accident. He informed his agent of this. The company accepted his check and retroactively reinstated the policy. The Circuit Court said that, although the insurer had the right to not retroactively reinstate the policy, it waived this right by doing so when it had been informed of the accident. The court distinguished Matlock, arguing that there was fraudulent concealment at issue there.
Here, the policy was valid when issued. The insured (Vargas) failed to pay the premium timely. Evidence is in the record that an agreement was reached that, if a payment was made by a certain date, the policy would be reinstated without lapse. If that alleged agreement and receipt of payment is proved to the satisfaction of the trier of facts, the policy would be in effect at the time of the loss.
The insurance carrier agreed to reinstate the policy without lapse, provided payment was made by a specified date. Thus, the insurance carrier agreed to accept any risk during the period of time between when the policy was cancelled and the date given to make the payment. At the time the insurer agreed to accept the risk, the res actually existed. Had the res that was to be insured not existed when the insurer agreed to accept the risk and the insured been aware of that fact, the policy would have been void. But, where the insurer agrees to accept a risk for a premium to be paid on a future date, the insured is fully protected, provided the premium is paid before the deadline for payment.
The trial court erred in granting summary judgment to the defendants on this issue.
There is also a disputed factual issue as to whether the agreement required payment to be mailed prior to April 27, 1987. If so, a question arises as to whether that requirement is material. If material, an issue remains as to whether the mailing requirement was waived when the money was received and the policy reinstated. The trial court will have to make this determination on remand. In addition, all of the original issues remain that are not specifically dealt with herein.
Hamm suggests that summary judgment in its favor should be affirmed because the trial court was correct in granting it summary judgment. The trial court did not grant summary judgment to Hamm on any grounds except on the issue we have this day reversed. Thus, the trial court must first be given an opportunity to pass on Hamm’s motion for summary judgment before it will be considered by this court.
The remaining issue before us concerns the Bank. The trial court granted summary judgment for the defendants and against the Bank, finding that under the terms of the policy’s mortgage clause, notice of cancellation must be sent to the mortgagee, but that the Bank was not listed as a mortgagee in the policy. The Bank was named as a loss payee.
The insurance policy itself names only Thomas Vargas as an insured. On the front page appears the following language: “Mortgage clause: Subject to the provisions of the mortgage clause attached hereto, loss, if any, on building , items, shall be payable to: insert name(s) of mortgagee(s) and mailing address(es).” Nothing is listed in the space provided.
Several pages later is an endorsement entitled, “Loss Payable Clause.” It provides: “Loss, if any, shall be adjusted with the insured and shall be payable to the insured and People’s National Bank, 300 N. Kansas Ave., Liberal, KS 67901.”
Several pages after the endorsement, in the standard boilerplate policy provisions, is the mortgage clause referred to on the first page. It provides:
“Mortgage Clause . . . (Applies only to building items and is effective only when policy is made payable to a named mortgagee or trustee.)
“Loss or damage . . . shall be payable to the mortgagee . . . , named on the first page of this policy, as interest may appear . . . [and] shall not be invalidated by any act or neglect of the mortgagor or owner of the . . . property . . . provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy the mortgagee . . . shall, on demand pay the same.
“This Company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee . . . for 10 days after notice to the mortgagee ... of such cancellation and shall then cease, and this Company shall have the right, on like notice, to cancel this agreement.”
Under the terms of this language, if the Bank had been listed on the first page as a mortgagee, it would have had a right to notice of cancellation.
The Bank was not listed as a mortgagee, and the question arises whether being listed as a loss payee is sufficient to require notice.
In Francher v. Carson-Campbell, Inc., 216 Kan. 141, 144, 530 P.2d 1225 (1975), this court held that a mortgage clause in an insurance policy creates a separate contract between the mortgagee and the insurer. See Prather v. National Fire Ins. Co., 153 Kan. 477, 481, 112 P.2d 99 (1941). This is the majority, if not universal, rule. See 5 Couch on Insurance 2d § 29:65 (1984). And, if the insurer wants to cancel the policy, notice must be given to the mortgagee before cancellation of the policy. 6A Appleman, Insurance Law and Practice § 4182 (1972).
A loss payee clause is interpreted differently than a mortgage clause. A loss payee clause merely stipulates that proceeds from a policy will be payable to the named payee, but does not create a contract between the named payee and the insurer. The named payee must stand in the shoes of the insured and has no rights independent of the insured’s rights. 5A Appleman, Insurance Law and Practice § 3401 (1970); 5 Couch on Insurance 2d § 29:66. In Elmore v. Royal Ins. Co., 154 Kan. 93, 97, 114 P.2d 786 (1941), this court said of a mortgagee named under a simple loss payable clause: “The mortgagee was not a party to the instant contract but was merely an appointee to receive the proceeds of the policy to the extent of its interest.” Under the loss payable clause, the named payee is barred from recovery if the insured is barred. 5A Appleman at § 3401. By the express terms of mortgage clauses, a mortgagee is not barred.
In Schleimer v. Empire Mut. Ins. Co., 71 Misc. 2d 1014, 337 N.Y.S.2d 872 (1972), aff'd 43 A.D.2d 825, 352 N.Y.S.2d 429 (1974), the court held that a party designated under a loss payable clause is not entitled to notification of cancellation because “[u]nder a limited loss payable clause the rule is that if the policy is not collectible by the insured, the appointee cannot recover.” 71 Misc. 2d at 1015 (citing 5A Appleman at § 3335).
Because the Bank was not a named insured and because the Bank was named under a loss payable clause rather than a mortgage clause, the trial court’s grant of summary judgment was correct (unless the Bank can show that the agent intended the Bank to be named as a mortgagee on the policy and it was the insurance carrier’s, or its authorized agent’s, fault it was not so named). The fact that Nautilus later sent notice of cancellation to the Bank is irrelevant.
As a result of our rulings herein, the remaining issues are moot.
Affirmed in part, reversed in part, and remanded. | [
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The opinion of the court was delivered by
McFarland, J.:
Ruby M. Hendrickson filed proceedings to probate the estate of her deceased common-law husband, Delbert P. Hendrickson. Decedent’s children, Gene R. Hendrickson and Judy L. Martin, contested Ruby’s status as the widow of the decedent. The magistrate court held in favor of Ruby. The district court, on appeal, held Ruby had failed to carry her burden of proof to establish the existence of the common-law marriage. The Court of Appeals affirmed the district court in an unpublished opinion filed May 25, 1990. The matter is before us on petition for review.
The three elements of common-law marriage are: (1) capacity of the parties to marry; (2) present marriage agreement between the parties; and (3) a holding out of each other as husband and wife to the public. Eaton v. Johnston, 235 Kan. 323, Syl. ¶ 1, 681 P.2d 606 (1984). Capacity to marry relates to whether or not a legal impediment exists to entering into a marriage contract. Accordingly, the term “capacity to marry” involves such diverse matters as mental or physical capacity, the absence of a spouse, whether a marriage would be incestuous, and the party being of sufficient age to marry. See generally 52 Am. Jur. 2d, Marriage § 14 et seq. In the case before us, the only issue is whether or not the decedent had sufficient mental capacity to enter into a common-law marriage.
The facts may be summarized as follows. Delbert Hendrickson was born in 1915. In 1939 he married his first wife, Irene. In 1944, he was discharged from the United States Army with a 50% disability rating. The reason for the resultant disability pension was either a “nervous breakdown” or “back problems.” The son, Gene, testified he believed the former version; Ruby testified Delbert told her the latter version. No official records were introduced into evidence. Three children were born to the marriage, Gene, Judy, and Rodney.
Delbert was a poor provider, and the family had many financial problems. Delbert had various hospitalizations. Gene testified he understood the cause was mental illness. In 1968, Delbert’s disability pension was increased to reflect 100% disability. Irene was, during her married life, the stabilizing spouse and manager of the family. She had to perform this role quietly and indirectly, or Delbert would become angry. In December 1987, Irene died.
About 1981, the younger son, Rodney, was killed in a truck accident. His parents received about $100,000 from litigation over the loss of Rodney. During the period of time at issue herein (1988), about $50,000 and a small farm near Neodesha remained. The two remaining children were married adults and lived some distance from Delbert, who stayed on the farm. Delbert would have problems from time to time managing his finances and Gene would straighten out the problems.
In March of 1988, Ruby and Delbert met through Ruby’s son. This son had an interest in horses and would go to Delbert’s farm to ride. Ruby started accompanying the son to the farm and began helping Delbert. Ruby was 55 years old and Delbert was 73. Commencing in July 1988, Ruby would spend some nights on the farm. There was considerable testimony that the two discussed marriage, and that Delbert wanted to marry Ruby.
During this summer, heart disease became a problem for Delbert and this required treatment at the Veterans Administration (V.A.) hospital in Wichita. He was hospitalized various times during that summer and fall. Ruby was involved in making the arrangements and providing the transportation. In November 1988, Delbert returned to the Wichita V.A. hospital. His condition was poor and he was transferred to the V.A. hospital in Oklahoma City where more specialized treatment was available.
A staff member of the V.A. hospital telephoned Ruby, in late November 1988, requesting that she come and see Delbert. She was advised Delbert was going to die. Ruby had no private transportation and arrived by bus late at night on November 23, 1988. The V.A. hospital had quarters ready for her at its “Hospitality House.” The following morning, Thanksgiving, Ruby went to the hospital. Delbert’s physician and a nurse accompanied her to Delbert’s room. Ruby testified that, in the presence of these staff members, Delbert asked her to marry him yet that day and she agreed. Delbert looked quite ill and was wearing an oxygen mask. Shortly thereafter, the hospital chaplain arrived and asked if the wedding was on. Hospital staff advised the media and at 1:00 p.m. that day the chaplain performed the ceremony—designated as a common-law marriage at the time as there was no marriage license. Local newspapers and a television station granted coverage due to the human interest angle of the story. Introduced into evidence was a copy of the brief film clip used by the television station on its evening news show. The couple is portrayed sitting on the edge of Delbert’s bed. Delbert is smiling and holding Ruby’s hand. He then removes his oxygen mask and kisses Ruby. Later that day, Ruby telephoned Delbert’s children to tell them of the marriage (Delbert did not have a telephone in his room).
Ruby moved into Delbert’s hospital room. On December 3, 1988, Delbert was discharged and the V.A. hospital staff took the couple back to Ruby’s home in Fredonia. Delbert’s son, Gene, and his son-in-law, Lornell Martin, testified that Delbert telephoned them shortly after his arrival in Fredonia. He told them things happened so fast he did not realize what was going on. This testimony is rather unclear as to whether Delbert was referring to the wedding or the theft of money from Ruby in a purse snatch at the hospital.
Delbert’s condition deteriorated and he was rehospitalized in Wichita where he died on December 12, 1988. He had resided in Fredonia approximately one week.
Preliminarily, some comment needs to be made as to which state’s law applies. The marriage occurred in Oklahoma. The validity of the marriage should be determined under that state’s law. Oklahoma recognizes common-law marriage. See In re Sanders Estate, 67 Okla. 3, 168 Pac. 197 (1917). The parties have presented no research to us on the requirements for a valid common-law marriage in Oklahoma. Apparently, they are satisified that Kansas and Oklahoma have identical applicable law in this area. Our limited research has not disclosed any differences in the subject area which are pertinent herein. The parties argue Kansas law in support of their respective positions. We will, under these circumstances, decide the matter as though the marriage had occurred in Kansas.
What is meant by the term mental capacity to marry? In Baughman v. Baughman, 32 Kan. 538, Syl. ¶ 5, 4 Pac. 1003 (1884), this court held:
“In order to avoid a contract of marriage on the ground of mental unsoundness, the party alleged to be insane or non compos mentis must be incapable of understanding the nature of the contract itself. Mere imbecility or weakness of mind, caused by disease or otherwise, will not be, when unaccompanied by circumstances showing it has been taken advantage of, a sufficient ground for avoiding such a contract. If the powers of the mind of the person alleged to be non compos mentis have been so far affected by disease or the decay of his faculties as to render him incapable of knowing the effect of the act he is about to perform, and of intelligently consenting to the marriage ceremony, then there is an incapacity on his part to contract. On the other hand, even if his understanding be weak, still, if the capacity of his mind remains to see things at the time in their true relations, and to form correct conclusions, the contract of marriage will be valid, in the absence of fraud or imposition.”
The facts herein preclude any possibility that Ruby pressured Delbert into marrying her. If anybody took advantage of Delbert’s condition, it was Delbert. Ruby was requested by a hospital staff member (either Delbert’s physician or a social worker) to journey to Oklahoma to visit Delbert, as the hospital believed Delbert was dying. She arrived by bus in the middle of the night and, the following morning, was taken by Delbert’s physician to see him. Delbert asked her to marry him, the ceremony to be later that day. Inferentially, the wedding machinery was already in gear when Ruby arrived in Delbert’s room. This may well have been perceived by Ruby as a dying man’s last request. Ruby was certainly under pressure to agree.
“The test of mental capacity to contract is whether the person possesses sufficient mind to understand in a reasonable manner the nature and effect of the act in which he is engaged.” DeBauge Bros., Inc. v. Whitsitt, 212 Kan. 758, 762, 512 P.2d 487 (1973). As related to the degree of mental capacity required to contract a marriage, there is a split of authority on whether the same degree of mental capacity necessary for entering into an ordinary contract is required or whether a lesser degree will suffice. See Annot., Mental Capacity to Marry, 82 A.L.R.2d 1040, §§ 3-4. The test for mental capacity previously cited herein from Baughman v. Baughman is so archaic in language t that it should be modernized. We adopt the test quoted in the above A.L.R. 2d citation at 1044, which itself was taken from Johnson v. Johnson, 104 N.W.2d 8 (N.D. 1960), as follows:
“ ‘[T]he best accepted test as to whether there is a mental capacity sufficient to contract a valid marriage is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates.’ ”
As noted by the trial court, it is unfortunate that in this unusual case where medical professionals were involved in the whole scenario, including attendance at the ceremony, that these people gave no testimony. Likewise, the testimony, of the chaplain and the media people present would have been very pertinent. For whatever reason, the facts known by these people and the relevant medical opinions were not available to the trial court and are not before us. The only testimony as to what transpired in Oklahoma City on the crucial day is that of Ruby. Plus, we have the brief television film clip. The film contains no audio of the couple’s words.
The matter of who has the burden of proof is determinative herein. The trial court and the Court of Appeals placed the burden of proving mental capacity upon Ruby, in reliance upon Driscoll v. Driscoll, 220 Kan. 225, 227, 552 P.2d 629 (1976), wherein we said:
“The burden of proving a common-law or consensual marriage rests upon the party asserting it.”
Driscoll was a divorce action. There was no issue of mental capacity in Driscoll. As a general statement of law, the citation from Driscoll is sound. However, on the issue of mental capacity another element comes into play. In Kansas there is a presumption of sanity and competency which cuts a path through many areas of the law. See State v. Hollis, 240 Kan. 521, Syl. ¶ 3, 731 P.2d 260 (1987), wherein we stated:
“There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case.”
Also, PIK Civ. 2d 15.61, dealing with adjudication of an incapacitated person, provides in part:
“A person is presumed to be competent, but that presumption is overcome if the evidence establishes that the person is incapacitated.”
We adopt the following statement from Annot., Mental Capacity to Marry, 82 A.L.R.2d § 9, p. 1053:
“The general presumption is that a person who has contracted a marriage was mentally capable of contracting it, and the burden is on the party alleging mental incapacity to prove it.”
Certainly, there are sound practical reasons for the presumption of sanity, competency, and capacity. A high percentage of all litigation involves attempts to hold persons accountable for alleged wrongful acts or omissions. If the party seeking such accountability had to prove in his or her case in chief that the other party was sane, competent, or had capacity (depending on the type of litigation involved), the burden would be insurmountable.
The burden of proof was crucial to the district court’s determination herein as shown by the following excerpt from its memorandum. opinion:
. “There seems to be little, if any, truly impartial- evidence on the question of Mr. Hendrickson’s legal capacity. The battle lines were drawn between Ruby M. Baker/Hendrickson on the one hand and Mr. Hendrickson’s children on the other. Each presented testimony which, predictably, favored their respective contentions. Each side presented corroborating testimony, again heavily slanted toward their respective positions. There is little doubt of Mr. Hendrickson’s frail health in the last year of his life, and I am persuaded by the evidence of his diminished mental abilities over the years. However, none of the evidence presented made it clear whether he was or was not capable of entering into an agreement. I then find myself wondering about the lack of evidence, which should have been readily available, from attending doctors or nurses as to his capacity. I realize that I can’t speculate as to what that evidence might or might not have shown.
“In the final analysis, I go back to the burden of proof. Ruby M. Baker/ Hendrickson, by law, was in the position of having to prove her claim of capacity on the part of Mr. Hendrickson was more probably true than untrue. This she did not do. Accordingly, not all of the requirements were met for a valid common-law marriage, and Ruby M. Baker/Hendrickson, as a matter of law, is not the surviving spouse of Delbert M. Hendrickson.”
We are not unmindful of our statements in Eaton v. Johnston, 235 Kan. 323, 324, 681 P.2d 606 (1984), wherein we stated:
“ ‘In considering whether reversible error was committed in finding that a common-law marriage did not exist, several long-standing rules of appellate review are to be taken into account. A district court judgment is presumed valid and will not be set aside absent an affirmative showing of error by the appellant. [Citation omitted.] A finding that a party has not sustained its requisite burden will not be disturbed absent an arbitrary disregard of undisputed evidence. [Citation omitted.] Because of the trial court’s advantageous position, the appellate court does not retry disputed factual issues nor pass on the credibility of witnesses and the weight to be given each piece of testimony. [Citations omitted.]’ ”
In the case before us, the trial court clearly stated in its conclusion that neither party had satisfactorily proved their respective claims as to capacity. Under these circumstances, whoever had the burden of proof necessarily loses. We conclude the trial court erred in not applying the presumption of capacity and not placing the burden of proof on those claiming incapacity to rebut that presumption. This presumption, plus Ruby’s evidence in support of capacity and the trial court’s comments, requires reversal of the judgment herein and an entry of judgment holding that a valid common-law marriage existed between Delbert and Ruby.
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed. Judgment is entered in favor of appellant, and the case is remanded to the district court for further proceedings consistent with this opinion.
Abbott, J., not participating. | [
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The opinion of the court was delivered by
Abbott, J.:
In this action, the trial court held that the City of Wichita’s false alarm ordinance was unconstitutional due to that part of the definition of false alarm which defines false alarm as a “signal transmitted in the absence of an alarm condition,” a definition which the court found to be vague.
Armored Services, Inc., Chance Operations, Inc., and Concrete Accessories Company, Inc., (System Users) have alarms installed at their offices. When the alarm is triggered, it does not ring law enforcement or emergency personnel directly. The alarms are connected to a central station, which, in turn, notifies emergency personnel. The companies which run the central stations are not parties to this action.
Wichita, where the System Users in this action are located, has an ordinance which provides for “administrative fees” for false alarms. The System Users in this action had the penalties assessed against them for a number of false alarms. They exhausted their administrative remedies and appealed to the district court pursuant to K.S.A. 1989 Supp. 60-2101(d). In the district court, the System Users also petitioned for a declaratory judgment that the ordinance was unconstitutional.
The district court held that there was no evidence to support the assessment of penalties against the System Users and held that the ordinance was unconstitutionally vague. On appeal, the City abandons its argument that the penalties were proper and only challenges the trial court’s determination that the ordinance is unconstitutional.
The purpose of the Wichita alarm ordinance is set forth in the ordinance itself: “[t]o reduce the number of . . . false alarms.” Wichita Code, § 3.40.010 (1987). The ordinance defines a false alarm as:
“activation of an alarm system . . . through mechanical failure, malfunction, improper installation, improper adjustment, negligence of a person, or an alarm signal transmitted in the absence of an alarm condition except when initiated by an act of God. Provided, however, that when the communications center is notified within two minutes of receipt of the alarm activation that [emergency personnel] are not required at the alarm location, such alarm activation shall not be deemed a false alarm for purposes of assessment of apy administrative charge.” (Emphasis supplied.) Wichita Code § 3.40.020 (1987).
The phrase “absence of an alarm condition” is not specifically defined by the ordinance, and this is the phrase the district court found to be ambiguous.
The ordinance establishes a graduated schedule of penalties or “administrative service fees” for false alarms occurring during each quarter of the year. Wichita Code § 3.40.090 (1987). The ordinance also establishes a rebuttable presumption that the central monitoring station caused the malfunction:
“[W]here the alarm system is connected to a central station, it shall be presumed the false alarm was due to a malfunction of the system and the administrative charge assessed against the central station who shall be responsible for the payment thereof unless said central station can show the false alarm was caused by the system user who shall then be liable for the administrative charge.” Wichita Code § 3.40.090 (1987).
The trial court reasoned that “in the absence of an alarm condition” could not mean alarms caused by mechanical failure, malfunction, improper installation, improper adjustment, or negligence of a person. The court said:
“Some other cause for an alarm was intended to be covered [by that phrase].
“[The Alarm Administrator] found the alarms were false because ‘there was no known evidence of any effort to unlawfully enter the premises at the dates and times shown’ on the dispatch cards and, therefore, concluded that the alarms were transmitted in the absence of an alarm condition. It follows then that the Alarm Administrator believes that ‘the absence of an alarm condition’ means ‘no evidence of an attempted break-in.’ However, that definition is fatally flawed because it does not exclude alarms caused by (a) mechanical failure, (b) malfunction, (c) improper installation, (d) improper adjustment, (e) negligence of a person, or (f) acts of God. . . .
. . The Council intended that the plaintiffs and other system users should not be responsible for false alarms caused by malfunctions. That is the only possible reason for the rebuttable presumption created by the Ordinance. When a system malfunctions, there is no evidence of an attempted break-in. If the lack of break-in evidence means there was no alarm condition, and the absence of an alarm condition means the alarm was false, then the Alarm Administrator can make the plaintiffs responsible for a malfunctioning alarm system contrary to the wishes of the Council.”
In analyzing this ordinance, certain rules of construction need to be considered. The constitutionality of a statute (or ordinance) is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must appear the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of superior law is clear beyond substantial doubt. Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 74, 697 P.2d 1310 (1985).
This court recently again set forth the rules regarding vagueness for criminal statutes in City of Wichita v. Wallace, 246 Kan. 253, Syl. ¶ 2, 788 P.2d 270 (1990):
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice.”
Here, the ordinance being challenged is not criminal in nature, but, rather, provides for civil penalties. In In re Brooks, this court said, “In determining constitutional challenges for vagueness, greater leeway is afforded statutes regulating business than those proscribing criminal conduct.” In re Brooks, 228 Kan. 541, 544, 618 P.2d 814 (1980) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 [1972]). See Wallace, 246 Kan. at 259; State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983); Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980).
Under the ordinance, a false alarm is presumed to be the fault of the central station. Wichita Code § 3.40.090 (1987). To avoid a fine, the central station must show that the false alarm “was caused by the system user.” In order words, for a system user to be liable for the fine, there must be a showing by the central station that that system user was negligent. However, the central station can be held to be liable absent a showing of fault; it is presumed to be liable.
With this framework in mind, the definition of false alarm and “absence of an alarm condition” as suggested by the City makes sense. The central station is responsible for all of the alarm equipment installed with the system user, the central station is liable for mechanical failure, malfunction, improper installation, improper adjustment, and negligence of a person at the central station. Because the system user is only liable if the central station can show fault, the system user is liable for “negligence of a person” at the system user s location.
Liability for an “alarm signal transmitted in the absence of an alarm condition” falls on the central station, which is presumed liable without a showing of fault. This provision is simply a strict liability provision. If an alarm is given in a circumstance where it is unwarranted, i.e., no evidence of a burglary, fire, robbery, etc., the central station (which is presumed liable) is liable. The only way for the central station to escape liability, other than to show fault by a system user, would be to show that the cause of the alarm was an act of God.
The trial court’s reasoning that the ordinance is vague because no one could offer an example of “an alarm signal transmitted in the absence of an alarm condition” misses the point. The phrase is intended to cover situations where there is no explanation for the alarm signal and covers situations in which the central station denies any fault on its part, but is unable to show that the system user was at fault.
In our opinion, the ordinance is not vague. The trial court’s judgment to the contrary is reversed. That part of the judgment holding the appellees are not subject to the administrative penalties due to a lack of evidence is affirmed.
Affirmed in part and reversed in part, | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Douglas A. Sutherland from his conviction of one count of aggravated robbery, contrary to K.S.A. 21-3427.
Sutherland was convicted of the October 5, 1988, aggravated robbery of a Town and Country store located in Wichita. Sutherland, who was 17 years old at the time of the offense, was certified to stand trial as an adult.
Sutherland contends the trial court erred by instructing the jury that a knife is a dangerous weapon and in failing to instruct the jury on robbery and theft as lesser included offenses of aggravated robbery. He also contends that K.S.A. 1989 Supp. 21-4603(3) mandates that his sentence be reduced because the State Reception and Diagnostic Center (SRDC) report recommended a modification of the sentence.
At trial, Sarah Lehman testified substantially as follows. She was working at the Town and Country store on October 5, 1988, in the early morning. At about 12:30 she became suspicious when she saw a man standing outside the building. She asked a customer, Cris Fulps, to go outside and ask the person standing there to leave. The man then turned and walked away.
Lehman later saw the same man, accompanied by another man, standing outside the store. She again went out and asked them if they needed anything. The men told Lehman that they were waiting for a ride. Lehman told the men that she would call the police if they did not leave. The men walked across the street. Lehman observed that both men were wearing brown camouflage paint on their faces.
Lehman was frightened by the men and she asked Fulps to stay in the store with her. At about 4 a.m., the men returned. Sutherland, whom Lehman positively identified at trial, ap proached her at her desk and demanded money. The other man stood by Fulps; Lehman identified Aric Baughman at trial as that man. Lehman initially told Sutherland that she did not have any money, and he responded, “Don’t play stupid with me; you know what we want.”
At this point, she observed that Baughman was holding a knife straight down by his side. She described the knife as about six inches long with a jagged edge. Lehman proceeded to the cash register and opened it, and Sutherland reached in and grabbed the money. Sutherland and Baughman then ran out of the store.
Fulps also testified at trial. He testified he initially saw the tip of a knife blade sticking out the end of the sleeve of the man standing next to him. The man revealed the knife to Fulps and pointed it at him as soon as Sutherland told Lehman not to “play stupid.” Fulps described the knife as six to eight inches long. At trial, Fulps was unable to positively identify Sutherland as the man who took the money from Lehman, although he did say that Sutherland looked a lot like him; Fulps did identify Aric Baughman as the man who stood next to him.
Baughman also testified at trial. He testified that he, Sutherland, and several other people were at his mother’s house prior to the robbery, where he and Sutherland discussed the robbery. Before they left, they both got knives from the kitchen and put brown paint on their faces. On their way to the Town and Country, they stopped at the Zip-In store to talk with a friend. Their presence at the Zip-In was verified at trial by Douglas Black and Gary Zongker, both of whom stated that either Sutherland or Baughman dropped a knife while they were in the store.
Some time after the robbery, Sutherland was questioned by Wichita Police Detective Mitchell Mervosh, who testified at trial. Mervosh testified that he advised Sutherland of his Miranda rights and began questioning him about the robbery. When Mervosh advised Sutherland of the purpose of the interview, Sutherland began crying. According to Mervosh, Sutherland generally denied participation in the robbery, but when asked about the knives, Sutherland replied that he and Baughman obtained them from Baughman’s mother’s kitchen, and that after the robbery, he and Baughman returned to that residence.
At trial, Sutherland testified on his own behalf to the effect that he was at Baughman’s house where a party was underway, but that he did not go to, nor rob, the Town and Country. According to Sutherland, when Baughman left the party, he remained behind until Baughman returned.
Sutherland was found guilty of aggravated robbery and sentenced to 15 years to life.
AGGRAVATED ROBBERY INSTRUCTION
K.S.A. 21-3427 provides: “Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.”
The following jury instruction, based on PIK Crim. 2d 56.31, was given as instruction No. 9:
“Douglas A. Sutherland is charged with the crime of aggravated robbery. Mr. Sutherland pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Douglas Sutherland intentionally took property, to-wit: U.S. monies from the person of or in the presence of another, to-wit: Sarah Lehman;
“2. That the taking was by threat of bodily harm to Sarah Lehman;
“3. That Mr. Sutherland was armed with a deadly weapon, to-wit: a knife; and
“4. That this act occurred on or about the 5th day of October, 1988, in Sedgwick County Kansas.”
Sutherland argues that instruction No. 9 is erroneous because it instructs that the knife used was a deadly weapon, and the determination of whether it was a deadly weapon is a question of fact for the jury. Sutherland failed to object to this instruction at trial. His failure to object alters our standard of review of the instruction:
“A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. [Citations omitted.] The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.” State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
In State v. Davis, 227 Kan. 174, Syl. ¶ 1, 605 P.2d 572 (1980), in determining whether a defendant was armed with a dangerous weapon during a robbery, this court said the victim’s perception of the object used as a weapon is relevant:
“In an appeal from a conviction of aggravated robbery (K.S.A. 21-3427) the court holds a starter pistol is a dangerous weapon. Since robbery has always involved intimidation or fear, the circumstances of the robbery, including the weapon, are examined from the victim’s point of view. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon.”
See also State v. Bowers, 239 Kan. 417, 422, 721 P.2d 268 (1986) (holding that in determining whether a defendant charged with aggravated assault was armed with a dangerous or deadly weapon, the trier of fact must determine whether the victim reasonably believed the object was a deadly weapon).
In State v. Colbert, 244 Kan. 422, 425, 769 P.2d 1168 (1989), the trial court instructed the jury that “a firearm is a deadly weapon as a matter of law.” The defendant failed to object to the instruction. The gun the defendant used was defective and inoperable and, on appeal, the defendant argued that whether it was a dangerous weapon was a question for the jury.
In Colbert, this court held that, under the facts, the instruction in question was not clearly erroneous as to an aggravated robbery charge. 244 Kan. at 426. During the robbery, the defendant had placed the barrel of the gun in the victim’s mouth. The court said:
“Clearly, the robber herein intended the victims to believe the gun was a dangerous or deadly weapon, and the victims reasonably believed it to be such a weapon. As far as the aggravated robbery charges were concerned, the only real issue for the jury was whether or not the defendant was the perpetrator.” 244 Kan. at 426.
The instruction in the present case differs from that in Colbert. There, the instruction expressly directed the jury that a gun was a deadly weapon. Here, the jury was instructed that an element of the crime the jury had to find was that Sutherland (or Baughman as an accomplice since PIK Crim. 2d 54.05 was given) “was armed with a deadly weapon, to-wit: a knife.” This instruction places the burden on the State to prove the knife is a deadly weapon and does not instruct the jury that it is a deadly weapon.
In the present case, the testimony unambiguously showed that Baughman wielded a knife during the robbery. (The jury was given PIK Crim. 2d 54.05 on responsibility for crimes of another. Implicit in its findings are that Baughman was the armed party.) Sutherland makes much of the fact that the testimony as to the length of the knife varied somewhat. Lehman described it as six inches long. Fulps described it as six to eight inches long. Baughman testified that it was six inches long.
These differences in testimony as to the length of the knife are irrelevant. It is undisputed that Baughman had a knife of at least six inches in length. He pointed the knife at Fulps during the robbery. Lehman testified that she assumed that Baughman would use the knife. The instruction given in this case is not erroneous and the record contains ample evidence from which a jury could conclude the knife was a deadly weapon.
LESSER INCLUDED CRIMES
Sutherland argues that the trial court erred in failing to instruct the jury on the lesser included offenses of robbery and theft.
K.S.A. 21-3107(3) provides, in part:
“In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
Although Sutherland did not request instructions on robbery and theft, a court is under an affirmative duty to give an instruction on a lesser included offense under certain circumstances, even if a defendant fails to request it (and so long as he does not object to it). State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987).
A duty to instruct on lesser included offenses arises only when evidence introduced during trial is such that the defendant might reasonably have been convicted of the lesser offense. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249, cert. denied 482 U.S. 929 (1987). The evidence supporting the lesser crime need not be overwhelming—the instruction must be given even though the evidence may be weak or inconclusive. However, if the evidence at trial excludes a theory of guilt of a lesser offense, the failure to instruct the jury on some lesser degree of the crime charged is not grounds for reversal. 240 Kan. at 459. “The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser included offense, but whether there is any substantial evidence tending to prove that lesser included offense.” 240 Kan. at 459.
One common situation in which a lesser included instruction need not be given is where the defendant simply denies that he participated in the crime and no evidence is presented which would show that a dangerous weapon was not used in the robbery. In State v. Mitchell, 234 Kan. 185, 189-90, 672 P.2d 1 (1983), this court held that the trial court acted correctly in failing to give a lesser included instruction on robbery:
“It is not contested in this case that the robber had a gun. Every witness who was in the bar at the time of the robbery testified that the robber had a gun. This is not a case where the defendant admitted the crime but claimed not to have used a weapon. The question the jury was asked to decide was whether appellant was the robber, not whether a weapon was used.”
Sutherland first argues that there is a question as to whether the knife was a deadly or dangerous weapon. As already noted above, the undisputed testimony of Lehman was that she so viewed the weapon. Sutherland also attempts to argue that Fulps’ testimony shows that an instruction on robbery should have been given because he stated that the knife was not displayed until after the money was taken.
Sutherland misreads Fulps’ testimony. When testifying, Fulps first gave a general description of the robbery. Fulps stated that he saw the tip of the knife as soon as he turned around and looked at Baughman. Fulps then stated, “And then the other guy—at that point he showed me his knife.” It is not clear from this testimony at what point Baughman revealed the knife.
After Fulps’ general description of the robbery, he testified in more detail in response to specific questions. During this questioning, Fulps specifically stated that Baughman displayed the whole knife when Sutherland said to Lehman, “Don’t play stupid . . . .” The testimony of Baughman and Lehman also shows that Baughman displayed the knife prior to obtaining control over the money.
This case is similar to Mitchell. It is undisputed that Baughman had a knife and displayed it. Sutherland’s defense was that some other person must have committed the robbery with Baughman. There is no evidence upon which the jury could have found Sutherland guilty of robbery rather than aggravated robbery. There was no question for the jury other than Sutherland’s presence. The trial court did not err in not giving an instruction on robbery.
Sutherland also argues that the instruction on theft should have been given. K.S.A. 21-3426 defines robbery: “Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21-3701 defines theft and does not require that the property be taken from the presence of another by threat. Theft is a lesser degree of robbery. State v. Long, 234 Kan. 580, Syl. ¶ 4, 675 P.2d 832 (1984), overruled on other grounds State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985).
Sutherland’s argument fails. If a robbery instruction was unnecessary, a theft instruction was unnecessary because there was no question for the jury as to whether the threat of force was used.
FAILURE TO MODIFY SENTENCE
The presentence investigation report recommended that Sutherland receive the minimum sentence. The court gave Sutherland the maximum sentence—15 years to life. In sentencing Sutherland, the court took note that Sutherland’s extensive juvenile record included five misdemeanor thefts, one attempted misdemeanor theft, four burglaries, two batteries, and a criminal trespass. He served several years in youth correctional facilities while a juvenile. The court stated the victims of this crime both felt threatened, there was no excuse for the crime, and Sutherland’s character and attitude made it likely that his criminal lifestyle would continue.
The SRDC report contains the following recommendation:
“It is recommended that the inmate remain incarcerated. During his incarceration, he should be required to successfully complete a substance abuse program with AA and NA follow-up. . . . Because of his youth, it is rec ommended that favorable consideration be given to modification of sentence.”
Sutherland filed a motion to modify his sentence. The court stated, “For the reasons set forth at the time of sentencing I’ll decline to modify the sentence.”
On appeal, Sutherland argues that K.S.A. 1989 Supp. 21-4603(3) mandates that his sentence be reduced because of the recommendations made in the SRDC report. K.S.A. 1989 Supp. 21-4603(3) provides that at any time within 120 days of sentencing, the district court shall modify a sentence imposed “if recommended by the state reception and diagnostic center unless the court finds that the safety of the public will be jeopardized and that the welfare of the inmate will not be served by such modification.” The legislature has amended this statute (L. 1990, ch. 101, § 4) and, although not applicable to this case, it currently requires the court to find and set forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.
K.S.A. 1989 Supp. 21-4603(3) became effective July 1, 1989. Prior to the amendment, the section provided that the court “may” modify a sentence.
The robbery of the Town and Country took place on October 5, 1988. Defendant was sentenced on May 5, 1989. The only portion of the proceeding in this case to take place after the effective date of the amendment was the motion to modify, which was filed on July 13, 1989.
Sutherland contends the trial court erred in failing to follow the SRDC recommendation for a reduction of his sentence, where it made no finding that such a modification would not be in Sutherland’s welfare.
The Kansas Court of Appeals has filed conflicting decisions concerning the issue of whether K.S.A. 1989 Supp. 21-4603(3) operates prospectively or is retroactive.
In State v. Sylva, 14 Kan. App. 2d, 609, 795 P.2d 947 (1990), a panel of the Court of Appeals relied on State v. Nunn, 244 Kan. 207, 216, 768 P.2d 268 (1989), and State v. Henning, 3 Kan. App. 2d 607, 609, 599 P.2d 318 (1979), holding K.S.A. 1989 Supp. 21-4603(3) to be a substantive statute that prescribes pun ishment as opposed to a procedural statute and, therefore, is to be applied prospectively. On petition for review, we affirmed this holding of the Court of Appeals. State v. Sylva, 248 Kan. 118, 804 P. 2d 967 (1991).
In State v. Moon, 15 Kan. App. 2d, 4, 801 P.2d 59 (1990), a different panel of the Court of Appeals reached the conclusion that the statute in question applies retroactively. In Moon, the court reasoned:
“K.S.A. 1989 Supp. 21-4603(3)(a) provides that ‘any time within 120 days after a sentence is imposed . . . the court may modify such sentence . . . and shall modify such sentence if recommended by the state reception and diagnostic center.’ (Emphasis added.) The statute comes into play only after a defendant has been charged, convicted, and sentenced. It acts to regulate the steps by which a defendant convicted of a crime is punished and therefore, by definition, is a procedural criminal law. The statute does not alter the punishment itself. This fact becomes particularly clear in cases in which SRDC has recommended probation. Probation is defined as a procedure whereby a defendant, found guilty of a crime, is released by the court after imposition of sentence, without imprisonment, subject to various conditions. K.S.A. 21-4602(3). Probation is separate and distinct from sentencing. State v. Dubish, 236 Kan. 848, Syl. ¶ 2, 696 P.2d 969 (1985).
“We are mindiul of the fact that another panel of this court recently determined the 1989 amendment to 21-4603(3)(a) is a substantive change which only operates prospectively to offenses committed after its effective date. State v. Marks, 14 Kan. App. 2d 594, 796 P.2d 174 (1990), rev. denied 247 Kan. 706 (September 20, 1990). See State v. Sylva, 14 Kan. App. 2d 609, 795 P.2d 947 (1990), rev. granted 247 Kan. 706 (September 20, 1990). In Marks, the court found the 1989 amendment ‘materially limits the court’s sentencing discretion and is therefore substantive not procedural.’ 14 Kan. App. 2d at 599. While it is true the amendment does limit the court’s sentencing discretion, that fact does not render the amendment substantive. A substantive law is one which makes an act criminal and prescribes the punishment for that act. Hutchison, 228 Kan. at 287. A law is not made substantive by the mere fact it alters the court’s discretionary authority to direct how the sentence will be served. The law at issue must affect the substantive rights of the defendant before retroactive application of the law is constitutionally impermissible. Miller v. Florida, 482 U.S. at 429; Weaver v. Graham, 450 U.S. at 29. The amendatory language in 21-4603(3)(a) does not prejudicially affect the defendant’s substantive rights.” 15 Kan. App. 2d at 9-10.
In Moon, the Court of Appeals devotes considerable analysis to whether the statute is an ex post facto law, and the court correctly reasons that it is not. Whether the statute violates the constitutional prohibition against ex post facto laws is immaterial, however, since legislative intent must be first ascertained. State v. Dubish, 236 Kan. 848, 853, 696 P.2d 969 (1985). If it is determined the legislature intended the statute to apply retroactively, the analysis then turns to whether the statute violates the constitutional prohibition against ex post facto laws.
The legislature is aware of this court’s established rules of statutory construction. The legislature is aware, and has, on many occasions, used specific language to clearly set forth whether a statute is to be applied prospectively or retrospectively. For example, the legislature adopted K.S.A. 1989 Supp. 22-3725 to be effective one month after the effective date of K.S.A. 1989 Supp. 21-4603(3) and continued the provision in 22-3725 that “regardless of when the inmate was sentenced or committed the crime for which sentenced, good time credits shall be allocated as follows: . . .” In amending 21-4603(3), the legislature chose not to use specific language, so we must turn to the applicable rules of construction of legislative acts.
The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980). An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. 228 Kan. at 287. Thus, the issue becomes whether the statute is substantive criminal law, which either defines a crime or involves the length or type of punishment.
Here, the defendant had been sentenced, but the sentence was not final and was subject to change for 130 days. The sentence to be served was subject to reduction, and the defendant could also have been placed on probation. Thus, we disagree with the Court of Appeals’ reasoning in State v. Moon that the statute in question does not alter the punishment itself. The statute, assuming it is constitutional (and its constitutionality is not challenged in this case), mandates that the sentencing court shall modify (reduce) the sentence imposed. Thus, it deals with the length of the sentence to be imposed and not merely how the sentence is to be served or how the length of the sentence is to be determined.
In State v. Hutchison, the defendant was 16 years old when he used a firearm to commit aggravated robbery and aggravated burglary. When the crimes were committed, the mandatory firearm sentencing statute (K.S.A. 1976 Supp. 21-4618) applied to any person committing a crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated and who used a firearm during the commission of a crime. The defendant was sentenced and two months later (within the 130-day sentence modification period), the legislature amended 21-4618 to provide that it not apply to any crime committed by a person under 18 years of age.
Hutchison argued that the statute as amended should be applied retroactively to exclude him from the mandatory firearm sentencing. This court went through the prospective/retrospective analysis and cited State v. Ogden, 210 Kan. 510, Syl. ¶ 10, 502 P.2d 654 (1972), for the proposition that changes in length of sentences for criminal acts have been given prospective application only. 228 Kan. at 287. We also quoted State v. Henning, 3 Kan. App. 2d at 609, where the Kansas Court of Appeals stated that “ ‘[t]he penalty for a criminal offense is the penalty provided by statute at the time of the commission of the offense.’ ” 228 Kan. at 287. State v. Henning dealt with the issue of whether a statutory change allowing an imposed Kansas sentence to run concurrently with an out-of-state sentence could be applied retroactively, and the answer as set out above was “no”; in the absence of legislative expression otherwise, it was to be applied prospectively only.
In Kelsey v. State, 194 Kan. 668, 670, 400 P.2d 736 (1965), we reversed the trial court for applying an amended sentencing statute retroactively. The original statute (G.S. 1949, 62-1528) provided that any person on parole, who is convicted of a subsequent crime, shall serve the second sentence after the first is served. The amended version of the statute (K.S.A. 62-2251 [Cor-rick]) provided that a prisoner would serve the second sentence concurrently with the first, unless otherwise ordered by the court. We held that the penalty for an offense is that provided by statute at the time the offense was committed and that the amended sentencing statute could not be applied retroactively.
From the above, we conclude K.S.A. 1989 Supp. 21-4603(3) should be applied prospectively and is not applicable to this case.
Although the issue is not before us, we hope that when the State Reception and Diagnostic Center intends to make a recommendation pursuant to K.S.A 1989 Supp. 21-4603(3), it will cite the statute and give specific guidelines as to what it is recommending.
Under the facts, we hold that the trial court did not abuse its discretion in failing to modify Sutherland’s sentence.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, John William, from his conviction for first-degree murder in connection with the death of Richard Settlemyre, a nine-year-old boy.
William raises seven issues on appeal, and the State cross-appeals concerning the exclusion of evidence seized without a warrant from defendant’s personal possessions held by jail personnel while the defendant was incarcerated.
William’s issues are in three areas. He contends the evidence is insufficient to support felony murder and, as a result, the general verdict finding him guilty of first-degree murder must be set aside. He challenges the admissibility of confessions and other incriminating statements he made to law enforcement officers for reasons ranging from the officers’ failure to give a timely Miranda warning and being coerced to confess to being incompetent to give a confession. His final issues deal with his competency to stand trial and his sanity at the time the crime was committed.
The defendant, John William, was 29 years of age when Richard Settlemyre was killed and mutilated. William has had a lifelong history of mental illness.
William had been a homeless transient for many years and had established a campsite on the west bank of the Kansas River under the Kansas Turnpike bridge. On July 12, 1988, Richard left his home, accompanied by William. William had asked Richard’s father’s permission to take Richard fishing. William had become acquainted with the Settlemyre family the previous year and had frequently played with the Settlemyre children and taken them fishing. William, when playing with the boys, would occasionally tie them up and see if they could escape. Sue Ann Settlemyre, Richard’s mother, described William as child-like, as did all the nonexpert witnesses who knew William.
When Richard left, his father instructed William to have Richard home by 7 p.m. Richard’s mother returned home on the following afternoon, and Richard had not returned. On the morning of July 14, she went to the police station to report Richard missing.
A search party was organized along the Kansas River, where William and Richard were known to have fished. Detectives Davis and Haller, who were investigating the disappearance, observed William walking by the river near the Kansas Turnpike bridge at 10:30 a.m. Detective Davis called to William, and William came over, handed the officers a hunting knife, and stated, “Here, I suppose I ought to give you this.”
Detective Davis informed William that Richard was missing. William told the officers that he and Richard had gone fishing together on July 12, but that he walked Richard home around 7 p.m. on that day.
According to Davis, William “readily expressed a desire to help in any way he could. ” William told the officers where one of his campsites was upriver. Davis went with William to locations where William and Richard had gone fishing and dug worms. William then showed Davis the route that he claimed he and Richard had followed as he took Richard home.
At about noon, the detectives went to the Douglas County Law Enforcement Center in order to interview William. On the way, William said he was hungry, and they all stopped at a convenience store. William went in alone while the officers waited in the car. They arrived at the Law Enforcement Center at 12:07 p.m. Davis testified that he did not consider William to be in custody and that William appeared to be normal and relaxed.
At the Law Enforcement Center, Detectives Davis and Haller interviewed William about what had happened on July 12. During the interview, the detectives asked William what had happened to the clothes he had been wearing on that day. William told the officers that he had given them to a lady who did his laundry. He said he would meet her along the trail by the river and she would take his clothes, wash them, and return them to a place on the trail. William then suddenly switched subjects and started talking about someone having been accosted along the river earlier that year.
At 1:48 p.m., the interview ended. William was given food. Davis called a police department in Texas and learned that William had been in several institutions in Texas and had been the subject of an investigation into the death of a young male there.
Davis said of this break in the interview that William “did not ask to leave and we did not encourage him to leave.”
At 2:47 p.m., William left with the detectives to go to some other places where he and Richard had gone. At about 3:30 p.m., William suddenly began talking about an attack on someone, which was totally unrelated to the conversation at hand.
At 3:47 p.m., the detectives and William returned to the Law Enforcement Center. William was interviewed by Haller until 4:45 p.m., when Haller accompanied William to the restroom; they returned to the interview room at 5 p.m. During this period, William told the officers that he had grown very attached to Richard. Suddenly, William changed the subject and started talking about how his natural mother had tried to kill him when he was a child.
At about 6:50 p.m., Davis received word that a child’s body had been found in the river. Davis was not informed of the condition of the body until later. Davis returned to the interview room shortly after 7 p.m. and read William his Miranda rights. After reading William his rights, Davis asked William if he understood his rights. William replied, “I understand my rights.” Davis asked William if he wanted to waive his rights, and William replied that he was willing to talk to them. Davis asked William if he could read and write. Williams said he could and said that he had completed the 10th or 11th grade. Davis asked William if he had any further questions about his rights and William replied in the negative.
After this, the detectives told William that a child’s body had been found in the river. Questioning continued. At 7:20 p.m., the officers gave William a fresh pack of cigarettes. William suddenly asked if the officers knew anything about his tennis shoes, which he said had been stolen earlier at the river. At about 8 p.m., the officers provided food to William. William told the officers that if things did not get cleared up in the future, he would need an attorney. Davis asked if William wanted a lawyer immediately. William said no.
During this interview, William continued to talk about various unrelated topics. The detectives continued to press William and told him that they did not believe his version of the events. At about 9:55 p.m., Davis accused William of being homosexual. William then, in obvious reference to Richard, stated, “You are trying to say I raped and mutilized [sic] him.”
William gave his version of the laundry arrangement again and then told officers he had left his shirt by the bridge. Later, Officer Malson took Davis’ place in the interview room. At 2:28 a.m., Davis had obtained a search warrant for a sexual assault kit. He entered the room and, without telling William where he was taking him, said, “Get up, let’s go.” Malson told William it was his last opportunity to tell the truth. William told a story about “a colored guy” who had killed Richard and cut his head off.
William then told a different story. He said that Richard had gone swimming in the river and drowned. He said he cut off Richard’s hands, feet, and head in order to bury him more easily. When asked where Richard’s clothing was, William replied that Richard “was born naked and died naked.”
Davis and Malson left to take William to Lawrence Memorial Hospital at 4:08 a.m., in order to execute the search warrants. While waiting at the hospital, William told Officer Harmon that he could not believe “that he had accomplished the things he had accomplished with Richard Settlemyre.” He then said he really had wanted to bury Richard and that he “had a hard time with the neck, but the rest came off like ice cream.”
At the hospital, the warrant was executed. William’s clothes and personal items were confiscated; hair samples, blood samples, fingernail scrapings, anal swabs, and saliva samples were taken.
After the search, William was taken to the media room to smoke a cigarette. William again told Harmon that Richard had drowned. Harmon told William that an autopsy would reveal whether Richard had drowned. William said, “Okay, I killed him.”
William then stated that he had gone “berserk,” or he “just went berserk like a force” and had stabbed Richard. He said he had cut Richard’s throat twice and may have stabbed him several more times. He stated that he had the desire to have sex with Richard, that he had been fighting “the temptation” for two years, and that something had possessed him.
William then stated that he was “wondering what an attorney could do for him now. ” Harmon asked William if he wanted an attorney and William said he did. Harmon ordered all questioning to cease. At 5:35 a.m., William was formally placed under arrest for the murder of Richard Settlemyre. When told of his arrest, William said, “I knew I was.”
On the morning of July 15, 1988, while in Douglas County Jail, William began pounding on the walls and yelling that he needed to talk to someone. Albert Deathe, an employee at the sheriffs department, told William that he would come back when he had time. Later on the 15th, and again, on the 16th (at William’s request), Deathe talked to William. Deathe testified that he did not question William except to clarify something that William told him. He said that William was very upset and wanted to talk all the time.
William told Deathe that he did not understand why he had “done it” to Richard and that he usually picked on small animals and fish. William told Deathe that he had buried the hands and feet separately because he could not dig a hole big enough for the body. He said that he had used a knife to slit Richard’s throat and had thrown the knife in the river. He said he knew that Richard did not suffer because he had cut his throat.
An acquaintance of William’s, Phil Rutledge, visited William in jail. William told him, “I don’t know why I did it.” He told Rutledge that whenever he felt that he might hurt the Settlemyre boys, he always instructed them to leave, but this time he did not tell Richard to leave.
Prior to trial, the defense moved to have all of William’s statements to officers suppressed. The trial court found that William was not in custody until 6:50 p.m., when Richard’s body was located; that William understood his rights; that the police acts did not deprive William of his ability to make voluntary and intelligent choices; and that the statements to Deathe were voluntarily made. The trial court admitted the confessions.
On August 12, 1988, a competency hearing was held. The court admitted a report by Dr. Fowler, a psychologist at Bert Nash Community Mental Health Center. Fowler had given William a battery of standardized tests and interviewed him. He concluded that William was not competent to stand trial. Fowler stated that William did understand the nature of the charges against him, but that he could not assist his attorneys with his defense. He said, specifically, that there were periods in which William’s contact with reality became defective, that he was suffering from massive anxiety, and that he had a borderline I. Q. The trial court found William incompetent to stand trial and sent him to Larned State Hospital for treatment and evaluation.
On November 23, 1988, a second competency hearing was held. One defense witness was Kathleen Gottlieb, a speech pathologist. She testified that William had severe difficulty communicating, that his speech was distorted, and that he omitted subjects, verbs, and conjunctions. She testified that William was egocentric and was unable to understand abstract information. She testified that he had the language skills of a nine- or ten-year-old. She testified that he had the decisionmaking ability of a fourth grader.
William’s attorney personally told the court that, in his opinion, William could not assist with his defense.
The court also considered three reports on William’s condition. One of these was a team report by the Larned State Hospital, which stated that William was competent to stand trial. The Larned report concludes that William was suffering from “Adjustment Disorder with Anxious Mood; Borderline Intellectual Functioning; Antisocial Personality Disorder; Paranoid Personality Disorder; and Alcohol Abuse, Mild.” The report found that William’s main problem interfering with assisting in his defense was anxiety, that he had improved greatly with his stay at Larned, and that he should continue taking a mild anti-anxiety drug on his return. The report concluded that William was competent to stand trial.
The trial court found William competent to stand trial. However, on March 9, 1989, he was again found incompetent to stand trial and was again committed to Larned.
Another competency hearing was held on October 31, 1989. The team report from Larned concluded that William was competent to stand trial. The members of the team testified. Dr. Charles Befort, a psychologist at Larned, testified that, although William did have serious emotional problems, he was able to reason and draw conclusions. He testified that William had a Schizotypal Personality Disorder, which included paranoid ideas and odd beliefs, including his beliefs that someone else committed the murder. He said, however, that based on William’s ability to reason—e.g., that he understood that he could be convicted if he insisted on his story as to what happened—that William was competent. He testified that William’s biggest problem was anxiety and his emotional reactions to situations.
Robert Huerter, another psychologist from the Larned hospital, testified, generally, to the same points as Befort. He added that William had a “borderline I.Q.” of 71 to 84. Huerter also testified that William told him, “I had to play the nut role or they would have sent me to prison.”
Dr. J.L.L. Fernando, a psychiatrist at Larned, testified that William was competent, but that his competence was tenuous. He testified that William tended to talk off the subject but did not appear to be suffering from hallucinations or delusions.
Dr. Anthony Troiano, another psychiatrist at Larned, testified that William was competent and was not schizophrenic or delusional, although William did believe that a cult in Lawrence was responsible for all deaths in Lawrence since 1987. Ry “not delusional,” Troiano testified he meant that William had no structured delusional system and that William’s bizarre beliefs were the result of being immature and self-protective.
The defense called Dr. Herbert C. Modlin, a psychiatrist at the Menninger Clinic. He testified that William was in pretty good contact with reality and could communicate until he discussed the crime, in which case he became delusional. He testified that in earlier examinations he had found William not to be competent, but that he had improved considerably since spring. He testified that William now was marginally competent to stand trial and that he could communicate rationally with his attorneys until he got to his version of the crime.
The defense also called Robert Schulman, a clinical psychologist. He testified that William was a paranoid schizophrenic with a structured delusional system. He testified that an I.Q. of 72 is considered mildly retarded, that William’s I.Q. was 72, that William had a poor memory, that he could not conceptualize or abstract, and that he was not competent, mainly because of his delusional system.
The trial court concluded that William was competent to stand trial. The court admitted that William’s competency might be borderline, but said that his main problems were with communication and his choice of an inappropriate defense.
The case proceeded to trial on November 7, 1989. William refused to leave his cell unless he was allowed to do so without being handcuffed. An undersheriff stated he was reluctant to have William in court without restraints in place. The defense moved for another competency evaluation. The trial court decided to talk to William in his cell. The trial court concluded that William was competent and that he tended to drift off topic, but that he could be brought back on the subject.
The case proceeded to trial and the defendant was convicted of first-degree murder. Other facts will be developed as the issues are dismissed.
1. Felony-Murder Issue
The jury was instructed that it could rely on the alternate theories of premeditated murder and felony murder in arriving at its verdict on first-degree murder. Following PIK recommendations, the jury was not required to indicate which theory it relied on. The possibility exists that some jurors relied on felony murder. William contends that the evidence was insufficient to prove the underlying felony in the felony-murder charge of attempted aggravated criminal sodomy.
William argues that the only evidence of a sexual assault on Richard was William’s confession that he attempted to have sex with Richard after Richard was dead. His argument is twofold. He contends that the first-degree murder statute, K.S.A. 21-3401, requires that the State prove the death occurred while defendant was perpetrating or attempting to perpetrate a felony. In addition, he contends that attempting to commit sodomy on a dead body cannot be the underlying felony in felony murder because the crime of aggravated criminal sodomy cannot be accomplished on a dead body.
Defendant places great weight on State v. Garcia, 243 Kan. 662, 669, 763 P.2d 585 (1988), in which this court held that if, in a prosecution for felony murder, two underlying felonies were relied on and the evidence was insufficient to convict on one of the two, the murder conviction could not stand. The State argues this case was not sent to the jury on two underlying felonies and that when both premeditated murder and felony murder are charged, the jury can convict on either theory, i.e., premeditated murder or felony murder or a combination of the two, citing State v. Wise, 237 Kan. 117, 697 P.2d 1295 (1985), and State v. McGowan, 226 Kan. 752, 759, 602 P.2d 1363 (1979).
The error, if any, in this type of case is usually whether the trial court allows a criminal charge to be submitted to the jury that should have been dismissed. Here, defendant moved for a judgment of acquittal. The issue is not whether there is sufficient evidence for the entire jury to convict on felony murder, but whether one or more reasonable jurors could have relied on felony murder because, when alternate theories of first-degree murder are charged, jurors can rely on either theory.
Here, the trial court refused to grant defendant’s motion for acquittal and submitted the issue of felony murder to the jury. The trial court’s duty has been before this court many times. For example, in State v. Fosnight, 235 Kan. 52, Syl. ¶ 1, 679 P.2d 174 (1984), we said:
“A trial judge, in passing on a motion for judgment of acquittal, must determine whether upon the evidence—giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact theref rom—a reasonable mind or a rational trier of facts might fairly conclude guilt beyond a reasonable doubt.”
The same test applies as our scope of review for this issue. In a criminal case, we review all the evidence, viewed in a light most favorable to the prosecution and, if the evidence there convinces us that a rational factfinder could have found the accused guilty beyond a reasonable doubt, we affirm. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, reh. denied 444 U.S. 890 (1979); State v. Graham, 247 Kan. 388, 799 P.2d 1003 (1990).
K.S.A. 21-3501(2) defines sodomy as “oral or anal copulation ... or any penetration of the anal opening by any body part or object. Any penetration, however slight, is sufficient to constitute sodomy.” Criminal sodomy is defined as “sodomy between persons of the same sex or between a person and an animal.” K.S.A. 21-3505(1). Aggravated criminal sodomy is “sodomy with a child who is not married to the offender and who is under 16 years of age.” K.S.A. 21-3506(a). William correctly argues that criminal sodomy (or aggravated criminal sodomy) may not be committed on a dead body. The underlying felony was, however, attempted aggravated criminal sodomy. An attempt at a crime is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301(a).
Defendant’s basic arguments (other than that his statements are not admissible, which will be discussed later) is that no overt act occurred while Richard was alive and that it is impossible to commit attempted aggravated sodomy on a dead body.
The attempt (overt act) must occur before the accused knows the victim is dead. It is the intent of the accused to attempt to commit the crime that is at issue and, if the accused did not know the victim was dead, the defense of impossibility would not prohibit a conviction of attempted aggravated criminal sodomy.
The defense of impossibility, K.S.A. 21-3301(b), provides: “It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.”
In State v. Logan & Cromwell, 232 Kan. 646, 656 P.2d 777 (1983), this court held that K.S.A. 21-3301(b) eliminates both factual impossibility and legal impossibility as defenses to an attempted crime. The court gave as examples of factual or legal impossibilities concerning attempted murder:
“A fires shots into a bed believing his enemy B is asleep thereon. If B were in fact dead rather than asleep on the bed when the shots were fired, the doctrine of legal impossibility would be applicable. If however, B heard A coming and was hiding in the closet when the shots were fired, then a case of factual impossibility is presented.” 232 Kan. at 647.
Logan & Cromwell would only apply, however, when the accused did not know the person was dead. One element of an attempt is intent to commit the crime. If the accused knows the person is dead, and it is legally impossible to commit the crime against the dead person, then there could be no intent. Consequently, here, if William knew that Richard was dead, and the only evidence points to an attempt after the death, then the defense has a valid point.
The continuous transaction theory also is an issue that affects whether aggravated sodomy may be attempted on a dead body. The defendant relies on People v. Sellers, 203 Cal. App. 3d 1042, 250 Cal. Rptr. 345 (1988). In Sellers, the defendant had been convicted of felony murder, with the underlying felony being rape. The evidence showed that sexual penetration took place after the victim was dead. The Court of Appeals held that felony murder could not be based on such facts, even by use of a “continuous transaction” theory because it would amount to turn ing intercourse with a dead body into rape. 203 Cal. App. 3d at 1053-54.
Sellers is not on point. It does not concern an attempt. In two prior California cases, however, courts held that felony murder could be based on attempted rape when actual penetration took place after the victim was dead. See People v. Quicke, 61 Cal. 2d 155, 158, 37 Cal. Rptr. 617, 390 P.2d 393 (1964); People v. Booker, 69 Cal. App. 3d 654, 666, 138 Cal. Rptr. 347 (1977). The Sellers court quoted with approval from Booker: “ ‘When a conviction of first degree murder is based on the theory of killing during an attempted rape, it is irrelevant whether the victim was already dead at the time of penetration.’ (Italics added.)” Sellers, 203 Cal. App. 3d at 1053 (quoting Booker, 69 Cal. App. 3d at 666). See People v. Goodridge, 70 Cal. 2d 824, 76 Cal. Rptr. 421, 452 P.2d 637 (1969).
Felony murder may be based on attempted aggravated sodomy (or attempted rape) whenever the murder is connected with the attempt. However, application of the felony-murder rule is questionable when the attempt at sexual contact occurs after the victim is already dead.
A conviction can be based on circumstantial evidence, and intent as an element of a crime may be shown by acts, circumstances, and inferences reasonably deductible therefrom. State v. Keeler, 238 Kan. 356, 359, 710 P.2d 1279 (1985).
The evidence is as follows:
One law enforcement officer asked William what had led up to the killing. The officer testified he asked William “if it had been his desire to have sex with Richard, and he replied that he really didn’t want to talk about it, but he had thought about it” and that he had been fighting the desire to have sexual contact with Richard for a long time. William referred to this desire as “the temptation.”
The officer went on to testify:
“Q. Did you have any further discussion about the killing of Richard Settlemyre?
“A. Yes, I did.
“Q. And would you describe for us what the discussion was after that?
“A. Well, I had asked him what had led up to the killing of Richard, and we went into more detail as far as explaining his sexual urges.
“Q. Is there anything you recall specifically about that conversation?
“A. I recall him telling me that he had not had sex with a woman since he had been on the road, and he clarified that by telling me it had been quite a period of time, and he told me that Richard was the closest thing that he could find to a woman.” (Emphasis supplied.)
William told Detective Davis, prior to his interrogators’ learning the condition of Richard’s remains, “You are trying to say I raped and mutilized [sic] him.” Richard’s clothing was found over 90 feet from where his body was found. William stated that Richard was “born naked and he died naked.”
Although the record concerning the attempted sexual assault is such that William only expressly admitted to a physical sexual assault after Richard’s death, the jury was not bound by that representation, considering the other evidence present.
The jeans shorts of Richard and the jeans worn by William had only a few spots of blood on them, which gives some indication they were not being worn at the moment Richard’s throat was cut. It was established that William was wearing a green T-shirt when he left with Richard. Green cloth was found at the murder scene that appeared to be T-shirt material. The cloth contained Richard’s blood, hair similar to that of Richard, and a piece of human bone. No evidence was offered that the green cloth was, in fact, a T-shirt or that it was the T-shirt William was wearing. William gave the officers four different versions of what happened to the T-shirt, ranging from his having given it to an unidentified woman who laundered his clothes to a story that lie set the shirt on fire and placed the burning shirt on a raft and allowed it to drift down the river. The State argues that a reasonable person could conclude that neither Richard nor William were wearing their pants when Richard was killed and that William was wearing a green T-shirt that was found at the crime scene as green rags. This evidence has some probative value.
William also had a history of bondage with the Settlemyre boys. Fishing cord (described as trout line cord) was found among William’s possessions after the crime that matched three pieces of cord found at the crime scene in lengths that a reasonable person could conclude were used to bind Richard’s hands and feet. One of the. pieces of cord found at the crime scene had human blood on it. The State’s pathologist testified he found no evidence that Richard had been tied up when he was killed and, if Richard had been, he should have found marks on his person. A reasonable jury could conclude that the cord was removed before Richard was killed or that no marks were found because Richard’s hands and feet (as well as his head, both breasts, penis, and scrotum) were severed from his body and that the severing process eliminated any bondage marks.
Richard was taken to a remote area where the trees and brush were thick enough that light could not penetrate to the ground. A reasonable jury could conclude William did this in order to have sex with Richard unobserved.
This court has held that mere arrival at the scene where the crime is to be committed is sufficient to constitute an overt act. See State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988). We have further said that “No definite rule as to what constitutes an overt act for the purposes of attempt can or should be laid down. Each case must depend largely on its particular facts and the inferences which the jury may reasonably draw therefrom.” State v. Garner, 237 Kan. 227, Syl. ¶ 3, 699 P.2d 468 (1985).
We are satisfied that all the evidence before the jury, when viewed in a light most favorable to the State, is such that a reasonable person could weigh the evidence and draw reasonable inferences therefrom and conclude, beyond a reasonable doubt, that William killed Richard as a result of an attempt to commit aggravated criminal sodomy.
Thus, the trial court did not err in submitting the issue to the jury on both felony-murder and premeditated murder theories.
2. Statement Prior to Miranda Warnings
This particular argument covers statements made by the defendant prior to receiving his Miranda rights. The defense argues that William was “in custody” or significantly deprived of his freedom during the time in question. The trial court concluded that William was not in custody until after Richard’s body was found and William was Mirandized. The trial court held:
“The missing person investigation involving defendant started at approximately 10:20 a.m. on July 14, 1988, and ended at approximately 6:50 p.m. on the same day when Richard’s body was found in the Kansas River . . . Until Richard’s body was found, the police were without knowledge that a crime had been committed and the investigation was not criminal in nature. Prior to the discovery of Richard’s body, nothing was said or done by the police, either in their manner of approach or in the tone or extent of their questioning, which would have indicated that they would not have [heeded a request by] defendant to leave. The defendant was not in custody and [the] Miranda warning was not necessary.”
In State v. Fritschen, 247 Kan. 592, 600-03, 802 P.2d 558 (1990), this court determined that the proper analysis of whether a person is “in custody” is an objective analysis that ignores subjective beliefs, personality, and mental capacity of the defendant. The proper analysis is how a reasonable person in the suspect’s position would have understood the situation. Then, if a reasonable person would have felt that he was “in custody,” any statements given before the suspect was advised of his or her Miranda rights must be excluded.
William was first contacted by law enforcement officers at approximately 10:30 a.m. and spent the remainder of the day with the police. At no point during the day, until they read him his Miranda rights, did the police make any act or statement to William which would have led a reasonable person to believe he was not free to leave. The police asked William’s help in locating a missing boy that William had been fishing with two evenings prior. There was no evidence the boy was dead or the victim of foul play, although foul play was suspected. The questions asked by the police were, for the most part, questions that attempted to elicit information about where the boy might have gone. For instance, the police asked William to show him where the boy frequently fished and swam. The police asked William to show the route Richard supposedly used to walk home. None of this would have made a reasonable person believe William was in custody, although the police did become obviously more suspicious as the day wore on.
It is also relevant that at no point did the police tell William that he was in custody or that he was not free to leave, nor was William handcuffed or physically restrained. At one point the police let William go into a convenience store unescorted. The mere fact that William was questioned at the police station is not determinative either. This is a natural place for the law enforcement officers to stop to gather more information and review what has happened.
During the afternoon, law enforcement personnel did learn about John William’s mental history as well as his having been the subject of a murder investigation in Texas prior to his 18th birthday. In that case, a 12-year-old boy had been murdered. But, the fact that William may have become the “focus” of the investigation is not determinative under the reasonable person standard.
Our scope of review is not to retry issues of fact. We examine the record to ascertain whether the evidence, when examined in a light most favorable to the party who prevailed in the trial court, supports the trial court’s findings of fact. Here, the trial court ruled that William was not in custody until after the body was found, and the record contains substantial competent evidence to support that conclusion.
3. Voluntariness of Confession
a. M’Naghten Test
The defendant contends that his various confessions and incriminating statements were not voluntary and that the standard used by the State in this case is erroneous.
A confession must be voluntary to be admissible. A person’s mental capacity is relevant in determining whether a confession was voluntary. Culombe v. Connecticut, 367 U.S. 568, 602-03, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961). In determining whether a confession is voluntary, a court is to look at the totality of circumstances. Fikes v. Alabama, 352 U.S. 191, 197, 1 L. Ed. 2d 246, 77 S. Ct. 282, reh. denied 352 U.S. 1019 (1957). This court follows that standard. See State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 (1986).
The defendant argues that this court has adopted a different test in cases where a question arises concerning an accused’s mental disability at the time a confession is made.
The defendant relies on language in State v. Pursley, 238 Kan. 253, 258, 710 P.2d 1231 (1985), and State v. Boan, 235 Kan. 800, 804, 686 P.2d 160 (1984).
In State v. Boan, this court said:
“The question as to the effect of mental illness on the voluntariness of a confession has been before this court on several occasions. In State v. Pyle, 216 Kan. 423, 440, 532 P.2d 1309 (1975), it was held that the test for determining whether a suspect has the mental capacity to make a voluntary confession is the same as the test for determining his criminal responsibility for committing the crime. In absence of insanity meeting the M’Naghten test, the mental condition of a defendant at the time he makes a statement is relevant to the issue of voluntariness but is not necessarily conclusive; its weight is for the trier of fact. A trial court’s finding, after a Jackson v. Denno hearing, that the defendant was sane and made his confessions knowingly and voluntarily is binding on appellate review if supported by substantial competent evidence.” 235 Kan. at 804.
The defense argues that this violates due process because there is a difference between whether a person’s mental state affects the voluntariness of a confession and insanity. The argument is that State v. Boan places the burden of proof on the defendant to prove that his confession was involuntary.
The M’Naghten test is a test of whether a person is responsible for his criminal acts. “The accused is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or in the alternative, (2) where he does not know right from wrong with respect to that act.” Boan, 235 Kan. at 809.
As the Boan court noted, mental conditions lesser than the M’Naghten rule are relevant on the issue of voluntariness.
Boan seems to imply that if a person is “insane,” as a matter of law, his statement should be excluded. In Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986), the defendant walked up to a police officer on the street and started confessing to a year-old murder. The police officer Mirandized the defendant and asked questions to determine if the defendant had been drinking. The defendant kept confessing. The defendant subsequently revealed that it was God who told him to come to Denver and confess, and it became obvious defendant was mentally ill. 479 U.S. at 160-62.
In Connelly, the Colorado Supreme Court held that the test for admissibility is whether the statements are “ ‘the product of a rational intellect and a free will’ ” and that “ ‘the absence of police coercion or duress does not foreclose a finding of involuntariness.’ ” 479 U.S. at 162 (quoting People v. Connelly, 702 P.2d 722, 728 [Colo. 1985]). It held the accused’s confession was not the product of a rational intellect and a free will because of his severe mental illness.
The United States Supreme Court reversed, holding that the mental condition of a defendant is a significant factor in deter mining whether a confession is voluntary, but that a “defendant’s mental condition, by itself and apart from its relation to official coercion, should [n]ever dispose of the inquiry into constitutional Voluntariness.’ ” 479 U.S. at 164. Simply put, the Supreme Court held that the totality of the circumstances is to be used to determine voluntariness of a confession and that mental illness is only one factor to be considered in that determination. It also held there must be a link between coercive activity of the State and the confession. The Court went on to say that the defendant did not contend the law enforcement officers’ actions were coercive and, thus, there was no federal constitutional issue under the Due Process Clause of the Fourteenth Amendment, and the question whether the confession was unreliable was a matter to be governed by the evidentiary laws of the State of Colorado.
K.S.A. 22-3215(4) provides that the burden of proving that a confession or admission is admissible shall be on the prosecution. The prosecution must prove the confession or admission is admissible by a preponderance of the evidence. Connelly, 479 U.S. at 168; State v. Miles, 233 Kan. 286, 295, 662 P.2d 1227 (1983).
What Kansas has done is given the defendant, under evidentiary laws of the State of Kansas, more protection than the Constitution of the United States requires; that is to say, if a defendant meets the M’Naghten test at the crucial time, the confession is not voluntary. If not, the mental illness is one factor to consider in determining the totality of the circumstances. Thus, the burden is not shifted to the defendant. The State still has the burden, pursuant to K.S.A. 22-3215(4), to prove the confession is admissible. The State does not, however, have a burden to prove the defendant does not meet the M’Naghten test.
The trial court said that, while William gave some inappropriate answers to questions, he appeared basically rational and not under the influence of alcohol or drugs and noted that William clearly understood his rights, as shown by his request for a lawyer. The trial court concluded:
“Defendant had advised the police that he has a 10th or 11th grade education and can read and write. The evidence indicated defendant had some mental deficiencies, but did not indicate defendant was insane. As a whole, the evidence indicated that defendant’s intellect was such that he understood his rights and could make rational, voluntary statements.”
The trial court clearly placed the burden of proof on the State and considered the evidence as a whole.
The trial court used the correct burden of proof in determining the voluntariness of the confession.
b. Totality of Circumstances
The defendant next argues that, even if the trial court placed the burden properly, its conclusions were erroneous. The trial court said:
“The defendant, throughout the investigation, before and after it became criminal in nature, was with the police approximately 19 hours of which approximately 6 hours had been interrogation. Defendant had not been isolated or in solitary confinement, but had been traveling in a police car, and sitting in an office at the police station and at the hospital. He made no requests to communicate with anyone until he asked to see a lawyer. He did not request that he be allowed to sleep. He was given frequent breaks, food, drink, and cigarettes. The officers’ interrogation was fair and not coercive. Defendant was not, either by police acts or by his own intellect, deprived of his free choice to admit, deny, or refuse to answer questions and statements, and defendant’s confessions were freely, voluntarily and intelligently made.”
In State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990), this court set out some factors a court may consider to help it determine whether, under the totality of the circumstances, a confession was voluntary. The list includes 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.
In State v. Norris, 244 Kan. 326, 768 P.2d 296 (1989), this court set forth the standard of review for a trial court’s determination that a confession was voluntary:
“ ‘When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. [Citations omitted.]’ ” 244 Kan. at 333 (quoting State v. Brown, 235 Kan. 688, 691, 681 P.2d 1071 [1984]).
William argues that police interrogated him nonstop for nineteen hours, denied him rest, and in effect, coerced his confession. The facts, when viewed as we must view them on appellate review, show that during the day when William was not in custody, most of the day was spent actually driving around looking for Richard. Several times during the day William was allowed to get, or was provided with, food. The actual interviews at the police station were not lengthy. There is no indication of a good cop/bad cop routine nor any threats. During the day William never asked to leave.
In People v. House, 141 Ill. 2d 323, 566 N.E.2d 259 (1990), a murder suspect was held by police for some 37 hours in a sparsely furnished room (no bed) and questioned repeatedly. He was fed regularly and given access to a restroom. He gave a statement after 25 hours, which linked him to the murder, and, after 37 hours, he confessed. The Illinois Supreme Court held the statement voluntary.
In the case before us, the questioning was not continuous. This period included several breaks and a trip to the hospital to execute the search warrant (which had to be executed then for fear of losing the evidence). Further, this period of time is also partially justified because officers were still gathering other physical evidence and trying to sort out what they had.
Also, during this time period, the questions asked were fair. No one ever promised William he could go to sleep as soon as he confessed. The officers honored William’s rights when he asserted them. When William first suggested that he might need a lawyer if things were not cleared up, the officers immediately offered him the opportunity to contact one. William did not want one. During this time period, William had the opportunity to communicate with the outside world.
William had had a long day. However, he never requested sleep. The length of the day does not appear to be an attempt by the officers to coerce William; rather, it was the result of the need to find Richard and then to obtain and execute a search warrant on William before the evidence was lost.
The defense argues that William’s mental condition, in combination with the lengthy questioning, made his statements involuntary. The evidence, however, does not show that William was unusually susceptible to questioning or authority. The State showed that William was responsive to questioning all day.
Defendant’s brief refers to William as mentally retarded. The testimony was that he was borderline mentally retarded. Some of the tests placed William in the low range of average intelligence. Defendant’s arguments are largely an effort to get us to reweigh the evidence. That is not our function.
The defense argues that the officers’ friendliness influenced William. This is not persuasive. Law enforcement officers should be encouraged to treat the public with courtesy and friendliness—not discouraged from doing so by our holding a confession involuntary because of friendly, courteous treatment.
Although there is evidence to the contrary (i.e., William’s presence among law enforcement officers for a long period of time and his mental deficiencies), there is substantial competent evidence to support the trial court’s finding that William’s confessions were voluntary.
4. Validity of Miranda Waiver
As to whether the coercion by officers and William’s mental condition made William’s waiver of his Miranda rights involuntary, the above discussion concerning coercion of confessions applies. There was simply no coercion. The conversation between William and the officers at this point was brief. One officer asked William whether he understood his rights and about his educational background. There is substantial competent evidence to support the trial court’s finding that the waiver was voluntary.
The trial court also found that the waiver was knowing. The trial court largely based this finding on the fact that William understood his rights, that he mentioned getting an attorney at one point, and that he finally did request one.
Here, defendant also argues that he could not understand the Miranda warnings and the waiver was not a free and deliberate choice. The trial court found William understood his Miranda rights and that is demonstrated by the record when William talked about possibly needing an attorney in the future and then requesting one. We are satisfied the trial court did not err in holding William’s waiver of his Miranda rights was valid.
5. Statements Made After Request For Counsel
John William invoked his right to counsel in the early morning hours of July 15, 1988. At that time, Officer Harmon ordered that all questioning cease. Formal charges were filed, and William made his first appearance in court a few hours later. During that court appearance, counsel was appointed for William. That afternoon, William pounded on the walls of his cell and, when Albert Deathe responded, William said he needed to talk to someone. Deathe replied he would return when he finished his afternoon chores, and he returned between 6:00 and 6:30 p.m. Deathe testified that he primarily listened, but did ask questions if he did not understand William. Deathe testified William was upset and hard to understand at times. William talked about his relationship with his mother, his childhood, and his relationship with people he had lived with. Deathe testified the only talking he did was to ask William to repeat things he (Deathe) did not understand or to ask William to explain what he meant by certain statements.
A second conversation took place the following day. Then, Deathe’s supervisor learned of the conversations and ordered them to cease. Deathe’s testimony at both the trial and at the suppression hearing is general in nature. No one inquired as to any specific questions Deathe asked, what statements were clarified, or what statements Deathe had not understood, and had asked William to repeat.
At trial, Deathe’s testimony covers only eleven pages1. He testified William told him Richard did not suffer because William had cut his throat; that William did not understand why he had done it and did not understand why he did not do it to himself instead of Richard. William also told Deathe he threw the knife he used to cut Richard’s throat into the river. William first told Deathe he had blacked out and, when he came to, he found the body. The following day he said he remembered getting in a fight with two men. The second day he “mentioned that when he had killed the boy, that he had seen his mother’s face somehow laughing at him.”
Defendant argues that he was denied his Sixth Amendment right to assistance of counsel (applied to the states through the Fourteenth Amendment) when the incriminatory statements were made. In essence, defendant’s argument is that he was entitled to have counsel present during the two episodes that occurred at the jail.
The right to counsel attaches at the initiation of judicial proceedings. Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 (1977). In Kansas, this right is held to attach at the filing of a complaint or information against the defendant. State v. Waugh, 238 Kan. 537, 545, 712 P.2d 1243 (1986). Obviously, William’s Fifth Amendment rights to counsel had attached because he was in custody.
Here, the record reflects that a complaint was filed on July 15, 1988, and William made his first court appearance. Following our rule, William’s Sixth Amendment rights had attached.
Further, William did assert his right to an attorney when he was being formally arrested.
The rule on interrogations absent counsel is that “once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.” Brewer, 430 U.S. at 401. This right is violated if the State subsequently elicits admissions from the accused in the absence of counsel. Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). In Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), the United States Supreme Court said, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”
Here, however, William initiated the contact with Deathe. In fact, William insisted on talking to Deathe. It was William who insisted on talking about the crime. Deathe played a passive role. Although Deathe asked clarifying questions, the evidence shows that Deathe was not attempting to elicit information. The defendant makes no argument that the State initiated the conversation. No effort was made to show what specific questions Deathe asked or what answers were elicited. The record does not reveal when the questions were asked or whether they encouraged the defendant to confess as opposed to discussing his relationship with his mother and his childhood memories. In short, there is no evidence to demonstrate error in the trial court’s conclusion thát the statements were voluntarily made.
The United States Supreme Court has not specifically considered whether an accused may initiate contact with police after an assertion of his Sixth Amendment Rights. The Court, however, has held that such statements do not violate an accused’s Fifth Amendment right to counsel. Recently, in Minnick v. Mississippi, 498 U.S. _, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990), the Court reaffirmed the rule that once an accused asserts his Fifth Amendment right to counsel, police may not reinitiate interrogation. The Court said, however: “Edwards does not foreclose finding a waiver of Fifth Amendment protection after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities; but that is not the case before us.” 498 U.S. at _, 112 L. Ed. 2d at 499. See Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 (1981).
In Michigan v. Harvey, 494 U.S. -, -, 108 L. Ed. 2d 293, 302, 110 S. Ct. 1176 (1990), the United States Supreme Court said that Edwards is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Deathe did not badger William.
In State v. Hollis, 240 Kan. 521, 528-29, 731 P.2d 260 (1987), this court held that when a defendant initiates contact with police to discuss the crime after an assertion of her Sixth Amendment rights, the defendant waives the right to counsel and the statements she makes are admissible. See State v. Hartfield, 245 Kan. 431, 781 P.2d 1050 (1989).
Because William initiated the contact and Deathe did not attempt to elicit confessional statements, the defendant waived the right to counsel and no error is shown.
Even if we held the confession inadmissible, it would be no comfort to the defendant, for, under the facts of this case, it would be harmless error beyond a reasonable doubt. To be harmless error, the State must prove beyond a reasonable doubt that the error did not contribute to the verdict. See Pope v. Illinois, 481 U.S. 497, 501-04, 95 L. Ed. 2d 439, 107 S. Ct. 1918 (1987). Harmlessness must be determined on the basis of remaining evidence. Coy v. Iowa, 487 U.S. 1012, 1022, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988). In Milton v. Wainwright, 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174 (1972), it was held the admission of a confession was harmless error beyond a reasonable doubt in view of three other earlier confessions.
Here, there was ample evidence before the jury—William’s prior confessions and the physical and scientific evidence—to prove William was guilty of killing Richard so that the confessions made to Albert Deathe would not, beyond a reasonable doubt, have contributed to the verdict in this case.
6. Competency To Stand Trial
On appeal, the reviewing court’s inquiry on this issue is limited to whether the trial court’s finding of competency amounted to an abuse of discretion. State v. Soles, 224 Kan. 698, 700, 585 P.2d 1032 (1978). William contends that the trial court abused its discretion in finding him competent to stand trial.
K.S.A. 22-3301 provides:
“(1) For the purpose of this article, a person is ‘incompetent to stand trial,’ when he is charged with a crime and, because of mental illness or defect is unable:
“(a) To understand the nature and purpose of the proceedings against him; or
“(b) to make or assist in making his defense.”
Also, the test is stated in the often-quoted case of State v. Severas, 184 Kan. 213, 219, 336 P.2d 447 (1959):
“[T]he test of insanity of an accused precluding his being put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him and to conduct his defense in a rational manner. Stated in different fashion, if the accused is capable of understanding the nature and object of the proceedings going on against him; if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound.”
See Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960).
In this case, the question was whether William was able to make or assist in making his defense. Early in the proceedings, William was unable to do so. However, the fact that he was incompetent at one point does not mean he could not improve and become competent. At the competency hearing immediately prior to trial on October 31, 1989, the team from Larned said William was able to assist in his defense. Dr. Modlin, called by the defense, said he was borderline able to; Robert Schulman said he was not.
In examining the testimony of all of the medical experts, several generalizations can be made. As the trial judge noted from his own interview with William—and the experts generally testified to this—William had the ability to communicate and make rational decisions. Admittedly, he had problems doing so, but with effort he could be kept on track. William’s ability to communicate and reason suffered when he was under stress, but this had been controlled somewhat during his treatment at Larned. If this was the only problem, then it would be quite easy to say that the trial court did not abuse its discretion, for the trial court decides disputed testimony.
This is a closer question, however. William insisted that a cult in Lawrence had committed the murder. Earlier, William was obviously aware that he killed Richard—he confessed and drew maps of where he buried the head, feet, and hands. The medical experts, however, all thought that William later formed a belief that he did not commit the crime. Can a criminal defendant be competent to stand trial when he believes others committed the crime?
The trial court apparently did not believe that William actually thought a cult committed the murder, or, at least, the trial court did not think this was a problem. The court said:
“It is generally agreed by both medical and lay witnesses that Defendant’s counsel will have difficulty communicating with and counseling in areas of his defense, however, that alone does not equate to incompetency. The defendant has apparently chosen a defense that counsel do not consider to be in his best interest, however, the defense of his choice was not made without his knowledge of the consequences.”
If William really believed a cult killed Richard, this presents a question that is analogous to the issue of whether a defendant with amnesia is competent to stand trial.
In State v. Blake, 209 Kan. 196, 495 P.2d 905 (1972), the defendant argued that he had amnesia and could not remember any of the events leading to the murder for which he was charged. This court specifically considered approaches to this issue that are taken by other jurisdictions and decided on the following rule:
“The presence of amnesia does not per se render a defendant incompetent to stand trial. It is a factor to be considered in determining whether he is able to give rational assistance to his counsel, present any reasonably available defenses, and obtain a fair trial.” 209 Kan. 196, Syl. ¶ 2.
See State v. Owens, 248 Kan. 273, 807 P.2d 101 (1991).
Here, William had confessed repeatedly and did not have many possible defenses. There was testimony at the hearing that William understood that if he insisted on his version of the events he would probably be convicted and sent to prison. Ultimately, William chose the insanity defense. The fact that William may not have believed he had committed the crimes certainly is not incompatible or prejudicial to his ability to assert this defense, and no prejudice resulted.
The trial court was extremely conscientious in this case and devoted an inordinate amount of time and effort to insure that William was given a fair, complete, and impartial hearing on the issues. The evidence was conflicting concerning the defendant’s competency to stand trial, and we cannot say the trial court abused its discretion in holding the defendant was competent to stand trial.
7. Sanity When Crime Occurred.
William relied on the defense of insanity at trial.
In Kansas, the test for insanity is the M’Naghten test, under which the accused is held to be not criminally responsible for his acts (1) where he does not know the nature and quality of his act, or in the alternative, (2) where he does not know right from wrong with respect to the act. State v. Boan, 235 Kan. 800, 809, 686 P.2d 160 (1984).
The standard of appellate review for sufficiency of the evidence is well established:
“When the sufficiency of evidence is challenged, the standard of review on appeal 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. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).
The State presented evidence from a number of non-law enforcement people who observed and talked to William both before and after Richard was killed, and their testimony, standing alone, would form a basis for a jury to determine that the defendant did not meet the M’Naghten test for insanity. In addition, William cut off and buried the identifiable body parts (an act Dr. Modlin thought was significant because it suggests William knew what he was doing at the time he killed Richard).
William also left a notebook at the scene that attempts to set up an alibi. In the notebook, William first described a rape, death, and mutilation of a young woman (similar somewhat to Richard’s death and mutilation) by three men who put the body and body parts in the river. This supposedly took place between William’s campsite and North Lawrence.
In the notebook, William then described what he did on the day Richard was killed and the following day. Highly summarized, he described getting and taking Richard fishing and walking Richard part-way home. He then expresses a wish to take Richard and his brother, Butch, fishing the following day.
The entry the following day (the day following Richard’s death) contains a message to Richard and Butch that, if they come by to go fishing, to stay at the campsite until he returns. He tells them there is drinking water, but to save him some. The notebook then purports to show William returned and then left for lunch, and contains a note to that effect and that Richard and Butch could hang around the campsite if they want to. The notebook also contains other writings of the defendant that clearly show a person having mental problems.
Because William later admitted to killing Richard, a jury could easily find that the notebook was a conscious attempt to establish an alibi and show lack of knowledge concerning Richard’s death. It was not until later that William became convinced that a cult had killed Richard. By attempting to establish an alibi, William showed he was not insane at the time of the crime.
Further evidence of this is that Dr. Modlin was of the opinion that William had not formed that delusion until after he killed Richard. Dr. Modlin testified he had examined the police interrogations on July 14, 15, and 16 and concluded:
“THE WITNESS: His language was adequate. His responses were relevant and coherent. He understood the questions, and his answers, you know, went along with the questions. He gave two or three versions of what happened or what might have happened, and one of them was that he committed the crime, and he was visibly upset and cried more than once, which I would consider a very understandable, normal reaction to someone in this situation, recalling what had happened. Another time or two, he was quite composed. One striking episode was that he was able to describe dismembering the body. He had difficulty getting the head off, but the hands and feet came off like ice cream.
“Q. (By Mr. Flory) Doctor, if this crime was committed in the course of a delusion, a true delusion, would a person be able to set forth all the details like he did, attributing them to himself?
“A. In a way, that would be possible, but no evidence of delusion material showed up. That is, he had no explanation at first. He offered no explanation. ‘It was a terrible thing, you know. I must have gone berserk. I must have blacked out.’ He didn’t have any explanation of it then at all. One little thing came up on the — I believe it was on the 16th. It appeared in Mr. Deathe’s report — that Mr. William mentioned that he thinks he saw his mother’s face and it is kind of a vague response. Did he see his mother’s face in Richard? It wasn’t quite clear, and then he immediately sort of followed that up by, ‘Therefore, my mother is responsible for this.’ And that may be the very first — that is the first inkling, the first beginning that I am aware of that he began developing an explanation, which now is well developed.
“Q. And that was several days after the crime had occurred?
“A. Right.
“Q. Would the fact that the defendant removed the identifiable parts of the body, that being the hands with the fingerprints, and the feet with the footprints, and the head with obvious identifying characteristics, would that fact be significant to you in determining whether or not at the time of the crime, immediately thereafter, the defendant understood the nature of his acts?
“A. It certainly suggests that he knew what he was doing at the time. It’s consistent with a remark he made to Mr. Rutledge, I believe, that he was considering turning himself into the police, so he knew, at least at that time, that he had done something wrong.
“Q. Would the comment about considering turning himself in, would you consider that a significant fact?
“A. Yes. It means he has some contact with how society operates. You know, he knows there is a police force and knows there are laws. He know he broke a law and the police would be interested.
“Q. Would the fact that there was an effort made to secret or hide or dispose of evidence be significant in determining the defendant’s mental state at the time of the crime?
“A. Yes, it suggests that he was in sufficient contact with reality and able to make the judgment that he should conceal the crime. Pretty obvious. That is just common sense.”
William was able to function normally after the murder; he spent a good part of one day showing officers various routes and fishing holes and had no problem communicating with the law enforcement people.
The jury also heard William’s statements to law enforcement personnel concerning Richard’s death. They observed the map William drew of the murder scene showing where the murder took place and where the various body parts were buried, as well as a drawing showing the way “he” (Richard) looked at 3:04 a.m. (showing a body with arms and legs but no head, hands, or feet).
Dr. Modlin, a highly respected psychiatrist, testified that William, at the time of Richard’s death, did “not meet the requirements for insanity.” Dr. Modlin was referring to the M’Naghten test.
The evidence in this case is such that a reasonable person could conclude, beyond a reasonable doubt, that William knew the nature and quality of his act, and that he knew right from wrong with respect to the act.
8. Cross-Appeal
The State, as cross-appellant, argues that the trial court erred in excluding a note that was in William’s possession when he was arrested. In the note, obviously directed to Richard, William wrote: “Now I got you tie up.” Then William threatens to cut off Richard’s private parts if he does not engage in “gay sexs,” which he specifically describes in the note.
The problem concerning admissibility is due to the fact that the note was taken from William’s personal possessions at the Law Enforcement Center a day after William’s arrest. The personal property had been removed from William’s possession and placed in a manila envelope and put in a property locker when William was booked into jail.
The evidence and court rulings concerning the note developed in this manner.
At the preliminary hearing, Detective Davis testified he had William empty his pockets into a paper sack when the search warrant was executed at the hospital. Davis noticed a wallet and papers. He did not examine the sack contents and testified the standard procedure was to inventory the personal property when the accused is booked into jail. He was not present when William was booked into jail and did not see the personal property inventoried.
Officer Mike Riner testified he was assigned to inventory the defendant’s personal property the day following the formal charges being preferred against William. He found the note wadded up in an egg-shaped ball in the middle of three business-sized envelopes that were folded in thirds and folded around the note.
The trial court, based on the evidence before it at that time, held that the note was admissible under the “second look” doctrine, which will be discussed later.
A motion to suppress was filed. A law enforcement officer with the Douglas County Sheriffs Office testified that she observed William empty his pockets at the hospital under police supervision. She recalled seeing a wallet and some business-type envelopes and a wadded-up piece of paper. She noticed William was concerned about the wadded-up paper and said, “He dropped it on the floor several times, picked it up, always placed it back in between on the inside of the business-type envelopes. He didn’t place it in one of them. He placed it between them and kept it covered.” The following day she recalled the incident and told the officer in charge of the investigation about it. Officer Riner was immediately dispatched to review the contents of the defendant’s property.
Another officer, Randy Roberts, a corrections officer with the Douglas County Sheriffs Department, testified that, in the process of booking in the defendant, he looked in the sack of personal possessions. He said he just flipped through the papers to see if there was any money that needed to be separated and then listed them on the inventory sheet as miscellaneous papers. There were some envelopes relating to food stamps so all he noted on the inventory sheet was food stamps. He did not individually read any of the sheets of paper. He stuck all of the papers in a property envelope.
The trial court was of the opinion that there was never a “first look” of the note in question, and absent a “first look” (which identifies the items so the police ultimately know they are useful as evidence in the case) there can be no “second look.” The trial court was also justifiably critical of the law enforcement personnel’s handling of the inventory.
It is not necessary in this opinion to trace the history of the development of search and seizure under the Fourth Amendment. What we are dealing with here is a post-arrest detention issue that simply boils down to the question of whether the law enforcement officers can go through the personal possessions of the accused that were being held for safekeeping and seize evidence without a warrant under circumstances in which the officers could have and should have examined the items seized when the defendant was first booked into jail.
A kindred issue was first considered by the United States Supreme Court in United States v. Edwards, 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974). In that case, Edwards was placed in jail and the following morning his clothing was taken from him and held as evidence. The Sixth Circuit Court of Appeals held that, after the administrative process and the mechanics of booking the defendant was completed, the arrest had come to a halt and law enforcement officers could not take the clothing from the defendant without obtaining a warrant. 415 U.S. at 802.
The Supreme Court noted:
“With or without probable cause, the authorities were entitled at that point [at the booking process] not only to search Edwards’ clothing but also to take it from him and keep it in official custody. There was testimony that this was the standard practice in this city. The police were also entitled to take from Edwards any evidence of the crime in his immediate possession, including his clothing.” 415 U.S. at 804-05.
The Supreme Court said, “Indeed, it is difficult to perceive what is unreasonable about the police’s examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.” 415 U.S. at 806. It pointed out that the test is not whether it is reasonable to procure a search warrant, but whether the search itself was reasonable.
The Court said:
“[United States v. Caruso, 358 F.2d 184 (2d Cir.), cert. denied 385 U.S. 862 (1966),] is typical of most cases in the courts of appeals that have long since concluded that once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.” 415 U.S. at 807-08.
In Baskerville v. United States, 227 F.2d 454 (10th Cir. 1955), Baskerville was arrested and booked into jail and his personal property was placed in an envelope. The envelope had been stored with the property custodian of the Denver jail. Some two weeks later, a United States secret service agent went to the jail and examined the defendant’s personal effects in the envelope and discovered an identification card that had evidentiary value. The Tenth Circuit held that the search was incident to a lawful arrest, even though the search took place two weeks later.
In People v. Rivard, 59 Mich. App. 530, 230 N.W.2d 66 (1975), the police noticed a blue sapphire ring when they booked defendant at the police station and inventoried his property. The ring was later seized for evidence from the property locker. The Michigan Court of Appeals held that the defendant had no reasonable expectation of privacy concerning the ring on the basis that no warrant would have been required to seize the ring during the inventory. 59 Mich. App. at 533-34.
We have had one occasion to consider this issue. In State v. Costello, 231 Kan. 337, 644 P.2d 447 (1982), the defendant was booked and his personal property placed in an envelope for safekeeping at the Wyandotte County Jail. A large ring with a distinctive square face was removed from his finger and placed in the personal property envelope. Defendant argued that the State could not later take the ring from the envelope for use as evidence at trial without a search warrant because it would violate the Fourth Amendment. We cited United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974), where law enforcement officers took a “second look” and seized money belonging to the defendant without a warrant. The money had been removed from the defendant’s possession when he was incarcerated. Later, the police learned that some of the money taken in the crime defendant was suspected of committing had had the serial numbers recorded. They went back into the defendant’s possessions and checked the serial numbers of the money there and discovered a match. The court considered the same argument that is at issue in this case and said, “This argument ignores the fact that once the money had been lawfully taken by the police for safekeeping [defendant] no longer could reasonably expect any right of privacy with respect to the serial numbers.” 496 F.2d at 73 (citing United States v. Edwards, 415 U.S. at 807).
This court in Costello went on to hold:
“On the basis of the holdings in the foregoing cases, we hold when an accused has been lawfully arrested and is being held in custody, the personal effects in his possession at the time and place of his arrest may lawfully be searched, inventoried, and placed in safekeeping by the police without a search warrant when the search and seizure is incidental to the arrest. Thereafter, although a substantial period of time may have elapsed since the administrative processing, a ‘second look’ at the inventoried personal effects may be obtained without a search warrant, and any property which is relevant for use as evidence in the accused’s trial may be removed from the place of safekeeping.” 231 Kan. at 342.
William would limit our holding in Costello to those cases where the law enforcement officers have observed the item and recognize it to be evidence at a later date. We do not believe that to be the law. Our broad holding in Costello is consistent with what a majority of the courts are holding. 2 LaFave, Search and Seizure § 5.3(b), pp. 494-96 (2d ed. 1987) states:
“But, should it be so that the police may search through an incarcerated defendant’s personal effects any time during the period of his pretrial incarceration merely on the basis that they are doing nothing more than could have been done at the time of arrest or booking? If the test is what could have been done at these earlier occasions, then (to pass on to the second question set out earlier) it would seem that the police are relieved not only of the obligation of securing a warrant but also of the obligation of establishing probable cause to search through the property previously inventoried and those items of personalty retained by the incarcerated defendant, for probable cause that particular items of evidence are to be found is not required at the time of the custodial arrest (per Robinson) or at the time of booking (per Edwards). That is, the police could conduct a search upon the mere hunch that something of evidentiary value with respect to the charged offense or, indeed, any other offense might be found. A majority of the courts which have considered the question seem to assume that the police may do precisely this. ‘The underpinning of these cases is that the items in question have been exposed to police view under unobjectionable circumstances, so that no reasonable expectation of privacy is breached by an officer’s taking a second look at matter with respect to which [the] expectation of privacy already has been at least partially dissipated.’
“It does not appear that this issue has been settled by the Edwards decision. True, at one point the Court speaks of the authority of the police to search ‘without probable cause,’ which sometimes has been interpreted as resolving the matter, but this statement appears in the context of a discussion of ‘when Edwards was placed in his cell’ and what the authorities were entitled to do ‘at that point in time.’ It is never expressly stated that the continuing authority to search is of this same dimension, although admittedly some of the Court’s language might be read as suggesting such a conclusion. However, other language in Edwards expresses caution on this point, particularly that in footnote 9:
“ ‘Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints. This type of police conduct “must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” [citing Terry v. Ohio] But the Court of Appeals here conceded that probable cause existed for the search and seizure of respondent’s clothing, and respondent complains only that a warrant should have been secured.’
“The question is a difficult one, for rational arguments can be made upon both sides of the issue. There is certainly something to the contention that a ‘second look’ at what was lawfully seen at the time of inventory does not invade any substantial privacy interest. Yet, by hypothesis the second look must be an intrusion somewhat greater than the first, for otherwise the probable cause would exist in advance of the taking of the second look. It may be that the argument for requiring probable cause is greater when the purpose of the search is to find evidence relating to a crime other than that for which the person is in custody. Permitting a more careful post-booking search to find evidence of the crime for which the arrest was made more clearly relates to what might well have been done at the time of booking had all the facts and circumstances of the case then been assembled and evaluated. ”
Here, a law enforcement officer, during the process of removing the personal possessions from the accused, observed the note in question and the fact that the accused appeared to be possessive and concerned about the paper and was attempting to place it so that it would not be observed. Because the investigators had earlier found defendant’s notebook, which was an important piece of evidence, the officers would have had reason to look at the crumpled-up piece of paper.
We are convinced that the plain view doctrine is not the ultimate test. If it were, the majority in Edwards would have held that the clothing remained in plain view at all times and the case would have been decided on that point. Nor does the problem of probable cause seem persuasive. In most of the cases, officers did not have probable cause for a search during the “first look.” The probable cause came later. We are satisfied that the test is simply whether the items were lawfully seized in the first instance. Once they are lawfully seized and retained for safekeeping, the accused has no expectation of privacy and the officers may thereafter, in our opinion, take a “second look” at the inventoried personal effects without a search warrant and remove any evidence from the place of safekeeping. The trial court erred in suppressing the note.
The defendant’s conviction is affirmed. The State’s cross-appeal is sustained. | [
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The opinion of the court was delivered by
Abbott, J.:
The trial court granted summary judgment in favor of the defendants and against the plaintiffs in a suit for an accounting of the financial affairs of an unincorporated, independent congregational church.
The trial court dismissed the suit because the plaintiffs, after the suit was filed, were expelled from membership in the church, and the trial court concluded they no longer had standing to maintain the suit. The trial court held it could not inquire into the regularity of the expulsion because it was an “ecclesiastical” action by a religious body. This appeal followed, and the issue is whether the trial court erred by holding that the First Amendment to the Constitution of the United States and Section 7 of the Bill of Rights to the Constitution of the State of Kansas prohibit a court from hearing this case.
The twelve plaintiffs in this case were members, and still claim to be members, of Pleasant Green Baptist Church (Church). The Church was started in 1914, when several families moved to Kansas from Mississippi, where they had been members of the Pleasant Green Baptist Church. When they started a church in their new home, they gave it the same name. One of the plaintiffs, Lillian Harrington, was a member of one of those families and has been a church member since the church was founded (76 years). The other plaintiffs have been members ranging from six years to fifty years. The twelve members have an average length of membership in the Church of over 31 years. Six of them were deacons of the Church and the twelve have served the Church in many capacities, ranging from church clerk and Sunday school teacher to usher.
The eight defendants include the Church pastor, the chairman and co-chairman of the deacon board, the chairman of the trustee board, persons with signature authority on the Church’s bank accounts, and other members of the Church who control and/or hold title to assets and property for the benefit of the Church and its members. The pastor, David L. Gray, has held that position for thirty years.
Plaintiffs attempted to gain access to information regarding the Church’s financial affairs and the use of Church assets and property. They ultimately filed a class action suit on behalf of all members of the Church for both an accounting and for the appointment of a temporary receiver to perform the accounting. Plaintiffs were unsuccessful in obtaining the information they sought through the use of interrogatories, requests for admissions, and requests for production of documents.
Defendants filed their first motion for summary judgment (not the subject of this appeal) in October 1989. Defendants alleged that plaintiffs were expelled as members of the Church at a church meeting on July 30, 1989, the first Sunday after this suit was filed. On January 5, 1990, the trial court denied defendants’ motion, stating that there were controverted material issues of fact as to whether there had been any expulsion hearing.
Within two weeks after defendants’ first motion for summary judgment was denied, defendants filed their second motion for summary judgment (the subject of this appeal). Defendants, on the second motion for summary judgment, alleged that plaintiffs had been expelled as members of the Church on January 14, 1990, after the regular church service that day.
After defendants filed their second motion for summary judgment, plaintiffs attempted to discover whether Church rules existed regarding expulsion and membership and whether those persons “voting” were members of the Church. Plaintiffs also attempted to discover the existence of any membership list and the names of those persons voting at the alleged expulsion. To that end, plaintiffs served upon defendants additional written discovery requests.
Defendants filed a motion to quash plaintiffs’ second discovery request. Defendants noted that the discovery requests all concerned the procedure used to expel the defendants, presuming that procedural due process was due the defendants. Defendants argued that plaintiffs had no right to question the expulsion. The trial court required plaintiffs to respond to defendants’ motion for summary judgment without further discovery.
In defendants’ second motion for summary judgment, they contended that, at a regular church service, the pastor proposed expelling the plaintiffs because filing suit against the Church was “anti-Bible.” Defendants asserted that the motion passed. They argued that courts are without jurisdiction to intervene in church matters and any action taken by the Church cannot be questioned in court. Defendants included affidavits from the pastor stating that the expulsion had occurred, along with a letter to the former members informing them of their expulsion. Defendants also included affidavits of several church members to the effect that such vote was taken. Defendants also filed minutes of the meeting, showing that the vote was taken.
Plaintiffs filed an affidavit of a pastor at another Baptist church, who said that all Baptist churches subscribed to certain rules, including the rule that members must be given notice and an opportunity to answer before any expulsion. Plaintiffs filed affidavits of the expelled members, stating that they had not been given prior notice of expulsion or opportunities to be heard. Many of the plaintiffs’ affidavits stated that there are written and unwritten bylaws or procedures of the Church which direct how members may be expelled and that the member who is a target for expulsion is entitled to notice and an opportunity to be heard. Various plaintiffs stated there had never been an expulsion from membership during the years they were members. (Their years of membership ranged from twenty to fifty years.) All of the plaintiffs denied they had knowledge or notice of the expulsion attempt and thus had no opportunity to be heard.
The trial court found that it was uncontroverted that the January 14 meeting and expulsion had taken place, and the court concluded that it had no power to inquire into the procedure used. The court granted summary judgment for defendants, and this appeal followed.
Plaintiffs make numerous arguments, but the arguments are interrelated. They argue that summary judgment was improper because there were controverted material facts in dispute and because discovery was not complete. They also argue that, because the Church was a congregational church with no rules or formal structure, rather than a hierarchical church, notice and a hearing were due prior to expulsion.
It is the general rule that summary judgment should rarely be granted as long as pretrial discovery remains incomplete. Timmermeyer v. Brack, 196 Kan. 481, 412 P.2d 984 (1966). Here, the effect of the trial court’s ruling was to quash plaintiffs’ discovery request. Plaintiffs were seeking information, most of which would be relevant only if they had a right to notice and a hearing prior to expulsion. The holding of the trial court was, in effect, that as long as there was an expulsion meeting, there was nothing that plaintiffs could show to prevent summary judgment in defendants’ favor because the trial court would not consider the procedure used at the meeting.
The trial court relied on King v. Smith, 106 Kan. 624, 189 Pac. 147 (1920), in holding that a court cannot review a church’s expulsion of a member. In King, a schism had developed in a local church. Certain members were expelled. The expelled members sued to enjoin the other members from holding services in the building. The trial court held that there were irregularities at the expulsion meeting, declared the pastor’s position and all other offices vacated, and appointed a receiver to call a meeting and hold a vote to elect a pastor and officers.
On appeal, the defendants argued that these matters—such as who is pastor and who and how someone is expelled—are all matters to be settled by the church tribunals, not by the court. This court held:
“The differences and disputes that had arisen in the church were mostly questions for the determination of its own tribunals. Property rights were not the questions that divided the parties.
“The church has its own tribunal and its own rules and procedure for the determination of its internal affairs, and their decision in controversies as to the discipline and expulsion of members and the dissolution of the pastoral relation, where no civil or property right is involved, is ordinarily binding upon civil courts.” King v. Smith, 106 Kan. at 625-26.
In King v. Smith, this court stated that the disputed issues were such that “full provision is made for the settlement of such controversies by the law and usages of the church.” 106 Kan. at 626. Expulsion of a member was specifically covered in writing by a Standard Manual, accepted by the church. The court added:
“Of course, the decisions of church tribunals are not conclusive on the courts where property or civil rights or the perversion of a trust are involved, but cases of discipline and expulsion of a member are to be determined by the judicatories of the church.” 106 Kan. at 627.
The briefs filed in King are of interest. The appeal was brought by the Reverend B. Alard Smith and his wife. Reverend Smith (pastor) and his wife (church secretary) had been voted out of office at a meeting called by the three appellees. This meeting was held after the lawsuit was filed. The Smiths listed and briefed as the issue in the case the question whether one or more members of a church, who became dissatisfied with a pastor, can file a lawsuit to remove the pastor from office, without resorting to the means of removal provided for by the church.
One of the plaintiffs, J. S. Nuckols, had been excluded from membership, but his exclusion was not an issue in the case. In fact, it appears Nuckols had ignored the expulsion and was a leader in the effort to topple the Smiths. The church had had a troubled past. A pastor had been killed by a member, and Nuckols had flogged Smith’s predecessor with a whip at a church meeting. The end result in King v. Smith was that the Smiths were restored (as were all the other officers) to their former positions and the receivership and injunction dissolved. The holding of King, therefore, is simply that disgruntled church members may not bypass church procedures to contest decisions with which they are not pleased. King does not stand for the proposition that courts may not question whether members were given their procedural rights.
Defendants admit that courts do have the power to determine who owns church property. In Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 506 P.2d 1135, reh. denied 211 Kan. 927, 508 P.2d 842 (1973), this court considered whether a board of trustees had authority to convey church property absent approval of members of the congregation. Here, defendants argue that plaintiffs have not stated a property interest. They argue that the only question is whether the members were properly expelled.
Plaintiffs characterize the argument differently. They argue the question is whether they are entitled to procedural due process in an expulsion when the expulsion denies them a property interest. They claim a property interest in that they show they have contributed to the Church (some of them substantially for many years) and that if the Church dissolved they would be entitled to a share of the church assets.
In Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 49 L. Ed. 2d 151, 96 S. Ct. 2372, reh. denied 429 U.S. 873 (1976), a battle for control developed in the Serbian Eastern Orthodox Diocese of the United States and Canada. The Holy Synod of the Serbian Orthodox Church (Mother Church) defrocked a bishop who then filed suit in the Illinois courts to have himself declared the true bishop and to enjoin the newly ap pointed bishop from interfering with diocesan assets. He argued that the procedure followed by the Holy Assembly of Bishops and the Mother Church was procedurally and substantively defective under the internal regulations of the Mother Church.
The United States Supreme Court recognized that the church was a “hierarchical church,” 426 U.S. at 708, with a governing body, set rules of procedure, and an internal appeals procedure. The Court held that the basic dispute was over control of a diocese and its property and assets, and an inquiry into the procedure followed by a hierarchical church to settle that dispute would necessarily involve an inquiry into the beliefs of the church. The Court said:
“[Wjhere resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them.” 426 U.S. at 709.
There was no dispute as to notice and an opportunity to be heard and the issue was determined to be not a property dispute, but property litigation that turns on the resolution of controversies over religious doctrine and practices.
In summary, the court in Milivojevich stated:
“In short, the First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.” 426 U.S. at 725.
Plaintiffs argue that different rules apply to “congregational” churches; that is, churches in which the congregation makes all decisions by a majority vote.
One analogy that can be made is to voluntary, unincorporated associations. In Harris v. Aiken, 76 Kan. 516, 92 Pac. 537 (1907), this court held that a member of a voluntary association may be expelled if he was given notice of the charges and an opportunity to defend himself. See also Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 29 P.2d 976 (1934) (mutual benefit society). These cases give members rudimentary due process rights because a member has some equitable property rights in the assets of the association.
Other states have extended this rule to congregational churches. In Reid v. Gholson, 229 Va. 179, 327 S.E.2d 107, cert. denied 474 U.S. 824 (1985), the Virginia Supreme Court explained that hierarchical churches have their own established rules for discipline and internal government. The court noted that these tribunals are frequently inherently tied to and based on ecclesiastical law developed over long periods of time. The court, relying on Serbian Eastern Orthodox Diocese, said that to delve into the decisionmaking processes of these bodies would entangle a court into the “religious thicket.” 229 Va. at 187.
The court defined congregational churches, which are governed by the will of the majority. It said:
“They are free to adopt constitutions, by-laws, and internal rules which will alter or regulate their proceedings, but even these must be enacted by majority vote. And in the absence of such voluntarily-adopted rules, each such congregation functions as a pure democracy. When the majority has spoken in a fairly-conducted congregational meeting held after proper notice to the membership, then the governing body of the church has expressed its will and, as in the case of an hierarchical church, its decision is constitutionally immune from judicial review.
“The situation is otherwise, however, when the members of a congregational church merely seek the protection of the court for the purpose of obtaining a fairly-conducted meeting in the first place. Here the analogy to hierarchical churches breaks down because there is no body of ecclesiastical law to invoke, no internal tribunal to appeal to. A member of a congregational church, seeking the aid of the court in protecting his civil and property rights, may appeal only to the simple and fundamental principles of democratic government which are universally accepted in our society. These principles include the right to reasonable notice, the right to attend and advocate one’s views, and the right to an honest count of the votes. Such rights are fundamental to our notions of due process. They are neutral principles of law, applicable not only to religious bodies, but to public and private lay organizations and to civil governments as well. Courts must apply them every day, and can do so without any danger of entering a ‘religious thicket.’ Therefore, the authorities which preclude the courts from examining whether an hierarchical church correctly followed its own internal procedures, or correctly applied its canon law, are inapposite to the question before us.” 229 Va. at 189-90.
Other courts reach similar results. See, e.g., Abyssinia Missionary Baptist Ch. v. Nixon, 340 So.2d 746 (Ala. 1976); Konkel v. Metropolitan Baptist Church, Inc., 117 Ariz. 271, 572 P.2d 99 (1977); Hardwick v. First Baptist Church, 217 N.J. Super. 85, 524 A.2d 1298 (1987); Ex Parte McClain, 762 S.W.2d 238 (Tex. App. 1988).
Although there are cases to the contrary, the aforementioned line of cases seems to be better reasoned. Such a result is consistent with the law of voluntary associations and is not inconsistent with King v. Smith.
In the case presently before us, summary judgment was improper. Disputed facts remain in that plaintiffs presented affidavits that written and unwritten bylaws and procedures exist. An independent witness, an assistant pastor of a church of the same denomination, also filed an affidavit to the same effect and cited as authority Hiscox Guide for Baptist Churches by Edward T. Hiscox. (The “Standard Manual” referred to in King v. Smith appears to be from New Directory for Baptist Churches, E. T. Hiscox, D.D., ch. 4, pp. 101, 108.)
The trial court erred in failing to determine the factual issue of whether church law or usage existed, requiring notice and an opportunity to be heard. If a congregational church provides a procedure for expulsion of a member, a good faith effort to follow that procedure must be made.
A congregational church member has a right under common-law principles to a fairly conducted meeting on the question of expulsion, and that includes reasonable notice, the right to attend and speak against the proposed action, and the right to an honest count of the vote. In the absence of church law or usage, a majority vote of the members present at a regular Sunday service prevails on expulsion. It does not require formal evidence, the right to counsel, or the right to present witnesses (unless church rules so require).
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The opinion of the court was delivered by
Lockett, J.:
John Richard (J.R.) Cady was convicted of first-degree murder. At the time of the murder Cady was a 16-year-old juvenile. The State’s request that Cady be tried as an adult was granted by the district court. Cady appeals, claiming: (1) The district court erroneously allowed the State to prosecute him as an adult (K.S.A. 38-1636); (2) the district court erred by denying his request that the jury be instructed on diminished capacity; and (3) juror and prosecutorial misconduct violated his right to a fair trial.
At 12:15 p.m. on November 2, 1988, Cady gained entrance to 16-year-old Melissa Brown’s house by asking Melissa’s older sister to let him stay in the house so that he could talk to Melissa before he left to go to California. Melissa was Cady’s former girlfriend. The older sister testified that before she left the house, Cady appeared normal to her and had assured her that nothing would happen to Melissa.
Melissa’s stepfather arrived home after 4:30 p.m. Shortly thereafter, Melissa arrived and immediately went to her bedroom. The stepfather heard Melissa scream. When the stepfather entered Melissa’s bedroom, he saw Cady standing with his arm around Melissa’s neck and holding a knife at his side. The stepfather said Cady looked directly at him with a determined look. When the stepfather asked Cady what he was doing, Cady began stabbing Melissa in the chest with the hunting knife and said, “This is what the hell I’m here for.” As the stepfather went to call the police, Cady left the house.
At about 5:00 p.m., Cady walked up to Rick Emery’s house and asked if he could use the phone to call the police.. Cady told Emery, in a normal voice, that he (Cady) had just stabbed and killed his girlfriend. Emery testified that while waiting for the police to arrive, Cady told the young adults at Emery’s house that they should not follow in his footsteps. When Emery asked Cady if he just cut her, Cady replied, “No, I stabbed her and watched the life flow out of her.” Cady stated, “I know what I did was wrong, but I had to do it, and I know that I’m probably going to the electric chair for this.” Emery testified that while Cady was using the phone he heard Cady say, “I killed her and I told you I was going to kill her, and I did it.”
Detectives Roger T. LaRue and Joseph Pruett were dispatched to Emery’s house. When LaRue and Pruett arrived at approximately 5:40 p.m., they observed a group of young adults in front of the house. Cady walked up to the law enforcement officers and stated, “I’m the guy you’re looking for.” LaRue said that Cady was cooperative when LaRue requested Cady to be quiet so he could be read his Miranda rights. Cady was arrested and taken to the police station by Pruett. A written waiver of Cady’s rights was obtained at 5:52 p.m. Cady’s videotaped confession lasted from 5:52 p.m. until 9:15 p.m. During the videotaped interview, Cady conversed with Pruett in a rational, responsive, and coherent manner.
After Cady’s arrest, LaRue went to the scene of the crime. In Melissa’s bedroom, LaRue found Cady’s knife on the victim’s bed, and, in her top dresser drawer, he found a leather-like sheath that appeared to fit Cady’s knife.
James M. Beasley, a law enforcement officer whose son had grown up with Cady, testified that at about 5:00 p.m. on the day of the murder, Cady called him. In a normal conversational tone, Cady talked about running away to California. The conversation was interrupted when Cady suddenly hung up the phone. Beasley said that ten minutes after the first telephone conversation, he received a second phone call from Cady. During this conversation Cady’s voice was very excited and high-pitched. Cady told Beasley he had just killed his girlfriend by stabbing her three times with a knife and asked Beasley to arrest him. Beasley testified that he talked with Cady the next morning at the Johnson County Detention Center. During this conversation Cady described the stabbing of Melissa and admitted that he knew it was wrong.
At the trial Dr. Lowell Ghosey, school administrator for Olathe North High School, testified about an incident that had happened in his office between Cady and Melissa the day before the stabbing. In that incident, Cady was so angry at Melissa that Dr. Ghosey told Melissa to go to another office. As Melissa left, Cady kicked a chair into her left leg. Cady then smashed the chair. As a result of his actions, Cady was expelled from school by Dr. Ghosey.
A police officer responding to a complaint received from the school as a result of Cady’s actions testified that Melissa told him Cady had pushed her against a locker with his chest, grabbed her sweater with his hand and stated, “[Y]ou’ll regret it, Melissa.”
The stabbing of Melissa was not disputed by the defense. The defense claimed that Cady was not sane when he stabbed Melissa.
In the State’s case in chief, several witnesses testified that Cady was normal before and after the murder. Testifying for Cady, Dr. Richard Sweetland stated he had diagnosed Cady as suffering from schizophrenia. Sweetland stated that Cady was psychotic and hallucinating when he stabbed Melissa Brown and could not comprehend the nature of his acts. Dr. Sweetland observed that Cady’s schizophrenia was a developmental disease, directly related to a seriously disturbed childhood, that did not fully manifest itself until Cady “cracked” and killed the victim. Dr. Sweetland stated that Cady’s personality was so disordered that even after undergoing extensive treatment, Cady probably would not be able to function as a normal and sane human being.
In rebuttal the State called Dr. Sheridan Tucker, a psychiatrist. Dr. Tucker agreed that Cady suffered from schizophrenia; however, he disagreed with Dr. Sweetland’s finding that Cady did not understand the nature and the wrongfulness of his action when he stabbed Melissa. During Dr. Tucker’s interviews with Cady, the doctor noted six instances of deception by Cady. Tucker noted that Cady has multiple antisocial traits. Tucker testified that, although schizophrenia is a progressive disease, Cady knew the difference between right and wrong at the time of the crime.
Cady first argues that the district court improperly allowed the State to prosecute him as an adult. Under K.S.A. 38-1636(1), the court may authorize prosecution as an adult of any person 16 years of age or more at the time of the commission of the alleged crime if there is substantial evidence that the respondent should be prosecuted as an adult for the offense charged. Subsection (e) of K.S.A. 38-1636 lists eight factors which the court must consider when determining whether to allow prosecution of the juvenile as an adult:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution. The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue.”
After hearing the evidence, the district court authorized criminal prosecution of Cady, stating:
“1) That John Richard Cady was over the age of 16 years at the time of the alleged charge, his correct date of birth being December 22, 1971.
“2) That John Richard Cady is charged with a Class A Felony under K.S.A. 21-3401, i.e. murder in the first degree by killing a human being maliciously, willfully, deliberately and with premeditation.
“3) That the charge is a serious allegation and the protection of the community requires prosecution as an adult.
“4) That the alleged offense was committed in an aggressive, violent, premeditated and willful manner against a person causing her death.
“5) That John Richard Cady has previously successfully completed a diversion contract for a charge of burglary and felony theft; however, there is only the one pending charge before the Court at this time.
“6) That while there is evidence before the Court that the respondent’s psychological condition indicates a need for long term treatment in a structured setting, there is no evidence to indicate that the respondent is less mature than suitable to his chronological age.
“7) That there are no facilities or programs available to the Court which are likely to rehabilitate the respondent prior to the expiration of the Court’s jurisdiction under the Kansas Juvenile Offender’s Code.
“8) That the interests of John Richard Cady and the community would be best served by criminal prosecution given the nature of the charge, the limited time of jurisdiction, and the need for long term intensive, structured treatment necessary for the respondent.
“9) That there is substantial evidence that John Richard Cady should be prosecuted as an adult for the offense with which he is charged.”
Cady argues that the district court, when authorizing Cady’s prosecution as an adult, disregarded its protective role in the juvenile justice system and focused solely on the penal nature of the allegations against him. We disagree. There is substantial evidence to support the district court decision that Cady should have been prosecuted as an adult.
Cady next argues the trial judge erred by denying his request that the jury be instructed on diminished capacity.
The trial court instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter, and that defendant could be found not guilty. Both psychiatric experts testified that Cady was schizophrenic. No expert testified that schizophrenia alone negated Cady’s ability to premeditate his actions. Although the jury was also instructed on the defense of insanity, Cady requested the following instruction on diminished capacity:
“If you find there is evidence of an abnormal mental condition tending to prove either that the accused could not or did not entertain specific intent or state of mind essential to the offense, such evidence though not sufficient in itself to establish legal insanity, should be considered for the purpose of determining whether the crime charged, or a lesser degree thereof, was in fact committed.”
The district court denied the request and refused to instruct the jury on diminished capacity.
Although the defense of diminished capacity had previously been rejected, in State v. Dargatz, 228 Kan. 322, 332, 614 P.2d 430 (1980), we noted that where the crime charged requires a specific intent, evidence of diminished capacity is admissible to show that the accused is incapable of forming the specific intent to commit the crime. In State v. Jackson, 238 Kan. 793, 798, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986), we stated that the decision on whether to instruct the jury on diminished capacity lies within the district court’s discretion. See State v. Pioletti, 246 Kan. 49, 59, 785 P.2d 963 (1990); State v. Morris, 244 Kan. 22, 765 P.2d 1120 (1988); and State v. Maas, 242 Kan. 44, 744 P.2d 1222 (1987).
Citing United States v. Lofton, 776 F.2d 918 (10th Cir. 1985), as authority, Cady urges us to overrule our prior cases which allow the district court discretion on whether to instruct the jury on diminished capacity. Cady argues that the failure to give the instruction deprived him of the opportunity to present his defense to the jury and violated his right to due process guaranteed by the United States Constitution.
We disagree. Cady was not deprived of his right to present his claim of diminished capacity to the jury. He presented the testimony of his expert witness and had the opportunity to cross-examine the State’s witnesses. The defendant was not restricted in his closing argument to the jury. Cady merely failed to convince the jury of his diminished capacity.
There is nothing in the record to indicate that Cady’s counsel objected to the trial court’s ruling denying his request for an instruction on diminished capacity. No party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider the verdict, stating distinctly the matter to which the party objects and the ground of the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). Regardless of the lack of objection, the failure to give the instruction was not erroneous under any standard of review. There is sufficient evidence that Cady methodically planned the murder of his girlfriend.
The final issue for our consideration is Cady’s contention that juror and prosecutorial misconduct violated his right to a fair trial.
Cady’s trial commenced on a Monday. The record shows that after the jury had been selected and sworn, the trial court instructed the jurors:
“Please keep an open and attentive mind throughout the trial. Do not make up your mind or attempt to reach any decision until the conclusion of the entire case and its submission to you for deliberation. Prior to the final chapter of this case, you are not to voice any opinions as to what your position is in reference to any of the evidence that you have heard. Prior to the conclusion of this case, you are not to discuss this matter amongst yourselves or with anyone else, nor are you to allow anyone to discuss it in your presence. If you have any problems along those lines, please call it to my attention or Miss Paulsen’s.”
Cady claims that on the second day of the trial at around 3:00 p.m. while the State was still presenting its case, one of the jurors during a recess stated, “That son-of-a-bitch [Cady] is guilty as hell.” The remark was overheard by Lt. Pruett, formerly Detective Pruett, while he was in a stall of the men’s restroom, across the hall from the courtroom.
Lieutenant Pruett immediately informed the prosecutors he thought one of the jurors, Leroy Sweat, had made the statement. One of the prosecutors informed Lt. Pruett that if the information was correct, it would require a mistrial. Lt. Pruett made no further statement, the prosecutors did nothing, and the trial proceeded. On Wednesday both the State and the defense rested. The jury was instructed and began its deliberation.
On Thursday morning the prosecutors informed the district attorney, who had been out of town, about the information they had received from Lt. Pruett. Prior to the jury commencing its deliberation that day, the district attorney and the prosecuting attorneys went to the trial judge’s chambers and informed the judge what Lt. Pruett had overheard. After this conversation, the trial judge allowed the jury to continue its deliberation. Without informing the defendant’s attorney of his conversation with the prosecutors, the trial judge asked if either party objected to his dismissing the alternate jurors. The defendant’s attorney, who had no knowledge of what had transpired, agreed that the alternate jurors could be dismissed from service. After the jury found Cady guilty of murder in the first degree and had been excused from further service, the judge stated: “[P]rior to leaving here today, it is absolutely necessary that I see both counsel for the State and counsel for defense in my chambers. I think most of us or some of us know what that’s about.”
After the trial judge called counsel into his chambers, he informed Cady’s attorney what had transpired. Cady’s appellate counsel agrees the record is unclear and the trial judge may have been under the impression that the State’s attorneys had informed defense counsel about the statement attributed to the juror, prior to the judge’s request to release the alternate jurors.
The same judge who had presided at Cady’s trial conducted the hearing on Cady’s motion for a new trial. The motion for new trial was based on alleged juror and prosecutorial misconduct stemming from the comment Lt. Pruett had overheard during the trial. At the conclusion of the hearing, the judge merely stated:
“The Court, after reading the law in reference to this matter—I assume that we’d all spent some time in reference thereto—finds that under the statements as made and evidence that I heard, the Court finds that the Motion for New Trial should be and the same is hereby denied.”
Cady argues that because the district court failed to make specific findings or conclusions of law, the appellate court should conclude from the record that the defense proved, by a preponderance of the evidence, a sworn juror during the course of the trial stated to someone that he believed Cady was guilty. The State does not dispute the fact the statement was made but claims there is no evidence to prove that the statement overheard in the men’s restroom was made by a juror.
Lieutenant Pruett testified at the new trial hearing that in his opinion the remark was made by a juror named John L. (Leroy) Sweat. Pruett said that Sweat was his butcher and had been his personal friend for the last four years. He testified that he talked to Sweat at least once a week and knew him by the name of Leroy. On cross-examination by one of the attorneys who prosecuted during the trial, the following occurred:
“BY MR. WATSON:
“Q. Detective, you can’t say for sure that was Leroy Sweat, can you?
“A. No, sir.
“Q. In fact, sir, when you told Mr. Fritz and myself, isn’t it a fact you came out and said, ‘Well, it sounds to me like you have at least somebody in your comer. I heard somebody say’—and basically paraphrasing this statement; is that correct?
“A. That’s not what I recall saying.
“Q. What did you say?
“A. I told you that I thought Leroy Sweat had said that.
“Q. Did you give us the name Sweat when you said that?
“A. Yes — yes.
“Q. Did you in fact tell us that you thought it was a juror?
“A. We had discussed the fact that Leroy was on the jury. When I said Leroy, I was implying that it was a juror.
“Q. In fact, did I not say to you that if I know this is a juror I have to report this to the Court, and that’s a mistrial; is that right?
“A. That’s correct, sir.
“Q. And you did not respond to me when I said that?
“A. There was no verbal response.
“Q. You assumed there was a second person in there. Is that based upon the shuffling sounds, or the fact you felt the presence of a second person in there?
“A. I could see a second person in there.
“Q. A second set of legs or something to that effect?
“A. Yes.
“Q. You assumed that was a male, then, based upon the dress and the fact it was in the men’s restroom?
“A. Somebody was standing at the urinal.
“Q. And you have no idea who that other person was?
“A. No, sir.
“Q. And there was no other comment made that you heard?
“A. None.”
Then the court asked Lt. Pruett the following:
“THE COURT: And as I understand it, sir, to be sure, you cannot say positively that it was Leroy Sweat; is that correct? I believe that was the question asked you by the defense.
“MR. PRUETT: No, Your Honor. If I could expound for just a minute.
“THE COURT: Certainly.
“MR. PRUETT: I was in the restroom, and there was no one else present. The door was closed to the stall. Two gentlemen came in, the comment was made, they left, then I came out of the stall. I never saw who it was, other than to tell you it was two gentlemen.
“THE COURT: Thank you. Any questions?
“MR. HEDRICK: No, Your Honor.
“THE COURT: Thank you very much, Officer. We appreciate it, and we appreciate your information.
“Defendant’s next witness.
“MR. HEDRICK: Judge, I don’t have any more witnesses.”
The prosecutor then called his co-counsel to testify about the conversation in which Lt. Pruett informed the prosecutors of what he had overheard in the restroom:
“Q. And do you [Mr. Fritz] recall the nature of that conversation?
“A. Yes, sir.
“Q. Sir, do you recall from your recollection when Detective Pruett approached the prosecution for the State, do you recall whether or not he identified this unknown speaker by last name?
“A. No, sir, he did not.”
Then Cady’s attorney cross-examined the prosecutor regarding his knowledge as to the juror’s identity:
“BY MR. HEDRICK:
“Q. Mr. Fritz, during voir dire, you are aware that one of the jurors indicated that he knew Detective Pruett; isn’t that correct?
MR. WATSON: Judge, that’s outside the scope.
THE COURT: It is, but I’m going to allow it.
THE WITNESS: Could you restate that, please?
“Q. (By Mr. Hedrick) You were aware that one of the jurors knew Detective Pruett personally; is that right?
“A. Yes.
“Q. Did you make notes in your record as to what juror that was?
“A. I believe I did.
“Q. Do you know who that was?
“A. Do I know now who it was?
“Q. Uh-huh.
“A. Yes, it was Leroy Sweat.
“Q. So if he were to give you the name of Leroy and indicate to you that some communication occurred, wouldn’t it be natural for you to assume Leroy Sweat was the person he was talking about?
“A. I know now that if he mentioned the name Leroy it probably could have been Leroy Sweat.
“Q. You’re saying he didn’t mention the last name at that point in time?
“A. No, he did not.
“Q. And at that point in time, you didn’t have any idea he was talking about a juror?
“A. No.
“Q. Did he make any other statements to you, such as, ’It looks like you have someone in your camp,’ or something to that effect?
“A. Yes, he did.
“Q. Did that lead you to believe that it was a juror?
“A. No.
“Q. What did that lead you to believe?
“A. Well, if I may explain, we were talking—he asked us how our case was going, and I remember stating to Mr. Pruett that we got in evidence that we thought was good, and we felt it was going very well, and Mr. Pruett stated at that point that there was somebody in our camp. So I don’t know if that was a spectator that made an opinion that our case was going well. In fact, that’s what I believed at that time.
“Q. You believed it was a spectator?
“A. Yes.”
Lieutenant Pruett was recalled as a witness for Cady and testified as follows;
“Q. (By Mr. Hedrick) Did you inform them as to the identity of the person who you believed made the statement?
“A. Yes, sir.
“Q. And how did you identify him to them?
“A. I told them that it was Leroy, the juror.
“Q. Leroy the juror?
“A. Right.
“Q. You did make the statement that it was a juror then?
“A. Yes.”
Then, on cross-examination by the State, Lt. Pruett stated the following occurred:
“Q. When you testified earlier, you stated for a fact that you didn’t know that it was a juror, correct?
“A. That’s correct.
“Q. And you testified before that you said it was the name ‘Leroy’; you thought you’d said the word ‘Sweat.’ Mr. Fritz has testified that you never said any last name, just the word ‘Leroy.’ Now you’ve added the appellation of ‘juror’ onto the word ‘Leroy’; is that correct?
“A. That is correct.
“Q. And it’s your recollection that you said, in fact, it was a juror; is that correct?
“A. What I indicated to you and Mr. Fritz in the hallway at the end of the conversation I overheard was that I had heard Leroy say, ‘That son of a bitch is guilty as hell.’
“Q. You thought it was Leroy?
“A. I—I did.
“Q. Based upon the voice, correct?
“A. Correct.
“Q. And based upon what you’ve just said there, you never said, ‘Leroy, the juror, said he’s guilty as hell,’ correct? What I’m getting at, sir, and you have to understand that this is an issue that is being taken down exactly as you say it.
“A. That is correct.
“Q. The phrase, ‘the juror.’ Did you enunciate that phrase and speak that phrase, ‘the juror,’ to Mr. Fritz and myself?
“A. Not that I can recall specifically, no, sir.
“Q. Okay. You said the word Leroy, correct?
“A. I did.”
At the hearing on the motion for new trial based on Lt. Pruett’s testimony that he thought Leroy had made this statement, the defense’s entire argument was based on the assumption that a juror may have made the statement.
In essence, the right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. A juror’s verdict must be based upon the evidence developed at the trial of a criminal prosecution, regardless of the heinousness of the crime charged, the apparent guilt of the offender, or the station in life which the offender occupies.
Although it is the theory of the law that a juror who has formed an opinion before he or she is sworn cannot be impartial, the Fourteenth Amendment’s guaranty of due process does not require that a prospective juror be totally ignorant of the facts and issues involved in the case, and the mere existence on his or her part of a preconceived notion as to the guilt or innocence of the accused is, without more, insufficient to rebut the presumption of impartiality if he or she can lay aside an impression or opinion and render a verdict based on the evidence presented in court.
Whether a defendant is denied due process of law because of prejudice by the jury is tested by the question whether the nature and strength of the opinion formed are such as in law necessarily raise the presumption of partiality, and this question is one of mixed law and fact. The affirmative of the issue is upon the challenger. The juror need not necessarily be set aside unless the challenger shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, but if a positive and decided opinion has been formed by the juror, he or she will be incompetent even if the opinion has not been expressed. Irvin v. Dowd, 366 U.S. 717, 722-23, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961).
Cady argues the lack of impartiality by a trier of fact is a fundamental error which requires automatic reversal. Rose v. Clark, 478 U.S. 570, 577, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986); Turney v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927). Though Cady’s counsel talked to Mr. Sweat about the incident, he did not subpoena the juror to testify. Cady claims that the fact that a juror, sworn to be impartial, made the remark is sufficient to show that he was not tried by an impartial jury. Cady argues that under the circumstances, the verdict against him lacks the basic integrity required by law.
The procedure to question the validity of a jury verdict is statutory. Upon an inquiry as to the validity of a verdict no evidence shall be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or concerning the mental processes by which the verdict was determined. K.S.A. 60-441. This statute is not construed to exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict. K.S.A. 60-444(a). Jurors may be recalled for post-trial motions by order of the court after a hearing on a request to recall the jury. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order. State v. Ruebke, 240 Kan. 493, 512-13, 731 P.2d. 842, cert. denied 483 U.S. 1024 (1987).
Juror misconduct in civil and criminal cases is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof. State v. Fenton, 228 Kan. 658, 664, 620 P.2d 813 (1980). The defendant in Fenton was told by a juror that jurors had heard a threat that the defendant would kill the jurors if he was convicted and argued that the trial court erred in not granting him a new trial. Three jurors had heard about the threat prior to the jury’s deliberation and considered the threat a mere rumor that did not affect the jury’s deliberation. 228 Kan. at 663. The Fenton court was satisfied that the trial court did not abuse its discretion in finding the defendant had failed to show substantial prejudice to his rights.
Juror misconduct was reviewed in State v. Allen, 4 Kan. App. 2d 534, 609 P.2d 219, rev. denied 228 Kan. 807 (1980). In Allen, the jury foreman spoke to three different people about the trial while the case was in progress. During a recess, the juror told one person, “[I]t just looks to me like the man is guilty.” 4 Kan. App. 2d at 537. Another person testified the juror told him that after hearing the defendant’s confession he could not go along with insanity as a defense or with the psychiatrist’s report. In addition, the juror told a third person, prior to hearing the psychiatric testimony, that he was going to vote guilty. 4 Kan. App. 2d at 536. When questioned, the juror testified that none of the three people he spoke to had tried to influence his opinion nor did he tell anyone how he was going to vote. The Court of Appeals found that although the juror conduct was improper, it did not justify or require a new trial. 4 Kan. App. 2d at 537. The Court of Appeals noted that the juror had made his statements to the various individuals based on the evidence adduced at trial. It found that the trial court did not abuse its discretion in denying the defendant’s motion for a new trial.
Not every violation of the rule that jurors must refrain from forming or expressing opinions about the case until the case is submitted to the jury for deliberation is such prejudicial misconduct that it requires a new trial. Nonetheless, trial courts cannot ignore basic principles of proper jury conduct required by law. Under the facts of this case, however, we need not determine whether a juror’s preconceived or premature notion of guilt violated the oath of impartiality and the Fourteenth Amendment’s guaranty of due process. The State’s failure to immediately report to the court and to Cady’s counsel the possibility of a juror’s misconduct casts dark shadows upon the Fourteenth Amendment’s guaranty of due process and the fundamental right to a fair trial. There may be confusion as to the actual conversation between Lt. Pruett and the prosecutors, but it is clear that the name John L. Sweat appeared on the juror forms. The prosecutors knew that one of the jurors had indicated that he knew Lt. Pruett. One of the prosecutors, Mr. Fritz, noted in his trial notes that “Leroy Sweat” personally knew Lt. Pruett.
In its brief to this court, the State neither disputes the defendant’s statement of the prosecutors’ actions during the trial nor briefs the issue of prosecutorial misconduct. Cady points out if the prosecutors had doubts about whether the remarks had originated from a juror, they had an ethical obligation to report the incident to the judge and to Cady’s attorney.
“Although the prosecuting attorney’s paramount obligation is to the public, it is not enough to be intent on the prosecution of the case; the prosecutor must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, the prosecutor’s mission is not so much to convict as it is to achieve a just result. Although the accused must be prosecuted with earnestness and vigor, the prosecutor must always be faithful to the state’s overriding interest that justice be done; the prosecuting attorney is the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. It is as much the prosecutor’s duty to see that a person on trial is not deprived of any of his statutory or constitutional rights as it is to prosecute the defendant. Nonetheless, zeal in the prosecution of criminal cases is to be commended and not condemned. If convinced of the defendant’s guilt, the prosecuting attorney should, in an honorable way, use every available power to secure the defendant’s conviction. At the same time, it is the prosecutor’s duty to remain under appropriate restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, and it is as much a prosecutor’s duty to refrain from improper methods calculated to bring about a wrongful conviction as it is to use every legitimate means to bring about a just one.
“After conviction, the prosecuting attorney is bound by the ethics of the office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.” 63A Am. Jur. 2d, Prosecuting Attorneys § 26.
Prior to March 1, 1988, the prosecutors’ conduct would have fallen within the guidelines of the Code of Professional Responsibility, DR 7-108(G) (1990 Kan. Ct. R. Annot. 198-99), which stated:
“A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror, or a member of his family, of which the lawyer has knowledge.”
After March 1, 1988, all ethical violations have been subject to the Model Rules of Professional Conduct.
MRPC 3.5(c) (1990 Kan. Ct. R. Annot. 264) states:
“A lawyer shall not:
“(c) communicate or cause another to communicate as to the merits of a cause with a judge or official before whom an adversary proceeding is pending except:
“(1) in the course of official proceedings in the cause;
"(2) in writing, if the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if unrepresented;
“(3) orally upon adequate notice to opposing counsel or the adverse party if unrepresented;
“(4) as otherwise authorized by law or court rule.”
Not every trial error or infirmity which might call for application of an appellate court’s supervisory powers correspondingly constitutes a failure to observe that fundamental fairness that is essential to the very concept of justice. Donnelly v. DeChristoforo, 416 U.S. 637, 642, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974).
The prosecutor, although possessing wide discretion, is not immune from judicial review of the exercise of that discretion for arbitrariness. State v. Greenlee, 228 Kan. 712, 721, 620 P.2d 1132 (1980). Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of the prosecutor’s delay in reporting possible juror misconduct to the court and defense counsel. Without affirmative evidence by the defense that the prosecutor’s conduct was intentional or that it violated defendant’s constitutional right to a fair trial, there can be no reversible error.
When specific guarantees of the Bill of Rights are involved, courts must take special care to ensure that prosecutorial conduct in no way impermissibly infringes upon them. In this case, the prosecuting attorneys, by not immediately reporting the possibility of a juror’s misconduct to the trial judge and by not informing opposing counsel of the possible misconduct, violated the Model Rules of Professional Conduct. The prosecutor’s delay in reporting possible juror misconduct to the court and to defense counsel is evidence of bad faith which violated defendant’s constitutional right to a fair trial. If the prosecution had immediately reported the incident to the trial judge, the judge could have taken remedial action prior to discharging the alternate jurors.
Although not an issue raised by the parties, the defendant in a felony case is entitled to be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. K.S.A. 22-3405. Neither Cady nor his counsel were aware that the State and the trial judge were conferring about the possibility of a juror’s misconduct.
There is no doubt that there was substantial prejudice to the rights of the defendant and he must be granted a new trial.
Reversed and remanded for a new trial.
Holmes, C.J., and McFarland, J., dissenting. | [
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The opinion of the court was delivered by
Abbott, J.:
Plummer Development, Inc., (PDI) appeals from the trial court’s grant of summary judgment in favor of Prairie State Bank (Bank). PDI’s suit against the Bank alleged wrongful setoff of its bank account. It also alleged conversion and bad faith and requested actual and punitive damages.
PDI raises four issues on appeal, two of which contend that factual issues remain and thus summary judgment was premature. PDI also raises an argument that does not appear to be relevant to this case, that a personal account cannot be set off against a corporate debt. PDI finally contends it cannot get a fair trial in Butler County.
When the Bank filed its first motion for summary judgment, PDI responded, but failed to set forth in separately numbered paragraphs corresponding to movant’s memorandum whether each factual contention is controverted, as required by Supreme Court Rule 141 (1990 Kan. Ct. R. Annot. 110). Although PDI did attach an affidavit by the owners of PDI, it was over 50 pages in length and PDI failed to make precise references to pages, as required by Supreme Court Rule 141.
The Bank moved for an order deeming its statement of facts to be uncontroverted for failure to comply with Rule 141. The trial court held that PDI did not comply with Rule 141 and gave it until May 11, 1990, to file a response that complied with Rule 141. PDI filed an additional document entitled “Plaintiffs Additional Response to Defendant’s Motion for Summary Judgment.” In this response, PDI did have numbered paragraphs that corresponded with the Bank’s motion, but it contained no reference to any evidentiary documents for some of the paragraphs; instead, PDI referred to other pleadings. In the few paragraphs that did refer to evidentiary documents, the references were again vague, such as: “See depositions of the Plummers and their Affidavits, along with the Depositions of defendant’s officers.” (There were no depositions in the record at trial and there are none on appeal. The depositions were from a previous case and, apparently, were six inches thick.)
At the hearing on summary judgment, the trial court said that PDI had had two chances to comply with Rule 141, and the court was unwilling to give it a third chance. The trial court held the second response was not in compliance with Rule 141, and, thus, PDI “is deemed to have admitted all of the uncontroverted contentions of fact set forth in the Memorandum of the Defendant.” The trial court held: “[T]he court further finds that in accordance with said facts, the court hereby grants summary judgment in favor of the Defendant and against the Plaintiff and hereby adopts as its own the uncontroverted facts and conclusions of law set forth in the Defendant’s motion and supporting memorandum.”
On appeal, PDI does not argue that the trial court erred in holding that it failed to comply. Instead, PDI completely ignores this and argues that some of the uncontroverted facts are controverted.
“Where the appellant fails to brief an issue, that issue is waived or abandoned.” Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989), cert. denied 109 L. Ed. 2d 502 (1990). Had PDI argued the trial court erred, it would have made little difference. Rule 141 provides:
“No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/ or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and
“(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra).
“The motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such cases the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party. In determining a motion for summary judgment the judge shall state the controlling facts and the legal principles controlling the decision in accordance with Rule 165.” 1990 Kan. Ct. R. Annot. 110-11.
This court has frequently upheld trial court decisions to deem the movant’s facts uncontroverted for the respondent’s failure to comply. For instance, in Ruebke v. Globe Communications Corp., 241 Kan. 595, 738 P.2d 1246 (1987), the plaintiffs response to a motion for summary judgment contained only general references to the entire trial transcript. This court upheld the trial court’s ruling that the opposing party was deemed to have admitted the uncontroverted facts, saying that the rule vests discretion on the trial court,
“whose sound discretion will not be disturbed on appeal without a clear showing of abuse. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion.” 241 Kan. at 604.
Here, the trial court did not abuse its discretion. PDI was given ample opportunity to comply.
On appeal, PDI may not controvert these facts which were deemed uncontroverted. PDI is bound by the uncontroverted facts presented by the Bank. We will, however, consider legal issues based on these uncontroverted facts.
Franklin and Julia Plummer, sole shareholders of PDI, were involved in two cases prior to this one. The Plummers were sued by Alan Mason in Butler County District Court for fraud in connection with another corporation. A jury awarded Mason $11,800. Then, the Plummers (individually and not as a corporation) attempted to sue Prairie State Bank in federal court on what amounts to the same cause of action as is asserted by the corporation in this suit. The federal court granted summary judgment for Prairie State Bank, saying that some of the Plummers’ claims were frivolous.
In this case, the trial court adopted the Bank’s uncontroverted statement of facts as follows:
“1. Plaintiff, PDI, is a corporation which at all material times hereto was jointly owned by Franklin I. Plummer and Julia A. Plummer.
“2. Defendant PSB is a banking corporation located in Augusta, Butler County, Kansas.
“3. Stockholder Frank Plummer and others became involved in the development of a new product, a charcoal grill, which they attempted to develop and market through a firm called First American Products,. Inc. (FAP). Mr. Plummer was the president and inventor of the product being manufactured by FAP. PSB financed the firm’s activities.
“4. Mr. and Mrs. Plummer, along with others, were expressly personal guarantors of part of the indebtedness owed by FAP to PSB. On or about May 13, 1986, Mr. and Mrs. Plummer entered into a Loan Guaranty Agree ment with PSB in which they agreed to be personally liable on loans by PSB to FAP for up to $9,500.00. In the agreement Mr. and Mrs. Plummer agreed that such amount was immediately due and owing upon FAP’s failure to satisfy its obligation and also they expressly waived any required notice of dishonor. FAP closed business and ceased operation in late April of 1987. Two of the three FAP notes came due and owing in May of 1987. Mr. and Mrs. Plummer did not make payment on their personal guarantees when they became due and owing.
“5. At some point, Mr. and Mrs. Plummer moved to the State of Missouri. When the FAP notes became past due and in default PSB was unable to contact either of the Plummers and at that time deemed itself insecure and concluded that the probability of payment, performance and realization on its collateral was substantially impaired. By street rumor, PSB learned that they thought the Plummers had moved to Arkansas but bank personnel were unable to establish contact with either of the Plummers. The bank’s telephone calls and letters received no response.
“6. Alan Mason, a co-stockholder in FAP, sued Franklin I. Plummer in the District Court of Butler County, Kansas, Case No. 87 C 184 on June 26, 1987. Mason contended that Plummer told him the assets of FAP were free and clear of debt at the time Mason invested in the corporation, but, in fact, the assets were already mortgaged and Plummer had signed the notes to borrow the money. The case was tried in August of 1988 and the jury found that Mr. Plummer had committed fraud against Alan Mason and awarded Mason judgment in the amount of $11,800.
“7. On or about June 22, 1987, PSB deemed itself insecure with regard to the FAP loans. Such loans were in default and thus the Plummers’ personal obligation of $9,500.00 was due. Defendant, at this point incorporates herein all of paragraph 12 of Judge Kelly’s decision.
“8. The set-off in question occurred on June 23, 1987 and it was in the amount of $39,721.27. The amount was applied to a note owed by PDI to PSB, being note #99658746. Of the amount set-off, pursuant to an agreement between the parties, on or about July 7, 1987, $20,000.00 was restored to PDI’s account leaving the balance of $19,721.27 paid against the PDI note at the bank.
“9. On or about June 29, 1987, a meeting was held in the bank regarding the Plummer Development, Inc. and First American Products, Inc. lines of credit. Those present were James F. Bunck, Dennis Bush, W. Newton Male, Franklin I. Plummer and Julia A. Plummer. The subject of the discussion was the resolution of the bank set-off with regard to the Plummer Development, Inc. bank account. All parties discussed the fact that each had done business without adverse incident for several years. It was unanimously agreed that the current situation was unfortunate. The bank officers explained to the Plummers that they had become increasingly insecure by the unresponsiveness of the Plummers to bank communication. The First American Products line of credit which was personally secured by the Plummers in the amount of $9,500.00 and in which Mr. Plummer was the president and leader, was in default and that the Plummers had not responded to any of the bank’s overtures with regard to setting those matters straight. The Plummers mentioned that they needed at least $20,000.00 from the set-off to cover some checks they had written for projects in Missouri. After several other minutes of discussion, it was ultimately decided that the bank would release from the set-off funds the sum of $20,000.00 to the Plummers and the balance would remain in the bank applied against the notes pending the ultimate resolution of the First American Products, Inc. liquidation. Both parties expressed their desire to show good faith in dealing with the problem at hand and were of the opinion that this was at least an interim resolution to the problems and that all would wait and see how the bank came out on First American Products, Inc. before doing anything more. At the end of the meeting the bank officers were of the opinion that the Plummers left satisfied with this resolution and that the parties would reconvene after the First American Products, Inc. liquidation results were in. This was the last the bank heard from Mr. and Mrs. Plummer until suit was filed. The bank had urged Mr. Plummer to get the guarantors of First American Products, Inc. into the bank so that the bank could liquidate that corporation and see what was left with regard to a deficiency. The meeting with the guarantors of First American Products, Inc., including Mr. Plummer, then later occurred on July 6, 1987. After the meeting, Mr. and Mrs. Plummer again met with the bank officers and again the previous agreement was reaffirmed and the $20,000.00 was released to the Plummers. Since this occurred after 3:00 p.m. the check in the amount of $20,000.00 was not issued until the following day, July 7, 1987.
“10. In March of 1988, PSB, in light of the acts of Mr. and Mrs. Plummer and PDI, continued to deem itself insecure and continued to conclude that the prospect of payment, performance and realization on its collateral with PDI was substantially impaired. In order to maintain its position and recover on the collateral assets before deterioration, PSB decided to foreclose on the mortgage on property owned by PDI and also decided to pursue Mr. and Mrs. Plummer individually on their personal guarantees in favor of First American Products, Inc. Given that it appeared that First American Products, Inc. was not in fact incorporated (Articles of Incorporation not filed with the Register of Deeds) and that Franklin I. Plummer had personally signed the notes of FAP, PSB also decided to pursue Mr. and Mrs. Plummer for the full amount of any loss on the First American Products, Inc. line of credit.”
I. ACCELERATION OF PDI’S DEBT
PDI argues that whether the Bank was justified in accelerating is a controverted fact. PDI argues that the trial court ignored evidence on point.
Whether acceleration of PDFs debt was proper is a conclusion based on facts rather than a fact itself, so this court may review the uncontroverted facts and determine if the trial court reached a conclusion that is supported by them.
Included in the uncontroverted facts are the relevant part of the notes, which provide that the borrower will be in default under any of the following conditions:
“1. Default in the payment or performance of any obligation, warranty, promise, or liability contained or referred to in this agreement, or in the note or notes evidenced in any obligation.
“3. Any event which results in acceleration of the maturity of my indebtedness to others under any indenture, agreement or undertaking.
“5. Death, dissolution, termination of existence, insolvency, business failure, appointment of a receiver or any part of the collateral, assignment for the benefit of creditors or the commencement of any proceeding under any bankruptcy or insolvency law by or against me or any guarantor or surety for me.
“9. Any time the lender believes that the prospect of payment of any indebtedness secured by this agreement or the performance of this agreement or realization of the collateral is significantly impaired.”
The remedies section of the note provides that in the event of default, the Bank may accelerate the note.
In essence, the argument made by the Bank and adopted by the trial court is that First American Products, Inc.’s debt was in default, the Plummers were guarantors of that debt and were in default on the guarantee, the Plummers were sole shareholders of PDI, and the Plummers could not be located; therefore, the Bank acted in good faith. The Plummers are unable to point to any evidence to the contrary. The only “legal” argument they make is that the Bank did not act in good faith. A reasonable lender in the Bank’s position would be justifiably worried. The action taken was in good faith. PDI has no facts in the record showing why the acceleration was not justified.
II. SETOFF
K.S.A. 9-1206 provides: “Any bank shall have the right to set off any obligation or claim which it has, when the same is matured against any depositor.”
PDI argues the Bank improperly set off a corporate obligation against a personal account. The argument .is irrelevant to this case. This case is a suit by the corporation for the setoff of its account against its indebtedness. The rule of law PDI relies on is not applicable to the facts- of this case.
III. FIDUCIARY RELATIONSHIP
PDI did not assert a cause of action for breach of a fiduciary relationship at trial, nor does it explain on appeal how a fiduciary relationship is relevant. The general rule is the failure to present an issue to the trial court precludes raising the issue on appeal. Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987).
IV. CHANGE IN VENUE
PDI did request a change in venue. It filed an affidavit by the Plummers asserting that it could not get a fair trial before Judge Jaworsky. Judge Jaworsky had observed, as a spectator, part of a previous suit against Mr. Plummer. PDI was of the opinion that rulings by Judge Jaworsky would be in error because he was prejudiced against the Plummers. It also asserted that because its attorney was a Wichita lawyer, i.e., because he was from out of the county, it could not get a fair trial.
In a memorandum, the trial court denied the motion “for the reason verbally stated by the Court into the record which is incorporated herein by reference.” There previously had been a hearing on this motion at which the trial court orally stated its reasons for denying the motion. PDI has not included a transcript of this hearing in the record on appeal.
“The burden is upon the appellant to designate a record sufficient to present its points to the appellate court and to establish claimed error.” Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 399, 745 P.2d 1120 (1987), rev. denied 242 Kan. 902 (1988).
Further, even if PDI had designated the record, it could not prevail on this point. K.S.A. 60-609(b) provides that the party must state “reasons other than the disqualification of the judge.” PDI did not request the judge to recuse himself. The only other reason stated by PDI was that it believes it cannot get a fair trial. PDFs argument on this issue is only one sentence in length and is a conclusion, with no facts asserted to support it. No legal authority is cited. Based on the record before us, the argument is without merit.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an interlocutory appeal pursuant to Supreme Court Rule 4.01 (1990 Kan. Ct. R. Annot. 19) from an order entered by the district court disqualifying the law firm of Davis, Beall, McGuire & Thompson, Chartered, (Davis-Beall) from representing defendants in this matter. The disqualification occurred pursuant to Rule 1.10 (1990 Kan. Ct. R. Annot. 236) of the Model Rules of Professional Conduct, Supreme Court Rule 226 (1990 Kan. Ct. R. Annot. 210).
In August 1988, Gary A. Nelson began working as an associate attorney with the law firm of Chapman & Waters. Generally, every attorney at Chapman & Waters had access to and discussed all files of the firm. In July 1989, Douglas D. Sutherland joined Chapman & Waters as an associate. Sutherland and Nelson met while in law school and became friends. They socialized both before and after Sutherland joined Chapman & Waters.
The pending litigation was filed on August 15, 1989. Jeffrey L. Baxter, of Chapman & Waters, is lead counsel for plaintiff, while Sutherland is assisting. Nelson resigned his position at Chapman & Waters on February 18, 1990, and began working at Davis-Beall on February 24, 1990. Davis-Beall did not contact Chapman & Waters before offering Nelson the position. On March 12, 1990, Douglas G. Waters, a partner with Chapman & Waters, in a letter addressed to four members of the DavisBeall firm, asked Davis-Beall to withdraw from this and three other cases because Nelson’s employment created a real or potential conflict of interest. A letter dated March 21, 1990, from John F. Thompson of Davis-Beall informed Chapman & Waters that Davis-Beall would not withdraw from this or any other cases involving both firms. In his letter, Thompson identified six additional cases that involved both firms and informed Chapman & Waters that Nelson had been instructed to have no involvement with those cases and their files. Thompson stated that the files of all these cases “have been removed from the general filing area and Mr. Nelson has not had, nor will he have, access to such files.” According to Thompson, Davis-Beall was confident that imposing the “Chinese Wall” “will result in no confidential information making its way to the members of the law firm of [Davis-Beall] via Mr. Nelson [and was] sufficient to protect all of the interests of all parties.”
On April 11, 1990, plaintiff filed a motion to disqualify the Davis-Beall firm because Nelson had acquired material and confidential information regarding this case while at Chapman & Waters. The district court held an evidentiary hearing on April 27, 1990, receiving only the testimony of Nelson, who testified that he did not recall providing any legal services for plaintiff while employed at Chapman & Waters. The only contact he recalled involving the case was a discussion with Sutherland about the mechanical aspects of how water could flow and a review of a map showing the area of Leavenworth County affected by the alleged water diversion where the defendants’ trailer park was located. He admitted that, while at Chapman & Waters, cases were discussed by various members of the firm. He also indicated he was aware his wife, who is a public accountant, had reviewed and summarized aspects of the case for Chapman & Waters. Based upon this evidence, the district court denied plaintiffs motion to disqualify. The court found that Nelson recalled only one discussion about the case involving review of a map and general aspects of the mechanics of water flow, that he had not gained confidential information through his wife, and that he had not acquired information protected by MRPC 1.6 (1990 Kan. Ct. R. Annot. 225) and MRPC 1.9(b) (1990 Kan. Ct. R. Annot. 235).
For reasons not clear in the record, Sutherland did not testify at the evidentiary hearing on April 27, 1990, but was deposed on the same day, with attorneys from both law firms questioning him. His deposition was submitted to the district court with plaintiffs motion for reconsideration, filed on April 27, 1990.
In his deposition, Sutherland testified that, during the six months that they worked together at the firm, he and Nelson had several specific conversations about this case, discussing it in detail at least five times. Sutherland recalled that they discussed damages calculations, burdens of proof, theories of conversion, and other theories. They reviewed several documents, including a diagram or map which depicted water flow in defendants’ trailer park. Sutherland also recalled discussing with Nelson the possibility of employing Nelson’s wife to provide damages calculations for this case. She did summarize information regarding plaintiffs accounts, and Sutherland recalled discussing the results with Nelson. Sutherland indicated that, while they were in the firm together, he regularly discussed his cases with Nelson. He considered the conversations privileged and material. Sutherland testified that, in the mornings, when he came to the office, he would discuss problems in his cases with Nelson because “he had always good, solid ideas on how to resolve some of the problems and he was a good one to bounce ideas off of.”
The district court reconsidered its ruling of April 27, 1990, and, in a journal entry dated May 11, 1990, and filed July 20, 1990, made the following findings:
“1. The Court weighed testimony of Gary Nelson, which the Court found to be truthful, the testimony of Douglas Sutherland, which the Court also found to be truthful, and determined that Gary Nelson had acquired , information protected by Rules 1.6 and 1.9(b) of the Model Rules of Professional Conduct.
“2. The Court relied upon Parker v. Volkswagenwerk, 245 Kan. 580, 589 (1989), in finding that ‘if it is determined that the attorney gained material and confidential information during the course of his or her previous employment, then both the attorney and the firm with whom he or she is presently associated are disqualified.’ .
“3. The Court is of the opinion that this .Order involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from this Order may materially advance the ultimate termination of the litigation.
“4. It is also found that this Order affects the rights of the Defendants herein and will be a controlling question in the above-captioned matter.”
Davis-Beall raises two issues in this appeal. First, it contends the district court erred in concluding that Nelson acquired confidential and material information that was either the same as or substantially related to the matters involved in this case.
The question which must be decided in this case is whether the law firm representing defendants must be disqualified because it employs an attorney who previously worked for the law firm that represents plaintiff. The Model Rules of Professional Conduct, as adopted by the House of Delegates of the American Bar Association, (ABA) were adopted, with some modification not relevant here, by the Kansas Supreme Court as general standards of conduct and practice required of the legal profession in Kansas as of March 1, 1988. See Parker v. Volkswagenwerk Aktienge sellschaft, 245 Kan. 580, 586, 781 P.2d 1099 (1989). The model rule applicable to this case is 1.10, which provides in part:
“(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.
“(d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.” 1990 Kan. Ct. R. Annot. 236.
This court adopted the comments to the model rules to the extent that they are not inconsistent with the Kansas statutes or case law.
For MRPC 1.10 to apply, the attorney must acquire information protected by MRPC 1.6 and 1.9(b). MRPC 1.6 forbids an attorney from disclosing confidential information unless the client consents to the disclosure, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is necessary under MRPC 1.6(b). Pursuant to MRPC 1.6(b), information may be revealed to the extent the lawyer believes is reasonably necessary:
“(1) To prevent the client from committing a crime; or
“(2) to comply with requirements of law or orders of any tribunal; or
“(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” 1990 Kan. Ct. R. Annot. 225.
MRPC 1.9 provides that a lawyer who has formerly represented a client in a matter shall not thereafter:
“(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
“(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.” 1990 Kan. Ct. R. Annot. 235.
The Comment to MRPC 1.9 provides, in part:
“The scope of a ‘matter’ for purposes of Rule 1.9(a) may depend on the facts of a particular situation or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” 1990 Kan. Ct. R. Annot. 235.
In Parker, this court addressed a question similar to the one presented here. The suit, which was filed in May 1986, involved a personal injury claim for damages incurred in an automobile accident in 1984. Plaintiff Parker was represented by the law firm of Michaud, Hutton and Bradshaw (Michaud), while defendant Volks wagenwerk was represented by the law firm of McDonald, Tinker, Skaer, Quinn & Herrington (McDonald). 245 Kan. at 581. Randall Fisher began working as an attorney for McDonald in 1981. He became a director and shareholder in the firm in 1985. His future wife was hired as a legal assistant for McDonald in 1985; they were married in August 1986. 245 Kan. at 581.
Fisher left McDonald in September 1987 when he was appointed district judge. His wife continued to work with McDonald and was assigned to work on Parker. Fisher was defeated in an election and decided to return to private practice, receiving job offers from four firms. 245 Kan. at 581. He chose Michaud. Although asked, Volks wagenwerk refused to consent to continuing representation of Parker by Michaud following Fisher’s association with that firm. Michaud segregated the files of any cases Fisher worked on while with McDonald but did not segregate the files in Parker because Fisher did not work directly on that case while employed at McDonald. Instead, the Parker files remained in Michaud’s general filing area, although Fisher was instructed to stay out of the files and avoid any discussion of the case with other members of the firm. 245 Kan. at 582.
At a hearing on the motion to disqualify, Fisher testified that he attended weekly meetings at McDonald when various cases were discussed. He remembered when the Parker case came into the firm and to whom it was assigned, but he recalled only one discussion about the case, which was that it was a products liability case arising from a rear-end collision. 245 Kan. at 582-83. Fisher did not recall a specific conversation with one of the McDonald attorneys about the application of comparative fault in a crashworthiness test as that applied in Parker. 245 Kan. at 583. Fisher knew his wife was working on the case but testified that he did not know specifically what she was doing on it. She testified that she did not recall discussing the merits of the case with him or sharing information. 245 Kan. at 583.
McDonald produced evidence that Fisher worked 9.6 hours on Parker. Fisher recalled researching an issue on breach of warranty in another case and that the research was to be used in Parker but stated that he had gained no confidential information about Parker during this research. 245 Kan. at 583.
Following this hearing, the trial court found that the Michaud firm was disqualified by a conflict of interest resulting from employing Fisher, 245 Kan. at 583, but certified that the motion for disqualification involved a question of law presenting grounds for an immediate appeal. 245 Kan. at 583-84. This court first found that the appropriate means of appealing a disqualification of an attorney was by interlocutory appeal pursuant to Supreme Court Rule 4.01 rather than through a mandamus action. 245 Kan. at 584-86. This court then turned to the question of whether the trial court acted properly in disqualifying the Michaud firm. 245 Kan. at 586.
Traditionally, under the Code of Professional Responsibility, Supreme Court Rule 225 (1990 Kan. Ct. R. Annot. 164), an attorney’s knowledge of his or her client’s affairs was irrebuttably presumed to have been transmitted to other attorneys with the same law firm. But recently, courts allow the presumption to be rebutted by evidence that the attorney who was materially involved in the case did not share that information with his or her associates. Petitioners in Parker urged that the model rules established a new standard that required the court to determine if the attorney whose disqualification was sought actually acquired material information in the case. 245 Kan. at 588. This court recognized a decision by the New Jersey Supreme Court, which concluded that the model rules did not contain a mandatory disqualification but, instead, required the court to determine whether the attorney represented one party as intended by MRPC 1.9 and, if so, whether the same attorney’s subsequent representation of the other party in the same lawsuit would pose a substantial risk of disservice to the public interest or the interest of one of the clients. 245 Kan. at 588 (quoting Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 214-16, 536 A.2d 243 [1988]).
As pointed out by this court in Parker, the Comment to MRPC 1.10 indicates that “where lawyers move from one firm to the other, courts must balance the previous client’s right of confidentiality, the right of having a reasonable choice of legal counsel, and the right of lawyers to form new associations and take on new clients when leaving a previous association.” 245 Kan. at 588. Although the trial court conducted an evidentiary hearing to determine the question of disqualification, only Mr. and Mrs. Fisher testified. This court stated;
“Where a motion to disqualify based on MRPC 1.10(b) has been filed, the district court must have a full hearing to determine whether the attorney in question acquired material and confidential information during the course of his former employment. To support a disqualification order, the district court must make a specific factual finding that the attorney had knowledge of material and confidential information. The model rules define knowledge as actual knowledge of the fact in question,' but state that knowledge can be inferred from the circumstances.” 245 Kan. at 589.
The court concluded that the testimony presented in Parker was not sufficient to determine whether Fisher acquired material or confidential information about Parker while employed at McDonald. Therefore, this court remanded the case for a full hearing on the issue, stating:
“The district court must determine motions for disqualification on a case-by-case basis, remembering that the burden of proof lies with the attorney or firm who is sought to be disqualified. If it is determined that the attorney gained material and confidential information during the course of his or her previous employment, then both the attorney and the firm with whom he or she is presently associated are disqualified.” 245 Kan. át 589.
Although the testimony here was not extensive, neither party argues that the evidence presented by Nelson’s testimony at the hearing and Sutherland’s testimony in deposition was inadequate for the court to resolve the question presented here. Plaintiff argues that the record contains substantial evidence to support the district court’s finding that Nelson acquired information protected by MRPC 1.6 and 1.9(b). Defendants argue that no attorney-client privilege existed between Nelson and plaintiff that requires Nelson’s, and hence the firm’s, disqualification.
A court deciding a motion to disqualify counsel must balance several competing considerations, including the privacy of the attorney-client relationship, the prerogative of a party to choose counsel, and the hardships that disqualification imposes on the parties and the entire judicial process. Note, Disqualification of Attorneys and Their Firms for Conflicts of Interest: A Lack of Consistency in Both Federal and State Courts, 26 Washburn L.J. 493, 495 (1987). Prior to the adoption of the model rules, the courts turned to the ABA Code of Professional Responsibility for guidance in deciding issues regarding disqualification of attorneys for conflicts of interest. No specific provisions of the code dealt with this issue. Instead, the courts considered the broad principles of the canons, the policy-oriented ethical considerations, and the mandatory minimum ethical standards of the disciplinary rules in determining whether to grant a motion to disqualify counsel. The provisions of the code relied upon by the courts included Canon 4’s requirement that the attorney “should preserve the confidences and secrets of a client” (1990 Kan. Ct; R. Annot. 182), Canon 5’s broad admonition that a “lawyer should exercise independent professional judgment on behalf of a client” (1990 Kan. Ct. R. Annot. 184), and Canon 9’s warning that a “lawyer should avoid even the appearance of impropriety” (1990 Kan. Ct. R. Annot. 204). 26 Washburn L.J. at 496-97.
Unlike the code, the model rules specifically address the problem of conflict of interest with a former client. Unlike the irrebuttable presumption created under the code, the model rules do not disqualify an attorney merely because of that attorney’s association with another attorney who represents a client. Instead, the model rules require the person to have acquired confidential and material information before that attorney is excluded. Once the lawyer is deemed to have acquired such information, however, the model rules bar representation by other members of the firm as well as by the “tainted” attorney. MRPC 1.10.
Davis-Beall appears to be urging this court to reinstate the district court’s original findings announced at the end of the hearing the morning of April 27, 1990. At that time, the court stated that the firm should not be disqualified because Nelson did not obtain material and confidential information as required under MRPC 1.10.
In Parker, this court made clear that a trial court must conduct a full evidentiary hearing to decide whether the attorney in question acquired material and confidential information during the course of his former employment. 245 Kan. at 589. By considering Nelson’s testimony at the hearing and Sutherland’s deposition subsequent thereto, the district court complied with the requirement of conducting a full evidentiary hearing in determining the issue of disqualification.
Parker also requires the trial court to make a specific factual finding that the attorney had knowledge of material and confidential information. This requires actual knowledge .of the fact in question, which can be inferred from the circumstances. 245 Kan. at 589. The district court here specifically found that Nelson had acquired information protected by MRPC 1.6 and 1.9(b). The court did not specify in the journal entry which evidence in particular caused it to reach that decision, but it did state that the decision was reached after weighing the testimony of both Nelson and Sutherland.
When 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. Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, 243, 736 P.2d 882 (1987). Substantial evidence is “evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981); see Williams Telecommunications Co. v. Gragg; 242 Kan. 675, 676, 750 P.2d 398 (1988). An appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court and must disregard any conflicting evidence or other inferences that might be drawn therefrom. Leeper, 241 Kan. at 244.
Although the district court here could have specified in more detail the basis for its decision, the evidence presented through Sutherland’s deposition provides legal and relevant evidence that supports the district court’s conclusion. The district court apparently believed that Nelson recalled only one discussion with Sutherland, but the court also accepted Sutherland’s testimony that the discussion which Nelson recalled was much more detailed and involved an analysis of plaintiff’s theories to be presented in the case. The court apparently also believed Sutherland’s recollection of additional discussions which Sutherland admitted might be more readily remembered by him because of his more extensive involvement in the case.
We conclude that the findings by the district court are supported by substantial competent evidence and are sufficient to support disqualification of the Davis-Beall firm under MRPC 1.10.
The second issue raised by Davis-Beall is whether a screening device should be allowed to protect a private law firm from the taint caused by a newly employed attorney who has a conflict of interest based upon the attorney’s prior nongovernmental employment. Davis-Beall urges this court to allow an exception to the strict provisions of strict disqualification under MRPC 1.10 if the law firm implements screening devices to prevent knowledge of the new attorney from tainting other members of the firm. This court rejected the availability of screening devices to cure the taint of the incoming attorney in Parker. 245 Kan. at 589. There, we noted that the model rules “reject, for lawyers practicing in the private sector at least, any thought that the ‘taint’ of the incoming lawyer can be cured by screening him or her out of the affected client’s matter, or by erecting a ‘Chinese Wall’ or by imposing a ‘cone of silence.’ ” 245 Kan. at 589 (citing 1 Hazard and Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, Rule 1.10, p. 191 [1988 Supp.]). Because Parker clearly came under MRPC 1.10(b), this court found screening devices were not provided for and were not appropriate unless all parties to the litigation agreed. 245 Kan. at 589. Although recognizing that this court rejected use of screening devices in Parker, Davis-Beall urges this court to reconsider and allow this common-law exception.
In drafting the model rules, the ABA considered adopting a provision that would not impute disqualification to private law firms hiring private attorneys if screening occurred. Proponents of this screening device pointed out that imposing a rule of vicarious disqualification arises from the assumption that attorneys will violate professional norms by disclosing former clients’ confidences. Imposing vicarious disqualification penalizes clients and must make firms reluctant to hire attorneys collaterally from other firms. 1 Hazard and Hodes, pp. 192.1-92.2. Yet the screening solution was rejected by the ABA and most courts addressing the issue. A few courts have attempted to use it in cases where disqualification would work a great hardship, and two states have incorporated it into their rules. See 1 Hazard and Hodes, p. 192.2.
A client is entitled to have its confidences and secrets protected. The district court here found that Nelson had acquired information that was protected by MRPC 1.6 and 1.9(b). Because Nelson acquired this information, he was disqualified and his disqualification was imputed to Davis-Beall pursuant to MRPC 1.10(a). The model rule contains no provisions for use of screening devices in this situation. In fact, such a proposal was rejected at the time the model rules were adopted. Our decision in Parker is controlling on this issue, and we find no merit or reason to reconsider that decision.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Robert R. Waterberry from his conviction following a plea of guilty of one count of aggravated sodomy (K.S.A. 21-3506).
Waterberry contends that the information charging him with aggravated sodomy is fatally defective because it fails to allege he was not married to the victim when the act occurred and that the trial court abused its discretion in sentencing the defendant to a term of 10 years to life and in refusing to modify that sentence.
The information does not set forth the victim’s sex, age, or that the defendant was not married to the victim when the act occurred. Waterberry argues the name of the victim is such that the victim could be either a male or female and, as a result of these omissions in the information, the information does not contain all the essential elements of the crime; thus, the trial court did not have jurisdiction.
In the past, this court has held that an information which omits an essential element of a crime is fatally defective for lack of jurisdiction. State v. Browning, 245 Kan. 26, 28, 774 P.2d 935 (1989). In State v. Jackson, 239 Kan. 463, 466-67, 721 P.2d 232 (1986), we held that the failure to allege in the information that the victim was not married to the accused was jurisdictional and reversed the conviction for aggravated sodomy.
In State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), this court reviewed jurisdiction as it applies to defective informations and unanimously adopted new rules to be applied prospectively to informations filed after May 31, 1990.
This court stated that, although the defendant could still challenge the sufficiency of the information for the first time on appeal, tardily challenged informations are to be construed liberally in favor of validity, and the longer the period between conviction and the challenge, the greater the presumption of regularity. 246 Kan. at 761, 764. We said:
“The constitutional protections referred to are implemented by the requirements of K.S.A. 22-3201. The complaint, information, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged and, when drawn in the language of the statute, shall be deemed sufficient. An information is sufficient if it clearly informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 (1982). It has long been the rule that the entire record of the proceedings, and not the indictment or information alone, may be referred to if there is a claim that a subsequent prosecution constitutes double jeopardy. 1 Wright, Federal Practice and Procedure: Crim. 2d § 125. We agree with the statement in 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 at 365, to the effect that the fundamental purpose of the pleading is to inform the defendant of the charge so that the defendant may prepare a defense. The test for sufficiency ought to be whether it is fair to require the defendant to defend on the basis of the charge as stated in the particular indictment or information. The stated requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test just mentioned. The information is sufficient, even if an essential averment is faulty in form, if by a fair construction it may be found within the text. All parts of the pleading must be looked to in determining its sufficiency. 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 at 367.
“Common sense will be a better guide than arbitrary and artificial rules. The sufficiency of an information should be determined on the basis of practical rather than technical considerations when addressed for the first time on appeal. State v. Wade, 244 Kan. 136, 766 P.2d 811 (1988); State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987); 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 at 385.” 246 Kan. at 754.
In summary, we adopted a prospective rule as follows:
“Information defect challenges raised for the first time on appeal shall be reviewed by applying (1) the reasoning of K.S.A. 22-3201(4) complaint/ information/indictment amendment cases as expressed in State v. Switzer, 244 Kan. 449, 769 P.2d 645 (1989), State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1988), and State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988), as that reasoning relates to jurisdiction and the substantial rights of the defendant; (2) the ‘common-sense’ test of State v. Wade, 244 Kan. 136, 766 P.2d 811 (1989), and State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987); and (3) the rationale of United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied 729 U.S. 1099 (1977). Of paramount importance, we shall look to whether the claimed defect in the information has: (a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any way defendant’s ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant’s substantial rights to a fair trial under the guarantees of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 10. If a defendant is able to establish a claim under either (a), (b), or (c), the defective information claim, raised for the first time on appeal, will be allowed.” 246 Kan. at 765.
The State argues that we should apply a common-sense rule in this case and that the information could then be construed as containing the missing element. The argument made is that the information states the victim is under 16 years of age, has a different last name than the defendant, and has a first name that normally is a boy’s name. This court is unwilling to do that. It is not uncommon today for married couples to use different last names, and the spelling used for the victim’s first name in this case, while normally indicative of a boy, is not conclusive and is occasionally a name and spelling used by females. Taken separately or as a whole, the State’s argument is insufficient to overcome the pre-Hall test as set forth in State v. Jackson.
The general rule in Kansas is that an overruling decision is applied retroactively to all similar cases pending as of the date of the overruling decision, regardless of when the cause of action accrued. In State v. Osbey, 238 Kan. 280, 283, 710 P.2d 676 (1985), this court said:
“The present case falls within the procedure set out in State v. Choens, 224 Kan. 402, 580 P.2d 1298 (1978), which holds that a later overruling decision should be applied retroactively to all similar cases pending at the time the decision was rendered. A conviction is not considered final until the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed. This court determined Hundley prior to the appeal in this case. The facts in this case are sufficiently similar to those in Hundley, allowing Osbey to raise this issue on appeal.”
A majority of this court is pf the opinion we were too restrictive in State v. Hall when we limited its application to informations filed after the date of that opinion (May 31, 1990). We see no valid reason not to apply the State v. Hall rules tp this case and cases pending in the courts pf this state as of May 31, 1990, in which a defendant has entered a plea of guilty and the defect in the information has not prejudiced the defendant in the preparation of a defense, impaired the defendant’s double jeopardy defense, or limited the defendant’s substantial rights to a fair trial.
In the case before us, Waterberry was clearly informed of sufficient information so that a plea of double jeopardy would be possible. The offense was stated, the name of the victim was stated, and the applicable date was set forth. All that was left out was the element that the accused was not married to the victim. That fact was kpowp to the accused and could not, under the facts of this case, impair in any way the defendant’s ability to plead the conviction as a double jeopardy defense in any subsequent prosecution,
The defendant does not claim the omission limited in any way his substantial rights to a fair trial, and we cannot conceive of any in this case. Here, the defendant accepted the benefit of a bargain that benefited him greatly. The defendant had two prior convictions for the same type of offense in the State of Washington. His plea bargain contained the agreement that the State would not invoke the provisions of K.S.A. 21-4504 (Habitual Criminal Act). In addition, the State agreed not to file additional charges based on information available to the Morris County Attorney as of the date the plea agreement was entered into. Evidence existed that Waterberry had engaged in individual sexual acts with three other young boys on 15 separate occasions.
The record shows that Waterberry admitted the victim was a male, nine years of age, during the plea and sentencing phase of the case.
The defendant entered into the plea agreement on July 21, 1988, and pled guilty that same day. The defendant did not furnish this court a transcript of the plea, but the journal entry states the trial court made “detailed inquiry of the defendant regarding the factual circumstances of the charge” and the defendant confirmed there was a factual basis for his plea of guilty.
Prior to sentencing, the defendant and counsel reviewed the presentence reports prepared by the State Reception & Diagnostic Center (SRDC) and the court services officer, which set forth the name, age, and sex of the victim, all of which show the victim could not be jnarried to the defendant.
Defendant was sentenced on October 7, 1988, and filed a notice of appeal, some 17 months later on March 1, 1990. He raised the defect in the information for the first time in his brief, which was filed with this court on July 20, 1990. Thus, he raised the issue over 21 pnonths after he entered a plea of guilty. Under State v. Hall, there is a substantial presumption that the information is sufficient. Here, the defendant is unable to demonstrate that the claimed defect has prejudiced his preparation of a trial defense, impaired his subsequent double jeopardy defense, or denied him a fair trial. We conclude that under the test adopted in Hall, which we have enlarged to cover this case and similar cases, the information is not fatally defective.
Waterberry next argues that his sentence was excessive and that the trial court erred by failing to expressly consider the criteria set forth in K.S.A. 21-4606, which lists various factors for the court to consider in setting the minimum terms.
“It is the sentencing judge alone who determines the appropriate sentence or other disposition in each case, not the appellate judges. The sentencing judge sets the sentence to be served by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. [Citation omitted.] A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law.” State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989).
Further, it is not necessarily grounds for reversible error that the trial court failed to expressly consider each of the criteria set forth in K.S.A. 21-4606. State v. McGlothlin, 242 Kan. 437, 438, 747 P.2d 1335 (1988). Although it is the better practice for a court to make a detailed statement of the criteria, “a trial court’s failure to [do so] does not necessarily demonstrate an abuse of discretion; each case must be considered on its facts.” 242 Kan. at 438.
At the time of sentencing, the State specifically addressed each factor, one by one. The court took note of this and said that it had them in mind when it considered the case. The court took note of Waterberry’s prior offenses, the need to protect society, and the need to provide adequate time for therapy.
The trial court had ordered the SRDC to perform the initial pre-sentence investigation. The initial SRDC report was filed on September 27, 1988, and the sentencing was held on October 7, 1988, so it was available to the trial court. The report notes that, in Waterberry’s view, no harm is being done to his victims and that Waterberry is in need of a “structured environment in order to preclude him from continuing inflicting psychological pain and damage to other children.” The subsequent report prepared for the modification hearing is even more to the point. It says:
“We recommend that Mr. Waterberry remain incarcerated for an appropriate length of time. He presented himself in the interview as being entitled, unremorseful, and without guilt. He was unwilling or unable to acknowledge any wrongdoing, or to accept responsibility for his inappropriate behavior. He was almost boastful in his statements that he spent thirty-six months in a sex offender’s treatment program in Washington and was unable to complete the program. He saw little value in the evaluation and refused to provide information, defending that his lawyer had advised him not to answer our questions. While incarcerated, we recommend that Mr. Waterberry participate in mental health counseling for sex offenders. We also recommend that he participate in a work assignment. Parole for this man should be approached cautiously and any contact with children should be prohibited.”
Although the trial judge did not specifically state that he considered the criteria set forth in K.S.A. 21-4606, when he denied the motion to modify the sentence, it is apparent he did so.
Considering the findings made by the trial court and the information available to it, the trial court did not abuse its discretion or fail to consider the statutory factors in either the original sentencing or in refusing to modify the sentence.
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The opinion of the court was delivered by
Holmes, J.;
This case arises from an inverse condemnation proceeding filed in the United States District Court for the District of Kansas. Chief Judge Earl E. O’Connor has certified two questions to the Supreme Court of Kansas for resolution pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The questions certified are:
“Is the three-year statute of limitations period, which is applicable to implied contract actions pursuant to K.S.A. 60-512, applicable to inverse condemnation actions under Kansas law? If not, what is the applicable statute of limitations?”
As this case involves certified questions of law, the facts need be stated only briefly. On June 2, 1982, the City of Garnett, Kansas, (City) passed Ordinance Number 2621 approving construction of the Cedar Creek Reservoir, a water supply reservoir. The ordinance was then published as required by statute on June 10, 1982. The plaintiffs, Tsugio Hiji et al., apparently claim an interest in all or a portion of the real estate the reservoir now occupies.
It appears no further formal action was taken by the City until May 9, 1983, when the City adopted and published another ordinance which authorized condemnation of land necessary for the reservoir. On May 21, 1983, the City filed a condemnation action in Anderson County District Court. Plaintiffs were not named as parties in the condemnation case.
From the latter part of 1982 to March 1986, the plaintiffs’ attorney and the City’s attorney had periodic contact and discussions concerning plaintiffs’ alleged interests in the property. On June 22, 1987, plaintiffs instituted an inverse condemnation suit against the City in the United States District Court for the District of Kansas. Plaintiffs amended their complaint to include the individual members of the Garnett City Commission and to assert violations of the United States Constitution, the Kansas Constitution, and Title 42, United States Code, Section 1983 (1988).
The City filed a motion for summary judgment asserting the statute of limitations had run on plaintiffs’ claims. The plaintiffs responded, denying the statute had run and alternatively asserting the City was estopped from raising the bar of the statute of limitations. On November 8, 1988, Chief Judge O’Connor granted the motion, finding the three-year statute of limitations for implied contract actions (K.S.A. 60-512) applied to inverse condemnation actions, the statute had expired in this case, and the City was not estopped from asserting the statute of limitations as a defense. The court also found that the defense of the statute of limitations was applicable to the defendant city commissioners and granted their motion to join the City’s motion for summary judgment. Judgment was granted in favor of all defendants. The City and City Commissioners will be referred to jointly as the City or as defendants.
Plaintiffs appealed to the United States Court of Appeals for the Tenth Circuit, which reversed the federal district court’s order granting summary judgment. The Court of Appeals found issues of material fact in plaintiffs’ estoppel argument and the accrual of plaintiffs’ cause of action. The court also found that Kansas law does not provide for a three-year statute of limitations on inverse condemnation actions because no Kansas statute specifies the applicable statute of limitations and no Kansas court has decided this specific issue. On the issue of the applicable statute of limitations, the court suggested that the federal district court either certify the question to the Kansas Supreme Court or re-examine Kansas case law “in light of the constitutional right” not to have property taken by the government for public use without compensation.
On remand, the City sought certification to this court on the applicable limitation period, and the federal district court certified the questions now before the court.
In considering the questions certified by the federal court, we are not concerned with the factual determination of whether the plaintiffs actually own an interest in the real property or whether there has been an actual taking. We will assume, for the purposes of this opinion, that the plaintiffs own an interest in the real property and there has been a taking which is compensable.
In determining the applicable limitation period for inverse condemnation actions, we are confronted with several options: (1) the fifteen-year period derived from the adverse possession statute (K.S.A. 60-503); (2) the fifteen-year period for unspecified real property actions (K.S.A. 60-507); (3) no statute of limitations (K.S.A. 60-509); (4) the five-year period for actions not otherwise provided for (K.S.A. 60-511[5]); and (5) the three-year period for implied contracts (K.S.A. 60-512).
Plaintiffs, in their brief, contend that the statute of limitations should be fifteen years under either K.S.A. 60-503 or K.S.A. SO-SO?. In oral argument before this court, they additionally asserted as an alternative K.S.A. 60-509, which provides for no statute of limitations. The City, on the other hand, maintains that, based upon a long line of Kansas cases which categorize an action for inverse condemnation as being in the nature of an action for implied contract, the statute of limitations on implied contracts and obligations, K.S.A. 60-512(1), is the applicable statute.
Judge O’Connor agreed with the City’s reasoning and held that the three-year statute applicable to implied contract actions controlled. The Circuit Court of Appeals in reversing stated, “No Kansas statute specifies the limitation period applicable to such proceedings and ... no Kansas court has decided this specific issue.”
We will consider each of the arguably applicable statutes.
K.S.A. 60-503
K.S.A. 60-503 reads:
“Adverse possession. No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.”
In Ventures in Property I v. City of Wichita, 225 Kan. 698, Syl. ¶ 3, 594 P.2d 671 (1979), inverse condemnation was defined as follows:
“Inverse condemnation is an action or eminent domain proceeding initiated by the property owner rather than the condemner. It is available when private property has been actually taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the action.”
Plaintiffs advance several arguments to support their position that no period of limitation shorter than that required to establish title by adverse possession should be applied in the absence of a specific statutory limitation for inverse condemnation. The majority rule clearly supports their position. See Annot., 26 A.L.R.4th 68, 73.
According to plaintiffs, if this case was a suit involving private individuals, plaintiffs could bring an action in ejectment and have 15 years to assert their rights before being barred by adverse possession. Because a landowner must sacrifice his property rights to the government, it is not equitable to limit the landowner’s right to recover damages when the government fails to comply with condemnation proceedings. Although landowners seek damages, they do so because they have no effective right to recover the property. Thus, to give effect to substance over form and in accordance with equitable principles, plaintiffs should be able to recover compensation within the 15-year period in which they could otherwise have recovered possession. Finally, plaintiffs contend there is no public need to limit the amount of time to less than that required to establish title by adverse possession because the only effect of an inverse condemnation suit is to compel the condemner to pay compensation for property taken.
We recognize the equitable and.policy arguments asserted by the plaintiffs. In an inverse condemnation action, the plaintiff property owner concedes the power and authority of the alleged condemner to acquire the property and seeks damages or compensation for the property interest taken. In doing so, the landowner elects his remedy and waives other more traditional actions such as tort or ejectment. As a practical matter, inverse condemnation may be the only actual remedy available. If the landowner were to assert an action for possession, the condemner would merely be forced to proceed with formal condemnation as it should have done initially. Thus, the alternative remedies which are theoretically available to a landowner may not in actual practice be viable at all.
The policy arguments of the plaintiffs have support in a number of cases adopting the rule plaintiffs advance. In Aylmore v. Seattle, 100 Wash. 515, 171 Pac. 659 (1918), the landowner brought suit to recover either the possession of land taken by the City of Seattle for a public thoroughfare or the value of the land. The City contended that plaintiffs were estopped from maintaining an ejectment action because they allowed the City to improve the property. Accordingly, plaintiffs were limited to an action for damages, which the City argued was barred by the statute of limitations on actions for trespass or the statute of limitations on actions for which no provision is otherwise made.
The Washington Supreme Court rejected the trespass statute of limitations because the City was not a trespasser or wrongdoer but had the right to take property in its sovereign capacity. The court, relying upon 2 Lewis on Eminent Domain, §§ 966, 967 (3d ed. 1909), stated:
“[T]he rule with respect to actions seeking compensation for property actually taken is stated in § 967 ... as follows:
‘We have seen that where property is entered upon and appropriated to public use without complying with the law, the owner may waive the tort and sue for his just compensation. The same rule applies where the entry is by consent and the question of compensation is left for future adjustment. In such cases the action for just compensation is not barred, except by adverse possession for the requisite period to establish a title by prescription.’
“The reason for this distinction is perfectly obvious. A corporation possessing the right of eminent domain may acquire property for its public uses in one of three ways only: (a) by purchase; (b) by condemning and paying for the property in the manner provided by law; and (c) by adverse possession for the statutory period. If the right of the owner to recover compensation for property actually taken is barred before the expiration of the prescriptive period, this anomalous situation will result: he will continue to be the owner of the property until he loses his title by adverse possession, yet, during the interval, he cannot exercise a single act of beneficial ownership or do any act to toll the running of the statute. He will be deprived of the use and enjoyment of property which belongs to him, both in law and in equity, while the one who has taken it without title, either legal or equitable, can exercise over it every right ordinarily incident to ownership. We are unable to appreciate a condition where an owner is deprived of all right of enjoyment, while another, who holds no sort of title to the property, may use and deal with it as his own. Title cannot be invested where none has been divested. To hold otherwise is to sanction a custom belonging to an age long since passed which permitted one to acquire property of another merely by taking it, provided he was strong enough to retain it.
‘Where the constitution either expressly, or as interpreted by the courts, requires compensation to be first made for property taken for public use, a law which casts the initiative upon the owner and requires him to prosecute his claim for compensation within a time limited or be barred, is invalid. When under such a constitution property is appropriated to public use without complying therewith, the owner’s right to compensation is not barred, except by adverse possession for the prescriptive period.’ ” 100 Wash, at 518-19. (Emphasis added.)
The court then observed that the action in ejectment was prohibited because of equitable estoppel; it would not be equitable to allow recovery of the property after it had been improved for public use at public expense. The court then continued:
“But it does not follow that he may be permanently deprived of his property without compensation, or that he shall be placed in any worse position, so far as his right to a money judgment is concerned, than he would have occupied had he not acquiesced in the improvement.
“Upon what principle of law, justice or reason can it be said that, because one clothed with the right to condemn private property fails to exercise it and, without complying with the law, goes upon the property of another and carries out its public purposes without hindrance or interference from the owner, it should not thereafter be required to do what it should have done in the first instance—make just compensation to the owner? Why should the property holder, whose acquiescence has redounded to the ben efit and convenience of the taker and whose right to compensation is in lieu of his property, have any less period in which to recover the amount due him than he would have had to reclaim his property had he not thus accommodated the corporation? Why should a municipality, which has not exercised a right conferred upon it by the sovereignty in the manner defined by the author of the right, gain an additional advantage over a private owner by virtue of its own unauthorized procedure?
“Moreover, to hold that the action for compensation is barred in two years would be to read an exception in the ten-year statute relating to the recovery of real property. The effect of such a decision would necessarily be to permit a title to real property, for all practical purposes, to be acquired by adverse possession for the period of two years, when, in all other cases, it could only be acquired in ten years.
“We think it is too plain for serious debate that, while the owner may not, by an action of ejectment, recover the property itself where he has acquiesced in its being taken without condemnation, he may maintain an action in the nature of ejectment to obtain the substituted relief. His right of recovery is founded upon, and grows out of, his title to the land, and until such title is lost by adverse possession, he should have the right to maintain an action to recover that which represents the property itself. Any other view is to sacrifice substance to mere form.” 100 Wash, at 520-23. (Emphasis added.)
See cases cited in 26 A.L.R.4th 68, 73.
While the rationale of Aylmore v. Seattle and the other cases that apply the statute pertaining to adverse possession is attractive, we cannot apply K.S.A. 60-503 because of its express language. A literal reading of K.S.A. 60-503 reveals that it applies to an “action . . . for the recovery of real property” and not to an action for damages in which the landowner asserts no right to recover the property. There is no room for the application of rules of statutory construction or equitable principles when the unambiguous language of the statute applies only to actions for recovery of real property. Because an action based upon inverse condemnation does not involve the recovery of real property, K.S.A. 60-503 by its own terms precludes its application to such an action.
K.S.A. 60-507
K.S.A. 60-507 provides:
“Unspecified real property actions. No action shall be maintained for the recovery of real property or for the determination of any adverse claim or interest therein, not provided for in this article, after fifteen (15) years from the time the cause of action accrued.”
This statute is broader than K.S.A. 60-503 in that it not only applies to actions for the recovery of real property but also those “for the determination of any adverse claim or interest therein.” We think the arguments and rationale urged by the plaintiffs and discussed under K.S.A. 60-503 do apply to K.S.A. 60-507. While an inverse condemnation action is one for compensation for the property taken, it also requires a determination of an “adverse claim or interest” in the property. Although recognition that the condemner has acquired an interest in the property is inherent in an inverse condemnation action, the issue of the extent of the compensation or damages to the landowner is only one element of the cause of action. The landowner asserting a claim of inverse condemnation must prove not only that he owns an interest in the real property but that the alleged condemner has taken all or a part of that interest without compensating the landowner. The extent of the interest taken by the condemner is generally an issue which must be proved by the landowner. Thus the action not only involves the determination of just compensation but also a determination of the interest actually taken by the condemner. Clearly an inverse condemnation action involves the determination of an “adverse claim or interest” as contemplated by K.S.A. 60-507. Unless one of the other statutes specifically applies to inverse condemnation, we are of the opinion that K.S.A. 60-507 is the applicable statute.
K.S.A. 60-509
K.S.A. 60-509 provides:
“Real property actions accepted [sic]. Nothing contained in any statutes of limitations shall be applicable to any real property given, granted, sequestered or appropriated to any public use, or to any lands belonging to this state.”
Although the plaintiffs made no reference to K.S.A. 60-509 in their brief, they did argue at length before this court that the statute applies to this action. Defendants, in their brief, refer to the statute only indirectly and again assert that, as this is an action for money damages, K.S.A. 60-509 is not applicable as it is only relevant to actions involving interests in real property.
The annotations following K.S.A. 60-509 reveal there has been very little case law interpreting the statute and very little written about it. Judge Gard, in his monumental work on the Code of Civil Procedure, quotes from the advisory committee notes as follows: “The purpose of this section is to eliminate any inference that the rewriting of the code provisions covering the statute of limitations affected real property claimed by the state or devoted to public use.” 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-509 (1979).
The only case we have found which considers K.S.A. 60-509 in any detail is City of Attica v. Mull Drilling Co., 9 Kan. App. 2d 325, 676 P.2d 769 (1984). In that case, the plaintiff City brought suit against Mull Drilling Company, Inc. (Company), contending that the Company’s drilling operations caused saltwater contamination in wells the City used for its municipal water supply. The Court of Appeals characterized the suit as consisting of claims for nuisance and trespass. The issue before the court concerned the appropriate statute of limitations—the two-year period of K.S.A. 60-513(a)(4) relating to “[a]n action for injury to the rights of another, not arising in contract, and not herein enumerated” or no statute of limitations pursuant to the exemptions found in K.S.A. 60-521 and K.S.A. 60-509.
In City of Attica, the court first discussed the inapplicability of K.S.A. 60-521 to the facts before it and then turned its attention to K.S.A. 60-509, stating:
“The pertinent inquiry here is whether, as plaintiff maintains, K.S.A. 60-509 applies to any action which is related to property which is either owned by the state or acquired for a public use, or whether, as defendants maintain, that statute applies only to actions involving title to, interests in, or possession of such class of property. We conclude that the theory advanced by defendants has the greater merit.
“In McKay, The Effect of the New Code on Title Examination, 33 J.K.B.A. 173, 219-20 (1964), the author opines that the purpose of K.S.A. 60-509 was to remove public lands (and lands being put to a public purpose) from the ambit of the statutes on adverse possession, as well as all other statutes of limitation governing real property actions. In Kelly and Vratil, Survey of Kansas Law: Statutes of Limitation, 18 Kan. L. Rev. 441, 454 (1970), the authors state that K.S.A. 60-509 is the statute ‘covering actions for recovery of real property,’ and that the effect of that statute is to exempt the state ‘from the statutes of limitation whether the action arose from governmental or proprietary functions,’ when the action is one for the recovery of real property. And the statute has been described as merely a codification of preexisting case law (see 33 J.K.B.A. at 219, citing Railway Co. v. Watson, 74 Kan. 494, 87 Pac. 687 [1906]).
“We hold that K.S.A. 60-509 pertains only to actions for the recovery of real property owned or put to use by the public, or for the establishment of interests in such property. To allow K.S.A. 60-509 to apply to all actions which in any manner concern publicly-owned or publicly-used property, no matter how nebulous, indirect or tangential the connection might be, would be extending the scope of that statute too far. Such an extension of K.S.A. 60-509 would emasculate the provisions of K.S.A. 60-521 in most, if not all, cases, for almost every action brought by a governmental entity could be characterized as one somehow connected to publicly-owned or publicly-used property. This could not have been the legislative intent in enacting K.S.A. 60-509. On the other hand, the conclusion that defendants suggest, and that we accept, gives each statute separate significance while maintaining their harmonious interaction.
“Because K.S.A. 60-509 pertains only to actions for recovery of real property, plaintiff can claim no exemption from limitations by it. This is because plaintiff’s action herein in no way involved a question of rights in or to the property, but only a right to redress by way of damages for injury to an acknowledged property right. The discussion under the first issue herein, relating to what constitutes an action for recovery of real property, pertains equally to this issue.” 9 Kan. App. 2d at 329-30.
Although the analysis of the Court of Appeals in City of Attica did not pertain to inverse condemnation, we conclude that K.S.A. 60-509, which provides for no statute of limitations in certain actions, does not apply here.
K.S.A. 60-512
K.S.A. 60-512 provides in pertinent part: “The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing.”
Chief Judge O’Connor, relying on Ventures in Property I v. City of Wichita, 225 Kan. 698, 594 P.2d 671 (1979), applied K.S.A. 60-512(1) to plaintiffs’ inverse condemnation action because Kansas case law has characterized inverse condemnation actions as being in the nature of a suit on implied contract. Ventures in Property I was a declaratory judgment action by the property owner, alleging that the City of Wichita took its land by inverse condemnation when it declined to approve platting of the property in contemplation of someday acquiring the property for highway purposes. We held:
“Inverse condemnation actions are generally in the nature of suits on implied contract. When a public entity appropriates and uses property or rights therein without compensating the owner, an implied contractual obligation arises to pay the owner reasonable value of the property or rights taken without compensation.” Syl. ¶ 4.
Similar language to the effect that the nature of a suit for inverse condemnation is akin to an action on implied contract has been expressed in a long line of Kansas cases. See Wittke v. Kusel, 215 Kan. 403, 404-05, 524 P.2d 774 (1974); Sanders v. State Highway Commission, 211 Kan. 776, 780-781, 508 P.2d 981 (1973); State Highway Commission v. Bullard, 208 Kan. 558, 562, 493 P.2d 196 (1972); Brock v. State Highway Commission, 195 Kan. 361, Syl. ¶ 1, 404 P.2d 934 (1965); Atchison v. State Highway Comm., 161 Kan. 661, Syl. ¶ 2, 171 P.2d 287 (1946); State Highway Comm. v. Puskarich, 148 Kan. 388, Syl. ¶ 1, 83 P.3d 132 (1938). The foregoing list of cases, while not all-inclusive, is representative of the numerous cases which have considered various facets of inverse condemnation actions.
This court has repeatedly referred to inverse condemnation cases as being in the nature of an action for implied contract or as being one for recovery on the theory of implied contract. The application of the theory or rationale of implied contract where one party appropriates to his own use the property of another dates at least to 1875. See Butler v. Comm'rs of Neosho Co., 15 Kan. 178, 180 (1875). However, none of the myriad of Kansas cases has specifically decided the issue of what statute of limitations controls in an inverse condemnation action. The only jurisdiction which we have found that applies the implied contract statute of limitations to an inverse condemnation action is the State of Virginia. See Prendergast v. Park Authority, 227 Va. 190, 313 S.E.2d 399 (1984).
Although inverse condemnation actions have been described as being in the nature of implied contract actions, the right to just compensation for property taken is also a firmly grounded constitutional right. While our earlier cases primarily discuss the implied contract theory of recovery, both the Fifth Amendment to the United States Constitution and Article 12, Section 4 of the Kansas Constitution guarantee payment for private property appropriated to public use. Thus, the right to recover damages for property taken does not rest solely upon a contract “expressed or implied but not in writing” under K.S.A. 60-512(1), but rests primarily upon a vested constitutional right. Regardless of how the cause of action is described or what theory of recovery is applied, the basic right to recover compensation for property taken for public purposes is a constitutional one. We conclude that K.S.A. 60-512 is not the applicable and controlling statute of limitations.
K.S.A. 60-511(5)
K.S.A. 60-511 provides in pertinent part:
“Actions limited to five years. The following actions shall be brought within five (5) years:
(5) An action for relief, other than the recovery of real property not provided for in this article.”
As we have already determined that an inverse condemnation action requires the determination of an adverse claim or interest in the property under K.S.A. 60-507, the general statute of limitations contained in K.S.A. 60-511(5) is not applicable.
Our legislature has not adopted a statute of limitations specifically applicable to actions in inverse condemnation and until it does, we hold that K.S.A. 60-507 is the controlling statute.
We therefore answer the questions certified as follows:
1. Is the three-year statute of limitations period, which is applicable to implied contract actions pursuant to K.S.A. 60-512, applicable to inverse condemnation actions under Kansas law?
Answer: No.
2. If not, what is the applicable statute of limitations for inverse condemnation actions?
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The opinion of the court was delivered by
Herd, J.:
This is an ejectment action. Plaintiffs Lorraine Albers and Ralph Luther seek to recover possession of real estate sold to them by defendants Loring and Rosemary Nelson. The Nelsons resist, contending the sale agreement was intended as an equitable mortgage, and assert the contract is void based upon fraud and usury. The district court granted summary judgment to Albers and Luther, finding that the contract was clear and unambiguous, that fraud was improperly pled, that there was insufficient evidence to support a claim of fraud, and that the contract was not usurious.
In considering the motion for summary judgment, the party against whom judgment is sought is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Citizens State Bank v. Gilmore, 226 Kan. 662, 663, 603 P.2d 605 (1979). Summary judgment is proper where 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. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).
The Nelsons owned two tracts of land in Saline County, Kansas, containing 180 acres of land, and some farm machinery. On September 26, 1985, the Production Credit Association and the Federal Land Bank foreclosed upon the real estate and farm machinery. The real estate and machinery were sold at a sheriff s sale and the redemption period was set for expiration on May 24, 1988.
Shortly before the redemption period expired, the Nelsons contacted Ralph Luther to see if he could obtain the funds necessary for redemption. On May 23, 1988, the Nelsons met with Albers and Luther to discuss financing the transaction. The Nelsons contend they reached an agreement whereby Albers and Luther would lend them $109,579.08 to redeem the property from foreclosure and the Nelsons would secure the loan by transferring the title to Albers and Luther. The parties agreed Luther’s attorney, Robert Constable, would draw up the necessary documents.
On May 24, 1988, Albers obtained a cashier’s check for $109,579.08, and all the parties went to the courthouse, where redemption was made on the foreclosed property. The parties then returned to Robert Constable’s office, where the agreement, warranty deeds, bill of sale, and statement of representation were signed. The Nelsons claim they believed the transaction was a loan arrangement and, therefore, did not read the contract before signing it.
Under the terms of the written contract, the Nelsons conveyed absolute title to their real estate and farm machinery to Albers and Luther. The agreement provided that the Nelsons were to pay $300 monthly rent for the house and outbuilding and that the Nelsons had the right to repurchase the real estate and machinery for $119,579.08 plus 12.25% interest on or before May 24, 1989. Upon the event of default of the rental payments or failure to purchase the property within one year, the Nelsons agreed to peaceably vacate the premises. In addition, Albers and Luther were entitled to all rents, profits, emoluments, government payments, and other income produced from the real estate.
The Nelsons failed to purchase the property by May 24, 1989, and Albers and Luther filed an action in ejectment on May 25, 1989. The Nelsons claim the transaction was a mortgage and loan and never intended as an outright sale with the option to purchase. Upon the completion of discovery, Albers and Luther filed a motion for summary judgment, which the district court granted. Thereafter, Albers and Luther were granted immediate possession of the real estate and the Nelsons were ordered to vacate the premises by June 10, 1990. The district court refused to approve the Nelsons supersedeas bond, and this appeal followed.
I
The Nelsons first contend summary judgment was improper because factual issues remained in dispute. They assert the district court should have considered whether there was a meeting of the minds on the agreement, the intention of the parties, and the effect of prior negotiations. The district court examined the written agreement and found that it was clear and unambiguous and also determined it was not based on fraud or misrepresentation.
As a general rule, the interpretation of a written contract that is free from ambiguity is a judicial function and does not require oral testimony to determine the contract’s meaning. Hall v. Mullen, 234 Kan. 1031, 1037, 678 P.2d 169 (1984). An ambiguity does not appear until two or more meanings can be construed from the contract provisions. Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 582, 738 P.2d 866 (1987). In the present case, the parties do not argue conflicting provisions exist within the contract; thus, we find no ambiguity.
The written contract clearly states the Nelsons conveyed absolute title of the real estate and farm machinery:
“Whereas, said parties of the first part have conveyed said land and farm machinery absolutely and not for the purposes of security, and
“Whereas, parties of the first part wish to contract with parties of the second part for the sale and repurchase of said real estate and said farm machinery, and the parties wish to provide for a lease of the house and out buildings located on said real estate as a place of residence for parties of the first part.”
In addition, the contract expressly set forth the conditions and contingencies of repurchasing the property and Albers’ and Luther’s rights as the absolute owners of the property.
Where contracting parties have carried out negotiations and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 135, 754 P.2d 803 (1988); Hall v. Mullen, 234 Kan. at 1037.
It is a well-established rule of law that contracting parties have a duty to learn the contents of a written contract before signing it, and such duty includes reading the contract and obtaining an explanation of its terms. Sutherland v. Sutherland, 187 Kan. 599, 610, 358 P.2d 776 (1961). The negligent failure of a party to read the written contract entered into will estop the contracting party from voiding the contract on the ground of ignorance of its contents. Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, 299, 736 P.2d 888 (1987). Therefore, a party who signs a written contract is bound by its provisions regardless of the failure to read or understand the terms, unless the contract was entered into through fraud, undue influence, or mutual mistake. Rosenbaum, 241 Kan. at 299; Washington v. Claassen, 218 Kan. 577, 580, 545 P.2d 387 (1976); Sutherland, 187 Kan. at 610. Thus, the contract here is binding as written unless the Nelsons plead and offer evidence of fraud in its inception under which circumstance parol evidence may be admitted to vary the terms of the written instrument.
The Nelsons contend Albers, Luther, and their attorney, Constable, fraudulently misrepresented facts and information which induced them to enter into the contract to their detriment. The Nelsons assert that Albers and Luther conveyed the impression they would assist in a loan for redemption purposes. Further, the Nelsons contend they were required to sign the documents under strained circumstances and had no opportunity to consult their own attorney. They allege the entire transaction was hurried and confused in order to get all the necessary documents completed prior to expiration of the redemption period.
Fraudulent misrepresentation includes affirmative acts and misstatements of fact or the concealment of acts or facts which legally or equitably should be revealed. Citizens State Bank v. Gilmore, 226 Kan. at 667. Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, which is made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his or her injury and damage. Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980).
Fraudulent misrepresentation as to the legal effect of an instrument will void a contract. Stegman v. Professional & Business Men's Life Ins. Co., 173 Kan. 744, 751, 252 P.2d 1074 (1953). Nevertheless, the fact that a party signs a contract and does not know its contents is not alone sufficient to permit that party to void it. McKay v. Clark, 162 Kan. 653, 659, 178 P.2d 679 (1947).
The Nelsons claim of fraudulent misrepresentation is based entirely upon their mistaken belief the agreement was for a loan rather than the sale of the real estate and farm machinery. The Nelsons, however, failed to produce any evidence that Albers, Luther, or Constable made an untrue statement with the intent to deceive or reckless disregard for the truth. Rosemary Nelson stated she knew Constable was plaintiffs’ attorney and could not say that he tricked them into signing the agreement. Rosemary believed the documents pertained to a loan transaction and did not read the agreement carefully because the parties were rushed to get everything finished. Loring Nelson stated he did not know there was a sale and that he trusted Albers and Luther and believed the rushed transaction was necessary.
The burden of proof is on the Nelsons to prove fraud by clear and convincing evidence. Nordstrom v. Miller, 227 Kan. at 65. We hold that the district court correctly determined there was insufficient evidence to support a claim of fraud and that summary judgment was proper.
II.
Next, the Nelsons assert the contract is void because there was no meeting of the minds as to all essential terms of the contract.
In order to form a binding contract, there must be a meeting of the minds on all essential elements. Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107 (1981). In the event of a mutual mistake, either of law or of fact, on the terms of the contract, the contract is not binding on the parties. See Rosenbaum v. Texas Energies, Inc., 241 Kan. at 301-02. As a general rule, however, in the absence of fraud, a unilateral mistake will not excuse nonperformance of a contract. Triple A Contractors, Inc. v. Rural Water Dist. No. 4, 226 Kan. 626, 628, 603 P.2d 184 (1979); Squires v. Woodbury, 5 Kan. App. 2d 596, 598, 621 P.2d 443 (1980), rev. denied 229 Kan. 671 (1981).
In the case at hand, there was no mutual mistake as to the terms of the contract. Albers and Luther believed the agreement was for the outright sale of real estate and farm machinery with an option to repurchase within one year. The Nelsons, however, claim they believed the transaction represented a loan secured by collateral. Thus, any mistake was unilateral in nature and insufficient to void the contract.
Our examination of the agreement, pleadings, and record leads to the conclusion that the contract is valid and not based upon fraudulent misrepresentations or mutual mistake. The Nelsons’ failure to read and scrutinize the agreement does not preclude enforcement of the contract. We find there were no genuine issues of fact in dispute and affirm the district court’s order granting summary judgment to Albers and Luther.
Finally, the Nelsons claim error in the district court’s refusal to reconsider the summary judgment ruling. In support of their motion for reconsideration, they submitted a letter written by Lorraine Albers which they allege supports their position that the agreement was intended as a loan transaction.
The letter submitted by the Nelsons provides no evidence of fraud or mutual mistake. To oppose a motion for summary judgment, a party must present something of evidentiary value to establish a material factual dispute. Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 1, 739 P.2d 444 (1987). In this instance, the letter provides no evidence to support the Nelsons’ claim and, in addition, was presented out of time.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the City of Overland Park (City). The defendants had each been found guilty of separate offenses in the Municipal Court of the City of Overland Park. They each appealed to the District Court of Johnson County, Kansas. The district court dismissed the appealed cases. The four cases are consolidated for appeal purposes.
The defendants filed a notice of appeal and posted bonds, which guaranteed “[t]hat said accused person shall personally appear before the District Court of Johnson County, Olathe, Kansas, on the 27 day of December, 1989, at 1:30 o’clock p.m.” The defendants appeared in the district court on the designated time and date. The prosecution did not appear because the municipal court clerk had not filed any of the cases in district court.
The clerk filed the appeals in the district court on January 2, 1990. The city prosecutor apparently notified the defendants of their new court date (January 10, 1990) by mail.
On January 10, a hearing was held at which, appellant asserts, the defendants physically came to court, but the district court refused to call the case. The district court said that it was concerned that it had no jurisdiction over the defendants, stating:
“I don’t know how I can make the defendants appear in this Court when they did appear when they were bonded out to appear, and how I can gain the jurisdiction over them, I don’t know.
“. . . I believe your Clerk [the city clerk] has been designated as a deputy clerk of the District Court for the purpose of accepting appeals. Your Clerk set the appearance date. We didn’t set it. You set the date, told them to appear, and that was the date for their appearance. I really don’t think that I can do anything other than place for the record what I have done here. The cases are before me, but I frankly do not believe that the Clerk of the Court has properly placed them before me to call today, because they are not bonded to appear in this Court today. ... I am not formally calling the case because I don’t believe they are before me.”
Another hearing was held on March 27, 1990. The district court said the issue was whether it had jurisdiction over the defendants. The court noted that there is ambiguity in the statutory procedure for notifying defendants of the time for their appeal to be heard by district court. The court questioned how the defendants are to be notified if they are not released on an appearance bond. The court said: “They [the defendants] appeared at the time they were bonded out to appear. There was no case here. Judge Anderson called the case and he could not do a thing with them because there was no case before the Court.”
The district court concluded that it did not have jurisdiction over the defendants. It ultimately concluded that it did not have jurisdiction to hear even the City’s motion to set the matter for trial.
The district court filed an Order of Dismissal on April 9, restating the oral findings it made on March 27. The court said that the bonds on which the defendants were released were appearance bonds and that the defendants had appeared. The court held that the City had failed to obtain jurisdiction over the defendants, but that possibly if the City had asked, on proper motion, for an order for the defendants to appear or for a subpoena, the City could have obtained jurisdiction. The court concluded, “it has no jurisdiction over the person of the defendants and said cases are dismissed at plaintiffs costs.” (Emphasis supplied.)
The general grant of appellate jurisdiction for a district court over a municipal court is contained in K.S.A. 12-4602, which provides: “An appeal to the district court may be taken as provided in K.S.A. 22-3609. The appearance bond may continue in effect throughout the appeal; however, the municipal judge may require a separate appeal bond. Hearing and judgment on appeal shall be as provided in K.S.A. 22-3610 and 22-3611.”
K.S.A. 22-3609(2) sets forth the general procedure for appeals from municipal court to district court:
“An appeal to the district court shall be taken by filing, in the district court of the county in which the municipal court is located, a notice of appeal and any appearance bond required by the municipal court. Municipal court clerks are hereby authorized to accept notices of appeal and appearance bonds . . . and shall forward such notices and bonds to the district court.”
Subsection 3 of K.S.A. 22-3609 contains more specific directions as follows:
“The notice of appeal shall designate the judgment or part of the judgment appealed from. The defendant shall cause notice of the appeal to be served upon the city attorney prosecuting the case. The judge whose judgment is appealed from or the clerk of the court, if there is one, shall certify the complaint and warrant to the district court of the county, hut failure to do so shall not affect the validity of the appeal.” (Emphasis supplied.)
Under subsection (3), the municipal court must send the proper papers to the district court. This statute previously provided a 10-day time limit for the municipal court to do so. In City of Garnett v. Zwiener, 229 Kan. 507, 509, 625 P.2d 491 (1981), this court held that the time limit for the municipal court to certify the complaint is not jurisdictional. The court said:
“The law is clear that when the appellant has complied with the part of the appeal statute which requires him to take action, any subsequent procedural steps to be taken by some officer, such as a clerk or judge, are directory, not mandatory, and the review proceeding is not defeated by defects created by such officers.”
The district court here seems to have also been saying that it could not call the case because the defendants had not been personally served with notice of some sort. Such service is unnecessary. K.S.A. 22-3610(a) provides: “When a case is appealed to the district court, such court shall hear and determine the cause of the original complaint, unless the complaint shall be found defective. . . . The case shall be tried de novo in the district court.”
The municipal court obtained jurisdiction over the defendants originally. No statute requires additional service to the defendant. Local rules and inherent powers give the court jurisdiction and authority to set the appeal for trial and to schedule pretrial appearances.
In City of Ogden v. Allen, 208 Kan. 573, 493 P.2d 277 (1972), the district court dismissed an appeal (for double parking) from the police court of Ogden, Kansas. The appeal was dismissed because of a local court rule stating that an appeal from a municipal court was not perfected unless the defendant appeared in the district court on the first day of the next term of court following the filing of the appeal. The district court was of the opinion that the failure of the defendant to appear deprived the court of jurisdiction (because the appeal was not perfected) and that dismissal was, therefore, mandatory.
On appeal, this court held “there is nothing in the statutory language to indicate the subsequent appearance of the defendant is necessary to perfect the appeal, and that without such appearance, the jurisdiction of the district court does not attach.” 208 Kan. at 576. We then held the trial court erred in dismissing the appeal and in failing to reinstate the appeal.
In Ottawa v. Johnson, 73 Kan. 165, 84 Pac. 749 (1906), a defective appeal bond approved by the police court judge was held to confer jurisdiction on the district court.
In Topeka v. Durein, 78 Kan. 661, 663, 97 Pac. 967 (1908), this court held that when an appeal from police court is filed and the complaint is defective, it is not necessary to issue a new warrant, “which could have had no other function than to bring [defendant] before the court which already had complete jurisdiction of his person in virtue of a recognizance which had not spent its force.”
Here, the appeal had been perfected. The trial court had jurisdiction over the persons of the defendants by virtue of the appeal bonds. It is obvious that the defendants were either in court personally or by counsel on January 10, 1990, but the record does not reflect their presence on that date because the district court refused to call the cases and note their appearances on the record. The district court could have arraigned the defendants on that date or scheduled further proceedings at a later date. Had the defendants not been present, either in person or by counsel, the district court could have caused notice to be served on the defendants, or their counsel, and set the arraignments for a later date. The district court erred in failing to do so and in failing to reinstate the appeals.
We do understand that the district court may have felt frustration because the municipal court was not processing appeals with diligence and care. We have previously said:
“In deciding this case, we do not intend to limit the rule stated by this court, that courts have the inherent power to dismiss a case because of failure to prosecute with due diligence, under circumstances which warrant dismissal (City of Wichita v. Catino, 175 Kan. 657, 265 P.2d 849), so as to permit courts to clear their dockets in order to save time and expense and expedite the court’s business. (City of Wichita v. Houchens, 184 Kan. 297, 335 P.2d 1117.) However, as stated in Reddington v. Rank, 176 Kan. 484, 490, 271 P.2d 807, it is also highly important that drastic procedure in dismissing an action involving the rights of citizens be exercised with utmost care.” 208 Kan. at 576.
To the above, we would add that the record should support the district court’s action by setting forth the historical background that leads to the extraordinary remedy of dismissal.
Defendants have filed motions for attorney fees. They make no claim that the appeal is frivolous and generally cite Supreme Court Rule 7.07 (1990 Kan. Ct. R. Annot. 37). They cite no specific part of the rule and no case law supporting their request. The motions for attorney fees and costs are denied.
Reversed and remanded with instructions to reinstate the appeals. | [
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On the 6th day of December, 1985, Christopher P. Christian was indefinitely suspended from the practice of law in Kansas. In re Christian, 238 Kan. 451, 709 P.2d 987 (1985).
On the 19th day of April, 1989, Mr. Christian filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the disciplinary administrator for consideration by the Kansas Board for Discipline of Attorneys pursuant to Supreme Court Rule 219 (1990 Kan. Ct. R. Annot. 157). On October 1, 1990, a hearing was held before a panel of the Board.
On January 4, 1991, the panel filed its report, setting out the circumstances leading to Mr. Christian’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel unanimously recommended that Mr. Christian be reinstated to the practice of law in Kansas. The panel’s recommendation is subject to petitioner’s taking and passing the Multi-State Professional Responsibility Examination and upon his continuing therapy with Dr. Stephen Sowards until released by Dr. Sowards.
The court, after carefully considering the record, accepts the recommendations of the panel.
It is Therefore Ordered that Christopher P. Christian be reinstated to the practice of law in the State of Kansas upon his succesful completion of the Multi-State Professional Responsibility Examination. Upon the report to the Clerk of the Appellate Courts that petitioner has successfully taken and passed the MultiState Professional Responsibility Examination, and consideration thereof by the court, an order shall be entered reinstating petitioner to the practice of law in Kansas, conditioned upon his continued therapy as directed by Dr. Stephen Sowards.
It is Further Ordered that this order shall be published in the official Kansas Reports.
Effective this 12th day of April, 1991. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action on a medical insurance contract. The estate of Maurice Behnke, deceased, asserts Reserve Life Insurance Company (Reserve Life) breached its contract to provide major medical insurance when it refused to pay benefits under the contract for medical expenses incurred by Behnke. In defense, Reserve Life argues it properly rescinded the coverage and contract due to material misrepresentations by Behnke on the application for insurance concerning his health history. Both parties filed motions for summary judgment. The district court determined Behnke made a fraudulent misrepresentation on the application for insurance and granted Reserve Life’s motion for summary judgment. We reverse.
We review the facts in the light most favorable to Behnke. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990). On June 12, 1987, Behnke underwent a blood test at Life Lab, a private laboratory facility. Prior to taking the test, Behnke believed he might test positive for the Human Immunodeficiency Virus (HIV) because of his prior hepatitis and multiple sexual partners. In July 1987, Life Lab informed Behnke that he had tested positive for the presence of HIV antibodies. The letter from Life Lab also recommended a complete medical evaluation by Behnke’s personal physician. A physician did not administer the blood test at Life Lab nor inform Behnke of the test results or its meaning. However, Behnke was informed by Life Lab that testing positive for HIV antibodies did not mean that he currently had Acquired Immune Deficiency Syndrome (AIDS) or AIDS-Related Complex (ARC).
HIV is a virus which is spread by unsafe sexual contact, by needle sharing, or through blood or its components. The HIV virus may cause AIDS, a disease of the human immune system that leaves the body vulnerable to diseases which it can normally repel. AIDS is a disease of the immune system; it is not a blood disorder. A diagnosis of AIDS depends on the presence of opportunistic diseases which invade on the loss of immunity. The presence of these diseases plus a positive test for HIV antibodies makes possible a diagnosis of AIDS. A positive HIV test indicates that an individual may have been infected with the virus, but does not mean the individual is certain to develop AIDS.
On September 11, 1987, Behnke completed an application for major medical and life insurance with AmWay Group Major Medical & Life Insurance—Reserve Life Insurance Company. He understood that any coverage extended was based upon truthfulness of the application information and that any information discovered untruthful was grounds for rescission.
No question on the application specifically asked whether the applicant had undergone HIV antibody testing for AIDS or any other questions concerning AIDS.
Question 5(c) of the application asked whether the applicant had been treated for or had any indication of specific disorders, including any blood disorders. Behnke answered negatively.
Question 7 asked, “Do you know of any other impairment now existing in the health or physical condition of any proposed insured?” Behnke responded. “No,” on the theory his health was not impaired even though he had received a positive HIV test. At the time of filing the application, Behnke felt well.
Question 8 asked, “Has any proposed insured been examined or treated by a doctor during the past three years for anything other than the conditions listed above?” Behnke responded “Yes” and explained in Paragraph 9 he had suffered minor sore throats, colds, etc.
Behnke did not indicate he had tested HIV positive because he found none of the questions were applicable. However, Behnke realized Question 8 was propounded to determine if the applicant had any pre-existing condition. Behnke also determined that Question 8 did not require revelation of the HIV test because it inquired about examinations conducted by doctors and the blood test he had undergone was not administered by a doctor.
At the time Behnke submitted the application to Reserve Life, he had health insurance coverage with Blue Cross-Blue Shield through his former employer, Mid America Directs. Behnke sought the Reserve Life Insurance contract for several reasons. First, as an independent contractor rather than an employee of Mid America Directs, he was required to reimburse the company on a monthly basis. Secondly, Behnke believed the Blue Cross-Blue Shield premiums were soon going to increase. Finally, Behnke believed Mid America Directs might change insurance carriers. Under Reserve Life’s insurance policy, Behnke’s premium decreased from $72 a month to $47 a month.
At the time of his application with Reserve Life, Behnke had no signs of any illness and was not convinced in his own mind that he was HIV positive. Behnke was skeptical of the HIV test result because he had undergone a pre-employment physical exam for Eastern Airlines in 1987 and was offered a job, thereby indicating to him his health condition was satisfactory.
Behnke received a validation of coverage under the Reserve Life policy with an effective date of October 1, 1987. Early in 1988 Behnke developed arthritis but waited until April of that year to inform his physicians about the prior HIV-positive test. In July 1988, Behnke was hospitalized at Research Medical Center and diagnosed with having AIDS. Behnke’s medical records at Research Medical Center indicated he had tested positive for HIV antibodies nearly a year earlier.
Upon receipt of the Research Medical Center records, a claims examiner for AmWay Distributors of Reserve Life requested information from Behnke concerning the date and place of testing referred to in the records. In response, Behnke informed the claims examiner about his pre-employment physical examination for Eastern Airlines, but he did not provide any information pertaining to the June 1987 blood test at Life Lab.
Based upon the information provided in the Research Medical Center records concerning the pre-application positive HIV test, Reserve Life rescinded its contract of insurance with Behnke and refunded previously paid premiums.
The district court determined that as a matter of law Reserve Life was entitled to summary judgment based upon fraudulent misrepresentation by Behnke in the insurance application.
As a result of Behnke’s death during the pendency of the appeal, the administrator of his estate was substituted as a party. On appeal, the estate contends summary judgment was erroneous because Reserve Life failed to establish an essential element of fraud. Specifically, the estate asserts Reserve Life has not shown that Behnke made a false answer on the insurance application with an intent to deceive.
The issue we address is whether the evidence supports the district court’s determination that there was a material and fraudulent misrepresentation by Behnke sufficient to support Reserve Life’s rescission of the contract.
The existence of fraud is normally a question of fact. Therefore, upon appeal, our standard of review is limited to determining whether the district court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the district court’s conclusions of law. Iola State Bank v. Bolan, 235 Kan. 175, 187, 679 P.2d 720 (1984); Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980).
The elements necessary to establish actionable fraud are well established. Fraudulent misrepresentation in an action to rescind an insurance contract includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury and detriment. American States Ins. Co. v. Ehrlich, 237 Kan. 449, 452, 701 P.2d 676 (1985); Nordstrom v. Miller, 227 Kan. at 65. Fraud is never presumed and must be shown by clear and convincing evidence. Gonzalez v. Allstate Ins. Co., 217 Kan. 262, 266, 535 P.2d 919 (1975). In addition, the falsity of a material application statement does not bar recovery under the policy unless the false statement actually contributes to the contingency or event on which the policy becomes due and payable. K.S.A. 40-2205(C).
The estate first argues Behnke did not make an untrue statement on the application. It urges that Question 8 of the application inquires about any prior examination or treatment by a doctor and is not concerned with any other type of medically related examinations or treatments. Thus, the estate contends, since a doctor was not present during the Life Lab blood testing, Behnke did not make a false statement in answering the question negatively.
For support, Behnke relies upon Galloway v. Insurance Co., 112 Kan. 720, 212 Pac. 887 (1923). In Galloway, an application for life insurance asked for the dates and complaints of the applicant which were attended to by a physician. The plaintiff failed to list an osteopath who had diagnosed plaintiff with a retroflexed uterus, the ultimate cause of plaintiffs death. This court determined the insurer was not entitled to rescind the contract for fraudulent misrepresentation because the question literally asked for only the dates and complaints, and the plaintiffs understanding of “physician” as a general practitioner, although erroneous, was not inconsistent with good faith. 112 Kan. at 723-24. See also Day v. National Reserve Life Ins. Co., 144 Kan. 619, 624-25, 62 P.2d 925 (1936) (negative response to inquiry concerning intestinal disease was not false because plaintiff believed symptoms were chronic constipation); Jackson v. National Life and Acc. Ins. Co., 150 Kan. 86, 90, 90 P.2d 1097 (1939) (plaintiffs failure to list treatment by chiropractor in response to inquiry concerning treatments by a physician held not fraudulent).
We find the estate’s argument valid. Behnke answered the questionnaire honestly. No inquiry was made as to AIDS or HIV. Admittedly, Behnke could have gone farther in his disclosure, but to do so he would have had to act as a volunteer about a matter which he did not consider an impairment of his health. It was the insurance company’s responsibility to ask the questions to which it wanted answers. This it did not do.
The next issue we address is whether there was substantial competent evidence to support a finding that Behnke intended to deceive or recklessly disregarded the truth in omitting information of the HIV-positive test from the insurance application. The estate argues the district court failed to apply the requisite subjective standard to determine whether fraudulent intent was established. It also contends the district court finding of fraud was erroneous because, although the application may have contained a false answer, it was unintentionally false and, therefore, did not constitute fraud.
A representation made innocently and in good faith does not constitute fraud. Nordstrom v. Miller, 221 Kan. at 64-65; Scott v. National Reserve Life Ins. Co., 143 Kan. 678, 679, 56 P.2d 76 (1936). Thus, an answer which denied the existence of any stomach disease on a life insurance application was not considered fraudulent even though the applicant had consulted physicians concerning a digestive disturbance because the applicant had enjoyed good health and had answered the questions in good faith. Sharrer v. Insurance Co., 102 Kan. 650, 651-52, 171 Pac. 622 (1918). In Scott v. National Reserve Life Ins. Co., 143 Kan. 678, however, an applicant falsely denied on the insurance application that he previously had been turned down by life insurance companies. The Scott court determined the plaintiffs false answer was material and his concealment of a material fact indicated a lack of good faith. Thus, the court upheld the insurer’s rescission of the contract. 143 Kan. at 683.
In the case at hand, we believe Rehnke omitted the information of a positive HIV test in good faith. It was not inquired about, and we find no evidence of fraud.
The judgment of the trial court is reversed. Summary judgment is granted to the appellant.
Abbott, J., not participating. | [
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The opinion of the court was delivered by
McFarland, J.:
Nicholas Wagner appeals his jury trial convictions of fourteen felonies.
The incidents giving rise to the convictions all occurred in Wichita in a period of less than 30 days. The dates, locations, and oífenses are as follows:
1988
4- 30 Kentucky Fried Chicken on Deliróse Street:
Count I Aggravated Robbery (K.S.A. 21-3427);
Count II Unlawful Possession of a Firearm (K.S.A. 21-4204);
Count III Aggravated Battery (K.S.A. 21-3414).
5- 13 Kentucky Fried Chicken at 21st and Arkansas:
Count VI Aggravated Robbery (K.S.A. 21-3427);
Count VII Unlawful Possession of a Firearm (K.S.A. 21-4204).
5-15 Taco Tico on West Douglas:
Count VIII Aggravated Robbery (K.S.A. 21-3427);
Count IX Kidnapping (K.S.A. 21-3420);
Count X Unlawful Possession of a Firearm (K.S.A. 21-4204).
5-17 Kentucky Fried Chicken on South Hydraulic:
Count XI Aggravated Robbery (K.S.A. 21-3427);
Count XII Unlawful Possession of a Firearm (K.S.A. 21-4204).
5-19 Kentucky Fried Chicken on South West Street:
Count XIII Aggravated Robbery (K.S.A. 21-3427);
Count XIV Unlawful Possession of a Firearm (K.S.A. 21-4204).
5-22 Long John Silver s on East 21st Street:
Count XV Attempted Aggravated Robbery (K.S.A. 21-3427 and K.S.A. 21-3301).
5-22 Kentucky Fried Chicken at 21st and Arkansas:
Count XVI Aggravated Robbery (K.S.A. 21-3427).
It should be noted that Counts IV and V were dismissed prior to trial by virtue of the absence of a witness. Other facts will be stated as necessary for the discussion of particular issues.
SEVERANCE
For his first issue, defendant contends the trial court abused its discretion in denying his motion to sever the various incidents for trial. Defendant claims that such action was necessary because the eyewitness identification testimony was not equally strong in each incident.
K.S.A. 22-3202(1) provides:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
Here, the defendant concedes the crimes charged were of the same or similar character arising from aggravated robberies or attempts thereof aimed against Wichita fast food restaurants.
The scope of review is stated in State v. Walker, 244 Kan. 275, Syl. ¶ 1, 768 P.2d 290 (1989), as follows:
“Whether a defendant may be tried on two or more complaints, informations, or indictments in a single trial rests in the sound discretion of the trial court, within the guidelines established in statute and case law, and its holding will not be disturbed on appeal absent a clear showing of abuse of discretion. Even if the trial court’s consolidation order is determined to be an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal.”
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Martin, 237 Kan. 285, Syl. ¶ 1, 699 P.2d 486 (1985).
Defendant was identified at trial as the culprit in each crime. The principal deviation among the various eyewitnesses lay in the height ascribed to the culprit in initial statements to the police.
We find no abuse of discretion in this issue.
REQUESTED DELETION FROM EXHIBITS
K.S.A. 21-4204(b) defines the crime of unlawful possession of a firearm, in pertinent part, as follows:
“Possession of a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.”
Defendant was tried on five counts of violation of said statute. By the nature of the offense, it was necessary for the State to prove the requisite prior felony conviction. The State accomplished this by the introduction of two journal entries showing defendant had pled guilty to two counts of felony theft on January 30, 1986.
Defense counsel objected to the journal entries being admitted, in toto, as they showed defendant had received suspended sentences for the two crimes. The reason stated was that the jury might be more likely to convict defendant for the crimes for which he was on trial because of his having received the prior suspended sentences. The logic of this argument is difficult to follow. Defendant was being tried for fourteen felonies—including crimes against persons involving the use of guns. The fact that over two years previously he had received suspended sentences for two theft charges could hardly be a factor in the jury’s deliberations.
Nevertheless, we must first determine if the failure to delete all references to the sentences from the journal entries, when so requested, constitutes an abuse of discretion.
The admissibility of evidence is within the trial court’s discretion and the admission or exclusion of evidence is determined on the basis of the evidence’s relevance and connection with the accused and the crime charged. See State v. Reynolds, 230 Kan. 532, 536, 639 P.2d 461 (1982).
K.S.A. 60-401(b) provides that “relevant evidence” is evidence having any tendency to prove a material fact. To be admissible, evidence must be confined to the issues but need not bear directly upon them. For evidence of collateral facts to be competent, there must be some natural or logical connection between them and the inference or result they are designed to establish. State v. Walker, 239 Kan. 635, 644, 722 P.2d 556 (1986); State v. Reed, 226 Kan. 519, 524, 601 P.2d 1125 (1979).
As we said in State v. Holmes, 222 Kan. 212, 213, 563 P.2d 480 (1977), “It is the adjudication of guilt not the imposition of sentence which constitutes a ‘conviction’ within the meaning of K.S.A. 21-4204(1)(b).” The portions of the journal entries stating the sentences imposed were surplusage and normally should have been deleted by the trial court from the documents before their submission to the jury. The failure to delete such references when requested to do so by the defendant constitutes an abuse of discretion.
Was this reversible error? We believe not. As we stated in State v. Walker:
“The erroneous admission of evidence in a criminal trial does not require a reversal of conviction in every case, but only where it is of such a nature as to affect the outcome of the trial and deny substantial justice.” 239 Kan. 635, Syl. ¶ 6.
For the reasons previously expressed herein, we are satisfied that the failure to delete references to the sentences imposed for the prior offenses neither affected the outcome of the trial nor denied substantial justice.
ATTEMPTED AGGRAVATED ROBBERY
When the defendant attempted to rob the Long John Silver’s restaurant on May 22, 1988, (Count XV) the victim, Assistant Manager Brian Chaplin, testified that he recognized defendant’s weapon to be a pellet or BB gun rather than a “real gun.” Defendant argues that since the victim knew it was not a “real gun” it was not a dangerous weapon within the meaning of K.S.A. 21-3427, the statute defining aggravated robbery, in pertinent part, as robbery with a dangerous weapon.
The fallacy in this argument is that defendant seems to believe that a true firearm is the only type of gun that can constitute a dangerous weapon. No authority for that proposition is stated.
The jury was instructed that it was to decide whether or not the gun used was a dangerous weapon. The jury obviously concluded the gun used was a dangerous weapon. There is no indication that defendant objected to this instruction, nor was it improper. We find no merit in this issue.
LESSER INCLUDED OFFENSE
At trial, victim Robert Pruner testified the defendant hit him on the side of his head with a pistol during the April 30, 1988, robbery of the Kentucky Fried Chicken restaurant on Deliróse Street. The blow did not break the skin nor did Pruner receive medical treatment.
The trial court instructed the jury on aggravated battery as follows:
“Defendant is charged in Count Three with the crime of Aggravated Battery. Defendant pleads not guilty. To establish this charge, each of the following claims must be proved. Defendant, or someone acting in concert with him, unlawfully, willfully, intentionally, in a rude, insolent or angry manner:
1. touched or applied force to the person of Robert Pruner;
2. with intent to injure Robert Pruner; and
3. which (a) was done with a deadly weapon, an unknown caliber handgun, or, (b) in a manner whereby disfigurement, dismemberment or death can be inflicted;
4. this happened in Sedgwick County, Kansas, and on or about April 30, 1988.”
Defense counsel did not request, nor did the trial court give, an instruction on battery (K.S.A. 21-3412) as a lesser included offense. Defendant was convicted of aggravated battery.
For his final argument, defendant contends the trial court committed reversible error by failing to instruct on the lesser included offense of battery. Defendant cites State v. Colbert, 244 Kan. 422, 769 P.2d 1168 (1989), as controlling the issue herein.
In Colbert, defendant was charged with aggravated battery for clubbing his robbery victims with a pistol. The victims did not require medical attention, nor did the trial court instruct on battery as a lesser included offense. We reversed the aggravated battery convictions, stating:
“The trial court has an affirmative duty to instruct on all lesser included offenses supported by the evidence. K.S.A. 21-3107(3); State v. Cummings, 242 Kan. 84, Syl. ¶ 7, 744 P.2d 858 (1987); State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979). Evidence supporting such an instruction must be considered in the light most favorable to the defendant. State v. Royal, 234 Kan. 218, 221-22, 670 P.2d 1337 (1983). The evidence need not be strong evidence—indeed, it may be weak and based only on the testimony of the defendant. State v. Cummings, 242 Kan. at 91; State v. Clark, 218 Kan. 18, 21, 542 P.2d 291 (1975). The test is whether the evidence might reasonably cause a jury to convict the defendant of the lesser charge. State v. Crispin, 234 Kan. 104, 109, 671 P.2d 502 (1983).
“Whether the weapon used in the robbery was a deadly weapon under K.S.A. 21-3414(c) should have been an issue of fact for the jury, as explained in the previous issue. Had the jury been able to make that determination, the jury might have concluded the gun was not used in a manner in which it was calculated or likely to produce death or serious bodily harm and that its use constituted a simple battery on either or both of the charges. We conclude the failure to instruct on simple battery as a lesser included offense of the aggravated battery charges is reversible error.” 244 Kan. at 427-28.
We conclude that Colbert is controlling herein and that the failure to instruct on battery as a lesser included offense of aggravated battery requires reversal of that conviction and a remand for further proceedings on that charge (Count III).
The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings. | [
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Bobby Lee Pringle, respondent, was admitted to practice law in Kansas on February 16, 1955. In State v. Pringle, 233 Kan. 726, 667 P.2d 283 (1983), the court suspended respondent from the practice of law in Kansas for an indefinite period of time for violations of DR 1-102(A)(4) and (6) (1990 Kan. Ct. R. Annot. 165) and DR 9-102(A), (B)(2), (B)(3), and (B)(4) (1990 Kan. Ct. R. Annot. 204). These violations occurred in respondent’s improper handling of a client’s money. On July 25, 1983, respondent filed a motion for rehearing, claiming that the court’s opinion was not supported by the weight of the evidence. The motion was denied on September 8, 1983. On November 3, 1983, respondent filed an amended motion for modification, which was denied by the court on December 9, 1983.
On April 3, 1986, pursuant to Supreme Court Rule 219 (1990 Kan. Ct. R. Annot. 157), respondent filed a petition for an order vacating, terminating, or modifying the order of indefinite suspension. An evidentiary hearing on respondent’s petition was held on July 17, 1986. The hearing panel for the Kansas Board for Discipline of Attorneys found that respondent had not met the court’s established standards for reinstatement as contained in In re Dunn, 238 Kan. 31, 707 P.2d 1076 (1985), and State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981). The panel report noted that, in Russo, the court stated: “When a former attorney seeks reinstatement, he must meet an even greater burden than when he was originally admitted and must overcome the prior adverse conclusions of the court as to his fitness to practice law.” 230 Kan. at 9.
This court accepted the recommendation of the hearing panel and denied respondent’s motions on October 31, 1986. On August 20, 1990, respondent filed a new petition for reinstatement, which the court referred to the disciplinary administrator for investigation and. hearing on August 29, 1990.
The disciplinary administrator started his investigation on September 5, 1990, by requesting respondent to furnish information. The disciplinary administrator’s letter stated, in part:
“The first step of our consideration is investigation. We must obtain current information about you for submission to the hearing panel of the Kansas Board [for] Discipline and the Supreme Court.
“Enclosed please find a copy of a form entitled ‘Questionnaire and Affidavit of Applicant for Reinstatement Pursuant to Rule 219.’ Please answer all questions on the form. Provide this office with the completed questionnaire and the requested documentation within 30 days of the date of this letter. Your application will be placed on ‘hold’ within this office until that is accomplished.
“After receipt of the requested information, this office will make a decision as to whether additional investigation is required. If no additional investigation is required your application will be set for an evidentiary hearing before the Kansas Board [for] Discipline.”
Respondent furnished none of the requested information but, by way of a letter received by the disciplinary administrator on October 3, 1990, stated, in part:
“I have examined the latest copy of Kansas Supreme Court Rule 219 that I could find in the SMU Law Library and cannot find that it requires me to surrender my Constitutional right to privacy, therefore, unless you can provide me with a copy of a Kansas Supreme Court Rule which requires me to complete and file your requested ‘Questionnaire and Affidavit of Applicant for Reinstatement Pursuant To Rule 219,’ I am unwilling to execute and file it. I have already filed a sworn Application for Reinstatement which provides the information requested in the questionnaire which is germane to the inquiry. The Questionnaire looks more like a Credit Application than anything else and I cannot see that credit information is germane to my application for reinstatement. After all, any deficiencies in my credit standing have been generated by my Indefinite Suspension and the total loss of income resulting therefrom. The Honorable Charles Green’s Minority Report on the last Application for Reinstatement, states my position on this issue exactly.
“I have likewise declined to execute and enclose the ‘Kansas Board [for] Discipline Authorization and Release’ form you have requested, since I can find no Supreme Court Rule requiring it. I am requesting my references to complete and file the ‘Certificates of Character and Fitness’ you have requested.
“If there is. some Supreme Court Rule requiring the completion of your Questionnaire and Release Form which I have been unable to locate in the Pacific Reporter System and which you can supply me, I then and in that event, I request a reasonable period of time in which to complete and file it should I determine to do so after weighing the probable disruption of my family’s lifestyle which I, after a great deal of adversity, have been able to establish for them against the possible benefits of having my suspension vacated.”
This matter was presented to this court for its consideration, and the court directed a response by the disciplinary administrator, which was approved by this court. This response, dated October 24, 1990, stated in part:
“Your letter was presented to the Supreme Court for their consideration. They have directed me to write and tell you that you must fulfill my directions to you of September 5, 1990, including executing the release. You ajso must cooperate with any subsequent investigation as conducted by Mr. Jack Ford, Investigator for the Office of Disciplinary Administrator. Mr. Ford’s investigation would proceed after receipt of all information requested from you..
“The Court has also instructed me to tell you that your failure to cooperate with this office in investigating your petition for reinstatement will result in denial of your petition, without consideration.”
After receiving no response, the disciplinary administrator wrote to respondent on December 17, 1990, stating, in part:
“It is now December 17, 1990, and I have had no response to my letter of October 24, 1990, or to my letter of September 5, 1990.
“Please have the material requested in September here by January 7, 1991. If the material is not received by then I will have no option other than recommending that your petition for reinstatement be denied.”
On January 4, 1991, respondent responded by letter to the disciplinary administrator and filed a pleading with the court captioned “Respondent’s Amended Petition for an Order of Reinstatement.” Neither the letter nor the amended petition contained the information requested by the disciplinary administrator in September 1990 or as directed by this court in October 1990.
Supreme Court Rule 207 (1990 Kan. Ct. R. Annot. 141) requires members of the Kansas bar to “assist the Disciplinary Administrator in investigations and such other matters as may be requested of them.” Failure of a lawyer to abide by Rule 207 can result in the imposition of discipline. See In re Price, 241 Kan. 836, 739 P.2d 938 (1987), and State v. Savaiano, 234 Kan. 268, 670 P.2d 1359 (1983).
Effective this 10th day of April, 1991.
The information and assistance requested from respondent Bobby Lee Pringle by the disciplinary administrator in September 1990, and confirmed and directed by this court in October 1990, has not been furnished nor provided by respondent. The information requested is the same information that has been requested of all applicants for readmission for several years. A full and fair consideration of respondent’s petition for reinstatement cannot be held by a hearing panel or by this court in a void or solely on information presently furnished to the court by respondent’s pleadings.
It is the duty of the disciplinary administrator to conduct, in his discretion, appropriate investigation regarding a petition for reinstatement. This cannot be done completely or adequately without cooperation and assistance from the petitioner attorney. As stated previously, the respondent has failed to provide the requested information and assistance to the disciplinary administrator.
It is Therefore Ordered that respondent’s petition for reinstatement and his amended petition for reinstatement be and are hereby denied.
It is Further Ordered that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Herd, J.:
This case pertains to the construction of a testamentary trust established by the decedent Jim Chandley. Chandley died in 1986. His will was probated and administered in Stevens County District Court. J. Richard Godfrey was appointed acting trustee in accordance with the terms of the testamentary trust established by Chandley’s will.
Chandley devised substantially all of his property to his wife, Peggy Chandley. Under the terms of a testamentary trust, he created a life estate for the benefit of Peggy with the remainder to pass to named heirs. The trust provision in dispute provides that the net income of the trust shall be paid to Peggy “as may be necessary for her support, health and maintenance.”
Peggy Chandley resides in a nursing home in Dallas, Texas. She was declared incompetent by a Dallas County probate court, whereupon Sue Ann Walker Moran was appointed guardian for Peggy and her estate.
Peggy claims she is the beneficial owner of the trust income and is entitled to all of the net income necessary for her support, health, and maintenance. In addition, she asserts any income not distributed for her support, health, and maintenance should be held by the trustee for future use should the need arise. Finally, Peggy claims any undistributed income should be paid to her estate upon death.
The remaining defendants are beneficiaries under the decedent’s trust, subject to the interests of Peggy. They contend Peggy is entitled only to trust income for support, health, and maintenance expenses which she cannot pay from her own separate income. Upon Peggy’s death, the remaindermen claim all undistributed income should be paid into the trust corpus and distributed to them.
J. Richard Godfrey, the trustee, filed this declaratory judgment action in Seward County District Court seeking an interpretation and construction of the testamentary trust. A hearing was held in Seward County District Court on May 11, 1990, wherein the district court judge declined to rule on the admissibility of parol evidence but accepted a proffer of testimony. This proffer indicated that Jim and Peggy Chandley disliked each other’s relatives and, therefore, evenly divided their marital assets. The proffered evidence showed that Jim Chandley intended for the trust income to be utilized for Peggy’s benefit only when her expenses exceeded the ability to pay from her own income. A proffer of evidence on Peggy’s behalf denied the asserted intention of Jim Chandley.
On August 3, 1990, the district court ruled the trust provisions were unambiguous and the proffered testimony inadmissible. The court determined Peggy’s income from the marital estate must first be applied to her cost of living, and only if the income became insufficient to pay the reasonable costs of support, health, and maintenance should the trust income be applied to these expenses. Peggy appeals.
I
The first issue we consider is whether Peggy Chandley, the life tenant under the provisions of Jim Chandley’s testamentary trust, is entitled to all or a portion of the trust income for her support, health, and maintenance without regard to her personal income.
The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). Whether an instrument is ambiguous is a matter of law to be decided by the court. Mobile Acres, Inc. v. Karata, 211 Kan. 833, 839, 508 P.2d 889 (1973). As a general rule, if the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. In re Living Trust of Huxtable, 243 Kan. 531, 534, 757 P.2d 1262 (1988).
The primary function of a court in the interpretation of a will is to ascertain the testator’s intent as derived from the four comers of the will. Drach v. Ely, 237 Kan. 654, 656, 703 P.2d 746 (1985). Where an ambiguity exists in the written instrument, parol evidence is admissible to ascertain the meaning of the words used. In re Living Trust of Huxtable, 243 Kan. at 533.
Let us now turn to the trust provisions at issue. Paragraph VI of Jim Chandley’s will provides:
“I give, devise, and bequeath the rest and residue of my estate at the time of final settlement to J. RICHARD GODFREY AND HIS SUCCESSORS, in trust and upon trust, without bond or other security of any kind, to hold and administer the same for the following uses and upon the following terms and conditions, without order or authority from any Court or person.
“A. The trust estate shall be primarily held and administered for the benefit of my wife, PEGGY CHANDLEY, for and during her natural life, with remainder to be converted into cash and the net proceeds divided as hereinafter provided.
“R. The main purpose of the trust is to provide for the support, health and maintenance of my wife, PEGGY CHANDLEY, during her lifetime. The trust estate shall pay, monthly or at such intervals as may be agreed upon by the Trustee and my Wife, during the period of the trust such portion of the net income from the trust as may be necessary for her support, health, and maintenance. There shall be no invasion of principal.”
Peggy urges a broad and liberal construction of the trust provisions so that the trustee must pay to Peggy the sums needed or desired by her for support, health, and maintenance. She also contends undistributed trust income should be retained by the trustee to provide for subsequent support and any remaining income upon her death shall be paid to her estate.
The remaindermen assert the words “primarily” and “necessary” are words of limitation which indicate that Jim Chandley intended the trust to pay only those expenses which exceeded Peggy’s personal income. The remaindermen argue that, where Peggy’s income is available and sufficient to pay her living costs, the expenses are not necessary and, therefore, should not be paid from the trust income.
Whether a trustee can consider the personal income of a trust beneficiary is to be determined from the language of the instrument and surrounding circumstances. See Bogert, Trusts and Trustees § 811, p. 229 (rev. 2d ed. 1981). Where the trust settlor manifests an intention that the trust property be applied to the beneficiary’s support only if and to the extent the beneficiary is in actual need, then the beneficiary is not entitled to support from the trust fund if other sufficient resources are available. See Dunklee v. Kettering, 123 Colo. 43, 46, 225 P.2d 853 (1950); First National Bank of Catawba County v. Edens, 55 N.C. App. 697, 704, 286 S.E.2d 818 (1982). See generally 2 Scott on Trusts § 128.4 (Fratcher 4th ed. 1987). On the other hand, where a settlor directs the trustee to pay the beneficiary so much as is necessary for support and maintenance, an inference arises that the settlor intended the beneficiary to receive support from the trust estate, regardless of other income. See Taylor v. Hutchinson, 17 Ariz. App. 301, 304-05, 497 P.2d 527 (1972); Estate of Wells v. Sanford, Trustee, 281 Ark. 242, 246-47, 663 S.W.2d 174 (1984); Hamilton Nat. Bank v. Childers, 233 Ga. 427, 428, 211 S.E.2d 723 (1975); In re Coats Trust, 581 S.W.2d 392, 393-96 (Mo. App. 1979); see Restatement (Second) of Trusts § 128, comment e (1957).
In Blair v. Blair, 82 Kan. 464, 108 Pac. 827 (1910), the testator directed his executors to pay to his wife, out of the net proceeds of his business and estate earnings, such amounts necessary for her support and maintenance, and any excess earnings were to be reinvested in the estate. The widow claimed she was entitled to all the net income to use without restraint. This court determined the words “support and maintenance” were used in a broad and liberal manner. The court examined the language of the will and found the testator intended for his wife to have all the income, if necessary, for her support and maintenance but did not provide her with a means to engage in any enterprise or business. 82 Kan. at 467. <
The testator in Dunklee v. Kettering, 123 Colo. at 44, directed the trustee to pay the entire trust income to her husband and authorized the trustee to use the principal and or income “as may be necessary to provide him with the necessities of life.” The court considered evidence which showed that the husband possessed a large income from his practice of medicine and ownership of a medical clinic. 123 Colo. at 45. The Colorado court then determined that the phrase “necessities of life” was limited by the term “as may be necessary” and found that in light of the beneficiary’s financial situation it was not necessary for the trustee to provide for the beneficiary’s necessities of life from the trust corpus. 123 Colo. at 46.
In First National Bank of Catawba County v. Edens, 55 N.C. App. 697, an incompetent son was the beneficiary of his mother’s testamentary trust. The beneficiary had already received a share of his father’s estate, and, under the provisions of the beneficiary’s mother’s trust, the trustee was to use the income and principal, in his discretion, as necessary for the support, maintenance, and comfort of the beneficiary. The trust specifically directed the trustee to consider the beneficiary’s needs and the amount of income received from the father’s estate. 55 N.C. App. at 698. The North Carolina court found no error in the trustee’s consideration of the beneficiary’s personal income because the trust directed the trustee to pay in the trustee’s discretion, even if the beneficiary’s personal income was insufficient to cover his living expenses. 55 N.C. App. at 701-02.
In Estate of Wells v. Sanford, Trustee, 281 Ark. 242, a son bequeathed his entire estate for the benefit of his incompetent mother. The trust directed the trustee to “expend for the support and maintenance of the [mother] such sums as may be necessary as long as she lives.” The trust beneficiary owned 109 acres of realty and had a life interest in 80 acres; however, she also owed $23,749.74 to the nursing home where she resided. 281 Ark. at 244-45. A petition was filed to sell the trust assets to provide for the beneficiary’s support, but the petition was denied by the trial court, which found the beneficiary must first apply her own income to her support. The Arkansas Supreme Court studied the language of the trust instrument and determined the words “necessary for support” meant the trust was intended to be used to support the beneficiary, regardless of the beneficiary’s own assets. 281 Ark. at 246-47.
The same conclusion was reached in Hamilton Nat. Bank v. Childers, 233 Ga. 427, wherein the testator directed the trustee to pay, at his discretion, the trust proceeds to his wife necessary for her to maintain the same standard of living to which she was accustomed. The Georgia court found it is ordinarily presumed the testator intended the beneficiary to be supported by the trust fund so that the beneficiary’s other income and assets were not to be considered. Thus, the trustee’s discretionary power did not include authorization to consider the beneficiary’s private income. 233 Ga. at 428.
In the present case, we examine the language of the testamentary trust to ascertain Jim Chandley’s intent in establishing the trust. Subsection A of paragraph VI states that the trust estate shall be primarily held and administered for the benefit of Peggy Chandley, for life, with the remainder divided among named remaindermen. Subsection B states the purpose of the trust is to provide for the support, health, and maintenance of Peggy Chandley during her lifetime. The trust provision then directs that the trustee shall pay such portion of the net income from the trust as may be necessary for Peggy’s support, health, and maintenance.
In Schauf v. Thomas, 209 Kan. 592, 498 P.2d 256 (1972), the beneficiary of a testamentary trust for support and maintenance brought an action to recover accumulated income in a trust. The trust directed the trustee to use as much of the principal of the estate as may be necessary to provide for the care, maintenance, and support of the plaintiff. For a time, all the trust income was paid into plaintiffs account; however, after a while the trustee paid most of the trust income into the trust account. The trial court found the will was not ambiguous and, therefore, parol evidence was not necessary. The trial court ruled the testatrix intended the trustee to disburse to the plaintiff the income and principal necessary to provide the plaintiff with the comforts available when the trust was created, and found the trustee could consider funds available to the plaintiff from other sources. 209 Kan. at 597.
Upon review, this court ruled that extrinsic evidence which showed the testatrix’s situation when the will was executed, the nature of the business, the extent of the property, and the relationship with the beneficiaries was admissible to clarify the language of the will, but not to change the. will. 209 Kan. at 599. The court then considered evidence surrounding the establishment of the trust estate and found the testatrix intended to treat all daughters equally, with the remainder interest in certain land to be used for the plaintiffs benefit. 209 Kan. at 600. By placing itself as nearly as possible in the situation of the testatrix when she executed the will, this court determined the testatrix intended the plaintiff to be entitled to all the trust income and as much of the principal as necessary for her support, health, and maintenance. 209 Kan. at 603.
The trial court in the present case stated the will was unambiguous and then construed the testamentary trust provision to give effect to the testator’s intent by relying upon proffered testimony that Jim and Peggy divided their marital assets to prevent each other’s relatives from benefiting. In reaching the conclusion that Peggy’s personal income must be depleted before the trust income could be paid for her support, health, and maintenance costs, the district court stated: “To achieve the aim of the parties manifested by earlier division of the marital estate in presumably equal shares and to assure support for both marital partners I find the disputed language to require payment from the trust for necessary support.” Thus, the trial court considered some of the proffered testimony to ascertain the testator’s intent.
Jim Chandley’s intent can be ascertained solely from the language of the instrument. It is unambiguous, as the trial court determined. Therefore, the trial court should not have used the proffered evidence in construing the trust provisions. We hold the trustee shall pay Peggy support, health, and maintenance for the period of her natural life irrespective of her individual income. The testator obviously intended to provide maintenance for his wife for her life. His provision is limited only by what is necessary. In other words, it cannot be used to provide nonessential items.
Now let us consider the disposition of the undistributed income. Whether it belongs to the estate of the life beneficiary or to the remaindermen depends upon the intention of the testator as manifested in the will or other trust instrument. 51 Am. Jur. 2d, Life Tenants and Remaindermen § 108.
In Calkin v. Wallace, 160 Kan. 760, 165 P.2d 224 (1946), this court considered whether a trust beneficiary’s estate or the surviving trust beneficiaries were entitled to payment of undistributed trust income. We found the trust was created for the sole benefit of the named beneficiaries during their natural lives and did not state any portion of the income should be paid to the beneficiary’s estate. The court concluded the testator did not intend for the income to be paid to the beneficiary’s estate. 160 Kan. at 765.
We reach a similar conclusion in this case. The trust does not state the undistributed income should be paid to Peggy’s estate, but provides specific direction for the sale of all real estate and personal property owned by the trust estate and remaining upon Peggy’s death. In addition, the will explicitly states the testator’s intent to exclude everyone not designated as a trust beneficiary. Therefore, allowing the trust income to pass to Peggy’s estate would violate the intention of Jim’s will. Thus, we reject Peggy’s claim for such a construction of Jim’s trust and will, but hold that the unused trust income shall be accumulated in the trust during Peggy’s lifetime to assure adequate resources for her lifetime maintenance. At her death, the unused income shall be added to the trust principal and distributed to the remaindermen.
II
Peggy next contends Seward County District Court was an improper venue for an action to interpret the testamentary trust. She asserts venue was proper in Stevens County District Court, where the will was probated and the trustee appointed. For support, she relies upon K.S.A. 59-1601, which requires a testamentary trustee to file an inventory and make accountings of trust property in the district court where the will was admitted to probate.
Peggy concedes Stevens and Seward Counties are in the same judicial district with the same district judges. She contends the trustee filed this action in Seward County for his own convenience and without concern for the beneficiaries. Finally, Peggy alleges it is a violation of the probate code to allow the trustee to choose the venue for this type of action.
K.S.A. 1990 Supp. 60-605 provides: “An action against a nonresident of this state . . . other than an action for which venue is otherwise specifically prescribed by law, may be brought in the county in which: (1) The plaintiff resides . . . .”
In this case Peggy is a resident of Dallas, Texas, and the trustee is a resident of Seward County, Kansas. Thus, the trustee determined K.S.A. 1990 Supp. 60-605 applied and filed this action in Seward County. The district court ruled venue was in Seward County. We disagree. Chapter 59 of the Kansas Statutes Annotated establishes the venue of the proceeding to probate a will creating a testamentary trust and where the accountings shall be filed. We hold that the venue for actions to construe such a trust is in the county where the will is filed for probate. We order that this case be transferred to Stevens County District Court and that an order be entered therein in this case consistent with this opinion.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an action brought by the plaintiff, Securities Commissioner of the State of Kansas (Commissioner), seeking equitable relief against the defendants under the provisions of the Kansas Securities Act, K.S.A. 17-1252 et seq. The defendants appeal from an order of the district court granting the plaintiff summary judgment and ordering the disgorgement of profits.
The Commissioner filed a civil suit in the Shawnee County District Court, alleging that some defendants, none of whom is appealing here, organized a “pyramid scheme” and that the appealing defendants materially aided in the operation of the scheme. Under K.S.A. 17-1266, the Commissioner is authorized to bring civil actions seeking equitable relief to enforce the Kansas Securities Act. The petition alleged violations of (1) K.S.A. 17-1255, which prohibits selling unregistered securities, (2) K.S.A. 17-1254, which requires securities salespersons to register, and (3) K.S.A. 17-1253, which prohibits material misstatements of fact in selling securities. The petition sought a mandatory injunction, the disgorgement of profits, the appointment of a receiver, and the production of records to allow an accounting.
After completing discovery, the Commissioner filed a motion for summary judgment on September 1, 1989, alleging violation of K.S.A. 17-1255. Defendants filed their response and motion for summary judgment on October 20, 1989. Defendants’ only response to the statement of facts contained in the Commissioner’s motion was to contest use of the term “actively solicited others,” arguing that this was a legal issue to be resolved by the court.
The trial court adopted the Commissioner’s statement of facts in its entirety, as follows:
“1. During November and December of 1986, an individual named Lynn Ridenhour introduced a multi-level sales program to residents of Shawnee County and surrounding areas. This was done through meetings or seminars held at the Holiday Inn and Ramada Inn in downtown Topeka and at private residences located in and surrounding Shawnee County, Kansas.
“2. The program was called the Top Flight Success System (‘TFSS’). The TFSS program was marketed by Ridenhour on behalf of Products Management Corporation (‘PMC’), an Oklahoma corporation. PMC was organized in 1976 but remained inactive until October of 1986. Prior to 1986, Ernest Mullenax was president and a director of PMC. Mullenax’s wife, Margaret, was an original incorporator of PMC. Subsequent to October, 1986, Ridenhour was vice-president, Mullenax was director, and both were control persons of PMC.
“3. Participants joined the program by paying a $1500 entry fee. Payment of the fee entitled the payor to have his/her name placed on a chart in an entry level position as a ‘passenger.’ The charts consisted of four levels organized in a pyramid fashion. At the base of the pyramid were eight positions called ‘passengers.’ Above this in ascending order were four positions as ‘crewmen,’ two positions as ‘co-pilots,’ and one position as a ‘pilot’ at the apex. The system was metaphorically referred to as an airplane pyramid. Once eight passengers paid their money (‘boarded the airplane’), the pilot cashed out, and the remaining participants split into two new pyramids with everyone advancing one level. Each new airplane in turn recruited eight new passengers, in which event the pyramids again multiplied. Theoretically, the process continued ad infinitum. The longer the TFSS program operated, the need for passengers increased exponentially.
“4. The $1500 entry fee was paid in two checks. One check for $1250 was made payable to TFSS. A second check for $250 was made payable to PMC. The check made payable to TFSS was deposited into a TFSS account, and the money deposited was paid to the pilot of the chart the payor was entering. A pilot on a pyramid which successfully filled all eight passenger positions “cashed out” or exited the system with $10,000. PMC received $250 from every participant when they entered the program.
“5. The offer and sale of participation units in the TFSS system were ostensibly joined with two products: 1) a ‘Top Flight Vacation Card’ entitling the holder to use of a recreational facility (to be developed later by a subsidiary of PMC) for 20 weeks a year for five years, and 2) a set of motivational tapes. The value of these products was insignificant in comparison to the value of the $1500 entry fee. Participants were encouraged and did, in fact, re-enter the TFSS system multiple times. Multiple sets of vacation cards and motivational tapes were of no additional value to the participants. There is no known or demonstrable market for the products outside the TFSS network.
“6. Ridenhour, on behalf of PMC, offered and sold the participation units in TFSS in meetings or seminars as described in paragraph 1. Interested persons and participants were encouraged to bring other prospects to the meetings. Prospects were encouraged to join through expectation of a short-term return of $10,000 on a $1500 investment. As a result, over 250 individuals from the Shawnee County area purchased units of participation, and many of these individuals purchased multiple units.
“7. As the program was originally structured, PMC centrally maintained investor charts and kept track of the placement of participants’ names and their movement on the various charts. As mentioned, payments to the pilots were originally made to PMC d/b/a TFSS, which then made payment to the ‘pilots’ cashing out. As the program proliferated, these arrangements broke down and individual participants kept track of the charts, and TFSS checks were endorsed over for direct payment to the ‘pilots.’
“8. There is some factual dispute as to the degree of involvement of certain defendants in actively promoting the program and soliciting others to join. However, there is no dispute that all named defendants 1) knowingly purchased participation in the TFSS program with the expectation that they would progress through the levels and ultimately ‘cash out,’ earning a significant return, 2) knowingly permitted their names to remain in the system on various charts as they progressed through the levels, 3) ‘cashed out’ as pilots and actually received payments from other participants, and 4) retained such payments.”
The district court made the following conclusions of law:
“1. The units of participation in Top Flight Success System (TFSS) are a security within the definition of K.S.A. 17-1252.
“2. Scienter or intent to defraud is not a necessary element to the establishment of a civil conspiracy under Kansas law.
“3. The uncontroverted facts in this case are sufficient to establish that the defendants entered into a civil conspiracy to aid and abet the unlawful sale of securities and the plaintiffs Motion for Summary Judgment should be sustained.”
To explain its decision, the district court noted that the term “security,” as defined at K.S.A. 17-1252(j), includes “investment contracts,” which this court defines as a relationship involving an investment of money in a common enterprise with profits to come from the efforts of others. Activator Supply Co. v. Wurth, 239 Kan. 610, 615, 722 P.2d 1081 (1986); State ex rel. Owens v. Colby, 231 Kan. 498, 502, 646 P.2d 1071 (1982). The district court stated that it had “little difficulty” in finding that the participation units of TFSS constitute investment contracts and are subject to regulation by the Kansas Securities Act.
The district court rejected defendants’ argument that the Commissioner must establish that they participated in this scheme with scienter or intent to defraud. The district court relied upon this court’s definition of “civil conspiracy.” Citing Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984), and Citizens State Bank v. Gilmore, 226 Kan. 662, Syl. ¶ 7, 603 P.2d 605 (1979), the district court gave the following definition of civil conspiracy: “(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.” The court noted that, while the exact nature and extent of participation in the TFSS scheme is disputed, the undisputed facts established that: (1) Defendants knowingly purchased participation units of TFSS, expecting to progress through the levels and ultimately earn a significant return; (2) defendants permitted their names to remain in the system as they progressed through the levels; (3) defendants received payments from other participants; and (4) defendants retained these payments. The court concluded that these undisputed facts are the elements of a civil conspiracy and establish that defendants aided and abetted the sale of unregistered securities. The district court further held:
“The undisputed facts established that the defendants knowingly associated with a venture which they knew or should have known was unlawful and participated in a way which indicates that they willfully furthered the success of the venture. This constitutes a sufficient showing to entitle the plaintiff to summary judgment concerning the third cause of action for injunctive relief.”
The district court sustained the Commissioner’s motion for summary judgment and overruled defendants’ motion for summary judgment. The court ordered a permanent injunction and disgorgement of profits. Defendants filed a motion to reconsider on April 30, 1990. The district court denied the motion for reconsideration, and this appeal followed the district court’s ruling.
Since the granting of summary judgment is challenged in this appeal, we must read the record in the light most favorable to the party who defended against the motion. McKee v. City of Pleasanton, 242 Kan. 649, 651, 750 P.2d 1007 (1988). Summary judgment is proper where the only questions presented are questions of law. Barber v. Williams, 244 Kan. 318, 319, 767 P.2d 1284 (1989). The record must also reflect that the moving party is entitled to judgment as a matter of law. Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, Syl. ¶ 5, 659 P.2d 444 (1985).
The Commissioner points out that defendants here do not dispute that participation in the airplane pyramid constitutes an investment contract, which is listed in the definitions of security contained in the Act. The district court reached this decision based upon this court’s definition of an investment contract contained in State ex rel. Owens v. Colby, 231 Kan. at 504. The Commissioner describes the sole question to be decided at both the district court and the appellate court levels as “whether the defendants’ conduct in participating in the airplane pyramid and ‘cashing out’ was sufficient to constitute an act or practice in violation of the Act’s proscription against selling unregistered securities.” If it does, then relief granted by the district court under K.S.A. 17-1266 is valid; if it does not, the district court’s decision must be reversed.
Defendants in this case argue that the district court erred in ordering disgorgement because the appealing defendants did not organize the pyramid and did not directly sell a security to anyone in violation of the Kansas Securities Act, K.S.A. 17-1252 et seq. The district court expanded the concept of sale of securities to include individuals who qualify as aiders or abettors or as civil coconspirators. Defendants argue that the district court was wrong in using this expansive interpretation of the Kansas Securities Act and, even if that was proper, that the district court erred in finding that the undisputed facts demonstrated a violation of this expanded concept of a prohibited act. Because nothing in the Act specifically allows the Commissioner to require disgorgement of profits by “passive investors in securities, who themselves committed no wrong,” defendants argue the district court erred in imposing liability here.
Although the Commissioner alleged three possible violations of the Act, his motion for summary judgment was based on only a violation of K.S.A. 17-1255, which provides:
“It is unlawful for any person to offer or sell any security in this state, except securities exempt under K.S.A. 17-1261 or when sold in transactions exempt under K.S.A. 17-1262, unless such security is registered by notification under K.S.A. 17-1256 or by coordination under K.S.A. 17-1257 or by qualification under K.S.A. 17-1258.”
As previously noted, the district court based its decision upon a single theory of entering into a civil conspiracy to aid and abet the unlawful sale of securities. Although this is the Commissioner’s alternative position, he first argues that the defendants were, in fact, sellers of unregistered securities.
In so arguing, the Commissioner attempts to analogize the airplane pyramid to the sale of corporate stock that is regarded as the paradigm of a security. See Daily v. Morgan, 701 F.2d 496, 500 (5th Cir. 1983). The seller of corporate stock, who could be either the original issuer or an original purchaser who wants to resell the stock, uses an intermediary underwriter or broker-dealer to sell the interest in the security to a purchaser. The purchaser transfers money through the underwriter or broker-dealer to the seller. The intermediary broker-dealer reduces the amount received by the seller by the commission received for selling the share.
The Commissioner argues that the position of the copilot is analogous here to the seller of common stock. The status of a participant as a crewman, copilot, and even a pilot remains relatively unchanged until the pilot receives payment of $1,250 from each of the eight passengers. The pilot then exits the program and has no further participation rights in it. An entering passenger purchases a security that he or she continues to hold until cashing out as a pilot. The Commissioner asserts that, when the pilot exits the program, the security is not given away or lost but, instead, is sold. Therefore, in selling this interest to another and receiving consideration for transfer of title to the security, the conduct in the airplane pyramid is the equivalent of the sale of corporate stock. Although admitting that transfer of title is difficult to isolate in the airplane pyramid because no clear indicia of title or ownership exists, the Commissioner argues that, in cashing out and exiting the program, the pilot forfeits the right to further participation in exchange for a payment of cash, which causes the pilot to be a seller.
The Commissioner emphasizes that receipt of proceeds from the other participants in the airplane pyramid is the element that delineates the defendants from other people involved in the scheme. He points out that all of the defendants here are pilots who cashed out at a net profit. The Commissioner argues that straightforward application of the statutory provisions, logic, and policy require a conclusion that such persons are sellers of unregistered securities. We do not agree.
The situation here is distinguishable from a typical sale of corporate stock where an intermediary transfers interest in the security to the purchaser and, in turn, transfers the money from the purchaser back to the seller. The record here contains no evidence that these defendants acted as intermediaries or solicited the purchase. Furthermore, the record does not contain evidence that the copilots or pilots transferred anything to the passengers in return for the payments. The two products transferred to the passengers in these airplane pyramids were apparently done so by the company rather than the pilots and copilots of the pyramid. There is no analogy between usual corporate stock transfers and the situation here. The promoters, not the defendants, are the sellers. Therefore, if the defendants are liable in this action for equitable remedies, it must be as coconspirators or as aiders and abettors.
We first consider if the theory of civil conspiracy can be used to find a “sale” under the Kansas Securities Act, allowing the Commissioner to enforce injunctive and equitable remedies. If so, is the evidence sufficient to support a civil conspiracy theory as to these defendants?
Defendants do not contest that an interest in the airplane pyramid is a security that is not exempt from registration. None of the exemptions of K.S.A. 17-1255 applies. Therefore, any offer or sale of an interest in a pyramid would be an unlawful act under the provisions of K.S.A. 17-1255.
The theories of civil conspiracy and aiding and abetting arise from tort law that imposes vicarious liability for concerted action. Because of the statement of undisputed facts in this case that was the basis for the district court’s decision granting summary judgment on behalf of the Commissioner, this court must determine whether the defendants should be held liable for conduct of others who actively solicited passengers into the airplane pyramid. Thus, the question is to what extent these secondary defendants should be held liable for the tortious conduct committed by the primary tortfeasors, who pursued the underlying tortious activity by actively soliciting participation from the passengers. Neither the district court nor the parties discussed these two theories separately, even though they are distinct. The district court concluded that undisputed facts were sufficient to establish that the defendants entered into a civil conspiracy to aid and abet the unlawful sale of unregistered securities in violation of Kansas law.
As previously noted, Kansas recognizes the five elements of a civil conspiracy to include: “(1) two or more persons; (2) an object to be áccomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.” Stoldt v. City of Toronto, 234 Kan. at 967 (quoting Citizens State Bank v. Gilmore, 226 Kan. 662, Syl. ¶ 7). In Stoldt, this court noted that conspiracy is not actionable without commission of some wrong giving rise to a cause of action independent of the conspiracy. 234 Kan. at 967.
The parties here do not dispute that four of the five essential elements necessary to establish civil conspiracy are met. First, two or more persons were involved in the airplane pyramid. Second, the object of the participation was to progress through the levels of the pyramid. Third, the parties agreed to, or had a “meeting of the minds” about, the object or course of action. And fourth, damages were incurred by the last individuals who joined the pyramid by paying their $1,500 entry fee, but never cashing out. The disputed element is whether an unlawful overt act was committed by these defendants in furtherance of the conspiracy.
Defendants argue that the mere fact that they were involved in a pyramid with a wrongdoer or tortfeasor does not establish liability. Instead, for civil conspiracy to apply, an agreement must exist to engage in wrongful conduct. Defendants assert that, where an agreement is lawful on its face and is intended to achieve a lawful result, one participant’s illegal conduct in furtherance of the business does not taint the entire operation and render all participants liable as coconspirators.
The primary assertion by defendants is that they were mere business associates of a person who unilaterally engaged in illegal conduct. They claim that their innocent and passive participation in the business was not sufficient to impose civil liability.
In Mosley v. Unruh, 150 Kan. 469, 95 P.2d 537 (1939), this court applied the doctrine of civil conspiracy to an unlawful sale of unregistered securities. The statute in effect at that time was similar to the current provisions of 17-1268(a) and (b) because it imposed liability on the sale of an unregistered security and vicarious liability on officers, directors, and agents who participated or aided in the sale. In Mosley, the defendant argued that he could not be liable because he did not negotiate or take part directly in the sale of stock and because he was not a director, officer, or agent of the seller. The court rejected this argument and concluded that, if the evidence established that he aided and assisted in consummating the conspiracy, he became liable as a coconspirator. The court stated: “[U]nder the well-established doctrine that an act of one of the conspirators is an act of all he would become in effect a seller within the meaning of the statute. To give the statute a narrower interpretation would open an easy path to its nullification.” 150 Kan. at 473. The Commissioner argues that this court rejected limiting the term “seller” to an actual, technical seller and, instead, embraced the civil conspiracy theory in interpreting the meaning of the term “seller.”
The Commissioner directs this court to a more recent Oklahoma trial court decision, Cook v. Pepco, Inc., [1987-88 Transfer Binder] Blue Sky L. Rep. (CCH) ¶ 72,694 (Okla. Dist. Ct. 1987), where a credit corporation, Westinghouse, was found liable as a coconspirator with the actual seller of a security for a violation of the Oklahoma Securities Act, Okla. Stat. tit. 71, § 301 (1981), which is the counterpart of K.S.A. 17-1255. Westinghouse refinanced a real estate limited partnership’s obligations. This freed lines of credit with local lenders, enabling the limited partnership to continue selling and refinancing and to further dilute the interest of existing investors.
In Cook, the court began its analysis by examining whether a conspiracy existed between Westinghouse and the limited partnership. The court first concluded that a conspiracy existed between the limited partnership and its various entities and then considered whether Westinghouse joined and agreed to participate in this already existing conspiracy. The court, which ex amined the analysis of a conspiracy employed in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), emphasized that a conspirator can be liable, even though he did not plan or know about the particular overt act causing the injury, if the purpose of the act was to advance the overall objective of the conspiracy. Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,898. After this reference to Halberstam, the Oklahoma court noted the decision by this court in Mosley, describing it as adding another very important element in the analysis of whether a conspiracy exists. The Oklahoma court was referring in particular to the conclusion in Mosley that, in addition to activities that occurred before the overt act, facts and circumstances occurring after the act complained of could be shown to establish the existence of a conspiracy. Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,898.
Having concluded that Westinghouse agreed to join and participate in an ongoing conspiracy to sell unregistered, nonexempt securities, the Cook court next considered whether it was proper to consider a conspiracy theory in determining the definition of “seller” in the Oklahoma Securities Act, Okla. Stat. tit. 71 § 408(a)(1) (1981). The Oklahoma Securities Act did not define the term “seller.” The court reviewed decisions by federal courts interpreting “seller” under § 12 of the Federal Securities Act of 1933, 15 U.S.C. Ill (1986), upon which the Oklahoma statute was modeled. The court then turned to Mosley, again describing it as “[p]robably the most important of the state securities cases to recognize and apply the conspiracy concept to defining a ‘seller.’ ” Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,900. The Oklahoma court concluded that “seller” should be defined to include conspirators, pointing out that conspirator was included within the definition of seller in the better-reasoned authorities on both the state and federal levels since the adoption of the Uniform Act. Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,902.
In Halberstam, 705 F.2d 472, the court was required to determine whether Linda Hamilton was civilly liable as a joint venturer and coconspirator for the killing of Halberstam by Welch. Halberstam was killed while Welch burglarized his home. For years Welch was a burglar in the Washington, D.C. area. He and Hamilton lived off the proceeds, which were quite substantial. Hamilton was not directly involved in the burglaries and claimed that she did not know where Welch went on his evening forays. She did know that Welch had installed a smelting furnace in the garage of their $1,000,000 home to melt gold and silver into bars. She typed transmittal letters for the sale of the ingots to refiners in other states, kept inventories of the antiques sold, and did other general secretarial work for Welch’s “business.” The buyers of Welch’s goods made their checks payable to Hamilton and she deposited them in her bank accounts. 705 F.2d at 475. The trial court found that Hamilton knew full well the purpose of Welch’s evening forays and the means he used to acquire their wealth, that she was a willing partner in their criminal activities, and that various acts performed by her were done knowingly to assist Welch in his illicit trade. The district court found her liable for the wrongful death and survivorship damages of Halberstam both on the theory of civil conspiracy and because her assistance was substantial enough to justify civil liability on an aider and abettor theory.
Concerning civil conspiracy, the court noted that, under District of Columbia precedent, liability for civil conspiracy depends on performance of some underlying tortious act. Therefore, conspiracy is not independently actionable but, instead, is a means for establishing vicarious liability for the underlying tort. 705 F.2d at 479. After reviewing decisions, from other jurisdictions, the court noted that, where two or more persons jointly commit an on-site burglary, a court would infer a prior agreement to do so, and a violent act occurring within the reasonable scope of such an agreement, particularly when both persons are armed, would allow the imposition of vicarious liability. 705 F.2d at 480. After reviewing additional cases from other jurisdictions, the court noted that the circumstances of each case dictate what evidence may be useful in inferring an agreement. In summary, the court noted that relevant factors in inferring an agreement in a civil conspiracy action included the relationships between the actors and between the actions, such as the proximity in time and place of the acts, and the duration* of the actors’ joint activity. 705 F.2d at 481. The court noted that once a conspiracy is formed, all its members are liable for injuries caused by acts pursuant to or in furtherance of the conspiracy. It is not necessary for a conspirator to participate actively in or benefit from the wrongful action to be found liable. In fact, it is not necessary for a conspirator to have planned or to have known about the injurious action as long as the purpose of the tortious act was to advance the overall object of the conspiracy. 705 F.2d at 481.
The court concluded that the trial court was correct in inferring an agreement between Welch and Hamilton based upon the relationship between the parties’ acts, the time and place of their execution, and the duration of the joint activity. 705 F.2d at 486. The court noted that, although Hamilton and Welch did not commit the burglaries together, their activities were symbiotic; they were pursuing the same object by different but related means, and their home became the storage and processing base for Welch’s criminal activities. 705 F.2d at 486-87. Due to the long-running nature of this five-year scheme, inference of agreement by Hamilton’s tacit accord was enough. Furthermore, noting that Hamilton’s extensive participation in the profits of the illegal venture might not, by itself, prove an agreement, her unquestioning accession of wealth was consistent with such an agreement. The court upheld the district court’s finding that Halberstam’s death was an overt act in furtherance of the agreement, and Hamilton could be found liable as a coconspirator. 705 F.2d at 487. Thus, Hamilton’s agreement to participate in an unlawful course of action, in which Welch’s murder of Halberstam was a reasonably foreseeable consequence of the scheme, was a basis for imposing tort liability on Hamilton under the law of civil conspiracy. 705 F.2d at 487.
Defendants here most strenuously argue that use of the theories of conspiracy or aiding and abetting would be contrary to the recent decision of the United States Supreme Court in Pinter v. Dahl, 486 U.S. 622, 100 L. Ed. 2d 658, 108 S. Ct. 2063 (1988). In Pinter, the unregistered securities involved were fractional undivided interests in oil and gas leases. Pinter was the oil and gas producer. Dahl was a California real estate broker, who invested $310,000 in the venture and recruited several contacts to invest about $7,500 each. Dahl helped his contacts complete a subscription-agreement form that Pinter had prepared, which stated that the venture interests being sold were not registered under the Securities Act of 1933. When the venture failed, Dahl and his contacts sued Pinter for rescission of investment agree ments for the sale of unregistered securities under § 12(1) of the Securities Act of 1933 (15 U.S.C. § 77i[l]). Pinter sought to realign Dahl as a third-party defendant.
An issue addressed by the Court was whether Dahl could be deemed a “seller” for purposes of liability under § 12(1). This provision provides, in pertinent part: “Any person who . . . offers or sells a security [in violation of the registration requirement of the Securities Act] shall be liable to the person purchasing such security from him.” 15 U.S.C. § 771. The section defines the class of defendants who may be subject to liability as those who offer or sell unregistered securities but noted that the Act did not delineate who may be regarded as a statutory seller. The language of § 12(1) contemplates a buyer-seller relationship like traditional contractual privity at the very least, but, in this case, Dahl was not a seller in the conventional sense and, therefore, could be liable only if § 12(1) liability extended to persons other than the person who passes title. 486 U.S. at 642.
Section 2(3) of the Securities Act of 1933 defines “sale” or “sell” to include “ ‘every contract of sale or disposition of a security or interest in a security, for value.’ ” The terms “offer to sell,” “offer for sale,” or “offer” include “ ‘every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value.’ ” 486 U.S. at 643 (quoting 15 U.S.C. § 77b[3]). These definitions are virtually identical to the definitions of these terms contained in the Kansas Securities Act. The Court concluded that Congress intended § 12(1) liability to extend to those persons who solicit securities purchases, but did not intend to impose rescission based on strict liability of a person who urges a purchase when motivation is solely to benefit the buyer. 486 U.S. at 647.
The Court rejected Pinter’s argument that broad, remedial goals of the Securities Act justified use of the substantial-factor test. It concluded that the substantial-factor test reaches participants in sales transactions who do not even arguably fit within the definition set out in § 2(3) and would add a gloss to the operative language of § 12(1) that is quite different from its commonly accepted meaning. 486 U.S. at 653-54. The Court remanded the case to the district court for further findings to determine whether Dahl urged the other purchasers in order to further some financial interest of his own or of Pinter.
The Commissioner counters that defendants have falsely characterized or misperceived the basis of his cause of action as based upon purchasing or investing in securities. Further, the Commissioner argues that these defendants are not innocent purchasers but, instead, knowingly participated in an enterprise to sell participation rights, i.e., securities, to an even greater number of new investors and accepted proceeds from these sales. The act of selling, not purchasing, subjected defendants to legal action.
The Commissioner further argues that Pinter holds that a gratuitous offer or solicitation by a nonseller, motivated only by the desire to benefit the buyer and not by any desire to serve the offerees’ financial or pecuniary interests, does not subject that person to liability as a “seller” under § 12(1). Although these defendants may not have solicited purchasers, they relied on others to solicit on their behalf. They were directly involved in an enterprise that sold securities, and they were motivated by their own financial interests. The purpose of the pyramid was to pay $1,500, allow PMC to recruit new members, and cash out with $10,000. Thus, the Commissioner concludes that Pinter does not preclude or conflict with the district court’s finding here that the defendants engaged in acts or practices violating the Act and should be held liable for equitable remedies.
The Commissioner points out that he is attempting to enforce an equitable remedy of an injunction and disgorgement of profits. His cause of action arises under K.S.A. 17-1266, which allows the Commissioner to bring an action “[w]henever it appears to the commissioner that any person has engaged or is about to engage in any act or practice constituting a violation of any provisions of this act.” The Commissioner urges a broader interpretation of the statute when merely equitable remedies are sought to be enforced. The unlawful conduct here is based upon K.S.A. 17-1255, which makes it unlawful for a person “to offer or sell any security in this state” that is not exempt or registered. The statute uses the same language as that being interpreted in Pinter to preclude a finding of liability under the theories of the substantial-factor test and aiding and abetting.
The United States Supreme Court criticizes the substantial-factor test for not furthering the remedial purposes of § 12(1) because it imposes strict liability rescission on those only tangentially involved with the sale. Pinter, 486 U.S. at 650-53. The key distinction is the language in § 12(1), which imposes liability on behalf of the person “purchasing” the security from the seller. That language does not appear in K.S.A. 17-1255. The United States Supreme Court in Pinter recognizes that the second clause of § 12(1) narrows the field of potential sellers by requiring the defendant to be the one from whom the plaintiff purchased the security directly. In contrast, K.S.A. 17-1255 is not an enforcement statute but, instead, merely defines the unlawful act. To determine how to penalize the unlawful act, other provisions must be considered, such as K.S.A. 17-1266, to enforce the equitable remedies sought; K.S.A. 1990 Supp. 17-1267, to obtain criminal penalties; and K.S.A. 17-1268, to seek civil liability. Therefore, although the same terms are used in the federal and state statutes to define “sale” or “sell,” the basic framework in which the statutes are formulated shows a different approach should be employed.
This court noted in State v. Hodge, 204 Kan. 98, 101, 460 P.2d 596 (1969), that the legislative intent and purpose for enacting the Kansas Securities Act was to place the traffic of promoting and dealing in speculative securities under rigid governmental regulation and control to protect investors and to prevent, to the extent possible, the sale of fraudulent or worthless speculative securities. In State ex rel. Owens v. Colby, 231 Kan. 498, 501, 646 P.2d 1071 (1982), this court noted that the Kansas Securities Act was patterned after the Uniform Securities Act that, in turn, copied the Federal Securities Act of 1933 (15 U.S.C. §§ 77a et seq. [1975]). Because of the web of Uniform Acts throughout the country and their common history and theories in regulating securities, the Kansas Act should be developed by court decisions that are firmly grounded on prior state decisions and upon prior decisions of the federal courts and the courts of our sister states. Because securities acts are remedial legislation, they must be liberally construed. Hodge, 204 Kan. at 103. Cf. Tcherepnin v. Knight, 389 U.S. 332, 336, 19 L. Ed. 2d 564, 88 S. Ct. 548 (1967).
Here, the district court employed the theory of civil conspiracy in defining the seller of a security. This follows the early decision in Mosley, in which this court adopted the use of the conspiracy theory to establish liability as a seller within the meaning of the statute. Even though Pinter clearly rejects the use of this theory, we reaffirm its use in defining the seller of a security under the Kansas Securities Act.
Having concluded that the district court did not err in using the theory of civil conspiracy to define the seller of a security, the question arises whether the evidence here supported such a theory to find these defendants liable. Defendants argue that, even if the district court did not err in using the conspiracy theory, the evidence here was insufficient to establish that these defendants committed an overt act in furtherance of the conspiracy.
The district court concluded that these defendants knowingly joined in and associated with a venture that they knew or should have known was unlawful. Their participation indicated a willful furtherance of the success of the venture. The specific facts noted by the district court regarding this conclusion include (1) their knowing purchase of a unit in the pyramid with the expectation to progress and earn a significant return and (2) allowing their names to remain on charts while progressing through the levels of the pyramid until they (3) received and (4) retained money from their participation.
Little evidence supports the finding of an overt act prior to purchase into the program by new passengers. Yet, as was made clear in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), and Mosley v. Unruh, 150 Kan. 469, 95 P.2d 537 (1939), a conspirator can be liable based upon facts and circumstances that occur subsequent to the overt act causing the injury. Thus, receipt of the proceeds paid by new passengers when these defendants cashed out as pilots can be the basis for finding that these defendants committed an overt unlawful act in furtherance of the conspiracy. If the fifth element needed to establish a conspiracy is met, then there is sufficient evidence to find that these defendants conspired to sell an interest in this pyramid scheme, as the term “sell” is defined by K.S.A. 17-1252(h)(l).
Defendants do not contest the district court’s finding that these interests in the pyramids are investment contracts. Nor do defendants contest the district court’s finding that these investment contracts are unregistered securities. Therefore, defendants’ conduct of selling unregistered securities is unlawful and a violation of 17-1255. The Commissioner has the power to enjoin such unlawful conduct and seek equitable relief under 17-1266. We conclude that the district court did not err in concluding that defendants can be liable under 17-1266 for injunctive and equitable relief based upon their involvement as conspirators in the operation of the airplane pyramids.
We next consider if the theory of aiding and abetting can be the basis for finding a “sale” under the Kansas Securities Act and, if so, whether the evidence was sufficient to support use of this theory.
Like civil conspiracy, aiding and abetting is a theory used to impose vicarious liability for concerted action. The section of the Restatement (Second) of Torts dealing with actions of persons in concert lists three subsections, the first two corresponding, respectively, to the theories of civil conspiracy and aiding and abetting:
“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
“(a) does a tortious act in concert with the other or pursuant to a common design with him [civil conspiracy], or
“(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself [aiding and abetting], or
“(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” Restatement (Second) of Torts § 876 (1977).
The court in Halberstam noted that aiding and abetting includes the following elements:
“(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation.” 705 F.2d at 477.
The court in Halberstam emphasized the distinction between civil conspiracy and aiding and abetting, noting that, frequently, many courts and commentators have blurred them. The court noted that the distinctions can make a difference. A civil conspiracy involves an agreement to participate in a wrongful activity, while aiding and abetting focuses on whether a defendant knowingly gave “substantial assistance” to someone who performed wrongful conduct. Thus, under an aiding and abetting theory, the focus is not upon whether the defendant agreed to join wrongful conduct. 705 F.2d at 478.
A qualitative difference exists between proving an agreement to participate in a tortious line of conduct and proving knowing action that substantially aids tortious conduct. In some cases, an agreement cannot reasonably be inferred from substantial assistance or encouragement. In other cases, a conspiracy is difficult to establish if the primary wrong is negligence, but a secondary defendant could substantially aid the negligent conduct. The theory of liability affects who is liable for what, since an aider and abettor is liable for damages caused by the main perpetrator but, absent a finding of conspiracy, the perpetrator is not liable for damages caused by the aider and abettor. 705 F.2d at 478.
In reviewing the case law using the aiding and abetting theory of liability, the court in Halberstam noted that many variables enter into the equation of determining how much aid is “substantial aid.” Generally, the cases support using the following five factors identified in the Restatement to determine whether the evidence establishes substantial aid: “[T]he nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind.” Restatement (Second) of Torts § 876, Comment d, p. 317. See Halberstam, 705 F.2d at 483-84. The court in Halberstam added a sixth factor: duration of the assistance provided. The court noted that the length of time an alleged aider and abettor has been involved with the tortfeasor affects the quality and extent of their relationship and probably influences the amount of aid provided. The court concluded that it also provided evidence of the defendant’s state of mind. 705 F.2d at 484.
The court in Halberstam specifically noted that the concept of tortious aiding and abetting has frequently been used in evaluating secondary liability for securities law violations, principally in the area of fraud. The court concluded that the securities cases support the distinctions drawn between aiding and abetting and civil conspiracy.
Defendants in the present case argue that an aider and abettor must know of a securities violation committed by the principal offender and must substantially assist in the perpetration of that wrong.
The Commissioner counters that nothing in the statute requires imposing a scienter standard in determining whether an individual aided or abetted in the sale of an unregistered security. Defendants were all direct participants in the sales process and aided and abetted the sales by directly receiving payments from new participants who entered the program when the defendants cashed out. Thus, all these defendants have unjustly enriched themselves at the expense of others through the acceptance of proceeds from the unlawful sale of securities. Even though defendants did not actively solicit or recruit, they relied upon others to do this and accepted the benefits of these unlawful acts. The Commissioner argues that it is ironic that defendants could receive and retain sale proceeds but bear no responsibility or accountability for the unlawfulness of the sales.
The Commissioner points out that, in Robertson v. White, 635 F. Supp. 851, 866 (W.D. Ark. 1986), which interprets the Arkansas version of K.S.A. 17-1268(b) imposing liability under a private cause of action, the court refused to require willfulness to be established. Strict liability was imposed on directors subject only to a showing that they were unaware that the corporation was engaged in a securities transaction or believed that the securities being sold were properly registered or exempt.
Finally, the Commissioner argues that scienter is not even necessary for criminal prosecution of a principal violator for a willful violation of the registration provision under K.S.A. 1990 Supp. 17-1267. In support, the Commissioner cites State v. Hodge, 204 Kan. at 107, and State v. Puckett, 6 Kan. App. 2d 688, 698, 634 P.2d 144 (1981), aff'd 230 Kan. 596, 640 P.2d 1198 (1982). In Hodge, this court noted that “no specific intent is necessary to constitute an offense where one violates the Securities Act except the intent to do the act announced by the statute.” 204 Kan. at 107. Thus, “all that is required is proof that the person acted intentionally in the sense that he was aware of what he was doing.” 204 Kan. at 108.
The availability of the aiding and abetting theory was also discussed in Cook v. Pepco, Inc., [1987-88 Transfer Binder] Blue Sky L. Rep. (CCH) ¶ 72,694 (Okla. Dist. Ct. 1987). There, plaintiffs asked the court to grant summary judgment on the grounds that Westinghouse was liable under § 408(b) of the Oklahoma Securities Act, as a person who materially participated or aided in the sale of securities in violation of § 301. The court noted that the statute did not provide guidance about what constitutes material participation or aiding, and that the state and federal courts had diverse opinions on the point. Federal courts have recognized that a person could be a “seller” liable for participating in a sale, even though the person did not have direct contact with the purchaser. Instead, the injury to the plaintiff had to flow directly and proximately from the actions of the person sought to be held liable. This was the “but for” test used in torts. Later, federal courts, believing this proximate cause or “but for” test was too broad, modified it to require that the activity of the person to be held liable was “ ‘a substantial factor in causing the transaction to take place.’ ” Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,902. Meanwhile, the state courts approached the issue on an ad hoc basis and were quite liberal in finding someone to be a participant. The Cook court concluded that the state courts appear to be gravitating to the “but for” or proximate cause test used originally at the federal level and are specifically rejecting the “substantial factor” test. Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,903.
In Cook, Westinghouse argued that it could not be liable for merely providing normal investment and financial services that any other bank or financial institution would provide. While the court recognized the correctness of this principle generally, it concluded that immunity from liability would not continue when the bank or financial institution departed from normal banking or lending functions and actively participated in the affairs of the issuer and in the securities sales themselves. Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,903. The court concluded that Westinghouse was much more involved than simply providing financing, and the broader interpretation of material participation contained in the “but for” or proximate cause test better served the legislative purposes behind the Oklahoma Securities Act. It rejected use of the “substantial factor” test. The court concluded that the undisputed evidence made clear that Westinghouse materially aided in the sales to the plaintiffs, regardless of whether the court employed the broader “but for” test or the more narrow federal “substantial factor” test. Cook, Blue Sky L. Rep. ¶ 72,694 at p. 72,904.
As previously noted, Pinter v. Dahl, 486 U.S. 622, 650-53, 100 L. Ed. 2d 658, 108 S. Ct. 2063 (1988), clearly rejects the use of the aiding and abetting theory in interpreting § 12(1) and (2) of the Federal Securities Act of 1933. However, that interpretation does not control in the interpretation of the Kansas Act. We find that the aiding and abetting theory can be used to find an individual liable for the sale of an unregistered security under the Kansas Securities Act. We adopt the “but for” or proximate cause test. Thus, for an individual to be liable for the injury, all that must be established is that the injury flowed directly and proximately from the actions of the person sought to be held liable. We adopt the five factors identified in the Restatement, as well as the sixth factor identified by the Halberstam court to determine if the aid is sufficient to establish liability under an aiding and abetting theory. 705 F.2d at 483-84. Applying these six factors in the present case, we first consider the nature of the act involved or encouraged. Here, the passengers were encouraged to buy into the airplane pyramid by paying $1,500. The exchange of this money for an unregistered security was the principal act that caused the violation of the Kansas Securities Act.
The second factor is the amount and kind of assistance given by these defendants. Based upon the facts the parties agreed to below, it must be assumed for purposes of this decision that the defendants did not assist in taking the money from the passengers. The third factor is defendants’ absence or presence at the time of the tort. Again, because of the facts agreed to by the parties below, it must be assumed that these defendants were absent at the time the passengers expended their money.
The fourth factor is the relationship of the defendants to the tortious actor. The tortious actor or actors were those who recruited and solicited passengers into the pyramid scheme. Al though, presumably, some of these defendants were closely related to the tortious actor, once again those facts are not included in the record agreed to below. Therefore, this factor cannot be considered significant in this case. Fifth, the state of mind of each defendant must be considered. The defendants here sought to obtain substantial profits from the investment of their money. The Commissioner described the defendants’ involvement in this pyramid as based upon greed. This factor would appear to weigh heavily against the defendants.
Finally, the sixth factor added by Halherstam requires a consideration of the duration of assistance provided. The airplane pyramid began with a multi-level sales program in November and December of 1986. The petition here was filed September 1, 1988. The record does not establish when each of the defendants involved in this case became involved in the pyramid scheme. Recause the extent of the pyramid scheme was less than two years, this does not appear to be a heavy factor to be considered in this case.
We conclude that the evidence does not support a finding of liability based upon an aiding and abetting theory.
Defendants next argue that the limited private cause of action under 17-1268 should be employed in determining liability under 17-1266. According to defendants, the grounds for civil liability under 17-1268 contains limited doctrines of conspiracy and aiding and abetting. A private cause of action is created in 17-1268(a) by the purchase of a security from one who “offers or sells” a security in violation of the registration requirements of 17-1254 and -1255. To impose liability, it must be shown that the seller used an untrue statement of material fact or omitted a material fact, and that the seller did not know or, in the exercise of reasonable care, could not have known of the untrue statement or omission. One who is successful under 17-1268(a) may recover consideration paid for the security, plus 15% interest per annum.
Under K.S.A. 17-1268(b), joint and several liability is imposed upon (1) persons who control a seller liable under subsection (a); (2) partners, officers, and directors of a seller; (3) an employee who materially aids the seller; and (4) a broker-dealer or agent who materially aids the sale. Defendants argue that this is the basis for civil liability under the Act and that the Commissioner should not be allowed to expand this liability by creating an independent basis for liability when the Commissioner files an action under 17-1266. We do not agree.
K.S.A. 17-1268, by its express terms, defines the category of liability for a private cause of action by a purchaser. The limitations of 17-1268(a) and (b), however, do not apply in defining liability under 17-1266 because they have different goals. The purpose of 17-1268 is to provide civil liability to allow recovery by the purchaser, while 17-1266 is a public cause of action for injury and equitable relief to require accountability by the seller.
An action under 17-1266 is a public cause of action to enforce the Act. Only injunctive relief and its ancillary remedy of disgorgement of profits are sought. The profits sought to be disgorged are net profits, which allow the defendants to recoup the original $1,500 they invested in the airplane pyramid before returning the excess profits to the commission. The Commissioner disagrees with defendants’ characterization of their position as innocent, passive investors who have committed no wrong because they are not liable under 17-1268. As the Commissioner points out, defendants extracted substantial profits taken directly from the pockets of other participants, who sustained substantial losses. The Commissioner further points out that the due diligence defense available under 17-1268(a) against a claim for fraud, and available under 17-1268(b) for vicarious liability, does not apply apart from that statute. Therefore, the due diligence defense is not available against the government cause of action under 17-1266; in any event, it was not asserted by these defendants before the district court.
Defendants’ argument that the same liability should be imposed under 17-1268 and -1266 is not supported by the language of the statutes. Clearly, the legislature intended to give the Commissioner the ability to seek injunctive and other equitable relief without imposing an increased liability, not only for the profits secured through the involvement in the securities, but also all the damages incurred by the purchaser, interest, and attorney fees.
Finally, defendants assert that the district court’s interpretation of the Kansas Securities Act could not have been anticipated and, therefore, the statute is so vague that persons of common intel ligence must guess at the statute’s meaning and application. Therefore, the statute is unconstitutionally vague and violates due process guaranteed by the United States Constitution. A statute cannot prohibit conduct in terms so vague that a person of common intelligence must guess at the statute’s meaning and application. Capital Services, Inc. v. Dahlinger Pontiac-Cadillac, Inc., 232 Kan. 419, 422, 657 P.2d 36 (1983); Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, Syl. ¶ 7, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983). Defendants assert that they had no idea they were exposed to “civil and criminal prosecution merely because they invested money in a profit making enterprise,” and that no common-sense distinction exists between investors who receive a return on investments and investors who do not. Therefore, no person of ordinary intelligence could understand that his or her investment activities could result in criminal prosecution based solely upon the failure of the seller to register the securities, contrary to the assumption and good faith understanding of the buyer.
In City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990), this court recognized that, to determine whether an ordinance is void, two inquiries are appropriate: “ ‘(1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.’ ” (Quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983].) The void-for-vagueness analysis is based upon a due process requirement that a criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. 246 Kan. at 258.
We first note that K.S.A. 17-1266 does not impose criminal penalties. Those are set forth at K.S.A. 1990 Supp. 17-1267. The statute here imposes the civil penalties of disgorgement of profits and injunctive relief. The statute, when read in its entirety with other statutes, clearly establishes the conduct that is prohibited. The defendants’ prediction that they will be liable for criminal penalties as well as the liability of all persons who lost money in the pyramid schemes is not warranted. The criminal penalties of K.S.A. 1990 Supp. 17-1267 require a showing of willful vio lation. The imposition of civil penalties pursuant to K.S.A. 17-1268 requires a showing that the person who offered or sold the security made an untrue statement of material fact or an omission to state a material fact necessary to make the statements made in the light of the circumstances under which they are made not misleading.
In Guardian Title Co. v. Bell, 248 Kan. 146, 150, 805 P.2d 33 (1991), we recognized that most challenges for vagueness are against criminal statutes, and a different test for vagueness is applied to noncriminal statutes. We said:
“The same standard is not applied, however, when the statute regulates a business as is applied when the statute is criminal or is regulating a constitutionally protected interest such as free speech. In In re Brooks, this court said, ‘In determining constitutional challenges for vagueness, greater leeway is afforded statutes regulating business than those proscribing criminal conduct.’ In re Brooks, 228 Kan. 541, 544, 618 P.2d 814 (1980) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 [1972]).
“A common-sense determination of fairness is the standard for determining whether a statute regulating business is unconstitutional for vagueness, i.e., can an ordinary person exercising common sense understand and comply with the statute? If so, the statute is constitutional. Harris v. McRae, 448 U.S. 297, 311 n.17, 65 L. Ed. 2d 784, 100 S. Ct. 2671, reh. denied 448 U.S. 917 (1980).” 248 Kan. at 150.
In Guardian Title, we also stated the general rule applicable to a constitutional challenge of a statute:
“The constitutionality of a statute is presumed and all doubts must be resolved in favor of its validity. Before the statute may be struck down, it must clearly appear the statute violates the constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P.2d 630 (1980).” 248 Kan. at 149.
We do not find the statutory provisions at issue here to be unconstitutionally vague.
In conclusion, we find that the district court did not commit error in utilizing the theories of aiding and abetting and conspiracy to interpret the term “seller” under the Kansas Securities Act. We further find that sufficient evidence existed in the record to support that these defendants conspired in the unlawful sale of securities and should be held liable for injunctive relief and disgorgement of profits. We do not find the evidence sufficient to establish that these defendants aided and abetted in the unlawful sale of the securities. Finally, we find that the language of K.S.A. 17-1255 and 17-1266 is not void for vagueness. We therefore conclude that the district court properly granted the Commissioner’s motion for summary judgment.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Abbott, J.:
This appeal arises from proceedings involving the estates of Macy Virgil Beason and Caroline Hearting Beason which were consolidated with a quiet title action. The trial court quieted title to the disputed land in favor of Albert and Eunice North, set aside a deed, and determined that a codicil to Caroline Hearting Beason’s will would not be admitted to probate.
In order to understand the issues, it is necessary to give background information and the procedural history of what has occurred in the case. Readers are informed that this dispute is over four sections of land in Trego County owned by Macy and Caroline Beason, which will be referred to in this opinion as Hearting-Beason II (HB II). The dispute is between the North family (who managed the Beasons’ farming operation) and nieces and nephews of the Beasons. The original farm and ranch, Hearting-Beason I (HB I), and other assets devised to the Kansas State University Foundation are not in dispute.
Macy Beason and Caroline Hearting Beason were husband and wife. They had no children. They lived in Trego County and, starting with a section inherited from Caroline’s parents, they developed a large farm and ranch operation along with other assets. During the last 25 to 30 years of their lives, they had no close family relationships. Since 1981, the ranching on HB I had been done by the North family. The Beasons were pleased with the way that the Norths farmed the land. In July 1987, the Beasons purchased four additional sections of land (HB II) for the purpose of eventually giving it to Albert and Eunice North.
After several revisions, Macy and Caroline executed a will on August 15, 1987, entitled “Joint and Mutual Will,” giving HB II to the Norths and giving HB I and all other property to The Kansas State University Foundation, with a life estate reserved for the survivor.
Within half an hour of executing the will, Macy executed a deed to HB II, giving it to himself and Caroline as joint tenants with right of survivorship and not as tenants in common. This deed was not introduced into evidence at any of the proceedings, although it was testified to by one of the drafters of the will and deed. Macy had purchased HB II at public auction and Caroline’s name had not been placed on the deed at that time.
A codicil to the will was executed on February 25, 1988, which provided that in the event the Norths predeceased the Beasons, HB II would go to the Norths’ sons, Arliyn and Daryl.
Macy Virgil Beason died on August 28, 1988, and shortly thereafter his estate proceedings were opened. At this point, Caroline was 91 and in a hospital in Ransom. Steve Beason and C. Wade Beason (nephews of Macy) removed Caroline from the hospital in Ransom and took her to a hospital in Hays, and then to a series of other hospitals, ending in Kansas City, Missouri. While in Hays, Caroline filed for a voluntary conservatorship, attempting to have Muriel Faith Cook (one of Macy’s nieces) appointed as conservator.
Three of Macy’s nephews and nieces (Steve Beason, Nixie Koelling, and Muriel Faith Cook) filed an objection to the appointment of the Norths as executors of Macy’s estate. At the hearing on the admission of the will to probate on October 7, 1988, these three appeared personally and through an attorney. (Another nephew appeared personally.) The court admitted the will and codicil to probate and made a minor correction to a land description.
The next day, October 8, 1988, Caroline executed a deed for all four sections of HB II to “all nieces and nephews of Mace V. Beason who survive him & all nieces and nephews who survive grantor at the time of her death in equal, undivided shares (per capita),” and granted herself a life estate. Several days later, Caroline executed a power of attorney in favor of C. Wade Beason and Steve Beason. The deed was not recorded until January 10, 1989.
Shortly after this, in an order with the same case number as Macy’s probate case, the court executed a restraining order against Macy’s nieces and nephews prohibiting them from exercising custody or control over Caroline and directing that she be returned to the hospital in Ransom. After several days of legal maneuvers, a guardian ad litem was appointed for Caroline and an order was issued directing the return of Caroline to the Ransom Hospital.
Also at this point, Caroline executed a codicil to her will naming various nieces and nephews as executors and changing paragraph 3, which originally gave four sections of HB II to the Norths, to leave it to all her nieces and nephews who survived her and to the nieces and nephews of Macy who survived him.
Macy’s will was admitted to probate on November 1, 1988. No appeal was taken.
The co-executors of Macy’s estate then moved to dismiss from Macy’s estate all of Macy’s various nieces and nephews who were represented (we cannot tell from the record who they all are), arguing that they were not heirs, devisees, or legatees under K.S.A. 59-2224. At a hearing on the motion, an attorney, Randall Weller, informed the court that he was representing all of Macy’s nieces and nephews. Weller admitted that the nieces and nephews were not heirs, legatees, or devisees, and argued they had standing only because there was a question whether the wills were contractual as well as joint and mutual, and that if Caroline were to die, then rulings in Macy’s case would be relevant.
The trial court dismissed all of Macy’s nephews and nieces on July 20, 1989, finding that they were not heirs, devisees, or legatees and had no standing. No appeal was taken. (See K.S.A. 1990 Supp. 59-2401[15]), which permits appeals from determinations that a person is or is not an heir, devisee, or legatee, although normally this determination would be made as a part of a K.S.A. 1990 Supp. 59-2249 final decree.)
At the hearing on construction of the will, Caroline was represented by her guardian ad litem. The court found the wills (and codicil of February 25) were contractual in nature, giving the survivor only a life estate in the property passing under the will. The court held that the Beasons did execute a deed on HB II at the same time as they executed the will, but that they did not intend to alter the will. The court also noted that the February 25, 1988, codicil had the effect of republishing the will and “has the legal effect of severing the joint tenancy and terminating the survivorship,” citing In re Estate of Rooney, 181 Kan. 1029, 317 P.2d 416 (1957), and Berry v. Berry, 168 Kan. 253, 212 P.2d 283 (1949).
The trial court’s ruling was signed by the court on September 18, 1989, and filed September 19, 1989. On September 20, 1989, Caroline died, and her estate was soon opened.
A quiet title suit was filed by the Norths personally and as executors of the estate. The petition was filed under the caption of both Beasons’ estates and given the same case numbers. (The trial court granted a motion to consolidate the estate cases for the purposes of the quiet title action.) The petition lists all 34 of Macy’s nephews and nieces as parties to be served. The Norths alleged that by virtue of a certain deed (the deed executed by Caroline giving HB II to Macy’s and her nieces and nephews), the defendants claimed an interest in the property. The Norths alleged that the trial court’s decision in Macy’s estate was res judicata and that when Caroline executed the deed she was incompetent and under undue influence of the defendants.
Six nieces and nephews answered the quiet title suit. We believe five of them were parties to the July 20, 1989, hearing where the trial court determined they were not heirs, devisees, or legatees of Macy and struck their pleadings and barred them from further participation in the lawsuit.
The pleadings are inconsistent in the use of names. But, we believe Steve Beason (who appears to be sometimes referred to as Steve Cass Beason), Nixie Koelling (sometimes referred to as Nixie Marie Beason Koelling), Muriel Faith Cook (sometimes referred to as Muriel Faythe Beason Cook and Muriel Cook), C. Wade Beason (sometimes referred to as Carroll Lee [Wade] Beason or Wade Beason have all made appearances in Macy’s estate. Virginia Hunt (sometimes referred to as Doris Virginia Beason Hunt and Doris Hunt) is listed on a motion for a continuance concerning the motion to bar the nieces and nephews, but her name does not appear on the journal entry showing appearances. Helen Url (Patsy) Beason Bryant’s name (sometimes referred to as Helen Bryant) appears for the first time in the answer to the quiet title action. All prior pleadings list some version of the first four names listed in this paragraph, and pleadings refer to “the nieces and nephews” of the Beasons and the trial court’s journal entries list the specific names as set forth above and refer to “other unspecified nieces and nephews.” There are frequent references in the record inferring that “the nieces and nephews of the above-named decedents” are represented.
There are 42 defendants named in the quiet title action, 34 of whom are allegedly nieces and nephews of Macy Beason. In the Journal Entry of Judgment Quieting Title, cancelling the deed from Caroline Hearting Beason to all the nieces and nephews and holding the codicil to her will “ineffectual,” the judgment was against all of the nieces and nephews. The trial court held that the issue of whether the wills of the Beasons are joint, mutual, and contractual “has been decided, that no appeal has been taken, and that the issue is res judicata. The parties here contesting the will were present at the hearings, were represented by counsel, and no appeal was taken from the Orders entered.” In quieting title in favor of the North family (Albert, Eunice, Daryl and Arliyn—although the latter two do not appear to be devisees under the Beasons’ will unless their parents predeceased the Beasons), the trial court also held that the deed and codicil to Caroline Hearting Beason’s will was obtained by undue influence and persuasion and that Caroline Hearting Beason was incapable of making a valid warranty deed or will when the instruments were executed. The trial court previously based its decision to quiet title, cancel the deed, and hold the codicil ineffectual on the fact that the nieces and nephews had appeared in Macy’s probate proceeding and did not appeal the trial court’s decision not to allow them to participate. The trial court reasoned they were, therefore, bound by the trial court’s later decision that the wills were joint, mutual, and contractual, and anything Caroline Hearting Beason did inconsistent with Macy’s will was ineffectual.
From the record before us, it does not appear the codicil was properly before the trial court and the trial court appears to have ruled on the codicil without a hearing concerning it. That issue is not, however, raised. Appellees do state in their brief that the codicil to Caroline Hearting Beason’s will has never been heard by the trial court and is not an issue on appeal.
Lyman John Benson contends he was never served in the quiet title action, either personally or by publication service. He did make a special appearance to challenge the trial court’s jurisdiction over him. The record gives no indication that his motion was considered by the trial court.
On appeal, the guardian ad litem and Lyman John Benson contend the 7 appellants named in the caption were not personally served with notice concerning Caroline Hearting Beason’s estate and that service was not accomplished on 16 of the nieces and nephews in the quiet title action and no attempt at service by publication was attempted on 5 of the nieces and nephews.
On appeal, the appellants challenge whether the trial court had personal and subject matter jurisdiction to probate the will of Caroline Hearting Beason because not all the heirs were notified of the hearing on the petition to probate. What the appellants are really arguing (despite the title they put on this issue) is that there can be no final determination as to who the heirs and devisees are until that determination is made in the probate of an estate. Appellants also contend that they were denied due process of law, that res judicata is not applicable, and that they are entitled to an opportunity to appear and be heard on the issue of whether the wills are joint, mutual, and contractual.
As a preliminary matter, the appellees challenge this court’s jurisdiction for failure of the appellants to file an appeal bond pursuant to K.S.A. 1990 Supp. 59-2401(b). The trial court determined this appeal to be a chapter 59 case governed by 59-2401(b) and set an appeal bond of $31,000. The appellants have not filed an appeal bond as of the date of this opinion.
There is a difference in the language of the statutes concerning bonds in appeals from chapter 59 and chapter 60 actions. K.S.A. 1990 Supp. 60-2103(d) provides: “Whenever an appellant entitled thereto desires a stay on appeal, such appellant may present to the district court for its approval a supersedeas bond.” An appeal bond under chapter 60 then is only filed if the appellant desires a stay.
Chapter 59 is different. K.S.A. 1990 Supp. 59-2401(b) provides:
“Notwithstanding the provisions of K.S.A. 60-2103 . . . the appellant, other than ... a fiduciary appealing on behalf of the estate, shall file in the court from which the appeal is taken a bond in such sum and with such sureties as may be fixed and approved by the court, conditioned that the appellant will without unnecessary delay prosecute the appeal and pay all sums, damages and costs that may be adjudged against the appellant.”
In In re Estate of Zahradnik, 6 Kan. App. 2d 84, Syl. ¶ 1, 626 P.2d 1211 (1981), the court said: “Although the filing of an appeal bond is required by K.S.A. 1980 Supp. 59-2401(b) in an appeal of a probate matter, the filing of such a bond is not jurisdictional, and it may be filed after the appeal is taken, on order of the appellate court.”
In In re Estate of Kempkes, 4 Kan. App. 2d 154, 603 P.2d 642 (1979), the court affirmed a district court’s determination that it had no jurisdiction to review a magistrate’s order admitting a will to probate, in part due to the appellant’s failure to file an appeal bond as required by 59-2401(b). The court said: “We conclude that where an appeal is taken from an order admitting a will to probate . . . the filing of the appeal bond prescribed by K.S.A. 1978 Supp. 59-2401(b) is mandatory.” 4 Kan. App. 2d at 159.
In In re Adoption of Rice, 233 Kan. 617, 664 P.2d 838 (1983), this court said of the failure to file an appeal bond in an appeal to the district court in an adoption case:
“Under the statute the filing of such a bond is mandatory. See In re Estate of Kempkes, 4 Kan. App. 2d 154, 159, 603 P.2d 642 (1979). Still, it has been held mere out-of-time filing of an appeal bond does not defeat appellate jurisdiction where notice of appeal is timely filed because denial of an appeal on technical procedural grounds ‘should not serve as the basis for dismissing the appeal if the interests of justice dictate otherwise.’ In re Estate of Zahradnik, 6 Kan. App. 2d 84, 89, 626 P.2d 1211 (1981). See also In re Estate of Duncan, 7 Kan. App. 2d 196, 198-99, 638 P.2d 992, rev. denied 231 Kan. 800 (1982).” 233 Kan. at 618-619.
See In re Estate of Kern, 239 Kan. 8, 19-20, 716 P.2d 528 (1986).
The court in In re Adoption of Rice held that, under the facts, the district court did not err in dismissing the appeal because it had given the appellant additional time to file an appeal bond and she had failed to do so. 233 Kan. at 619.
Rice stands for the proposition that in a probate case, late filing is not jurisdictional, but that the filing of a bond is mandatory, and the appeal will ultimately be dismissed for failure to file a bond.
We are satisfied that the ultimate question under the facts of this case is whether a quiet title action is a proper remedy. Thus, we are satisfied that a bond is not mandatory under K.S.A. 1990 Supp. 59-2401(b) and the appellants have the option whether to file a supersedeas bond pursuant to K.S.A. 1990 Supp. 60-2103(d) and obtain a stay, or to not file a bond.
The appellants’ first two issues deal with whether the nephews and nieces were properly served with notice. The record before us indicates that of the named appellants in the appeal, all but Helen Bryant and Lyman John Benson were properly before the court, and, if not properly served, waived lack of service. In re Estate of Barnes, 212 Kan. 502, 509-10, 512 P.2d 387 (1973). Helen Bryant may have waived her lack of service. Lyman John Benson raised the issue, but the trial court did not rule on his special appearance attacking jurisdiction.
One of the problems that arises when a trial court attempts to use an unorthodox procedure is that questions that should be decided in the trial court get short-circuited.
When Macy Beason died, and his estate was opened, the nieces and nephews of Macy and his wife were not legatees or devisees under the will; nor were any of them heirs of Macy because as long as his wife was alive and they had no children, she was his sole heir. Consequently, the nephews and nieces were not entitled to notice and had no standing to challenge the probate proceedings. In re Estate of Estes, 239 Kan. 192, 196, 718 P.2d 298 (1986).
By allowing a quiet title action to be inserted in the middle of two probate proceedings, the trial court effectively defeated the intent and purpose of the probate code for the orderly administration of estates. The place to determine whether the wills are joint, mutual, and contractual is in the pending probate proceedings, not in a quiet title action. It is not the result that requires reversal. It is the procedure used in this case that requires reversal.
When estates are still pending and the court has not assigned interests in real estate, a quiet title action is not a proper method of eliminating persons who may be entitled to share in estate property and who have not had an opportunity to have their day in court.
Here, the trial court has quieted title in the Norths while proceedings relating to a codicil to Caroline Hearting Beason’s will are still pending. The court has, by using the wrong procedure (quiet title), denied at least one of the appellants his day in court.
We do not hold that a quiet title action cannot be brought by an estate. It can, under proper circumstances. We simply hold that title to real estate that is subject to an ongoing or pending probate proceeding should first have the claims of heirs, devisees, and legatees decided in the probate proceedings and title assigned to the proper party pursuant to the probate code. Then, if a quiet title suit is necessary, it may later be brought as part of the probate proceedings.
We have not addressed the issues raised by appellants concerning service because the trial court has discretion to order service on persons who claim some interest and who are not heirs, devisees, or legatees, and the trial court Will want to insure that all of the nieces and nephews are properly before the court before hearing the issues in the probate proceeding. We do note that the nephews and nieces who are offering the codicil to Caroline Hearting Beason’s will have the duty to give notice to all interested parties.
The nieces and nephews argue that the court erred in holding that its determination in MaCy’s estate that the wills are joint and mutual is binding on them and is res judicata. The court found
“that the issue of the joint, mutual, and contractual Will of Macy and Caroline Beason has been decided, that no appeal has been taken, and that the issue is res judicata. The parties here contesting the Will Were present at the hearings, were represented by counsel, and no appeal was taken from the Orders entered.”
The trial court is wrong in its facts. The nieces and nephews could not have themselves been parties to the determination since the trial court had previously dismissed them. One who is dismissed from a suit is not bound by a judgment in that suit. Mid-Continent Casualty Company v. Everett, 340 F.2d 65, 69 (10th Cir. 1965).
Res judicata prevents relitigation of the same claims. Adamson v. Hill, 202 Kan. 482, 484, 449 P.2d 536 (1969). True res judicata is not present here. It requires identity of the cause of action. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988). The issue before the trial court was whether the nieces and nephews had standing. Collateral estoppel prevents a second litigation of the same issues between parties or their privies. Goetz v. Board of Trustees, 203 Kan. 340, 349, 454 P.2d 481 (1969). Collateral estoppel requires: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment. Jackson Trak Group, 242 Kan. at 690.
The major contention in this case is that the parties were not the same or in privity. In Goetz, 203 Kan. at 350-51, this court discussed the concept of privity:
“There is no generally prevailing definition of ‘privity’ which can be automatically applied to all cases. A determination of the question as to who are privies requires careful examination into the circumstances of each case as it arises. It has been 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 or under one or other of the parties to the action, and accrued subsequent to the commencement of that suit.”
In Hungate v. Hetzer, 83 Kan. 265, 266, 111 Pac. 183 (1910), this court said, “The appellant is in privity with his grantor, and as said in Utley v. Fee, 33 Kan. 683 [7 Pac. 555 (1885)], ‘any decree rendered against the grantor affecting the grantor’s title is also in effect a decree rendered against the grantee, and it equally affects his title.’ ” In Wells v. Davis, 226 Kan. 586, 589, 603 P.2d 180 (1979), this court said: “A privy is: ‘[0]ne who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.’ ”
The nieces and nephews would then be privies because they acquired their interests through Caroline, and collateral estoppel would apply if it was not for the fact that the deed and codicil in question were executed before the judgment in Macy’s estate holding that Macy’s will was contractual.
In summary, the trial court has used the wrong procedure and has proceeded against at least two of the appellants without proper service. While the trial court may reach the same result, the litigants are entitled to an opportunity to be heard.
Reversed and remanded with directions to set aside the judgment in the quiet title action and to proceed with the orderly administration of the decedents’ estates. | [
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The opinion of the court was delivered by
Six, J.:
This case involves a fee dispute between two law firms arising from the referral of a personal injury case. The controversy between the law firms concerns the division of a contingent fee, one-third of the recovery, resulting from a $2,500,000 settlement on behalf of the plaintiff, Donald Ryder. Ryder’s Kansas attorneys, Wallace, Saunders, Austin, Brown and Enochs, Chartered (Wallace, Saunders), who contend no referral fee is owing, filed a post-settlement motion to approve attorney fees and to resolve the dispute.
California lawyer Steven C. Geeting and his law firm of Fisher, Weathers & Geeting (all referred to as FW&G), who contend a referral fee is owing, appeal the rulings of the trial court. The trial court held that FW&G is not entitled to a referral fee to be paid by Wallace, Saunders from the one-third contingent fee.
We are presented numerous issues for review.
One of the issues is the trial court’s denial of FW&G’S motion to dismiss the Wallace, Saunders fee motion. Was the trial court correct?
FW&G filed its motion to dismiss, asserting that the controversy over the referral fee was limited to the two law firms. FW&G claims the parties to the instant personal injury lawsuit, Donald Ryder, plaintiff, and Farmland Mutual Insurance Co., Coop Service, Inc., and Terry R. Nebhut, defendants, are not the real parties in interest in the dispute over the division of the one-third contingent fee. FW&G also contends the action should have been dismissed for lack of personal jurisdiction over FW&G.
After denial of FW&G’s motion to dismiss, the trial court sustained a Wallace, Saunders motion for summary judgment which denied FW&G any portion of the one-third fee. FW&G also appeals the summary judgment ruling.
The issue of attorney referral fees under MRPC 1.5 (1990 Kan. Ct. R. Annot. 222) is a factor in this appeal. The threshold event in the Wallace, Saunders-FW&G fee division dispute begins on March 1, 1988, the effective date of our referral fee rule (MRPC 1.5). Wallace, Saunders asserts that MRPC 1.5(e) (1990 Kan. Ct. R. Annot. 222-23), authorizes Ryder’s motion to settle and approve attorney fees.
We agree with FW&G’s real party in interest argument. The motion to dismiss should have been sustained. Because we have resolved the appeal by our ruling on the real party in interest issue, we conclude that it is not necessary to address FW&G’s summary judgment-personal jurisdiction contention.
Our jurisdiction arises under K.S.A. 20-3017 as the case comes to us on a transfer from the Court of Appeals.
The trial court is reversed. The FW&G motion to dismiss should have been sustained. The case is reversed and remanded with directions to dismiss.
Facts
On February 26, 1988, Donald Ryder was seriously injured in a Western Kansas truck accident when the tractor/trailer he was driving for his employer collided' with a pickup truck owned by Coop Services, Inc., (Coop) and driven by Terry R. Nebhut. Farmland Mutual Insurance Co. (Farmland) is the insurance carrier for Coop. Ryder was unconscious for three to four weeks following the accident. While Ryder was unconscious, his brother and sister-in-law, who lived in California, contacted attorney Mac Fisher of FW&G by phone regarding Ryder’s accident. Fisher was, or had been, representing Ryder’s sister-in-law at the time of Ryder’s accident.
Wallace, Saunders asserts that this phone call was to obtain the name of a Kansas attorney. FW&G controverts this assertion and claims that future discovery will show that Ryder’s brother and sister-in-law initially contacted Fisher to represent Ryder directly.
FW&G began looking for a Kansas lawyer. Geeting, a former claims manager for Allstate Insurance and Fisher’s partner in FW&G, phoned the Kansas City Allstate claims office to inquire about recommended attorneys. He was given the name of Paul Hasty, Jr., of the Wallace, Saunders firm. On March 1, 1988, Geeting telephoned Hasty concerning Ryder’s accident. Geeting inquired about Wallace, Saunders’ experience with personal injury cases. During this initial call, Geeting and Hasty discussed a referral fee; however, they differ as to what was agreed upon. Geeting admits that Hasty told him that referral fees were not allowed in Kansas, but states Hasty agreed FW&G would be: (1) kept informed of everything that occurred and provided with copies of all documents; (2) asked to assist if necessary; and (3) involved in the case, which would allow a “fair and equitable” division of fees at the end of the case. Hasty stated that at that time he thought Ryder was a California resident and assumed that the case would require some work in California. According to Hasty, they agreed to split the fee based on the work done by each firm.
Shortly after the initial conversation between Geeting and Hasty, Geeting put Hasty in contact with the Ryder family.
Hasty stated in his deposition that he believed the Wallace, Saunders attorney-client relationship with Ryder was established on March 21, 1988, the date Ryder signed the contingent fee agreement. However, the record indicates Hasty began representing Ryder before March 21, 1988.
Examples of the Wallace, Saunders representation prior to March 21, 1988, were:
(1) March 7, 1988, letter, Hasty to Allen Ryder (brother of the plaintiff): “As you know, this office has been retained to represent your brother, Donald ..... We have taken the preliminary steps to have you appointed as your brother’s guardian and conservator. . . .
“I have been in contact with Hartford, the worker’s compensation carrier. . . .
“. . . I have been in contact with the trooper who investigated the accident. . . .
“. . . As soon as Í receive a copy of the highway patrol report, we will be in contact with the co-op [sic] and the insurance carrier.
“I have photographs that were taken by Mr. Holloway shortly after the accident occurred. . . .
“As soon as I have the trooper’s report, . . . we will be in contact with the witnesses.”
(2) March 10, 1988, letter, Hasty to Kansas Highway Patrol Headquarters: “This office represents Donald Ryder ....
“. . . Please provide a copy of the photographs to me.”
(3) March 10, 1988, letter, Hasty to Farmland Mutual Insurance Company: “This office represents Donald Ryder ....
“I would like to have access to the vehicle that Mr. Nebhut was driving at the time this accident occurred. Please advise what arrangements need to be made so that an inspection can occur.”
(4) March 10, 1988, letter, Hasty to Richard Chance, Vice President of Claims, Tri-States Insurance Company (Ryder’s employer’s carrier): “This office represents Donald Ryder ....
“. . . Ryder was operating a vehicle insured under a policy issued by your company . . . .”
(5) March 10, 1988, letter, Hasty to Gary Thompson (accident reconstruction expert): “This office represents Donald Ryder ....
“. . . Please advise if you will work with us on this case.”
(6) March 18, 1988, letter, Attorney Diepenbrock to Hasty: “This office represents Farmland Mutual Insurance Company and its insured, Coop Service Inc., and I have your March 10, 1988, letter addressed to Farmland . . . .”
Hasty began representing Ryder without a contract. After Ryder regained consciousness, Hasty and Ryder, on March 21, 1988, entered into a written contingent fee contract (33.3% of gross amount received, after first deducting expenses, if suit is filed).
Hasty corresponded with Geeting after March 21, 1988.
On March 23, 1988, Hasty sent copies of all the correspondence that “has been generated so far” to Geeting. Hasty stated:
“This letter also confirms that you have agreed to assist us in the matter. [Hasty here explains his recent discovery that Ryder does in fact live in Kansas, not California.] Obviously, at this point, it’s difficult to anticipate what work is going to be done on the file, but I will look forward to requesting your assistance if a problem comes up with any of the family members or anything of that nature or something is needed in your area of the country.”
On April 1, 1988, Hasty wrote to Geeting concerning possible benefits to Ryder arising from Ryder’s auto coverage and workers compensation coverage.
“I need to make application for those benefits on Mr. Ryder’s behalf, but I don’t know the name of the company, the agent, or the policy number ....
“Please advise if there’s any way for you to obtain this information for me.
“Farmland has requested Mr. Ryder’s tax returns for the last three years. Any assistance you can provide in getting that information to me would be greatly appreciated.”
On April 11, 1988, Wallace, Saunders filed the instant personal injury action on Ryder’s behalf in Sedgwick County District Court against the defendants, Farmland Mutual Insurance Co., Coop Service, Inc., and Terry R. Nebhut. A settlement of $2,500,000 was reached in late February 1989. Wallace, Saunders sent copies of pleadings and correspondence to Geeting while the case was pending. Hasty discussed various stages of the litigation, including settlement offers with Geeting.
On February 28, 1989, shortly after the Ryder settlement, and one year from March 1, 1988, (the date of the initial Geeting to Hasty phone call) Hasty notified Geeting by letter that Palmer v. Breyfogle, 217 Kan. 128, 535 P.2d 955 (1975), prohibited the sharing of attorney fees except on the basis of either legal services performed or the discharging of responsibility in the case. Hasty offered Geeting $10,000, as a fair fee, based on the services performed standard. Hasty had referred to Palmer (he did not recall the case by name) during their initial March 1, 1988, phone conversation.
During his deposition (taken May 26, 1989, in Wallace Saunders v. FW&G, No. 89-1201-K [D. Kan.]) Hasty was asked about the initial March 1, 1988, conversation with Geeting. According to Hasty, Geeting asked for 25% of the attorney fees. Hasty told him such an arrangement was not agreeable and “I told him that [the referral fee] was not permitted in Kansas at all.” The basis for Hasty’s comment that referral fees were not permitted in Kansas “was a case directly in point and it was unethical.” Hasty did not have the name or the citation during the March 1, 1988, conversation, but he said he has been referring to the Palmer case.
A dispute arose between Wallace, Saunders and FW&G as to what the agreement was at the time of the initial referral, March 1, 1988.
On March 6, 1989, Geeting “faxed” a reply to Hasty’s February 28, 1989, letter. This reply rejected the $10,000 offer and demanded $124,875, 15% of the contingency fee. Wallace, Saunders later offered Geeting $20,000, which was also rejected.
On March 7, 1989, Wallace, Saunders filed, in the name of the plaintiff Ryder, a motion to settle and approve attorney fees. On March 8, 1989, Wallace, Saunders filed, and the trial court granted, a motion for an order allowing it to pay $124,875 (15% of the one-third contingent fee) to the clerk of the court.
The same day, Wallace, Saunders also filed a separate declaratory judgment action in the Sedgwick County District Court against Steven C. Geeting and the law firm of Fisher, Weathers & Geeting. Wallace, Saunders, as plaintiff, sought a declaratory judgment holding that defendant, FW&G, was not entitled to any of the one-third contingency fee arising from the Ryder settlement. FW&G filed an answer, a counterclaim, and a demand for a jury trial.
The declaratory judgment action was removed to the United States District Court for the District of Kansas (No. 89-1201-K) on April 6, 1989, on motion of FW&G.
On May 24, 1989, FW&G filed a motion for a preliminary injunction in the federal case seeking to enjoin Wallace, Saunders from pursuing its motion to settle and approve attorney fees in the case at bar. The federal motion was denied. Federal proceedings were stayed pending the outcome of the motions before the trial court in the instant action.
Wallace, Saunders disbursed to Ryder his full share of the settlement on or about March 14, 1989.
On March 21, 1989, a stipulation of dismissal with prejudice was filed dismissing Ryders personal injury action against the three defendants, Farmland Mutual Insurance Co., Coop Service, Inc., and Terry R. Nebhut.
FW&G opposed the Wallace, Saunders motion to settle and approve attorney fees. FW&G admitted that it claimed a referral fee from Wallace, Saunders. FW&G stated that Ryder is aware of the FW&G fee claim and has no objection. FW&G also informed the court of the declaratory judgment action which had been removed to the federal court.
Wallace, Saunders filed a motion for summary judgment on its motion to settle and approve attorney fees. On the same day, FW&G filed a motion to dismiss the Wallace, Saunders’ motion to settle and approve attorney fees.
The FW&G motion to dismiss asserted that: (1) the trial court lacked personal and subject matter jurisdiction; and (2) the two disputing law firms were not properly joined as parties; consequently, the Wallace, Saunders’ motion on attorney fees does not comply with K.S.A. 1990 Supp. 60-217. K.S.A. 1990 Supp. 60-217 requires that every action shall be prosecuted in the name of the real party in interest.
As an alternative to dismissal, FW&G requested that the dispute between the two law firms be transferred to a separate case proceeding in the Sedgwick County District Court with Wallace, Saunders as plaintiff and FW&G as defendant. With the two contesting law firms designated as plaintiff and defendant, FW&G asserted it could be afforded full discovery and a jury trial. The FW&G motion to dismiss and the alternative request were overruled.
FW&G opposed the Wallace, Saunders’ motion for summary judgment. The FW&G response repeated the arguments advanced in its motion to dismiss. In addition, FW&G asserted: (1) summary judgment is procedurally improper on a post-settlement motion; (2) there are numerous issues of material fact in dispute; and (3) Wallace, Saunders failed to show that it should prevail as a matter of law.
In the order granting summary judgment to Wallace, Saunders filed November 29, 1989, the trial court noted that a factual dispute exists between Wallace, Saunders and FW&G as to what was agreed regarding a referral fee. The threshold question for the trial court was whether FW&G had a client to refer. The trial court reasoned that, if FW&G did not have a client to refer, there could be no contract for a referral fee. The trial court found that an attorney-client relationship can only be created by contract. Rased on Geeting’s deposition testimony taken in the federal court action, the trial court found FW&G never had a contract with Ryder. The trial court then found, as a matter of law, that neither FW&G nor any member of the firm is entitled to attorney fees generated by the Ryder settlement.
Wallace, Saunders filed a motion with the trial court to disburse the $124,875 that it had paid to the clerk of the court. The motion came on for hearing on February 8, 1990. The trial court directed the clerk of the court to disburse the funds to Wallace, Saunders unless a supersedeas bond was posted by FW&G within ten days of the filing of the journal entry. No bond was posted.
MRPC 1.5(g)—Referral Fees—Palmer v. Breyfogle, 217 Kan. 128, 535 P.2d 955 (1975)
MRPC 1.5(g) is inexorably tied to the law firm referral fee controversy. We have not been required to comment on the rule in prior opinions. Under the facts presented by this case, we have the responsibility to do so.
FW&G asserts that MRPC 1.5(g) allows division of a fee with a referring attorney. FW&G also asserts that the referral fee is permitted without regard to services performed or responsibility assumed (overruling Palmer, 217 Kan. 128). Amicus, Kansas Trial Lawyers Association (KTLA), endorses the FW&G argument. Wallace, Saunders does not contest this issue.
FW&G’s interpretation of MRPC 1.5 is substantially correct. Palmer technically was not overruled on March 1, 1988, by the adoption of MRPC 1.5; however, Palmer, on March 1, 1988, became a “non-player” in the instant referral fee contest. Palmer was superseded by MRPC 1.5.
We note that Wallace, Saunders was continuing to advance the vitality of DR 2-107(A) (1990 Kan. Ct. R. Annot. 177), as late as March 7, 1989. In its motion to approve and settle attorney fees filed in the trial court, Wallace, Saunders states: “Division of fees under the laws of the State of Kansas is a matter of professional responsibility. DR 2-107 provides [quoting the disciplinary rule].” The Wallace, Saunders motion prays for an order approving and distributing attorney fees “under the Code of Professional Responsibility.”
DR 2-107(A) of the Code of Professional Responsibility was no longer applicable in this jurisdiction after March 1, 1988, as to any matters arising from that date forward.
We now turn to Palmer. Palmer interpreted DR 2-107(A). DR 2-107(A) states:
“A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
“(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
“(2) The division is made in proportion to the services performed and responsibility assumed by each.
“(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.” (1990 Kan. Ct. R. Annot. 177-78).
Palmer held that recommending another lawyer or referring a case to another lawyer without further handling cannot be construed as performing legal services or discharging responsibility in the case as required by DR 2-107(A)(2). Therefore, the division of fees under the Palmer facts was prohibited.
The Model Rules of Professional Conduct were adopted by the House of Delegates of the American Bar Association on August 2, 1983. ABA Model Rule 1.5(e) states:
“A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable.”
The Kansas version of the MRPC was adopted by this court effective March 1, 1988. We modified Rule 1.5. The Kansas rule regarding division of fees is MRPC 1.5(g), which states: “A division of fee between lawyers who are not in the same firm may be made if the client is advised of and does not object to the participation of all the lawyers involved, and the total fee is reasonable.” (1990 Kan. Ct. R. Annot. 222.)
The Kansas Comment to MRPC 1.5 states in part:
“Division of Fee
“A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist, or when a lawyer refers a matter to a lawyer in another jurisdiction. Paragraph (g) permits the lawyers to divide a fee by agreement between the participating lawyers if the client is advised, does not object, and the total fee is reasonable! It does not require disclosure to the client of the share that each lawyer is to receive.” (1990 Kan. Ct. R. Annot. 224.)
The Code Comparison following the Kansas MRPC 1.5 states: “Rule 1.5(g) permits division without regard to the services rendered by each lawyer if the client is advised, does not object, and the total fee is reasonable.” (1990 Kan. Ct. R. Annot. 224.)
Our adoption of MRPC 1.5(g) as modified eliminates the requirement that the division of fees be made in proportion to the services performed and the responsibility assumed for the representation. The relevant portion of Palmer has been superseded by MRPC 1.5(g).
Our publication, Rules Relating to Discipline of Attorneys dated March 1, 1988, was mailed in February 1988 to all attorneys registered to practice law in this state.
The preface states in part:
“The Supreme Court and the Kansas Bar Association in 1984 appointed a special ad hoc committee to study, modify, and supplement the Model Rules of Professional Conduct to conform to the needs and experiences of the legal profession and the citizens of Kansas. After many months of publicizing the Model Rules, hearing testimony, and deliberating, the Kansas Committee submitted its final report, with comments, to the Court in 1985.
“During the last two years the Court has reviewed the work of the Kansas Committee, reevaluated and modified the existing procedural rules dealing with discipline, and has now adopted the Model Rules and disciplinary rules as modified.
“For the benefit of the bar, this 1988 printing of the rules is annotated and contains both the ABA Commission’s comments and the Kansas Committee’s comments to the new Model Rules of Professional Conduct. Subsequent reprints of the rules will not contain the comments. A copy of these rules is being mailed to each active and inactive registered Kansas attorney. The rules contained herein are current through March 1, 1988, while the annotations are current through January 31, 1988.
David Prager
Chief Justice
March 1, 1988”
The March 1988 issue of the Journal of the Kansas Bar Association featured an article entitled: Major Changes in Code Concerning Fees & Advertising—Professional Conduct Rules Adopted. 57 J.K.B.A. 9 (March 1988).
The trial court entered summary judgment for Wallace, Saunders on the Wallace, Saunders motion to settle and approve attorney fees. The court observed that the fact FW&G did not have a contract with Ryder was uncontroverted. The trial court found, as a matter of law, that absent a contract with Ryder, FW&G had no client to refer and, consequently, could not have a contract with Wallace, Saunders for a referral fee.
MRPC 1.5(g) lists two requirements for a division of a fee between lawyers: (1) the client is advised and does not object; and (2) the total fee is reasonable. The word “client” could refer either to the status of a litigant with regard to the referring attorney or with regard to the attorney to whom the matter is referred. If it refers to the relationship with regard to the referring attorney, the rule mandates an attorney-client relationship with the referring attorney. It is clear that the litigant would be a client of the attorney to whom the matter is referred. We adopt what we believe to be the logical interpretation, that “client” refers to the status of the litigant with the attorney to whom the matter is referred.
Under this construction of the rule, although it would be preferable, MRPC 1.5(g) does not require that the referring attorney have an attorney-client relationship with the person referred. Of course, the attorney accepting the referral may impose such a requirement before agreeing to pay a referral fee. This referral relationship between counsel is a matter of contract between attorneys.
Our primary concern is for the client. The ultimate objective is to assure the finest representation possible for a client.
During oral argument, counsel for FW&G stated that no question has ever been raised as to the quality of professional representation extended to Ryder by Wallace, Saunders. A review of the record affirms that fact and reflects that Ryder received thorough and competent representation.
Appellate Jurisdiction
Wallace, Saunders asserts that we have no jurisdiction to hear the appeal. FW&G contends that the trial court had no jurisdiction to hear the Wallace, Saunders motion to disburse funds after this appeal had been docketed with the Clerk of the Appellate Courts.
FW&G filed a notice of appeal on December 21, 1989. Because no notice of appeal was filed after the February 8, 1990, hearing, Wallace, Saunders asserts that we lack jurisdiction to hear this appeal. Wallace, Saunders contends that the November 29, 1989, summary judgment order is not a final appealable order because it did not determine all of the issues between the parties. Wallace, Saunders argues that the summary judgment order only determined that FW&G is not entitled to the $124,875 paid to the clerk of the court, leaving the question of what should become of that money unsolved.
Only Wallace, Saunders and FW&G claim entitlement to the attorney fees paid to the clerk of the court. When the court ruled on November 29, 1989, that FW&G was not entitled to any of the money, the trial court determined all of the issues between the parties. If FW&G is not entitled to the money, Wallace, Saunders is because no one else claimed an interest. The order directing the clerk to pay out the $124,875 (15% of the one-third contingent fee) to Wallace, Saunders was ministerial.
We have jurisdiction to hear the appeal.
FW&G contends that the trial court lacked jurisdiction to hear and rule on Wallace, Saunders’ motion to disburse the funds paid into court because the appeal had been docketed with the Court of Appeals. Because of our disposition of the trial court’s ruling on the FW&G motion to dismiss, no discussion of this jurisdictional issue is necessary.
Trial Court Jurisdiction—The Two “Non-Party” Law Firms
FW&G advances several arguments supporting its claim that the trial court lacked jurisdiction in the instant personal injury action to determine the dispute over the referral fee.
FW&G contends that summary judgment is improper because the case had been dismissed with prejudice as to the real parties in the lawsuit. The motion to settle and approve attorney fees was filed by Wallace, Saunders in the name of plaintiff Ryder. FW&G asserts that Ryder was not the real party in interest because he has received his full share of the settlement and did not request Wallace, Saunders to file the motion. FW&G also argues that the trial court should have dismissed the action because neither Wallace, Saunders nor FW&G were joined as parties.
Wallace, Saunders counters these arguments, stating that: (1) Ryder dismissed his claims against the three named personal injury defendants while the motion to settle and approve attorney fees was pending; therefore, the trial court retained jurisdiction to rule on the motion; (2) Ryder is the real party in interest because he has a stake in seeing that this litigation is finally over with regard to him and to make sure that he has no further obligation to pay attorney fees; and (3) the failure to join FW&G as a party became moot when FW&G voluntarily entered its appearance in the case.
The summary judgment motion by Wallace, Saunders and the response of FW&G contain issues related to those involved in the FW&G motion to dismiss.
Our reversal of the trial court’s denial of FW&G’s motion to dismiss is dispositive of this’appeal. We address the “real party in interest” issue.
Real Party In Interest
K.S.A, 1990 Supp. 60-217(a) provides in part:
“Real party in interest. Every action shajl be prosecuted in the name of the real party in interest; .... 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 effect as if the action had been commenced in the name of the real party in interest.”
In Torkelson v. Bank of Horton, 208 Kan. 267, 270, 491 P.2d 954 (1971), we observed that one standard frequently applied identifies the real party in interest as “the one entitled to the fruits of the action, and the phrase ‘real party in interest’ is grammatically quite capable of that meaning (James, Civil Procedure, § 9.2).” We quoted, with approval, 3A Moore’s Federal Practice § 17.02 (2d ed. 1970): “The meaning and object of the real party in interest provision would be more accurately expressed if it read: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced.”
The paramount question for resolution is: Who holds the right sought to be enforced?
MRPC 1.5(e) states: “Upon application by the client, all fee contracts shall be subject to review and approval by the appropriate court having jurisdiction of the matter and the court shall have the authority to determine whether the contract is reasonable.” (Emphasis added.)
MRPC 1.5(e) was drafted to provide the client a mechanism for review of a disputed fee contract. In the present case (1) Wallace, Saunders, not Ryder, disputes the referral fee; and (2) FW&G, not Ryder, disputes Wallace, Saunders’ refusal to pay a referral fee. Hasty stated in his deposition that Ryder did not request a motion to approve and settle attorney fees. Ryder stated in his deposition that the 33.3% contingency fee was fair and that he is not opposed to FW&G receiving a referral fee. Ryder has received his full settlement. FW&G is not claiming any portion of Ryder’s two-thirds share of the settlement.
Ryder does not have the substantive right to enforce the action. He has no legal interest whatsoever in the outcome of the attorney fee dispute.
The dispute is between FW&G and Wallace, Saunders regarding a division of the one-third contingent fee. The controversy arises from an alleged contract between the two law firms. Ryder is not the real party in interest.
Our characterization of the Wallace, Saunders-FW&G controversy does not necessarily mean that the action should have been dismissed. K.S.A. 1990 Supp. 60-217(a) prohibits dismissal if the real party in interest ratifies commencement of the action.
Neither Wallace, Saunders nor FW&G were formally joined as parties. The general rule is that a judgment may not be rendered for or against one who is not a party to the action or who did not intervene therein. The general rule recognizes exceptions. Winsor v. Powell, 209 Kan. 292, 297, 497 P.2d 292 (1972).
In Winsor we relied on Lessert v. Krebs, 108 Kan. 752, 196 Pac. 1070 (1921). Lessert was an automobile replevin action in which judgment was entered in favor of a guardian who paid the plaintiff chattel mortgage holder, with her own money, after suit was filed but who was never made a party to the action. We stated:
“She [the guardian] could have been made a party, and, on her application, probably would have been substituted for the plaintiff. If it were right and proper that judgment be rendered in her favor had she been a party, the court could and probably did consider her as such. Being entitled to subrogation to the rights of the plaintiff, there was no reversible error in rendering judgment in her favor.” 108 Kan. at 754.
In the instant case, the trial court never formally joined either Wallace, Saunders or FW&G. In its motion to dismiss, FW&G requested, as an alternative to dismissal, the transfer of the Wallace, Saunders’ claim to a separate case designating the two law firms as plaintiff and defendant. This alternative request is tantamount to a motion to join the law firms. The trial court rejected the separate case designation by overruling the FW&G motion to dismiss.
Wallace, Saunders and FW&G participated in the hearings leading to the trial court’s resolution of the Wallace, Saunders attorney fees motion. Although not “parties of record,” they were “parties in fact” as to that motion. See Crane v. Cameron, 71 Kan. 880, 81 Pac. 480 (1905).
“Parties in fact” who are not joined must be afforded full litigation procedures. A defendant has a right to insist that an adversary action shall be brought by the real party in interest as provided by K.S.A. 1990 Supp. 60-217(a). A defendant who has not been joined is not to be “shut out” from asserting defenses and counterclaims.
Lessert and Crane are not controlling in the instant case. Lessert and Crane involved pending cases with plaintiffs and defendants, who were active, while the issues were litigated. The “parties in fact,” who were not joined, were afforded all litigation procedures as if they had been joined.
In the case at bar, Ryders personal injury case had been dismissed as to each of the three named defendants. The Wallace, Saunders-FW&G litigation involved no petition, no answer, and no counterclaim. The case was not put on the regular discovery schedule. FW&G was not afforded full litigation procedures available under K.S.A. Chapter 60. FW&G was “shut out” from asserting defenses and counterclaims. See Rullman v. Rullman, 81 Kan. 521, 524, 106 Pac. 52 (1910).
Either the FW&G motion to dismiss should have been sustained (so that the controversy could be resolved in the federal case) or the contract dispute postured in the trial court with the law firms joined and designated as plaintiff and defendant.
What now is a proper disposition? The declaratory judgment action filed by Wallace, Saunders against FW&G the day after Wallace, Saunders filed its attorney fees motion in the instant action establishes the law firms as plaintiff and defendant. The declaratory judgment action, removed to federal court, will provide each law firm with a full and fair opportunity to advance its contentions. Neither party will be “shut out” from defenses and counterclaims. In our view the declaratory judgment action provides the proper forum in which to settle the dispute.
Ryder, the plaintiff in this case, is gone from this case. The three personal injury defendants are gone from this case. A dispute exists over the alleged agreement to divide an attorney fee between the two law firms. The federal declaratory judgment action filed by Wallace, Saunders as plaintiff and FW&G as defendant is “standing at the ready.”
We express no opinion on the final resolution of the dispute. We hold that the real parties in interest are the contesting law firms and not the absent parties who caption this lawsuit.
Reversed and remanded with directions to dismiss.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Tommy Joe Crabtree from his conviction by a jury of second-degree murder (K.S.A. 21-3402). He was convicted for the shotgun slaying of his stepfather, Marion Clay.
Crabtree raises two issues on appeal. He contends a combination of prosecutorial and judicial misconduct deprived him of a fair trial as guaranteed by the due process clause of the federal and state constitutions. He also argues that the trial court erred in failing to instruct the jury that the affirmative defense of self-defense did not shift the State’s burden of proof to the defendant and that the failure to do so was clearly erroneous.
Tommy’s mother, Esta Clay, married Marion Clay soon after she met Marion in 1981. Marion moved in with Esta and her three children. At the time, Tommy was 11, his sister was 10, and his brother, Paul, was 4. Within weeks, Marion was beating Esta and the children. Within a year, Marion was having sexual intercourse with Tommy’s sister on a regular basis.
It is not necessary to recount all the instances of violence in the record. Suffice it to say, Marion was schizophrenic, abused drugs and alcohol, and failed to take his prescribed medicine for his schizophrenic condition. He was often violent to family members and his acts were brutal in nature. The shooting took place some seven years after the last physical violence to Tommy by Marion. During most of the intervening years, Tommy was not in the home (having been removed from the home by SRS) and Marion was in and out of mental institutions and other institutions. However, during those years, there were severe problems in the family caused by Marion. He continued to physically abuse Esta and sexually abuse Tommy’s sister. Marion, at times, thought he was the “outlaw Josey Wales.”
In 1985, Marion beat Esta, and Tommy attempted to shoot Marion, but missed. Marion was arrested, but, apparently, not prosecuted. Also in 1985, Tommy’s sister reported to the police that she was being sexually abused. Although she passed a polygraph test and her story was corroborated by her mother, Marion was not prosecuted. Esta then divorced Marion.
In 1987, Marion was released from Lamed State Hospital. He had been convicted of some crime, but it is not clear from the record what he had been convicted of. As part of Marion’s parole agreement, he agreed to stay out of Dodge City, to take his psychotropic medicine, to attend mental health counseling, and not to consume any alcohol.
Upon his release, Marion immediately violated each of the conditions of his parole. At Marion’s request, Esta moved to Hutchinson with Paul. Tommy decided to go along. He testified that although things initially went well in Hutchinson, Marion quit taking his medicine and started drinking heavily. All witnesses testified that when Marion drank, he became argumentative and threatening.
On the day prior to the shooting, Marion made sexual advances toward Tommy’s girlfriend, Marcie. She told Tommy about this. Tommy came home from work and Marion, Esta, Paul, Marcie, and Steven Bonham (a friend of Tommy’s) were there. Marion had been drinking and repeatedly (as long as IV2 hours) played a pornographic tape he had made in prison expressing his desires for Esta. Tommy removed the tape and broke it.
Eventually, Marcie’s mother came and picked her up. Marcie left her car parked in front of the house. At this point, there is some disagreement in the testimony as to what happened next. Apparently, Marion was upset that Marcie’s car was parked on the street in front of the house. Tommy testified that Esta came to his room and told him that Marion wanted Marcie’s phone number. Tommy testified that he refused to give the number, and Marion came in and demanded it. Tommy testified that he went out and moved Marcie’s car across the street, but that Marion kept complaining about the car. Tommy testified that Marion said something about fighting him and threatened to get a knife, but that he (Tommy) went to his room. Tommy testified that he got a shotgun from his room and followed Marion out of the house. Tommy admitted that he did not know whether Marion had a knife, and he admitted that he never had observed a knife and that no one told him Marion had a knife.
Tommy testified that, once outside, Marion went to his car, which was parked the wrong way on the street in front of the house, and sat down in the car. Tommy testified that he went to the front of the car, but did not point the shotgun at Marion. Tommy testified that Esta came and started telling him to give the gun to her, but that he did not remember if she grabbed it. According to Tommy, during this argument, Marion got out of the car, and somehow the gun went off, killing Marion. Tommy specifically denied that Paul was outside at this time. After Tommy was arrested, he told the police that he had pointed the shotgun down the sidewalk and pulled the trigger in order to scare Marion, but that Marion had jumped in front of the gun.
Esta’s version of the incident was slightly different. In particular, she testified that when Marion and Tommy were arguing in the house, Marion repeatedly told Paul to get him a knife. Esta testified that when she went to Tommy’s room to tell him that Marion wanted to talk to him, she told him that Marion had a knife. Esta testified that, outside the house, she actually attempted to grab the gun from Tommy, but she did not remember if she touched Tommy. Esta testified that this did not occur near the front of the car, but near the driver’s door.
Tommy, Esta, and Paul all testified that Paul was inside the house when the shooting occurred.
There was an eyewitness who viewed these events from his house 250 feet away. James Rue testified that, as he was returning home, he heard arguing from Esta’s residence. He testified he heard someone yelling about a phone number. He testified that Marion and a heavyset woman (Esta) came out of the house and got in a car, then got out and headed back to the house, and then turned around and went back to the car. He testified they then returned to the house, and Marion came out alone and stood by the driver’s door of Esta’s car. He testified that Tommy came out of the house and walked toward Marion and he could hear Marion ask him for the phone number. He testified that Tommy moved the other car (Marcie’s) across the street. He testified that then they both returned to the house.
Rue testified that he then saw Marion come out of the house again and sit in the front seat of Esta’s car. He testified that Tommy came running out of the house and that his little brother (Paul) and mother followed. Rue initially misdescribed the mother and brother to police, although he later identified them as the people he had seen. He testified that Tommy stood behind the driver’s door, and that Paul came running up and grabbed him. He testified that Tommy got around Paul and ran up to the front of the car, and that Marion stood up from the car and Tommy raised a shotgun and aimed it at Marion. Paul apparently struggled with Tommy, and the gun went off. Rue testified he could hear a lot of what was going on and that he never heard Marion threaten Tommy.
It is undisputed that after the shooting, Esta, Tommy, and Paul all got in the car and started driving. Tommy tossed the shotgun out of the car. They were stopped by police and all initially told the police that someone else shot Marion.
The jury, which was instructed on first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter, found Tommy guilty of second-degree murder.
The defense’s first contention is that counsel for the State made factual misrepresentations during trial such that defendant’s motion for a new trial should have been granted. One of the defense’s tactics at trial was to show that tension was building between Marion and Tommy all along due to Marion’s conduct in the home. Tommy was generally aware that Marion had been having sex with Tommy’s sister. This evidence was apparently offered to show why there were problems between Tommy and Marion. Tommy was also aware that Marion had made advances toward Marcie.
Crabtree sets forth in great detail the questions and answers he relies upon to show prosecutorial misconduct. For example, the assistant county attorney, who tried the case, in summation argued:
“They present to you evidence such as [Tommy’s sister] who testified she was raped repeatedly by Marion Clay and yet the facts are that the one time that she was confronted by law enforcement about that she said it never happened. The doctor could find no evidence. No charges were ever filed against Marion Clay. He was convicted of nothing, but the defense wants you to ignore the rules when it helps their case and they want you to believe that Marion Clay was a rapist.”
The evidence at trial does not show the sister ever lied to police or that there was no sexual abuse. The State had information available to corroborate the sexual abuse.
The problem with the defendant’s argument is that counsel must make a contemporaneous objection. “This court has repeatedly held that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection was lodged.” State v. Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989). Having failed to make a contemporaneous objection, the issue will not be considered on appeal.
When the closing argument issue is not considered, then the questions and answers during trial are of little importance because they were questions rather than assertions, and Tommy answered those questions by saying that he had no knowledge of what the State was attempting to establish.
Crabtree also argues that counsel for the State was rude throughout the trial and that he also used objections to make speeches. Having examined the record, counsel for both the State and the defense at times exhibited inappropriate behavior.
It is discretionary with the trial court whether to grant a new trial under K.S.A. 22-3501 because of misconduct of counsel. State v. Holley, 238 Kan. 501, 712 P.2d 1214 (1986). Reversal is warranted only when the appellant has shown conduct prejudicial to his or her substantial rights. State v. Chism, 243 Kan. 484, 493, 759 P.2d 105 (1988).
Crabtree also complains of judicial misconduct. He argues that the trial court failed to maintain order in the court and failed to reprimand the State when it was disruptive or making speeches during objections. While the court might have attempted to rein in both counsel more than it did, that might have disrupted the trial even more. The record reflects that the trial court attempted to be fair. It properly reprimanded both counsel on occasion. The record does not show abuse of discretion or judicial misconduct on the part of the trial court.
Crabtree also argues that the State’s closing arguments were improper and “calculated to inflame the passions or prejudices of the jury.” It should be noted that the defense did not object to the closing and that issue is raised for the first time on appeal. As noted above, the defense must make a contemporaneous objection and cannot challenge the closing argument on appeal for the first time.
In any event, both parties are entitled to considerable latitude in closing argument. In addition, “There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments by defense counsel.” State v. Bird, 238 Kan. 160, Syl. ¶ 14, 708 P.2d 946 (1985).
Here, the defense at least implicitly attempted to show Marion Clay was a person who justifiably should have been shot because of his treatment of his wife and stepchildren. The State justifiably met that premise in its closing argument.
We have examined each of the defendant’s complaints, both individually and as a whole, and are unable to say that the conduct prejudiced the defendant’s substantial rights; thus, the trial court did not abuse its discretion in denying the motion for a new trial.
The defendant next argues that the trial court erred in failing to give a PIK Crim. 2d 52.08 instruction. The trial court gave the following instruction of self-defense from PIK Crim. 2d 54.17, as instruction No. 9:
“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. Such justification requires both a belief on the part of defendant and the existence of facts that would persuade a reasonable person to that belief.”
In the Notes on Use to PIK Crim. 2d 54.17, it is stated that PIK Crim. 2d 52.08 should also be given. PIK Crim. 2d 52.08 makes clear that the defendant does not bear the burden of proving the affirmative defense. It provides:
“The defendant claims as a defense that (here describe the defense claimed). Evidence in support of this claim should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State’s burden of proof does not shift to the defendant. If the defense asserted causes you to have a reasonable doubt as to the defendant’s guilt, you should find the defendant not guilty.” PIK Crim. 2d 52.08.
The defense did not request this instruction. No party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds for the objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414(3).
In determining whether there was error in failing to give an instruction, “[j]ury instructions are to be considered together and read as a whole, without isolating any one instruction.” State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988). The trial court did give PIK Crim. 2d 52.02 as jury instruction No. 2. It provides:
“The State has the burden of proving the defendant is guilty. The defendant is not required to prove he is not guilty. You must assume the defendant is not guilty unless the evidence convinces you of the defendant’s guilt.
“Your determination should be made in accordance with these instructions, and this is the test you should apply: If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the State, you should find the defendant not guilty.”
Although PIK Crim. 2d 52.02 does not specifically address the burden of proof when an affirmative defense is asserted, it does state the general rule that the State has the burden; the defendant never has to prove himself not guilty.
In an analogous case, this court stated:
“Even had the defendant objected to the court’s failure to give the instruction, it does not seem likely that the jury would have returned a different verdict if such an instruction had been given. Instructions were given to the jury regarding defense of a person, reasonable doubt, the burden of proof, the definitions of the various legal terms relating to criminal intent, and that the prosecution’s burden to prove such intent never shifts to the defense. The fact that the court failed to use PIK Crim. 2d 52.08 will not be considered error when there were other instructions which made it clear that the burden of proof was on the State. Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused. State v. Peoples, 227 Kan. 127, 136, 605 P.2d 135 (1980); State v. Wilson, 221 Kan. 92, Syl. ¶ 3, 558 P.2d 141 (1976); State v. Taylor, 212 Kan. 780, Syl. ¶ 2, 512 P.2d 449 (1973).” State v. Osbey, 238 Kan. 280, 285-86, 710 P.2d 676 (1985).
Here, there is a bare scintilla of evidence, if any, that would justify a self-defense instruction. Counsel for the defendant at oral argument suggested it would be necessary for us to adopt a “battered child” syndrome defense that would use the same language and justification used in adopting the battered wife syndrome defense. On the record and briefs before us, we decline to adopt a battered child syndrome defense.
Obviously, the trial court should have given PIK Crim. 2d 52.08. PIK Crim. 2d 52.08 should be given whenever an affirmative defense is asserted in a criminal case. Here, however, when the instructions are considered as a whole and in light of the facts of the case, we cannot say the failure to give PIK Crim. 2d 52.08 was clearly erroneous.
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Per Curiam:
This is an original proceeding in discipline filed by the disciplinary administrator against Harold V. Matney of Kansas City, Kansas, an attorney admitted to the practice of law in Kansas. The facts, as determined by the hearing panel of the Kansas Board for Discipline of Attorneys (the panel), are not disputed.
On April 25, 1990, the respondent, Harold V. Matney, was tried in the district court of Johnson County, Kansas, on one count of misdemeanor theft. (K.S.A. 21-3701, class A misdemeanor.) The respondent was convicted of theft of property of a value less than $500.
On June 1, 1990, the respondent was sentenced to the custody of the Sheriff of Johnson County, Kansas, for a period of 180 days and was fined $500 and assessed court costs. The court suspended $200 of the fine and the sentence imposed upon the condition that the respondent not violate any laws for a period of 1 year, make restitution of $200 within 30 days, and pay court costs.
The respondent did not appeal his conviction or sentence.
At the hearing before the panel, the disciplinary administrator introduced an authenticated copy of the court file in case No. K-61533 of the District Court of Johnson County, Kansas, styled: The State of Kansas v. Harold Matney. The disciplinary administrator relied on Rule 202 (1990 Kan. Ct. R. Annot. 136), Rules of the Supreme Court Relating to Discipline of Attorneys, which provides in part:
“A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evi dence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment.”
The respondent testified about the events which led to his conviction in the criminal action, his two prior disciplinary proceedings, and matters in mitigation of the pending complaint. He filed no answer to the instant formal complaint. The panel took the matter under advisement and found by clear and convincing evidence that:
“1. The averments contained in the Formal Complaint are true and undisputed by Respondent.
“2. Although no cogent explanation of the events leading to the conviction was given by Respondent, he repeatedly acknowledged responsibility for the violation of K.S.A. 21-3701.
“3. Exhibit A establishes that Respondent violated K.S.A. 21-3701, a class A misdemeanor, through conduct amounting to the theft of $200.00 in cash. Respondent testified that he has paid the fine imposed in the criminal action and paid restitution to the victim.
“4. In an opinion filed July 17, 1987, the Supreme Court of Kansas imposed indefinite suspension in In re Matney, 241 Kan. 783 [, 740 P.2d 598 (1987)]. Respondent remains under suspension and has not applied for reinstatement. In addition, Respondent acknowledged that the Supreme Court imposed a private censure on July 27, 1976. According to Respondent, that incident involved confrontations with a witness during and after a court hearing.
“5. Respondent and his family have faced financial hardship and limited opportunities for employment following both his suspension from the practice of law and the criminal conviction. In mitigation of the present charge, Respondent urges that he might have been acquitted in the criminal case if he had the resources to prepare a more thorough defense or to pursue an appeal.”
The panel unanimously recommended that the respondent be disbarred.
The disbarment recommendation was based on the following conclusions:
“1. Respondent violated Rule 8.4 [(1990 Kan. Ct. R. Annot. 290)] of the Model Rules of Professional Conduct. The conviction is conclusive evidence that Respondent committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects (MRPC 8.4[b]). Likewise, the conviction establishes that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation (MRPC 8.4[c]).
“2. Pursuant to Section 5.1 of the ABA Standards for Imposing Lawyer Sanctions, the Disciplinary-Administrator recommends disbarment. Section 5.11 of the ABA Standards states that disbarment is generally appropriate when:
a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
“3. Respondent urges that he should remain under the indefinite suspension imposed on July 17, 1987. Despite the criminal conviction, Respondent testified that he is participating in personal and job counseling which will enable him to demonstrate professional rehabilitation in the future. Respondent did not assert that his crime should be categorized under ABA Standard 5.12 rather than 5.11.
“4. Absent recent prior disciplinary action against the Respondent resulting in suspension, it is doubtful that disbarment would be considered the appropriate discipline in this matter. Section 5.12 of the A.B.A. standards states that suspension is generally appropriate ‘[w]hen a lawyer knowingly engages in criminal conduct which does not contain the elements listed in standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’ Given the nature of the criminal conduct in issue and the fact that full restitution has been made, it would appear that suspension rather than disbarment would be appropriate under the circumstances.
“5. Given the fact that the Respondent was suspended in 1987 and remains under the order of suspension, the panel is of the opinion that the appropriate recommendation for discipline is disbarment. The A.B.A. standards for imposing lawyers’ sanctions provide in section 8.1 as follows:
“Disbarment is generally appropriate when a lawyer:
(A) Intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(B) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct [causing] injury or potential injury to a client, the public, the legal system, or the profession.
“The misdemeanor at issue in this proceeding, like the misconduct at issue in the proceedings reported in In re Matney, 241 Kan. 783, involve the Respondent’s use for his own benefit of monies belonging to others. The panel is of the opinion that the conduct is sufficiently similar such that disbarment is appropriate under subsection (B) of section 8.1. The panel further notes that the A.B.A. Standards for Imposing Lawyer Sanctions provide in section 9.2 that aggravating circumstances, including the existence of prior disciplinary offenses, may justify an increase in the degree of discipline to be imposed.”
The respondent did not file exceptions to the panel report. He did not appear before this court either in person or by counsel.
After a review of the record before this court, we agree with and adopt the panel’s findings, conclusions, and recommendations.
It Is Therefore Ordered that Harold V. Matney be and he is hereby disbarred from the practice of law in this state, and the clerk of the appellate courts is directed to strike his name from the roll of attorneys authorized to practice law in Kansas.
It Is Further Ordered that the costs of the proceeding be assessed to the respondent, and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
McFarland, J.:
In this appeal, a single narrow issue of statutory interpretation is raised. Specifically, does K.S.A. 1990 Supp. 44-504(d) require the trial court to reduce an employer’s workers compensation subrogation interest: (1) by the percentage of fault attributed to the employer by the factfinder; or (2) by the percentage of the damage award itself attributable to the employer’s negligence? The trial court interpreted K.S.A. 1990 Supp. 44-504(d) to require the employer’s subrogation to be reduced by the percentage of fault attributed to the employer. David Brabander, the injured worker herein, appeals from this determination.
The background facts may be summarized as follows. On July 12, 1987, David Brabander was employed by Wayne’s Trucking of Great Bend. He was engaged in setting a battery of oil tanks at an oil lease site near Utica. The truck utilized in the work was equipped with a boom, and the boom came in contact with a power line owned by Western Cooperative Electric Association, Inc. As a result thereof, Brabander was severely injured. Brabander filed a third-party action against Western Cooperative pursuant to 44-504.
The jury found Brabander’s employer, Wayne Trucking, to be 53 percent at fault and Western Cooperative to be 47 percent at fault. Damages were fixed at $327,876.46. Pursuant to K.S.A. 1990 Supp. 44-501 and K.S.A. 1990 Supp. 60-258a, the trial court reduced Brabander’s damage award by the 53 percent fault attributed to the employer, leaving a net judgment of $154,101.93. No complaint is made in regard to such reduction. Workers compensation benefits of $176,441.45 had been paid to Brabander by his employer’s workers compensation insurance carrier, Commercial Union Insurance, which company had a subrogation interest in said amount. The trial court applied K.S.A. 44-504(d) by reducing Commercial’s subrogation interest by 53 percent, the percentage of fault attributed to the employer. This fixed Commercial’s subrogation interest in the $154,101.93 judgment at $72,427.91. Brabander contends Commercial’s subrogation interest should have been reduced by the percentage of the damage award attributable to the employer ($327,876.46 times .53 equals $173,774.52). This would have reduced the subrogation interest to $2,666.93 ($176,441.45 minus $173,774.52 equals $2,666.93).
K.S.A. 1990 Supp. 44-504(d), which is identical to K.S.A. 44-504(d), in effect at the time of the accident, provides:
“If the negligence of the worker’s employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the party’s injury, the employer’s subrogation interest or credits against future payments of compensation and medical aid, as provided by this section, shall be diminished by the percentage of the damage award attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker.” (Emphasis supplied.)
In its memorandum decision, the trial court stated:
“The method of computation is indirectly addressed in Anderson v. National Carriers, Inc., 240 Kan. 101 [727 P.2d 899 (1986)]. In that case, the method of computation urged by the insurance company was approved by the Supreme Court even though the method of computation was not the specific issue being resolved.
“The statute is easier to read and its meaning, I believe, is more clear if it is stated as follows: ‘If the negligence of the . . . employer . . . contributed ... to the . . . injury, the . . . subrogation inter est . . . shall be diminished by the percentage of the damage award attributed to the negligence of the employer . . . .’ The Plaintiffs construction of this statute would require the critical words to read as follows: shall be diminished by the amount of the damage award attributed to the negligence of the employer.
“I find the statute to be ambiguous and extremely poorly worded. The critical language would be more meaningful and easily understood if it were to read, ‘shall be reduced by the percentage of the fault attributable to the employer . . .’or ‘shall be reduced by the amount of damages attributable to the employer . . . .’
“However, the headnote in Anderson is controlling and the motion is resolved in favor of the Insurance Company and the Insurance Company’s counsel is directed to prepare an order reflecting this determination and setting out the correct amounts of distribution in accordance herewith.”
The central issue in Anderson v. National Carriers, Inc., 240 Kan. 101, 727 P.2d 899 (1986), was whether the 1982 amendment to 44-504 which, for the first time, authorized a diminution of an employer’s subrogation interest based upon fault of the employer was to be applied prospectively or retrospectively. The injury in Anderson had occurred prior to the amendment and the settlement with the third party had occurred after the amendment. The syllabus in Anderson, however, does state:
“In an appeal by the workers’ compensation insurance carrier and lien claimant from a judgment apportioning the recovery made by the injured worker against a third-party tortfeasor, it is held that the trial court did not err (1) in reducing the subrogation lien by the percentage of fault attributed to the employer, pursuant to K.S.A. 1985 Supp. 44-504(d), or (2) in awarding attorney fees to be paid proportionately by the employer and the injured worker. It is further held that the trial court did err in awarding all of the post-judgment interest to the injured worker and in failing to award the employer post-judgment interest on the amount of the subrogation lien.” (Emphasis supplied.)
The mechanics of how the amendment should be applied in reducing an employer’s subrogation interest was not an issue in Anderson and, accordingly, Anderson is neither controlling nor persuasive on the question before us.
At this point, certain principles of statutory construction need to be stated. The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Bell v. Simon, 246 Kan. 473, 476, 790 P.2d 925 (1990). 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. Randall v. Seemann, 228 Kan. 395, Syl. ¶ 1, 613 P.2d 1376 (1980). Interpretation of a statute is a matter of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. Little Balkans Foundation, Inc., v. Kansas Racing Comm’n, 247 Kan. 180, 184, 795 P.2d 368 (1990).
In Anderson, we adopted certain portions of the Court of Appeals decision. Included therein were the following statements relative to the circumstances leading to the enactment of K.S.A. 44-504(d):
“ ‘K.S.A. 1985 Supp. 44-504(a) allows an employee who is injured by a third party to sue such third party for damages and still be entitled to workers’ compensation benefits. In the event the employee recovers a judgment, the employer is subrogated “to the extent of the compensation and medical aid provided by the employer.” K.S.A. 1985 Supp. 44-504(b). Prior to 1982, K.S.A. 44-504 did not provide for reduction of an employer’s subrogation lien if the employer was found to be partially at fault for the employee’s injuries, even though K.S.A. 60-258a provided for comparative fault. The Kansas Supreme Court recognized the inequities in allowing a partially negligent employer to recover lull subrogation in Negley v. Massey Ferguson, Inc., 229 Kan. 465, 468-69, 625 P.2d 472 (1981). However, the Supreme Court refused to reduce the employer’s lien since “[t]he extent and nature of the subrogation rights of an employer under the workmen’s compensation statutes are matters for legislative determination.” 229 Kan. at 469.
“ ‘To remedy this inequity, the Kansas Legislature amended K.S.A. 44-504 effective July 1, 1982, by adding subsection (d).’ ” 240 Kan. at 103.
As the extent and nature of the subrogation rights of an employer under the workers compensation statutes are matters for legislative determination, the legislature has broad latitude in its enactments. It could have left the statutes as they were with no diminution of subrogation rights where an employer has been found to be negligent. It could have provided that any finding of employer fault totally eliminated the employer’s subrogation rights. In between these two extremes, numerous possibilities of formulas for computing diminution of the subrogation interest exist such as assessing some percentage of the percentage of fault attributed to the employer or some percentage of the damages attributed to the employer’s fault.
We conclude that close scrutiny of K.S.A. 1990 Supp. 44-504(d) does not disclose any ambiguity in what was intended. The statute, in pertinent part, states the employer’s subrogation interest “shall be diminished by the percentage of the damage award attributed to the negligence of the employer.” (Emphasis supplied.) The damage award in this case was $327,876.46. The employer’s percentage of fault was fixed at 53 percent. The percentage of the damage award attributed to the negligence of the employer is 53 percent of $327,876.46, which computes to $173,774.52. Had the legislature intended that the diminution was to be determined by applying the employer’s percentage of fault or negligence to the subrogation interest itself, it could have so provided as it did in the provision in Kansas Automobile Injury Reparations Act, enacted in 1977, currently codified as K.S.A. 1990 Supp. 40-3113a(d) as follows:
“In the event of a recovery pursuant to K.S.A. 60-258a, and amendments thereto, the insurer or self-insurer’s right of subrogation shall be reduced by the percentage of negligence attributable to the injured person.” (Emphasis supplied.)
The judgment of the district court is reversed and the case is remanded for the entry of a judgment consistent with the opinion herein. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the landowners (Michael S. Hales and Marlene S. Hales) from the entry of summary judgment in favor of The City of Kansas City, Kansas (The City). The trial court held the limitation of access to one-half of the landowners’ property is an exercise of police power for which no compensation is payable.
This matter arose as the result of The City preventing northbound traffic on Rainbow Boulevard from making a left turn into the south parking lot of the landowners’ apartment complex and preventing traffic leaving the same parking lot from making a left turn and proceeding north on Rainbow Boulevard.
The City prevented turns by installing a raised median that divides the northbound and southbound lanes of Rainbow Boulevard. The median was installed as part of the partial relocation and rebuilding of Rainbow Boulevard.
The landowners’ property, known as Cambridge West Apartments, is located on the west side of Rainbow Boulevard and has 48 separate units. There are two buildings with 24 units in each building. These two buildings lie to the north and south of each other, and are joined in the middle by an office/clubhouse complex, swimming pool, and tennis court. A parking lot lies north of the north building, and a separate parking lot lies south of the south building. The two parking lots are not connected. Vehicular traffic from one parking lot to the other can only be accomplished by using Rainbow Boulevard.
Prior to the partial relocation of Rainbow Boulevard, vehicles exiting from either of the lots could make either northbound or southbound turns onto Rainbow, while vehicles traveling either northbound or southbound on Rainbow could make turns directly into either of the lots. As a part of the road improvement project, Rainbow Boulevard in the vicinity of the landowners’ property was relocated slightly easterly of its original location, new curbing was installed, a traffic signal was installed at 36th Street, and a raised median was constructed between the northbound and southbound lanes of Rainbow Boulevard south of 36th Street.
The landowners’ north and south parking lots each retain a driveway directly connecting the lots to Rainbow Boulevard. Vehicles exiting the landowners’ north parking lot are able to make northbound and southbound turns onto Rainbow, and both northbound and southbound Rainbow traffic is able to turn directly into such lot. All traffic movements into and out of the north parking lot are regulated by a traffic signal installed at 36th Street. The median, however, prevents traffic access to and from the south lot to and from the northbound lane.
The City took both a permanent and temporary easement on a portion of the landowners’ property (neither of which contributed to the issue in question). The landowners argue that The City elected to acquire by eminent domain a right to limit access to their property as opposed to limiting access under its police powers.
Neither the petition nor the appraisers’ report make reference to limiting access to the landowners’ property. The landowners rely on incorporation of the plans and specifications furnished by The City’s right-of-way department in the appraisers’ report for its argument that The City elected to acquire by eminent domain the right to limit access.
The landowners rely on Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259 (1959), for authority. In Smith, the State sought to acquire rights of access in its petition. In this case, The City did not seek to acquire access in the petition. It has consistently claimed it was limiting access under its police power and not by eminent domain. The trial court so found and we agree that The City did not elect to acquire by eminent domain the right to limit access to landowners’ property.
In Hudson v. City of Shawnee, 246 Kan. 395, 403, 790 P.2d 933 (1990), we held that the reasonableness of a police power regulation may be administratively asserted at any time by a city and tried in a condemnation action.
Here, it is important to recognize that we are not dealing with a denial of access because of a condemnation action or even a limitation of access by reason of a condemnation action. The condemnation action is immaterial to the issue before us. The City simply has limited the general public’s ability to make a left turn in the area of the landowners’ south parking lot. We view this issue the same as we would if The City had decided to prohibit left turns at this area.
The parties stipulated that the purpose of the improvement project “is to upgrade Rainbow [Boulevard] capacity to safely handle the present large volume of traffic, and to safely handle the predicted increase in traffic volume in the future.” The parties also stipulated that in order to increase the Boulevard’s capacity to safely handle the increasingly large volumes of traffic, the raised median was installed to “limit the location where traffic may enter and exit the traffic flow, thereby increasing the volume of traffic which can safety travel Rainbow Boulevard.”
As stated in Syl. ¶ 3, Hudson v. City of Shawnee, 246 Kan. at 395, “Concurrent with a compensable taking in a condemnation proceeding, the State may validly exercise the police power for traffic control and public safety, for which there can be no com pensation, even if it affects the method of ingress and egress to the affected property.”
As reported in 2A Nichols on Eminent Domain 6.37(4) (rev. 3d ed. 1990), interference with passage along a public way under an exercise of police power by installing a median strip, limiting the mode and type of traffic, and instituting one-way traffic is not a compensable taking. See State ex rel. Moore v. Bastian, 97 Idaho 444, 546 P.2d 399 (1976) (median strip); State v. Cheris, 153 Ind. App. 451, 287 N.E. 2d 777 (1972) (median strip does not constitute a taking of property within the meaning of the law of eminent domain); Barnes v. Highway Commission, 257 N.C. 507, 126 S.E.2d 732 (1962) (median strip); Realty Corp. v. Highway Comm., 15 N.C. App. 704, 190 S.E.2d 677 (1972) (median strip); Brill v. Dept. Transportation, 22 Pa. Commw. 202, 348 A.2d 451 (1975) (median strip); Dept. of Transportation v. Nod’s Inc., 14 Pa. Commw. 192, 321 A.2d 373 (1974) (median strip caused a 4-mile diversion of traffic from one side of the highway).
This court has recognized the above general rule. In Smith v. State Highway Commission, 185 Kan. at 454, this court said:
“It is well settled the limitation and regulation of highway traffic comes under the police power, and it makes no difference how or where any part of the traffic gained access to the road. The regulation of traffic without liability for the payment of compensation includes, among other things, prohibiting left turns, prescribing one-way traffic, prohibiting access or crossovers between separated traffic lanes, prohibiting or regulating parking, and restricting the speed, weight, size and character of vehicles allowed on certain highways.”
However, in Brock v. State Highway Commission, 195 Kan. 361, 371, 404 P.2d 934 (1965), this court commented that median dividers and one-way streets (as well as limited access highways, express thoroughfares, barrier curbs, and the like) may “place a restriction on an abutting property owner’s free and convenient access to his property, but as long as the restriction is reasonable the courts will not interfere.” This language is dicta and inconsistent with later cases.
In McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P.2d 1165 (1974), an issue was presented as to whether a witness in an inverse condemnation proceeding took into consideration the fact that a median strip was constructed in determining his opinion concerning the after value of the property. This court noted: “The trial court instructed the jury ‘that the landowner is not entitled to compensation for damages, if any, resulting from the regulation of traffic through prohibiting cross over between separate traffic lanes or construction of medial dividers.’ ” 215 Kan. at 399. Later in the opinion, this court stated:
“The appellant requested the trial court to instruct that the landowner is not entitled to compensation for damages, if any, resulting from the regulation of traffic through prohibiting left turns, prescribing one-way traffic, prohibiting cross over between separate traffic lanes, construction of medial dividers or barriers and installation of traffic control signals.
“The appellant contends the instruction would have permitted it to argue that the damages, if any, resulting from the extension or enlargement of the green island were not compensable, if it was a means of regulating traffic.
“While the foregoing requested instruction may have been proper in a given case, it has no application to the evidence presented at the trial in the instant case. There is no competent testimony in the record to show or even indicate that the closing of the west access entrance on Highway 50 was a means of regulating traffic. It must be conceded the city could regulate traffic, but no testimony was presented on this point and no testimony was presented as to its reasonableness. The only mention in the testimony was as to the median strips in the center of the highway, and the court instructed the installation of the median strips and what effect they might have had on market value was not compensable.
“Accordingly, the trial court properly refused to give the requested instruction of the appellant.” 215 Kan. at 401-02.
We conclude that limiting the landowners’ ingress and egress to lanes for southbound travel when they formerly had direct access to both the northbound and southbound lanes of traffic, whether by a median strip, one-way street, or no left turn,' is a valid exercise of police power and is not compensable. The trial court did not err in so holding.
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The opinion of the court was delivered by
Six, J.:
This first impression workers compensation case examines the interrelationship of K.S.A. 44-532a and K.S.A. 44-503. The examination requires discussion and resolution of questions relating to the liability of the Workers Compensation Fund (the Fund).
The Fund appeals the district court’s affirmance of the Workers Compensation Director’s review awarding workers compensation benefits to the claimant, Chong Sun Nedzia. The district court held that the Fund is liable for the claimant’s award under K.S.A. 44-532a. We affirm.
Our jurisdiction arises from K.S.A. 20-3017. We granted the Fund’s motion to transfer the appeal from the Court of Appeals to this court.
Facts
The district court adopted 32 numbered statements of fact submitted by the Fund and 10 statements of fact stipulated to by all parties. A summary of the uncontroverted facts follows.
On March 3, 1986, claimant Nedzia was injured in the course of her employment with Silicone Distributing, Inc. (Silicone). Silicone had contracted with the Osborne Construction Company (Osborne) to perform a portion of the cleaning and repair of buildings at Fort Riley that Osborne was obligated to perform under a government contract. When the government contract was initially awarded, Osborne intended to perform all required work. However, Osborne decided to subcontract the job to Silicone because Silicone had originally bid the job at a price considerably lower than had Osborne. Osborne’s purpose in subcontracting with Silicone was to allow Osborne to realize a profit on the work. Silicone had not been awarded the government contract because it was unable to provide a bond.
Under the terms of the government contract, Osborne was required to provide a certificate of workers compensation insur anee evidencing that Silicone, as a subcontractor, had the required coverage. A certificate showing Houston General Insurance Company (Houston General) as Silicone’s carrier was furnished to the government by Osborne. It is undisputed that Silicone was not insured by Houston General or any other insurer at the time of Nedzia’s injury.
Nedzia filed a timely claim for workers compensation benefits, naming as respondents her immediate employer, Silicone, and its purported insurance carrier, Houston General. Shortly thereafter, Nedzia impleaded the Fund because she believed Silicone might be uninsured or insolvent. Nedzia later, under K.S.A. 44-503, named a potential statutory employer, Osborne, and its insurance carrier, CNA Insurance Company (CNA), as additional respondents. (K.S.A. 44-503 refers to “principal.” The terms “statutory employer” and “principal” have been used in our opinions. The terms refer to the same employer.)
In August 1987, Osborne moved for dismissal on the grounds that a claimant may not proceed against both the claimant’s immediate employer and the claimant’s statutory employer, citing Coble v. Williams, 177 Kan. 743, 282 P.2d 425 (1955). In response to Osborne’s motion, Nedzia moved to dismiss Osborne and CNA without prejudice. Nedzia’s motion was granted in September 1987.
Between September 1987 and the date the Fund filed its petition for judicial review in the district court, neither Osborne nor CNA were parties to this proceeding.
The administrative law judge (ALJ) awarded Nedzia workers compensation benefits to be paid by Silicone. Silicone did not participate in the proceedings. The ALJ found that attempts to include Silicone and recover payment appeared to be unsuccessful and that Silicone had no insurance. Because Osborne had been dismissed, the ALJ was unable to enter an award against Osborne. The ALJ dismissed the Fund and indicated that Nedzia should pursue Osborne under K.S.A. 44-503.
Nedzia filed a motion to reinstate Osborne and CNA as parties. She also filed an application for the Director’s review of the ALJ’s decision. Osborne and CNA opposed the reinstatement motion, in part, on the basis that it was not timely. Nedzia’s motion to reinstate Osborne and CNA has never been decided.
The Director ruled in his February 1990 order as follows: (1) The amount of the award is increased to correspond to an 87% permanent partial general bodily disability from a 75% permanent partial general bodily disability, and (2) the Fund is liable for the award under K.S.A. 44-532a.
The decision on Fund liability, which is challenged in the district court and here on appeal, was premised on the fact that Silicone did not appear at any of the compensation claim proceedings. Fund liability also was based on the ALJ’s finding (“supported by the evidentiary record” and affirmed by the Director) that Silicone had no insurance coverage on the date of the accident.
The Director noted that, originally, Nedzia had named Osborne and CNA as respondents, but that “[p]ursuant to case law construing K.S.A. 44-503, the claimant chose to dismiss without prejudice the principal and proceed against the subcontractor, Silicone Distributing, Inc. and Houston General Insurance Company.” The Director then cited and applied K.S.A. 44-532a, finding that Silicone was an employer without insurance who could not be located and required to pay compensation.
The Fund contended that a claim against it can only be made after the injured worker has made a claim against a principal under K.S.A. 44-503 and after that principal (or principal’s insurance carrier) has been found to be unable to pay the award.
The Director responded that “[t]he answer to the contentions of the Workers’ Compensation Fund is that K.S.A. 44-532a makes no additional reference to inability of the principal to pay the award.” In the Director’s analysis, K.S.A. 44-503 provides that the claimant may proceed directly against the principal if the claimant was injured while working for a subcontractor but, upon initiation of a compensation claim against the subcontractor, “the principal is no longer a party to the action.” According to the Director, it is “only when the action is directly instituted against the principal that the statutory language referred to by the Workers’ Compensation Fund that ‘references to the principal shall be substituted for references to the employer’ applies.”
The Fund petitioned the district court for judicial review of the Director’s order. In its petition, the Fund purported to name Osborne and CNA as parties even though they had been dis missed on the motion of claimant approximately 2V2 years earlier. The issues raised by the petition for judicial review were briefed by all named parties (including Osborne and CNA).
The district court affirmed the Director’s order in all respects. The district court concluded initially “that there is insufficient evidence in the record clearly whether or not Osborne was a statutory employer.” The district court rejected the Fund’s contention that pursuit of a claim against Osborne (as a potential statutory employer) was a prerequisite for Fund liability under K.S.A. 44-532a.
We granted Houston General’s motion to be dismissed from this appeal because the ALJ, the Director, and the district court all found that Silicone was not insured by Houston General. The Fund is not challenging the finding of Silicone’s lack of insurance.
The District Court’s View
The district court reasoned that workers compensation statutory provisions are to be construed liberally in favor of the claimant. Nedzia elected to proceed against Silicone and its insurance carrier and to dismiss the alleged statutory employer. The district court pointed out that this election was mandated by Coble v. Williams, 177 Kan. 743, and that K.S.A. 44-532a does not purport to overrule Coble. (We shall address the relationship of Coble and K.S.A. 44-532a in due course.)
The district court noted that Nedzia had waited almost four years to be compensated for her injuries. The primary purpose of the Workers Compensation Act is to expeditiously provide an award of compensation in favor of an injured employee. Hobelman v. Krebs Construction Co., 188 Kan. 825, Syl. ¶ 5, 366 P.2d 270 (1961). K.S.A. 44-532a requires only that an employer of the claimant either have no insurance coverage or be incapable of being located and required to pay compensation. Further, K.S.A. 44-532a does not condition the worker’s claim against the Fund on an exhaustion of all other remedies that the claimant might have against others.
The Interplay of K.S.A. 44-503 and K.S.A. 44-532a
The scope of review by the district court in a workers compensation case is by trial de novo on the record. The district court hears no new evidence, but makes an independent adjudication of the facts and law based upon the record developed before the Director of Workers Compensation. Reeves v. Equipment Service Industries, Inc., 245 Kan. 165, 176, 777 P.2d 765 (1989). We may substitute our judgment on questions of law. On disputed issues of fact, we view the evidence in the light most favorable to the prevailing party and determine whether there is substantial competent evidence to support the district court. 245 Kan. at 173.
The interplay of K.S.A. 44-532a and K.S.A. 44-503, an issue of first impression, requires us to construe the statutes concerning liability of the Fund when an employer is either uninsured and insolvent or cannot be located and required to pay compensation.
In construing statutes, the legislative intent is to be determined from a general consideration of the entire act. It is our duty, as far' as is practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). In determining legislative intent, we are not limited to consideration of the language used in the statute. We may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
The Fund argues that the district court erroneously construed K.S.A. 44-532a by holding the Fund liable when Nedzia had not exhausted her claim against Osborne as a statutory employer under K.S.A. 44-503(a). In support of this argument, the Fund contends that the historical background of the Kansas Workers Compensation Act (K.S.A. 44-501 et seq.) (the Act) evidences the intent of the Kansas Legislature that the Fund should be liable only as a party of last resort. We agree, in part, with the Fund’s legislative intent analysis.
Because the district court found that there was insufficient evidence to determine whether Osborne was a statutory employer, Nedzia asserts the issue is moot. Addressing the merits, Nedzia argues that the Act contains no requirement that a claimant must exhaust remedies against a statutory employer before attempting to seek liability from the Fund under K.S.A. 44-532a. Osborne and CNA join in Nedzia’s argument on the merits, asserting that the plain language of K.S.A. 44-532a contains no administrative exhaustion requirement. Nedzia, Osborne, and CNA contend, under Coble, a claimant may not join his/her immediate employer and all potential statutory employers in one proceeding. They argue that requiring a claimant to exhaust remedies against all potential statutory employers is inconsistent with the purpose of the Act which is to expeditiously provide compensation to injured workers. We recognize the logic of their argument. We also recognize the dilemma placed before the district court by the instant factual situation.
K.S.A. 44-532a states:
“Liability of workers’ compensation fund for uninsured insolvent employers; cause of action against such employers, (a) If an employer has no insurance to secure the payment of compensation as provided in subsection (b)(1) of K.S.A. 44-532 and amendments thereto, and such employer is financially unable to pay compensation to an injured worker as required by the workmen’s compensation act, or such employer cannot be located and required to pay such compensation, the injured worker may apply to the director for an award of the compensation benefits, including medical compensation, to which such injured worker is entitled, to be paid from the workers’ compensation fund. If the director is satisfied as to the existence of the conditions prescribed by this section, the director may make an award, or modify an existing award, and prescribe the payments to be made from the workers’ compensation fund as provided in K.S.A. 44-569 and amendments thereto. The award shall be certified to the commissioner of insurance, and upon receipt thereof, the commissioner of insurance shall cause payment to be made to the employee in accordance therewith.
“(b) The commissioner of insurance, acting as administrator of the workers’ compensation fund, shall have a cause of action against the employer for recovery of any amounts paid from the workers’ compensation fund pursuant to this section. Such action shall be filed in the district court of the county in which the accident occurred or where the contract of employment was entered into.” (Emphasis added.)
K.S.A. 44-503 states in part:
“Subcontracting, (a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmen’s compensation act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workmens compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.
“(c) Nothing in this section shall be construed as preventing a workman from recovering compensation under the workmen’s compensation act from the contractor instead of the principal.
“(e) A principal contractor, when sued by a workman of a subcontractor, shall have the right to implead the subcontractor.
“(f) The principal contractor who pays compensation to a workman of a subcontractor shall have the right to recover over against the subcontractor.” (Emphasis added.)
Historical Background
The Workmen’s Compensation Act of 1911 contained a provision similar to K.S.A. 44-503. L. 1911, ch. 218, § 4. See Maughlelle v. Mining Co., 99 Kan. 412, 419, 161 Pac. 907 (1916). The purpose of K.S.A. 44-503 has been stated as follows:
“The purpose of the statute was to prevent an individual from contracting to another a portion of his business operation, and thus avoid liability for compensation to a workman injured in the performance of duties under the contract, when no recovery could be had from the subcontractor or its insurance carrier, because they are financially unable to pay the compensation award. The statute is primarily for the protection of the injured workman .... The statute provides, in substance, that the principal shall be liable to pay compensation to any injured workman of his subcontractor to the same extent as though the workman had been immediately employed by him. The purpose of this section is to give the workman a remedy against the principal.” Coble v. Williams, 177 Kan. 743, 750-51, 282 P.2d 425 (1955).
K.S.A. 44-532a was enacted in 1974. L. 1974, ch. 203, § 32.
The Fund also was established in 1974. L. 1974, ch. 203, § 46, codified at K.S.A. 44-566a. The Fund was made liable for three classifications of payments: (1) awards to handicapped employees; (2) benefits to an employee who is unable to recover benefits from such employee’s employer under K.S.A. 44-532a (the instant situation); and (3) reimbursement of employers or insurance carriers for preliminary awards later found to have been unwarranted. K.S.A. 44-566a(e).
The 1974 session of the Kansas Legislature substantially altered the Act. The 1974 legislation was influenced by federal interest in workers compensation. Wright and Rankin, Potential Federalization of State Workmen s Compensation Laws—The Kansas Response, 15 Washburn L.J. 244 (1976). See Proposal No. 3— Review of Workmen’s Compensation Laws, Report on Kansas Legislative Interim Studies to the 1974 Legislature (November 1973) and Kansas Workers Compensation Handbook § 1.02 (3d ed. 1990).
A report by the National Commission on State Workmen’s Compensation Laws recommended that the states establish procedures “to provide benefits to employees whose benefits are endangered because of an insolvent carrier or employer, or because an employer fails to comply with the law mandating the purchase of workmen’s compensation insurance.” Minutes of the Senate Committee on Public Health and Welfare, 1974 Kansas Legislature, February 14, 1974, attachment B.
The Fund is financed by appropriation from the State’s general fund and from an annual assessment imposed by the Commissioner of Insurance against all insurance carriers and self-insurers. K.S.A. 44-566a(b)(l) and (2).
Prior to the 1974 amendments, the procedures for enforcing the liability of a statutory employer were well established. Under G.S. 1949, 44-503(a), a claimant could proceed against either the principal (statutory employer) or the contractor (immediate employer). The claimant could not join both the contractor and the principal in the same proceeding. If the action was brought against the contractor and an award was entered, the contractor was primarily liable. The principal was contingently liable, and, if the contractor should be unable to respond and pay the award, the claimant was entitled to payment by the principal. Coble, 177 Kan. at 751.
Where an award was entered against a contractor and, after 140 weeks of payments, the contractor and his insurance carrier became insolvent, the principal was held to be liable for the award. Williams v. Cities Service Gas Co., 139 Kan. 166, 170, 30 P.2d 97 (1934).
Construing K.S.A. 44-532a
The Fund reasons that K.S.A. 44-532a was not meant to supplant the prior compensation procedure. K.S.A. 44-532a, according to the Fund’s assertion, provides a “safety net” after a claimant’s remedies against all potential statutory employers have been exhausted.
The district court found and Osborne, CNA, and Nedzia argue that K.S.A. 44-532a provides Nedzia with another option. Instead of having to make a claim against another potential employer, the claimant is allowed to implead the Fund and secure an order to direct the Fund to pay the benefits. We agree with this option analysis.
The historical background, legislative history and language of the statute are inconclusive; however, we recognize a degree of merit in the Fund’s “safety net” metaphor. The burden of exhausting remedies against all potential employers is not to be carried by the claimant alone. The claimant need only elect to assert a compensation claim against either the immediate or the statutory employer, as was done by Nedzia. If the employer from which compensation is sought is insolvent or cannot be located, the Fund may be impleaded. If the Fund pays on a claim, it may assert a K.S.A. 44-532a(b) cause of action against either the insolvent or unlocated employer, or the solvent statutory employer (principal), or both. However, the Fund may receive only one recovery.
K.S.A. 44-503(a) states in part: “[Wjhere compensation is claimed from or proceedings are taken against the principal, then in the application of the workmen’s compensation act, references to the principal shall be substituted for references to the employer.” Therefore, “an employer” in K.S.A. 44-532a would refer to “a principal” where compensation is claimed from or proceedings are taken against the principal.
In the case at bar, Nedzia named Osborne and CNA as respondents and later dismissed them. Osborne and CNA contend compensation is not claimed from and proceedings are not being taken against them; consequently, “principal” should not be substituted for “employer” in K.S.A. 44-532a.
The Fund argues that “employer” in K.S.A. 44-532a(a) and (b) must refer to the same entity. If “employer” in K.S.A. 44-532a(a) does not refer to a principal, then “employer” in K.S.A. 44-532a(b) cannot refer to a principal. Therefore, the Fund may not recover against the principal once it has paid the claimant. The Fund observes that the principal escapes liability contrary to the intent and purpose of K.S.A. 44-503 yet still enjoys immunity from common-law actions under K.S.A. 44-501(b).
We question the Fund’s argument. Once the Fund files a K.S.A. 44-532a(b) cause of action against the alleged principal, the references to “employer” in K.S.A. 44-532a may be substituted with references to “principal.” K.S.A. 44-503(a).
The Act does not provide a mechanism for the Fund to implead the principal of the immediate employer. K.S.A. 44-532a(b) specifically provides that the Fund’s action against the employer shall be filed in the district court. If the Fund is liable as a result of an immediate employer’s failure to pay, it may assert a cause of action against the principal in a separate action under K.S.A. 44-532a(b).
We interpret the interrelationship of K.S.A. 44-532a and K.S.A. 44-503 to permit the Fund to utilize K.S.A. 44-532a(b) to assert any statutory cause of action it deems it may have against Osborne as a result of payment of compensation benefits.
In the case at bar, the district court found that Nedzia had suffered an inordinate wait because she had been without compensation for a good portion of the four years between the date of her injury (March 3, 1986) and the date the district court rendered its decision (June 1, 1990).
In Nedzia’s situation, there was only one potential principal (Osborne); however, it is possible to have more than one potential principal. See Quigley v. General Motors Corp., 660 F. Supp. 499 (D. Kan. 1987) (two statutory employers were named). If we were to adopt the Fund’s argument, absent the claimant’s ability to join all of the potential statutory employers in the proceeding, the claimant could be required to pursue one potential statutory employer after another. Such a situation could conceivably prolong the claimant’s wait for compensation. This is contrary to the policy and purpose of the Act.
Osborne, relying on Coble, initiated its and CNA’s dismissal from the proceedings by filing a motion for dismissal. Coble was filed in 1955. Osborne’s rationale is keyed to Syl. ¶ 5 of the Coble opinion, which is qualified by the phrase “[ujnder the facts as related in the opinion . . . .” (Emphasis added.) What were the facts as to employer solvency in Coble? Both the immediate employer, Williams, and the statutory employer (principal), National Lead Company, were solvent and could be located. In Coble, we discussed G.S. 1949, 44-503, observing that the statute was primarily for the protection of the injured worker but that it did not authorize a double recovery against both the subcontractor and principal in the same action. 177 Kan. at 750.
In the instant action, Silicone is insolvent and uninsured. Although Silcone’s bid was lower than Osborne’s, it was not awarded the primary contract for the repair and cleaning work at Fort Riley because it was unable to provide a bond. After Osborne was awarded the contract, it subcontracted with Silicone for the work which Osborne had submitted the higher bid to do. Osborne provided the government with the required certificate of workers compensation insurance, evidencing that Silicone had. the required coverage. Silicone had no such insurance at the time of Nedzia’s injury. Unlike Coble, there is no possibility of a double recovery in the case at bar because Silicone is insolvent and uninsured.
Under the statutory scheme existing at the time of Coble, the immediate employer was primarily liable, with contingent liability imposed upon the principal employer. 177 Kan. at 751.
The adoption of K.S.A. 44-532a in 1974 provides a legislative overlay to our prior case law.
We hold that Nedzia is not required to exhaust her remedies against both the subcontractor, Silicone, and the principal, or statutory employer, Osborne, before asserting her claim against the Fund. The award against the Fund is affirmed.
None of parties have questioned the propriety of the amount of the Director’s award. The Fund states that there is no issue concerning Nedzia’s entitlement.
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The opinion of the court was delivered by
Holmes, C.J.:
The petitioner, John R. Kennon, appeals from an order of the Sedgwick County District Court denying Kennon’s petition for a writ of habeas corpus and thereby permitting Ken-non’s extradition to Alabama. The Court of Appeals affirmed the district court, and we granted Kennon’s petition for review. We reverse.
The issues asserted by Kennon are:
I: Whether the district court erred in failing to grant Ken-non’s petition when no facts proved Kennon was a fugitive from justice as required by K.S.A. 22-2702, the statute under which the State of Kansas was proceeding.
II. Whether the district court erred in failing to grant Ken-non’s petition when the extradition documents were framed under K.S.A. 22-2702, depriving Kennon of the gubernatorial discretion which is his due process right under K.S.A. 22-2706.
III. Whether K.S.A. 22-2706 is unconstitutional under the Compact Clause of Article I, Section 10 of the United States Constitution because the powers exercised under that statute extend beyond the jurisdiction of the State of Kansas without Congressional consent.
IV. Whether Kennon’s petition should have been granted because the extradition documents do not show a finding of probable cause by an Alabama judge.
On July 14, 1989, the petitioner John R. Kennon was arrested in Kansas as a “fugitive from justice from Elmore County, Alabama,” where he had been charged with two counts of capital murder and one count each of attempted murder and felony assault. On July 28, 1989, Kennon filed a petition for writ of habeas corpus, claiming his restraint was unlawful because Alabama lacked jurisdiction, he had never been in Alabama, and he never acted to cause a crime in Alabama. A writ was issued the same day and a hearing scheduled which was continued by agreement of the parties, pending receipt of a warrant from the Governor of Kansas.
On August 31, 1989, Governor Mike Hayden issued a governor’s warrant for Kennon’s arrest and rendition to the Alabama authorities. The warrant stated that demand had been made from the Governor of Alabama, certified copies of a “Complaint, Indictment, Warrant and Supporting documents” had been provided by the Governor of Alabama charging Kennon with “Capital Murder, two counts, attempted murder, assault,” and “[i]t has been made to appear to me that the said John Kennon is within the State of Kansas, fugitive from the justice of the State of Alabama. ”
The documents provided to the Governor of Kansas included an indictment by an Elmore County, Alabama, grand jury, a true bill, an Alabama arrest warrant, an application for extradition by an Alabama district attorney, and the demand or requisition from the Governor of Alabama.
The indictment returned by the Elmore County, Alabama, grand jury alleged that
“John Kennon . . . did for a pecuniary or other valuable consideration or pursuant to a contract for hire intentionally cause the death of another person, to-wit: Clemer E. Woodall, by shooting her with a pistol . . . [Count I], . . . John Kennon . . . did with the intent to cause the death of another person, intentionally cause the death of Clemer E. Woodall by shooting her with a pistol . . . during the time that the said John Kennon and another participant in the crime was in the course of committing a theft . . . [Count II], . . . John Kennon did . . . attempt to intentionally cause the death of Elmer H. Woodall, by shooting at or in the direction of Elmer H. Woodall with a pistol . . . [Count III]. . . . John Kennon did . . . cause serious physical injury to Elmer H. Woodall, by means of a deadly weapon or a dangerous instrument, to-wit: a pistol . . . [Count IV].”
The application for extradition, submitted to the Governor of Alabama by Janice Clardy, an Alabama district attorney, on July 20, 1989, stated in pertinent part: .
“That one JOHN KENNON (hereinafter referred to as the accused) is charged in ELMORE County Alabama with the offenses of Capital Murder (2 counts), Attempted Murder, and Assault I, as shown by the certified copies of INDICTMENT and writ of arrest accompanying this petition. This offense is alleged to have been committed on or about June 26, 1989, in or near the city of TALLASSEE in the county of ELMORE, in the State of ALABAMA . . . .”
The application then sets forth the four counts charged in language nearly identical to that contained in the indictment and continues:
“That said accused is now a fugitive from justice in this State and is believed to have taken refuge in the State of KANSAS and is at the present time in or near WICHITA in that State.
“That it is necessary for the ends of justice that said fugitive should be returned to the State of Alabama . . . .”
In response to the above documents, the Governor of Alabama on July 31, 1989, made demand on the Governor of Kansas for Kennon’s extradition to Alabama. The requisition provides:
“WHEREAS, It appears by the annexed copy of an INDICTMENT AND WRIT OF ARREST which is hereby duly certified to be authentic in accordance with the Laws of this State, that JOHN KENNON stands charged with the crimes of CAPITAL MURDER (2 CTS.), ATTEMPTED MURDER, ASSAULT I committed in the County of ELMORE in this State, and it has been represented to me that JOHN KENNON has taken refuge in the State of KANSAS.
NOW THEREFORE, pursuant to the provisions of the Constitution and Laws of the United States in such case made and provided, I request that you cause the said JOHN KENNON to be apprehended and delivered to SHERIFF SIDNEY THRASH AND/OR HIS DULY AUTHORIZED AGENT(S) who are hereby authorized to receive and convey him to the State of Alabama, there to be dealt with according to law.”
In reliance upon these documents Governor Hayden issued a warrant for Kennon’s arrest and rendition to Alabama.
At his habeas corpus hearing, held on September 15, 1989, Kennon continued to obj'ect to his extradition, claiming among other things that Governor Hayden’s warrant and the indictment are invalid because they refer to Kennon committing acts in Alabama but that Kennon was never in Alabama, could not be a principal to the crime, and could not be a fugitive from Alabama. The evidence produced at the hearing conclusively proved that Kennon was not in Alabama at the time of the alleged crimes. Two witnesses for Kennon testified Kennon was present in Kansas on June 26, 1989.
In addition to the two witnesses presented by Kennon, an agent with the Alabama Bureau of Investigation and an agent with the Kansas Bureau of Investigation testified to the facts which provided the basis for the indictment against Kennon. Their inves tigation showed that the death of Clemer Woodall and the wounding of Elmer H. Woodall were physically committed by Freddie Glenn Pope. The agents testified that Pope identified J.C. Woodall as the person who paid him and John Kennon as the person who introduced Pope to Woodall in exchange for payment. Furthermore, according to the agents, Pope also stated that Kennon asked Pope if he could be hired to kill someone in Alabama. The agents subsequently interviewed Kennon at Wesley Hospital, where Kennon allegedly told them that J.C. Woodall asked him to kill or shoot someone in Alabama and he declined; Woodall then asked Kennon to help him find someone who would perform the killing, and Kennon told him of Pope. All of the incidents involving Kennon took place in Kansas and the Sedgwick County assistant district attorney representing the State candidly advised the court, “I don’t think anyone seriously argues that any conduct that Kennon committed was committed in the State of Alabama. It was committed in the State of Kansas.”
In response to Kennon’s argument that the warrant and indictment were invalid because he was not a principal and thus not a fugitive as stated in the warrant, the State contended and the trial court held that Kennon was a fugitive under K.S.A. 22-2706, which allows extradition when a person has committed an act outside the demanding state intentionally resulting in a crime in the demanding state. Relying on Greenbaum v. Darr, 220 Kan. 525, 552 P.2d 993 (1976), and an Alabama statute providing jurisdiction for crimes beginning outside Alabama and ending in Alabama, the trial court further held that the failure of the extradition documents, and in particular the indictment, to allege that Kennon’s acts were committed in Kansas, not in Alabama, was not fatal to extradition. Accordingly, the court dissolved the writ of habeas corpus previously issued but extradition was stayed pending appeal.
The Court of Appeals affirmed in an unpublished opinion, Kennon v. State, No. 64,373, filed September 28, 1990, with Judge Elliott dissenting. We accepted Kennon’s petition for review.
The first two issues asserted by petitioner overlap, are inextricably intertwined, and will be considered together.
This proceeding is controlled by the Kansas Uniform Criminal Extradition Act, K.S.A. 22-2701 et seq., which provides in pertinent part:
“22-2702. Fugitives from justice; duty of governor. Subject to the provisions of this article, the provisions of the constitution of the United States controlling, and any and all acts of congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.”
“22-2703. Form of demand. No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under K.S.A. 22-2706 and amendments thereto, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter the accused fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon .... The indictment, information affidavit or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.”
“22-2706. Persons not present in the demanding state at time of commission of crime. The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 22-2703 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.”
K.S.A. 22-2702 and 22-2703 are the statutes which give operative effect to Article IV, § 2, cl. 2 of the United States Constitution, which provides:
“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up to be removed to the State having Jurisdiction of the Crime.”
The federal counterpart to K.S.A. 22-2702 and 22-2703 is 18 U.S.C. § 3182 (1988).
The crucial distinction between K.S.A. 22-2702 and K.S.A. 22-2706 is that extradition of a person who has committed a crime in the demanding state (Alabama) and fled therefrom is mandatory and the governor in the receiving state (Kansas) must grant the extradition request, assuming all the required formalities of K.S.A. 22-2703 and other portions of the act are met, while extradition of a person who has committed an act in the receiving state or a third state intentionally resulting in a crime in the demanding state is discretionary with the governor of the receiving state, in this case Governor Hayden of Kansas.
The State does not seriously dispute that the extradition documents are based upon K.S.A. 22-2702, but attempts to avoid the clear language of K.S.A. 22-2706 by asserting that Kennon is a fugitive from justice and either statute mandates his extradition to Alabama.
In Michigan v. Doran, 439 U.S. 282, 288-89, 58 L. Ed. 2d 521, 99 S. Ct. 530 (1978), the United States Supreme Court held: “[T]he courts of an asylum State are bound by Art. IV, § 2, cf. Compton v. Alabama, 214 U.S. 1, 8 (1909), by [18 U.S.C.] § 3182 and, where adopted, by the Uniform Criminal Extradition Act.”
There is an established body of case law under the federal Constitution and statute encompassing what this court in State v. Smith, 232 Kan. 128, 652 P.2d 703 (1982), expressed as follows:
“In speaking of the limitations on the scope of the inquiry in courts of the asylum state in extradition proceedings, the United States Supreme Court in Michigan v. Doran, 439 U.S. 282, 289, 58 L. Ed. 2d 521, 99 S. Ct. 530 (1978), said:
‘A governor’s grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Cf. Bassing v. Cady, 208 U.S. 386, 392 (1908). Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.’ ” 232 Kan. at 133. (Emphasis added.)
In the historic case of Hyatt v. Corkran, 188 U.S. 691, 47 L. Ed. 657, 23 S. Ct. 456 (1903), the petitioner, Corkran, sought a writ of habeas corpus when he was held by New York authorities for extradition to Tennessee. The extradition proceedings alleged that Corkran was a fugitive from justice from the State of Tennessee for crimes he allegedly committed in Tennessee. At the hearing, it was conceded that Corkran had not been in the State of Tennessee at the time of the commission of the alleged crimes. The Court stated:
“[A]s the [petitioner] showed without contradiction and upon conceded facts that he was not within the State of Tennessee [demanding state] at the times stated in the indictments found in the Tennessee court, nor at any time when the acts were, if ever, committed, he was not a fugitive from justice within the meaning of the Federal statute upon that subject, and upon these facts the warrant of the governor of the State of New York [asylum state] was improperly issued . . . .” 188 U.S. at 719.
This court cited Corkran (along with numerous other cases) in King v. Hawes, 224 Kan. 335, 580 P.2d 1318 (1978), for the holding: “To require and justify the rendition of an accused by the asylum state to the demanding state it must be shown that he is . . . (3) a fugitive, which is to say that the accused was in the demanding state when the alleged crime was committed.” 224 Kan. at 336. (Emphasis added.)
The State does not argue with the cases cited by Kennon but merely contends that he is a fugitive from justice because K.S.A. 22-2706 simply expands the definition of fugitive from justice found in Article IV, § 2, cl. 2; K.S.A. 22-2702; and the cases cited by petititioner. However, to adopt the arguments of the State would be tantamount to a finding that K.S.A. 22-2706 is meaningless. The clear language of the statute precludes any such determination. Under the Kansas Uniform Criminal Extradition Act, the term fugitive requires that the accused was in the demanding state when the alleged crime was committed. King v. Hawes, 224 Kan. 335, Syl. ¶ 1.
The State and the trial court relied upon Greenbaum v. Darr, 220 Kan. 525, wherein the State of Texas sought to extradite Greenbaum for various crimes which allegedly were committed in Texas but were in fact committed in Kansas. However, some of the documents submitted in support of the extradition proceedings clearly indicated that Greenbaum’s actual participation in the alleged crimes took place in Kansas and not in Texas. The court, in denying Greenbaum’s arguments, adopted the rule that all of the documents should be read together in determining their sufficiency under K.S.A. 22-2706. In doing so, the court stated:
“A careful reading of 22-2706 demonstrates that in order to extradite a person not present in the demanding state at the time of the commission of the crime, the person must be charged ‘in the manner provided in section 22-2703 with committing an act in this state or in a third state, intentionally resulting in a crime’ in the demanding state. By reference to 22-2703, it is clear that the governor’s demand must be accompanied by an indictment, information affidavit, or affidavit made before a magistrate, substantially charging the person with a crime under the laws of the demanding state.
“While we acknowledge that a strict construction of the statutes involved [22-2703 and 22-2706] could lead to the conclusion now urged upon us by petitioner, we believe the better rule is to judge the substantiality of the ‘charge’ for purposes of extradition by consideration of the indictments in conjunction with the supporting requisition documents.” 220 Kan. at 528. (Emphasis added.)
Although the extradition was granted in Greenbaum, it was done so based upon a consideration of all the extradition documents which, when read together, clearly met the requirements of K.S.A. 22-2706. When considered together, the documents were sufficient to inform the governor that extradition was sought pursuant to that statute and that the governor had the discretion to grant or deny the extradition.
Here, the documents seeking Kennon’s extradition uniformly alleged that he committed the crimes in Alabama, and there is nothing in the documents, individually or when read together, that would have given any indication to the Governor of Alabama or the Governor of Kansas that Kennon’s participation, if any, in the alleged crimes took place in Kansas, not Alabama.
K.S.A. 22-2706 clearly applies to the facts of this case and the governor had the discretion to deny the request for extradition. Unfortunately, there is nothing in the various extradition papers submitted to the governor and nothing in this record which would indicate that Governor Hayden was ever made aware of the fact that this was an extradition in which he had discretion under K.S.A. 22-2706 and not a mandatory extradition under K.S.A. 22-2702.
The State has cited no authority to support its arguments that the documents in this case are sufficient to support an extradition under K.S.A. 22-2706. To the contrary, our research discloses that all of the cases on point support the conclusion that the documents in this case are insufficient to allow extradition under K.S.A. 22-2706. See Dutil v. Rice, 34 Conn. Supp. 78, 376 A.2d 1119 (1977); People ex rel Bernheim v. Warden, 95 Misc. 2d 577, 408 N.Y.S. 2d 285 (1978); Earhart v. Hicks, 656 S.W.2d 873 (Tenn. Crim. App. 1983). In Warden the court succinctly pointed out the serious consequences of allowing an extradition under facts similar to the ones now before this court. The New York court stated:
“In the case before us, there has been a substantial violation of the relator s rights. As a result of the error involved, the warrant to extradite the relator was issued as a matter of course by the Governor, as mandated. by the United States Constitution and relevant Federal and State laws. The relator was fundamentally harmed since he was deprived of the Governor’s exercise of discretion and the other conditions of surrender to the demanding state as provided for under CPL 570.16 [the New York counterpart to K.S.A. 22-2706], That the Governor may well have decided to extradite the defendant anyway, does not justify circumventing the Governor s discretionary judgment.
“The courts have consistently invalidated warrants for extradition where errors have deprived persons from receiving the benefit of the Governor’s exercise of discretion.” 95 Misc. 2d at 579-80. (Emphasis added.)
Our statutes on extradition, K.S.A. 22-2701 et seq., essentially conform to the Uniform Criminal Extradition Act adopted by the National Conference of Commissioners on Uniform State Laws and were enacted by the legislature in 1937. K.S.A. 22-2729 provides:
“Uniformity of interpretation. The provisions of this act [article] shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact it.”
All of the relevant cases which we have found from other jurisdictions which have adopted the uniform act support the conclusion that the writ of habeas corpus should have been granted in this case.
The conceded facts clearly demonstrate that this extradition proceeded under K.S.A. 22-2702 and the governor was denied any opportunity to exercise his discretion under the proper statute, which was K.S.A. 22-2706. If the documents from Alabama had accurately set forth allegations that the acts of Kennon in Kansas intentionally resulted in the crimes in Alabama, then that requirement of K.S.A. 22-2706 would have been met and the governor could have exercised the required discretion in considering whether to grant extradition. In view of our conclusions, there is no need to address the other issues asserted by Kennon.
The judgment of the Court of Appeals and the judgment of the district court are reversed. The case is remanded to the trial court with directions to grant the writ of habeas corpus. | [
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The opinion of the court was delivered by
Lockett, J.:
Jimmie Lee Hobbs was convicted by a jury of aggravated robbery (K.S.A. 21-3427), first-degree felony murder (K.S.A. 21-3401), and unlawful possession of a firearm (K.S.A. 21-4204). Hobbs received a controlling sentence of life plus three to ten years. On appeal, Hobbs claims: (1) The trial court erred in denying his request for jury instructions of the lesser included offenses of second-degree murder and voluntary manslaughter and (2) the prosecutor’s remarks made during closing argument were so prejudicial as to warrant a new trial.
Donald Bass lived by himself in Wichita. When Bass failed to call his mother before retiring at 9:00 p.m. and failed to show up for breakfast the next day, his mother became worried. Mrs. Bass and a friend went to Donald’s house, where they discovered his body covered with blood. His VCR and guns were missing. The police discovered no identifiable fingerprints or evidence of a forced entry into the house.
Bass’ mother informed a detective that her son had mentioned that an individual named James had been at his house during the weekend prior to the murder to sell him a gold necklace. She stated that the visitor had requested to use the bathroom but her son had to refuse his request because his water pipes were frozen. On April 7, 1989, Jimmie Lee Hobbs was charged with aggravated robbery, K.S.A. 21-3427, felony murder of Donald Bass, K.S.A. 21-3401, and unlawful possession of a firearm, K.S.A. 21-4204.
The deputy county coroner, who performed the autopsy on Bass’ body, testified Bass had died from injuries caused by several blows to the head. He stated there were six areas of injury to the head. He said that two of the wounds were consistent with the shape of a pipe wrench but that something other than a pipe wrench could have been used to inflict the wounds. Time of death was estimated to be prior to midnight on February 12, 1989, or as late as 5:00 p.m. the next day.
Alvin Hubbard, Hobbs’ brother-in-law, testified that late in the afternoon of February 12, 1989, he took Hobbs to an apartment approximately two blocks from Bass’ house. Hubbard said, though Hobbs headed in the direction toward the apartment, he did not see if Hobbs entered the apartment. Hubbard knew that Hobbs did not have any money when he left to go to the apartment and that Hobbs was carrying a couple of pipe wrenches.
According to Hubbard, the next time he saw Hobbs was approximately an hour and a half later at Hubbard’s mother’s house. Hubbard stated that, in addition to the pipe wrenches, Hobbs also had a plastic sack with what “may have been a tape player of some kind” inside, two pistols, and an altered shotgun. Hubbard described one of the pistols as a .357 magnum and the other pistol as an older, small revolver in a holster.
Hobbs requested Hubbard to drive him to an illegal party house. Hubbard testified Hobbs carried the plastic sack into the house and returned thirty minutes later without it. It was later determined that while in the party house Hobbs sold Bass’ VCR to Phillip Cherry.
After this transaction, Hubbard testified, they went to Hobbs’ apartment, where Hobbs took a bath and asked him to throw away the clothes Hobbs had been wearing. Hubbard testified that when he asked why, Hobbs said he just thought it would be the best thing to do. When Hubbard asked Hobbs what was going on, Hobbs responded that “he thought he had to kill the son-of-a-bitch” and told of a scuffle with “old drunk ass Bass” that could have gotten out of hand.
Subsequently, Hobbs and Hubbard left Hobbs’ apartment to sell the guns. Hubbard said he threw the shotgun into a canal. Jerry McCray testified that he bought the older pistol from Hobbs and later gave the police several pipe wrenches that he had received from Hobbs.
At trial, Hobbs denied going to Bass’ house on February 12 or killing him. He admitted that he had the pipe wrenches, that he had tried to sell Bass a necklace, and that Bass had denied his request to use the bathroom because the pipes were frozen. Hobbs stated to the jury that Alvin Hubbard, a five-time convicted felon, testified against him to save himself.
Hobbs admitted that Alvin had dropped him off near Bass’ home so he could visit friends. Hobbs testified he had the pipe wrenches when he visited the friends’ apartment. According to Hobbs, he visited three different friends at their apartments prior to leaving the apartment complex and returned to Alvin’s mother’s house for a beer. Hobbs estimated an hour and a half had passed from the time Hubbard had dropped him off at the apartment complex and his return to Hubbard’s mother’s house. According to Hobbs, the pipe wrenches were in his back pocket the entire time he was visiting friends.
Hobbs stated that later, when he and Hubbard left Hubbard’s mother’s house in Hubbard’s car, he noticed a plastic bag containing a VCR that had not been in Hubbard’s car earlier that afternoon. Hobbs stated that he and Hubbard went to Beverly’s Convenience Store looking for Jerry McCray but did not find McCray there. They then went to a “good time house” that sells illegal liquor. Once inside the “good time house,” at Hubbard’s request, Hobbs sold the VCR to Phillip Cherry for $40. According to Hobbs, they used the money to buy beer and whiskey before returning to Beverly’s Convenience Store around 9:00 p.m.
Hobbs admitted that he and Hubbard had returned to his apartment that evening, but denied taking a bath and requesting Hubbard to throw away his clothes. Hobbs stated they left his apartment and returned to Beverly’s Convenience Store in an effort to locate Jerry McCray. Hobbs said it was 9:00 p.m. when he talked to McCray about buying the guns that Hubbard had asked him to sell. Hobbs testified he and Hubbard then went to the Loafer’s Lounge where Hubbard sold the .357 magnum for $40 to an unidentified person.
Hobbs was found guilty on all three counts. Hobbs’ motion for a new trial was denied. After the State requested Hobbs be sentenced under the Habitual Criminal Act, Hobbs received a controlling sentence of life plus three to ten years. Hobbs appeals.
Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately, and with premeditation or committed in the perpetration of or attempt to perpetrate a felony. Hobbs was charged with first-degree murder committed in the perpetration of aggravated robbery.
The purpose of the felony-murder doctrine is to deter all those engaged in felonies from killing negligently or accidentally. State v. Hoang, 243 Kan. 40, 42, 755 P.2d 7 (1988); State v. Brantley, 236 Kan. 379, 380-81, 691 P.2d 26 (1984). In felony-murder cases, the elements of malice, deliberation, and premeditation which are' required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction of felony murder, all that is required is to prove that a felony inherently dangerous to human life was being committed and that the homicide which followed was a direct result of the commission of that felony. State v. Hoang, 243 Kan. at 41-42.
Although second-degree murder, voluntary manslaughter, and involuntary manslaughter are frequently referred to as lesser included offenses of first-degree murder, they are more precisely lesser degrees of the same offense. In re Habeas Corpus Petition of Lucas, 246 Kan. 486, 490, 789 P.2d 1157 (1990). A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. An instruction on a lesser included offense must be given even though the evidence supporting the lesser offense may not be strong or extensive. However, the instruction need not be given if there is no evidence by which a rational factfinder might find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Stallings, 246 Kan. 642, Syl. ¶ 3, 792 P.2d 1013 (1990).
Hobbs claims the court erred in not instructing the jury on the lesser included offenses of second-degree murder and voluntary manslaughter.
The general principles of law governing voluntary manslaughter are: (1) Voluntary manslaughter is the intentional killing in the heat of passion as the result of severe provocation; (2) heat of passion is any vehement, emotional excitement prompting violent and aggressive actions, and such emotional state of mind must be of such a degree as would cause an ordinary person to act on impulse without reflection; (3) defendant’s emotional state of mind must have existed at the time of the act and it must have arisen from circumstances constituting sufficient provocation, i.e., provocation to deprive a reasonable person of self-control and cause him or her to act out of passion rather than¡ reason; (4) the test of sufficiency of provocation is objective; and (5) mere words or gestures, however insulting, do not constitute sufficient provocation. State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 (1985).
There is no evidence that Bass committed aggressive acts, made physical threats, or physically assaulted Hobbs while using abusive and insulting language. Hubbard’s testimony that Hobbs killed Bass because of an insult does not show sufficient provocation to require an instruction on voluntary manslaughter.
Where there is conflicting testimony as to the commission of murder in the first degree and the evidence will support a conviction of murder in the second degree, an appropriate lesser degree instruction should be given. Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration of or attempt to perpetrate a felony. K.S.A. 21-3402. If the jury could have drawn different inferences and conclusions based on the evidence as to which degree of homicide was committed, the trial court erred in not instructing on murder in the second degree.
The general rule for giving lesser included offense instructions is not followed in the case of felony murder. In felony-murder cases the trial court is not required to instruct on all lesser included offenses. State v. Chism, 243 Kan. 484, 487, 759 P.2d 105 (1988); State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850 (1977). If the undisputed evidence is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser included offenses are not required. State v. Chism, 243 Kan. at 487; State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979).
Hobbs claims that the State failed to show that the homicide followed as a direct result of the commission or attempted com-mission of aggravated robbery. Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or by force. K.S.A. 21-3426. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427.
Hobbs argues that the testimony does not provide any facts which indicate that he intended to rob Bass prior to Bass’ death. Hobbs portrays Hubbard’s testimony as showing that he was insulted by Bass slamming the door in his face and the resulting fight caused Bass’ death. In contrast, the State maintains evidence supports Hobbs’ conviction for aggravated robbery. It points to Hubbard’s téstimony that, when Hobbs was taking a bath, Hobbs asked Hubbard to throw away his clothes and told Hubbard “he just thought it would be the best thing to do.” Hobbs admitted to Hubbard that he had a scuffle with Bass that “could have gotten out of hand.” Hubbard’s testimony that Hobbs’ response to Hubbard’s question as to what was going on was “that he thought he had to kill the son-of-a-bitch.” In addition to the statements, there is evidence that Hobbs sold the guns and the VCR the night of Bass’ death.
Hobbs testified that he neither committed the aggravated robbery nor took the property from Bass. He never disputed that a robbery occurred, but inferred that Hubbard was the individual who had committed the crime. Here, the undisputed evidence that the crime of aggravated robbery occurred is not weak or inconclusive. The evidence convinced twelve reasonable jurors that an aggravated robbery had been committed and a death resulted; an instruction on a lesser offense of murder in the second degree was not required.
Hobbs next claims that the prosecutor’s closing statements prejudiced the jury against him and deprived him of a fair trial. The prosecution is given much latitude in language and in manner of presentation as long as it is consistent with the facts and evidence. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny defendant a fair trial. State v. McKessor, 246 Kan. 1, Syl. ¶ 7, 785 P.2d 1332 (1990).
The following was said during the rebuttal portion of the State’s closing argument:
“[PROSECUTOR]: The issue before you is did the defendant commit this crime. Well, ladies and gentlemen, this line represents everyone in the world [at this point the prosecutor drew a white line across the chalkboard]. One of those people—
“[DEFENSE COUNSEL]: Your Honor, I’m going to object to this type of closing argument, using something that’s not been admitted into evidence at all.
“THE COURT: Overruled.
“[THE PROSECUTOR]: One of those people killed Mr. Bass. What do we know about that person? Well, we know, first of all, they were in Wichita, Kansas. And that is going to wipe out the majority of the population. Further, we know that whoever killed him was in the area of Mr. Bass’s home right around the time he goes to bed. We have got the defendant over in that area. That’s going to eliminate some people as well. What else do we know about the person that killed Mr. Bass? Well, we know that he knew Mr. Bass. We know that because there’s no signs of forced entry, there’s no broken windows, there’s no pry marks. Whoever went into the home was invited in the home. There’s no forced entry. The defendant knew Mr. Bass, a lot of people in Wichita didn’t. And that’s going to eliminate even some more people. What else do we know? Well, we know that whoever was over there probably had a reason to be over there. There hasn’t been any evidence that Alvin had any reason to be over there. Alvin says he doesn’t know him. Mr. Bass’s mother says, ‘I’ve never head of Alvin,’ and yet she knows her son so well she knows who’s been over to her son’s house to use the restroom. She knows the defendant was over there. Ladies and gentlemen, the defendant had a reason to be over there. He went over there to sell some pipe wrenches because Mr. Bass had problems with his plumbing. That’s going to eliminate even some more people. What else do we know? Well, we know that whoever was over there was on foot. How do we know that? The items that were taken.
“The items that were taken. The VCR could be carried. The guns could be tucked in the belt. The cigarettes could be carried. The watch could be worn. That’s going to eliminate a lot of other people. And whoever killed Mr. Bass shortly after his death had his VCR, his sawed-off gun, his .357, and his watch. Ladies and gentlemen, there’s no more doubt left. It’s reasonable the defendant did it. Based on all the evidence, the physical evidence, circumstantial evidence, and the property, and the confirmed story of Mr. Hubbard, I would ask you to find the defendant guilty of all three counts. Thank you.”
After the jury was excused to deliberate on its verdict, Bass objected, stating:
“[DEFENSE COUNSEL]: Your Honor, during the last part of Mr. Sevart’s [the prosecutor’s] argument, he went to a chalkboard and starting drawing on the chalkboard a line and then over the period of his argument slowly erasing different parts of that line to indicate that there is no one left to have committed this crime but Jimmie. And that was his intent. Your Honor, that whole line is—of argument by the State is burden shifting. It’s showing that we don’t have to—don’t have to prove who did this, we just have to prove that no one else is available to do it, and that’s definitely burden shifting, and it should not have been allowed. And I would just note for the record for purposes of appeal that certain things of that nature should never occur again.
“[THE COURT]: Okay. Your objection is noted. And I would add that except for the fact that the line which was drawn by Mr. Sevart was done with the—with the—not the point of the piece of chalk but with the side, I would say that your description of what he—that part of his argument and the example that he used is—is accurate. I have already ruled upon your objection, and my ruling does not change.”
Based on the drawing that accompanied the prosecutor’s remarks, Hobbs argues that his right to due process of law was violated as this closing argument improperly shifted the burden of proof and requires he be granted a new trial. Hobbs cites two cases, United States v. Narciso, 446 F. Supp. 252 (E.D. Mich. 1977), and People v. Collins, 68 Cal. 2d 319, 66 Cal. Rptr. 497, 438 P.2d 33 (1968), where the prosecutors’ remarks based on probability were improper arguments.
In Narciso, after 35 patients at the Ann Arbor Veterans Administration Hospital suffered a total of 51 cardiopulmonary arrests, two government nurses were charged with and convicted of murder. In closing argument the prosecution discussed 43 factual circumstances proving guilt beyond a reasonable doubt, but the final reason provided by the prosecutor was determined on appeal to be beyond the bounds of proper argument. The prosecutor’s argument to the jury on the 44th reason was:
“What are the odds, ladies and gentlemen, what is the chance, what is the probability that these defendants have engaged in these activities and that all these factors that are incriminating could exist and the defendants would still nevertheless be innocent.” United States v. Narciso, 446 F. Supp. at 323.
In People v. Collins, 68 Cal. 2d 319, the California Supreme Court reversed a robbery conviction, finding the trial court erred in admitting expert testimony from a college mathematics professor. The professor’s testimony was based on a probability analysis that the crime was committed by a couple answering to the very characteristics of the defendants—black bearded man driving a yellow car accompanied by a white, blonde pony-tailed female. The professor told the jury there was but one chance in twelve million that anyone other than the defendants could have committed the crime. People v. Collins, 68 Cal. 2d at 325. The California court found that no mathematical theory of probability can prove beyond a reasonable doubt that the accused is the only person with these distinctive characteristics. People v. Collins, 68 Cal. 2d at 330. The cases cited by Hobbs are not analogous to the facts of this case.
In a criminal case the burden of proof is placed upon the State. Speculation based on probability or statistical or mathematical calculations is insufficient to prove guilt beyond reasonable doubt.
Hobbs’ reasoning would be correct if the State had relied on a probability analysis of the facts to prove the defendant’s guilt. Nothing in the closing argument by the State resulted in assertions calculated to mislead the jury. Nor does the argument used by the State of narrowing the population based on evidence presented at trial rise to the level of a statistical population hypothesis as argued by Hobbs.
Under the facts of this case, the State’s closing remarks were not so gross or flagrant as to prejudice the jury against Hobbs. The burden of proof was not improperly shifted to Hobbs by the State’s closing statement.
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The opinion of the court was delivered by
Six, J.:
This case addresses: (1) the application of the felony-murder doctrine and (2) the requirement of statewide interest for questions reserved on appeal by the State.
The State charged Carl Eugene Leonard with one count of first-degree felony murder (K.S.A. 1989 Supp. 21-3401) and multiple counts of aggravated assault (K.S.A. 21-3410).
The trial court dismissed the felony-murder count on the grounds that felony murder cannot be supported by the underlying felony of aggravated assault. The State then amended the information to charge second-degree murder (K.S.A. 21-3402).
A jury found Leonard guilty of involuntary manslaughter (K.S.A. 21-3404) and six counts of aggravated assault. The State appeals: (1) the dismissal of the felony-murder count; (2) the overruling of its motion in limine to limit any reference to the decedent smoking marijuana; and (3) the overruling of its objection to the second-degree murder instruction given by the trial court.
Our jurisdiction arises under K.S.A. 22-3602(b), appeals by the prosecution.
We find no error. We affirm the trial court on the felony-murder issue and dismiss the State’s appeal on the remaining issues.
Facts
On October 16, 1988, John C. “Chuck” Huffman died as a result of being run over by a semi-truck driven by Leonard. Several witnesses testified to the events leading up to Huffman’s death.
On October 15, 1988, a party was in progress at the home of Joe Sullivan in Weir, Kansas. During the evening, the party ran out of beer. The existence of a keg of beer at the James Curtis residence, also in Weir, was discussed. Huffman and two others from the Sullivan party went to the Curtis party to as¡k about the keg. They inquired about combining the parties and offered to buy the keg. An argument between a Sullivan party goer and a Curtis party goer developed. Huffman was not involved.
The trio returned to the Sullivan party. Almost everyone at the Sullivan party decided to attend the Curtis party. At the Curtis party, a fight began between the two party goers who had argued earlier.
Leonard, the defendant, was at the Curtis party. He testified that he helped break up the fight. Leonard also testified that he had an argument with one of the Sullivan party goers. The Sullivan party goers left the Curtis party, moving on to the Weir City Park.
A guest at the Curtis party observed Leonard enter his truck with a saw in his hand. The guest overheard Leonard say he was going to go “kill the son of a bitches.”
Mary Thornton, Leonard’s mother-in-law, was also at the Curtis party. She saw Leonard as he left the Curtis party and testified Leonard told her, “I’m going to kill the son of a bitch.”
Shortly after arriving at the park, the Sullivan party goers saw Leonard drive by in his semi-truck headed in the direction of the Sullivan home. The party goers then returned to the Sullivan home.
The Sullivan home was located next to a large parking lot. According to Dane Uber, Leonard was outside of his truck with a tire tool, calling out Uber’s name. Uber and Jim Sullivan left to go back to the park, but they turned back when they noticed the Sullivan party goers driving toward the Sullivan home. Eventually, the Sullivan group parked their cars and gathered at the parking lot.
Jim Sullivan testified that Leonard had a hand saw and a crowbar. According to Sullivan, Leonard called out Uber’s name and said that he (Leonard) “wanted to kick his [Uber’s] ass to see how bad he was.” Leonard also hit the back of the semi-truck with the crowbar and yelled for the people in the Sullivan house to come out so he could “whip them.”
Several witnesses testified that Leonard climbed back into his truck and began to drive back and forth on the street adjacent to the parking lot. The group from the Sullivan party was standing in the parking lot.
The Sullivan party goers were yelling and cursing at Leonard. Théy also threw rocks at his truck. One Sullivan party goer shot an arrow at the truck. Another person in the Sullivan group jumped on the back of the truck and pulled on the air hoses in an attempt to disable the truck.
Eventually, Leonard stopped his truck for several minutes at the end of the road. He then drove down the road, turned on his lights, and entered the parking lot, heading toward the group of people gathered there. Everyone moved out of the truck’s path except Huffman, who was struck and killed.
According to Leonard’s own testimony he: (1) was drunk; (2) had consumed several beers; (3) had smoked a marijuana cigarette; (4) had injected cocaine; (5) was not thinking straight; (6) did not intend to injure anyone; (7) did not know that he had run over someone until he was told later that night; and (8) did not recall saying, “I’m going to kill the son of a bitch.” Leonard stated he might have made the statement, but it is “just an expression.”
Merger
The State charged Leonard with first-degree murder committed “while perpetrating a felony, to-wit: Aggravated assault of” numerous named individuals other than Huffman in the group gathered in the parking lot.
Leonard filed a motion to dismiss the felony-murder charge on the grounds that the underlying felony of aggravated assault merged with the felony murder. The trial court granted the motion.
The trial court found that State v. Fisher, 120 Kan. 226, 243 Pac. 291 (1926), controlled the felony-murder issue in the case at bar. We agree.
In Fisher, the defendant shot a rifle at a car, killing one of the occupants. The information charged Fisher with first-degree felony murder of the occupant while attempting to perpetrate assault with a deadly weapon on the other six occupants of the car. Fisher was convicted of first-degree murder based upon the felony-murder rule. We reversed, holding that the elements constituting the underlying felony must be so distinct from the homicide as not to be an ingredient of the homicide.
Fisher has been noted with approval in State v. Prouse, 244 Kan. 292, 300-01, 767 P.2d 1308 (1989) (Holmes, J., concurring), and State v. Lucas, 243 Kan. 462, 466-67, 759 P.2d 90 (1988), aff'd on rehearing 244 Kan. 193, 767 P.2d 1308 (1989).
The State unsuccessfully attempts to distinguish Fisher. The State argues that Fisher involved a case of general intent with no particular intended victim, while the case at bar involves specific intent to assault an unknown victim. This specific intent, the State contends, is proven by testimony of Mary Thornton, who stated that Leonard said, “I’m going to kill the son of a bitch.” However, the State admits that it cannot prove who the intended victim was.
The State relies on the following language in Lucas-.
“First-degree premeditated murder (or any lesser degree of homicide) could, of course, constitute the requisite underlying felony where, for instance, a defendant kills victim B during his or her commission of a homicide on victim A. The homicide of victim A could be the underlying felony for a felony-murder charge for the death of victim B.” 243 Kan. at 466.
The State asserts that the merger doctrine does not apply if the intended victim of the underlying felony is different from the actual victim. The State’s arguments under the facts of Leonard’s case are not persuasive.
Leonard argues that the felony-murder rule is not intended to apply to assaultive or homicidal behavior. The assaults against the other people in the crowd were not distinct from the homicide. Thus, the aggravated assault charges merged with the felony-murder charge.
Leonard disagrees with the State’s analysis of the language in Lucas. He asserts that a defendant may be found guilty of first-degree premeditated murder of victim B when victim B is killed during the commission of a homicide on victim A; however, the defendant should not be found guilty of felony murder. Leonard contends that the doctrine of transferred intent would apply in that hypothetical situation. Under the transferred intent doctrine, the intent to kill victim A would transfer and serve as the basis for murder charges for victim B. See People v. Lovett, 90 Mich. App. 169, 283 N.W.2d 357, lv. to appeal denied 407 Mich. 884 (1979), 8 A.L.R.4th 952; 2 Wharton’s Criminal Law § 144 (14th ed. 1979).
We need not address the implications of the transferred intent doctrine. Fisher controls.
The issue in the instant case is whether the underlying felony of aggravated assault is so distinct from the homicide as not to be an ingredient of the homicide. “Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony.” Lucas, 243 Kan. 462, Syl. ¶ 4.
Leonard’s one act of driving the semi-truck through the crowd is the basis for both charges. This one act is not separated in time and distance. The one act caused the killing. Because there was only one act, the elements of the aggravated assault are not distinct from the homicide. The aggravated assault charges merged with the felony-murder charge.
The trial court did not err in dismissing the felony-murder charge.
Questions Reserved—The Requirement of Statewide Interest
A. The State’s Motion in Limine
The State called Prudence Huffman, the victim’s mother, as its first witness. Mrs. Huffman testified that she and Chuck (her son) watched TV the entire evening of October 15, 1988, until he left at 9:30 p.m. The State asked if any alcoholic beverages were consumed. Mrs. Huffman stated that they never had alcoholic beverages in her home.
After the State’s second witness began testifying, the State moved to prevent the admission of testimony regarding Chuck Huffman’s consumption of illegal substances. The trial court overruled the motion in limine, stating the testimony would be evidence of the surrounding circumstances. The trial court noted that the State introduced evidence of the surrounding circumstances through Mrs. Huffman. The trial court instructed Leonard’s counsel: “I don’t want you to get into a collateral trial here of trying the decedent.”
The State asserts that the trial court erred in overruling the motion. The State contends that the probative value of the testimony is outweighed by its prejudicial effect.
Leonard counters the State’s position with three arguments. First, Leonard contends, the State did not preserve the issue for appeal because the State did not object to the testimony that Huffman had smoked marijuana when it was presented; second, the issue is not of statewide interest; and third, the trial court did not err in allowing the testimony because the testimony was admissible under the concept of res gestae. Each of these arguments has merit. We choose, however, to resolve the issue by holding it is not of statewide interest.
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. Generally, this court has accepted appeals on questions reserved by the State where the appeals involve questions of statewide interest important to the correct and uniform administration of the criminal law, State v. Holland, 236 Kan. 840, 841, 696 P.2d 401 (1985), and the interpretation of statutes, State v. Kopf, 211 Kan. 848, 508 P.2d 847 (1973).
The relevance, probative value, and prejudicial effect of the testimony that Huffman smoked marijuana depends on the specific facts of this case. The admission of this evidence is within the discretion of the trial court. Resolution of this issue will not provide a helpful precedent; therefore, we do not entertain it. Holland, 236 Kan. at 841.
B. Instruction—Second-Degree Murder
The State proposed the following instruction:
“The defendant is charged with the crime of murder in the second degree. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
“1. That the defendant killed John C. Huffman;
“2. That such killing was done maliciously; and
“3. That this act was done on or about the 16th day of October, 1988, in Cherokee County, Kansas.”
The trial court instructed on second-degree murder from PIK Crim. 2d 56.03.
The State objected. The trial court overruled the objection. The State reserved the issue for appeal.
The State argues that PIK Crim. 2d 56.03 fails to adequately instruct the jurors in the application of K.S.A. 21-3402, second-degree murder. The State contends that K.S.A. 21-3402 does not require specific intent to kill the particular victim.
Leonard asserts that this issue should not be entertained because it lacks statewide interest, citing State v. Kopf, 211 Kan. 848. We agree. Kopf involved the trial court’s refusal to submit requested instructions.
In the case at bar, the jury instruction given mirrored the charge set forth in the amended information; thus, resolution of this issue depends upon the facts of this case. Therefore, we do not believe the question should be entertained for appellate review.
The trial court is affirmed on the felony-murder issue. The appeal is dismissed as to the other issues.
Holmes, C.J., and Herd, J., dissenting on the felony murder issue. | [
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The opinion of the court was delivered by
Herd, J.:
Ricki and Paulette Winters appeal a declaratory judgment by the district court which construed the liability limit provision of the automobile liability insurance policy of Farm Bureau Mutual Insurance Company (Farm Bureau).
On January 2, 1988, a vehicle driven by Curtis Sutterby and owned by George Sutterby was involved in an accident with an automobile operated by Ricki Winters. As a result of the accident, Paulette Winters claimed bodily injury damages in excess of $100,000 and Ricki alleged bodily injury damages of approximately $12,000.
,At the time of the accident, the Sutterby vehicle was insured by Farm Bureau under an automobile liability insurance policy. Farm Bureau’s policy limited its liability to $100,000 for bodily injury for “each person” and $300,000 for “each occurrence.”
Farm Bureau filed a petition for declaratory judgment in Johnson County District Court and moved for summary judgment. Ricki and Paulette Winters alleged Farm Bureau’s liability to Paulette was not limited to $100,000 because two persons were injured in the accident, thereby raising the total liability limit to $300,000. The district court granted Farm Bureau’s motion and ruled the insurance liability policy was not ambiguous, but limited liability to $100,000 for each person’s bodily injuries even though more than one person was injured in the same accident. This appeal followed.
On appeal, the Court of Appeals found the liability limit provision of Farm Bureau’s policy was ambiguous and, therefore, construed it against the insurer. Farm Bureau Mut. Ins. Co. v. Winters, 14 Kan. App. 2d 623, 630-31, 797 P.2d 885 (1990). We granted Farm Bureau’s petition for review.
In this case we are required to interpret the liability limit provision of Farm Bureau’s insurance policy. The provision at issue provides:
“The limits of liability shown in the declarations apply subject to the following:
“1. The bodily injury liability for ‘each person’ is the maximum for bodily injury sustained by one person in any one occurrence;
“2. The bodily injury liability for ‘each occurrence’ is the maximum limit of liability for bodily injury sustained by two or more persons in any one occurrence; and
“3. The property damage liability limit for ‘each occurrence’ is the maximum for all damages to all property in any one occurrence.
“We will pay no more than these máximums regardless of the number of vehicles described in the declarations, insured persons, claims, claimants or policies, or vehicles involved in the occurrence.”
The policy declaration indicates the maximum liability for bodily injury for “each person” is $100,000 and the “each occurrence” limitation is $300,000.
Farm Bureau contends the policy clearly and unambiguously makes the $300,000 limit for each occurrence subject to the $100,000 liability limit for each person. The Winters argue the $100,000 bodily injury limit does not apply where two or more persons are injured in the same accident. The Winters allege the “each occurrence” provision of Farm Bureau’s policy provides for recovery on each of their claims, so long as the total for both claims does not exceed $300,000.
For support, Farm Bureau relies upon two cases, Standard Acc. Ins. Co. of Detroit, Mich. v. Winget, 197 F.2d 97 (9th Cir. 1952), and Lowery v. Zorn, 184 La. 1054, 168 So. 297 (1936). In Lowery, the plaintiff and his son were injured in an automobile accident with the defendant. The district court allowed Lowery $5,858.25 for his injuries and $150 for the use and benefit of his son. On appeal, the Court of Appeal increased Lowery’s judgment to $8,358.25 and affirmed the judgment of $150 for the use and benefit of Lowery’s son. 184 La. at 1057.
Following a garnishment action against the defepdant’s insurer, the Louisiana Supreme Court ruled the insurer was not liable for more than $5,000 for damages to Lowery. The insurer’s limit of liability in its policy was $5,000 for bodily injury to one person and “ ‘subject to the same limit for each person’ $10,000 for any one accident causing bodily injury to more than one person.” 184 La. at 1057-58. Thus, the court determined where two or more persons were injured in one accident and one person’s bodily injuries exceeded the limit of liability for one person, that person could not recover more than the bodily injury limit, even when the total amount of damages due to all injured persons was less than the per occurrence liability limit. 184 La. at 1058.
In Standard, 197 F.2d 97, Towry was involved in an accident with Winget and Mack. Winget received a judgment for $32,000 and Mack received a judgment for $15,000. Subsequently, Winget brought an action against Standard, Towry’s insurer, for payment of the judgment. Standard’s liability limits for bodily injury were $10,000 for each person and $20,000 for each accident. 197 F.2d at 104. In addition, Standard’s liability limit provision provided “ ‘the limit of such liability stated in the declarations as applicable to “each accident” is subject to the above provision respecting each person, the total limit of the company’s liability for all damages . . . sustained by two or more persons in any one accident.’ ” 197 F.2d at 104 n.2. Thus, the court determined each person’s recovery was clearly limited to $10,000. 197 F.2d at 104.
We also consider Mannheimer Bros. v. The Kansas C. & S. Co., 149 Minn. 482, 184 N.W. 189 (1921), wherein two of plaintiffs employees were injured in an automobile accident and received judgment for damages against the plaintiff of $12,633.32 and $2,630.73. The employer brought suit against defendant, its insurer, to recover the money paid in the adverse judgments. 149 Minn, at 483-84. Defendant admitted liability, but claimed it was not liable for the lull amount of the judgments. Defendant’s insurance policy provided:
“ ‘The company’s liability under paragraph one of the insuring agreements, on account of bodily injuries to or death of one person is limited to five thousand dollars ($5,000) and subject to the same limit for each person, the company’s total liability on account of bodily injuries or a death of more than one person as the result of one accident is limited to ten thousand dollars ($10,000).’ ” 149 Minn. at 486.
The Mannheimer court ruled the limitation provision was free from doubt and unambiguous and limited defendant’s liability for each person injured in the accident to $5,000. 149 Minn, at 486-87.
Examination of Lowery, Standard, and Mannheimer shows that liability for each person’s injuries in an accident involving more than one person has been limited by the bodily injury limitation where the language of the policy clearly and unequivocally states the per occurrence liability is “subject to” bodily injury liability for each person.
In support of their argument that Paulette’s recovery should not be limited by the per person provision of Farm Bureau’s policy, the Winters rely upon Haney v. State Farm Insurance, 52 Wash. App. 395, 760 P.2d 950 (1988), rev. denied 111 Wash. 2d 1033 (1989). In Haney, Mr. and Mrs. Haney were injured when their automobile was struck by an underinsured driver. State Farm’s insurance policy covering the Haneys’ automobile contained underinsured motorist limits of $100,000 per person and $300,000 per accident. The Haneys filed a declaratory judgment petition alleging they were entitled to the $300,000 per accident limit of their policy. The district court dismissed on summary judgment. 52 Wash. App. at 396.
The Haney court determined there was no language in the policy which made the per accident limit “subject to” the per person limit. Therefore, the court found an inherent contradiction in the limitation provisions which a reasonably prudent insured would interpret as inconsistent and ambiguous. Thus, under rules of construction similar to those recognized by this court, the Haney court interpreted the provision in a manner most favorable to the insureds and held the plaintiffs were entitled to the per accident limit of the policy. 52 Wash. App. at 397-99.
A similar result was reached in Andrews v. Nationwide Mut. Ins. Co., 124 N.H. 148, 467 A.2d 254 (1983). The New Hampshire Supreme Court examined an insurance policy, which limited defendant’s liability for bodily injuries to $100,000 for each person and $300,000 for each accident, to determine whether Mrs. Andrews, injured in an accident along with Mr. Andrews, could recover damages in excess of $100,000. In the absence of policy language making the per occurrence limit “subject to” the per person limit, the court found that an insured reading the policy could reasonably conclude that one person could recover more than $100,000 in cases where two or more persons sustained bodily injury in the same accident. Nationwide, therefore, was obligated to provide coverage to Mrs. Andrews without regard to the per person limit, but such obligation was limited to $300,000 for all persons injured in the single accident. 124 N.H. at 152-54.
In the present case, we find Farm Bureau’s limit on liability provision is similar to the provisions examined and interpreted in Haney and Andrews. Under Farm Bureau’s liability limit provision, its bodily injury liability limit is $100,000 for “each person” injured in a single accident. For “each occurrence,” however, Farm Bureau s bodily injury liability is limited to $300,000 where two or more persons are injured in the same accident. Thus, although the provision in question says it is subject to the provisions which follow, the per occurrence limit on liability is not expressly made subject to the per person limit on liability. Rather, the entire limitation provision is made subject to the dollar limits expressed in the insurance policy’s declaration. The “per person” limitations and the “per occurrence” limitations make no reference to each other but are totally independent statements and are ambiguous only when we tie the provisions together by inference.
We are aware that members of the insurance industry, the legal profession, and others familiar with the structure and operation of insurance contracts understand that the per occurrence liability limits of a typical insurance contract are intended to operate subject to the per person liability limits. However, the test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Assn., 215 Kan. 937, Syl. ¶ 7, 529 P.2d 171 (1974).
In the case at hand, we believe a reasonably prudent insured could interpret Farm Bureau’s limit on liability provision to mean that if one person’s bodily injury damages exceed $100,000, that person could recover more than $100,000* when a single accident injured two or more persons. Where contract provisions and terms are uncertain, conflicting, or Susceptible of more than one construction, the construction most favorable to the insured must prevail. 215 Kan. at 947-48. This principle is based upon the fact that an insurer prepares its own contract and thereby assumes the duty to make its meaning clear and define limitations in coverage in explicit terms. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987); Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 900, 522 P.2d 401 (1974).
In order to avoid the Strict construction applied to this policy, Farm Bureau could easily have adopted the language of K.S.A. 40~3107(e), which mandates that every motor vehicle liability insurance policy “contain stated limits of liability . . . [of] not less than $25,000 because of bodily injury to, or death of, one person in any one accident and, subject to the limit for one person, to a limit of not less than $50,000 because of bodily injury to, or death of, two or more persons in any one accident.”
Rased upon a finding that Farm Bureaus limit on liability provision is subject to conflicting interpretation and, therefore, is ambiguous, we find Paulette Winters is entitled to recover bodily injury damages in excess of $100,000, but is limited to $300,000 under the “per occurrence” provision of the policy.
The judgment of the district court is reversed, and the judgment of the Court of Appeals is affirmed.
Abbott, J., not participating. | [
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The opinion of the court was delivered by
Six, J.:
This case is presented to us with a Janus-like characterization. The plaintiff, attorney Robert Hadley Hall, who is appealing, informs us that the issue relates to conversion of a $50,000 missing endorsement draft under K.S.A. 84-3-116(b) and K.S.A. 84-3-419(I)(c) of the Uniform Commercial Code.
The defendants, Mid-Century Insurance Co., Inc., (Mid-Century) and Bank IV Olathe, N.A. (Bank IV), contend: (1) The case arose from an attorney fee dispute between Hall and Gary L. Sloan, members of the Gary L. Sloan Law Offices, (2) the fee controversy has been resolved, and (3) the appeal is moot and should be dismissed.
Our jurisdiction is under K.S.A. 20-3018(c) upon transfer from the Court of Appeals.
The trial court granted the Bank IV and Mid-Century motions for summary judgment. While Hall’s appeal was pending, a motion to dismiss as moot was filed by Mid-Century. Bank IV joined in the motion. The Court of Appeals denied the motion with leave to raise the issue when the appeal is heard on the merits.
We agree with the attorney fee dispute characterization. The issues are moot. The appeal is dismissed.
Facts
Mike Moles sued Susan LaPlant in an automobile personal injury action. Moles was represented by the Gary L. Sloan Law Offices. (Sloan and Hall are associated attorneys.) Moles’ personal injury case was settled for $50,000. Under the settlement, Moles agreed to pay attorney fees and expenses of $24,862.65. As a result of the settlement, an insurance draft was issued to “Mike Moles, Gary L. Sloan and Robert Hall, his attorneys.”
Before the Moles settlement draft was issued, Hall had contractually agreed with Sloan that any fee Hall earned would be deposited in the Gary L. Sloan general account. Sloan and Hall also agreed that after disbursement of expenses, 50% of the fee would belong to Hall and 50% of the fee would belong to Sloan. Hall claimed that he was entitled to $11,691.32 of the Moles fee.
Hall sued Sloan and Sloan’s wife to recover this fee. Hall added a fraud count based upon a scheme to defraud him by negotiating the check without his authority. Hall also sued Bank IV and Mid-Century on one count of statutory conversion under K.S.A. 84-3-419. Hall claimed $50,000 from each, plus punitive damages and attorney fees.
The draft carried the purported endorsement of Mike Moles and the following restrictive endorsement: “Pay to the order of Bank IV Olathe, KS, For Deposit Only, 114-289-501, Gary L. Sloan, Attorney-at-Law Trust Account.” Hall did not endorse the draft. The Gary L. Sloan Law Offices, on that same day, negotiated the draft to Bank IV. It was accepted for deposit and Gary L. Sloan’s trust account was credited for $50,000.
Mid-Century purchased the $50,000 draft. Bank IV gave the trust account final credit in the amount of $50,000 and allowed Gary L. Sloan or his agent to write a check on the trust account in the amount of $24,862.65 payable to Gary L. Sloan and deposited into the Gary L. Sloan general account.
The Sloan/Hall September 2, 1987, practice of law agreement stated in pertinent part:
“RE: Agreement regarding our association in the practice of law at 222 South Cherry, Olathe, Kansas
“Dear Robert:
“This letter will confirm our verbal agreement and will serve as the contractual arrangement concerning our relationship as associate attorneys in the practice of law at 222 South Cherry, Olathe, Kansas, effective as of September 2, 1987. You have agreed to associate with me in the practice of law as outlined below. I have agreed to provide:
“In consideration for the above agreement, I will receive 50% of all remuneration which you receive from your activities as a lawyer, regardless of the source of the client. The remuneration will include fees earned during regular business hours as well as evenings and weekends. At the time fees are received, all such money will be deposited into my general account before disbursement to our separate accounts. The deposit of all monies into my general account will enable us to keep accurate bookkeeping records. At the end of each pay period, the fees deposited in the general account will be first disbursed to reimburse any expenses that have been advanced with the remainder to be divided between us.
“In the event that our arrangement becomes unworkable from either of our points of view, either one of us may inform the other of the desire to terminate. A minimum of thirty (30) days notice will be required unless otherwise mutually agreed between us. You will be entitled to any fees received after your departure based on the aforementioned method of division. This means that all accounts receivable for work accomplished during your association with this office will continue to be paid into the general fee account of this office and a 50/50 division will be maintained each pay period. Billing for accounts receivable will continue to be generated from this office until paid. You will be entitled to 100% of any fees paid for work accomplished after your departure on any cases that you have generated and that you retain.
“Very truly yours,
[Signature]
“GARY L. SLOAN
“GLS:bas
“APPROVED:
“9/23/87
“DATE
[Signature]
“ROBERT HADLEY HALL”
The personal injury petition filed on behalf of Moles in the underlying case shows plaintiff Moles was represented by the Gary L. Sloan Law Offices. Examination of the two attorney signatures on the petition reflects that Sloan and Hall represented themselves to be “Attorneys for Plaintiff.”
The trial court granted summary judgment to Mid-Century and to Bank IV.
Hall and Sloan eventually arrived at a settlement of all claims that each had against the other, including claims arising out of Hall’s right to a fee in the Moles case. Hall then dismissed his claims against the Sloans with prejudice.
Summary Judgment
Our dismissal of this appeal as moot disposes of the case. We need not address in detail the trial court’s summary judgment ruling. The trial court’s ruling was correct.
Bank IV’s motion for summary judgment contains as an uncontroverted fact: “Plaintiff Robert Hadley Hall and Defendant Gary L. Sloan associated together in the practice of law and operated under a written agreement that all fees earned by Mr. Hall were to be first deposited into the Gary L. Sloan General Account before disbursement into their separate accounts.”
Hall responded:
“Plaintiff [Hall] does not controvert that he and defendant Gary L. Sloan practice law together under the written agreement attached to the Petition, but Plaintiff was not Sloan’s ‘associate’ in the sense that that term may be used to mean ‘employee.’ Plaintiff denies the allegations as to the terms of the agreement, since the agreement speaks for itself.”
Mid-Century incorporated the Bank’s statement of uncontroverted facts by reference in its motion for summary judgment and set forth additional uncontroverted statements of fact.
The trial court, in granting the motion for summary judgment, found that the Hall-Sloan agreement of September 2, 1987, recited the contractual relationship between the two attorneys.
Hall’s Claims
Hall seeks damages for the alleged conversion of the $50,000 draft under K.S.A. 84-3-419(l)(c). Hall contends Bank IV and Mid-Century paid the draft with Hall’s endorsement missing. Hall relies on Chilson v. Capital Bank of Miami, 237 Kan. 442, 445, 701 P.2d 903 (1985), which held that payment on a check without any endorsement is the same as payment on a forged endorsement. Hall advances the argument that the Uniform Commercial Code as adopted by Kansas establishes the liabilities and rights of all parties to this appeal.
Hall asserts that an instrument made payable to joint payees must be endorsed by all of them. K.S.A. 84-3-116(b). Mid-Century made the draft payable to Mike Moles, Sloan, and Hall jointly. Hall reasons that Sloan is not Hall’s agent for purposes of endorsing instruments and that Hall and Sloan were not partners, engaged in a joint venture, or employee-employer. Hall argues that Sloan did not have express authority to endorse for Hall. Further, Hall contends that an agency relationship never existed between himself and Sloan. Under K.S.A. 84-3-419(l)(c), Hall reasons that both Bank IV and Mid-Century are absolutely liable to Hall for paying on the draft without his endorsement. Hall seeks judgment for $50,000—the full amount of the draft.
The Uniform Commercial Code
Neither K.S.A. 84-3-419(l)(c) nor K.S.A. 84-3-116(b) provides a rule of absolute liability as suggested by Hall. K.S.A. 84-3-116(b) states a general rule of liability to which there are several exceptions. One exception applicable here is where there is no damage or loss to the nonendorsing payee. There is no liability on the part of a bank that takes a check with the missing endorsement of a joint payee where the joint payee received the proceeds of the check or that part of the proceeds to which the payee was entitled. Brady on Bank Checks ¶ 7.15 (6th ed. 1987).
The issue can be summarized as follows: If the funds actually reached the intended payee, does it matter along the way if there is a missing or unauthorized endorsement? Common notions of equity suggest that liability may not be predicated on strict liability theories if the funds reach the intended payee. Hillman, McDonnell & Nickles, Common Law and Equity Under the Uniform Commercial Code ¶ 14.05 (1985).
The funds were deposited in the intended account. The absence of endorsement is simply technical and caused Hall no loss. See, e.g., Gotham-Vladimir Adv. v. First Nat. Bank, 27 A.D.2d 190, 277 N.Y.S.2d 719 (1967) (drawer is precluded from recovering from drawee bank for paying his checks on forged or unauthorized endorsement where the proceeds of the check actually reached the person whom the drawer intended to receive them).
Hall pled the contract between himself and Sloan and admitted its provisions, which are uncontroverted facts. Those uncontroverted facts require the conclusion that the fee had to go to the Sloan general account. The uncontroverted facts show that the fee did go to the Sloan general account.
Dismissal of the Hall-Sloan Lawsuit
Hall and the Sloans entered into a stipulation for dismissal with prejudice of the instant lawsuit. Bank IV and Mid-Century were not parties to the stipulation or agreement. This dismissal was pursuant to a settlement agreement and release. The agreement and release stated in part:
“WHEREAS, the Sloan parties [Gary and his wife], on the one hand, and Hall, on the other hand, now desire, without any party’s admission of liability as to claims made by the other parties in said lawsuit, to settle, compromise, and release any and all claims, demands, debts, obligations, liabilities, damages, actions and causes of actions of every kind and nature, accrued or to accrue, contingent or otherwise, known or unknown, which each has against the other through the date of the execution of this Agreement and Release; and
“WHEREAS, in addition to the foregoing specific references, the Sloan parties and Hall have had a contractual relationship as evidenced by plaintiffs Exhibit B [the Hall/Sloan September 2, 1987, law practice agreement] attached to his petition which the parties thereto, now desire, without the parties’ admission of liability to settle, compromise and release each other relative thereto;
“. . . It is the express intention of the undersigned parties to likewise release any claims that either party may have against the other for accounts receivable which each of the parties has received, relative to their contractual relationship.”
Hall claims he is entitled not only to recover from Bank IV and Mid-Century $50,000, the full amount of the draft, but also to retain the $9,571.00 he received in the Hall-Sloan settlement. Hall is only entitled to recover his interest in the draft. Southern Cal. Permanente Medical Group v. Bozinovski, 148 Cal. App. 3d 503, 509, 196 Cal. Rptr. 150 (1983) (a bank which has paid out money on a forged endorsement is liable to the payee for the amount which the payee should have received).
K.S.A. 84-3-419, Official UCC Comment 4, Permanent Editorial Board for the Uniform Commercial Code, provides in relevant part: “Evidence is admissible to show that for any reason . . . the obligation is in fact worth less, or even that it is without value.” In his petition, Hall asserted that he suffered damage in the amount of $11,691.32, which was his claimed share of the $50,000 settlement.
In consideration of the Sloan/Hall settlement agreement and release, Hall received, among other things, a payment in the amount of $9,571. This agreement, release, and settlement finally determines the amount due and owing to Hall. See Bank One, Columbus, N.A. v. Hochstadt, 515 So. 2d 332, 333 (Fla. Dist. Ct. App. 1987) (summary judgment for plaintiff reversed and summary judgment entered for defendant where intended payee received proceeds of check despite the fact that the check was paid over a missing endorsement).
Hall has received his share of the settlement draft. He is precluded from recovering damages for conversion. The dismissal with prejudice binds Hall.
Hall settled his attorney fee claim against Sloan after the trial court’s entry of summary judgment in favor of Bank IV and Mid-Century but prior to this appeal. No actual controversy exists. This appeal is moot. See Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682 (1985).
Appeal dismissed. | [
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The opinion of the court was delivered by
ALLEGRUCCI, J.;
The State appeals the dismissal with prejudice of two counts of a multiple-count complaint as a sanction for the State’s failure to comply with a discovery order to disclose the identity of a confidential informant. A detailed recital of the facts leading up to the dismissal by the district court is necessary to understand the issues raised by the State in this appeal.
On or about March 20, 1989, James Rlair was working as an undercover informant for the Salina Police Department and made a controlled buy of two pounds of methamphetamine. After this buy, officers of the Salina Police Department applied for several search warrants for places believed to be related to the drug transaction. One search warrant was for defendant’s residence just outside Salina in Saline County, Kansas. This search warrant was executed on March 25, 1989. Defendant, who was home at the time the officers arrived, was arrested and taken into custody.
On March 27, 1989, a second search warrant for defendant’s residence was issued. The search warrant was based upon information received from a confidential informant (Cl), who informed a deputy sheriff after the first search warrant had been executed that additional illegal drugs, narcotics, and other items of contraband were still located at defendant’s residence. The officers executed this warrant on March 27, 1989, while defendant was still in custody, and seized 33 additional items that were not taken into custody during the first search. Included among the items seized during the second search were 4 3/4 pounds of marijuana separated into six plastic bags, which were located in a larger plastic bag, and a sawed-off shotgun found in plain view on a workbench, although partially covered by other items. This evidence is the basis for Counts 10 and 11.
In his affidavit for the second search warrant, Deputy Sheriff Kvacik indicated that the Salina Police Department obtained the first search warrant before he could assemble the necessary information; he also stated that execution of the earlier warrant verified the information his Cl had provided prior to execution of the first warrant because drugs, drug paraphernalia, and weapons were found during the search.
Kvacik stated in his affidavit that he was re-contacted by the Cl on March 25, 1989, after the first warrant had been executed. The Cl indicated that additional illegal drugs, narcotics, and other items of contraband were still located at defendant’s house. The Cl also informed the officer that drug paraphernalia, drugs, and money would be found in trash bags located throughout the house. The officer, who had assisted in the execution of the search warrant on March 25, 1989, confirmed that trash bags were located throughout the house. The affidavit also states that the Cl was a previous tenant of the house.
At the preliminary hearing, Deputy Sheriff Kvacik testified that he believed the marijuana was not found during the first search because the officers found about 50 trash bags in the laundry room area of defendant’s house and searched only about 15 of them. In contrast, Officer Dennis McClintock, the collection officer for the first search, testified at the preliminary hearing that he remembered seeing only five or six trash bags in that room. After the first search was completed, defendant’s residence was not secured or watched by law enforcement officers. Kvacik admitted that the Cl or someone else could have put the drugs in the house after the first search. Kvacik also admitted that the Cl once lived in the house and that Kvacik did not know if the Cl had a key to the residence.
The first search, which was conducted on March 25, 1989, began at 12:50 a.m., ended at 8:30 a.m., and involved five officers. Kvacik testified that they attempted to thoroughly search the house, but the presence of trash, bugs, and rotten fruit, as well as a rattlesnake in the sink of the laundry room, made the search of the trash bags difficult. When the search was called off at 8:30 a.m., Kvacik did not advise the officer in charge that not all the bags had been searched.
On June 19, 1989, defendant filed a Motion to Produce, pursuant to the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and K.S.A. 22-3212 and K.S.A. 22-3213. Among the items defendant listed to inspect and/or copy was a demand for any information furnished by an informant, as follows:
“4. Whether or not any relevant material or information has been furnished to law enforcement agencies by an informant or police agent. And if so, to state:
“a. The name and address of such informant.
“b. Any reports, ■ written and/or recorded statements- reflecting such information.
“c. Any record of misdemeanor or felony convictions of said informant.
“d. Any agreements made between such informant and the State.”
In ¶ 7 of this motion, defendant also asks that the prosecution be under a continuing duty to notify defense counsel if additional material or information encompassed within the scope of the motion is discovered.
A hearing was conducted as scheduled on July 11, 1989, on defendant’s and his three codefendants’ pretrial motions. The State objected only to the production of the address of the Cl used in the case, arguing that the address of the Cl and other informants should not be disclosed for security reasons and asking that the State not be ordered to disclose “the whereabouts, the address, the employer or location of the informant.” The State expressed concern about the safety of the State’s witnesses.
As an alternative, the State suggested that a structured contact be allowed through the police department locally and that arrangements be made for interviews between the informants and defense counsel. The State again objected to disclosure of the whereabouts of confidential witnesses that the State intended to use in the case but did not oppose identification by name. The court ruled that the witnesses could be contacted “only by the attorneys of record who represent the defendants and any contact by any of the parties with your intended witnesses would, in my judgment, be an indirect contempt of court and punishable accordingly.”
The court clearly instructed the prosecutor to prepare the journal entries for the hearing, which the prosecutor acknowledged and agreed to do. The record contains no journal entry of this hearing.
On July 20, 1989, the State filed a Notice of Appeal pursuant to K.S.A. 22-3603, appealing from “the order of the District Court of Saline County, Kansas, entered on July 11, 1989, sustaining defendant’s Motion to Produce and requiring plaintiff to disclose the address of the informant.” No docketing statement was ever filed on this, and no further proceedings were conducted based upon that notice of appeal.
The record contains a copy of a letter dated August 16, 1989, from defense counsel to Brenda Gillette, Assistant Saline County Attorney, who was in charge of the case, which stated:
“On July 11, 1989, the Court sustained my motion to produce and ordered the County Attorney to provide information and records requested, and in particular the name and address of any informant or informants. To date I have not received this information or records.”
On October 6, 1989, the State filed a motion asking the court to deny discovery of the current address of James Blair, who made the controlled buy for the Salina Police Department that was the basis for the first search warrant. Also on October 6, 1989, defendant filed a Motion for Sanctions and/or Additional Grounds for Continuance, asking that the State not be allowed to call or use the codefendant as a witness because of the State’s delay in complying with the July 11, 1989, order to provide discovery.
A hearing on these two motions was conducted on October 10, 1989. The State acknowledged that the court had granted defendant’s motion to produce in July of 1989 and confirmed that no journal entry of that hearing had ever been filed. The State still refused to reveal the identity of the Cl who had provided the information that was the basis of the second search warrant of defendant’s house. Defendant argued that the name and address of the Cl was important because, after the first search of the house on March 25, no one had explained how the Cl knew the officers would find marijuana in a house that had already been searched while defendant remained in custody.
In response to defendant’s motion, the assistant county attorney stated that her only explanation for the delay, from August 10 until October 6, in turning over the codefendant’s statement was “inadvertness [sic] on the part of [her] office. ” The court inquired why defense counsel should be made to file a motion for sanctions, alleging that the prosecutor failed to comply with discovery orders, which the State did not respond to until substantially later. The court then stated:
“This is getting to be a pattern of conduct. I mean, this is a flagrant violation of the orders of the Court. Judge Woleslagel’s notes indicate that somebody was supposed to prepare a Journal Entry because his notes on the docket sheet refer to ‘motions heard and ruled upon pursuant to Journal Entry.’ And I don’t know who was supposed to—and I haven’t talked to him.”
Regarding the court’s inquiry about the preparation of a journal entry, the prosecutor stated that she believed a journal entry had been prepared, but she did not have a copy of it. The court further questioned Ms. Gillette on the question of disclosing the confidential informant in this case:
“THE COURT: Well, what about the earlier report and about the confidential informant Mr. Sweet referred to with regard to Mr. Clovis’ case?
“MS. GILLETTE: Your Honor, the confidential informant referred to in Mr. Clovis’ case is a confidential informant who provided probable cause information to obtain a search warrant to search Mr. Clovis’ house. There was no motion filed requesting disclosure of that confidential informant in the context of being provided information for the search warrant. And as the Court well knows, generally those types of confidential informants, the State is not required to disclose any information as to the identity of that type of a confidential informant unless the informant providing the information would be intended to be called as a witness at the trial. Those type of informants are not required to be disclosed.
“Now, it’s true that the Motion to Produce does request information regarding any confidential informant, but it would be the State’s position that since a separate motion was not filed relative to the information con tained in the search warrant, and since that information generally is not discoverable, that that would not apply in this particular case.
“THE COURT: It’s not discoverable or it’s not admissible?
“MS. GILLETTE: The identity is generally not discoverable in the case where a confidential informant furnishes information relating to probable cause relating to a search warrant.”
The court then sought to clarify defendant’s position regarding the Cl. The court explained its understanding of the issue, as follows: A first search was conducted and the marijuana was not found, and then, while defendant remained incarcerated, a second search was conducted. The court concluded that the identity of the Cl in such a situation would be highly relevant to determining how the marijuana got to its location. Although some of the information might not ultimately be admissible, it was certainly discoverable. The court ordered that the county attorney could either disclose the whereabouts of the particular Cl or produce him for an interview with defense counsel. The court also found that any reports made by the Cl would go not only to the validity of the statement given for the search warrants, but also to the theory of defense of the charges in the case and, therefore, was discoverable.
Concerning the request for imposition of sanctions or dismissal, the court indicated it would not rule on that question at the October 10, 1989, hearing, stating:
“The County Attorney may purge herself from any potential sanctions by complying with the orders of the Court within the next ten days. And for gosh sake if there is any problem in complying with the order, let’s proceed properly and file the appropriate motions or call it to my attention or something else. I find it very difficult to concede good faith to people who sit on things and don’t take action until they’re threatened with sanctions. That’s not good faith.”
Defendant’s trial was continued to November 8, 1989.
On October 19, 1989, at 9:56 a.m., the prosecutor filed a motion for reconsideration of the order entered by the court on October 10, 1989, to disclose the identity of the Cl. In support of her motion, the county attorney again argued that the Cl was used to establish probable cause to obtain the search warrant and did not participate in the drug transaction. The State did not intend to call the Cl as a witness in the case and pointed out that the officer had guaranteed the Cl confidentiality in exchange for the information used to obtain the search warrant.
On October 19, 1989, at 4:15 p.m., the court entered an order denying the State’s motion to reconsider its October 10, 1989, ruling. The court declined to reconsider the issue “since all matters of discovery and disclosure have been thoroughly argued and considered by Judge Woleslagel and by this Judge as well as by Judge Knudson.” In further explanation of its order, the court stated: “Fundamental fairness in the preparation of the defense in this case dictates compliance in timely fashion with the discovery orders of this Court without repetitive ‘reconsideration,’ especially in view of the impending trial date.” In its order, the court denied a hearing on the State’s motion to reconsider.
On November 3, 1989, the county attorney filed a motion once again asking for a hearing on the issue of disclosure of the identity of the Cl involved in the search warrant of defendant’s house on March 27, 1989. In support of her motion, the county attorney reasserted that the information received by the Cl was used to establish probable cause for the search warrant, but that the informant did not participate in or observe criminal activity involving the crimes charged, and that the defendant had not demonstrated materiality of the Cl’s identity to secure disclosure.
Also on November 3, 1989, defendant filed a motion to dismiss the case against him or to impose sanctions against the State or to continue the trial because the State had failed to comply with the discovery order initially entered on July 11, 1989, and reaffirmed on October 10, 1989.
The court conducted a hearing on these and other pretrial motions on November 6, 1989, two days prior to defendant’s scheduled trial. The State argued that the identity was not material to the defendant’s case. In response, the court noted defendant’s position was: “[T]here was evidence discovered on the second search warrant that was not discovered on the first search warrant and [defendant] was incarcerated the entire time. That seems pretty relevant to me.” The county attorney did not dispute the court’s assessment of the situation but questioned why the identity of a person who had been promised anonymity and confidentiality would need to be disclosed unless it was essential to the defense of the case. The court affirmed its prior ruling that defendant was entitled to determine who the individual was who led to the execution of the second search warrant and the finding of additional drugs that were not located during the first search.
The prosecutor then stated: “Some additional problems, your Honor is I don’t know who this person is. I can speculate and guess.” In response to this assertion by the State, the court noted it had problems with the whole proceeding because discovery had originally been ordered in July. When the prosecutor attempted to assert that she had continuously objected to the release of information regarding the Cl, defense counsel pointed out that no objection had been made at the original discovery hearing to releasing the identity of the individual, but only to providing his address. The court noted that, at the October hearing when the court gave the State the option of producing the individual for an interview rather than providing his address, no one suggested that the Cl was unknown.
In response to the court’s inquiry, the State confirmed that Counts 10 and 11 are the only ones in the information that were relevant to the identity of the Cl that the State refused to disclose. The court then stated:
“Well, I’m going to order that Count X and Count XI be dismissed with prejudice as a sanction for failure to comply with discovery orders of the Court because even if the discovery orders were complied with at this time it wouldn’t give the Court or the counsel sufficient time to properly prepare to defend Counts X and XI. I have reviewed the Complaint & Information and I don’t think that this would be relevant—the second search warrant would be relevant to any of the other counts against [defendant].”
Recognizing that the State would have a time problem with speedy trial if the case were continued, the court concluded both the State and the defendant would be best protected by striking Counts 10 and 11 from the complaint and information. Thus, no information provided by or derived directly from the Cl regarding the second search warrant would be admissible at trial. An order journalizing the rulings of the court at the November 6, 1989, hearing was filed on November 6, 1989. On November 9, 1989, the State filed a notice of appeal challenging the dismissal with prejudice of Counts 10 and 11 of the complaint.
Before turning to the issues raised by the State, we must determine if the filing of an earlier notice of appeal by the State bars jurisdiction of this interlocutory appeal. Following the hearing on July 11, 1989, when the court ordered that the State comply with the motion for production, including the providing of the names and addresses of the informants, the State filed a notice of appeal pursuant to K.S.A. 22-3603. Apparently, no other action was taken.
Defendant argues that, because no disposition was made on that appeal, it is still pending and this interlocutory appeal is barred. The basis of that notice of appeal was K.S.A. 22-3603, which provides:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”
Furthermore, Supreme Court Rule 4.02(e) (1990 Kan. Ct. R. Annot. 20), which relates to interlocutory appeals by the prosecution, provides that, once an appeal is taken, further proceedings in the district court “shall be stayed pending determination of the appeal.”
Defendant argues that the wording of the statute and Supreme Court Rule 4.02 is mandatory and requires that further proceedings in the district court be stayed. Therefore, the filing of the notice of an appeal by the State stayed all further proceedings in the court and deprives this court of jurisdiction to hear this appeal.
Proceedings before the district court were not stayed after the filing of the notice of appeal. Numerous motions were filed and hearings conducted after the filing of the notice of appeal on July 20, 1989. In State v. Galloway, 235 Kan. 70, 79, 680 P.2d 268 (1984), this court recognized that K.S.A. 22-3603 explicitly provides that further proceedings in a trial court shall be stayed pending determination of an interlocutory appeal. Therefore, if this were an appropriate appeal pursuant to K.S.A. 22-3603 and Supreme Court Rule 4.02, then further proceedings in the district court would not have been appropriate.
The State may take an interlocutory appeal pursuant to K.S.A. 22-3603 only when the trial court quashes a warrant or search warrant or suppresses evidence or suppresses a confession or admission. Here, the district court did none of these. Instead, it ordered disclosure of the name and address of a confidential informant.
In State v. Martin, 233 Kan. 148, 660 P.2d 563 (1983), this court held that an order refusing to allow the prosecution to grant a witness immunity from perjury was not an appealable order under K.S.A. 22-3603. Appellate review of pretrial rulings against the prosecution is intended to apply to those issues that are determinative of the case. 233 Kan. at 150 (citing State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451 [1977]) (interlocutory appeal allowed to State but not defendant in limited circumstances because following trial and an acquittal, double jeopardy would bar retrial).
Here, the notice of appeal filed July 20, 1989, was inappropriate. The State, perhaps realizing this, did not object to the court proceeding and took no further action to perfect the appeal. Because the appellate court had no jurisdiction, the proceedings in the district court were not negated by the filing of the earlier notice of appeal.
Defendant also argues that the State waived its right to challenge disclosure of the identity of the Cl because it made no contemporaneous objection to revealing the Cl’s identity at the initial hearing on this issue. The State made no objection to this order until October 19, 1989, when it filed a motion for reconsideration of the court’s order of October 10, 1989, which reaffirmed the order for the State to disclose the identity of the Cl.
Although the State did not make the objection when the court initially ruled that the Cl’s identity needed to be disclosed, it did object prior to the trial. This late objection gave the court the opportunity to correct an error prior to the trial, and therefore the State is not estopped from raising the issue now. The State’s long delay in contesting disclosure of the actual identity of the Cl, however, is a consideration in determining whether the district court abused its discretion in ordering disclosure and in ordering dismissal of the two counts related to the Cl.
We now turn to the two issues raised by the State in this appeal: Whether it was error to order disclosure of the Cl and, if not, whether it was error to dismiss the two counts with prej udice for the State’s failure to obey the order. As to the first issue, the State argues that the Cl merely provided information to the Saline County Sheriffs Department that was used to provide probable cause for obtaining a search warrant of defendant’s residence. The State contends that, because the Cl did not participate in any drug transactions with the defendant that were the basis for any of the charges in this complaint, the court erred in ordering disclosure of his identity.
We note that no common-law privileges exist in Kansas; all relevant evidence is admissible unless a statutory ground exists to exclude it. State v. Knox, 4 Kan. App. 2d 87, 93, 603 P.2d 199 (1979). Kansas has codified what was known in the common law as “the informer’s privilege” in K.S.A. 60-436, which provides as follows:
“A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his or her identity is essential to assure a fair determination of the issues.”
Here, the State asserts that, because the Cl furnished information concerning a violation of the laws of Kansas, his identity is privileged because the defendant has not established that disclosure of the Cl’s identity is essential to assure a fair determination of the issues. We do not agree.
We have recognized that the privilege contained in K.S.A. 60-436 is closely modeled on the decision of the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). State v. Washington, 244 Kan. 652, 656, 772 P.2d 768 (1989) (citing State v. Knox, 4 Kan. App. 2d at 93-94). In Roviaro, the Court discussed the purpose and scope of the privilege, as follows:
“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
“The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
“A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” 353 U.S. at 59-61.
In discussing Roviaro, the defendant here points out that the Court employed a balancing test:
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U.S. at 62.
The State relies on several prior Kansas decisions involving an informant’s privilege. In State v. Robinson, 203 Kan. 304, 308, 454 P.2d 527 (1969), this court, in approving the trial court’s refusal to order disclosure of the identity of the informant, noted that the issue was probable cause to determine the reasonableness of the search of his vehicle, not a question of the guilt or innocence of the defendant. The court concluded that K.S.A. 60-436 places discretion in the trial judge to require disclosure of the identity of an informant in cases when he finds one of the statutory reasons for disclosure present. The court found the judge’s refusal to require disclosure of the identity of the informant in Robinson was properly within the discretion of the trial court and was not abuse. 203 Kan. at 309.
Following Robinson, this court, in State v. Braun, 209 Kan. 181, 185, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972), rejected defendant’s argument that the identity of the confidential informant, whose information was used to obtain the search warrant, should be disclosed because defendant might then be able to develop a defense of entrapment. The court found it incumbent upon defendant to show that the identity of the informant was material to his defense and concluded that this record contained no showing that the informant participated in the offense, was present at the time of the serving of the search warrant, or was a material witness in the case. 209 Kan. at 186. The court noted that the reason for the rule is that the prosecution is usually based upon narcotics obtained during the search and arrest, and the informant has little or nothing to do with this aspect of the case. Recause the defendant did not show that the informant participated in the offense or was in any way a material witness, the court refused to find that the district court abused its discretion in refusing to compel disclosure of the informant’s identity. 209 Kan. at 186.
The confidential informant in State v. Pink, 236 Kan. 715, 717, 696 P.2d 358 (1985), received a reward for providing a Crimes-toppers tip that led to identifying two armed robbers of a Church’s Fried Chicken restaurant in Wichita. The trial court found that the information provided by the Cl was used only to focus the investigation in a direction that led to the arrest of the defendants and was not used even as probable cause for an arrest warrant or search warrant. The Cl was not endorsed as a witness and received a total reward of $1,000 for the information. The trial court denied the discovery request for the Cl’s identity but ordered that, if the informant became a witness at trial, then the fact that such a person was a Crimestoppers informant would be disclosed to the defendants, along with all statements made by that person. 236 Kan. at 721.
In affirming, this court relied upon the balancing test formulated in Roviaro, which requires weighing the public interests in protecting the flow of information with the individual’s right to prepare his defense. Reaffirming Braun, we rejected defendants’ argument that they could not establish the materiality of the Cl’s identity to their defense without knowing the information the Cl could provide. Speculation and suspicion about the informant’s testimony were not adequate grounds for requiring disclosure. 236 Kan. at 722. Although defendants’ evidentiary burden was harsh, it was eased by the court’s in camera hearing with the Cl. This court was satisfied that if the trial judge had found a reasonable probability that the informant could give needed testimony regarding guilt or innocence, disclosure of the informant’s identity would have been required. Therefore, the decision denying disclosure of his identity was within the discretion of the trial court and would not be overturned without the showing of an abuse of discretion. .
The State here does not discuss State v. Schilling, 238 Kan. 593, 712 P.2d 1233 (1986), but it is cited by defendant. In Schilling, defendant sought the identity of a “confidential informant” known as “Susan.” Defendant, who was charged with three counts of sale of marijuana on three different occasions, argued that “Susan” was present during the initial contact between defendant and the police officer who made the purchases in this case. Defendant admitted having a personal and sexual relationship with Susan but did not know her last name. The trial court concluded that the informant would have information that would be material and relevant and ordered disclosure of her full name. 238 Kan. at 594-95.
This court recognized that the decision of whether to disclose Susan’s full identity was within the sound discretion of the trial court. 238 Kan. at 597-98. Count 1, which involved Susan’s presence, had been dismissed. Defense counsel stipulated that Susan had no contact with the two remaining charges in that she did not set up the meetings and was not present. The detectives had no contact with Susan for three months prior to the second and third sales. Meanwhile, the defendant did not appear in person at the hearing on his motion to suppress, did not testify personally, and did not offer any evidence to support his motion. Although Susan was present at the initial meeting and introduced the detective to the defendant, this did not establish that her testimony would be material and essential to assure a fair determination of the issues at the trial on the two later sales, as charged in Counts 2 and 3. This court concluded that nothing in the evidence supported a finding that the informant’s testimony would be helpful to the defendant in establishing a procuring-agent defense against the later two sales. Because no evidence supported the finding that disclosure of the informant’s identity was essential to a fair trial, the trial court erred in ordering disclosure. 238 Kan. at 600-01.
Disclosure was required in State v. Knox, 4 Kan. App. 2d 87, where the informant introduced the undercover law enforcement officer to the defendant and was a witness to the drug transaction that was the basis for the criminal charge. The informant was not a mere tipster but, instead, was an intermediary “who first suggested the crime, introduced the principals, and witnessed the entire transaction.” 4 Kan. App. 2d at 95. Applying the balancing test of Roviaro, the Court of Appeals concluded that all the factors were present. Disclosure of the informant’s identity was essential to a fair trial because the informant was the only witness to the crime except for government agents, and he may have played a prominent part in setting up the criminal occurrence. His testimony might have disclosed entrapment or have controverted, explained, or amplified defendant’s conversations with the government agents.
In State v. Washington, 244 Kan. 652, the defendant was alone in a motel room rented in someone else’s name. A bag containing heroin was found in the room but no direct evidence linked the defendant to it. In a trial to the court, the district court concluded that marijuana found in the motel room was not sufficiently linked to defendant to support a conviction for possession of marijuana. The informant had made a controlled buy in the room just prior to execution of the search warrant. Concluding the informant was not a “mere tipster,” this court noted that his testimony was “ ‘highly relevant and might have been helpful to the defense.’ ” 244 Kan. at 659 (quoting Roviaro, 353 U.S. at 63-64). The informant could possibly provide critical evidence about the defendant’s alleged possession of the heroin, obviously possessed knowledge that was relevant, and may have potentially assisted defendant in defending against the charges. The district court erred in refusing to require the identification of the informant without first conducting an in camera hearing to determine if the informant could assist the defense. 244 Kan. at 659.
Here, the State insists that the Cl merely provided probable cause for the execution of a search warrant at defendant’s residence on March 27, 1989. The State dismisses as mere speculation defense counsel’s argument that the informant’s identity should be revealed to allow investigation of how the informant knew the marijuana was missed during the first search of defendant’s residence.
The question, however, is not whether the district court could have refused to order disclosure, but whether the district court abused its discretion in failing to set aside a prior order of the court, which was entered by a different judge, directing that the identity of the Cl be disclosed.
Although the information received from the Cl provided information used to obtain the second search warrant, the circumstances here differ from other cases in which the Cl is a “mere tipster.” This Cl did not merely provide information to obtain a search warrant. The Cl knew one search had been conducted, and insisted that the officers return to obtain additional evidence that was located on the property. The defense suggests that, since the Cl had previously resided at the house, he could have had a key and thus been able to return to the residence between the time of the two searches and while defendant remained in custody. His prior habitation at the residence also suggests the Cl’s personal knowledge of and perhaps participation in drug activities there.
The decision to order disclosure of a Cl is within the discretion of the district court and should not be overturned on appeal unless an abuse of discretion is established. Pink, 236 Kan. at 722 (citing State v. Nirschl, 208 Kan. 111, 115, 490 P.2d 917 [1971]). Discretion is abused only where no reasonable person would take the view adopted by the court; if reasonable persons could differ about the propriety of the action taken by the court, then the court has not abused the exercise of its discretion. 236 Kan. at 722-23 (citing State v. Wilkins, 220 Kan. 735, 556 P.2d 424 [1976]).
Here, disclosure of the identity of the Cl was first ordered by Judge Woleslagel on July 11, 1989, in granting defendant’s motion to produce. The State did not object to disclosing the Cl’s identity and gave no indication that it would not comply with the court’s order. Three months later, on October 10, 1989, a hearing was conducted to consider defendant’s motion for sanctions. Judge Hebert affirmed Judge Woleslagel’s order requiring disclosure of the Cl’s identity. On October 19, 1989, the State first objected to disclosure of the identity of the Cl. The court denied that motion. At a subsequent hearing, the State again argued that the identity of the Cl should not be disclosed. The court stated it was clear that, under the facts of this case, where a second search based upon the Cl’s statement revealed additional drugs and a sawed-off shotgun that were not found during the execution of the first search warrant, the identity of the Cl should be disclosed in order to allow the defense to investigate possible theories.
In Washington, this court recognized that the need to reveal an informant’s identity will depend upon the circumstances presented in each case, and thus “ ‘each case must be decided on its own merits.’ ” 244 Kan. at 658 (quoting State v. Braun, 209 Kan. at 184). See State v. Pink, 236 Kan. at 722. The two-day delay between the execution of the first and second search warrants while defendant remained in custody raises numerous questions about the Cl’s involvement in this case. Here, two different trial judges determined that the identity of the Cl was “relevant and helpful to the defense of [the] accused,” Roviaro, 353 U.S. at 60-61, and that “the informant could provide information essential to a fair trial by providing information relevant and helpful to the defense.” Washington, 244 Kan. at 657. The State has failed to establish that this finding was an abuse of discretion. We conclude that reasonable persons could agree with the decisions by Judge Hebert and Judge Woleslagel ordering disclosure under these facts, and therefore no abuse of discretion is shown.
We next consider if the district court erred in dismissing Counts 10 and 11 with prejudice because of the State’s failure to disclose the identity' of the Cl. Clearly, the State was given repeated opportunities to comply with the discovery order originally entered by the court at the hearing on July 11, 1989. In fact, as late as October 10, 1989, the State was once again given 10 additional days to purge itself of the failure to comply with the discovery order. At the hearing on October 10, and the subsequent hearing on November 6, 1989, the court expressed its extreme frustration in attempting to force the State to comply with this and other discovery orders.
The district court has great flexibility in imposing sanctions for failure to comply with a discovery order. In fact, sanctions are specifically recognized in the discovery statute, K.S.A. 22-3212(7), which states, in relevant part:
“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
We have recognized that the trial court may dismiss a case where failure to abide by the discovery rules prevents a fair trial. In State v. Schilling, 238 Kan. at 601, the trial court ordered the prosecutor to disclose the informant’s identity, dismiss the case with prejudice, or be held in contempt of court. This court recognized that the trial court is vested with wide discretion in dealing with the failure of a party to comply with a discovery order, 238 Kan. at 601 (quoting State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 [1972]), and pointed out that dismissal was the most drastic sanction that could be applied, to be used where failure to abide by the discovery rules prevented a fair trial. 238 Kan. at 601 (citing State v. Winter, 238 Kan. 530, 712 P.2d 1228 [1986]). Because of the power of the court to dismiss a case, the trial court had no need to invoke its contempt powers. This court found no authority for allowing the trial court to threaten a prosecutor with contempt for failure to dismiss a criminal case with prejudice when the trial court had its own authority to enforce its discovery orders by dismissing as a sanction. 238 Kan. at 601-02. Justice Prager, although disagreeing with the majority that the district court abused its discretion in ordering disclosure, stated:
“I agree that a trial court may dismiss a criminal case for failure of the prosecution to disclose the name of an informant. Because the trial court has that authority, there was no need for the trial court in this case to invoke its contempt power and to order the prosecution to either dismiss the case or be in contempt. The trial court should simply have given the prosecution a reasonable time to furnish the name of the confidential informant and, if the name was not furnished by that date, the trial court should then have dismissed the case. That would have been the appropriate action for the trial court to have taken.” Schilling, 238 Kan. at 607.
That is exactly what the district court did here. In imposing sanctions, the court noted not only the prosecutor’s failure to reveal the identity of this Cl, but also other acts in this case and others showing the prosecutor’s refusal to comply with orders of the court. The court specified that it was imposing sanctions because of the prosecutor’s continuing disregard of the court’s order to disclose the Cl.
Furthermore, at the hearing on November 6, 1989, the State agreed that a time problem existed under the speedy trial issue. The court struck Counts 10 and 11 from the complaint against defendant, stating that “both the position of the State and the defendant could be best protected in this situation.” The court specifically stated that the two counts were dismissed “because even if the discovery orders were complied with at this time it wouldn’t give the Court or the counsel sufficient time to properly prepare to defend Counts X and XI.”
A dismissal with prejudice is a very drastic sanction to impose in a criminal case. Such sanction should not be imposed if a lesser sanction would accomplish the desired objective. Here, the desired objective was the disclosure of the identity of the Cl by the State. We are not aware of, nor does the State suggest, a less drastic sanction that would have accomplished that objective in this case. The test is whether the district court abused its discretion in dismissing the two counts with prejudice. We conclude that the action taken by the district court was appropriate in this case. The district court did not abuse its discretion in dismissing Counts 10 and 11 of the complaint, based upon its authority to impose sanctions pursuant to K.S.A. 22-3212(7).
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
In this action plaintiffs William D. and Norma I. Carson are seeking to recover on a judgment they have against a dissolved corporation from defendants J. M. Davidson and Danny Martin, who were the stockholders receiving the assets of the corporation upon dissolution. Recovery is sought under the trust fund doctrine. The district court held that Kansas has not adopted the trust fund doctrine and entered summary judgment in favor of defendants. Plaintiffs appeal therefrom.
The facts may be summarized as follows. Prior to April 1983, Tuttle Creek Development, Inc., (TCD) was a valid Kansas corporation. J. M. Davidson and Danny Martin were its sole officers, directors, and stockholders, each owning 50% of the stock. The corporation’s only significant asset was a facility known as Colonial Gardens Mobile Home Park.
In April of 1983, TCD and the plaintiffs entered into a contract whereby plaintiffs would purchase the facility for $650,000 the same to be paid by a combination of assumption of mortgage indebtedness, execution of promissory notes to the individual defendants herein, and actual cash outlay. The contract provided that the cash was to be paid directly to Davidson and Martin, rather than to the corporation. The closing of the sale took place in July 1983, and the defendants received the cash payment as specified.
In July 1984, the corporate charter of TCD was revoked by the Kansas Secretary of State for failure to file its 1983 annual report. The corporate existence of TCD has never been revived. In July 1983, TCD had filed for an Internal Revenue Code Sec. 337 liquidation.
On May 15, 1986, plaintiffs herein filed an action against TCD and defendant Davidson, alleging breach of contract (case No. 86-C-178 in the Riley County District Court). Plaintiffs claimed that those defendants had promised to secure a 30-foot easement for expansion of the mobile home park. The case was tried to a jury. The trial court refused to submit the breach of contract claim against Davidson to the jury on the basis the same was barred by K.S.A. 17-7101(b). Plaintiffs’ claim against Davidson based upon promissory estoppel was submitted to the jury. The jury held in favor of plaintiffs on their claim against TCD, fixing damages at $12,200. The jury held in favor of Davidson on the promissory estoppel claim against him. The verdict was returned on April 14, 1988, and no appeal was taken therefrom. In June 1988, a general execution was issued against TCD and returned unsatisfied.
On March 15, 1989, the action herein was commenced by plaintiffs to collect the TCD judgment from defendants Davidson and Martin as stockholders of TCD under the trust fund doctrine. Plaintiffs and defendants each sought summary judgment. Judgment was entered in favor of defendants on the ground the doctrine authorizing such an action had not been adopted in Kansas. Plaintiffs appeal therefrom.
TRUST FUND DOCTRINE
19 Am. Jur. 2d, Corporations § 2714 describes the trust fund doctrine as follows:
“A corporation cannot disable itself from responding to liability for its acts by distributing its property among its stockholders and leaving remediless those having valid claims; in such a case the claims, after being reduced to judgment, may be satisfied out of the assets in the hands of the stockholders. The right to follow the distributed assets of a corporation in the hands of the stockholders applies not only to those who are creditors in the commercial sense, but to all who hold unsatisfied claims.”
Probably the leading case on this doctrine is Pierce v. United States, 255 U.S. 398, 65 L. Ed. 697, 41 S. Ct. 365 (1921). In Pierce, the Waters Pierce Oil Company, a Missouri corporation, was indicted for violation of the Elkins Act by receiving rebates. In 1913, the company sold and transferred all its property to the Pierce Oil Corporation and distributed the proceeds, through trustees, to the stockholders of the now-defunct corporation. 255 U.S. at 400. The case was tried in 1914. The company was convicted and fined $14,000. In 1915, the conviction was upheld on appeal, and, thereafter, execution was issued against the corporation. When the execution went unsatisfied, the United States sued the stockholders, as well as the defunct corporation and the trustees. The trial court dismissed the action against the corporation and the trustees, but granted the sought-after relief against the stockholders. The Eighth Circuit affirmed. The United States Supreme Court affirmed, reasoning:
“The law which sends a corporation into the world with the capacity to act imposes upon its assets liability for its acts. The corporation cannot disable itself from responding by distributing its property among its stockholders and leaving remediless those having valid claims. In such a case the claims after being reduced to judgments may be satisfied out of the assets in the hands of the stockholders.” 255 U.S. at 402.
Moreover, the Supreme Court rejected the argument that the judgment could not be collected because the judgment was not entered by the trial court until one year after the company divested itself of the property and the proceeds were distributed to the shareholders, reasoning as follows:
“But when a corporation divests itself of all its assets by distributing them among the stockholders, those having unsatisfied claims against it may follow the assets, although the claims were contested and unliquidated at the time when the assets were distributed.” 255 U.S. at 403.
In Kansas, we have long held that capital stock in a corporation is a trust fund for the benefit of general creditors of the corporation. Brokerage Co. v. Dunn, 91 Kan. 64, 136 Pac. 939 (1913).
In Clark v. Pargeter, 142 Kan. 781, 52 P.2d 617 (1935), certain stockholders issued their promissory note to the insolvent corporation. The note was assigned to certain stockholders and creditors. The corporation went into receivership. The receiver brought this action to set aside credit given on the note and the assignment of it and to recover possession of the note. The Clark facts are quite different from those before us, but the following two excerpts from Clark are significant as to whether the trust fund doctrine has been adopted in Kansas:
1. “In view of the fact the trust-fund doctrine has been recognized as the law of this state for over forty years, it seems the better rule to follow that when the corporation is insolvent or in a failing condition, it should not be permitted to so deal with its shareholders who are creditors that they receive a preferential right to the assets of the corporation to the detriment of the general creditors. They should receive their dues ratably with other general creditors.” 142 Kan. at 789.
2. “And finally, another reason why appellants should not prevail is that under decisions noted the ‘trust-fund doctrine’ is followed in this state. The note in question is a part of that trust fund, and the action is to follow and recover it.” 142 Kan. at 791.
The facts and holding in Welden v. American Steel & Wire Co., 143 Kan. 125, 53 P.2d 1195 (1936), are summarized in its syllabus as follows:
“Where a corporation was an employer under the workmen’s compensation law when an injury occurred to one of its employees, and he regularly obtained an award by an arbitrator for temporary disability, all of which award had been paid to the clerk of the district court, and some years later a stockholder in said respondent company purchased the assets thereof and received a proportionate share of the purchase price, such stockholder and purchaser is not a proper defendant nor liable in an action commenced more than eight years after the accident to review and modify such award by finding the injury and disability to be permanent instead of temporary.”
In reaching this conclusion, this court discussed the trust fund doctrine and held it inapplicable under the facts—primarily because the claim arose under the Workers Compensation Act, which provides for no such cause of action against the purchaser of a corporation’s assets.
In reaching its conclusion that the trust fund doctrine had not been adopted in Kansas, the trial court in the case before us relied in part upon Speer v. Dighton Grain, Inc., 229 Kan. 272, 624 P.2d 952 (1981). The trial court recognized that Speer was distinguishable factually but felt the case offered “some guidance.” We do not agree. In Speer the creditor-plaintiff was not seeking to follow corporate assets in the hands of stockholders. Rather, he was suing directors and officers for their alleged mismanagement of the corporation. We held:
“A creditor of an insolvent corporation who sues solely on his own behalf cannot maintain a personal action against directors or officers who, by negligent mismanagement of the corporation’s affairs, have breached their duty to the corporation to the consequent damage or injury of its creditors.” 229 Kan. 272, Syl. ¶ 10.
There were no assets being held by stockholders involved in Speer. Hence, the trust fund doctrine could not be applicable. Put another way, plaintiff Speer was not pursuing corporate assets in the hands of stockholders.
The Tenth Circuit Court of Appeals applied the trust fund doctrine to a case arising in Kansas in Koch v. United States, 138 F.2d 850 (10th Cir. 1943). The Koch opinion held:
“Where the assets of a dissolved corporation have been distributed among the stockholders, a creditor of the dissolved corporation may follow such assets as in the nature of a trust fund into the hands of stockholders. The creditors have the right to subject such assets to their debts and for that purpose the stockholders hold them as though they were trustees. In other words, the assets of the dissolved corporation are a trust fund against which the corporate creditors have a claim superior to that of the stockholders. A stockholder who receives only a portion of the assets is liable to respond only for that portion. Where the assets coming into the hands of a stockholder suffer a change in value, the creditor must take the trust fund as he finds it, securing the advantage of any increase and suffering any decrease, unless the stockholder is responsible for the decrease. Where the trust property has been used by the stockholder for his own purpose, or disposed of by him, he may be held personally liable for the full value thereof.
“Thus, it will be seen that the obligation of the stockholder is to respond as trustee for the property coming into his hands and for any breach of his obligations as trustee with respect thereto. There is no personal liability, except in cases where he has disposed of the trust fund in such a manner that it cannot be followed, or where he has caused a diminution in the value of the trust assets.” 138 F.2d at 852.
We conclude the trust fund doctrine is viable in Kansas. Said doctrine is summarized as follows: Under the trust fund doctrine the assets of a dissolved corporation are a trust fund against which the corporate creditors have a claim superior to that of the stockholders, and creditors have the right to follow such assets into the hands of stockholders who hold assets as though the stockholders were trustees. A stockholder of a dissolved corporation receiving assets of a dissolved corporation is liable to respond to a creditor of the corporation only to the extent of the assets so received or the value thereof if the same have been disposed of by the stockholder.
Accordingly, we hold the district court erred in entering summary judgment in favor of the defendants on the ground that the trust fund doctrine had never been adopted in Kansas.
Before concluding, a second issue raised by defendant Davidson must be discussed. As a second ground for the granting of summary judgment in his favor, this defendant claimed this action as to him was barred by the doctrine of res judicata. By virtue of its holding on the trust fund doctrine issue, the trial court did not reach this issue. As will be recalled, Davidson was a defendant in the earlier action brought by plaintiffs against the corporation (and Davidson).
In In re Estate of Reed, 236 Kan. 514, 519-20, 693 P.2d 1156 (1985), we discussed the principles and requirements of res judicata as follows:
“The doctrine of res judicata is a bar to a second action upon the same claim, demand or cause of action. It is founded upon the principle that the party, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction. Penachio v. Walker, 207 Kan. 54, 57, 483 P.2d 1119 (1971). The salutary rule of res judicata forbids a suitor from twice litigating a claim for relief against the same party. The rule is binding, not only as to every question actually presented, considered and decided, but also to every question which might have been presented and decided. Hutchinson Nat’l Bank & Trust Co. v. English, 209 Kan. 127, 130, 495 P.2d 1011 (1972). The doctrine of res judicata prevents the splitting of a single cause of action or claim into two or more suits; it requires that all the grounds or theories upon which a cause of action or claim is founded be asserted in one action or they will be barred in any subsequent action. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138, 140, 531 P.2d 435 (1975). This rule is one of public policy. It is to the interest of the state that there be an end to litigation and an end to the hardship on a party being vexed more than once for the same cause. The doctrine of res judicata is, therefore, to be given a liberal application but not applied so rigidly as to defeat the ends of justice. Wells, Administrator v. Ross, 204 Kan. 676, 678, 465 P.2d 966 (1970).
“An issue is res judicata when there is a concurrence of four conditions: (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. Kumberg v. Kumberg, 232 Kan. 692, Syl. ¶ 6, 659 P.2d 823 (1983); Adamson v. Hill, 202 Kan. 482, 487, 449 P.2d 536 (1969). Application of the doctrine of res judicata is unconcerned with the procedural avenue employed to acquire jurisdiction in a particular tribunal. The doctrine prevents a second assertion of the same claim or cause of action and, regardless of which statute a party uses to proceed to a tribunal, where the same facts, same parties and same issues have previously been litigated before a court of competent jurisdiction which renders a judgment within its competency, the cause of action is barred. Wirt v. Esrey, 233 Kan. 300, 308, 662 P.2d 1238 (1983).”
Have the four conditions necessary for res judicata to attach herein been met? We think not.
In the earlier action the plaintiffs sued: (1) the corporation for breach of contract and (2) Davidson on theories of breach of contract and promissory estoppel. In the case before us, the plaintiffs are suing Davidson and Martin as stockholders possessing assets of TCD, against which corporation the plaintiffs have a judgment.
Plaintiffs could not have maintained this action until they had a judgment against the corporation and the execution thereon had been returned unsatisfied. These requirements are set forth in K.S.A. 17-7101(b), which provides:
“No suit shall be brought against any officer, director or stockholder for any debt of a corporation of which he is an officer, director or stockholder, until judgment be obtained therefor against the corporation and execution thereon returned unsatisfied.”
Therefore, the prior action against Davidson on other causes of action does not bar the claim herein.
The judgment is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
HOLMES, C.J.:
Defendant, Terry L. Hedger, appeals from his conviction of one count of murder in the second degree, K.S.A. 21-3402. The victim was defendant’s wife, Joanne Hedger, and the defense was that the shooting was an accident or mistake. We affirm.
Defendant does not deny that he fired the shot that killed his wife but contends he did so accidentally or by mistake. Defendant asserts that (1) the trial court erred in admitting evidence of prior violent incidents between defendant and his wife; (2) the trial court erred in admitting into evidence gruesome photographs and a videotape of the victim’s body; and (3) the evidence was insufficient to support the verdict. The facts will be set forth in some detail.
Joanne Hedger (Jodie) and Terry L. Hedger were married in LaPlata, Maryland, June 7, 1984. Defendant is an alcoholic and he and Jodie experienced problems prior to and early in their marriage due to defendant’s violent nature when he was drinking. In late July 1984 the Hedgers moved to Wisconsin and in August they moved to Kansas City. During July 1984, law officers were called in connection with four domestic disturbances involving the Hedgers. Three incidents took place in Maryland and one in Wisconsin.
Following the Hedgers’ move to Kansas City, defendant sought help for his drinking problems and underwent inpatient alcohol treatment at Baptist Medical Center for 30 days. Thereafter he participated in an after-care program for approximately two and one-half years and actively participated in Alcoholics Anonymous. Two children were born to defendant and Jodie. Defendant was regularly employed in a responsible position as a construction foreman. Jodie was self-employed in her own upholstery shop and was involved in numerous other activities. Defendant, an avid gun collector and hunter, maintained his own workshop in the family garage where he worked on firearms and his other hobby of archery. He was an expert in the use and care of firearms and archery equipment and was constantly seeking to upgrade his collection of guns and bows. Defendant regularly went on hunting expeditions for all types of wild game, including caribou, moose, wild boar, sheep, deer, and bear, as well as small game. He hunted with both guns and bows and arrows and was proficient in hunting wild game with a handgun or pistol.
At some point in late 1988 or early 1989, the Hedgers and their neighbors began experiencing problems with gangs. Their neighborhood was not very safe and several thefts and burglaries occurred. The Hedgers’ home and garage were broken into numerous times and the neighbors were having similar problems. Because of these problems, defendant began carrying a weapon with him most of the time. He generally carried a .44 caliber magnum pistol in his briefcase, which he placed on the front seat of his truck. On the night of this tragedy, he had his pistol in his truck immediately prior to the shooting.
The Hedgers were happy and doing well until early in April 1989, when defendant resumed drinking. The weekend before she was killed, Jodie discovered defendant was drinking again. On Sunday, April 23, 1989, defendant came home from a bar and fell asleep on the couch. According to defendant, when Jodie found him there the next morning they argued over his drinking and a physical altercation or fight resulted. Defendant did not go to work that day but went out drinking again. Defendant became intoxicated and spent Monday night at a motel. Jodie contacted Al Anon and sought help for defendant’s drinking. On Tuesday, April 25, 1989, defendant did go to work and after work went scouting for wild turkeys in anticipation of a later turkey hunt. Defendant testified he returned home about 10:30 p.m. and that he had not been drinking that day.
On the evening of April 26, Jodie arranged for Michelle, a babysitter, to care for the children so Jodie could attend an Al Anon meeting. When defendant arrived home that evening he demanded to know “where the hell Jodie was” according to testimony from Michelle, who described defendant as being upset. According to defendant, he was not upset and he claimed he knew Jodie had gone to the Al Anon meeting. About 9:15 p.m., defendant left the house to meet Jodie at the meeting. On his way down the street, defendant met Jodie at a nearby intersection driving toward home. Both vehicles stopped and, according to defendant, he and Jodie talked briefly, and then he turned his vehicle around and followed Jodie home.
A neighbor, Lawrence Rasnik, saw the two vehicles as they approached each other, and he testified the truck driven by defendant came to a screeching halt and defendant hollered, “where the . . . have you been?” Rasnik did not know the Hedgers, but he continued to watch them. He stated they appeared to argue and then the van driven by Jodie went on up the hill and turned into the driveway. The truck turned around and took off after the van at a high rate of speed.
The Hedgers owned at least three vehicles: a camper parked at the house, the van being driven by Jodie, and a pickup truck driven by defendant. Defendant testified that when he arrived, Jodie’s van was already parked in the driveway and he assumed Jodie had gone into the house. As he drove up to park next to the van he thought he saw something moving near the parked camper. Thinking he had seen a prowler, defendant took his .44 caliber magnum pistol from his briefcase and started to look around. There was a yard light on and defendant left the truck lights on. Defendant cocked his gun so that he would be ready if attacked by the suspected prowler.
According to defendant, he heard his name called and he walked around the back of the van. As he did so, he saw someone and raised the gun up, and it went off with the bullet striking his wife in the head. She died instantly. Defendant testified he thought she was a prowler but he also claims the gun went off accidentally. He testified he did not mean to. shoot his wife. Defendant was extremely upset after the shooting and told some neighbors who had arrived on the scene, “Oh my God, I shot my wife, I thought she was a prowler.”
The State charged defendant with first-degree murder, contending that after he started drinking again defendant renewed his violent conduct toward Jodie. Defendant and Jodie had argued recently, she had numerous bruises allegedly received during arguments with defendant, and she had threatened to leave defendant because of his resumed drinking. Additional facts will be related as they become relevant to the issues raised on appeal.
The first issue is that the trial court erred in admitting evidence of two prior acts of violence between defendant and Jodie. Prior to trial, the State filed a notice of intent to present evidence of the four prior altercations which took place in July 1984 between defendant and Jodie. A hearing was held and the State argued that the prior acts of violence were admissible under K.S.A. 60-455 to prove intent, opportunity, motive, and absence of mistake or accident. The State, in an earlier memorandum filed with the court, had also argued that evidence of prior marital discord was admissible, independent of K.S.A. 60-455, to show the relationship of the parties. The trial court, in a brief memorandum order, held that evidence of the prior acts of violence was admissible under K.S.A. 60-455 to prove “intent, opportunity, motive, absence of mistake or accident.” The court also noted that evidence of the type proffered might be admissible independent of K.S.A. 60-455 to show the discordant marital relationship, citing State v. Taylor, 234 Kan. 401, 673 P.2d 1140 (1983), and State v. Green, 232 Kan. 116, 652 P.2d 697 (1982).
At trial, the judge admitted the testimony of a police officer from Wisconsin who testified that in the early morning hours of July 31, 1984, he received a call about a fight behind a tavern in West Allis, Wisconsin. Upon arriving at the scene, he determined that it was a domestic dispute involving an argument be tween defendant and Jodie and “the husband then threw her to the ground and then kicked her in the face while she was on the ground.” Defendant was arrested and taken into custody. Defendant was intoxicated at the time.
Officer Samuel N. Graves of the Charles County Sheriff s Office in LaPlata, Maryland, testified that on July 20, 1984, he responded to a domestic disturbance in LaPlata. Jodie was trying to drive away from their home when defendant attempted to stop her. Defendant broke a window out of the van and entered the van after Jodie. Defendant admitted he had been arguing with Jodie, and the officer testified defendant was under the influence of alcohol at the time.
Following the testimony on these two incidents, the trial court, sua sponte, called a recess and outside the presence of the jury grilled the prosecuting attorney about the basis for the admission of the testimony. After considerable argument, the court expressed concern that the evidence may have been inadmissible under K.S.A. 60-455 and refused to allow any additional testimony of the prior acts of violence between defendant and Jodie.
Defendant argues that the trial court’s admission of the two prior violent acts was error. According to defendant, the evidence of his prior crimes or civil wrongs was used by the State to show his disposition to commit this crime. Based on K.S.A. 60-455, evidence of prior crimes or civil wrongs is inadmissible for that purpose.
The State contends that its use of evidence of the prior violent acts falls within the facts specified in K.S.A. 60-455 and in addition was admissible independent of the statute. According to the State, the evidence was used to show defendant’s intent and other relevant facts as specified in the statute and to show marital discord between defendant and Jodie.
K.S.A. 60-455 states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
While it may be true that admission of the evidence under K.S.A. 60-455 was somewhat questionable, we have repeatedly held that evidence of a discordant marital relationship is admissible, independent of the statute, to show the ongoing relationship between the parties.
In State v. Green, 232 Kan. 116, we held:
“Evidence of a discordant marital relationship, including the defendant’s prior acts of violence against his wife and threats to kill her is admissible independently of K.S.A. 60-455, where the evidence is offered not for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the witnesses as to the act charged. Under these circumstances a limiting instruction is not required.” Syl. ¶ 4.
See State v. Taylor, 234 Kan. 401, 407, 673 P.2d 1140 (1983).
In the present case, although there was a lapse of nearly five years between the prior violent acts of defendant and the death of Jodie, we think the evidence was clearly admissible to show the relationship and violence that existed when defendant was drinking. The lapse of nearly five years between the prior violent acts and the present homicide does not preclude the admission of relevant evidence but only goes to the weight to be given to the evidence. See State v. Green, 232 Kan. 116, Syl. ¶ 5. While it is true that defendant was not intoxicated at the time of the shooting, he had begun drinking again several days prior to the death. Immediately upon the resumption of defendant’s drinking, the violence against Jodie and the marital discord arose once again. The evidence was relevant and admissible to show a return to the violent and argumentative relationship that plagued the couple during the early portion of their marriage and that it was defendant’s drinking which caused such a relationship. The fact that the trial court may have made its ruling allowing the evidence for the wrong reason is immaterial so long as the evidence was correctly admitted. A trial court’s decision, if correct, will not be overturned on appeal even if the trial court’s reasons for the ruling were incorrect. State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987). We find no merit in defendant’s first issue.
The next issue is that the trial court erred in admitting numerous gruesome photographs of Jodie’s body and a videotape showing additional similar pictures of the body. Defendant argues that the photographs and videotape were unduly prejudicial, repetitious, and irrelevant to the issues to be decided at trial. The State contends they were relevant and necessary to demonstrate to the jury how and where the shooting occurred, as well as the nature of the wound.
Jodie was shot once in the head with the .44 caliber magnum pistol. The pictures show a gaping hole just above the left eye with Jodie’s brains splattered across her body and on the driveway. There is no doubt the photographs and video are gruesome, but that alone is not grounds to exclude the evidence. In State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), similar arguments were made about a videotape showing the bodies of the victims. We stated:
“Photographs are erroneously admitted where they are unduly repetitious, gruesome, and without probative value. State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980). They are not inadmissible as evidence merely because they may be gruesome and shocking, provided they are true reproductions of relevant physical facts and conditions material to matters in issue. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978).” 240 Kan. at 516.
In the present case, the photographs were admitted to show where Jodie was shot, how she was shot, and the nature and extent of her wounds. The fact that defendant admits that he shot her in the head with his .44 magnum does not make the pictures any less relevant. In State v. Green, 232 Kan. at 119, we stated that “even where the defendant concedes the cause of death, it is incumbent on the prosecution to prove as part of its case in chief all the elements of the crime charged; and photographs to prove the elements, including the fact and manner of death, are relevant and admissible.” In Green, photographs of the murdered victim were admitted over the defendant’s objection. The court held that, for the State to prove its case, it was necessary to prove the defendant committed the crime with premeditation and malice. The photographs were proper to prove malice and premeditation by the nature and extent of the wounds suffered by the victim. 232 Kan. at 119.
Here, the photographs were used to show the place, cause, and manner of death. Even though gruesome, the photographs were relevant to the issues in the case and admissible. The videotape was 8 to 10 minutes in length and dealt primarily with the crime scene, lighting, visibility, distance from the defendant to the victim, and similar factual matters relevant to the State’s case. The portion of the videotape relating to the victim’s body is brief in comparison to the time devoted to the crime scene. Extensive photos of the crime scene were relevant on the issue of mistaken identity of the victim and to show an absence of accident or mistake. It is true that the photographs and videotape are repetitious, and the State would have been well advised to limit the extent of the photo evidence of the victim. Nevertheless, the admission of photographic evidence lies within the sound discretion of the trial court. State v. Ruebke, 240 Kan. at 516. We cannot say that the trial court in this case abused its discretion.
For his final issue on appeal, defendant contends that the evidence was insufficient to support the jury verdict of second-degree murder. Defendant was charged and tried on one count of first-degree murder. The jury was instructed on the lesser offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. Defendant contends there was insufficient evidence to support a finding that he intended to kill his wife as is required by K.S.A. 21-3402.
“When the sufficiency of the evidence is challenged, the standard of review on appeal 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. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).
In applying this standard to the present case, it appears there is evidence that is sufficient for a rational factfinder to conclude, beyond a reasonable doubt, that defendant intentionally shot his wife. The prosecution called several witnesses, including policemen and neighbors at the scene, who testified there was sufficient light at the scene to see that it was Jodie who had been shot, indicating that defendant knew who he was shooting. There is evidence that defendant was once a severe alcoholic and that, when he drank, he exhibited violent tendencies and had struck Jodie on prior occasions. Further, there is evidence that, after having been sober for an extended period, defendant began drinking again approximately two weeks before Jodie was shot. Jodie was extremely depressed on Tuesday and Wednesday before the shooting, although defendant testified their relationship was good. One witness testified that defendant recently had stated about Jodie, “She is so damn dumb, I ought to just blow her head off.” The prosecution introduced evidence that on the night Jodie was shot defendant came home upset and looking for Jodie. There is also testimony that, minutes before the shooting, Jodie and defendant had an argument in the street close to their home. A witness testified that defendant was angry and hollered at his wife, “Where the . . . have you been?” and that, after he turned the truck around, he sped up the hill and into the driveway. The prosecution demonstrated through pictures, the video, and the pathologist’s testimony that Jodie was shot in the head and suffered massive destruction to the brain.
There was also considerable evidence, much of it from defendant himself, that he was an expert in the use of firearms. Defendant had taken up the hobby of hunting large game with a handgun or pistol and had used the .44 magnum pistol to kill a wild boar. He also used the same gun for target practice and was thoroughly familiar with the weapon, even though defendant did testify it had a hair trigger. Under all of the evidence, the jury could have found that the gun did not fire accidentally and that defendant did not mistake his wife for a prowler. The jury was justified in concluding defendant intentionally shot his wife.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This case concerns the exercise of trial court discretion during the sentencing phase of a criminal proceeding.
Dean Hannah, the defendant, pled guilty to first-degree murder (K.S.A. 1989 Supp. 21-3401), burglary (K.S.A. 1989 Supp. 21-3715), and misdemeanor theft (K.S.A. 21-3701). He was sentenced to life imprisonment (murder), three to ten years (burglary), and one year (theft). The three- to ten-year sentence is consecutive to the life sentence and concurrent with the one year sentence.
Hannah claims the sentence of three to ten years, the maximum for burglary, is an abuse of trial court discretion.
We find no error and affirm.
Facts
In September 1989, Hannah broke into Daniel Dahlgren’s apartment when Dahlgren was not home and took a Nintendo game, a VCR, and a stereo receiver. Thirteen days later, Hannah returned to Dahlgren’s apartment with a gun and demanded money. Dahlgren gave Hannah $60 in cash, a checkbook, and a telecard. Hannah fatally shot Dahlgren in the back of the head and fled in Dahlgren’s car. Hannah confessed to the crimes.
The Geary County Attorney filed a six-count complaint/information charging Hannah with first-degree murder (count I), aggravated robbery (count II), aggravated burglary (count III), felony theft (count IV), burglary (count V), and misdemeanor theft (count VI). Counts I through IV related to the later shooting incident while counts V and VI arose out of the initial September entry.
Under a plea agreement, Hannah entered pleas of guilty to count I, first-degree murder; count V, burglary; and count VI, misdemeanor theft. The State dismissed the remaining charges. The trial court accepted the pleas and ordered a presentence investigation report.
Hannah requested the minimum burglary sentence of one to five years to be served concurrently with the sentence for misdemeanor theft. The State requested the maximum sentence on the burglary charge of three to ten years. The trial court discussed the factors set forth in K.S.A. 21-4606 and concluded: “The Court must find that Mr. Hannah is a danger to society and must protect society as one of the interests which this Court is required to perform in accordance with K.S.A. 21-4606.”
The trial court heard Hannah’s motion for modification of the burglary sentence in February 1990. Hannah contended that he should receive the minimum sentence for burglary of one to five years. He argued that the burglary occurred two weeks prior to the murder. Hannah asserted that the trial court should not consider the murder when applying the factors set forth in K.S.A. 21-4606 to determine the sentence for the burglary charge. The argument advanced by counsel before the trial court states the essence of Hannah’s appeal:
“Your Honor, the burglary . . . took place approximately two weeks prior to the murder. It appears that there was no nexus between the burglary and the murder other than the same parties being involved.
“In this case, Your Honor, the burglary would have constituted the defendant’s first felony and prior to that, he had no significant criminal history .... [T]he Court should handle [the burglary sentence] in the manner that it would have handled it . . . had the burglary case been filed and heard by this Court prior to . . . the murder case.
“[W]e do believe that under the circumstances, . . . the sentence which should have been imposed on the burglary under the circumstances and as laid out in 4606 should have been a sentence of no more than one to five years . . . .”
The State reasoned that the trial court is entitled to view all the circumstances surrounding Hannah’s involvement with Dahlgren.
The trial court in denying the motion to modify stated: “[Hannah] is a very dangerous individual and as far as this Court’s concerned, he’s not rehabilitatible and he should receive maximum imprisonment and should stay there as long as we possibly can keep him.”
The Burglary Sentence
Burglary of a building is a class D felony. K.S.A. 1989 Supp. 21-3715. Punishment is based upon an indeterminate term of imprisonment of a minimum of not less than one year nor more than three years and a maximum of not less than five years nor more than ten years. K.S.A. 21-4501(d)(2). Hannah’s sentence of three to ten years is within this statutory limit.
In State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989), we set out the controlling sentencing concepts. The sentencing judge alone determines the appropriate sentence, not appellate judges. The sentencing judge determines the sentence to be served by exercising his or her best judgment, common sense, and judicial discretion. Consideration is to be given to all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law, the realm of trial court discretion, and is not a result of partiality, prejudice, oppression, or corrupt motive.
K.S.A. 21-4606 lists the criteria the court should consider in sentencing a person to prison.
In the case at bar, the trial court considered and made findings as to each of the K.S.A. 21-4606 factors. The trial court noted that Hannah does not have a long criminal history. Hannah’s case involved first-degree murder. The extent of harm was the most serious factor. Noting that the burglary and theft occurred before the murder and were separate from it, the trial court found: “[I]t does not appear that [Hannah] intended severe harm or serious harm in that particular case.” There was no provocation and no substantial grounds to excuse or justify the burglary. Under the circumstances of the victim’s death, the trial court found that compensation for “a few electronic pieces of gadgetry would only be insulting . . . .” The trial court concluded that Hannah is a danger to society and sentenced him to the maximum sentence for burglary.
Hannah argues that because the crime of burglary occurred before the murder, the trial court abused its discretion in considering the later crimes of murder and robbery in imposing sentence for the initial burglary. The State counters that the trial judge is not required to consider the prior burglary in a vacuum. The State’s argument is persuasive.
Hannah cites. State v. Westmoreland, 314 N.C. 442, 449, 334 S.E.2d 223 (1985). Westmoreland held in part: “[A] conviction of an offense covered by the Fair Sentencing Act may not be aggravated by contemporaneous convictions of offenses joined with such offense.” Hannah urges us to adopt the Westmoreland rationale.
Westmoreland was controlled by a North Carolina statutory sentencing scheme which is different from K.S.A. 21-4601 et seq. The North Carolina Fair Sentencing Act provides for a presumptive sentence of a definite term of years for each class of crimes. If a North Carolina trial court imposes a sentence that exceeds the presumptive sentence, it must make findings as to each enumerated aggravating and mitigating factor proved. A North Carolina trial court must also find that the aggravating factors outweigh the mitigating factors. N.C. Gen. Stat. § 15A-1340.4 (1983). The North Carolina sentencing scheme is different from both the Kansas indeterminate sentencing scheme and K.S.A. 21-4606 sentencing guidelines. The Westmoreland rationale does not control the case at bar.
K.S.A. 21-4601 provides for a liberal construction of sentencing statutes. Persons convicted of crimes shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies. Dangerous offenders shall be correctively treated in custody for long terms as needed.
K.S.A. 21-4606(1) refers to the “nature and circumstances of the crime and the history, character and condition of the defendant.” (Emphasis added.) K.S.A. 21-4606(2) refers to “prior criminal activity” and defendant’s “criminal conduct.” The foregoing statutory provisions do not explicitly limit the trial court’s consideration, when imposing sentence, to events occurring only before the individual crime for which defendant is being sentenced occurred. Under a liberal construction rule, the trial court may consider all relevant facts occurring before sentencing.
The charges to which Hannah pled guilty were all set out in one complain t/information. The plea agreement considered the initial and later crimes together. In both instances, Hannah committed the crimes to obtain money to purchase drugs.
The trial court noted that the initial burglary occurred before and was separate from the murder and that the extent of harm caused by the burglary was not severe. The trial court appropriately considered the later murder in determining that Hannah is a danger to society.
The sentence of three to ten years on the burglary is within the statutory limits. Hannah has shown no abuse of discretion.
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Per Curiam:
This is an original proceeding in attorney discipline filed by the disciplinary administrator against Gerard M. McGhee of Kansas City, an attorney admitted to the practice of law in Kansas.
The complaint filed against respondent is in two counts, alleging violations of MRPC 1.1 (1990 Kan. Ct. R. Annot. 216), MRPC 1.3 (1990 Kan. Ct. R. Annot. 219), MRPC 1.4(a) (1990 Kan. Ct. R. Annot. 220), MPRC 8.4(c) (1990 Kan. Ct. R. Annot. 290) and Supreme Court Rule 207 (1990 Kan. Ct. R. Annot. 141). The first count alleges the respondent failed to provide competent legal representation to complainant; failed to act with reasonable diligence and promptness; failed to keep complainant reasonably informed as to the status of the legal matter for which respondent was employed; failed to promptly comply with complainant’s request for information; and engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation. The second count alleges respondent failed to cooperate with the disciplinary administrator’s office and its investigator.
Though afforded proper notice, respondent did not appear at the hearing on the complaint. The hearing panel of the Board for Discipline of Attorneys found as to count one that respondent was employed in early November 1987 by Paula B. Martin to probate the estate of Edith Gimber. Respondent told complainant it would take him six to twelve months to complete the probate. Over the next five or six months, respondent advised complainant that the case was almost completed, and in April or May 1988 he told her she could disburse certain bonds to the heirs. Complainant made the disbursal as directed.
In August 1988 complainant directed respondent to forward the decedent’s insurance policy to the insurance company pursuant to its request. In May 1989 complainant received a letter from the insurance company again requesting the policy. Complainant obtained the policy from respondent and personally sent it to the insurance company.
Complainant then made inquiry of the Wyandotte County District Court and learned that the probate proceeding had not been commenced and that no Kansas inheritance tax return had been filed, resulting in substantial penalty and interest.
The panel concluded the respondent’s conduct in handling the estate violated MRPC 1.1, 1.3, 1.4(a) and 8.4(c).
As to count two, the hearing panel found respondent failed to respond to the complaint although three requests for a response were made by the disciplinary administrator’s office. The panel found respondent had failed to cooperate with the disciplinary administrator’s office in violation of Supreme Court Rule 207.
Respondent filed no exceptions and did not appear at oral argument.
The court, having considered the record herein, the report and the recommendation of the hearing panel, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel.
It Is Therefore Ordered that Gerard M. McGhee be and he is hereby disciplined by indefinite suspension from the practice of law in the State of Kansas in accordance with Supreme Court Rule 203(a)(2) (1990 Kan. Ct. R. Annot. 137) for his violations of the Model Rules of Professional Conduct and the Rules of the Supreme Court.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1990 Kan. Ct. R. Annot. 155), that he shall pay the costs of this proceeding, and that this order shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Six, J.:
This is an administrative law case. The focal issue concerns resident/nonresident status for fee purposes at state universities (Regent’s Institutions).
Subissues of importance are: (1) judicial review of residence committee decisions; (2) the propriety of the residence committee’s decision; (3) the residence committee’s interpretation of the applicable law; and (4) the validity of the residency regulations adopted by the Kansas Board of Regents as guidelines for residency determination.
The case comes to us under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. (KJRA).
We have K.S.A. 20-3018(c) jurisdiction as a result of our order of transfer from the Court of Appeals.
Martin J. Peck, a student at Kansas State University (K-State), sought judicial review of the decision of the K-State Residence Committee (Residence Committee). The Residence Committee found that he did not qualify as a resident for fee purposes for the fall semester of 1989.
Peck contended that K.A.R. 88-3-2, the residency regulation adopted by the Kansas Board of Regents is invalid, unreasonable, and unconstitutional. The district court did not agree.
The district court ruled, however, that K-State’s action in denying resident status to Peck was not supported by substantial evidence. The finding of nonresidence was set aside and resident status granted. K-State was ordered to reimburse Peck for the difference between resident and nonresident tuition for the fall semester 1989 and the spring semester 1990. K-State appeals and Peck cross-appeals.
We reverse in part and affirm in part. Our reversal reinstates the decision of the residence committee denying Peck resident status for fee purposes. We affirm the district court on all issues raised by the cross-appeal.
Facts
Martin J. Peck lived in California from his birth in 1968 until 1978. In 1978, he moved to Texas with his parents. Peck attended the University of Texas from September 1986 to December 1987 as a full-time student. He was classified as a Texas resident for fee purposes.
In January 1988, Peck moved to Kansas and began attending K-State.
On August 22, 1989, Peck applied for resident status for fee purposes for the fall semester of 1989. In his application, Peck listed a current address in Manhattan, Kansas, and a permanent address in Cambridge, Kansas. The Cambridge, Kansas, address is that of Peck’s maternal grandfather’s ranch (Ferguson Ranch).
Peck stated in his residency application that his father lived in San Antonio, Texas, and that his mother lived in San Francisco, California.
Peck also reported in his application that he came to Kansas because: (1) his “significant other” was attending K-State; (2) K-State would accept his credits from the University of Texas, but not his grade point average; and (3) he would be closer to his “family’s ranch” in Cambridge, Kansas.
Peck indicated that he had spent the summer of 1988 in Park-ville, Missouri. The only employment listed on his application was for the summer of 1988 at the Presbyterian Center in Park-ville, Missouri.
In answer to question 13 on the application (“What are the sources of your financial support?“), Peck stated that he received financial support: 10.7% from employment in Parkville, Missouri; 17.3% from funds saved prior to his move to Kansas; 42.5% from his grandfather in Wellington, Kansas; and 29.5% from his mother in San Francisco, California.
In response to question 22 on the application (‘Other than being physically present in Kansas, what relationship or obli gations connect you to the state, making it your permanent home? How long do you plan to remain in Kansas?”), Peck stated that he will eventually inherit a part of the Ferguson Ranch. Because of the anticipated inheritance, he will always have a residence at Cambridge and will always need to live somewhere fairly close to Cambridge. In reply to another inquiry in question 22 (“What are your vocational plans after your academic work here is completed?”), Peck stated, “I plan to attend law school and then practice as an attorney, probably in Kansas City.”
Peck also reported in his application that he: (1) registered to vote and voted in Kansas; (2) registered an automobile in Kansas and paid personal property tax in Kansas; (3) insured his automobile in Kansas; (4) acquired a Kansas driver’s license; (5) had a checking and savings account in Kansas; and (6) registered with selective service in Kansas.
The K-State registrar notified Peck that Peck’s classification would remain nonresident for fee purposes.
Peck appealed to the Residence Committee. He submitted additional evidence including a personal affidavit. He also submitted proof of: (1) his automobile registration and insurance; (2) the fact he may receive mail at the Cambridge address; (3) his voter registration in Cambridge; (4) his selective service registration; and (5) his bank accounts in Wellington, Kansas.
In addition, he submitted an affidavit from his grandfather, William M. Ferguson. The affidavit stated that Peck is a permanent resident of and domiciled at the Ferguson Ranch; that Peck intends to remain a resident of Kansas for the “foreseeable future”; and that, since Peck enrolled at K-State, the majority of Peck’s funds have been furnished by Ferguson and Ferguson’s wife and by other funds paid to Peck while a resident of Kansas.
Peck’s affidavit filed with his appeal from the Registrar’s ruling stated, “I am also employed by Rising House Bicycles of Cambridge, Kansas.” Peck neither listed this employment on his application form submitted August 22, 1989, nor did he report any income from such employment. No further information was provided regarding this alleged employment. (Rising House Enterprises is listed along with Ferguson Ranch, William M. Ferguson III, and Peck as addressees who may receive mail at the Ferguson Ranch address in Cámbridge.)
Peck also submitted the following statement:
“I would like the following on record, in case it may serve as further evidence of my intention to remain in Kansas: I have applied to the University of Kansas School of Law and will apply at the Washburn University School of Law for entrance in the fall of 1990.”
Peck appeared before the Residence Committee. By a letter dated the same day as his hearing, Peck was informed that he would continue to be classified as a nonresident for fee purposes. The Residence Committee determined that Peck had not demonstrated his entitlement to resident classification under the regulations of the Kansas Board of Regents. No other reasons were given for the decision.
Peck filed a petition for judicial review of the decision of the Residence Committee under K.S.A. 77-601 et seq. He alleged that: (1) the Residence Committee’s decision is not supported by substantial evidence; (2) the Residence Committee erroneously interpreted or applied the law; (3) the decision of the Residence Committee was arbitrary, capricious, or unreasonable; and (4) the rules and regulations adopted by the Board of Regents as “Guidelines for the Determination of Residency for Fee Purposes,” K.A.R. 88-3-1 et seq., are unconstitutional on their face and, as applied, are inconsistent with law, contrary to law, and are inappropriate, unreasonable, and invalid.
Because Peck challenged the regulations adopted by the Board of Regents, the district court granted the Board’s motion to intervene.
After finding each of Peck’s other challenges meritless, the district court determined that the Residence Committee’s action in denying Peck resident status is not supported by substantial evidence when reviewed in light of the record as a whole.
Scope of Review
Judicial review of the residence committee’s decision is governed by the KJRA.
The scope of review provisions of K.S.A. 77-621 are a codification of the common law of Kansas. Zinke & Trumbo, Ltd. v. Kansas Corporation Comm'n, 242 Kan. 470, 474-75, 749 P.2d 21 (1988). See Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 68 (1985).
The district court: (1) is restricted to considering the grounds for relief set forth in K.S.A. 77-621(c); (2) must presume the agency’s findings valid; (3) may not set aside an agency order merely because the court would have reached a different conclusion if it had been the trier of fact; (4) may set aside the agency’s finding when the finding is not supported by substantial competent evidence. (When the agency’s determination “is so wide of the mark as to be outside the realm of fair debate“). Zinke, 242 Kan. at 474.
K.S.A. 77-621(c)(8) provides that agency action may be set aside by the court if it “is otherwise unreasonable, arbitrary or capricious.” We have defined “unreasonable” action as action taken without regard to the benefit or harm to all interested parties. An agency’s action is arbitrary and capricious if it is unreasonable or without foundation in fact. Zinke, 242 Kan. at 474-75.
On appeal, we will exercise the same review of the agency’s action as does the district court. Board of Johnson County Comm'rs v. J.A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 (1986).
Review of The Residence Committee’s Action
K-State argues that the district court improperly substituted its judgment for that of the Residence Committee sitting as an administrative board. K-State asserts that Peck did not establish his intent to make Kansas a permanent home and that the court’s analysis erroneously shifted Peck’s burden to the Residence Committee to establish nonresidency.
Peck contends that he produced uncontroverted evidence on the only two requirements of residency: his physical presence in Kansas and his intent to make Kansas his permanent residence. He asserts that, once his evidence established a prima facie case, the burden then shifted to the Residence Committee to come forward with evidence to refute Peck’s evidence.
K.S.A. 76-729(a) provides:
“Persons enrolling at the state educational institutions under the control and supervision of the state board of regents who, if such persons are adults, have not been or, if such persons are minors, whose parents have not been residents of the state of Kansas for at least 12 months prior to enrollment for any term or session in a state educational institution are nonresidents for fee purposes.”
K.S.A. 76-729(c)(4) defines “domiciliary resident” as “a person who has present and fixed residence in Kansas where the person intends to remain for an indefinite period and to which the person intends to return following absence.”
K.S.A. 76-730(a) authorizes and requires the Board of Regents to “adopt rules and regulations prescribing criteria or guidelines for determination of residence of persons enrolling at the state educational institutions, so long as such criteria or guidelines are not in conflict with the provisions of this act.”
Pursuant to the K.S.A. 76-730(a) mandate, the Board of Regents adopted K.A.R. 88-3-1 et seq., Guidelines for the Determination of Residency for Fee Purposes.
Peck further argues that the Residence Committee inappropriately applied K.A.R. 88-3-2. K.A.R. 88-3-2, which defines “residence” for fee purposes and provides a framework for determining such residency, states in part:
“[R]esidence means a person’s place of habitation, to which, whenever the person is absent, the person has the intention of returning. A person shall not be considered a resident of Kansas unless that person is in continuous physical residence and intends to make Kansas a permanent home, not only while in attendance at an educational institution, but indefinitely thereafter as well.”
K.S.A. 76-729(c)(4) and K.A.R. 88-3-2(a) require a physical residence in Kansas coupled with the intent to make Kansas a permanent home following the completion of education. The first element, a physical residence, is easily established by the student and easily determined by the Residence Committee. Establishing and determining the second element of intent is more problematic. K.A.R. 88-3-2(b), (c), and (d) have been designed to aid the student and the committee in establishing and determining the student’s intent.
K.A.R. 88-3-2(b) lists eight primary factors that, while not conclusive, will be given probative value in support of a claim for resident status. These factors are:
“(1) continuous presence in Kansas during periods when not enrolled as a student;
“(2) employment in Kansas;
“(3) payment of Kansas state income taxes;
“(4) reliance on Kansas sources for financial support;
“(5) commitments to an education program which indicates an intent to remain permanently in Kansas;
“(6) acceptance of an offer of permanent employment in Kansas;
“(7) admission to a licensed practicing profession in Kansas; or
“(8) ownership of a home in Kansas.”
Subsection (b) begins: “The factors . . . include, but are not limited to, the following.” The student is not precluded from presenting, and the residence committee is not precluded from considering additional probative information. No factor will be considered unless it has existed for at least one year. K.A.R. 88-3-2(b).
K.A.R. 88-3-2(c) lists nine secondary factors that, standing alone, ordinarily will not be sufficient evidence to establish Kansas resident status. These secondary factors are:
“(1) voting or registration for voting in Kansas;
“(2) employment in any position normally filled by a student;
“(3) lease of living quarters in Kansas;
“(4) a statement of intention to acquire residence in Kansas;
“(5) residence in Kansas of the student’s spouse;
“(6) vehicle registration in Kansas;
“(7) acquisition of a Kansas driver’s license;
“(8) payment of Kansas personal property taxes; or
“(9) continuous enrollment in a post secondary educational institution in Kansas.”
These secondary factors are not probative for an intent determination because many are capable of being fulfilled within a few days of arriving in Kansas. The secondary factors may be characteristic of both bona fide resident and nonresident students.
K.A.R. 88-3-2(d) states that “ties with another state” may be sufficient evidence that residence in the other state has been retained. These ties to the other state include voting, payment of personal property taxes, registering a vehicle, or securing a driver’s license.
We will consider each of the K.A.R. 88-3-2(b) primary factors and Peck’s evidence presented to the Residence Committee.
Factor (1): Continuous presence in Kansas during periods when not enrolled as a student.
The summer of 1988 is the only period that Peck did not attend K-State after he moved to Kansas. During that period, Peck was out of Kansas, residing and working in Parkville, Missouri.
Factor (2): Employment in Kansas.
Peck stated in his affidavit that he was employed by Rising House Bicycles of Cambridge, Kansas. He did not list this information in his application for resident classification submitted six weeks earlier and did not list any income from this alleged employment. He provided no dates of employment. There is nothing in the record to show whether the employment existed for at least one year prior to enrollment or reenrollment. Peck did not furnish information regarding the nature of the employment to determine whether it is employment which would normally be filled by a student. He did not list this employment as a source of any financial support.
Factor (3): Payment of Kansas state income taxes.
Peck indicated that he did not file a Kansas state income tax return.
Factor (4): Reliance on Kansas sources for financial support.
Peck stated in his application that he received 42.5% of his support from his grandfather, a Kansas resident.
Factor (5): Commitment to an educational program which indicates an intent to remain permanently in Kansas.
In November 1989, Peck added a statement to the record indicating that he had applied to the University of Kansas School of Law and would apply to Washburn University School of Law for admission in the fall of 1990. The Residence Committee may have reasoned that this evidence does not indicate an intent to remain permanently in Kansas. At best, it indicates a possibility of attending school in Kansas for three more years. He did not state that he had not applied or did not intend to apply to schools in other states. He also stated he planned to practice law in Kansas City. He did not specifically state Kansas City, Kansas.
Factors (6), (7), and (8): Acceptance of an offer of permanent employment in Kansas; admission to a licensed practicing profession in Kansas; and ownership of a home in Kansas.
Peck provided no evidence of such acceptance or admission, nor did he provide evidence of ownership of a home in Kansas. He did state that he expected to inherit a portion of his grandfather’s ranch.
Peck did provide information that he had abandoned his residence in Texas. In his affidavit, he stated that his former bedroom at his father’s residence in Texas has been converted bo his half-sister’s bedroom and that whenever he visited his father in Texas he slept on the couch. He stated he had no residence to return to in Texas. This information may have been characterized by the Residence Committee as not necessarily probative evidence of his intent to permanently remain in Kansas. After finishing his education, he is not precluded from moving to another state or from returning to Texas and establishing his own residence.
Concerning the secondary factors contained in K.A.R. 88-3-2(c), all of which have a transient characteristic, Peck reported that he had: (1) voted and registered to vote in Kansas; (2) registered his automobile in Kansas; (3) acquired a Kansas driver’s license; and (4) paid last year’s personal property tax in Kansas. A student’s adherence to these factors is not sufficient to establish residency. The existence of these secondary factors in another state is to be regarded as evidence of retention of residence outside of Kansas. The absence of evidence of retention of residency outside of Kansas is not tantamount to establishing residency in Kansas. Individuals may sever visible ties with another state and fail to meet the criteria for residency for fee purposes in Kansas.
An analysis of the facts show that, among all the primary factors listed in K.A.R. 88-3-2(b) as probative evidence of resident status, Peck presented one piece of supportive evidence: that his grandfather in Wellington, Kansas, had provided somewhat less than half of his financial support. The remainder of Peck’s evidence was secondary and, standing alone, not probative.
We find that the Residence Committee’s decision was supported by substantial evidence. Those factors supplied by Peck, which are relevant to the Regents’ guidelines, support the Residence Committee’s conclusion that he did not qualify as a resident of Kansas for fee purposes.
Peck’s evidence is not probative, standing alone, of an intent to remain in Kansas permanently. Peck opened his checking account in Wellington, Kansas, in 1986 while he was employed at the Ferguson Ranch immediately after graduating from high school. This act occurred when he was a nonresident (before he alleged he formed his alleged intent to become a permanent Kansas resident).
The district court reasoned that the Residence Committee may not draw a negative inference from Peck’s failure to present evidence on a factor. This reasoning impermissibly shifts the burden to the Residence Committee to prove nonresident status. Under K.S.A. 77-621(a)(l), Peck bears the burden to show that the agency’s action is invalid. This he has failed to do.
The probative evidence of Peck’s intent to remain permanently in Kansas was the fact that a Kansas resident, his grandfather, was providing 42.5% of his financial support and that Peck used his grandfather’s ranch in Cambridge as a permanent address.
This probative evidence is offset by evidence which supports the conclusion that Peck came to Kansas solely to attend K-State. Peck stated that he came to Kansas because his “significant other” attended K-State and because K-State would accept his credits and not his grade point average. He did not reside in Kansas during the summer of 1988, the only time he was not attending K-State after his move to Kansas.
Our responsibility is not to reweigh the evidence. The Residence Committee’s finding is supported by substantial competent evidence. The Residence Committee’s conclusion is not so wide of the mark as to be beyond the realm of fair debate.
Peck has not demonstrated that the Residence Committee’s action is unreasonable, arbitrary, or capricious. He has not shown that the Residence Committee took the action of denying resident status without regard to the benefit or harm to all interested parties—Peck, K-State, and the Board of Regents.
Peck asserts that the Residence Committee erroneously applied K.A.R. 88-3-2. He challenges the weight the committee gave to the secondary factors in K.A.R. 88-3-2(c) the nonprobative secondary list. Peck refers particularly to his declaration of intent to be a resident. These factors are not probative of the second element required to establish resident status, intent to remain in Kansas permanently following completion of education. See In re Residency Application of Bybee, 236 Kan. 443, 691 P.2d 37 (1984).
Peck has not demonstrated that the Residence Committee erroneously applied the law or the regulations.
The Validity of the Board of Regents’ Regulations
Peck argues that K.A.R. 88-3-2(a), which defines “residence” for fee purposes, is invalid and contrary to law because it adds requirements to the K.S.A. 76-729(c)(4) definition of “domiciliary resident.”
Rules and regulations of an administrative agency, to be valid, must be within the statutory authority conferred upon the agency. If they go beyond such statutory authority or are otherwise inconsistent with the law, the rules and regulations are void. Halford v. City of Topeka, 234 Kan. 934, 939-40, 677 P.2d 975 (1984). Administrative regulations are presumed valid, and one who attacks them has the burden of showing their invalidity. Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 383, 654 P.2d 464 (1982). “An administrative regulation must be construed in harmony with a statute relating to the same subject matter to the end that both may be given effect if possible.” Kansas Comm'n On Civil Rights v. City of Topeka Street Dept., 212 Kan. 398, Syl. ¶ 5, 511 P.2d 253, cert. denied 414 U.S. 1066 (1973).
K.S.A. 76-730 requires the Hoard of Regents to adopt rules and regulations establishing guidelines for determination of residence “so long as such criteria or guidelines are not in conflict with the provisions of this act.”
K.S.A. 76-729(c)(4) defines “domiciliary resident” as “a person who has present and fixed residence in Kansas where the person intends to remain for an indefinite period and to which the person intends to return following absence.”
K.A.R. 88-3-2(a) defines “residence” for fee purposes as
“a person’s place of habitation, to which, whenever the person is absent, the person has the intention of returning. A person shall not be considered a resident of Kansas unless that person is in continuous physical residence and intends to make Kansas a permanent home, not only while in attendance at an educational institution, but indefinitely thereafter as well.”
Peck asserts that K.A.R. 88-3-2(a) conflicts with K.S.A. 76-729(c)(4) because it adds the requirement of “continuous physical presence” and intent to make Kansas a “permanent home, not only while in attendance at an educational institution, but indefinitely thereafter as well.” K.A.R. 88-3-2(a). Peck’s assertions are not persuasive.
The definition contained in K.A.R. 88-3-2(a) does not add conflicting or additional requirements. It simply seeks to clarify the definition in K.S.A. 76-729(c)(4 ).
The definition of “domiciliary residence” in K.S.A. 76-729(c)(4) refers to an “indefinite period.” “Permanent home” is a clarification of residence for an indefinite period. The phrase “not only while in attendance at an educational institution, but indefinitely thereafter as well,” is designed to differentiate nonresident students who reside in Kansas solely to attend school from bona fide residents who attend school in Kansas and intend to be residents of Kansas.
Peck challenges the last sentence of K.A.R. 88-3-2(b). This sentence states: “No factor shall be considered in support of a claim for resident status unless the factor has existed for at least one year prior to enrollment.” Peck contends this provision is an impermissible attempt to amend the Kansas rules of evidence and is, therefore, contrary to law. Peck’s contention lacks merit.
K.A.R. 88-3-2 does not limit the evidence that an applicant for resident status may present. In the case at bar, Peck was allowed to supplement his evidence until the hearing occurred. K.A.R. 88-3-2 informs the applicant of the relevant weight evidence will be given in advance of applying for resident status. K.A.R. 88-3-2 does not attempt to amend the rules of evidence.
The “at least one year” challenged provision of K.A.R. 88-3-2(b) is not contrary to law. The element of a student’s intent is difficult to ascertain. Requiring a student to demonstrate that probative factors have been in existence for at least one year enables the Residence Committee to determine that the K.S.A. 76-729 required intent has been in existence for at least 12 months.
Linking the broad authority K.S.A. 76-730 confers on the Hoard of Regents with the definition of “domiciliary resident” appearing in K.S.A. 76-729(c)(4), we hold K.A.R. 88-3-2 is not invalid as being contrary to law.
Regents’ Regulations—Inappropriate and Unreasonable?
Peck argues that K.A.R. 88-3-2 is inappropriate, unreasonable, vague, ambiguous, and so subject to misconstruction as to be inadequate for its intended use. He asserts that the regulation’s intended purpose is to advise students how residence may be established and to aid the decision maker in determining residence. He contends the regulation does not explain that proof of residence consists of only two factors, “physical presence” and “intent to remain indefinitely.” Peck asserts the regulation does not explain that the factors have probative value only as they relate to the subjective intent to remain. He complains that K.A.R. 88-3-2 sets forth exclusive factors which are essential to the establishment of residence and precludes other factors worthy of consideration. Peck’s arguments are conclusions and are not convincing.
The Roard of Regents argues that the regulations set forth criteria and guidelines to be used by educational institutions in order that the institutions may be “virtually certain” that students have the requisite intent to remain in Kansas indefinitely before granting them resident status for fee purposes. These criteria are necessary when the issue is as nebulous as a student’s subjective intent to be a resident of Kansas.
To be valid, administrative regulations must be appropriate and reasonable. Halford, 234 Kan. at 940. The test of whether an administrative regulation is void for vagueness is whether it delineates its reach in words of common understanding. Smaldone v. United States, 458 F. Supp. 1000, 1003 (D. Kan. 1978).
The United States Supreme Court has said that states can “establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the state, but who have come there solely for educational purposes, cannot take advantage of the in-state rates.” (Emphasis added.) Vlandis v. Kline, 412 U.S. 441, 453-54, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973).
Any determination of domicile seeks to use objective criteria to establish a subjective concept, i.e., intent to remain in the state indefinitely. The concept is not subject to a formula, but depends upon the facts of each case. The relative weight to be given each objective factor is not capable of quantification. The question to be answered in each case is whether the student came to the state solely to attend school or whether the student intends to make this state his or her home. Hooban v. Boling, 503 F.2d 648, 652 (6th Cir. 1974), cert. denied 421 U.S. 920 (1974).
To permit a student to announce the intention of becoming a permanent resident of the state on the day of the student’s arrival, to accept a biased and self-serving statement as the truth, and to permit the student to reinforce the statement by registering a car and securing a driver’s license in this state would simply place a premium on deception. Arizona Board of Regents v. Harper, 108 Ariz. 223, 227-28, 495 P.2d 453 (1972).
Regulations in Hawaii for determining resident status of students, which are similar to those in the case at bar, were approved by the United States District Court for the District of Hawaii. The court stated:
“We also recognize that states have an especially difficult administrative problem in determining the residency of college students coming from out of state, for many (and sometimes all) of the local contacts they establish are fully as consistent with an intent to leave upon conclusion of the course of study as with an intent to remain indefinitely.” Hasse v. Board of Regents of University of Hawaii, 363 F. Supp. 677, 679 (D. Hawaii 1973).
K.A.R. 88-3-2 first defines residence in subsection (a) as continuous physical presence and intent to make Kansas a permanent home, not only while attending the educational institution, but indefinitely thereafter as well. Subsection (b) then lists eight factors (the eight are not conclusive or limiting) that are intended to be objective criteria probative of intent. The regulation does not state that these factors go to the issue of intent; however, this does not make them inappropriate, unreasonable, or vague. Subsection (c) lists nine factors which will not be considered probative evidence of residence standing alone. These nine factors are easily accomplished by any nonresident student. The Board of Regents is justified in considering the nine secondary factors, standing alone, as not probative evidence of the issue of intent. K.A.R. 88-3-2 states the type of factors that will be considered to be probative evidence of resident status in words of common understanding. It is not necessary to explain that these factors relate to intent.
K.A.R. 88-3-2 is appropriate and reasonable and is not impermissibly vague. Peck has not sustained his burden to show that the regulation is invalid.
Regents’ Regulations—The Constitutional Question
As a preliminary matter, the Board of Regents asserts that Peck’s constitutional arguments are not properly before this court on appeal. In support of its assertion, the Board of Regents argues that the issue was not sufficiently raised in the district court.
Although Peck’s constitutional argument in the district court was brief, nevertheless, Peck did raise the issue of violation of equal protection, due process, and the right to travel. He specifically stated he did not abandon his claim of unconstitutionality. The Board of Regents thoroughly briefed the constitutional issues for the district court. The district court ruled that the challenged regulation is not unconstitutional on its face or as applied.
The constitutional questions are properly before us. (We note that Peck has abandoned his claim that K.A.R. 88-3-2 violates the right to travel.)
Equal Protection
Peck argues that, to the extent K.A.R. 88-3-2 is construed and applied to mean that one can be a resident of the state for every purpose except for attaining resident status at a state educational institution, the regulation denies equal protection under the Fourteenth Amendment to the U.S. Constitution. Peck cites no authority.
The Court of Appeals for the Seventh Circuit has addressed this contention:
“Finally, plaintiffs assert that the state may not classify as non-residents persons who are residents of the state for all other purposes. With apologies to Gertrude Stein, a resident is not a resident is not a resident. Resident status necessarily varies with the state program at issue. A person may well be a resident for taxation or voting determinations and yet fail the essential question in the context of the instant case, i.e., whether the person came to the state ‘solely for educational purposes.’ ” Lister v. Hoover, 655 F.2d 123, 128 (7th Cir. 1981).
The test in an equal protection challenge to rules and regulations used to determine resident status for fee purposes is whether the rules and regulations bear a rational relationship to a legitimate state purpose or objective. Lister, 655 F.2d at 127; Hooban v. Boling, 503 F.2d at 650; Hayes v. Board of Regents of Kentucky State University, 495 F.2d 1326, 1328 (6th Cir. 1974).
“A state has a ‘legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.’ ” Hooban, 503 F.2d at 651 (quoting Vlandis v. Kline, 412 U.S. at 453).
. K.A.R. 88-3-2 is rationally related to a legitimate state interest and does not violate the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.
Due Process
Peck argues that he was denied due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution because the Residence Committee’s interpretation of K.A.R. 88-3-2 prevented the committee from considering his evidence. Peck labels this argument as denial of substantive due process. He cites Unruh v. U.S.D. No. 300, 245 Kan. 35, 41-43, 775 P.2d 171 (1989), which discusses procedural due process. Additionally, Peck argues that K.A.R. 88-3-2 is unconstitutional on its face because it provides: “No factor shall be considered in support of a claim unless the factor has existed for at least one year prior to enrollment or reenrollment.” K.A.R. 88-3-2(b).
The Residence Committee asserts that it considered all of Peck’s evidence but failed to find it to be probative evidence of his intent to remain indefinitely in Kansas.
On appeal a rebuttable presumption of validity attaches to a challenged administrative regulation. The person challenging the regulation bears the burden to show invalidity. Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 383.
Basic elements of procedural due process of law are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370, 736 P.2d 923 (1987). Peck asserts he was not heard in a meaningful manner because some of his evidence was not considered.
There is no basis in the record for Peck’s assertion. He was not prevented from presenting evidence. Peck identifies no evidence in particular which was disregarded. K.A.R. 88-3-2 does not limit what the Residence Committee may consider. The regulation informs the student applicant what the committee considers to be probative evidence. Peck has not demonstrated that the regulation is unconstitutional on its face or as applied.
Similar rules and regulations in other states have been challenged by the arguments advanced by Peck in the case at bar. Almost universally, the rules and regulations have been held valid. See Annot., 56 A.L.R.3d 641; and Annot., 37 L. Ed. 2d 1056.
We reverse the district court in part. The Residence Committee’s decision is based on substantial competent evidence.
We affirm the district court in all other respects: (1) The decision of the Residence Committee was not unreasonable, arbitrary, or capricious; (2) the Residence Committee did not erroneously interpret or apply the law; and (3) K.A.R. 88-3-2 is neither beyond the authority conferred by K.S.A. 76-730 nor contrary to law, inappropriate, unreasonable, or unconstitutional.
We call the Board of Regents’ attention to K.A.R. 88-2-4. Reference is made to K.S.A. 60-2101 as the appropriate statutory provision for initiating appeals from residence committee decisions. The Board may wish to update its regulation to comply with the passage of the KJRA.
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The opinion of the court was delivered by
McFarland, J.:
This action arises from an administrative proceeding in which the defendant State Department of Social and Rehabilitation Services (SRS) determined it had overpaid certain Medicaid/Medikan claims for reimbursement submitted by plaintiff Riverside Hospital, Inc., (Riverside) located in Wichita, and ordered recoupment thereof. Riverside sought judicial review of the agency’s action, which was affirmed in part and reversed in part by the district court. The matter is before us on SRS’s appeal from the judgment of the district court.
The pertinent facts are uncontroverted and may be summarized as follows. The Secretary of SRS administers the Kansas Medicaid/ Medikan program. K.S.A. 39-708c(a) and (s). SRS has a contract with a privately owned firm, EDS-Federal (EDS), under which said firm serves as the fiscal agent for SRS in the Medicaid/ Medikan program involved herein. Riverside is a participating Kansas Medicaid/Medikan provider. EDS audited 347 sample claims submitted by Riverside in 1986 and 1987 and, based upon what it concluded were overpayments therein, projected the error rate to all comparable claims in the period. It concluded Riverside had been overpaid $74,373.67. SRS notified Riverside of this determination and advised Riverside that it could submit rebuttal information within 15 days of the date of the notification and that it could then, if still dissatisfied with the findings, request an administrative review.
On March 4, 1988, Riverside submitted the rebuttal information. SRS reviewed the Riverside submission and accepted portions thereof. The percentage error rate was reduced from 33.9 percent to 33.42 percent, which altered the overpayment to $73,320.60. At the administrative hearing requested by Riverside, additional modifications were made which further reduced the error rate to 32.75 percent, for a total overpayment of $71,850.67. Riverside then requested a fair hearing.
On November 3, 1988, the Chief Hearing Officer affirmed the agency’s decision and on March 31, 1989, the State Appeals Committee affirmed the fair hearing decision. On May 2, 1989, Riverside filed a petition for judicial review pursuant to K.S.A. 77-601 et seq. in the district court of Shawnee County.
The principal issues before the district court were:
1. Whether an EDS bulletin dated December 1985 was sufficient notice to Riverside that a major policy change had occurred requiring Riverside to have in its files, prior to dispensing services in non-emergency situations to Medicaid/Medikan patients, a written form from such a patient’s primary care network (PCN) physician. Many of the errors found by the audit arose from the absence of these forms; and
2. Whether of the use of a sample to project an error rate on all claims for reimbursement made in the period was proper.
In its decision filed May 8, 1990, the district court affirmed in part and reversed in part. Its conclusions may be summarized as follows:
(1) the Kansas Medicaid/Medikan Bulletin, dated December 1985, was not adequate to put any health care provider on notice of a policy change, and any recoupment of claims based on the bulletin constituted arbitrary and capricious action;
(2) the Medicaid/Medikan handbook amendment, dated May 1987, provides sufficient notice of the change in policy, clearly set forth the requirements, and recoupment of claims for services after May 1987 was correct;
(3) the use of a sample to project an error rate for all claims during the period in question was not supported by any substantial facts or competent evidence, in violation of K.S.A. 77-621(7), and violated Riverside’s fundamental due process rights.
The district court did not attempt to calculate the amount of money improperly recouped by SRS and left this to counsel to determine. The matter is before us on SRS’s appeal from the judgment of the district court.
Before proceeding to the discussion of the issues, it is appropriate to cite the statute controlling the judicial review of the agency action herein.
K.S.A. 77-621 provides:
“(a) Except to the extent that this act or another statute provides otherwise:
(1) The burden of proving the invalidity of agency action is on the party asserting invalidity; and
(2) the validity of agency action shall be determined in accordance with the standards of judicial review provided in this section, as applied to the agency action at the time it was taken.
“(b) The court shall make a separate and distinct ruling on each material issue on which the court’s decision is based.
“(c) The court shall grant relief only if it determines any one or more of the following:
(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
(3) the agency has not decided an issue requiring resolution;
(4) the agency has erroneously interpreted or applied the law;
(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.
“(d) In making the foregoing determinations, due account shall be taken by the court of the rule of harmless error.”
We turn now to the issues presented.
EFFECTIVE DATE OF NOTIFICATION
Prior to December 1985, it was necessary for a Medicaid/Medikan patient’s PCN physician to approve the treatment before the hospital could seek reimbursement. Such approval could be by a notation somewhere in the file by the physician or simply a notation that the physician had verbally approved the treatment.
In December 1985, EDS mailed its Kansas Medicaid/Medikan Bulletin (No. 85-6) to all participating hospitals, including Riverside. The bulletin contained a variety of material of interest to participating hospitals. The pertinent item therein is as follows:
“PCN PROGRAM EXPANDS TO 5 ADDITIONAL COUNTIES
“Effective January 1, 1986 the Kansas Primary Care Network program will be implemented in the following additional counties; Shawnee, Douglas, Leavenworth, Wyandotte and Johnson. Sedgwick and Saline counties will continue in the PCN Program. Ottawa county will be dropped from PCN participation January 1.
“The Primary Care Network (PCN) is a program established by the Kansas Department of Social and Rehabilitation Services (SRS) to allow access to quality medical care in an efficient and economical manner. The PCN physician, as Case Manager, agrees to provide medical care to a selected group of recipients, or when necessary, refer the recipient to another provider. The recipients are restricted to services provided by the physician case manager and may not, except in emergencies, receive any medical services from another provider without a written referral from the physician case manager. ”
SRS’s position, upheld throughout all administrative proceedings herein, is that Riverside was put on notice by this last sentence in the bulletin that as of January 1, 1986, no claim for reimbursement for non-emergency services would be allowed un less a written referral form from the physician case manager had been obtained.
The district court determined that the December 1985 bulletin was inadequate notice to Riverside of this major policy change and that SRS’s recoupment based thereon constitutes arbitrary and capricious action. We agree.
The caption indicates that the subject matter of the relevant part of the bulletin is the expansion of the PCN program to five additional counties. Inasmuch as Sedgwick County was already in the program with Riverside as a participating member, the addition of five new counties would hardly alert Riverside that a major policy change had been made affecting its procedure and claims. Additionally, the date of January 1, 1986, obviously refers to when the five new counties would join the program. The quoted bulletin squib says nothing about what form must be used for referral, what information must be included thereon, or how the referral forms are to be handled.
The district court further held that the Medicaid/Medikan handbook amendment dated May 1987 provided sufficient notice of the policy change and that recoupment for any claim paid thereafter which did not have the required referral form was appropriate. There is no issue before us relative to the propriety of this determination.
Before turning to the next issue, one other point needs some discussion. SRS contends that the district court’s decision relative to the December 1985 bulletin was based in part upon the fact that the bulletin was issued by EDS rather than SRS. We have carefully reviewed the district court’s memorandum decision and we do not believe such was the case. The format and contents of the bulletin were the determinative factors in the district court’s determination that the bulletin provided inadequate notice to Riverside of the policy change. This non-issue arises by virtue of the district court’s referral at one point to the bulletin as having been sent by EDS rather than SRS.
PROJECTION OF ERROR BASED UPON SAMPLE (EXTRAPOLATION)
For its next issue, SRS contends the district court erred in concluding that its determination of recoupment based upon ex trapolation of sample error was improper and violative of Riverside’s fundamental due process rights. Notwithstanding our determination of the preceding issue, this question is before us as it affects the recoupment on claims for services rendered after May 1987 through the end of the audit period which lacked the referral forms as well as recoupment based on other defects throughout the period.
Before discussing this issue, it is appropriate to state SRS’s role in administering the program involved herein.
Medicaid is a federal program established by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq. (1988), whereby the federal government participates financially in the payment of medical services to individuals who meet categorical eligibility requirements. A state, in order to obtain federal financial participation, must comply with federal statutes and regulations regarding the Medicaid program. See 42 U.S.C. § 1396a (1988).
The Secretary of SRS is responsible for the administration of public welfare programs in Kansas, including medical assistance programs, and has specific authority for developing the programs and rules and regulations in support thereof. K.S.A. 39-701 et seq., K.S.A. 39-708c.
SRS, the Kansas Medicaid agency, is required by federal law to have auditing procedures in administering the program.
42 C.F.R. § 456.3 (1990) provides:
“The Medicaid agency must implement a statewide surveillance and utilization control program that—
(a) Safeguards against unnecessary or inappropriate use of Medicaid services and against excess payments;
(b) Assesses the quality of those services;
(c) Provides for the control of the utilization of all services provided under the plan in accordance with Subpart B of this part; and
(d) Provides for the control of the utilization of inpatient services in accordance with Subparts C through I of this part.”
The use of sampling in Medicaid utilization control is authorized by 42 C.F.R. § 456.22 (1990), which provides:
“To promote the most effective and appropriate use of available services and facilities the Medicaid agency must have procedures for the on-going evaluation, on a sample basis, of the need for and the quality and timeliness of Medicaid services.”
SRS determined the overpayment percentage based upon the overpayments made in the sampled cases and projected or extrapolated the error percentage to all claims paid in the audited period. Our determination of the first issue will alter the actual percentage rate, but the basic issue remains as to the propriety of determining recoupment based upon extrapolation of a sample.
This is a matter of first impression before us, but several other jurisdictions have considered and upheld the sampling and extrapolation technique for determining overpayments in comparable circumstances. See Illinois Physicians Union v. Miller, 675 F.2d 151 (7th Cir. 1982); State of Ga., Dept. of Human Resources v. Califano, 446 F. Supp. 404 (N.D. Ga. 1977); Tomlin v. DDS, 154 Mich. App. 675, 398 N.W.2d 490 (1986); Quality v. Social Services, 141 Mich. App. 597, 367 N.W.2d 390 (1985); Del Borrello v. PennDPW, 96 Pa. Commw. 507, 508 A.2d 368 (1986).
The Illinois Physicians Union case contains an excellent discussion on this subject. Particularly noteworthy are the following excerpts:
“As we see it, the issue is not whether overpayments may be statistically presumed, but whether the state, in attempting to preserve its welfare monies, may place the burden on the physician to demonstrate that the Department’s calculations are inaccurate. We begin our analysis by noting that this case does not involve an irrebuttable presumption for the Department does not automatically presume liability. Rather, it conducts an initial audit on a substantial portion of the physician’s records by examining each individual record in the sample. Thus, overpayments are actually proven with respect to the audited cases.
“Section 1396a requires physicians to keep records necessary to fully disclose the extent of services rendered and to make such records available to state and federal governments as a condition of receiving Medicaid payments. 42 U.S.C. § 1396a(a)(27). Payment is made only after the billing forms are submitted evidencing the right to reimbursement. At all times the burden is on the physician to prove entitlement to welfare monies. Thus, the Department’s presumption that the percentage of error in the total number of cases is the same as the percentage of error in the audited cases does not have the procedural effect of shifting any burden.
“However, Salazar [a plaintiff-appellant] does not merely challenge the validity of the Department’s calculations, but contends that any formula for sampling and extrapolation is improper per se. We cannot agree, for the use of statistical samples has been recognized as a valid basis for findings of fact in the context of Medicaid reimbursement. State of Georgia v. Califano, 446 F. Supp. 404 (N.D. Ga. 1977). In State of Georgia, the court specifically considered, and rejected, the same argument Salazar raises here. It noted that the use of statistical samples to audit claims and arrive at a rebuttable initial decision was reasonable where the number of claims rendered a claim-by-claim review a practical impossibility. The court concluded that it was not unreasonable to place the burden on the challenging party to present evidence to rebut the statistical sample.
“We find nothing in this procedure, however, to suggest that extrapolation inherently works to the detriment of the physician. Sampling and extrapolation is no more likely to result in a situation where the physician will be required to return monies when there has been no overpayment than in a situation where the Department will not recoup the full amount overpaid. The audit procedures are not arbitrary, capricious or invidiously discriminatory.
“There is no merit to Salazar’s contention that the Department procedures do not comport with due process. The process due varies with the circumstances and various factors must be considered when evaluating administrative procedures. These factors are: (1) the private interest, affected by the official action; (2) the risk of an erroneous deprivation of that interest; and (3) the governmental interest, including the function involved and the fiscal and administrative burdens that other procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976).
“We agree with Salazar that she had a substantial interest in receiving her full statutorily-allotted compensation for services actually rendered. However, in balancing the interests of the parties, the balance is heavily weighed in favor of the Department. The Department processes an enormous number of claims and must adopt realistic and practical auditing procedures. We agree with the district court’s conclusion that, in view of the enormous logistical problems of Medicaid enforcement, statistical sampling is the only feasible method available. Accord, State of Georgia v. Califano, 446 F. Supp. 404 (N.D. Ga. 1977).” 675 F.2d at 154-57. (Emphasis supplied.)
In its memorandum decision herein, the district court stated the following relative to this issue:
“Finally, petitioner contends that SRS has taken its property without due process in violation of the due process requirements of both the federal and state constitutions. It appears that after the exit conference concerning the audit in question, SRS sent a letter to Riverside detailing its findings. ... In that letter of February 4, 1988, from Ms. Hazlett [an SRS manager] to the hospital administrator, it was stated:
“ ‘The tentative $10,708.38 overpayment outlined on the attachment to this letter represents 33.9 percent of the total $31,634.06 paid for the sample of the cases. Projecting the 33.9 percent error rate over the $219,391.37 paid to Riverside Hospital between April 1, 1986, and September 30, 1987, results in an apparent projected overpayment of $74,373.67.’
“Ultimately, the ‘projected overpayment’ resulting from the administrative review was $71,850.67. This was based upon an overpayment on the sampled cases of $10,358.87 which represents 32.75 percent of the total paid for the sampled cases. This percentage was projected over the entire amount paid to Riverside Hospital between April, 1986, and September 30, 1987. The net result which was obtained after the administrative hearing was that Riverside was required to reimburse SRS for a sum substantially in excess of the amount of claims that were actually found to be not in compliance based upon nothing more than speculation or conjecture. There is no proof to support the assumption that the remaining files lacked the requisite form. The agency reviewed a sample of the petitioner’s files and found . . . what they deemed to be a 33.9 percent error rate. The agency then projected that error rate to all claims paid by the agency to petitioner during the period in question and proceeded to recoup that entire amount. . . . Such a projection is a finding not supported by any substantial facts or competent evidence. The agency did not review any of the non-sample claims and there was no factual basis upon which to find that these claims were not in compliance. While this action is violative of the petitioner’s fundamental due process rights, it is invalid under K.S.A. 77-621(7). For the foregoing reasons, the agency’s action in requiring recoupment from the petitioner based on a projection applied to unaudited claims over the entire period is reversed.”
The district court’s analysis fails to consider why the record of the agency proceeding is devoid of evidence on the propriety of extrapolating from a sample, in general, or the particular extrapolation procedures utilized herein. The reason for this void is that this whole area was never an issue at the agency level. It surfaced for the first time in the district court. Riverside could have challenged the utilization of samples to project recoupment by submitting evidence in rebuttal, but it did not. It presented neither claim nor evidence that the mechanical means employed to determine overpayment was flawed or incorrect in any pertinent respect as it proceeded through the various agency review levels. Under these circumstances, it would be surprising to find evidence in the record on this subject as it was extraneous to what was actually in dispute. The battle at the agency level centered on whether the December bulletin gave notice to Riverside of the policy change.
We must conclude that no issue relative to the propriety of extrapolation from a sample, in general, or the particular extrap olation techniques utilized herein was properly before the district court. Therefore, the district court’s determination that the agency’s actions were not supported by the evidence and violated Riverside’s fundamental due process rights must be reversed. The case must be remanded to the district court to determine the proper amount of recoupment.
The judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
Stephen Dean Reed appeals from the district court’s order denying his motion to withdraw his plea of nolo contendere to first-degree murder (K.S.A. 21-3401) and the subsequent denial of his motion for reconsideration.
As the underlying facts are significant to the determination of the issues, they must be set forth in some detail. On March 17, 1986, Jimmy Ray Vanderlinden was found dead in his residence near Galena, Kansas. The victim had been bound hand and foot and had been shot three times in the back of the head. As a result of the ensuing investigation, multiple felony charges were filed against Susan Diane Vanderlinden (the victim’s wife), Luke Patrick Callihan, and the defendant herein. It was the State’s theory that the wife had hired Callihan to kill her husband. Callihan, in turn, had subcontracted the job to the defendant. Callihan, pursuant to a plea bargain, pled guilty to conspiracy to commit murder (a class C felony) in exchange for the dismissal of the other charges and his testimony against Mrs. Vanderlinden and the defendant herein.
At the Vanderlinden trial, Callihan testified he had been hired by her to kill her husband; he had then hired defendant to kill the victim; he had transported defendant to the area of the victim’s residence on the night in question; and the. following day defendant advised him he had killed the victim by shooting him three times in the back of the head. Dennis Orton, a friend of Callihan, testified that Callihan and the defendant had comé to his home the morning after the murder where Callihan advised him defendant had committed the murder and obtained money from Orton so defendant could leave town. Two weeks later, defendant returned and advised Orton that he had killed the victim. There was evidence certain property was taken from the victim’s person and from his residence at the time of the killing.
Defendant’s attorney sat in on the Vanderlinden jury trial and became familiar with the evidence. Mrs. Vanderlinden was found guilty on all counts: first-degree murder, aggravated kidnapping, aggravated robbery, aggravated burglary, and solicitation to commit first-degree murder. Her convictions were subsequently affirmed in an unpublished opinion of this court (case No. 60,995, filed July 8, 1988).
Defendant’s jury trial was scheduled to commence on March 9, 1987. On that morning, defendant entered his plea of nolo contendere to first-degree murder. As a part of the plea bargain, the State dismissed the balance of the charges, removed the allegation that a firearm had been used, and agreed to arrange for defendant and Callihan to be incarcerated in different institutions. Sentencing was set for April 23, 1987. The sentencing was ultimately rescheduled. On April 30, 1987, defendant filed his motion to withdraw his plea. On May 4, 1987, the matter came before the district court for hearing on the motion and for sentencing. The motion was denied and a life sentence was imposed. Defendant filed this appeal from the denial of his motion to withdraw his plea. Later, the case was remanded to the district court for hearing of defendant’s motions for reconsideration, and for rendition of out-of-state witnesses. Both motions were denied. Issues relative to each of these motions are also before us.
For his first issue, defendant contends the district court abused its discretion in denying his motion to withdraw his nolo contendere plea.
K.S.A. 22-3210 sets forth the procedures for acceptance and withdrawal of guilty or nolo contendere pleas as follows:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.
“(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.
“(c) In traffic infraction and misdemeanor cases the court may allow the defendant to appear and plead by counsel.
“(d) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
We described the procedure for accepting a plea of nolo contendere in State v. Dillon, 242 Kan. 410, 413, 748 P.2d 856 (1988), as follows:
“[B]efore a plea of nolo contendere may be accepted, K.S.A. 1986 Supp. 22-3210 requires the trial court to inform the defendant of the consequences of the plea and the maximum penalty provided by law which may be imposed upon the acceptance of such a plea. The court must also address the defendant personally and determine that the plea is made voluntarily and with understanding of the nature of the charge and the consequences of the plea. The court must also determine that there is a factual basis for the plea. This procedure basically follows Rule 11 of the Federal Rules of Criminal Procedure, compliance with which is held to be mandatory upon the federal courts in McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), and which procedure is fastened upon the state courts as a requirement of due process. Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); White v. State, 222 Kan. 709, 713, 568 P.2d 112 (1977). K.S.A. 22-3210 was enacted following the Boykin decision. See Widener v. State, 210 Kan. 234, 237-38, 499 P.2d 1123 (1972).”
Prior to accepting the plea herein, the district court went through an extensive explanation of the results of the plea and what rights defendant would be foregoing. The district court carefully questioned the defendant in all pertinent regards. Defendant’s responses to all questions were appropriate and consistent with his expressed desire to enter a nolo contendere plea of the Alford variety (North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 [1970]) (to be discussed later). Defendant does not complain that the procedure and format utilized relative to the plea were defective or deficient in any way. Rather, he contends the plea was not voluntary as he was under stress, suffering from a migraine headache, and under the influence of aspirin, muscle relaxants, and valium. He also asserts his below average intelligence may have made him unable to understand the plea. He also alleges he was under pressure to accept the plea.
Part of the district court’s questioning of the defendant was as follows:
“THE COURT: The plea agreement has been specified here on the record. Do you understand fully the terms of that agreement?
“MR. REED: Yes, sir.
“THE COURT: Has anyone made any kind of threats or promises to you to induce you to plead nolo contendere to this?
“MR. REED: No, sir.
“MR. DOSH [Defendant’s attorney]: Steve, by that the Judge means other than what has been stated within the plea negotiations.
“MR. REED: As what we just stated and you wrote down and Mr. Van Petten’s [State’s attorney] talked about?
“THE COURT: Right.
“MR. REED: Nobody’s made any threats.
“THE COURT: I understand that in the terms of the agreement itself there have been some concessions by the State to your benefit, specifically by dismissing certain Counts, by guaranteeing that you will not be in the same institution with another co-defendant, Callihan, and that the State has stipulated that you will be eligible for parole after the expiration of fifteen (15) years. I understand that those promises or agreements have been made with you, but aside from that no one’s done anything to cause you to plead nolo contendere to this?
“MR. REED: Yes, sir, nobody’s did nothing.
“THE COURT: Also, you are giving up a right to an appeal to a higher court by giving up your right to a trial. Do you understand that?
“MR. REED: Yes, sir.”
Defendant’s attorney, Edward Dosh, then engaged in the following colloquy with his client:
“Steve, as you know I have been representing you now I think since the first part of September I believe. Do you believe that you’ve had all the time you need to think about this and fully consider all the ramifications and what you’re doing today is what you want to do at this point in time?
“MR. REED: Can I state the truth?
“MR. DOSH: Yes.
“MR. REED: Actually, the fact is I did not do it. But due to the people that I am dealing with as wanting to testify against me and what I seen in the Vanderlinden case and what she was found guilty on it would be to my best advantage, if there is an advantage to pleading to something that I will state now that I did not do.
“I understand all my rights, everything you’ve said to me. My counsel has been excellent I feel and I have no other choice, sir, than to go this way. It’s best on my family and all concerned.
“MR. DOSH: Okay, Steve. In other words, you understand all the ramifications of what you’re doing here today?
“MR. REED: Yes.
“MR. DOSH: And you understand and we’ve discussed this at great length between you and myself and also your dad to a lesser extent. In many ways what you’re doing here, I guess you might say, considering your alternatives that appears at this point in time to be the best thing for you to do.
“MR. REED: Exactly.
“MR. DOSH: Despite what you’ve told me; is that correct?
“MR. REED: Exactly.
“MR. DOSH: And are you satisfied with my representation in this matter?
“MR. REED: Yes, sir.
“MR. DOSH: Thank you. I don’t think I have anything further, Your Honor.”
A defendant, while maintaining his or her innocence, may, for a variety of reasons, wish to enter a plea of nolo contendere.
In North Carolina v. Alford, 400 U.S. 25, defendant was indicted for first-degree murder, the penalty for which was death unless the jury recommended life imprisonment. Defendant claimed he was innocent. He agreed, however, to plead guilty to second-degree murder because he was otherwise faced with the threat of a death penalty if the case went to trial. There was substantial evidence that indicated Alford’s guilt. He was sentenced to 30 years’ imprisonment. The Fourth Circuit Court of Appeals reversed, holding that the guilty plea was involuntary because of the defendant’s fear motivation. The U.S. Supreme Court vacated the judgment of the Fourth Circuit, holding, inter alia, there was no constitutional error in accepting a guilty plea which contained a protestation of innocence when the defendant intelligently concluded that his interest required entry of a guilty plea and the record before the judge contained strong evidence of actual guilt. The Court said:
“The issue in Hudson v. United States, 272 U.S. 451, [71 L.Ed. 347, 47 S.Ct. 127] (1926), was whether a federal court has power to impose a prison sentence after accepting a plea of nolo contendere, a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. The Court held that a trial court does have such power, and, except for the cases which were rejected in Hudson, the federal courts have uniformly followed this rule, even in cases involving moral turpitude. [Citations omitted.] Implicit in the nolo contendere cases is a recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence.
“These cases would be directly in point if Alford had simply insisted on his plea but refused to admit the crime. The fact that his plea was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us, for the Constitution is concerned with the practical consequences, not the formal categorizations, of state law. [Citations omitted.] Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understanding consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
“Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” 400 U.S. at 35-37. (Emphasis supplied.)
In the case before us, the defendant and his counsel had the opportunity of knowing exactly what the State’s evidence would consist of as the Vanderlinden trial had already been held. The outcome of the Vanderlinden trial was also known.
It is not surprising that the defendant felt he was under stress. It would be an unusual person who would not feel stressful when confronting a trial involving charges of the magnitude herein. There is really nothing in the record, other than defendant’s testimony at the hearing on his motion some two months later, to support his claims that the plea was not free and voluntary. The record supports the finding that the plea was his free and voluntary act.
In Noble v. State, 240 Kan. 162, 727 P.2d 473 (1986), defendant contended his plea was not voluntary because, inter alia, tests indicated his mental competency was in the dull to normal intelligence range. We rejected this argument. 240 Kan. at 167-69. The test for mental competency in a trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960). The transcript of the plea proceedings indicates that defendant met the requirements of the test and was mentally competent to make the plea.
The standard for a judicial abuse of discretion, the allegation lodged herein, is as follows:
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable people could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Leeper v. Schroer, Rice, Bryan & Lykins, P.A., 241 Kan. 241, Syl. ¶ 6, 736 P.2d 882 (1987).
There is simply no showing that the district court herein acted arbitrarily, fancifully, or unreasonably. The plea transcript underscores the court’s ruling that the plea was freely entered and properly accepted and does not support defendant’s contention that the plea was entered in haste, confusion, fear, and resignation. Clearly, it cannot be said that no reasonable person would take the view of the trial court.
Likewise, there is little merit in defendant’s contention that the district court lacked a factual basis for the plea. The factual basis was stated succinctly by the prosecutor prior to the acceptance of the plea. Further, the trial court took judicial notice of the evidence in the Vanderlinden case, which included devastating testimony of defendant’s guilt. When a prosecutor pre sents the evidence to the court, and that evidence shows that all elements of the crime are present, a factual basis for a plea has been reached. See State v. Calderon, 233 Kan. 87, 93, 661 P.2d 781 (1983).
We find no abuse of judicial discretion in this issue.
We turn now to defendant’s second issue. Did the trial court abuse its discretion in denying defendant’s motion for reconsideration?
At the hearing on the motion to reconsider, Dr. Robert Schulman, a clinical psychologist, testified that an aggregate of factors, including defendant’s poor comprehension skills, stress, medication, and lack of sleep rendered defendant unable to make voluntary statements on the day of his plea agreement, March 9, 1987.
Defendant testified that he regretted the plea agreement within hours after making it and did not understand what a nolo contendere plea really was.
The court, on February 12, 1990, overruled defendant’s motion. In arriving at its decision the court stated:
“Counsel, I’m sure you’re aware I’m torn in this case. On the one hand, I firmly believe that everyone is entitled to a fair trial. But on the other hand, the defendant in this case was certainly afforded the opportunity for a fair trial and by reason of his decision to enter his plea on the morning of trial constituted a waiver of that right.
“So as you know and as I said, I’m somewhat tom in this case. But I think the balancing consideration is whether or not the defendant can show me anything that would warrant a withdrawal of this plea.
“Now as I understand it from examining volumes of statements and volumes of information submitted to me on both sides, the defendant apparently has two basic defenses here; one of which is an alibi defense. I’ve taken care of that by a prior ruling. And the second one is—I suppose this is what you would have to consider newly discovered evidence, if there is any. The theory apparently is, first, Kenny Sanders discussed with one— Kenny Heistand discussed with Richard Sanders the fact that Sanders was hired to do this murder. The problem is he won’t talk. He’s refused to tell anybody about it except apparently Mr. Heistand. So all you’ve got is hearsay evidence that’s going to be inadmissible anyway I assume.
“I think I’ve already told you earlier that this Kenny Heistand was listed as a witness by the defendant in the Vanderlinden case as early as October of ’86, keeping in mind that it was March of ’87 when Mr. Reed was to go to trial on these charges. What I’m driving at here is I haven’t seen any competent, relevant, credible evidence that would tip the scales one way or the other. And on more than one prior occasion I have had to consider identical state of affairs and I found nothing that would indicate any reason to change those rulings. I think at this point in time the burden is on the defendant to provide those things.
“So with those comments in mind, the defendant’s motion for reconsideration is overruled.
“I want to point out it’s a motion to reconsider, it’s not a motion of first impression. I’ve looked at it at least twice now.”
It should be noted that the same district judge presided at the Vanderlinden trial and all pertinent stages of the proceedings herein. He was familiar with the evidence, questioned the defendant at the time of the plea and the hearing on the motions, heard his responses to questions, and observed his demeanor.
Applying the previously stated standard for appellate review of claims involving alleged abuse of judicial discretion, we find no merit in this issue.
For his third issue, defendant contends the district court abused its discretion in denying his motion for rendition of two out-of-state witnesses. K.S.A. 22-4210 allows for rendition of prisoners confined in another state for a criminal proceeding in Kansas. The sought-for witnesses were Kenny Heistand and Richard Sanders.
Prior to trial, defendant had filed a notice of intention to present an alibi defense and had listed the names of 17 witnesses to support his defense that he was in Arkansas at the time of the murder. Defendant concedes in his brief that “the strength of a proposed defense is not of paramount importance to a court which is considering a motion to withdraw a plea.”
The argument on this issue treats the rendition motion as essentially a motion to withdraw a plea based upon newly discovered evidence. This is an original format. A great deal of hearsay is involved but presumably the evidence would be to the effect Callihan had hired someone else to commit the murder.
Based upon the record before us, we find no abuse of discretion in the district court’s denial of the rendition motion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Arlan Kaufman, Ph.D., appeals the decision of the district court affirming the finding of the Department of Social and Rehabilitation Services (SRS) that two residences owned by Dr. Kaufman and his wife, Linda Kaufman, are residential care facilities and required to be licensed pursuant to K.S.A. 75-3307b(a)(5). Kaufman claims: (1) The premises are not facilities subject to licensing under K.S.A. 75-3307b, and (2) K.S.A. 75-3307b is unconstitutionally vague. Kaufman’s appeal was transferred to the Supreme Court pursuant to K.S.A. 20-3018.
Arlan Kaufman and his wife, Linda, are the owners of two houses, collectively known as Kaufman House, in Newton, Kansas. Dr. Kaufman holds a masters degree in social science and a Ph.D. degree in social work. Mrs. Kaufman is a registered nurse licensed by the State of Kansas.
Kaufman House opened in 1976 as housing for college students. The houses were subsequently turned into residential treatment facilities for adults with short-term or chronic mental or emotional problems. Dr. Kaufman maintains that Kaufman House has not been a treatment facility for several years.
On December 4, 1986, SRS informed Dr. Kaufman that K.S.A. 75-3307b required his two houses to be licensed as a residential care facility (RCF). After several contacts, SRS sent Dr. Kaufman a letter, informing him that he needed to file an application for licensing the houses as residential care facilities by April 1, 1987. After receiving the letter, Dr. Kaufman met with Kent Munzer, program specialist with adult services of SRS. At that meeting, Munzer asked Kaufman to allow SRS employees to visit Kaufman House to determine if the houses should be certified as an RCF. During the inspection of the Kaufman Treatment Center, located in one of the houses, SRS employees observed a group therapy session being conducted by a licensed social worker.
Later, to obtain information about Dr. Kaufman and Kaufman House, a representative from SRS talked with Dr. Prost, a psychologist employed by Prairie View, Inc. Dr. Prost described Kaufman House as a residential care facility. In a subsequent letter, Dr. Prost stated she had little personal contact with Dr. Kaufman’s program and had made her assumptions based on her knowledge of residents at Kaufman House, who previously had lived at Prairie View, Inc. In the letter, Dr. Prost informed SRS that, when she had earlier referred to Kaufman House as a residential care facility, she had no knowledge of SRS regulations and was not qualified to give an opinion as to whether Kaufman’s facility should be licensed as a residential care facility.
SRS determined Kaufman House facilities should be licensed as an RCF. By letter SRS advised Kaufman that based on the following factors the residence required licensing:
“1. You and your wife have taken on the responsibility for assuring the clients’ safety in the building.
“2. Your wife, a nurse, has assisted clients with taking of medication in the residences.
“3. You are aware of the clients’ functioning and are ready to intervene in a crisis.
“4. You help clients make appointments and help transport them to the appointments.
“5. While you do not prepare meals, you do purchase the foods and are responsible for assuring their nutritional needs are met.”
After Kaufman appealed SRS’s decision, the matter was assigned to a hearing officer. At the hearing, Dr. Prost testified that she refers Prairie View, Inc., patients to Kaufman House based on Kaufman’s ability to deal with chronically mentally ill patients. Dr. Prost acknowledged that due to the Kaufman House program, several of her patients are able to function outside the hospital. Dr. Prost indicated in March of 1988 she was aware of several chronically mentally ill individuals who were residing in Dr. Kaufman’s facility. In order to live outside an institutional setting, these individuals require supervision. Dr. Prost testified that Mrs. Kaufman dispensed medication at Kaufman House and accompanied Kaufman House residents to their doctor’s office at Prairie View, Inc., to receive their medication.
Dr. Kaufman provided affidavits from residents of Kaufman House which stated that neither staff members nor the Kaufmans prepare, serve, clean up after meals, or are present to supervise or oversee these activities. Dr. Kaufman testified that no staff member spends a majority of the member’s time supervising the residents. Dr. Kaufman further testified that residents are free to come and go and an individual may reside in Kaufman House without receiving therapy at the Kaufman Treatment Center. Kaufman admitted that the residents of Kaufman House are provided the services of a registered nurse and a staff Ph.D. clinician.
Mrs. Kaufman testified that she does consider the residents to be her patients. Mrs. Kaufman admitted that she did administer medications to the residents of Kaufman House either by injection or by assisting individuals in taking oral medication. She denied transporting people to their medical appointments. As a courtesy, she had given rides to residents going her way. Mrs. Kaufman stated that the residents do their own grocery shopping and prepare their own meals. The grocery store sends bills for the food purchased by residents to Mrs. Kaufman and she pays the grocery bills. Mrs. Kaufman estimated she works about 20 hours a week as a nurse at Kaufman House.
After hearing the testimony and reviewing literature published by Kaufman and various agencies, the chief hearing officer determined that Kaufman House was required to be licensed as an RCF. The SRS Review Committee reviewed the record, adopted the facts found by the chief hearing officer, and affirmed the hearing officer. Dr. Kaufman petitioned for judicial review pursuant to K.S.A. 77-601 et seq.
Administrative boards and agencies may not rule on constitutional questions; therefore, the issue of the constitutionality of a state statute or an administrative regulation must be raised when the case is appealed to a court of law. In re Residency Application of Bybee, 236 Kan. 443, Syl. ¶ 4, 691 P.2d 37 (1984). In his petition for judicial review, Kaufman claimed: (1) the SRS Review Committee’s decision was not supported by substantial evidence; (2) Kaufman House does not provide RCF services; and (3) the statute requiring licensing of a residential care facility, K.S.A. 75-3307b, is unconstitutionally vague. The district court found K.S.A. 75-3307b is not unconstitutionally vague and there was substantial evidence to support SRS’s findings that Kaufman House required licensing as a residential care facility.
The deaths of hundreds of elderly and disabled residents of substandard care and boarding homes alerted Congress that piecemeal legislation divided among the various state and local agencies provided little or no regulation of these homes. To establish federal enforcement and regulation of these homes, Congress enacted the Keys Amendment to the Social Security Act in 1977, now codified at 42 U.S.C. § 1382(e) (1988). In 1986, the Kansas Legislature amended K.S.A. 75-3307b to grant SRS authority to license residential care. The legislature’s action was predicated upon the need for Kansas to comply with the Keys Amendment. The minutes of the House Committee on Public Health and Welfare, February 12, 1986, contain the following statement from the Secretary of SRS:
“This act is needed in order for the State to monitor the adequacy of the limited assistance these facilities provide and in order for the state to comply with Public Laws 94-566 and 97-35, commonly known as the Keys Amendment.
“The Keys Amendment requires every state to regulate all residential care-providing facilities where SSI recipients reside or are likely to reside. In late 1985, it became apparent that Kansas’ current regulatory categories do not adequately cover the type of facility that is the focus of this act. There are estimated 17 such facilities in Kansas which serve from 5 to 39 clients.” (Emphasis added.)
The legislature entrusted the Secretary of SRS to enforce the laws relating to the hospitalization of mentally ill persons of this state in psychiatric hospitals and the diagnosis, care, training, or treatment of persons in community mental health centers or facilities. K.S.A. 75-3307b(a). The secretary was given authorization to adopt rules and regulations setting standards and providing for the inspection and licensing of all facilities for the mentally ill, mentally retarded, or other handicapped persons receiving assistance through SRS, which facilities receive any state or federal funds; or all facilities where mentally ill, mentally retarded, or other handicapped persons reside who require supervision or require limited assistance with the taking of medication. 75-3307b(a)(5). No license for a residential facility for eight or more persons may be issued under 75-3307b unless the secretary of health and environment has approved the facility as meeting the licensing standards for a lodging establishment under the food service and lodging act. 75-3307b(b).
Is K.S.A. 75-3307b unconstitutionally vague? Kaufman states that 75-3307b(a)(5) and the regulations adopted by SRS to govern the licensing of residential care facilities in K.A.R. 30-42-6 et seq. are vague. Kaufman argues that 75-3307b and SRS’s regulations violate the due process clause because they do not give an ad equate warning of what they command or forbid. Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335 (6th Cir. 1978).
The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the statute may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold the statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.
The test for determining whether a statute is unconstitutionally vague is whether an ordinary person exercising ordinary common sense can understand and comply with the statute. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 518, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983). When determining whether a statute is unconstitutionally vague, greater leeway is to be afforded statutes regulating business than those proscribing criminal conduct. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972); In re Brooks, 228 Kan. 541, Syl. ¶ 1, 618 P.2d 814 (1988).
K.S.A. 75-3307b(a)(5) provides:
“(a) The enforcement of the laws relating to . . . the diagnosis, care, training or treatment of persons in . . . facilities for the mentally ill, mentally retarded or other handicapped persons is entrusted to the secretary of social and rehabilitation services. The secretary may adopt rules and regulations on the following matters . . . :
“(5) The setting of standards, the inspection and licensing of all facilities for the mentally ill . . . or facilities where mentally ill, mentally retarded or other handicapped persons reside who require supervision or require limited assistance with the taking of medication . . . .”
Legislative authority may be delegated to an administrative body where guidelines are set forth in the statute that establish the manner and circumstances of the exercise of such power. Where the legislature enacts general provisions for regulation and grants a particular state agency the discretion to fill in the details, we will not strike down the legislation as constitutionally impermissible unless such provisions fail to fix reasonable and definite standards to govern the exercise of such authority. U.S.D. No. 279 v. Secretary of Kansas Department of Human Resources, 247 Kan. 519, Syl. ¶ 6, 802 P.2d 516 (1990).
Standards to guide an administrative agency in the application of a statute may be inferred from the statutory purpose. Less detailed standards and guidance to administrative agencies are required in order to facilitate the administration of laws in the areas of complex social and economic problems. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, Syl. ¶¶ 7, 8, 808 P.2d 1355 (1991).
The pertinent language of K.A.R. 30-42-6 is:
“(a) ‘Applicant’ means any facility which applies for a license issued by the department to provide residential care.
“(c) ‘Facility’ means any private person, group, association or corporation, or any community or local government department undertaking to provide residential care within the meaning of these regulations.
“(d) ‘Handicapped’ means a physical, mental, or emotional impairment whieh limits one or more major life activities.
“(g) ‘Staff means employees of the facility who spend a majority of their work time in the supervision of residents.” (Emphasis added.)
Major life activities, as used in K.A.R. 30-42-6(d), are identified in the Developmental Disability Act of 1984, Pub. L. No. 98-527, § 102, 98 Stat. 2662, 2664 (1984), as follows:
“(7) The term ‘developmental disability’ means a severe, chronic disability of a person which ....
“(D) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care, (ii) receptive and expressive language, (iii) learning, (iv) mobility, (v) self-direction, (vi) capacity for independent living, and (vii) economic self-sufficiency.”
Kaufinan points out neither the statute nor the regulations specifically define the terms “reside,” “require supervision,” or “require limited assistance with the taking of the medication.” He argues the statute and the administrative regulations are unconstitutionally vague because they fail to set out the standards required for a licensed facility such that an ordinary person exercising ordinary common sense could understand and comply with the statute and the regulations.
In October 1982, the American Bar Association’s Commission on Legal Problems of the Elderly and Commission on the Men tally Disabled were awarded a grant to develop a model act for regulating boarding and care homes to ensure that elderly and disabled residents enjoy a safe and decent living environment. Kaufman argues that the proposed Model Act developed to comply with the Keys Amendment should be used as a standard to determine if the statute and SRS licensing regulations are vague.
The Model Act, entitled A Model Act Regulating Board and Care Homes: Guidelines for States, is contained in 8 Mental and Physical Disability Reporter 150 (March-April 1984) and defines certain terms. The Model Act defines the word “provides” to mean that the home “makes personal assistance available to the residents.” Model Act 2.2. The Model Act defines “personal assistance” as assistance by the staff of the home with activities for daily living which include being aware of the residents’ general whereabouts and monitoring their activities while on the premises to insure health, safety, and well-being. Model Act 2.3.
Kaufman applies definitions contained in the Model Act to the Kansas statute and SRS’s regulations and claims that SRS’s authority for licensing facilities is limited to care and boarding homes where mentally ill residents require supervision, limited assistance with taking of medication, continuous protective oversight, and personal assistance by the staff. Therefore, Kaufman argues under the Model Act’s definition of “continuous protective oversight,” Kaufman House is not subject to SRS’s licensing requirement. The district court disagreed, stating:
“The test to be applied is whether an ordinary person exercising ordinary common sense can sufficiently understand and comply with K.S.A. 75-3307b. A statute will not be declared void for vagueness when it employs words commonly used, previously judicially defined, or having a settled meaning in law. Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977). The words in K.S.A. 75-3307b are commonly used and should be given their ordinary meaning.
“However, the regulations do provide additional guidance in determining whether SRS licensing is necessary by the definitions which are set out. The Secretary is empowered to set licensing standards for ‘all facilities for the mentally ill . . . or facilities where mentally ill . . . or other handicapped persons reside who require supervision . . . .’ K.S.A. 75-3307b(a)(5). ‘Facilities’ are defined in K.A.R. 30-42-6(c) as ‘any private person, group, association or corporation or any community or local government department undertaking to provide residential care within the meaning of these regulations.’
“A resident of a facility is ‘handicapped’ when there exists a ‘physical, mental, or emotional impairment which limits one or more major life activities.’ K.A.R. 30-42-6(d). Major life activities are set out in Developmental Disabilities Act of 1984, Pub. L. No. 98-527, Section 102, 98 Stat. 2662, 2664 (1984):
‘(7) The term “developmental disability” means a severe, chronic disability of a person which ....
“(D) results in substantial functional limitations in three or more of the following areas of major life activity: (i) self-care, (ii) receptive and expressive language, (iii) learning, (iv) mobility, (v) self-direction, (vi) capacity for independent living, and (vii) economic self-sufficiency.’
“These regulations are adequate to guide ordinary persons in determining whether SRS licensing statutes apply to their facility. The words in K.S.A. 75-3307b are commonly used and understood. The statute is not vague or ambiguous. It is constitutional.”
The language in K.S.A. 75-3307b is commonly used, and an ordinary person exercising common sense can sufficiently understand and comply with this statute. The statute is not a trap for the innocent, as it provides adequate notice of what is an RCF. The statute does not give the SRS an ad hoc subjective basis to arbitrarily discriminate as to what facilities are an RCF.
When read with the Developmental Disability Act of 1984, K.S.A. 75-3307b and K.A.R. 30-42-6 are adequate to guide an ordinary person in determining whether SRS licensing regulations apply to specific facilities. The trial court correctly ruled that neither the statute nor SRS’s regulations are unconstitutionally vague.
Kaufman asserts that, if SRS properly construed K.S.A. 75-3307b(a)(b) and its own regulations, SRS would be required to admit that Kaufman House is outside of SRS’s licensing authority.
The proper interpretation of a licensing statute is an issue for determination by the court. See Tillotson v. Abbott, 205 Kan. 706, 712, 472 P.2d 240 (1970). The scope of appellate review of an agency’s action is to determine if the district court reviewed the action in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The party asserting invalidity of the action has the burden of proving the invalidity. Vakas v. Kansas Board of Healing Arts, 248 Kan. 589, Syl. ¶ 4.
Kaufman refers to the federal regulations implementing 42 U.S.C. 1382(e), the codification of the Keys Amendment, which declares that the scope of the Act requires states to create or designate a state or local authority “to establish, maintain, and insure the enforcement of standards for any category of institutions, foster homes, or group living arrangements in which ... a significant number of recipients of Supplemental Security Income (SSI) benefits reside or are likely to reside.” 45 C.F.R. § 1397.1 (1990). Kaufman asserts 45 C.F.R. 1397.5(a) defines what living arrangements are subject to federal law. 45 C.F.R. 1397.5 states in pertinent part:
“For purposes of this part:
“(a) Any category of institutions, foster homes, and group living arrangements means residential facilities which:
“(1) Provide both room and board and continuous protective oversight to the residents-, and
“(2) Are non-medical or medical facilities of any size (other than those certified for participation in the Medicaid or Medicare programs) which are publicly or privately operated on a nonprofit or for-profit basis.”
Kaufman alleges that the federal regulation clearly states that licensing is not required unless the facility provides room, board, and continuous protective oversight. Kaufman claims the evidence does not constitute personal assistance provided by the Kaufmans at Kaufman House as contemplated by the Keys Amendment. Kaufman reasons that since the agency found that Kaufman House offers only limited personal assistance to its residents and does not provide continuous protective oversight, it is not required to be licensed under K.S.A. 75-3307b(a)(5).
In reviewing questions of law, the trial court may substitute its judgment for that of the administrative agency, although ordinarily the court will give great deference to the interpretation of statutes and regulations of the enforcing agency. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 101, 689 P.2d 787 (1984).
Kaufman’s argument is flawed. He interprets the licensing statute and regulations to read that if an individual provides certain services to the mentally ill, mentally retarded, or other handicapped persons who reside at a facility, the individual must obtain a license. Kaufman’s interpretation of the statute does not take into consideration the full scope of the statute. The licensing statute and regulations also require those who offer residential facilities to the mentally ill, mentally handicapped, or other handicapped persons to provide certain services and supervision to the tenants and to be licensed by SRS as a residential care facility.
The district court correctly determined that Kaufman House is subject to SRS’s licensing requirement for a residential care facility under K.S.A. 75-3307b.
Kaufman’s final claim is that SRS’s findings of facts are not supported by substantial evidence in the record and the agency action should be set aside as arbitrary, oppressive, or capricious. This court may not try a case de novo or substitute its judgment for that of an administrative agency. A rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s action. Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 344, Syl. ¶¶ 8, 9, 770 P.2d 423 (1989).
If the agency action is constitutionally authorized by statute, it is presumed valid on review unless it is not supported by substantial competent evidence and is so wide of its mark as to be outside the realm of fair debate, or is otherwise unreasonable, arbitrary, or capricious and prejudices the parties. Vakas v. Kansas Board of Healing Arts, 248 Kan. 589, Syl. ¶ 5. The arbitrary and capricious test relates to whether a particular action should have been taken or is justified, such as the reasonableness of an agency’s exercise of discretion in reaching a determination or whether the agency’s action is without foundation in fact. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 381, 673 P.2d 1126 (1983). Arbitrary or capricious conduct may be shown where an administrative order is not supported by substantial evidence. U.S.D. No. 461 v. Dice, 228 Kan. 40, 50, 612 P.2d 1203 (1980).
In reviewing an agency action, an appellate court is limited to ascertaining from the record whether there is substantial competent evidence to support the findings. Substantial evidence is “such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981). In the application of the substantial evidence test, the appellate court may not reweigh the facts or substitute its own judgment even if it would have found differently. Barnes v. Employment Security Board of Review, 210 Kan. 664, Syl. ¶ 6, 504 P.2d 591 (1972). The court is not concerned with evidence contrary to the findings but must focus solely on evidence in support of the findings. Further, the evidence must be considered on the record as a whole. See Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 511-12, 561 P.2d 779 (1977).
After reviewing the record, we find that SRS’s determination that Kaufman House is required to be licensed as a residential care facility is supported by such legal and relevant evidence as a reasonable person would accept as being sufficient to support the decision.
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The opinion of the court was delivered by
Herd, J.:
This is a direct appeal by the State pursuant to K.S.A. 22-3602(b)(l) from an order of the district court dismissing an information and complaint filed against Howard D. Jamison for violation of his constitutional and statutory rights to a speedy trial.
The facts are not in dispute. On April 1, 1987, Jamison was arrested and issued an unverified traffic citation charging him with driving while under the influence of intoxicating liquor or drugs, K.S.A. 1987 Supp. 8-1567(a)(1); driving while privileges suspended, canceled, or revoked, K.S.A. 1987 Supp. 8-262; failure to have all tail lamps operable, K.S.A. 8-1706; and speeding, K.S.A. 8-1336. Jamison was released after posting bond. The next day, April 2, Jamison’s attorney made his first entry of appearance and Jamison pled not guilty to the charges. A bench trial was set for May 27.
On May 22, Jamison entered a demand for jury trial, and the case was scheduled for hearing June 22. Subsequently, the case was twice continued at the court’s request until August 12. On August 12, 1987, the State voluntarily dismissed the charges against Jamison based upon the Court of Appeals’ ruling in State v. Fraker, 12 Kan. App. 2d 259, 739 P.2d 940 (1987). In Fraker, the Court of Appeals ruled that the State’s failure to file a verified complaint or information charging a defendant with driving while under the influence of drugs or alcohol, K.S.A. 8-1567, violated the mandates of K.S.A. 8-2106. Thus, the court determined the district court lacked jurisdiction over the offense and the defendant’s conviction was vacated. 12 Kan. App. 2d at 261.
Ten months later, on June 21, 1988, the State refiled a verified complaint against Jamison charging him with the identical offenses alleged in the first case. The same day a summons and complaint were issued for Jamison’s appearance on July 13, but were returned with a note that he no longer resided at the address stated. Subsequently, Jamison failed to appear on July 13 and a bench warrant was issued for his arrest. He was arrested nearly a year later on August 18, 1989.
On August 21, 1989, Jamison was arraigned and entered a plea of not guilty; trial was set for September 8. On September 7, Jamison was granted a continuance until October 13.
Prior to trial, Jamison entered an oral motion to dismiss for lack of speedy trial. He argued his constitutional and statutory rights to a speedy trial had been violated. The district court determined the statutory time limit of K.S.A. 22-3402(2) had run and dismissed the charges. This appeal by the State followed.
The State first contends the district court erred in dismissing the charges against Jamison for failure to provide a speedy trial. The State argues the dismissal on August 12, 1987, was necessary and, therefore, the time for a speedy trial did not begin to run until Jamison’s second arraignment on August 21, 1989.
In this instance, K.S.A. 22-3402(2) governs the period of time for a speedy trial. The statute provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
The purpose of K.S.A. 22-3402(2) is to implement and define the constitutional guarantee of a speedy trial and the maximum time limits within which a defendant must be brought to trial. State v. McQuillen, 236 Kan. 161, 163, 689 P.2d 822 (1984).
The rules for computing the time for a speedy trial are well established. The statutory time period for a speedy trial commences on the date of arraignment. City of Derby v. Lackey, 243 Kan. 744, 745, 763 P.2d 614 (1988). Delays which are the result of the application or the fault of the defendant are not counted in computing the statutory period. State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). In addition, the State cannot avoid the time limitations of K.S.A. 22-3402(2) by dismissing an action and then refiling the identical charges against the same defendant, absent a showing of necessity. State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979). Thus, under the rule of Cuezze, the time charged to the State in the first action is added to the time charged in the second action if the State fails to make a showing of necessity. However, if the first case is dismissed with a showing of necessity, computation of the statutory period commences anew upon arraignment in the refiled second case. State v. Ransom, 234 Kan. 322, 325, 673 P.2d 1101 (1983), cert. denied 469 U.S. 818 (1984).
Thus, the issue we must consider is whether the State made a showing of necessity at the time of dismissal. The State argues the Court of Appeals’ holding in State v. Fraker, 12 Kan. App. 2d 259, required dismissal because the district court no longer had jurisdiction over the unverified intoxicated driving and suspended licenses charges, K.S.A. 8-1567 and 8-262. Jamison asserts the State unnecessarily dismissed the charges because it could have sought a continuance pending the review of Fraker by this court, or, in the alternative, the State could have cured the error by amending the complaint within the 180-day time period.
In Cuezze, the State dismissed conspiracy charges against the defendants in order to investigate and obtain information sufficient to charge a third conspirator. We found the State’s failure to seek a continuance under K.S.A. 22-3402(3)(c) was fatal to its claim of necessity. 225 Kan. at 275-79. The same conclusion was reached in State v. Hunt, 8 Kan. App. 2d 162, 166-67, 651 P.2d 967 (1982), wherein the State voluntarily dismissed an action against the defendant because a witness could not be located.
In contrast, in State v. Ransom, 234 Kan. at 325-27, we found the State succeeded in showing necessity for dismissal where the district court denied a request for continuance by the State due to difficulty in obtaining the presence of principal subpoenaed witnesses at the trial date. In State v. Haislip, 234 Kan. 329, 335, 673 P.2d 1094 (1983), we held that a request for continuance was not required to establish necessity where such request would not accomplish the desired goal of trying two defendants together.
State v. Fraker, 12 Kan. App. 2d 259, filed July 9, 1987, held that the State’s failure to file a verified complaint or information charging the defendant with violation of K.S.A. 1985 Supp. 8-1567 (driving while under the influence of drugs or alcohol) violated K.S.A 1985 Supp. 8-2106, and, therefore, rendered the district court without jurisdiction over the offense. 12 Kan. App. 2d at 261. Upon petition for review, we concurred in the Court of Appeals’ determination that the DUI action was not properly commenced without a verified complaint. State v. Fraker, 242 Kan. 466, 467, 748 P.2d 868 (1988). This court, however, modified the earlier ruling by holding that the nonverification defect is not jurisdictional and may be waived where the defendant proceeds to trial without objecting to the defect. 242 Kan. at 468.
The Court of Appeals decision in Fraker was filed on July 9, 1987. This case was pending at that time. The State recognized that its unverified complaint against Jamison was defective under Fraker, leaving the district court without jurisdiction. Our decision reversing the Court of Appeals’ holding on jurisdiction in unverified complaint cases was not filed until January 15, 1988. Jamison’s statutory speedy trial timeclock under the first complaint would have expired at the latest on November 7, 1987. Thus, the State was on the horns of a dilemma. If the district court lacked jurisdiction it could not grant the State the needed permission (K.S.A. 22-3201[4]) to amend its complaint. From its perspective on August. 21, 1987, relying on the Court of Appeals’ Fraker opinion, the district court clearly did not have jurisdiction. This left the State with the option of trying to obtain a continuance and await the outcome of the Fraker petition for review or recognizing the defectiveness of its complaint and dismissing with the intention of refiling after the issue was resolved. It chose the latter course of action, realizing the statutory speedy trial limitation would likely expire before we had the issue determined if we accepted review. From the State’s viewpoint on August 21, 1987, its choice of options was correct. We hold the State’s dismissal and refiling of this action necessary.
The district court found the State’s action was not an attempt to manipulate the speedy trial requirements.
Having found the State’s dismissal was prompted by necessity, and not an attempt to manipulate the speedy trial requirements, computation of time under the speedy trial statute did not commence until August 21, 1989, when Jamison was arraigned the second time. Fifty-three days passed between the time of Jamison’s second arraignment and the district court’s dismissal of charges, of which 36 were chargeable to Jamison. Clearly, the statutory period of time for a speedy trial had not expired at the time of dismissal and we find the district court erred in dismissing the charges against Jamison.
Next, we consider Jamison’s argument that his constitutional right to a speedy trial was violated. The Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights guarantee the accused in a criminal prosecution a speedy trial. The test to determine whether an accused has been afforded a speedy trial was set forth in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Barker identified four factors to be considered when a claim of unconstitutional denial of a speedy trial is asserted: the length of the delay, the reason for delay, the defendant’s assertion of the right, and prejudice to the defendant. 407 U.S. at 530. Kansas adopted the Barker four-point test in State v. Otero, 210 Kan. 530, 532-33, 502 P.2d 763 (1972).
The length of the delay in the present case, from the time of Jamison’s original arrest April 1, 1987, until actual dismissal of the charges on October 13, 1989, was two years and six months. This court has recognized much longer delays that are within the constitutional guarantee of a speedy trial and, therefore, we find no prejudice in the case at hand. State v. Rosine, 233 Kan. 663, 667-68, 664 P.2d 852 (1983); State v. Wilson, 227 Kan. 619, 608 P.2d 1344 (1980); State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972).
Jamison contends the State’s reliance on the Court of Appeals’ decision in State v. Fraker is not a justification for the two and one-half year delay because the State waited nearly a year after the decision before refiling the charges. The State’s position is that it filed the charges within the statute of limitations and any delay was caused by the district attorney’s heavy workload. Overcrowded courts is a credible reason for delay which this court must consider. Barker v. Wingo, 407 U.S. at 531.
Jamison’s assertion of his right, the third factor, is also considered. Prior to his second arrest on August 12, 1989, there was no need for Jamison to assert his speedy trial right. Following arrest, Jamison sought and obtained a continuance; however, within 56 days of arrest he asserted his right to a speedy trial.
Finally, Jamison argues he was prejudiced by the delay because the passage of time prevented eligibility for diversion and caused him to incur increased attorney fees. The State argues, without explanation, that Jamison’s loss of eligibility for diversion during the second prosecution was the result of his own intervening act and not the passage of time. Considering all factors, we conclude there was no constitutional violation of Jamison’s right to a speedy trial.
In the dissent it is argued that the statute of limitations had run under K.S.A. 21-3106 because the State waited from August 12, 1987, to June 21, 1988, to refile its complaint and Jamison was not arrested until August 18, 1989. Admittedly, the arrest occurred more than two years after the offense was committed, but the controlling language in K.S.A. 21-3106(3) is that a “prosecution . . . must be commenced within two (2) years.” K.S.A. 21-3106(6) provides that a prosecution is commenced when a complaint is filed and a warrant is delivered to the sheriff.
Here, the prosecution was commenced well within the two-year period but arrest was delayed because Jamison had moved. This presents a question of fact as to whether the delay in execution of the warrant was reasonable. This issue was not raised, either before the trial court or here. The briefs and arguments addressed only speedy trial. It would be bad practice and the abandonment of our role as an appellate court for us to raise such a new issue sua sponte. In effect, we would be practicing law.
Since the statute of limitations is an affirmative defense which must be pled and proved and is linked to the question of fact as to the reasonableness of the delay in executing the arrest warrant, we are not in a position to hold the district court right for the wrong reason.
The judgment of the district court is reversed, and this case is remanded for further proceedings.
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The opinion of the court was delivered by
Lockett, J.:
Early Detection Center, Inc., (EDC) appeals from the decision of the trial court granting summary judgment to Dr. Marvin H. Wilson. EDC filed this action against Dr. Marvin H. Wilson, an incorporator, officer, director, 30% shareholder, and employee of EDC, alleging that Dr. Wilson, after having been removed as president of EDC, breached his fiduciary duty to the corporation by forming a competing business with Lou A. Standiferd, which business was known as Advanced Diagnostic Center (ADC). The trial court dismissed EDC’s claims against Standiferd and ADC. That decision is not an issue in this appeal. EDC’s appeal was transferred to this court pursuant to K.S.A. 2Q-3018(c).
Dr. Wilson and Dr. Benson Powell, who are licensed to practice medicine and surgery in Kansas, formed a partnership in 1977. In 1983 the partnership was incorporated as Vascular Diagnostic Center, P.A., a professional corporation. The articles of incorporation and the certificate issued by the Kansas State Board of Healing Arts were filed with the Kansas Secretary of State. The articles of incorporation restricted the directors and ownership of the corporation stock to persons licensed to practice medicine or professional nursing in the State of Kansas. All stock certificates issued by the corporation were required to state that “the ownership and transfer of this stock and the rights and obligations of stockholders are subject to the limitations and provisions of the professional corporation law of Kansas.”
In 1985, relying on advice of counsel, Dr. Wilson and Dr. Powell, filed Restated Articles of Incorporation as a general corporation with the secretary of state and changed the name of the corporation to Early Detection Center, Inc. The articles of incorporation were amended to allow individuals not licensed to practice medicine to be directors and own stock in the corporation. Dr. Powell and Dr. Wilson sold 40% of their stock to C. W. Hicks and Harvey Doud. Neither Hicks nor Doud were licensed to practice medicine.
Since 1986, EDC’s only business consisted of providing noninvasive vascular testing medical services.
On January 9, 1987, Wilson was removed as president and CEO of EDC because of disagreement by the other directors with Wilson’s management policies. He remained a 30% share holder, a director, and co-medical director of EDC. On January 29, 1987, Wilson submitted to the corporation a letter of resignation effective immediately. On February 3, 1987, EDC rejected Wilson’s resignation. Wilson was later removed from the Board of Directors on March 27, 1987.
Beginning in February 1987, Wilson started contacting hospitals served by EDC and suggesting they utilize the services of ADC. Subsequently, EDC noted an absence of requests for testing from these hospitals.
In April 1987, EDC filed this action, alleging Wilson breached his contract not to compete and interfered with EDC client hospitals by contracting with the hospitals on behalf of ADC to allow ADC to perform noninvasive vascular diagnostic services. Dr. Powell left EDC’s employment on May 3, 1988, leaving EDC without a physician employed or affiliated with it. EDC has not conducted business since Powell left.
Both parties filed motions for summary judgment. The trial court found (1) EDC could not legally provide healing arts services, (2) EDC had no legitimate claim to profits derived from the practice of the healing arts, and (3) Dr. Wilson owed no fiduciary duty to EDC. The court dismissed EDC’s other claims against Wilson and granted Dr. Wilson’s motion for summary judgment.
A moving party is entitled to summary judgment if 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. The record must also reflect that the moving party is entitled to judgment as a matter of law. Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, Syl. ¶ 5, 695 P.2d 444 (1985). The burden of proving that no genuine issue of material fact exists is on the moving party. The record is viewed in the light most favorable to the party against whom the motion is directed. The granting of summary judgment is improper where there are genuine issues of material fact which are undetermined. Willard v. City of Kansas City, 235 Kan. 655, 657, 681 P.2d 1067 (1984). If factual issues do exist, they must be material to the case to preclude summary judgment. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988).
EDC asserts a general corporation can lawfully provide medical services by employing licensed physicians. It concludes that if a general corporation can lawfully provide medical services, then Dr. Wilson breached his fiduciary duty to EDC.
ÉDC’s articles of incorporation state its business is “[tjo render two types of professional services, nursing and the practice as physicians, surgeons, or doctors of medicine.” Its 1986 annual report stated. the nature of its business is “[mjedical services performing noninvasive peripheral vascular testing, echocardiography testing and general ultrasound testing”. The 1987 and 1988 annual report described the business is to provide “[mjedical services, diagnosis and treatment.”
The practice of healing arts includes
“any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, or injury, and includes specifically but not by way of limitation the practice of medicine and surgery; the practice of osteopathic medicine and surgery; and the practice of chiropractic.” K.S.A. 65-2802(a).
The Kansas Healing Arts Act prohibits any person from engaging in the practice of any branch of the healing arts, unless the person obtains a license. K.S.A. 65-2803.
The Kansas Healing Arts Act authorizes any person of legal age, who successfully completes an examination, to obtain a license. K.S.A. 65-2804 and K.S.A. 65-2831. Applicants taking the examination must file their name, age, place of birth, school, and date of graduation, and demonstrate ability to take the examination. K.S.A. 65-2808, K.S.A. 65-2824, K.S.A. 65-2825, and K.S.A. 65-2827. Since the enactment of R.S. 1923 § 65-1001, which required examination and registration of doctors of medicine and surgery, only individuals can be licensed to practice the healing arts.
In Winslow v. Board of Dental Examiners, 115 Kan. 450, 452, 233 Pac. 308 (1924) the Board revoked Winslow’s license to practice dentistry for practicing under the name of another. Winslow, a licensed dentist, was employed by a foreign corporation authorized to do business in Kansas. The corporation paid Winslow a salary and commissions for his dental work on the corporation’s clients. The Winslow court noted that “[corporations may not be graduated from dental colleges, they have neither learning nor skill, and they may not be examined, registered or licensed as dentists. Therefore, the legislature does not permit the organization of a domestic corporation to practice dentistry.” The court approved the Board’s revocation of Winslow’s license to practice.
In State ex rel. Beck v. Goldman Jewelry Co., 142 Kan. 881, 884, 51 P.2d 995 (1935), it was determined that a corporation could not lawfully practice optometry.
In State ex rel. Fatzer v. Zales Jewelry Co., 179 Kan. 628, 638, 298 P.2d 283 (1956), the court determined that, although a general corporation employs a licensed person to provide professional services, this does not grant the corporation the ability to engage in the practice of that profession without a license. The corporation was enjoined from the unlawful practice of optometry even though the optometry was performed by a licensed employee of the corporation.
EDC claims cases decided prior to the enactment of the Kansas Healing Arts Act in 1957 (K.S.A. 65-2801 et seq.), the adoption of the Professional Corporation Law of Kansas in 1965 (K.S.A. 17-2606 et seq.) and the General Corporation Code in 1972 (K.S.A. 17-6001 et seq.) are inapplicable. EDC argues any prohibition against a corporation’s practice of the healing arts must be contained within the statutes, not common-law decisions this court made prior to the statutory enactments.
Under K.S.A. 17-2709, it is permissible for a person to incorporate as a professional corporation. Once it incorporated as a professional corporation, EDC had the statutory authority to amend its articles of incorporation and function as a general corporation under the General Corporation Code. K.S.A. 17-2717. EDC reasons that, if the statutes allow a viable professional corporation that provides medical services to change from a professional corporation to a general corporation, the general corporation is not precluded from providing medical services to patients if it employs individuals who are licensed to provide medical services. EDC’s argument overlooks the interaction between the Professional Corporation Law, the Healing Arts Act, and the General Corporation Code.
The Healing Arts Act was passed in 1957, subsequent to our decision in State, ex rel., Fatzer v. Zales Jewelry Co., 179 Kan. 628. The legislature, in drafting the language of the Healing Arts Act, did not define or broaden the word “person” such that its meaning differed from our decisions in Winslow, Goldman, and Zales.
Where a statute has been construed by the highest court having jurisdiction to pass on it, such constructions are as much a part of the statute as was written into it originally. All statutes are presumed to be enacted with full knowledge of the existing condition of the law and with reference to it. State, ex rel., v. Moore, 154 Kan. 193, 199, 117 P.2d 598 (1941). The legislature in drafting the language of the Healing Arts Act did not change the prior judicial interpretation that the licensure requirements apply to persons and not to corporations.
In 1965, the legislature enacted the Professional Corporation Law, K.S.A. 17-2706 et seq. K.S.A. 17-2707 states:
“As used in this act, unless the context clearly indicates that a different meaning is intended, the following words mean:
“(a) ‘Professional corporation,’ a corporation organized under this act.
“(b) ‘Professional service,’ the type of personal service rendered by a person duly licensed by this state as a member of any of the following professions, each paragraph constituting one type:
“(4) A chiropractor;
“(5) A dentist;
“(7) An optometrist;
“(8) An osteopathic physician or surgeon;
“(9) A physician, surgeon or doctor of medicine;
“(11) A podiatrist;
“(16) A registered physical therapist;
“(18) A registered professional nurse.
“(c) ‘Regulating board,’ the board or state agency which is charged with the licensing and regulation of the practice of the profession which the professional corporation is organized to render.
“(d) ‘Qualified person’:
“(1) Any natural person licensed to practice the same type of profession which any professional corporation is authorized to practice; or
“(2) the trustee of a trust which is a qualified trust under subsection (a) of section 401 of the internal revenue code of 1954, as amended, or of a contribution plan which is a qualified employee stock ownership plan under subsection (a) of section 409A of the internal revenue code of 1954, as amended. ”
K.S.A. 17-2706 et seq. allows physicians, surgeons, or doctors of medicine to form professional corporations to provide medical services. Both the person and the professional corporation must be licensed. The regulating board of the profession must certify “that each of the incorporators is duly licensed to practice that profession” and the certification must be filed with the Secretary of State prior to the issuance of the certificate of incorporation. K.S.A. 17-2709(a).
A professional corporation may only issue shares of its stock to a “qualified person.” A “qualified person” under the professional corporation act is any natural person licensed to practice the same type of profession which any professional corporation is authorized to practice or the trustees of certain employee pension trusts. K.S.A. 17-2707(d). The transfer or issuance of stock of a professional corporation is limited by the Act. There can be no transfer or issue of shares of the corporation “until there is presented to and filed with the corporation a certificate by the regulating board stating that the person to whom the transfer of stock is to be made or the shares of stock issued is duly licensed to render the same type of professional services as that for which the corporation was organized.” K.S.A. 17-2712(a). The issuance or voluntary transfer of shares of the corporation to an unqualified person results in forfeiture of the corporate charter. K.S.A. 17-2718; K.S.A. 17-2719. See Central State Bank v. Albright, 12 Kan. App. 2d 175, 180, 737 P.2d 65 (1987).
A professional corporation, however, may elect to convert to a general corporation. K.S.A. 17-2717 states:
“The corporation may elect, at any time, upon the vote of the owners of a majority of the issued and outstanding shares, to amend its articles of incorporation so as to prohibit its continued operation under this chapter and to substitute therefor authority for the said corporation to function as a corporation under the general corporation laws, chapter 17, Kansas Statutes Annotated. If such election is made, a certificate of amendment shall be filed in the office of the secretary of state, setting forth the purposes for which the corporation shall continue in operation, together with any other amendments necessary to comply with the requirements of chapter 17 of the Kansas Statutes Annotated.”
Although the statutory laws relating to general corporations are applicable to professional corporations, the professional corporation laws take precedence over any provision of the law regulating general corporations. K.S.A. 17-2708.
The legislature intended that any professional corporation, engaged in the practice of healing arts, which converts to a general corporation be prohibited from engaging in the practice of any branch of the healing arts. To insure the payment for personal injury or death arising out of the rendering of or the failure to render professional services by a health care provider, the legislature created the Health Care Stabilization Fund. See K.S.A. 1990 Supp. 40-3403. Under the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq., (Act) a health care provider includes a person licensed to practice any branch of the healing arts by the state board of healing arts and a professional corporation organized pursuant to the professional corporation law of Kansas by persons who are authorized by such law to form such a corporation and who are health care providers as defined by K.S.A. 1990 Supp. 40-3401(f). A general corporation is not included within the definition.
In addition, the legislature’s intent to not permit a general corporation such as EDC to engage in the practice of the healing arts is illustrated by the legislature’s 1980 amendment to the technical professions licensing statutes that specifically authorize the practice of the technical professions by a general corporation which has unlicensed shareholders. L. 1980, ch. 244, § 1 (now K.S.A. 74-7036). Persons licensed in the technical professions (architects, surveyors, engineers) are among those who were permitted to incorporate under the Professional Corporation Law beginning with its enactment in 1965. K.S.A. 17-2707(b). The 1980 amendment authorized the State Board of Technical Professions to issue a certificate of authorization to general corporations. K.S.A. 74-7036(c).
The fact that the legislature made a specific grant of authority to the technical professions allowing licensing of general corporations with unlicensed shareholders, and the absence of a similar grant of authority under the Kansas Healing Arts Act, is a clear statement of public policy that general corporations who have unlicensed directors or shareholders are not authorized to practice the healing arts. If the legislature had intended to permit this, it could easily have made the same provisions under the Healing Arts Act that it made under the Technical Professions Act. It chose not to do so.
The statutes regulating general corporations and professional corporations cannot restrict or limit the authority or duty of the regulating board for the licensing of persons rendering service or the practice of the profession. By statute, the regulating board of a profession is required to adopt and enforce its rules and regulations governing the practice of the profession. K.S.A. 17-2716.
The Board of Healing Arts has jurisdiction of proceedings to take disciplinary actions against any licensee practicing under the Act who has committed an act of unprofessional or dishonorable conduct. K.S.A. 1990 Supp. 65-2838. The Healing Arts Act prohibits a licensed person from allowing another person or organization to use the licensee’s license to practice the healing arts. K.S.A. 1990 Supp. 65-2837(b)(15). In addition, the inclusion of an unlicensed shareholder in the professional corporation results in a violation of the Healing Arts Act prohibition on fee splitting in K.S.A. 1990 Supp. 65-2837(b)(19).
The prohibitions regarding the sharing of fees and the practice of a licensed person with an unlicensed person is similar to the rules that prohibit a lawyer from sharing legal fees with a non-lawyer or practicing law with any non-lawyer who is a shareholder, director, or officer of the professional corporation. MRPC 5.4 (1990 Kan. Ct. R. Annot. 275).
The legislative enactment of K.S.A. 1989 Supp. 17-2708 does not authorize the practice of medicine by a general corporation or allow a general corporation to provide professional services under the supervision of a licensed practitioner.
Next, EDC claims that even if it is a general corporation, the court erred by not applying the corporation by estoppel theory and by dismissing its claim of Wilson’s tortious interference with a business relationship, breach of employment contract, breach of a covenant not to compete, and breach of fiduciary duty to EDC. The district court, in denying EDO’s request for summary judgment, stated:
“Corporation directors are generally under a strict fiduciary duty to their corporation and its stockholders. Sampson v. Hunt, 222 Kan. 268 (1977). However, before there can be a breach of fiduciary duty there must be a viable position of trust. Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 264 (1975). The plaintiff has controverted the issue of whether a viable position of trust existed by showing that defendant Wilson’s capacity as director was reduced if not nominal at the time of the alleged breach. Therefore, the plaintiffs request for summary judgment on this issue is denied.”
EDC urges this court to apply the theory of corporation by estoppel and cites other jurisdictions which have recognized the doctrine. Willis v. City of Valdez, 546 P.2d 570 (Alaska 1976) (a corporation’s promoters and stockholders were estopped from denying its existence where they participated in holding it out as a corporation); Jones v. Teilborg, 131 Ariz. 240, 727 P.2d 18 (Ct. App. 1986) (shareholder lawyers were estopped from denying existence of corporation after deriving benefit from corporate status); Shapoff v. Scull, 222 Cal. App. 3d 1457, 272 Cal. Rptr. 480 (1990) (one who benefits from a corporate organization may be estopped from denying the corporation’s existence).
“In certain circumstances an organization that may not be a de jure corporation—or perhaps not even a de facto corporation—may, so far as the parties to a given transaction are concerned, be regarded practically as a corporation, being recognized as such by the parties themselves. Although, an organization that has not complied with the conditions precedent to even de facto existence is not, for any purpose, a corporation, the incidents of corporate existence may exist as between the parties by virtue of an estoppel. Thus, besides de jure and de facto corporations, a third class known as ‘corporations by estoppel’ is sometimes recognized. The doctrine of corporation by estoppel rests wholly on equitable principles and operates to protect those who would otherwise suffer loss or incur liability because of their reliance in good faith on the representation of corporate existence.” 18A Am. Jur. 2d, Corporations § 260.
“Generally, an organization that has held itself out as a corporation is estopped from denying the legality of its corporate existence. This doctrine is based on equitable principles, operating to protect persons who would otherwise suffer loss or incur liability because of their reliance in good faith on a false representation made by a person in charge of a business regarding the legal nature of the business and the organization with which the dealings are carried on. Thus, persons who hold themselves out as a corporation and do business as such and who commit a tort in the course of such business cannot set up lack of legal incorporation to escape liability therefor in an action brought against them as a corporation. A business is also estopped from denying the existence and viability of its corporate entity for the purpose of defeating a subpoena served on it commanding it to testify and produce its records and papers. Similarly, a parent corporation is estopped from denying the corporate existence of its subsidiary as against persons who dealt with the corporation.” 18A Am. Jur. 2d, Corporations § 269.
EDC’s claim that the doctrine of corporation by estoppel should apply in this case is flawed. In 1985, EDC complied with the statutory requirements and became a general corporation. Though EDC’s corporate existence had been forfeited for failure to file annual reports for the years 1984 through 1987, a certificate of Reinstatement, Restoration or Renewal was filed by EDC in August of 1987. EDC, an existing corporation, is not entitled to invoke the doctrine of corporation by estoppel.
In addition, it is well settled both in law and in equity that the courts will not aid either party to an illegal agreement. The law leaves the parties where it found them. Except in some cases where the parties are not in pari delicto, the rule applies even though both parties were party to the illegal contract. While it may not always seem an honorable thing to do, a party to an illegal agreement is permitted to set up the illegality as a defense even though the party may be alleging his or her own turpitude. Brumm v. Goodman, 164 Kan. 281, 286, 188 P.2d 913 (1948). In Brumm, the parties entered into a contract. Goodman agreed to allow Brumm to operate under an interstate motor carrier certificate issued to Goodman before securing approval of the transfer of the certificate by the interstate commerce commission. When Goodman refused to transfer the certificate as agreed, Brumm brought an action for specific performance of the contract or damages. The Brumm court observed that the agreement was illegal and determined that courts will not aid either party to an illegal agreement and will ordinarily leave the parties where it finds them.
Wilson cites United Calendar Mfg. v. Huang, 94 App. Div. 2d 176, 463 N.Y.S. 2d 497 (1983). In Huang, the plaintiff was a general corporation with the trade name of Marcy Medical and Dental. The corporation hired licensed medical and dental personnel to provide services to the corporation’s patients. The corporation sued two dentists when they left its employment, claiming they had copied the corporation’s patient lists and so licited and acquired the corporation’s patients. The dentists moved for summary judgment, claiming that the corporation was not a medical professional corporation or not licensed; therefore it could not have patients. The lower court denied the dentists’ claim. On appeal the New York appellate court reversed, finding that the patients, who were the subject matter of the lawsuit brought by the corporation, had patient-physician relationships with physicians who treated them and not with the corporation. It reasoned that the corporation, which provided medical, dental and professional services to the public by hiring professional personnel to whom patients were assigned, did not have any legal claim to the patients who were treated at its facility; therefore, it could not successfully maintain an action against dentist associates. It found that the parties’ agreement was illegal and held that “ ‘the law will not extend its aid to either of the parties . . . or listen to their complaints against each other, but will leave them where their own acts have placed them.’. ” 94 App. Div. 2d at 180.
Here, EDC, a general corporation, agreed to provide medical services to third parties by hiring licensed medical practitioners. A general corporation is prohibited from providing medical services or acting through licensed practitioners; therefore, there could be no contract between the general corporation and the third parties to perform the services. Where the parties enter into an agreement that cannot be enforced, the courts will not aid either party to the prohibited contract and will ordinarily leave the parties where it finds them.
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The opinion of the court was delivered by
Lockett, J.:
Daniel J. Cates and Juhree R. Cates defaulted on a $600,000 note for a business loan obtained from Mark Twain Kansas City Bank (Bank), a Missouri bank. The Bank instituted foreclosure proceedings on the mortgage the Bank held on the Cates’ home in Kansas. The Bank claims that a future advance clause in a prior $200,000 mortgage secured the subsequent $600,000 loan it had made to the Cates. The Cates counterclaimed against the Bank. The Bank moved for partial summary judgment. The Cates also moved for partial summary judgment, claiming the mortgage only secured the Bank’s $200,000 note, which had been discharged. The district court found (1) under the terms of the mortgage contract, the mortgage is to be construed according to Missouri law and the foreclosure lien created by the mortgage is to be governed by Kansas law; (2) the amount secured by the mortgage was limited to $200,000; and (3) the mortgage did not secure the Bank’s subsequent $600,000 loan to the Cates. The district court granted partial summary judgment to the Cates and dismissed the Bank’s foreclosure action. The Bank appealed, and the case was transferred to this court pursuant to K.S.A. 20-3018(c).
This case arose from a series of financial transactions between the parties. From 1986 until 1988 the Bank loaned the Cates $1,300,000 to finance the construction of their home and a business investment.
On December 22, 1986, the Cates executed two promissory notes to the Bank. One promissory note was for $500,000 and was to be paid in equal monthly installments with the last payment due on January 1, 1997. The second promissory note of $200,000 was to be paid on January 15, 1987. Each note stated that it was a single advance loan designated as “CONSUMER: PAY PERSONAL DEBTS.” Both loans financed the construction of the Cates’ new home and each loan was secured by a separate mortgage on the Cates’ residence. On January 15, 1987, the parties renewed the $200,000 note, with the renewal note to mature on April 15, 1987. On April 15, 1987, the note was again renewed and was to mature on June 12, 1987.
On June 12, 1987, two transactions occurred. First, the Bank loaned the Cates an additional $600,000. The $600,000 note states that its purpose is “BUSINESS: FUND EQUITY INVESTMENT IN CANDLEWYCK APARTMENT PROJECT.” On the face of the note there is a box which indicates it is for the Bank’s internal use. Typed in the box is a statement the note is secured by “KANSAS MORTGAGE AND SECURITY AGREEMENT DATED 12/22/86,” in addition to certain other collateral. Payment on this note was due October 1, 1987. When the $600,000 note was executed on June 12, 1987, the $500,000 and the $200,000 notes and both mortgages executed December 22, 1986, were still in effect. The $600,000 note does not reflect which mortgage secured the new loan.
In addition to executing the new $600,000 note on June 12, 1987, the $200,000 note was extended and modified. A document entitled “Modification of Note” recites that the Cates had requested that the Bank allow them to borrow “up to the maximum amount of the principal on the note more than one time.” The modification agreement proposed to change the original $200,000 loan agreement to an open line of credit, if certain conditions were met. The contract states:
“Open End Credit: You and I agree that I may borrow up to the maximum amount of principal, Two Hundred Thousand & 00/100 ($200,000.00), more than one time. This feature is subject to all other conditions and expires no later than October 15, 1987.” (Emphasis added.)
Without stating to which of the two existing mortgages this contract applied, the contract further provided that any future advances made by the Bank under this agreement were to be secured by the mortgage.
To obtain the credit provided under the “Modification of Note” agreement, the parties executed a “Line of Credit Agreement” containing a typewritten addendum which provides:
“Borrower agrees to make a principal payment of $199,990.00 on July 15, 1987. Borrower agrees that no advances will be made under this agreement by Bank if a balance is outstanding on a certain promissory note Borrower delivered to Bank on June 12, 1987, in the amount of $600,000.00. Borrower hereby grants the Bank the right to unilaterally draw on the line of credit to make principal payments on said $600,000.00 without notice to Borrower.”
Neither the $200,000 mortgage nor the $500,000 mortgage were amended or modified to reflect it secured a line of credit other than the original loan.
On July 15, 1987, the Cates failed to make the $199,990.00 payment required by the “Additional Terms” agreement to secure their line of credit. In fact, the Cates did not make any payments on the principal of the $200,000 loan during 1987.
On October 1, 1987, the $600,000 note matured. The Bank renewed the note and extended its maturity date to February 1, 1988. On October 15, 1987, the agreement allowing the Cates a line of credit expired. Since the Cates had never paid down the original $200,000 loan, they never obtained a line of credit with the Bank. On February 1, 1988, the $600,000 note again came due. Again, the Cates failed to pay the note.
On March 7, 1988, the Cates paid off the $500,000 note. The mortgage securing that note was released by the Bank on March 25, 1988.
On March 8, 1988, a mortgage securing a $206,000 loan to the Cates from Joe and Ellen Cates was recorded. On March 10, 1988, the Cates paid to the Bank the sum equal to the outstanding balance on the $200,000 note and requested that the mortgage securing that loan be released. After accepting the payment, the Bank refused to release the mortgage and subsequently filed the foreclosure action, claiming that the future advance clause of the $200,000 mortgage also secured the Cates’ subsequent $600,000 note.
After each of the parties filed motions for summary judgment, the district judge found (1) although Missouri law applied under the terms of the contract, under Missouri or Kansas law, the future advance clause of the December 22 $200,000 mortgage did not secure the $600,000 loan; (2) even if the mortgage secured both the $200,000 and the $600,000 note, the amount secured by the mortgage could not exceed $200,000; and (3) the mortgage did not secure the $600,000 note. After finding that the Bank had no valid mortgage to enforce, the district judge dismissed the foreclosure action against the Cates with prejudice. The action on the $600,000 promissory note against the Cates by the Bank and the Cates’ counterclaims against the Bank are still pending.
A moving party is entitled to summary judgment if 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. The record must also reflect that the moving party is entitled to judgment as a matter of law. Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, Syl. ¶ 5, 695 P.2d 444 (1985). The burden of proving that no genuine issue of material fact exists is on the moving party. The record is viewed in the light most favorable to the party against whom the motion is directed. Glenn v. Fleming, 247 Kan. 296, 304, 799 P.2d 79 (1990). The granting of summary judgment is improper where there are genuine issues of material fact which are undermined. Willard v. City of Kansas City, 235 Kan. 655, 657, 681 P.2d 1067 (1984). If factual issues do exist, they must be material to the case to preclude summary judgment. Bacon v. Mercy Hosp. of Ft Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988).
When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. K.S.A. 1990 Supp. 60-256(e). In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact could not affect the judgment, it does not present a genuine issue of material fact. Miller v. Foulston, Siefkin, Powers, & Eberhardt, 246 Kan. 450, Syl. ¶ 2, 790 P.2d 404 (1990).
Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court. Patrons Mut. Ins. Ass'n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987).
CHOICE OF LAW
The Bank claims that the district court erred in applying Missouri law to the mortgage contract. Paragraph 35 of the mortgage provides:
“This Mortgage and the terms hereof, and the Obligations and the terms thereof, are Missouri contracts and the same shall be governed by and construed according to the laws-of the State of Missouri, except that the enforcement and foreclosure of the lien created hereunder shall be governed by and construed according to the laws of the State of Kansas.”
The Bank argues that the district court failed to apply the rules of lex loci rei sitae (local laws always determine the rights and obligations of parties to real property) and lex loci (a security interest in land is governed by the local law of the situs regardless of the language in the mortgage contract). As authority the Bank cites Restatement (Second) of Conflict of Laws § 222 (1969), which provides:
Ҥ 222. The General Principle
“The interests of the parties in a thing are determined, depending upon the circumstances, either by the ‘law’ or by the ‘local law’ of the state which, with respect to the particular issue, has the most significant relationship to the thing and the parties under the principles stated in § 6.”
The Bank also cites Restatement (Second) of Conflict of Laws, §§ 223, 228 (1969), which provide:
Ҥ 223. Validity and Effect of Conveyance of Interest in Land
“(1) Whether a conveyance transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs.
“(2) These courts would usually apply their own local law in determining such questions.”
Ҥ 228. Mortgage on Land
“(1) Whether a mortgage creates an interest in land and the nature of the interest created are determined by the law that would be applied by the courts of the situs.
“(2) These courts would usually apply their own local law in determining such questions.”
The Cates agree with the Bank’s recital from the Restatement, but note that this is only a partial recital. The Cates point out that Restatement (Second) of Conflict of Laws § 187 (1969) concludes:
Ҥ 187. Law of the State Chosen by the Parties.
“(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
“(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
“(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
“(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
“(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.” (Emphasis added.)
The Bank cited Guardian Life Ins. Co. v. Rita Realty Co., 17 N.J. Misc. 87, 5 A.2d 45 (1939), as authority to the district court. In Guardian, the mortgage document was negotiated in New York but the property was located in New Jersey. The mortgage clause stated that “[A]ll the covenants and conditions herein contained, and contained in the bond accompanying this mortgage, shall be construed and interpreted pursuant to the laws of the State of New York.” 17 N.J. Misc. at 90. The Guardian court stated that New York law concerning procedures to foreclose mortgages is limited to property located in New York. 17 N.J. Misc. at 92.
The district court noted that the Guardian court followed the general rule that the mortgage is to be interpreted using the substantive law of the state where the mortgage is signed, but foreclosure of that mortgage must be in accordance with the procedural law of the state where the property is located. The district court observed that here the parties were not disputing the procedure to foreclose the mortgage and determined under the agreement that Missouri law was to be applied.
It is not unusual for commercial transactions to traverse state lines. Although the Uniform Commercial Code, K.S.A. 84-1-101 et seq., does not apply to mortgages, it does state our legislature’s intent that territorial restrictions should not hinder commerce. Under the Kansas Uniform Commercial Code, when a transaction bears a reasonable relation to Kansas and also to another state, the parties are allowed to contract that the laws of Kansas or the other state will govern the rights and the duties of the parties. K.S.A. 84-1-105. The same public policy applies to a loan and mortgage executed in Missouri on land located in Kansas. The district court correctly interpreted paragraph 35 to require Missouri law be followed when determining whether the Bank’s $600,000 loan was secured by the future advance clause of the $200,000 mortgage.
In addition to interpreting paragraph 35 of the mortgage as requiring application of Missouri law, the district court, in its analysis, determined the validity of the Bank’s mortgage future advance clause under both Missouri and Kansas law and found the result would be the same.
The mortgage states:
“BORROWER HEREBY FURTHER PROMISES, REPRESENTS, WARRANTS, COVENANTS AND AGREES AS FOLLOWS: . . .
“2) Upon Borrower’s request and at Lender’s sole option and discretion, Lender may make future advances and Borrower may incur future obligations at any time and from time to time immediately following the date hereof. Any such future advance or future obligation shall constitute an Obligation secured hereby.” (Emphasis added.)
MISSOURI LAW
Future advance or dragnet clauses in Missouri are authorized and governed by Mo. Rev. Stat. § 443.055 (1986). The pertinent sections of that statute are:
“2. . . . The fact that an instrument secures future advances or future obligations shall be clearly stated on the face of the instrument, or on the face of any amendment to an instrument if such amendment is made to cause the original instrument to secure future advances or future obligations, and the instrument shall state the total amount of the obligations which may be secured. The total amount of obligations that may be secured by such an instrument may decrease or increase from time to time, but except as to advances made pursuant to subsection 3 of this section, the total principal amount of the obligation secured may not exceed the face amount as stated in the instrument.
“12. No future advance or future obligation shall be secured by an instrument for purposes of this section unless the note, contract, guarantee or other evidence of indebtedness under which such future obligation or future advances were incurred shall state on its face that such note, contract, guarantee or other evidence of indebtedness is secured by such instrument and shall identify such instrument by date of execution of such instrument, provided that such note, contract, guarantee or other evidence of indebtedness shall enjoy the security of such instrument as otherwise provided by law without reference to this section if no reference is made therein to this instrument. The provisions of this section shall not govern any instrument or any supplement or amendment to an instrument unless such instrument, supplement or amendment shall clearly state on its face that it is to be governed by this section.” (Emphasis added.)
Prior to the enactment of § 443.055, there were no Missouri cases determining how the Missouri common law would treat future advance clauses in mortgages. One legal writer found that the validity of future advance clauses under Missouri common law would be handled similarly to the state’s statutory requirements. This authority stated:
“Unlike construction and line of credit mortgages, the dragnet mortgage usually does not contemplate future advances. Dragnet clauses, which appear in all types of mortgages, secure any and all debts that the mortgagor owes or may owe to the mortgagee. It is unclear whether such clauses are valid in Missouri or whether advance clauses claimed under them will enjoy priority over intervening liens. Most jurisdictions recognize the validity of dragnet clauses but construe them strictly, often holding the claimed advance to be unsecured by the mortgage. Even if they find the advances secured, most courts treat them as optional advances by subordinating them to intervening liens. It seems likely that Missouri will follow this approach ....
"To be governed by [Mo. Rev. Stat. § 443.055] statute, a mortgage must clearly state on its face that it secures future advances and must list the total amount that may be secured thereunder. The mortgage and its amendments must clearly state that they will be governed by section 443.055. Failure to follow these requirements will place the mortgage under the control of prior Missouri law.
“As with line of credit mortgages, neither statutes nor decisions previously offered an answer to the validity of dragnet clauses or the priority of advances under such clauses. The new legislation, however, provides a procedure to deal with dragnet clauses. Any instrument under the statute must state that it secures future advances and must set out the total amount secured. Thus, prior indebtedness cannot be secured by a dragnet mortgage. Likewise, unanticipated advances will not be secured by a dragnet clause because advance consideration is required for compliance with the requirements of setting out the amount and the terms of the mortgage. A mortgagee who previously complies with the technical requirements, however, can secure even unanticipated advances by filing a proper amendment increasing the total indebtedness to be secured, but those advances will take priority only from the time the amendment is recorded. A mortgagee who seriously intends to utilize a dragnet clause may be better off under the new legislation given the absence of common law and the possibility that the courts will hold that the clause does not secure the particular advance. A mortgagee who includes such a clause but does not really anticipate utilizing it may be unable to take advantage of the statute, however, if he does not follow its requirements from the outset.” (Emphasis added.) Comment, Future Advances in Missouri, 49 Mo. L. Rev. 103, 113-19 (1984).
The district court observed that the $200,000 mortgage did not specifically state that its obligations and terms are to be construed or governed according to Mo. Rev. Stat. § 433.055. Recause there are no Missouri decisions prior to the enactment of § 443.055, the district court first looked to other jurisdictions that have construed dragnet clauses in mortgages and observed that those jurisdictions have refused to extend security to debts which were unrelated or unanticipated by the parties. See, e.g., Emporia State Bank v. Mounkes, 214 Kan. 178, 184, 519 P.2d 618 (1974) (unclear intent and distinct debts); Freese Leasing v. Union Trust & Sav. Bank, 253 N.W.2d 921, 926-27 (Iowa 1977) (unrelated debts and intent unclear); Canal Nat. Bank v. Becker, 431 A.2d 71, 74 (Me. 1981) (intent unclear).
After its review of the law of other jurisdictions, the district court reasoned that, in the absence of prior Missouri decisions, the Missouri courts would conform Missouri common law to the public policies set forth in § 443.055 and impose similar or identical restrictions on the use of dragnet clauses in mortgages. The district court then determined that Missouri law requires that an instrument which secures future advances “shall . . . clearly [state] on the face of the instrument” the total amount of the obligations which may be secured. The district court found Mark Twain had failed to modify the mortgage document securing the $200,000 loan to reflect that the parties intended the mortgage to secure in excess of $200,000, as required by Missouri law. The district court found the mortgage could not secure any amount in excess of $200,000.
KANSAS LAW
In Kansas, promissory notes and mortgages are contracts between the parties, and rules of construction applicable to contracts apply to them. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, Syl. ¶ 3, 647 P.2d 1286 (1982). The primary rule in interpreting promissory notes and mortgages is to determine the intention of the parties, and that intention must prevail; such intention is to be determined from an examination of both the mortgage and note, not from each one separately. Carpenter v. Riley, 234 Kan. 758, 763, 675 P.2d 900 (1984).
The Bank argues that the face of the $600,000 note states it is secured by the $200,000 mortgage. The district court noted that in Kansas future advance mortgages are governed by K.S.A. 1990 Supp. 9-1101 and K.S.A. 58-2336. K.S.A. 1990 Supp. 9-1101(4) states:
“Every real estate loan shall be secured by a mortgage or other instrument constituting a lien, or the full equivalent thereof, upon the real estate securing the loan, according to any lawful or well recognized practice, which is best suited to the transaction. The mortgage may secure future advances. The lien of such mortgage shall attach upon its execution and have priority from time of recording as to all advances made thereunder until such mortgage is released of record. The lien of such mortgage shall not exceed at any one time the maximum amount stated in the mortgage.” (Emphasis added.)
K.S.A. 58-2336 states:
“Liens of mortgages securing loans upon real estate; providing for the security of future advances; priority of lien. Every mortgage or other instrument securing a loan upon real estate and constituting a lien or the full equivalent thereof upon the real estate securing such loan, according to any lawful or well recognized practice, which is best suited to the transaction, may secure future advances and the lien of such mortgage shall attach upon its execution and have priority from time of recording as to all advances made thereunder until such mortgage is released of record: Provided, that the lien of such mortgage shall not exceed at any one time the maximum amount stated in the mortgage.” (Emphasis added.)
The Bank argues that under the future advance clause all outstanding bank loans are secured by the mortgage. It claims that the $200,000 limitation stated in the mortgage is to be used to determine priority among creditors. The Bank states that $200,000 of its $600,000 loan had priority over Joe and Ellen Cates’ $200,000 loan and that the loan from Joe and Ellen Cates then had priority over the balance of the Bank’s loan. The Cates claim that the district court correctly found that the lien of any future advance clause is limited to the amount stated in the mortgage. As authority, both parties cite First Nat’l Bank in Wichita v. Fink, 241 Kan. 321, 736 P.2d 909 (1987), where this court interpreted K.S.A. 58-2336 and K.S.A. 1986 Supp. 9-1101(4).
In Fink, the mortgagors borrowed $24,506.39 from First National Bank and executed a real estate mortgage for that sum. The mortgage contained a future advance clause. The Finks later borrowed $30,000 from Souders and executed a second mortgage. Subsequent to Souders’ loan, the bank made additional loans to the Finks of $6,472 and $13,144. The Finks executed a promissory note and a mortgage to the bank for each loan. Each of the notes stated:
“SECURITY AGREEMENT
“FOR VALUABLE CONSIDERATION, Borrower hereby grants unto Bank a security interest in the property (Collateral) described below together with any and all additions thereto, substitutions thereof, and proceeds therefrom:
“DESCRIPTION OF COLLATERAL
“Real estate mortgage dated November 22, 1977, on the following described property:
“Lot 4, North Half of Lot 5, block 10, Beverly Manor, Sedgwick County, Kansas.” 241 Kan. at 323.
After the Finks defaulted on their loan, the bank foreclosed. The bank and Souders disputed the priority of their liens. We found that the bank’s lien had priority but was limited by K.S.A. 58-2336 to the principal stated in the 1977 mortgage, $24,506.39 plus interest, and that Souders’ second mortgage was prior to any sums owing the bank in excess of the 1977 mortgage. 241 Kan at 327.
The Bank misconstrues our holding in Fink. The district court correctly found that K.S.A. 58-2336 limits the lien to the maximum amount stated in the mortgage. The maximum amount stated in the mortgage was $200,000, not $600,000 as claimed by the Bank.
In First Nat’l Bank Trust Co. v. Lygrisse, 231 Kan. 595, we discussed how a subsequent loan may be secured under a dragnet clause in a mortgage. Lygrisse involved a mortgage foreclosure action and a mortgage with a future advance clause. The 1976 mortgage covered a loan of $47,000 and contained a dragnet clause for future advances not to exceed $400,000. Subsequent to the $47,000 loan, the mortgagors consolidated their debts and executed another note for $274,664. In the lower left-hand comer of the consolidated note appeared this statement: “NOTE SECURED BY S/A 509 head of cattle, machinery and equip., Financial Stmt., R. E. Mgt., dtd. 1/30/76.” This recital was on the face of the note when it was executed and clearly expressed the intention of the parties that the debt represented by the note was secured by the mortgage.
The district court in Lygrisse found that the Lygrisses’ subsequent notes of $206,414, including interest, were secured by the 1976 mortgage. The Court of Appeals reversed, finding that only the $47,000 loan plus interest was secured by the mortgage. It found that the statement on the face of each note, that the note was secured by the real estate mortgage, was not a sufficient reference to the mortgage for the mortgage to secure the subsequent consolidation of the notes. We observed that subsequent debts may be secured under the dragnet clause of a real estate mortgage in either of two ways: (1) by specifically stating on the face of the new note that it is secured by the prior mortgage; or (2) by showing that the subsequent debt is of the same kind or character as, or part of the same transaction or series of transactions with, that originally secured by the mortgage. We observed that all the notes except one, which the district court found to be an inadvertent error, referred to the January 30, 1976, mortgage. We affirmed the district court and reversed the Court of Appeals.
Future advance clauses are also discussed in Home State Bank v. Johnson, 240 Kan. 417, 729 P.2d 1225 (1986). In Johnson, the issue was whether the mortgage secured more than the amount on the face of the mortgage. The mortgage was given to secure the sum of $100,000 plus future advances. The mortgage stated that the loan and advances “shall at no time exceed [$100,000].” 240 Kan. at 419. The subsequent loan agreement between the parties stated that the consideration “is the further extension of credit by Bank to Borrower, all as provided by the Real Estate Mortgage previously filed for record.” 240 Kan. at 420. The Johnson court stated that “the best and most persuasive evidence of the intention of the parties who enter into a written agreement is that which is expressed by the terms of that agreement.” 240 Kan. at 426. It determined the mortgage was never intended to secure an amount in excess of $100,000. 240 Kan. at 426.
Both the Bank and the Cates agree that the $600,000 note was to finance a business venture and was not of the same kind or quality as the $200,000 note which financed the construction of the Cates’ home. The question is whether the July 12 $600,000 promissory note sufficiently refers to the $200,000 mortgage so that the mortgage provides security for $200,000 of the subsequent $600,000 note.
The Bank purchased a printed form for its note. When reading the note purchased and prepared by the Bank, the word “I” in the form refers to the Cates, the borrowers, and the word “You” refers to the Bank, the lender. The $600,000 note, in a marked box, states: “SECURITY: This note is secured by: SECURITY AGREEMENT (COLLATERAL PLEDGE AGREEMENT) DATED 6/12/87, ASSIGNMENT OF LIFE INSURANCE POLICY AS COLLATERAL DATED 6/12/87, KANSAS MORTGAGE AND SECURITY AGREEMENT DATED 12/22/86.” The box also contains: “(This section is for your internal use. It may not include every agreement or item of collateral securing this note. You will not lose any security by omitting it from this section.)” To the right of this box are two lines which are designated signature lines where the borrowers say, “I AGREE TO THE TERMS OF THIS NOTE (INCLUDING THOSE ON THE OTHER SIDE).” The other side of the document states, “SECURITY: The portion of this form identifying agreements securing this note is for your internal reference only. The fact that you do not list an agreement in that portion of the form does not mean that the agreement does not secure this note.”
According to the Bank, the $200,000 mortgage is referenced on the face of the subsequent $600,000 note and meets the requirements set forth by this court in Lygrisse. We disagree. The $600,000 note refers to a “KANSAS MORTGAGE AND SECURITY AGREEMENT DATED 12/22/86.” However, the Cates executed two mortgages on that date, one for $500,000 and the other for $200,000. Both mortgages contain the same future advance clauses. The $600,000 note does not state which of the two mortgages secures the note. The only portion of the note which refers to a mortgage is designated for internal use for the Bank and is not part of the agreement between the parties.
The loan agreement does not comply with the requirements set out in Lygrisse that, to secure subsequent debts under the dragnet clause of a real estate mortgage, one must specifically state on the face of the new note that it is secured by the prior mortgage or show that the subsequent debt is of the same kind or character as, or part of the same transaction or series of transactions with, that originally secured by the mortgage. Here, the subsequent loan agreement neither specifically states on its face which of the prior mortgages secures the note nor shows that the subsequent debt is of the same kind or character or a part of the same transaction or series of transactions originally secured by the mortgage. Antecedent debts may be secured by a mortgage containing a dragnet or other advance clause only if the antecedent debts are clearly identified in the mortgage. The rule has no application when subsequent notes merely indicate that the antecedent debts are intended to be secured. There was no genuine issue as to any material fact, and the district court correctly determined as a matter of law that the mortgage did not secure the $600,000 note and granted summary judgment.
Affirmed. | [
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Per Curiam:
This is an original attorney discipline proceeding filed by the Office of the Disciplinary Administrator against Maurice E. Vorhies, of Wichita, Kansas.
The stipulated facts may be summarized as follows. In January of 1990 the complainant, Fred Taylor, retained respondent to represent him in a DUI case in the Hutchinson Municipal Court. Respondent received a $500 retainer. The case was tried on March 15, 1990, and complainant was adjudged guilty as charged. The presiding judge advised client and counsel that there was a 10-day time period for appeal and that a $750 appeal bond would be required.
Complainant advised respondent that he wished to pursue the appeal. Thereafter, complainant attempted to contact the respondent on numerous occasions in order to check on the appeal. Contact was not made until April 3, 1990. Complainant was advised no appeal had been taken and the time for taking it had expired. Respondent stated he would contact the judge to see what could be done. Complainant heard nothing further from respondent. (Count I.)
In fact, respondent had been suspended from the practice of law by this court on January 31, 1990, for failure to fulfill his continuing legal education requirements. Notice of this action was received in respondent’s office on February 24, 1990. Respondent was thus under suspension when he represented complainant at the March 15 trial. (Count II.)
Respondent failed to cooperate with the Disciplinary Administrator in his investigation of the complaint, (Count III.)
The disciplinary panel to whom this case was assigned noted that complainant had not provided respondent with money for the appeal bond or any additional retainer for prosecuting the appeal.
The panel then concluded that respondent had violated Model Rules of Professional Conduct 1.2, 1.3, 1.4 (1990 Kan. Ct. R. Annot. 217-20), and 8.4(g) (1990 Kan. Ct. R. Annot 290), as well as Supreme Court Rule 207 (1990 Kan. Ct. R. Annot. 141).
The panel’s recommendation as to appropriate discipline is as follows:
"RECOMMENDATIONS
“The respondent informed the Panel that he does not desire to practice law at the present time. The respondent informed the Panel that the cause of his problems herein is the result of recurring depression for which he was previously treated in the early 1980’s and for which he has again voluntarily participated in treatment and counseling. The Panel received and reviewed two prior complaints filed against the defendant, dated April 7, 1988, and March 16, 1989, respectively. The respondent was informally admonished as a result of both of these prior complaints.
“The Panel would recommend that the Court permit the respondent to request that he be placed on inactive status pursuant to Supreme Court Rule 208(j) [1990 Kan. Ct. R. Annot. 143], conditioned upon the respondent’s compliance with the requirements for reinstatement pursuant to Supreme Court Rule 219 [1990 Kan. Ct. R. Annot. 157], before the respondent be permitted to return to active status.
“In the event the respondent fails to forthwith request that he be placed on inactive status, that then and in that event, the Panel would respectfully recommend that the respondent be suspended indefinitely.”
Respondent has not requested placement on inactive status.
Under the circumstances herein, we agree with and accept the panel’s recommendation of indefinite suspension.
It Is Therefore Ordered that Maurice E. Vorhies be and he is hereby indefinitely suspended from the practice of law in the State of Kansas. He shall, however, be permitted to apply for reinstatement after one year from the effective date hereof.
It Is Further Ordered that Maurice E. Vorhies comply with Supreme Court Rule No. 218 (1990 Kan. Ct. R. Annot. 155).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to the respondent. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action seeking declaratory judgment of property rights under zoning regulations sought to be applied to plaintiffs’ property and for injunctive relief against interference with the property. Plaintiffs prevailed and defendants have appealed.
The record reveals the following: In 1949 plaintiff Magdalen E. Tobin and her husband, Patrick Tobin, acquired property near Stanley in Aubry township, Johnson county, Kansas, for use as a rock quarry. Thereafter, and until May, 1961, Mr. Tobin conducted a small rock quarrying operation on the premises, selling rock to neighboring farmers and others and to the city of Olathe. During this period Mr. Tobin would employ from one to five persons to assist him in the operation. On May 31, 1961, the Tobins leased the property for quarrying purposes to the Union Construction Company for a period of five years with option to renew for two like periods. Union carried on substantial quarrying, selling a large volume of rock, until October, 1963, at which time it removed its quarrying and crushing equipment from the premises. It left thereon a highloader and about 20,000 tons of crushed rock. It had other quarrying locations where it used its portable quarrying and crushing equipment as the demand for rock required. Mr. Tobin died January 5, 1965. On May 18, 1965, Mrs. Tobin commenced an action against Union in the Johnson county district court for cancellation of the lease on the ground of abandonment. This suit was dismissed with prejudice on August 15, 1965. On January 1,1966, Union Construction assigned its interest in the lease to plaintiff Union Quarries, Inc., who in turn subleased to J. A. Tobin Construction Company, which immediately commenced to quarry rock in larger volume and intensity than had been initially conducted on the premises.
In 1959 Aubrey township enacted certain zoning regulations which were approved by the Board of County Commissioners of Johnson county. These regulations provided for three separate use districts: Residence, retail business and light industrial, and heavy industrial. The Tobin property was in a residential area. The business of rock quarrying was designated under retail business and light industrial. Section 13 of these regulations recognized their inapplicability to nonconforming uses then in existence and contained this further proviso:
“When a non-conforming use itself has been discontinued for a period of six months, it shall not be reestablished and future use shall be in conformity with the provisions of this enactment notwithstanding the purpose for which the premises were erected or used.”
On April 16, 1966, the zoning board of Aubry township adopted a resolution finding the Tobin property was zoned for residential use and that its nonconforming use as a rock quarry had been lost. The board further found such use was in violation of its zoning regulations and it requested the Johnson county board of commissioners, to take appropriate action to enforce the zoning regulations and prevent continuation of a rock quarrying business on the property. On April 20, 1966, plaintiffs appealed from the township board action to the Johnson county board of commissioners.
On June 16, 1966, the board of county commissioners conducted a hearing on the matter. Plaintiffs received due notice of and appeared at this hearing. A stenographic record of the proceedings was kept. The board found that plaintiffs had lost the nonconforming use by discontinuance thereof for a period of more than six months, and that their property was being used in violation of the township’s zoning regulations. Plaintiffs then commenced this suit.
The trial court held a full de novo hearing. Its ultimate findings, and conclusions on contested issues were that Aubry township was. empowered by statute to enact Section 13 of its zoning regulations; that the board of county commissioners, as an administrative body,, was not authorized to make a binding decision that a nonconforming use had been lost by discontinuance; the trial court’s jurisdiction was not limited to a review of the evidence presented to the board of county commissioners to determine whether the board’s action was reasonable; under the provisions of K. S. A. 19-2912 the board has authority to maintain suits in a court of competent jurisdiction to enforce zoning regulations and to abate nuisances maintained in violation thereof and its remedy for determination of the loss of nonconforming use was by filing such a suit; and that the provisions of ■our declaratory judgment act (K. S. A. 60-1701) authorize plaintiffs to bring the type of action they filed. The court further found plaintiffs had not discontinued the nonconforming use so as to lose it; that they had not unlawfully enlarged or extended it, and the court rendered judgment accordingly. The court did enjoin operation of an asphalt plant which had at one time been in use on the premises after they had been zoned.
Defendants have appealed from the judgment adverse to them. Plaintiffs have cross-appealed from the ruling that Aubry township had authority to enact the quoted proviso in Section 13 of its zoning regulations. We first consider defendants’ appeal.
Our legislature has enacted three separate sets of statutes authorizing counties to zone (see Spurgeon v. Board of Commissioners, 181 Kan. 1008, 317 P. 2d 798). The parties here agree the zoning action in question was undertaken pursuant to and must be governed by the provisions of K. S. A. 19-2901 to 19-2913 inclusive. This set of statutes contains no provision for amortization of nonconforming uses as does that which was the subject of consideration in Spurgeon; however, for purposes of discussion at this point, we assume, without deciding, that the zoning body here had authority to enact regulations providing for the voluntary loss by the owner of a nonconforming use, such as contained in Section 13.
Appellants contend the board of county commissioners has the power to hear evidence and to make determinations as to whether a nonconforming use has been altered, discontinued, abandoned or enlarged upon, subject only to review by the district court under K. S. A. 19-2913. They cite the familiar rule that upon such review the court may not substitute its judgment for that of the administrative agency but is limited to determining whether the action was reasonable and lawful. They assert the only issue before the trial •court was the reasonableness of the board’s order declaring loss of the nonconforming use and that to hold otherwise would result in the trial court becoming the zoning body. They argue tibe trial •court had no power beyond that authorized by 19-2913.
Appellees, on the other hand, assert that whether a nonconforming use has been discontinued, abandoned or enlarged upon is a judicial question reserved for determination by a court of law and not by an administrative body; that there is no statutory procedure prescribed for determination of the existence or nonexistence of a nonconforming use and the only way zoning bodies may challenge the maintenance of an alleged violation of zoning orders in such an instance is by bringing an action under K. S. A. 19-2912 in which event the court would make de novo factual inquiry.
K. S. A. 19-2912 provides:
“That any violation of any provision of this act shall be deemed to be a misdemeanor and punishable by a fine of not to exceed two hundred dollars for each offense and that each day’s violation shall constitute a separate offense, and the county commissioners shall have the authority to maintain suits or actions in any court of competent jurisdiction to enforce the regulations adopted in accordance with the terms of this act, and to abate nuisances maintained in violation thereof.”
K. S. A. 19-2913 provides:
“That any and all acts and regulations provided for or authorized by this act shall be reasonable and any person having an interest in property affected may have the reasonableness of any such act or regulation determined by bringing an action against the county commissioners in the district court in the county in which any such township is situated.”
K. S. A. 19-2906 provides in part:
“That the zoning board shall have the power to determine, restrict and regulate the area within which trade, industries and recreations may be conducted . . . and to regulate and restrict the intensity of such uses and occupation outside the limits of incorporated cities; to prohibit uses, buildings, or structures, incompatible with the character of such district, respectively, and to present [prevent] additions to, and alterations or remodeling of, existing buildings or structures in such a way as to avoid or evade the restrictions and limitations lawfully imposed herein.
“In all orders, rules and regulations passed or adopted under authority of this act, due allowance shall be made for existing conditions, conservation and maintenance of property values, the direction of building development to the best advantage of the entire community and the uses to which property is devoted at the time of the enactment or making of any such order: Provided, however, That no action of the zoning board under powers conferred by this section shall be effective until approval by the county commissioners. . . .”
It is generally true, of course, except where amortizations are authorized and reasonably applied, that zoning ordinances may not operate to suppress or remove from a particular district an otherwise lawful business or use already established and maintained therein (58 Am. Jur., Zoning, § 148). K. S. A. 19-2908 and Section 13 of appellants’ regulations recognize this principle. However, we are concerned here with an act of voluntary discontinuance— not with involuntary termination — and tibe question of which branch of government should make such a determination.
A court, of course, may not exercise as a matter of original jurisdiction a function properly committed by a zoning act to the sound discretion and judgment of a zoning board. The statutes in question contain no express authorization for the county zoning board to hold hearings and terminate existing nonconforming uses on the ground of discontinuance. In arguing that the board has this power by necessary implication in the broad general authority granted, appellants point to certain language used by this court in Spurgeon v. Board of Commissioners, supra. As indicated, that case did not deal with termination of a nonconforming use by voluntary discontinuance, although it did recognize the right of a zoning agency, under a more recent set of zoning statutes (now K. S. A. 19-2927 to 19-2936, incl.), to enact reasonable regulations amortizing nonconforming uses after a period of time and thus mandatorily to eliminate them. In any event statutory construction does not entirely resolve the problem. The ultimate issue here becomes one of a different type — which agency can properly determine whether a nonconforming use has been discontinued for a particular period of time? We have no precedent of our own directly upon the proposition. Resort to cases in other jurisdictions is not helpful, not only because of variance in statutory enactments but also because of the fact not all jurisdictions adhere to the separation of powers doctrine as we do in delineating permissible administrative and judicial actions. Under that doctrine we have always recognized a distinction between legislative and judicial functions cast, or sought to be cast, upon a particular governmental body (see Gawith v. Gage’s Plumbing & Heating Co. Inc., 206 Kan. 169, 476 P. 2d 966).
Is the function of determining whether a particular use of property has been discontinued a legislative or a judicial one? If legislative in character it should be left to the administrative agency, the zoning board, subject to the narrow dimensions of judicial review of such action. If judicial- or quasi-judicial it is properly one for the courts.
Generally speaking, the enactment and amendment of zoning regulations are primarily legislative rather than judicial in character. This is true because ordinarily they prescribe policy and are prospective in nature; they look to the future — the regulation of building development and uses of property in a manner to advance the public welfare (101 C. J. S., Zoning, § 1).
In Gawith v. Gage's Plumbing & Heating Co. Inc., supra, on the subject of legislative and judicial functions we concluded:
“In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.
“In applying tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer or agency which performs it, that determines its character as judicial or otherwise.” (Syl. ff 2, 3, & 4.)
The term discontinued as used in zoning ordinances in connection with the termination of nonconforming uses has generally been interpreted to be synonymous with the term abandoned (1 Anderson, American Law of Zoning, § 6.61; 101 C. J. S., Zoning, § 198; anno. 18 A. L. R. 2d 729).
The term abandonment is one well known to courts. They have traditionally dealt in many ways with the question of determining, in retrospect, whether or not an abandonment, either of vested rights or property interests, has occurred under the particular facts and circumstances. Such a determination, as was said in Gawith, “declares and enforces liabilities as they stand on present or past facts” (Syl. ¶3) and does not involve the formulation of policy normally classified as a legislative function. Such a determination is not a prospective endeavor, rather it looks back and is made on past facts, and therefore must be deemed a judicial function. The district court ruled correctly that it had jurisdiction to determine in a de novo inquiry whether there had been a voluntary discontinuance of a nonconforming use for a particular period of time so as to result in its loss. Our holding is limited to this narrow situation.
We have examined the cases cited by appellants in support of a contrary view but find they relate to the adoption or amendment of zoning regulations or the issuance or refusal to issue a special use permit and not to the enforcement of a regulation of the par ticular type here involved. The fact the zoning board might have taken the initiative by going into district court itself to invoke sanctions for alleged violation of its regulations under K. S. A. 19-2912 does not militate against our holding — the district court would still have to determine as a fact in a de novo inquiry that there had been a discontinuance or abandonment of the nonconforming use before it imposed penalty.
A proceeding for declaratory judgment where controversy exists, as here, is a proper action for the determination sought. It follows that a property owner having the right to continue a nonconforming use is entitled to enjoin enforcement of a zoning action directed against such use.
We turn now to appellants’ contention the trial court’s finding that appellees had not discontinued the nonconforming use for six months is contrary to and not supported by evidence. We may not, of course, upon appellate review overturn a finding of fact supported by substantial credible evidence. As already indicated, the term discontinued as used in zoning regulations is equivalent to the term abandoned. Although we have not considered the term in connection with nonconforming uses, our cases have consistently held that abandonment of a property interest is the voluntary or intentional release of a known right (see Chapman v. Continental Oil Co., 149 Kan. 822, 89 P. 2d 833). Other courts have applied the same definition in zoning cases, holding that abandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use (8A McQuillin, Municipal Corporations, 3d ed. [1965 Rev.], §25.192; 1 Anderson, American Law of Zoning, §6.58). Mere cessation of use does not of itself amount to abandonment although the duration of nonuse may be a factor in determining whether the nonconforming use has been abandoned (101 C. J. S., Zoning, §199).
In urging insufficiency of the evidence to support the court’s finding appellants rely largely upon the filing by Mrs. Tobin of her petition against the initial lessee in which she alleged that for a period of two years the lessee removed all equipment, quarried no rock and did nothing to operate the quarry for the mutual benefit of the parties. This suit was dismissed within three months after its filing. The crucial period is from May, 1963, to May, 1965, during which time a portable rock crusher and other equipment had been removed from the premises and there was no drilling, blasting or crushing of rock.
The evidence indicates that the modern method of quarrying is to use a portable rock crusher and transport it from site to site as needed to maintain stockpiles of crushed rock for whatever demand exists. The evidence further reveals when the initial lessee moved out it left a large stockpile of rock on the premises along with loading equipment. It also paid minimum royalty payments to Mrs. Tobin during the period as provided in the lease. Additionally, both Union and Mrs. Tobin sold small quantities of rock during the disputed period and a salesman quoted prices to various construction companies for crushed rock from the quarry until January, 1966. The property was initially purchased for a rock quarry. There was little in the evidence to suggest abandonment — to the contrary, it indicated the property has continually been held for the same purpose. The trial court’s finding may not be disturbed on appeal.
Similarly appellants complain the evidence showed an impermissible enlargement of use of the quarry after 1965. They stress the fact the quarrying business began as a one or two man operation, then in 1965 was expanded both in volume and intensity substantially beyond the initial operation.
In 8A McQuillin, Municipal Corporations, 3d ed. [1965 Rev.], § 25.210, we find this:
“It is the general rule that the employment of modern and more effective instrumentalities, not previously used, in a nonconforming business or use or in connection with a nonconforming building does not constitute a prohibited expansion or enlargement of the business, use or building. In short, an owner can modernize facilities and employ improved instrumentalities in connection with a nonconforming building or use. However, the instrumentalities must be ordinarily and reasonably adapted to make the use in question available to the owner, and, moreover, the original nature and purpose of the undertaking must remain unchanged. Thus, for example, in mining, quarrying and similar types of uses, the introduction of new, mechanized devices and equipment is not an enlargement or extension of the use, but merely a more effective method of carrying it on.”
In 101 C. J. S., Zoning, § 193, pp. 955-956, we find this elaboration:
“Generally speaking, the rule forbidding the enlargement or extension of a nonconforming use does not prevent an increase in the amount of use within the same area, so that a nonconforming use may be not only continued but also increased in volume and intensity. A nonconforming use is not limited to the precise magnitude thereof which existed at the date of the ordinance, but may be increased by natural expansion, and a nonconforming use is not unlawfully enlarged or extended although the number of employees has almost doubled. The natural growth of a busines or an increase in the amount of business done is not a change from the nonconforming use permitted by the zoning ordinances.”
Our examination of the evidence convinces us that, as found by the trial court in its well considered memorandum opinion, the use of the property remained the same as before. It underwent no fundamental change in quality. The case falls within the ambit of the foregoing rules. Like holdings in similar situations may be found at anno., 87 A. L. R. 2d 4, 19-22. The trial court did prohibit use of the premises as an asphalt plant.
Since we have concluded the judgment rendered is not vulnerable to the attacks leveled against it on direct appeal, and must be affirmed, we need not determine the additional issue raised by appellees upon cross-appeal in support of that judgment.
Judgment affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover damages for personal injuries resulting from a collision between plaintiff’s motor vehicle and one of defendant’s trains at a railroad crossing.
Plaintiff commenced the action by filing a petition setting forth his version of the conditions under which the collision occurred, alleging that such collision was due to the defendant’s negligent operation of its train, and claiming damages for medical expense, loss of work, and physical pain and suffering in a sizable sum. Defendant answered in due course denying negligence as alleged in the petition, asserting that any injuries plaintiff had received or sustained as the result of a collision were solely occasioned by his own negligence, and praying that it recover judgment for costs.
With issues joined as just related and as the trial was about to commence plaintiff requested leave to file a reply, to which we will presently make further reference. Thereafter, and on October 16, 1957, the trial proceeded and at the close of plaintiff’s evidence defendant demurred thereto on grounds such evidence (1) failed to show facts sufficient to constitute a cause of action against it and (2) showed plaintiff was guilty of contributory negligence as a matter of law. On the same date the trial court sustained the demurrer and rendered judgment in favor of defendant and against the plaintiff for costs. Two days after rendition of the judgment plaintiff filed a motion for a new trial. Five grounds of this motion were based on errors on the part of the trial court in sustaining the demurrer and rendering the judgment indicated. The sixth charges that the court erred in denying plaintiff to allege last clear chance in his reply to the defendant’s answer. The motion for a new trial was overruled by the trial court on January 10,1958. Thereafter, and on January 13, 1958, plaintiff perfected this appeal under a notice reciting that he was appealing from the ruling of the trial court denying him the right to plead the last clear chance doctrine in his reply to defendant’s answer; from the judgment made and entered against him on October 15, 1957 (actually October 16, 1957); and from the order overruling his motion for a new trial on January 10, 1958.
Before proceeding further we are required to dispose of a jurisdictional question. It is raised by a motion to dismiss, the appeal wherein the appellee challenges the jurisdiction of this court to hear the appeal because it was not timely perfected. Summarized, the grounds of such motion are that the court has no jurisdiction to hear and determine the appeal and it must be dismissed because no appeal was perfected for more than two months after the trial court’s final order sustaining appellee’s demurrer to appellant’s evidence and the rendition of the judgment, that the motion for a new trial was not necessary to preserve or protect the appellant’s right of appeal therefrom, and that the filing of such motion did not, nor does riot, extend the time for appeal as prescribed by G. S. 1949, 60-3309.
Inasmuch as it is clear, in fact conceded, no attempt was made to appeal from the demurrer to the evidence and the judgment rendered pursuant to that ruling within two months as required by G. S. 1949, 60-3309, it appears the controlling question raised by the motion now under consideration is whether the filing by appellant of his motion for a new trial extended the time for appeal under G. S. 1957 Supp., 60-3314a, providing that when an appeal has been timely perfected the fact that some ruling of which the appealing party complains was made more than two months before he perfected his appeal shall not prevent a review of that ruling. See Allbritten v. National Acceptance Co., 183 Kan. 5, 325 P. 2d 40, which holds that within the exception provided in 60-3314a, an appeal to the Supreme Court shall be perfected within two months from the date of the judgment or order from which the appeal is’ taken.
In decisions dealing with the force and effect to be given 60-3314a, supra, this court has consistently held that its provisions are not to be construed as contemplating that- the filing of an unnecessary and improper motion for a new trial and then appealing from the order overruling that motion extends the time in which appeals from rulings and judgments of the character here involved must be taken under the requirements of 60-3309, supra. See, e. g., Turner v. Hartman, 178 Kan. 178, 179, 284 P. 2d 607; Colyer v. Wood, 178 Kan. 5, 7, 283 P. 2d 398; Willey v. Gas Service Co., 177 Kan. 615, 617; 281 P. 2d 1092. As applied to this case these decisions, when analyzed, simply mean that the record presented in this court on appellate review must disclose that at least one of the grounds of appellant’s motion for a new trial was necessary, proper and essential to a review of the judgment rendered pursuant to the sustaining of the demurrer to his evidence. We therefore turn to that question.
At the outset, noting that under our decisions (Turner v. Hartman, supra; Stinson v. McConnell, 160 Kan. 1, 3, 159 P. 2d 406; Robbins v. Kansas City, 160 Kan. 425, 163 P. 2d 630) a demurrer to the evidence and a judgment rendered pursuant thereto present only questions of law and rulings therfeon give no occasion for the filing of a motion for a new trial; and again pointing out, for purposes of emphasis, that the first five grounds of the involved motion for a new trial relate entirely to such a ruling and judgment, it can be stated that none of the five mentioned grounds is necessarily or properly included in the instant motion for a new trial.
Thus we come to the sixth and last ground set forth in the motion. For present purposes, and without deciding the point, it may be assumed that such ground would be necessary and proper to a review of the question therein stated if the abstracts of the record disclosed such a ruling. The difficulty from appellant’s standpoint is that they not only fail to disclose any such ruling was made by the trial court but on the contrary affirmatively establish no such ruling was made by that tribunal at the time a request was made for the filing of the reply.
Turning to the journal entry of judgment, which we pause to point out is signed and approved by attorneys for appellant and appellee and is a part of the record submitted both from the standpoint of the abstract and the notice of appeal filed with the clerk, we find.the following paragraph which reads:
“Thereupon, plaintiff requested leave to -file a reply in the case, which motion was sustained by the Court, and thereupon, the Court, after hearing the argument of the parties, overruled defendant’s motion for judgment on the opening statement and defendant’s motion for judgment on the pleadings.” (Emphasis supplied.)
In die face of the foregoing indisputable language in the journal entry and, we may add, notwithstanding some gratuitous statements made by the parties in their briefs to the contrary, we are forced to conclude the journal entry signed by the trial court and approved by attorneys for all parties speaks the truth and therefore establishes that appellant’s motion for leave to file a reply was granted by that tribunal in the manner and form requested by appellant.
Founded on the principle, recognized by statute (G. S. 1949, 60-3010) and its decisions (see Christisen v. Bartlett, 73 Kan. 404, 85 Pac. 594), that the place for correcting judgments is in the court which rendered them, this court is committed to the rule, in both civil and criminal cases, that it cannot determine the terms of a judgment on unsupported or controverted claims of the parties to the action but must assume the journal entry correctly reflects the judgment rendered and the facts therein recited notwithstanding a claim of one of the parties to the contrary. See State v. Hess 178 Kan. 452, 456, 289 P. 2d 759; City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849; State v. Smith, 171 Kan. 722, 725, 237 P. 2d 388; In re Estate of Demoret, 169 Kan. 171, 180, 218 P. 2d 225.
What has been heretofore said and held means that in the face of the record presented the appellant filed an unnecessary and improper motion for a new trial; that his appeal from the overruling of that motion did not extend his time for appeal from the ruling sustaining the demurrer to his evidence or the judgment rendered pursuant thereto; that the appeal- from those matters comes too late; that the appeal from the order overruling his motion for a new trial presents no trial errors which are subject to appellate review; that the court is without jurisdiction to consider the appeal; and that such appeal must be dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
The action was one of mandamus to compel the Prince Hall Grand Lodge, Free and Accepted Masons of Kansas and Its Jurisdiction, to set aside orders of suspension entered against the eleven plaintiffs and to reinstate them to membership. The district court issued an alternative writ of mandamus, which was discharged following a hearing of defendant’s supplemental motion to quash. The plaintiffs have appealed.
Prince Hall Grand Lodge is a fraternal organization of Masons. The plaintiffs were members of the Grand Lodge and of various local lodges affiliated with it.
On April 12, 1957, the plaintiffs commenced an action against the Grand Lodge and certain of its officers in the district court of Wyandotte County, alleging misconduct, mismanagement and misappropriation of Grand Lodge funds. The prayer was for an injunction, the appointment of a receiver, an accounting, and other relief. Issues were joined and the case proceeded to trial. At the close of plaintiffs’ evidence, the defendent demurred upon the ground that plaintiffs had no legal right to maintain the action inasmuch as they had not exhausted their remedies within the Grand Lodge. In support of its demurrer, the defendant cited an amendment to the constitution of the Grand Lodge adopted in 1956, which reads as follows:
“Article XV. No subordinate lodge of this jurisdiction, nor any member thereof, shall file any action or resort to the civil courts to establish any right, seek or obtain any redress or adjudicate any grievance or question arising out of membership of the lodge or Grand Lodge, or out of it or his connection with the same until it or he shall have first completely exhausted the remedy within the lodge or the Grand Lodge and in all manner as provided by the laws and regulations of the Grand Lodge.”
Defendant’s demurrer was overruled, and the court entered judgment restraining and permanently enjoining the Grand Secretary from comingling Grand Lodge funds with his personal funds and from using Grand Lodge funds for his personal expenses, and further, enjoined and restrained the officers of the Grand Lodge from making transfers from two special funds to any other fund for the purpose of defraying Grand Lodge expenses. Plaintiffs’ prayer for the appointment of a receiver and for an accounting was denied.
Thereafter, on May 21, 1957, formal charges of Masonic misconduct were preferred against the plaintiffs, who were directed to appear before the Appeals and Grievances Committee of the Grand Lodge for trial at its next regular communication to be held at Hutchinson, Kansas, on June 5, 1957, at 3:00 P. M. The principal charge was that the plaintiffs had commenced an action in the district court of Wyandotte County on April 12, 1957, in violation of Art. XV of the constitution of the Grand Lodge without first exhausting their remedies within the organization.
On June 5, 1957, plaintiffs and their counsel appeared before the Appeals and Grievances Committee and objected to being tried by the Grand Lodge, which objection was received by the committee and overruled. The committee heard evidence from both sides, considered all arguments and objections, found the plaintiffs guilty of violating Art. XV and recommended their suspension. At its regular session on June 7, 1957, the report of the committee was presented to the Grand Lodge, which voted to adopt the committee’s recommendation. Accordingly, plaintiffs were suspended from membership in the Grand Lodge and from their respective local lodges.
On August 12, 1957, the action out of which this appeal arises was commenced by the plaintiffs filing a motion for a writ of mandamus in which it was alleged that the overruling of the defendant’s demurrer in the action of April 12,1957, was equivalent to a finding that plaintiffs had not violated Art. XV of the constitution of the Grand Lodge. It was further alleged the charges against plaintiffs were void for the reason they were unsigned in contravention of Masonic law; that two members of the Appeals and Grievances Committee served as both prosecutor and judge; that such com mittee did not include in its report to the Grand Lodge the defenses and objections interposed by the plaintiffs before that committee, and that the method of balloting used by the Grand Lodge when it adopted the recommendations of the committee was improper. It was further alleged that as a result of their suspension plaintiffs were deprived of property rights, in that each of them had paid dues for a period of years and were now prevented from enjoying the rights and privileges of membership, including the rights to benefits from the widows and orphans fund and the burial fund.
The district court, in sustaining the defendant’s supplemental motion to quash the alternative writ of mandamus, found that it was without jurisdiction to reinstate the plaintiffs.
Plaintiffs concede this court has uniformly held that benevolent or fraternal associations are purely voluntary organizations of individuals for the accomplishment of objects the members have mutually agreed upon and that courts will not interfere and take jurisdiction of questions of policy or discipline, but will leave such questions to be settled in the manner prescribed by the regulations of the order, unless it appears such members have exhausted the remedies available to them within the organization to which they belong (Reno Lodge v. Grand Lodge, 54 Kan. 73, 37 Pac. 1003; Burton v. Dickson, 104 Kan. 594, 180 Pac. 216; Lamb v. Ehart, 128 Kan. 654, 278 Pac. 751; Porth v. Local Union 201, 171 Kan. 177, 231 P. 2d 252; Zeidler v. Knights of Columbus, 172 Kan. 557, 558, 241 P. 2d 761). In Reno Lodge v. Grand Lodge, supra, it was held:
“Courts will not undertake to direct or control the internal policy of such societies, nor to decide questions relating to the discipline of its members, but will leave the society free to carry out any lawful purposes in its own way, and in accordance with its own rules and regulations.” (Syl. ¶ 2.)
In determining whether a benevolent or fraternal organization has fairly exercised its disciplinary powers, close adherence to the form of legal procedure is not required. It is sufficient if the accused is accorded those essentials which make for justice, rather than for form (Wichita Council v. Security Benefit Ass'n, 138 Kan. 841, 850, 28 P. 2d 976; Harris v. Aiken, 76 Kan. 516, 521, 92 Pac. 537, 123 Am. S. R. 149).
The established rule which organizations must adhere to in severing relations with an offending member is set forth in Harris v. Aiken, supra, follows:
. . Notwithstanding property rights may be involved, an association may sever relations with an offending member upon these conditions: That he is charged with conduct for which expulsion is a proper penalty if he be guilty; that he has reasonable notice of the charge and opportunity to defend himself against it; that he is given a fair hearing; that a decision is rendered against him in good faith; and that he is not denied the benefit of any special rule that may exist relating to the matter. . . (Emphasis supplied.) (1. c. 520.)
Where those requirements are not met, courts will intervene to compel reinstatement or other relief if it affirmatively appears the accused has exhausted the remedy available to him within the order (Reno Lodge v. Grand Lodge, supra; Tucker v. Kirkpatrick, 106 Kan. 881, 189 Pac. 946; Forth v. Local Union 201, supra; Zeidler v. Knights of Columbus, supra).
Where the accused has been given opportunity to defend himself and the proceedings have been conducted fairly and in good faith, no grounds exist for questioning their regularity or sufficiency. The question of whether the conduct of the plaintiffs in the case at bar was such as to warrant their suspension from the Grand Lodge is not before us. That issue is a matter of internal government and discipline of the order and is for its final determination (Reno Lodge v. Grand Lodge, supra; Burton v. Dickson, supra).
Contrary to plaintiffs’ contentions, the record clearly indicates that the proceedings before the Grand Lodge complied fully with the rule set forth in Harris v. Aiken, supra. Plaintiffs were charged with, among other things, a violation of Art. XV of the constitution and by-laws of the Grand Lodge and were tried in conformity with the provisions of Art. VI, Section 1, Par. 3, which reads:
"It shall have the power to hear and adjudicate and determine all cases concerning its members, members of subordinate lodges, subordinate lodges and the officers thereof, including controversies between lodges, members thereof and any and all grievances; it may assign the limits of each lodge under its Jurisdiction and its decisions, judgments and interpretations of all matters of controversy or grievance upon any and all questions whether brought before it by appeal or otherwise, shall be binding, conclusive and final as to all and on all concerned.”
A statement of the charges was furnished each plaintiff; they appeared before the Appeals and Grievances Committee represented by counsel, which heard evidence from both sides, and they submitted objections to the committee which were accepted and considered. In due time the committee made its report and recom mendation to die Grand Lodge at which time plaintiffs and their counsel were afforded an opportunity to and did present their objections. Thereafter, by a vote of 136 to 56, the Grand Lodge accepted the report of the committee, and pursuant to Art. X, which makes violation of the constitution and by-laws of the Grand Lodge an offense punishable by reprimand, suspension or expulsion, ordered the plaintiffs suspended.
Plaintiffs contend the order of the district court overruling the defendant’s demurrer to their evidence in the trial of the action filed April 12, 1957, was in effect a judicial finding they had not violated Art. XV without first exhausting their remedies within the organization; consequently, the Grand Lodge was without jurisdiction to try them and they were illegally suspended. The point is not well taken. The court’s ruling upon the demurrer was based upon its opinion that plaintiffs’ evidence showed the officers of the Grand Lodge violated pecuniary or property rights of the plaintiffs which entitled them to injunctive relief. The correctness of that ruling is not before us, but in any event it did not determine whether the plaintiffs had violated Art. XV nor did it preclude the officers of the Grand Lodge from charging and trying the plaintiffs for a violation thereof pursuant to Art. VI, Section 1, Par. 3. Moreover, it is conceded by all parties that the action of April 12, 1957, was filed, and that the plaintiffs did not present the matters alleged in their petition at a regular meeting of the Grand Lodge before they filed the action. The result is, the commencement of the action and plaintiffs’ failure to first exhaust their remedies in the Grand Lodge clearly violated Art. XV. The truth of their complaint was not a justification for the commencement of the action. If they desired an investigation they should have followed the provisions of Art. XV, not violated them. In Moore v. National Council, 65 Kan. 452, 70 Pac. 352, this court said:
“. . . The ultimate fact to be tried was whether plaintiff had violated the rules of the order in his effort to rectify the abuses which he claimed had been committed. The by-laws provide abundant means by which he might have presented and had investigated the charges which he made, other than those he used. Instead of pursuing these, he chose to pursue others which were obnoxious to the by-laws of the order. We think the executive committee had a clear right to inquire into these unauthorized proceedings. It was not investigating the truth or falsity of the charges made by plaintiff in error. Their truth was not a justification for him. If he desired an investigation, he should have followed the law, not nullified it.” (l. c. 457, 458.)
Plaintiffs claim the charges against them were void because they were not properly signed. The contention lacks merit. As indicated, each of the plaintiffs appeared before the committee, and it was immaterial what kind of notice they had, whether it was signed, or whether they had any notice at all. In no possible way were their substantial rights affected by such an omission (Moore v. National Council, supra; Harris v. Aiken, supra). See, also, Morris v. School District, 139 Kan. 268, 279, 30 P. 2d 1094, and Million v. Board of Education, 181 Kan. 230, 236, 310 P. 2d 917.
Plaintiffs next contend they exhausted their remedies within the organization when they appeared before the Grand Lodge for trial on June 5, 1957, and being found guilty by that body, no right of appeal within the organization exists, therefore courts are available to compel their reinstatement. The point is not well taken. The trial was conducted pursuant to the constitutional provisions of the Grand Lodge to which the plaintiffs, by becoming members thereof, fully assented, and as such, fall within the principle announced in Reno Lodge v. Grand Lodge, supra, and Zeidler v. Knights of Columbus, supra.
Plaintiffs lastly contend the proceedings were void because two members of the trial committee served as both prosecutor and judge. The contention likewise is without merit. In Harris v. Aiken, supra, this court said:
“. . . There is nothing in the record tending to impugn the good faith of any member of the board, and the fact that three of them in pursuance of their duties and acting in the interest of the exchange started the investigation which resulted in the hearing and condemnation of Harris did not incapacitate them from sitting in judgment upon him. It is held to be competent for a society to delegate to a committee the authority to expel a member, making such action final. . . .” (1. c. 521.)
See, also, Moore v. National Council, supra, p. 457, and Morris v. School District, supra, p. 279.
No attempt is here made to impugn the good faith of the two members of the Appeals and Grievances Committee. The fact they were accusers did not automatically disqualify them nor tend to impugn the fairness of the proceedings. Moreover, the report of the committee was not binding upon the Grand Lodge; it was free to adopt or reject it. The Grand Lodge, not the committee, ultimately tried the plaintiffs. In making their objections to the Grand Lodge, plaintiffs did not omit the fact that two members of the committee were their accusers, but despite that fact, the vote of the Grand Lodge was overwhelming for their suspension.
We have reviewed the record and find no error. No substantial grounds are alleged which challenge the regularity or sufficiency of the proceedings resulting in plaintiffs’ suspension. The district court was correct in sustaining the motion to quash.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Peice, J.:
This was an action to recover for personal injuries sustained by plaintiff while operating an alleged defective hay-baler owned by defendants.
On defendants’ motion a mistrial was declared. Defendants have appealed from certain adverse rulings hereafter mentioned.
Reference to allegations of the pleadings need not be made. Issues were joined and the action proceeded to trial before a jury. At the conclusion of plaintiff’s evidence defendants demurred thereto on the ground it failed to establish a partnership between defendants; that it failed to prove a cause of action in favor of plaintiff and against defendants; that it showed, as a matter of law, that plaintiff was guilty of contributory negligence, and that it showed plaintiff to have assumed the risk. This demurrer was overruled. Defendants then proceeded to introduce their evidence, and during the cross-examination of their first witness the trial court, on defendants’ motion, because of misconduct by plaintiff’s counsel, declared a mistrial and discharged the jury.
Defendants appealed from orders overruling their demurrer to the petition, their motion to quash the service of summons, and their demurrer to plaintiff’s evidence, and specify each of such rulings as error.
Plaintiff filed a motion to dismiss the appeal, contending that as a mistrial was granted all that transpired at the trial was a nullity and that defendants, having been granted a mistrial, cannot now question the sufficiency of plaintiff’s evidence to make out a case. This court denied the motion to dismiss “with right to renew at the hearing of the case on its merits.”
Plaintiff has renewed his motion.
At this point it should be mentioned that defendants have in effect abandoned their appeal from the rulings on their demurrer to the petition and the motion to quash the service of summons.
The question presented, therefore, is this — under the facts, procedure and circumstances related, are defendants entitled to appeal from the order overruling their demurrer to plaintiff’s evidence?
Counsel have cited no decisions of this or any other court bearing directly on the question, and our limited research has failed to disclose any case specifically in point.
Under G. S. 1949, 60-3302, an order that sustains or overrules a demurrer is appealable.
G. S. 1949, 60-2914, provides that a jury may be discharged for any one of several reasons, among them being the inability to agree on a verdict. The next section, 60-2915, provides that in all cases where a jury is discharged during the trial or after the cause is submitted to it, the case may be tried again immediately or at a future time, as the court may direct.
The right of a defendant to appeal from an order overruling his demurrer to the plaintiff’s evidence in instances where the jury has failed to agree has been recognized and upheld many times. We mention but a few of our decisions — Israel v. Lawrence, 126 Kan. 586, 270 Pac. 602; Coulter v. Sharp, 145 Kan. 28, 64 P. 2d 564; Corr v. Continental Oil Co., 145 Kan. 78, 64 P. 2d 30; Carver v. Farmers & Bankers Broadcasting Corp., 162 Kan. 663, 179 P. 2d 195, and Gatz v. Church, 180 Kan. 15, 299 P. 2d 81.
G. S. 1949, 60-3001, defines a “new trial” as follows:
“A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court. . . (Our emphasis.)
The right of a defendant to appeal from an order overruling his demurrer to plaintiff’s evidence, even though defendant sought and obtained a new trial, also has been recognized and upheld. (Henderson v. National Mutual Cas. Co., 166 Kan. 576, 203 P. 2d 250, and Minear v. Benefit Association of Railway Employees, 169 Kan. 199, 200, 218 P. 2d 244.)
In the Henderson case, at the close of plaintiffs’ evidence, defendants’ demurrer was overruled. Defendants submitted no evidence. The jury returned a verdict for plaintiffs and answered special questions. Defendants filed motions for a new trial, for judgment notwithstanding the verdict, for judgment on answers to certain special questions, and to set aside answers to various special questions. The court overruled the motions for judgment notwithstanding the verdict and for judgment on special findings, sustained the motion to set aside the answers to some of the special questions, and sustained defendants’ motion for a new trial for the reason that the answers to some of the special questions were inconsistent with •each other and with the general verdict. Notwithstanding their motion for a new trial was allowed, defendants appealed from the order overruling their demurrer to plaintiffs’ evidence. In disposing of plaintiffs’ contention that defendants were not entitled to be heard on their appeal from the order overruling their demurrer to plaintiffs’ evidence, and in which contention reliance was had on Lewis v. Peoples State Bank, 145 Kan. 844, 67 P. 2d 541, and Foust v. Mills, 128 Kan. 471, 278 Pac. 745, this court said:
“There is some support for plaintiffs’ position in those opinions. We have reexamined the question, however. A demurrer to the evidence is made an appealable order by the provisions of G. S. 1935, 60-3302. (Citing.) Many times since then we have held that a demurrer to the evidence was an appeal-able order. For instance, we have held that a defendant may taire an appeal from an order of a trial court overruling a demurrer to the evidence when the trial has ended in the jury failing to agree, (citing) or when the trial has proceeded and at the close of the evidence the plaintiff has dismissed the action without prejudice. (Citing.)
“If the record be such that the plaintiffs are not able to sustain the burden of proof it would seem the litigation should be ended without putting the parties to the expense of another trial, hence we have concluded that under circumstances such as we have here we will consider the correctness of the order overruling the demurrer to the evidence.” (p. 578.)
As stated in the Henderson case, the right of a defendant to appeal from an order overruling his demurrer to plaintiff’s evidence where, after the close of all the evidence, plaintiff’s motion to dismiss the action without prejudice has been sustained, also has been recognized and upheld. (Kotwitz v. Gridley Motor Co., 148 Kan. 676, 84 P. 2d 903, and Lane v. Atchison, T. & S. F. Rly. Co., 151 Kan. 113, 98 P. 2d 403.)
On first impression it may be conceded the analogies to be drawn from the rules heretofore stated would appear to compel the conclusion that defendants are entitled to a review of the order overruling their demurrer to plaintiff’s evidence in this case.
The matter is somewhat confusing, to say the least, but, nevertheless, we have concluded that under the facts and procedure presented defendants are not entitled to be heard, and that the appeal must be dismissed.
■ In each of the three types of cases referred to, that is, where the jury failed to agree, where defendant secured a new trial, and where, after the close of all of the evidence, plaintiff’s motion to dismiss without prejudice was sustained — there had been a full trial insofar as the presentation of evidence is concerned. In the case before us there was in fact no trial at all. There is a distinction between a “mistrial” and a “new trial.” A mistrial results where, before a trial is completed, the trial court concludes that there is some érror or irregularity that prevents a proper judgment being rendered, whereas a new trial contemplates that a case has been tried and judgment rendered, and subsequently set aside and a new trial granted. In other words, a mistrial is a nugatory trial and is equivalent to no trial, whereas a new trial recognizes and proceeds upon the assumption there has been a complete trial which, for sufficient reasons, has been set aside. (39 Am. Jur., New Trial § 2, p. 34; 66 C. J. S., New Trial, § 1, c., p. 65; 58 C. J. S., Mistrial, pp. 833, 834, and Darling v. Railway Co., 76 Kan. 893, 896, 93 Pac. 612.)
There would appear to be a very practical reason why, under the facts and procedure here presented, defendants are not entitled to a review of the order overruling their demurrer to plaintiff’s evidence. They did not stand on their demurrer — but proceeded to introduce their evidence, and it was during the cross-examination of their first witness that a mistrial was declared. As a practical matter, assuming that plaintiff’s evidence was insufficient to withstand the demurrer and that it should have been sustained — defendants, in their evidence, might well have supplied the deficiency, in which event any error in the ruling would have been cured and become immaterial. (City of Garnett v. Dowis, 144 Kan. 484, 61 P. 2d 913; Henks v. Panning, 175 Kan. 424 [Syl. 3], 264 P. 2d 483; Coleman v. Patti Construction Co., 182 Kan. 53 [Syl. 4], 318 P. 2d 1028.) Despite the fact this indulges somewhat in “speculation” as to what defendants’ evidence might have shown, nevertheless, the mentioned rule is well established and under the peculiar and unusual situation presented is entitled to be considered. In our opinion the statutory (G. S. 1949, 60-3302) right to appeal from a ruling on a demurrer as recognized and allowed in the mentioned decisions under the facts of those cases, simply has no application to the facts before us.
We recognize fully the predicament in which defendants found themselves. In view of what transpired they were compelled to move for a mistrial, and their position now is that if their demurrer to plaintiff’s evidence was good the litigation should be ended without putting them to the expense and time of another trial. Nevertheless, we believe that under the facts, procedure and circumstances related, our conclusion is based upon the sounder reasoning, and that the appeal must be dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was a divorce case in which plaintiff-appellee (wife) was granted a divorce for the fault of defendant-appellant (husband). The sole issue presented on appeal is whether the trial court abused its discretion in its division of the property owned by the parties. Counsel for defendant recognized that this court has held many times that when a divorce is granted a wife by reason of the fault of the husband an allowance of alimony and division of property made by the trial court under the provisions of G. S. 1949, 60-1511 rest in the court’s discretion and such will not be set aside or disturbed on appeal, unless it clearly appears from the record that the court failed to exercise or abused its discretion. (Matlock v. Matlock, 182 Kan. 631, 323 P. 2d 646; Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167; Ferry v. Perry, 176 Kan. 1, 268 P. 2d 938; Mathey v. Mathey, 175 Kan. 446, 264 P. 2d 1058; Reedy v. Reedy, 175 Kan. 438, 264 P. 2d 913; Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A.L.R. 2d 102.)
The facts pertinent to the issue involved are: The parties were married August 7, 1952. It was the second marriage for each. At the time of the marriage plaintiff had two sons, ages eleven and fourteen, by a previous marriage, and defendant one adopted son, age nine. At that time defendant owned an equity in a small house to which the parties moved and where they lived for a short time. The equity was sold and during their marriage the parties acquired, by trade or purchase, a home at Peck and an equity in a rooming house at Wichita. During the marriage relationship plaintiff performed her household duties and particularly assisted defendant’s retarded son in his education. Defendant was a toolmaker earning approximately $100 a week. Both parties were and are in poor health.
At the time of trial the court found the equity in the Wichita property to be $1,250 to $1,750 and the value of the Peck property to be as much or more. By way of division of the property the trial court set aside the equity in the Wichita property to the plaintiff, and the Peck property, clear of encumbrance, to the defendant. Each was given title to an automobile and certain household goods. The defendant was given certain government bonds and the balance of the bank account.
No further comment on the evidence is necessary. We are unable to find anything in the record which would justify holding that the trial court abused its discretion. The judgment is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover under the Federal Employers’ Liability Act for personal injuries alleged to have been sustained by plaintiff as a result of defendant’s negligence. From an order of the trial court sustaining plaintiff’s motion to strike defendant’s second amended answer for the reason that it failed to state a defense under the Act, defendant appeals.
This case appears for the second time. When brought here before (White v. Thompson, 181 Kan. 485, 312 P. 2d 612), defendant appealed from an order of the lower court sustaining plaintiff’s motion to strike the third, fourth, fifth, sixth, seventh and eighth paragraphs of defendant’s amended answer. We affirmed the judgment of the trial court and there fully reviewed and analyzed the cases relied on by defendant, and held inter alia:
“Misrepresentations by an employee in an application for employment with an interstate carrier do not render the contract of employment void as to terminate tire relation of master and servant and preclude recovery under the Federal Employers’ Liability Act for negligent injuries inflicted upon him where he was found to be in good health and acceptable physical condition at the time of his physical examination and the misrepresentations had no causal relation to his fitness to perform the duties required of him and to the injuries he sustained, notwithstanding they may render the contract voidable and form the basis for its rescission by his dismissal.” [Syl. 3.] [Emphasis supplied.]
“A defendant interstate carrier’s amended answer purporting to allege an affirmative defense sufficient in law to preclude recovery by a plaintiff employee in an action under the Federal Employers’ Liability Act for negligent injuries inflicted upon him, which in effect alleged that the employee concealed in his application for employment and from the medical examiner five injuries he received over a seven-year period in previous employment, and that had the defendant known of such injuries it would not have employed him as physically qualified because of his obvious proneness to have accidents, considered and held: That the trial court did not err in sustaining plaintiff’s motion to strike the allegations of the affirmative defense, fully set forth in the opinion, as they were insufficient in law to state a defense since it was not alleged that the previous injuries had causal relation to his physical fitness to perform the duties of his employment and to the injuries he sustained, and that the defendant remained unaware of the misrepresentations prior to the injuries.” [Syl. 5.] [Emphasis supplied.]
When the case was remanded to the trial court, defendant was permitted to file a second amended answer. For all purposes, paragraphs one through six were identical with those of the stricken amended answer. Paragraphs seven and eight complied in part with the requisites of White v. Thompson, supra, by alleging that defendant remained unaware of the falsity of the representations made by plaintiff at the time of employment until after the injuries in question were sustained. However, at no place in the second amended answer stricken by the trial court was there any allegation that plaintiff's previous injuries had any causal relation to those received during his employment by defendant. Suffice it to say that, defendants second amended answer having failed to allege facts sufficient to constitute a defense under the aforementioned authority, the trial court did not err in striking the second amended answer from the files and reinstating paragraphs one and two of defendant’s amended answer. Our former opinion of White v. Thompson, supra, is controlling and adhered to and the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Price, J.:
William H. and Emma D. Schulz, husband and wife, lived in Lawrence. On July 16,1955, William died intestate. Later, on a date not shown, Emma died testate. Their respective estates are being administered in the probate court of Douglas County.
On a date not shown, the administratrix of William’s estate filed an action in the district court of Douglas County against the executor of Emma’s will.
In order properly to present the issue the petition must be shown in full. It reads:
“Plaintiff for her cause of action against the above named defendant alleges and shows to the Court: That she is the duly appointed, qualified and acting administratrix de bonis non of the estate of William H. Schulz, deceased. That the above named defendant, John W. Brand, is the duly appointed, qualified and acting executor of the will and estate of Emma D. Schulz, deceased. That William H. Schulz died upon the 16th day of July, 1955, and at the time of his death he had rented from the First National Bank of Lawrence, Lawrence, Kansas, a safe deposit box, in which he had in cash the sum of $25,000.00. That Emma D. Schulz survived her husband, William H. Schulz, and shortly after his death she removed from said safe deposit box the sum of $9,000.00 and took the same to the residence that she and her husband, William H. Schulz, occupied at 912 Tennessee Street, Lawrence, Kansas, where the same was found hy the plaintiff in this action and delivered by her to the defendant, John W. Brand, with the understanding and agreement that the same should be placed in tbe First National Bank of Lawrence, Lawrence, Kansas, until it had been definitely determined that it was the property of William H. Schulz, her father. That said Emma D. Schulz also removed from said bank box money in excess of $6,000.00, which the plaintiff in this action has been unable to find or locate; and it was further agreed between both the plaintiff and defendant in this action, in their representative capacities, that all money in the First National Bank of Lawrence, Lawrence, Kansas, together with the amount of money found, as hereinbefore stated, should remain in the possession and under the control of the First National Bank of Lawrence, Lawrence, Kansas, until it had been determined whether said money belonged to the "estate of William H. Schulz or the estate of Emma D. Schulz.
“Plaintiff further alleges and shows to the Court that all of said money that was in said safe deposit box hereinbefore referred to and that was delivered to the First National Bank of Lawrence, Lawrence, Kansas, was the money and property of her father, William H. Schulz, deceased. That the defendant in this action has refused to authorize the First National Bank of Lawrence, Lawrence, Kansas, to deliver the money hereinbefore referred to to the plaintiff in this action, and the defendant as executor of the will and estate of Emma D. Schulz, has refused to deliver the money herein referred to to the plaintiff in this action as administratrix de bonis non of the estate of William H. Schulz, deceased.
“Wherefore, Plaintiff prays for a judgment against the defendant for the sum of $25,000.00 and for an order directing the defendant, John W. Brand, and the First National Bank of Lawrence, Lawrence, Kansas, to deliver to the plaintiff in this action all money that was delivered to said bank, as here-inbefore set out, and all money in the safe deposit box which was rented by William H. Schulz, and for such other and further relief as the Court may deem just and equitable.”
Defendant executor filed a demurrer on the grounds that (1) the petition showed on its face that the court had no jurisdiction of the person of defendant or of the subject of the action, and (2) that it did not state facts sufficient to constitute a cause of action against defendant and in favor of plaintiff.
This demurrer was sustained as to the first ground thereof — that is, that the court lacked jurisdiction of the person of defendant executor and of the subject of the action.
Plaintiff administratrix has appealed from that ruling.
The position of the bank which, we are advised, also was joined as a defendant, is not made clear, but, in any event, it is not a party to this appeal.
The only question in this case is whether the action was properly filed in the district court, or whether it is a matter over which the probate court had exclusive original jurisdiction.
Briefly stated, the contentions of the parties are substantially as follow:
Plaintiff administratrix contends that inasmuch as the'money in question has never been a part of Emma’s estate, and is merely being held by the bank until its ownership can be determined, the action is not one to obtain something out of her estate, but rather, is an action to bring something into William’s estate — therefore it was properly brought in the district court.
Defendant executor contends that notwithstanding the fact the action seeks to bring something into. William’s estate, it nevertheless seeks to take something out of Emma’s estate, and, her estate being in the process of administration, the probate court has exclusive original jurisdiction of the matter — therefore the action should have been filed in the form of a claim against her estate in that court.
The rule is well established that, generally speaking, when the purpose of an action or claim is to get something out of an estate of a decedent the probate court has exclusive original jurisdiction of the matter, and the action or claim must be filed in that court. (In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879; Gebers v. Marquart, 166 Kan. 604, 608, 203 P. 2d 125; Rowe v. Childers, 169 Kan. 616, 219 P. 2d 1066; In re Estate of Weaver, 175 Kan. 284, 287, 262 P. 2d 818.)
The rule is equally well established that, generally speaking, when the purpose of an action or claim is to bring something into an estate of a decedent — that is, when an estate has a claim which its personal representative is attempting to enforce — the action is to be filed in the district court or some other court of competent jurisdiction. (In re Estate of Thompson, supra; In re Estate of Weaver, supra; Coffey v. Shrope, 180 Kan. 621, 306 P. 2d 164.)
The latter rule is of course subject to the following qualification and exception, and its application to. the question before us is readily apparent: When one estate seeks to recover from another estate, that is, attempts to get something out of it — the action or claim must be filed in the probate court notwithstanding that the successful enforcement thereof results in bringing something into the claimant estate — the reason being that the action or claim seeks to get something out of defendant estate.
From the written memorandum filed when this demurrer was sustained it is clear the trial court had the foregoing rules and principles well in mind and based its ruling on the proposition that, essentially, the action seeks to take something out of Emma’s estate — therefore the district court had no jurisdiction of the person of defendant executor or the subject of the action.
There being no uncertainty as to the rules of law applicable to matters of this nature, the proposition really narrows down to the question whether the trial court’s analysis of the allegations of the petition was correct. That is to say — if the action seeks to recover something from Emma’s estate the demurrer was properly sustained. Irrespective whether it be considered as an action to bring something into William’s estate — if it does not seek to recover something from Emma’s estate the district court had jurisdiction, in which event the demurrer was erroneously sustained.
Although, due to the peculiar and unusual facts and circumstances alleged, it may be conceded the question is a "close” one, we are of the opinion the trial court erroneously concluded that the action is one to recover from Emma’s estate.
The allegations of the petition disclose that following William’s death Emma removed $9,000 from his safety deposit box and took the same to their home where it was later found by plaintiff admin-istratrix who then delivered it to defendant executor with the understanding and agreement that it should be placed in the bank until definitely determined whether it was the property of William; that Emma also removed from the safety deposit box money in excess of $6,000 which plaintiff administratrix has been unable to find, and that it was further agreed between plaintiff administratrix and defendant executor that all money in the bank, together with that which had been found, should remain in the possession and control of the bank until it had been determined to which estate it actually belonged. Then follow allegations to the effect that all money that was in the safety deposit box was the property of William; that defendant executor has refused to authorize the bank to deliver it to plaintiff administratrix, and that defendant executor has refused to deliver the money in question to plaintiff administratrix.
In other words, we believe that a reasonable construction of the petition is that it seeks to enforce the agreement between the two personal representatives that the money should be held by the bank until ownership thereof is determined. The action is not for enforcement of any agreement or contract made by Emma. Plaintiff administratrix is not asserting any claim as an heir of Emma or under her will. In the final analysis, the action is really one to enforce the agreement between two personal representatives to maintain the status qua until ownership of the money is determined. It is true the answer to that question will have the practical effect of enhancing one of the estates and decreasing the other, but we think it may not be said that, within the meaning of the rule heretofore mentioned, the allegations of this petition are to be construed as an action to get something out of the estate of Emma so as to lodge the exclusive original jurisdiction for the enforcement thereof in the probate court.
It follows, therefore, that the demurrer on the ground the district court had no jurisdiction of the person of defendant executor or of the subject of the action, was erroneously sustained. The basis of our ruling is not that the action is one to bring something into William’s estate and therefore the district court has jurisdiction — but rather, that it is not one to get something out of Emma’s estate.
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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 of Atchison County denying petitioner a writ of habeas corpus. The facts required to insure a proper understanding of the appellate issues presented will be stated briefly.
Louis James Kelly was charged by formal complaint with the offense of burglary in the second degree and a warrant was issued for his arrest. After his apprehension, and on September 15, 1957, he was brought before the judge of the city court of Atchison. Upon his failure to give appearance bond that magistrate committed Kelly to jail under a written order, directed to the marshal of his court and to the respondent, the pertinent portions of which read:
“You Are Therefore Commanded to take and commit said defendant, Louis James Kelly to the county jail of Atchison County, Kansas; there to remain until-the date of his preliminary Hearing and until such other and further time as said Court shall direct; and to deliver a duplicate original of this Order of Commitment to the jailer of said jail.” (Emphasis supplied.)
From this point on the record presents a confusing, as well as a conflicting, factual picture. For that reason, omitting many matters which we regard as immaterial to the issues, subsequent reference to the facts will be based on our version of their import.
November 8, 1957, petitioner, who was represented by counsel, was brought into court for a preliminary examination. Thereafter the state produced witnesses who were examined on oath in his presence. After introduction of this evidence petitioner was given an opportunity to offer evidence but his counsel declined to do so. Thereupon the examining magistrate stated that he was taking the case under advisement, desired briefs on the part of the respective parties, and fixed November 12, 1957, as the probable date on which he would announce his decision. For some reason, probably due to the request of the state, the date for this pronouncement was extended to November 15, 1957, counsel for the respective parties being advised to that effect.
On the date last above mentioned the petitioner, his counsel and the county attorney of Atchison County appeared in the city court. Thereupon the examining magistrate announced that he found from the evidence adduced that the crime charged in the complaint had been committed and there was probable cause for charging petitioner with the commission of such offense. Following this action such magistrate bound him over for trial in the January term of the district court of Atchison County, fixing his bond at $1,000. On the same date, having failed to give the required bond, such magistrate ordered that the petitioner be committed to the county jail of Atchison County to await trial.
January 11, 1958, papers having to do with the preliminary examination, including a transcript of the proceedings, were transmitted to the clerk of the Atchison District Court. On the same day an information was filed in such court charging petitioner with the crime for which the city magistrate had ordered his commitment. Three days later, on January 14, one of the petitioners counsel observed no written commitment was in the files. Counsel then proceeded to the office of the clerk of the city court and inquired regarding it. She replied it was with the transmitted papers but after being advised to the contrary made a search of her office where she found two printed commitment papers, which had been signed but not completed by the judge of the city court, endorsed on which was a return by the city court marshal. Thereupon she filled out uncompleted blank spaces on such papers with what she deemed were proper recitals and then transmitted one copy thereof to the office of the clerk of the district court.
Subsequently, and on January 16, the petitioner commenced the instant proceeding by filing a petition in the district court of Atchi-son County for a writ of habeas corpus. Later the district court ordered that a writ issue commanding respondent to have petitioner before the court on January 17. On application of petitioner’s counsel the cause was continued until January 24, when it was heard on the testimony of witnesses, stipulation and documents. At the close of this hearing the court took the case under advisement. Thereafter, and on March 6, it rendered judgment holding that the writ theretofore issued should be discharged; that the respondent should be relieved from further obligations under such writ; and that petitioner should be remanded to the custody of the respondent. This appeal followed.
We shall quote and dispose of questions raised by appellant in the order in which they are presented.
“1. Should the Petitioner Be Discharged Because of Failure of the State to Bring Him to Trial Within Two Terms of Court after'Complaint Filed and Warrant Issued?”
In support of his position on this point appellant relies on G. S. 1949, 62-1431 providing that if any person under indictment or information for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court hav-: ing jurisdiction of the offense for which he was committed, unless the delay is caused under certain circumstances not here involved. Heretofore we have pointed out the information was filed on January 11, 1958, and that this action was filed five days later on January 16. The statute on which appellant relies relates to delays occurring in district court after the filing of an information and bas no application to periods of time involved prior to the date a criminal action is filed in that court. If, as appellant suggests, he was not brought to trial before the end of the second term of the district court, after the information was filed against him, questions relating to that situation are not here involved. In habeas corpus proceedings the right of a petitioner to be released from custody depends entirely upon the validity of his restraint on the date of the filing of his petition. (Whalen v. Cristell, 161 Kan. 747, 173 P. 2d 252.)
Questions 2 and 3 can be considered together.
“2. Was It Error for the City Court of Atchison to Fail to Commit the Petitioner to Jail on 8 November, 1957?
“3. Was It Error for the City Court of Atchison to Fail to Commit the Petitioner to Jail on 12 November, 1957?”
On appeal from the judgment of a district court in • a habeas corpus proceeding it is not the province of this court to review errors claimed, by one of the parties, to have been committed by a magistrate in the course of a prelimiary examination. It follows the foregoing questions, as posed by appellant, are not here subject to appellate review.
“4. Order of Commitment Issued 14 January, 1958, Is Void and of No Effect.”
Appellant’s position on the question last above quoted is founded on G. S. 1949, 62-622, providing that if a defendant is committed to jail the magistrate shall make a written order of commitment, signed by him, which shall be delivered to the jailer by the officer who executes the order of commitment. Based on this statute he argues that the commitment, which was completed by the clerk of the city court on January 14, was so defective that it must be considered as void and of no effect. ■ We turn to the record. It discloses that at the close of a preliminary examination the judge of the city court made an order commiting the appellant to the jail of Atchison County, there to await trial at the January, 1958 term of the District Court; that after doing so that magistrate signed two printed commitment forms, but failed to fill in blank spaces on those instruments with the informative data necessary to fully complete them. From the same source we learn that such instruments were delivered to the marshal of the city court who endorsed his return thereon, thus evidencing his execution of the order of commitment in the form mentioned. In that situation, although it must be conceded the order of commitment was defective, it had nevertheless been issued and we do not believe it can be said that it was so defective that it could not be amended on proper application, hence we are constrained to hold it was neither void nor of no force and efEect. Moreover we do not understand that in this jurisdiction, standing alone, failure on the part of a magistrate to perform the ministerial obligation of making out a full and complete commitment order at the close of a preliminary hearing, after he has already ordered that the defendant be bound over to the district court for trial and directed that he be committed to jail to await trial, entitles such defendant to be released on a writ of habeas corpus. For one of our decisions supporting this conclusion see In re Christensen, 166 Kan. 671, 674, 203 P. 2d 258. See, also, In re Schurman, Petitioner, 40 Kan. 533, 20 Pac. 277; In re Chapman, Petitioner, 4 Kan. App. 49, 56, 46 Pac. 1014.
Another sound reason for upholding the trial court’s judgment and denying the writ appears in the record. At the time he commenced his habeas corpus action appellant was confined in the county jail of Atchison County under an earlier commitment issued by the same magistrate directing that he be held in that bastille until such other and further time as that magistrate should direct. In the face of the record presented such commitment, even though the commitment of January 14 had been of no force and effect, was sufficient to warrant the trial court’s conclusion that appellant was not being illegally restrained of his liberty on the date of the filing of his petition. There is sound authority for the rule that a person incarcerated under two commitments for the same offense, one of which commitments is valid, is not entitled to his release on habeas corpus. (24 C. J. S., Criminal Law, p. 163 § 1608.)
In conclusion it should be stated that, contrary to appellant’s contentions, Whalen v. Cristell, supra, is not to be considered as a controlling precedent under the existing facts and circumstances. Resort to the opinion in that case will disclose that it is clearly distinguishable, in that the writ there granted was based on the premise the petitioner was deprived of his liberty under a commitment, which showed on its face the period of time fixed for the petitioner’s incarceration had expired.
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The opinion of the court was delivered by
Wertz, J.:
Defendant appeals from an order of the trial court permanently enjoining him from maintaining and operating certain sand-pumping- equipment in the Kansas river landward of the water’s edge and in front of the property leased by plaintiffs. The injunction was based on a finding that the Kansas river is subject to the control of the state only from water’s edge to water’s edge.
The facts necessary to a decision on the question involved follow: Plaintiffs (appellees) and defendant (appellant) both operate sand plants on the Kansas river in Wyandotte county. Defendant operates a sand plant on a tract of land which borders on the north bank of the river. Plaintiffs’ main plant operation is on a tract of land which borders on the south bank of the river. Plaintiffs also lease a tract of land on the north bank immediately upstream from the tract upon which defendant’s plant is located. Defendant pumps sand from the river by virtue of a contract with the state of Kansas (G. S. 1949, 71-101 et seq.). A previous decision of this court construed defendant’s contract to permit him to pump sand from the river to a point 1500 feet upstream from the extension of his west property line. (Dreyer v. Siler, 180 Kan, 765, 308 P. 2d 127.) In pumping upstream from his property line, defendant projects a boom composed of pontoon floats out into the river. Pipe is strung out along the boom and from thence leads up to defendant’s tipple located upon his property. From such operation arose this controversy.
Plaintiffs (the Silers) filed a petition in district court alleging that defendant (Dreyer) and his employees were and had been trespassing upon their leasehold in operating the boom, that defendant and his employees had tied his sand barge to the bank and trees located on plaintiffs’ leasehold, and that by reason of defendant’s operation plaintiffs were unable to move their equipment from the south side of the river to their leasehold on the north bank. Plaintiffs’ petition prayed that. defendant be enjoined from tying to or using the bank of plaintiffs’ leasehold and from obstructing plaintiffs’ use of and right to use said property. Plaintiffs also asked for damages.
The district court rendered judgment for plaintiffs in accord with its memorandum opinion, the pertinent parts of which read:
“Plaintiffs contend that they have the exclusive right i» use the river bank to the water’s edge. Without attempting to decide ownership, the Court will hold that the plaintiffs, under their lease, are entitled, at least as against the defendant, to the free and exclusive use of their land to the water’s edge.
“The defendant will be enjoined: (1) from placing or maintaining wires, cables or lines of any kind across any part of the land leased by plaintiffs; (2) from permitting any part of his dredging equipment, and particularly the pontoons upon which his flow line is floated, to at any time be north of the water’s edge and west of defendant’s west property line; and (3) to maintain the long piece of pipe in the flow line, clearly shown by plaintiffs’ Exhibit 4, at such an angle that it will cross the north water line of the river at a point east of defendant’s west property line.
“Plaintiffs also contend that the position of defendant’s flow line along the north bank of the river is an invasion of their rights. With this the Court cannot agree.
“From waters edge to waters edge the river bed is subject to the control of the State. The State in this instance has granted defendant the right to take sand within 1,500 feet upstream from his tipple.. Since the State had the right to make such a grant to the defendant and did so, the Court is of the opinion that plaintiffs cannot be given relief on account of defendant’s flow line and pontoons being in the water along the north river bank, so long as the flow line and pontoons are kept in the water." [Emphasis supplied.]
It is apparent that the trial court predicated its judgment on the premise that defendant under his lease with the state was entitled only to operate and maintain his pumping equipment in and take sand out of that portion of the river bed covered by water at any stage of the river flow, “from water’s edge to water’s edge.” The determinative question presented on this appeal, therefore, concerns the relative rights of the plaintiffs, the defendant and the state of Kansas in the area between the water’s edge and the ordinary high-water mark along plaintiff’s leasehold, it being unquestioned that the Kansas river is a navigable stream at this point. Neither party disputes the state’s ownership or right to control soil and sand in the bed and channel of the Kansas river. Defendant claims that title to the area between the water’s edge and the ordinary high-water mark is in the state of Kansas and that, therefore, as a matter of law it was erroneous for the trial court to enjoin defendant, a lessee of the state, from entering or using this area. Plaintiffs’ argument on this question is based largely upon a Wisconsin case, Doemel v. Jantz, 180 Wis. 225, 193 N. W. 393, 31 A. L. R. 969, in which it was held, in accord with the previous Wisconsin view, that in regard to navigable waters a riparian owner holds a qualified title to the area between ordinary high-water mark and the water’s edge, the qualification being that this title is subject to the public right to use for navigational purposes.
It has long been settled that the extent of the title of the owner of lands bordering upon navigable waters depends on the local law. (State, ex rel., v. Akers, 92 Kan. 169, 177, 178, 140 Pac. 637, and cases cited therein.) Therefore, Kansas law on the point must be regarded as controlling. The common law test of navigability never became the law of Kansas. (State, ex rel., v. Akers, supra, 202.) In Kansas v. Colorado, 206 U. S. 46, 27 S. Ct. 655, 51 L. ed. 956, it was stated that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters. G. S. 1949, 71-106 provides that the bed and channel of any river within this state and all islands and sand bars lying therein shall be considered to be the property of the state of Kansas unless this state or the United States has granted or conveyed an adverse interest therein. Since the early case of Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330, it has been clear in Kansas that a riparian owner owns only to the bank and not to the center of a navigable stream. (State, ex rel., v. Akers, supra, 179.)
Plaintiffs support their contention that Kansas law is the same as announced for Wisconsin in Doemel v. Jantz,, supra, with quotations from Kansas cases holding that the owner of land bordering a navigable stream may acquire additional land by the process known as accretion. These very quotations illustrate that the Wisconsin rule has not been considered in effect in Kansas. Included in plaintiffs’ quotations from Fowler v. Wood, 73 Kan. 511, 544, 85 Pac. 763, is an excerpt from Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L. R. A. 317:
“According to the cases we have cited, the high-water mark, as thus defined, being the boundary-line of the riparian owner in this state, is the point at which the formation of all lands acquired by him by accretion must begin. A formation of alluvion beginning at any other point would belong to the state or other party.”
This seems clearly to hold that the boundary line of the riparian owner is the ordinary high-water mark and that for the riparian owner to obtain land the accretion must shift the ordinary high-water mark. It was stated in the case of United States v. Mackey, 214 Fed. 137, 153:
“The. condition and wants of the people of Oklahoma, so far as the rights of riparian owners upon navigable streams in the soil of the beds thereof are concerned, must be considered as identical with that of the people of the neighboring states of Kansas, on the one side, and Arkansas, on the other, in both of which the rights of the riparian owners are held only to extend to high-water mark, the title to the' bed between high-water marks being in the state. This doctrine has the support of the best-considered opinions of the state Supreme Courts, and, as we have seen, has the approval of the Supreme Court of the United States.”
Roth plaintiffs and defendant quote from Cushenbery v. Waite-Phillips Co., 119 Kan. 478, 484, 240 Pan. 400: It appears that the court in the mentioned case regarded the boundary line of the navigable stream to be the point to which the water usually rises in ordinary seasons of high water, thus setting the state’s boundary line. The theory of the owners taking to the water’s edge seems to have been regarded as existing only for the purpose of protecting the riparian right to access to the water frontage and access to the water.
“According to all the decisions in most of those states in which the lands were originally surveyed under the laws of the United States, the lines run by the United States surveyors along the river banks are not lines of boundary, the owners of the adjacent lands taking at least to the water’s edge, thus giving them the benefit of the river frontage, with the right of access to the river, and the incidents of riparian proprietorship as to the use of the water. The tme boundary line of a navigable stream or lake is the point to which the water usually rises in ordinary seasons of high water. The position of that line is a question of fact for the jury, and it controls although the meander line of the survey is found not to be coincident therewith. When landowners once become riparian proprietors they are entitled to the accretions, or newly formed ground which may be left by the river after the survey and sale by the United States of the adjacent land, and which, if not their property, would separate them from the river. . . .” [Emphasis supplied.]
Our cases appear to hold that the ordinary high-water mark is the boundary line between the bed of the river and the land of the riparian owner. In State, ex rel., v. Berk, 129 Kan. 645, 648, 284 Pac. 386, we approved a conclusion of law of the trial court that “the north boundary line of the river is the south line of lots one, two and three, with their accretions, being the line to which water rises in ordinary seasons of high water, . . .” [Emphasis supplied.]
It is therefore apparent we have held that the boundary line between a landowner and the state’s navigable river bed is the line to which water rises in times of ordinary high water.
In view of what has been said it is obvious that the trial court entered judgment, predicated on an erroneous premise, that the jurisdiction of the state over the river bed was from water’s edge to water’s edge. The Kansas river is a navigable stream and the title to the bed and channel to ordinary high-water mark is in the state of Kansas. Therefore, defendant as lessee of the state is entitled to the use of the river bed and channel to ordinary high-water mark for the operation and maintenance of his sand-pumping equipment. Under the circumstances the judgment of the trial court is reversed and the case is remanded for a new trial in accordance with the views expressed herein.
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The opinion of the court was delivered by
Jackson, J.:
This was a divorce case in the court below between the wife of a minister and her husband. We have the unusual situation in which the husband’s church and a bank which holds a mortgage on certain church property became defendants in the divorce case. It is unusual, but not unheard of in our former cases for third parties to be involved in divorce cases. (Breidenthal v. Breidenthal, 182 Kan. 23, p. 28, 318 P. 2d 981, and authorities cited.) The bank and the church became defendants due to the fact that Mrs. Dawkins, the plaintiff, made certain claims upon property standing in the name of the church, and on which the bank holds a mortgage.
The trial court, after a trial which we are advised lasted the better part of two weeks, granted a divorce to the plaintiff wife and gave her custody of two minor children. The court also in awarding alimony and child support made the unusual finding that the minister and the church were one, and in effect, held that all of the church property belonged to the minister. The trial court decreed that a certain building known as the parsonage, located at 903 Argentine Blvd., Kansas City, Kansas, should be set. over and decreed to be the property of the plaintiff wife. The title of this property was and is in the name of the trustees of the church and is covered by a mortgage in original amount of $45,000 which mortgage likewise covers the church building. The trial court likewise set aside for lack of consideration a quitclaim deed made by the wife and husband to the board of trustees of the church covering the parsonage and other church properties to which the' wife had made claim in a previous petition for separate maintenance. This deed was executed during an attempted reconciliation between the minister and his wife.
The trial court stated its conclusions in a part of its opinion on page 282 of the abstract reading as follows: •
“What is the situation with respect to the operation of this church? There aren’t any books worthy of the name prior to the year 1957. The evidence leads me to believe that Reverend Dawkins was answerable only to his conscience in connection with the disbursement of church funds. Now, I think Reverend Dawkins has a conscience; I am not convinced that he made away with church funds. But the fact that he, alone, had the control over them is important in arriving at the true state of affairs in this case.
“With reference to the trustees of the Gospel Tabernacle, the Court finds that this was not a legimately-operating, independent board, but that the board was, in fact, a straw board created by Reverend Dawkins to meet a legal necessity, to-wit: the requirements of the R. F. C. . . .
“Fraud is not the question here. But the deed by which Reverend and Mrs. Dawkins conveyed certain properties to the trustees (Exhibit 36) will be held to be invalid and of no force or effect because (1) no consideration for such deed is shown, and (2) the situation is the same as if Carl Henry Smith, for example, were to sign a deed as Carl Smith, conveying property to himself as Henry Smith. The grantor, R. E. Dawkins (joined by his wife) and the grantee are one and the same, in view of the Court’s findings that the trustees simply provided a method by which Reverend Dawkins carried on the business of the Church.”
The abstract in this case, including exhibits, runs to the length of some 330 pages. There is also a counter abstract, entirely in the form of questions and answers of 250 pages. The court has been hindered because the pleadings in the case have not been included in either the abstract or counter abstract despite the length thereof. Closer attention should be given to the rules of the court pertaining to appeals. • (See Rule 5.)
In this appeal, we are concerned only with the rights of the Gospel Tabernacle of which the Reverend Mr. Dawkins is the pastor.
The church is appealing and asserts that the property of the church has been taken and given to Mr. Dawkins, and that his wife has been allowed alimony therefrom. As will be seen from the above quoted part of the court’s opinion, the basis of the court’s decision was that the Reverend Mr. Dawkins absolutely controlled the operation of the church and the actions of its board of trustees, and that therefore, since the church was an unincorporated society, Dawkins and the church were one and the same thing. After reading the long record, we would agree with the trial court on most of the facts which show that the pastor of this church was its undisputed leader and guided its policies and its doings; that he was the leading light in its foundation some twenty-seven years ago; that apparently he controlled the action of the board of trustees. It is also true that up until after the flood of 1951, the church had no board of trustees, but the pastor ran the church himself. Mr. Dawkins testified that prior to about 1952, he was sole trustee of the church’s property and that the church affairs of the Gospel Tabernacle were carried on in that manner.
We feel that the trial court misconceived the legal position of the pastor under all of the above facts. He was a trustee, a fiduciary, expressly and by operation of law, and while he did exercise complete control, the property was not his own personal property, but the property of the church.
The idea of a sole trustee in the person of the pastor is not new. The Roman Catholic Church has long held property in the name of its bishops as corporation soles. (See Searle v. Rom. Cath. Bishop of Springfield, 203 Mass. 493, 89 N. E. 809; Elack’s Law Dictionary, p. 410.) Likewise, the domination of a board of deacons, a board of elders, or a vestry by the minister is not unknown in Protestant churches. This domination often occurs even when the church is incorporated.
The parsonage and all of the property here concerned, and to which the church now makes claim, stands in the name of the board of trustees of the church. Furthermore, as noted above, the wife released any claim she had been asserting by signing the quitclaim deed covering all of this property at the time of the attempted reconciliation. The unfortunate circumstance that the reconciliation did not work out would not give the court the power to cancel that deed and also the pre-existing title of the church and give the property to the church trustee personally, partially at least, for the benefit of his wife.
The reports of this court are full of cases involving the property rights of unincorporated church societies. None that have come to the court’s attention involve the claim of the pastor’s wife for alimony in the church property, but all uphold the sanctity of the claim of the religious body as to the property dedicated to pious and religious uses. It makes no difference whether the dedication to such use be made by the public or by the members of the unincorporated society.
In the early case of Comm’rs of Wyandotte Co. v. Presbyterian Church, 30 Kan. 620, 1 Pac. 109, Mr. Justice Brewer speaking for the court said:
“It is enough to say, that after a variety of decisions and legislation the law seemed to culminate and be settled by the statute of 43 Elizabeth, chap. 4, (1601,) commonly called ‘the statute of charitable uses/ and from that time on the validity of appropriations to such uses was considered a settled thing at the common law. And while in this country that statute as a whole has not been accepted as of force in all the states, yet the principle which underlies it has been universally recognized, at least so far as any question like the one before us is concerned. Thus in Trustees v. Canal Co., 9 Ohio St. 287, the court said:
“ ‘But one of the earliest demands of every social community upon its lawgivers, at the dawn of its civilization, is adequate protection to its property, and institutions, which subserve public uses, or are devoted to its elevation, or consecrated to its religious culture, and its sepulchres; and in a proper case, the courts of our state might be driven into the recognition of some principle analogous to that contained in the statute of Elizabeth, as a necessary element of our jurisprudence/
“And in the case of The Town of Pawlet v. Clark, 9 Cranch, 332, the supreme court of the United States by Story, Judge, uses this language:
“ ‘For the reasons then that have been stated, a donation by the crown for the use of a non-existing parish church, may well take effect by the common law as a dedication to pious uses, and the crown would thereupon be deemed the patron of the future benefice when brought into life. And after such a donation it would not be competent for the crown to resume it at its own will, or alien the property without the same consent which is necessary for the alienation of other church porperty/ ”
See also our later cases of Hughes v. Grossman, 166 Kan. 325, at page 330, 201 P. 2d 670; Whipple v. Fehsenfeld, 173 Kan. 427, 249 P. 2d 638; Kansas Baptist Convention v. Smith, 178 Kan. 123, 283 P. 2d 503; Jackson v. Jones, 130 Kan. 488, 287 Pac. 603; and United Brethren, Etc., v. Mount Carmel Community Cemetery Ass'n, 152 Kan. 243, 103 P. 2d 877.
Many of the above cases involve schisms in religious societies. Actually, there has been a schism in the church in this case. The wife and most of her witnesses were former members of the church who had severed their relations with the church and its pastor because of doctrinal differences. As such former members, they have no right to impair the title of the church property and the fiduciary relation of the pastor of the church to his charge. This court differs with the trial court as to the law to be applied to the facts found by the trial court. Therefore, the portion of the trial court’s decree setting aside the deed of March 12, 1957, and in any other manner casting doubt upon any property belonging to the church should be and the same is hereby reversed.
The other portions of the trial court’s decision are dealt with in the companion appeal this day decided, see Dawkins v. Dawkins, No. 40,957, page 336.
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The opinion of the court was delivered by
Jackson, J.:
This is a suit by a school teacher to recover the amount of her salary for the school year of 1956-1957 from the appellant school boards.
The district court heard the case without a jury and rendered judgment in favor of the teacher for the full amount specified in her contract of employment. The school boards have appealed.
The following facts were pleaded by the plaintiff and proved at the trial not only by her own evidence, but in most situations by testimony of members of the school board. The plaintiff had been the teacher at the. West Union School during the school year of 1955-1956. Sometime in March of 1956, there had been talk of consolidating the school district with another. The question was voted on by-the electors of the district and it was decided to continue school for the coming year. Thereafter, on April 20, 1956, the teacher and the members of the school board entered into a regular written contract employing the teacher for the ensuing school year of 1956-1957 at an annual salary of $2,800 to be paid in twelve equal payments. The contract was on the form supplied by the county superintendent of schools and was regular in every particular. There seems to have been some discussion at the time of the signing of the contract about a proposed rider to be attached thereto. This rider would have made the contract subject to the continuation of school for the coming year. The teacher objected to having this rider attached to the contract and said she would not sign the contract if it were so attached. Mrs. Miller, one of the members of the school board, testified that she then tore the rider off the contract, and that the contract was signed without the rider being attached thereto.
The annual meeting of the school district was held on the first Friday in June in accordance with G. S. 1957 Supp. 72-401. The first Friday of June fell on June 1, 1956, and a budget of $5,400 was approved and the members of the school board were elected for the coming year. A copy of the contract with the teacher was duly filed with the county superintendent of schools.
Thereafter, the county superintendent raised some rather technical question about the election of the treasurer of the school board and advised that it would be necessary to have another meeting of the school district. It might be noted that the county superintendent was quite anxious that the school district be consolidated. At the special meeting called on June 21, 1956, the first matter of business became the continuation of the West Union School for the ensuing year and the meeting then voted to annex the West Union School District to that of the Rossville School District. The county superintendent was present at that meeting and on the next day of June 22, 1956, he called the plaintiff school teacher on the telephone and advised her of the vote to consolidate the two school districts. The evidence is sufficient to show that the teacher on or about June 30, 1956 and on July 15 of that year talked with the members of the Rossville School District asking that she be allowed to teach in the new district. There is evidence that she applied and offered to teach at Rossville at the beginning of the school year and that she continued to demand that her contract be honored. It is also shown that she attempted to find other employment as a teacher, but could not find an opening after June, 1956, for the coming year.
The district court at the end of the case entered a judgment for the plaintiff for the full amount of her contract.
In the court below, the defendants filed various objections to plaintiff’s petition, to her evidence at the trial, and after the judgment in plaintiff’s favor a motion for new trial was filed and overruled by the trial court. Nothing would be gained by a consideration of these various objections separately. All of them have been fully considered and found to be untenable.
It will be noted that the contract of the plaintiff in this case was within the authority of the school board, G. S. 1957 Supp. 72-1028. Furthermore, the contract was fully valid under the provisions of G. S. 1957 Supp. 72-5411. The principles governing this case were fully set out in Fuller v. Consolidated Rural H. S. Dist., 138 Kan. 881, 28 P. 2d 750. In the opinion of the Fuller case, this court said:
“Pursuant to the practice of engaging teachers in the spring for the school year beginning the next fall, the board of a school district, which, for convenience, may be called the Louisville district, entered into a contract with plaintiff to teach school for a term of nine months, commencing September 7, 1931. The contract was signed on April 20, 1931, was in the form prescribed by the state department of education, and provided that plaintiff should be paid a salary of $145 per school month, payable monthly. After the contract was signed, petitions were circulated in the Louisville district for the calling of an election to vote on a proposition to consolidate the district with another, which, for convenience, may be called the Wamego district. The election was held on June 16, and the vote was favorable to consolidation. On June 29 the Wamego district voted to consolidate. The county superintendent designated the consolidated district as Consolidated Rural -High School District No. 1, Pottawatomie county, Kansas. About July 13 officers constituting a school board for the consolidated district were elected. The consolidation proceedings were instituted and consummated pursuant to Laws 1931, chapter 275. School opened in the consolidated district at Wamego on September 7. Plaintiff was not employed as a teacher in the school of the consolidated district. . . .
“It is true continued existence of the Louisville and Wamego districts was wholly dependent on the will of the legislature, and they could be disorganized, as they were disorganized, by proceedings prescribed by the legislature. When, however, the legislature creates corporate instrumentalities for the accomplishment of public purposes, permits them to operate, and in the course of operation to acquire property and incur debts, there must be a sort of winding up of the corporate business after dissolution. The property must go somewhere, and the debts must be paid by somebody. When, as in this instance, consolidation takes place and a new corporation comes into existence comprising the territory of the districts which were consolidated, the consolidated district takes the property and pays the debts. The legislature may provide what shall become of the property, and may provide how the debts shall be paid; but in the absence of specific statutory provisions, the rple just stated prevails.”
The principles of the Fuller case still govern the winding up of the affairs of consolidated school districts, see G. S. 1957 Supp. 72-834.
Since no error has been made to appear in the judgment of the district court, the same should be affirmed.
It is hereby so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.: This was a proceeding by a trustee for instructions in certain matters relative to the administration of a testamentary trust, and for authorization to make certain expenditures from trust funds. The beneficiary of the trust, the city of Wichita, filed an application pursuant to G. S. 1949, 60-3127, for declaratory judgment. The trial court overruled in part and allowed in part both the trustee’s motion and the city’s application. From the rulings adverse to it, the city appeals.
Louise C. Murdock of Wichita died in 1915 leaving a will providing for the disposition of all her property. The will made provisions for her mother, sister and son during their lifetimes and then provided:
“. . . In case of the death of my son and sister and mother, all of my property held by my executors shall be put into a Trust Fund to be administered by them, and the interest accruing from this fund shall be used for the buying of an Art Collection for the City of Wichita providing a suitable place shall be provided for the housing of this collection, and it shall be called the Roland P. Murdock collection.
“The planning of this collection shall be in charge of Miss Elizabeth Stubblefield who will consult with authorities in such matters and the preference be given to American painters, potters, sculptors and textile weavers. If the City of Wichita does not furnish a suitable place for the development and housing of this collection, then the money accruing in this trust fund shall be used for the maintenance of scholarships in Baker University, Baldwin, Kansas, and Southwestern College, Winfield, Kansas, worthy intelligent and industrious young men to be the beneficiaries. The Presidents of these two schools and one layman to have the choosing of these men.”
On April 27, 1915, the will was duly admitted to probate in Sedg-wick county, Kansas.
On January 2, 1918, the district court found that the will, after providing life tenancies for the testator’s son and sister (the mother being then deceased) created certain public, charitable trusts in that the income from the trust fund was to be used for the buying of an art collection for the city of Wichita on the condition the city provide suitable housing, and that Parkinson and Stubblefield (now Navas) were to be the trustees of this perpetual trust. The court retained jurisdiction over the trust.
On October 7, 1937, the trustees reported to the district court that the two life beneficiaries, the testator’s son and sister, were deceased; that a certain public, charitable trust had been created by the will of Louise C. Murdock wherein income from the trust was to be applied toward the purchase of an art collection for the city of Wichita and that the time had now arrived for the determination and establishment of the corpus of the trust so that the trustees could continue to administer it. In their report the trustees represented that the city of Wichita had constructed an Art Museum building for the purpose of housing the Roland P. Murdock Collection, and stated to the court that in their opinion the building was suitable under the terms of the will.
The district court found the trustees’ verified petition to be true, and that the net income was to be applied in the following manner:
a. To the payment of costs and expenses of the administration of the estate.
b. The preservation of the trust property to avoid depreciation and obsolescence.
c. The net proceeds after the payments above were to be used for the buying of an art collection for the city of Wichita and the planning of the collection should be in charge of Mrs. Navas, co-trustee of the estate.
Also, that the beneficial interest of the Rust vested in the cestui que trust, the city of Wichita.
The trust was operated under this order until March 30, 1939, at which time the trustee Elizabeth S. Navas, applied to the district court for additional compensation in planning and making selections incidental to the purchase of the art collection for the city of Wichita. Since the will had made no specific provision for the compensation of Mrs. Navas, the court, upon this application, allowed as her fee in the planning and purchasing of the collection the sum of 15 percent of the actual amount paid for the works of art that she purchased. This fee was in addition to the annual fee allowed to the trustees for the administration of the trust res.
In 1939 Mrs. Navas, as trustee, began purchasing paintings and objects of art for the Roland P. Murdock Collection and has continued to purchase such objects up to the present time.
The plan of the collection has been developed around the central core of American Art, making it one of the outstanding collections of American paintings. There are now 142 works of art in the collection which had an acquisition cost of $241,746, and the appraised value as of January, 1958, was $413,640.50.
On October 12, 1956, John A. Parkinson, co-trustee, died. When Mrs. Navas commenced this proceeding she was the sole trustee.
On January 28, 1957, the trustee filed her motion for direction of the court in matters relative to the administration of the trust, and for the expenditure of trust funds on certain items. She asked the court to (1) authorize the employment of a conservator to inspect the paintings and works of art in the collection and to re-inspect the collection every two or three years; (2) appoint her as the sole trustee of the trust because of the death of John Parkinson; (3) authorize the employment of a certified public accountant to make necessary audits and prepare accountings to be submitted to the court; (4) authorize an increase in the trustee’s fee from $1,800 to $3,600 per annum, and (5) authorize the expenditure of trust funds for the purpose of preparing and publishing a catalogue describing the works of art in the Roland P. Murdock Collection. Authority was further requested for the trustee, Mrs. Navas, to supervise and assist in the preparation of the catalogue. The cost of the catalogue was estimated to be approximately $10,000, and in addition the trustee requested $2,500 for her work and assistance in preparing it. The trustee further requested authority to expend $125 on the re-printing of an article appearing in the magazine “Art in America,” and for an allowance to pay attorneys’ fees for their work and representation of the estate.
On February 13, 1957, the city of Wichita as beneficiary under the trust, filed an application for a declaratory judgment and alleged that an actual controversy existed between the trustee and the beneficiary as to the interpretation of the will of Louise C. Murdock, which manifested in the trustee’s motion to expend moneys from the principal of the trust for purposes other than “the buying of an art collection for the City of Wichita” as provided in the will. The prayer was that the district court define the rights of the trustee and the rights and duties of the city of Wichita in the custody and care of the Roland P. Murdock Collection; that a successor co-trustee be appointed who was a resident of Sedgwick county due to the nonresident status of the surviving trustee, and that the trustee be directed to deliver to the city of Wichita, or account for, all documents of title and other indicia of ownership of the paintings and works of art in the Murdock Collection.
In her answer the trustee denied that a controversy existed as to the interpretation of the will which manifested itself in her motion pending before the district court. She also denied she sought to expend moneys from the principal of the trust for purposes contrary to the terms of the will, and alleged that all requests in her motion to expend moneys were authorized by the terms of the will which provided that she should be in charge of the planning of the collection. She further alleged that all documents of title and other indicia of ownership of the works of art had been made available to the city and the city had photostated them.
At the trial the trustee testified that she considered the inspection of the works of art by a conservator employed by her to be a part of the “planning” of the art collection; that his report would be made to her and to the Roard of the Art Museum; that the proposed catalogue would show only the Murdock Collection, which comprised 90 percent of the works of art in the museum, and none of the other works of art in the museum would be included; that she had already made preliminary plans for the catalogue and had the general outline in mind and that such a catalogue would be a work of art itself if properly prepared. She further testified that whether or not a catalogue was a work of art was a matter of opinion. Further, that all documents of title and indicia of ownership of the works of art had been made available to the city and the city had kept them long enough to photostat them.
William Nix, acting chairman of the Wichita Art Museum Board, testified that the director of the museum had informed him it would be advisable to employ a conservator to inspect the paintings and objects of art; that there had been several meetings with representatives of the trustee for the purpose of asking for an order of the court to allocate a sum of money to be donated to the city for that purpose; that the Murdock Collection comprised the major portion of the art collections in the museum; that under the Resolution of the City Commissioners the trustee had no authority whatsoever in the management of the collection and that, in his opinion, the duties of Mrs. Navas were to administer the estate and acquire paintings with trust funds; that he thought all works of art in the museum should be catalogued, which would enhance the value of the collections, but that such a catalogue should not only recognize the Murdock Collection but should recognize the city as well.
Carroll Hogan, Museum Director of the Wichita Art Museum, testified that a regular program of examination of the works of art by a conservator should be carried on; that he would not regard the preparation of a catalogue as a part of the planning for the purchase of an art collection but that such a catalogue would be desirable, and that the preparation of it would necessarily require the expert knowledge of Mrs. Navas. He objected to a catalogue of just the Murdock Collection and stated that it should reflect the Wichita scene and its role as being an important American art center.
The district court made the following findings of fact and conclusions of law:
1. The city of Wichita as beneficiary under the trust had the duty to provide a suitable place to house the collection and had the further obligation to continue to provide suitable conditions and maintain the same so long as the trust estate existed. The court concluded as a matter of law that the trustee had an obligation to ascertain from time to time if the beneficiary was continuing to maintain such suitable place; that with respect to that obligation, she had the implied power to use whatever means necessary and reasonable to make that determination, and granted the request to employ, out of trust funds, a conservator to inspect the collection.
2. That the cataloguing of the collection was as vital to and as much a part of the collection as an art piece itself; that the collection would be enhanced in value by the catalogue and that the same would be beneficial not only to the city of Wichita but to all Universities and Art Museums throughout not only the United States, but all art centers wherein such catalogues can and will be placed. Pursuant to this finding the court authorized the trustee to expend up to $10,000 in the publishing of the catalogue.
3. That a resident of Sedgwick county should be appointed co-trustee and that the Honorable Garner Shriver was a suitable person to be appointed.
4. That Mrs. Navas should be granted an additional $2,500 as compensation to her for her work on the catalogue.
The city of Wichita has appealed only from those portions of the judgment relating to the sums of money granted the trustee for the hiring of a conservator and for the preparation and publication of a $10,000 catalogue and the allowance of $2,500 as compensation to Mrs. Navas for her work thereon.
The city of Wichita contends the expenditures authorized by the district court are not expressly or impliedly authorized by the terms of the will. A careful reading of the will reveals that there are no express provisions in that document which would authorize the allowance of these expenditures from the trust funds, and there remains the question, is there implied authority?
The purpose of the trust as set up by the will was to provide an art collection for the' city of Wichita, not for just a term of years, but for all time to come. The intention of the testator, as expressed in the will, was to provide for the purchasing of objects of art to be located in the city of Wichita and preserved in a suitable building so they could be enjoyed forever by the people of that community. It is essential to the fulfillment of that purpose that the paintings and objects of art be properly housed and cared for. The objects of art, once purchased, were not to be so improperly housed and cared for as to result in a deterioration thus rendering them useless and no longer of value. The providing of a suitable place to house the collection by the city was a condition precedent to the creation of the trust in favor of the city. After the trust was set up the city of Wichita had the continuing obligation to maintain suitable housing for the objects of art so long as the trust estate existed.
The trustees, of course, have the duty to carry out the intention of the creator of the trust. One of those duties is to properly select and purchase objects of art. As a necessary incident to the carrying out of the expressed intention to provide an art collection that would last throughout the years, the trustees also have the duty to see that the objects of art purchased are properly housed and cared for so as not to deteriorate after a relatively short period of time. To achieve this end, the trustees have the power, with the approval of the court, to use all reasonable and necessary means to ascertain the condition of the objects of art. In 4 Scott, Trusts, § 380, it is said:
“The trustees of a charitable trust, like the trustees of a private trust, have such powers as are conferred upon them in specific words by the terms of the trust or are necessary or appropriate to carry out the purposes of the trust and are not forbidden by the terms of the trust. . . . The fact that a charitable trust may continue for an indefinite period may have the effect of giving the trustees more extensive powers than they would have in the case of a private trust, which is of limited duration.”
We think that the employment of an expert, a conservator, to inspect the objects of art to determine if they are being properly housed and cared for is a necessary and appropriate exercise of power conferred upon the trustees by the terms of the decedent’s will. The ruling of the district court that a conservator be employed should not be disturbed.
The district court also found that a cataloguing of the collection was “as vital to and as much of the Collection as an art piece itself”; that the collection would be enhanced in value by the catalogue, and that such a catalogue would be beneficial. Again, there is no abuse of discretion. Mrs. Navas testified that the catalogue would help in the planning of the collection; that it would also, to a certain extent, help in the acquisition of future objects of art for the collection in that it would serve as a meáns of publicity. The probable result would be that desirable objects of art which were for sale would be offered to the collection. As such, the catalogue would be a part of the “planning” and “buying” of the Roland P. Murdock Collection.
We do not think the district court abused its discretion in allowing $2,500 to Mrs. Navas for her work in preparing the proposed catalogue. Someone must do the work, and due to her intimate knowledge of the collection Mrs. Navas is as capable as anyone, if not more so. Indeed, Mr. Hogan testified that the catalogue could not be prepared without her expert assistance.
It not being made to affirmatively appear that the district court erred in any respect, the judgment is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by.
Schroeder, J.:
This is an appeal by the defendant in a criminal action from a conviction on a charge of leaving the scene of an accident' as defined by G. S. 1949, 8-519 and 8-520.
The information originally filed in the district court of Rawlins County charged the defendant (appellant) with trafile violations in five counts. They were: (I) Making an illegal left turn in violation of G. S. 1949, 8-544; (II) reckless driving as defined by G. S. 1949, 8-531; (III) driving while under the influence of intoxicating liquor as defined by G. S. 1949, 8-530; (IY) leaving the scene of an accident as defined by G. S. 1949, 8-519 and 8-520; and (V) failing to forward a written report of accident to the Vehicle Department as defined by G. S. 1949, 8-523. Prior to arraignment Count I was dismissed. Upon arraignment the defendant pleaded not guilty to the other four counts, but after impaneling the jury and prior to opening statements of counsel, Counts III and V were dismissed. The jury found the defendant not guilty of reckless driving (Count II) but guilty of leaving the scene of an accident (Count IV). Pursuant to proper procedures unnecessary to relate, the defendant filed a motion for a new trial which was overruled, and was sentenced to pay a fine of $90 and costs and to surrender his operator’s license, whereupon appeal was taken to this court. The lower court upon application fixed the stay bond pending appeal to this court at $250.
At the trial counsel for the defendant cross examined the sheriff who was the complaining witness and elicited the following facts: That the action was originally filed in the county court of Rawlins County upon the complaint of the sheriff in two counts (II and IV); that the county attorney and the sheriff worked together on the case; that the defendant was approached to plead guilty to the two counts and if he did not other charges would be filed; that the defendant did not plead guilty and other charges (I, III and V) were added by an amended complaint; and that when the defendant appeared in county court at the day set for trial with his witnesses, his attorney, and a court reporter, the county attorney dismissed the action in the county court and re-filed it on information in the district court. Concerning these matters the appellant is in no position to complain in this court for it was at his instance that the jury was informed of these facts.
While the jury was being impaneled in the district court on voir dire examination the county attorney asked a juror this question:
“Q. Upon the principal charge in this case, like leaving the scene of an accident, in addition to a fine and/or'imprisonment, there is a possibility that the defendant would lose his license for six months, now, do you think that penalty is too severe for the crime of leaving a scene of an accident?
“A. No.”
A similar question was put to another juror. The court then interposed this remark to the juror in open court in the presence of all the other jurors:
“The Court: You understand that the imposition of a penalty is up to the Court?
“A. Yes.
“The Court: I am the one that has to impose the penalty. You folks just find what the facts are, whether something happened or not, and a penalty of taking the license away, except if .he was found guilty of driving while intoxicated, would be up to the Court, doesn’t necessarily follow that that would happen. Do you think that you could just go ahead and try the case on the evidence as you hear it, and not bother about what penalty the Judge might impose?
“A. Yes.”
It is contended by the appellant that this remark in the presence of the jurors was an incorrect statement of the law by the trial court, concerning loss of operator’s license, and was prejudicial to the defendant. This statement by the court is specified as error. While it is true that the second juror, concerning whose examination the court’s remarks were prompted, did not sit, all the jurors heard this instruction. The court did not say that the defendant would not lose his driver’s license. Considering the statement as a whole the jury properly understood that it was the function of the court to pass upon the sentence in a criminal action and not the function of the jury. A trial court is not required to inform the jury as to what punishment could be meted out to the defendant in a case, should he be found guilty, and it has been held that any misdirection in this regard cannot affect the substantial rights of the defendant. (Topeka v. Raynor, 8 Kan. App. 279, 55 Pac. 509.) There is but one verdict that a jury can return where the defendant is found guilty of a charge. The jury could not have been misled by this instruction of the court. They were fully instructed on the law after hearing the evidence. If it was error, it was immaterial error. (State v. Lytle, 177 Kan. 408, 413, 280 P. 2d 924; and State v. Curtis, 108 Kan. 537, 196 Pac. 445.)
The appellant also specifies that in the course of impaneling the jury the court erred in permitting the sheriff to openly, in the presence of the jury, assist the county attorney in the selection of jurors. The record discloses that the county attorney did converse with the sheriff in the presence of the jury, during the selection of the jurors. From the record it appears that such conversation, however, was inaudible to the jurors and probably was unnoticed by the jurors until counsel for the defendant openly objected in court as follows:
“Mr. Cushenbery: The attorneys for the defendant want the record to show that at least twice during the examination of this jury the County Attorney consulted over the jury list with the Sheriff, in the full view of the jury, and we think that is misconduct because the Sheriff not only summons the jury, but he is a witness in the case, and an officer of the Court. We just want the record to show that it was obvious that the County Attorney was discussing jurors, including the last juror right in the full view of the jurors.
“The Court: Overruled.”
It must be noted that defense counsel did not ask the court for any action. The statement was not in the form of an objection. Furthermore, it is not error for a county attorney to consult with the complaining witness in a criminal action, such as was here indicated, in the selection of a jury. Certainly a complaining witness should have the opportunity before a jury is finally approved to indicate through counsel whether a peremptory challenge should be exercised against one or more of the jurors. Undue attention, if any, was called to the jury by counsel for the defendant in making his statement into the record.
If the defendant was serious in his contention that he had a meritorious proposition of law which he was seriously pressing upon the attention of the trial court, he should have stated it in clear and simple language so that the trial court could have fully understood it. It avails the defendant naught to disturb a judgment on appeal if a point is so obscurely hinted at during the trial of a case that the court quite excusably may fail to grasp the significance of it. (State v. Bell, 121 Kan. 866, 250 Pac. 281.) There is no showing in the record on the part of the appellant that the jurors were in any way prejudiced by reason of the county attorney consulting with the sheriff while the jury was being selected.
The appellant specifies that the trial court erred in refusing to dismiss the charge of reckless driving and in submitting that charge to the jury. Since the jury acquitted the defendant of this charge the question is moot and immaterial at this time. The record discloses that at the close of the state’s case counsel for the defendant demurred to the charge of reckless driving in the information, and asked that the same be dismissed for the reason that the evidence of the state was entirely devoid of any proof that the defendant was operating his motor vehicle in such manner as to indicate either a willful or wanton disregard for the safety of persons or property. This was overruled. However, the trial court instructed the jury at the close of the evidence and among the instructions was one concerning the charge of reckless driving to which counsel for the defense made no objection, nor did he request a more detailed instruction, or request the court to direct a verdict on this charge. For this additional reason the defendant cannot complain at this late hour. (State v. Dean, 179 Kan. 24, 292 P. 2d 694; and State v. Peasley, 179 Kan. 314, 295 P. 2d 627.)
The appellant argues first, that the jury was justified in feeling that there was evidence of reckless driving or the court would not have submitted that charge to them; that submission of the charge to the jury gave the defendant a bad name; and second the submission of the reckless driving charge along with the charge of leaving the scene of an accident gave the jury the opportunity to do some trading in this case. These arguments are untenable. In the first place they assume that a jury completely disregards the court’s instructions as to the law, and second, that jurors are generally incompetent to deal fairly and to be entrusted with the rights of a fellowman charged with crime. In State v. Crosby, 182 Kan. 677, 324 P. 2d 197, a defendant was charged with two counts of arson and found guilty upon both by a jury. The conviction was reversed as to one count on the ground that no offense was charged under G. S. 1949, 21-581. It was held that the proceedings based upon the valid count charging arson was not necessarily affected. (See, also, State v. Curtis, supra.)
Appellant specifies that the trial court erred in refusing to dismiss the charge of leaving the scene of an accident and in submitting that charge to the jury.
At the close of the state’s evidence the defendant demurred and moved to dismiss the charge of leaving the scene of an accident on the ground that the state failed to prove sufficient facts to sustain a conviction on that count. The record fails to disclose any objection by counsel for the defendant to the court’s instruction on leaving the scene of an accident as defined by G. S. 1949, 8-519 and 8-520, or any requested instruction that the court direct a verdict on this charge.
This court has long been committed to the rule that it is the function of the jury, and not that of the court of appellate review, to weigh the evidence and pas's upon the credibility of the witnesses, and, if there is substantial competent evidence to support it, a verdict will not be disturbed on the grounds that it is based on insufficient evidence or is contrary to the evidence. (State v. Osburn, 171 Kan. 330, 232 P. 2d 451, and authorities therein cited.) Since the jury found the defendant guilty of leaving the scene of an accident, the facts will be summarized from the evidence in their most favorable aspect to the state.
The defendant on the night of August 23, 1957, at about 9:15 p. m., was driving his automobile east on Highway No. 36 in the City of Atwood, Kansas, and at a point about 15 or 20 feet west of an intersection sideswiped Mrs. Wolfe’s automobile doing between $50 and $60 damage. One side of her automobile was dented in, the chrome was torn off, and the door was sprung. At the point of impact the defendant’s vehicle was 4 feet and 8 inches over on the wrong side of the road. The defendant did not stop but proceeded on to make a left turn sliding around the corner "in a very fast manner.” One witness said: "He had it going just as fast as he could make the thing go.” After making the left turn the defendant stopped a short distance away, got out of his automobile and looked it over for a few minutes. He then got back into his automobile and proceeded on without giving his name or address or the registration number of his automobile, or showing his operator’s license to the driver or occupant of or the person attending the yehicle collided with. The license number of the defendant’s vehicle was taken by a witness that knew the defendant and recognized him, but upon investigation by the sheriff the defendant denied that he was even in Atwood on this particular evening. Three days later he finally made the following admission to the sheriff: “I am quite sorry that I didn’t tell you this before, but it was my car that struck the .car.”
It is argued that there is nothing in the evidence in this case which would indicate that the defendant did anything with any guilty or evil intent, and the court should have dismissed this charge. The court properly instructed as to the meaning of "willful” and the requisite intent in a criminal case. The jury heard all the evidence and the law as given in the instructions and thereupon found the defendant guilty. The trial court heard the evidence and after hearing argument on the motion for a new trial denied the motion. This court cannot say after an examination of the record that there is no substantial competent evidence upon which to support a verdict finding the defendant guilty of unlawfully and willfully leaving the scene of an accident.
The appellant specifies that the trial court erred in refusing to find the county attorney guilty of misconduct in the trial of the cause. Many matters concerning which the appellant complains under this specification were initially called to the attention of the jury by counsel for the defendant apparently in an effort to show that the state and the sheriff were bent on persecuting the defendant. This is sometimes a trial tactic which fails to influence the jury for an acquittal. Other conduct complained of under this specification relates to questions propounded by the county attorney to various witnesses. These questions may be serious but the appellant did not raise them as a ground on his motion for a new trial. It was held in State v. McManaman, 175 Kan. 33, 258 P. 2d 997, that on appeal from an order overruling a motion for a new trial specifications of error not included in the grounds of such motion and called to the attention of the trial court cannot be considered on an appeal from a conviction in a criminal case. (See, also, State v. Haught, 180 Kan. 96, 299 P. 2d 573; and State v. Teter, 180 Kan. 219, 303 P. 2d 164.)
In State v. Teter, supra, this court said:
“At the outset it should be stated the great majority of the claims of error relied on by the appellants relate to alleged trial errors, obviously the product of afterthought, which were not ever set forth in their motion for a new trial and were neither argued nor relied on as grounds for the allowance of such motion at the time it was presented to the trial court.” (p. 220.)
From an examination of the record presented by the abstract and counter abstract, the evidence in this case was clearly sufficient to support the verdict of guilty on the charge of unlawfully and willfully leaving the scene of an accident. On the specifications of error presented the trial court did not err in overruling defendant’s motion for a new trial, and it does not affirmatively appear from the record that the appellant was denied a fair and impartial trial or that his substantial rights have been prejudiced.
Finding no reversible error in the record, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an action by the holder of a check against the payee on his endorsement and also against drawers of the check.
The defendants pleaded failure of consideration and that plaintiffs were the principals of L. E. Gridley to whom the defendant, J. S. Duttlinger, had negotiated the check for $4,200 to pay for 1400 bushels of wheat and 1450 bushels of milo; that within a day or so, Gridley died and there was no grain in the elevator, managed by Gridley and controlled by plaintiffs, to cover. Duttlinger’s purchase; that payment of the check had been stopped. Plaintiffs’ reply joined issue on the answer. The case was tried to a jury, and the court instructed that the following facts were established:
“On February 25, 1956, defendants V. R. Duttlinger and C. L. Duttlinger, under the business name of Duttlinger Bros., executed their check in the amount of $4,200.00 (Plaintiffs’ Exhibit 1 herein) payable to the defendant J. S. Duttlinger, and delivered the same to J. S. Duttlinger. Thereafter, J. S. Duttlinger endorsed said check and delivered same to L. E. Gridley. Thereafter, L. E. Gridley endorsed said check and delivered same to the plaintiffs herein. Thereafter L. E. Gridley died on February 29, 1956. Thereafter said check was presented for payment by plaintiffs to the Farmers State Bank, Oakley, Kansas, on which it was drawn, and was not accepted by said bank because payment thereof had previously been stopped by the defendants. Said check has not since been paid.
“These are the undisputed facts which need not be further proven by either party.”
The defendants assumed the burden of proof and after the close of all of the evidence, the jury found in defendants’ favor, answering special questions as follows:
“(1) Was the contract between L. E. Gridley and Evans Grain Company cancelled and terminated on or before January 31, 1956? Answer: No.
“(2) Was the $4,200 check given by J. S. Duttlinger to L. E. Gridley a loan to L. E. Gridley? Answer: No.
“(3) If your answer to Question No. 2 is ‘No’, then state:
“(a) Was L. E. Gridley acting contrary to instructions in offering this grain to J. S. Duttlinger? Answer: No.
“(b) Had L. E. Gridley told defendants what these instructions were? Answer: Yes.”
After post-trial motions were overruled, plaintiffs appeal from the judgment and orders overruling their various motions. The main question is whether there is sufficient evidence to uphold the finding of the jury that Gridley was the agent of plaintiffs in making the sale of the grain to Duttlinger and therefore plaintiffs are unable to claim to be holders of the check in due course. This would seem to turn upon the effect of the contract between Gridley and the plaintiffs which was introduced in evidence by the defendants:
“Salina, Kansas
June 28, 1955
“L. E. Gridley
“Gridley Grain Co. ■
“Monument, Kansas
“This letter will serve as an agreement and contract between you and ourselves relative to our advancing funds for the purpose of buying grain at- your elevator.’ We are to advance these funds under the following terms and conditions:
“(1) We will furnish the money solely for the purposes hereinbefore set forth and for no other purpose whatsoever, and none, of said sums so advanced shall be used for the purchase of feeds, seeds, coal, lumber, hardware or any other merchandise of any kind or character whatsoever except grain. Said sums being advanced for the purpose of buying grain at Monument, Kansas for the period beginning June 28, 1955 and ending as per paragraph 11 of this contract.
“(2) You are to have your elevator in shape for the handling of grain efficiently and maintain the same in thafc condition at all times during the life of this agreement.
“(3) We will cooperate with you in the hiring of a manager and any manager hired by you must be satisfactory to us and must furnish bond approved by us. You agree to be responsible for any dishonest or fraudulent acts committed by any person employed in your business.
■ “(4) Your manager is to mail us a daily report of all grain bought, sold and shipped. From these reports we will keep a complete record of all grain bought, sold and handled at your elevator.
“(5) We shall have the right to dictate the policy of huying, hedging and selling all grains purchased or handled by you, and shall dictate the manner of shipping and handling said grains; and we shall have the right to buy from you all grain so purchased.
“(6) Our charge on all grain purchased or handled shall be l-%4 per bushel except that when the charge of the Kansas City or Salina Boards of Trade is over l-K4 per bushel then our charge shall be the same as that charged by the Kansas City or Salina Boards of Trade and the price to be paid for all grain purchased by us from you shall be equal to the average of the prevailing values at the time of purchase for grain of like grade, taking all factors of value into consideration, including such factors as location of grain and time of shipment. Our charge on local Warehouse Receipt grain shall be I-J24 per bushel per storage year or portion thereof.
“(7) You shall carry Public Liability and Workmen’s Compensation Insurance, also fire insurance on both the elevator and tire grain contained therein and any other type of insurance which we see fit for the benefit of your business. This insurance shall be a part of the operating expenses.
“(8) In order to arrive at the grain profits of the elevator, we will deduct from your selling price of the grain to us the cost of the grain, all expenses charged out of this office such as telephone and supplies will be deducted from your profit & loss statement. The difference shall constitute the profit or loss and shall he yours and in no way shall we be considered a partner in your business.
“(9) We shall send statements to you at intervals to be agreed upon, showing die condition of the business. We will keep in reserve for your account the value of 1% of the total bushels handled to cover possible shrinkage and a sum equal to 25% of the net profits. Accompanying each statement we will send you a check for the balance of any profits due you and on October 31st, providing we have had an opportunity to have a weigh-up or clean-out of all grain on hand, we will mail you all money due you at that time. However, if a weigh-up or clean-out is conducted prior to October 31 or any date thereafter all money will be sent you basis such weigh-up or clean-out.
“(10) If any statement figured as provided in the two preceding paragraphs shows a balance due us, you shall pay us such balance within 10 days from the date you received the statement. Upon your failure to make payment we have the option to cancel this agreement.
“(11) This contract shall remain in force for one year and from year to year from its date without further action on the part of either party unless notice in writing of cancellation is given to the odier party by the party desiring to cancel at least gQ days prior to desired expiration date.
10
L. E. G.
“Evans Grain Company,
By S. Dean Evans, Sr.,
Partner.
Accepted:
L. E. Gridley.”
The plaintiffs wrote a letter to Gridley on January 13, 1956, which also was introduced into evidence by the defendants. It read as follows:
“January 13, 1956
“Mr. Lawrence Gridley
Monument, Kansas
Dear Lawrence:
“Please refer to our contract with you dated June 28, 1955. We have given your matter considerable thought there at Monument and we will have a January 31, 1956 statement ready for you in the next few days at which time we would like to cancel our working agreement with you.
“According to our figures you have some cash wheat at both Grinnell and Monument and you should order clean up cars so that the records will show no cash wheat on hand. Also the records show you have milo at both places and in talking with John Norlin we feel that if we can move it out of Monument at a break even basis we should do so immediately for you to get the money out of the milo to pay us the amount due.
“As soon as you can dispose of these stocks, which should be within the next few days, we will take off an accounting for you.
“Very truly yours,
Evans Grain Company
By S. Dean Evans, Sr.
SDE:eg”
As shown by the last letter, plaintiffs were in the progress o£ closing out their arrangement with Gridley. They contend that he was not authorized to sell wheat at Monument. The letter does not deny him that right which, was clearly provided for in the original contract set out above. In fact, Gridley was expressly advised to sell the milo locally at Monument.
Plaintiffs rely on the cases of Shugar v. Antrim, 177 Kan. 70, 276 P. 2d 372; and Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803, to show that no agency existed between themselves and Gridley. Those cases would seem not to sustain plaintiffs’ position. Actually, certain language in both opinions would indicate that an agency might be thought to exist in the case at bar. In the Antrim case, supra, at page 73, it is said:
“Continental had no control over wheat which was not paid for by draft drawn upon it. Antrim shipped some wheat to others besides Continental.”
In the Bruns case, supra, at page 57, it is said:
“With respect to the Kansas Elevator Company what the evidence does disclose is that it had entered into an arrangement with Jesse Bruns to stake him in the buying of grain — -a not uncommon occurrence in Kansas — with no right to direct his operations except as to the shipping of grain for which it had advanced the money, or to share in the profits, and no thought or intention of assuming liability for his debts.”
Attention is directed to paragraph numbered (5) in the above contract between plaintiffs and Gridley as well as to other provisions of that contract.
The above evidence fully warranted the trial court’s submission of the question of agency to the jury, and the court’s approval of the jury’s verdict and the placing of the plaintiffs as holder of the check in the shoes of Gridley, their immediate endorser and business associate.
Certain other matters urged by plaintiffs as appellants herein have been fully considered, but require no comment in this opinion.
The judgment of the district court is hereby affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
After denying appellants original motion for rehearing on March 12, 1958, this court later granted appellants leave to file a second motion for rehearing. Briefs have been filed by counsel for the appellants and also by amici curiae on this second motion. Finding nothing which warrants a reconsideration of the case the second motion for rehearing is denied.
It is contended the opinion in effect holds that a breach of the implied covenant to fully develop an oil and gas lease will be presumed as a matter of law where the lessee fails to recover all of the recoverable oil within a period of twenty years (1) even though the lease specifies that its term shall be for a primary term of years and as long thereafter as oil or gas, or either of them, is produced from said land by lessee and (2) even though defined legislative policy is contrary to such holding.
Counsel are apprehensive concerning one paragraph of the opinion (Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039) which reads:
“We assign another reason why, in our opinion, the judgment of the trial court is correct. And this reason overrides the assignment of errors specified by the defendants which we have not labored in detail. Upon the whole record presented, taking into consideration all the facts and circumstances, upon which there can be no error predicated, particularly the holding of the lease on the quarter section in controversy for more than 28 years, with production for more than 20 years from the lease totaling to date approximately one million barrels of oil produced, where admittedly the 160-acre lease initially had 112 oil producing' surface acres from the Arbuckle Limestone Formation, under circumstances where the present royalty owners are one generation removed from the original lessors, and confronted with the proposition stated by defendants’ own expert witness that eventually all the recoverable oil from the ten-acre tract in question will be produced by an existing well on the Gibson lease, we are of the opinion that the defendants have not fully developed and produced the lease with reasonable diligence and along such lines as are reasonably calculated to make extraction of oil from the leased lands of mutual advantage and profit to the plaintiffs (successors to the original lessors) and the defendants (successors to the original lessee), and by reason thereof the implied covenants in the lease to develop have been breached. A lessor is entitled to the benefit of oil produced from the lease at the time it should be produced and not at some remote period of time in the future. The lessee is not the sole judge of what constitutes prudent development of the tract. The test is what would be expected of an operator of ordinary prudence, in the furtherance of the interests of both the lessor and the lessee.” (p. 235.)
Counsel then isolate the following language from the paragraph:
“ . . particularly the holding of the lease on the quarter section in controversy for more than 28 years with production for more than 20 years from the lease . . . under circumstances where the present royalty owners are one generation removed from the original lessors. ... A lessor is entitled to the benefit of oil produced from the lease at the time it should he produced and not at some remote period of time in the future.’ (Emphasis added.)”
This language has thus been taken out of context. The entire paragraph must be read in connection with the paragraph which follows it and the entire opinion. As a preface in the quoted paragraph it was specifically stated that the additional reason given was based upon the whole record presented, taking into consideration all the facts and circumstances. No effort will be made to detail all these facts and circumstances upon which no error could be predicated since they are fully disclosed in the opinion. One of the basic facts established by the stipulations was that Section 24 had an area of 40 acres in the center upon which no drilling was ever attempted by the appellants, and that it initially represented an area with oil bearing Arbuckle Limestone Formation of considerable thickness. (While appellants own all the leases on Section 24, it was with some hesitancy that too much emphasis be placed upon this fact because only 10 acres of this 40-acre void in development are involved in the present litigation. The reasons why this large area is undeveloped are not disclosed by the record.) The fact was definitely established that development of the quarter section in controversy was undertaken on a 10-acre well spacing pattern. Original development of the leases on Section 24 disclosed 10-acre locations upon which no drilling was undertaken, but later there was infill drilling on many of these 10-acre locations from 1951 to 1954, none, however, on the 40 acres in the center of the section.
The facts and circumstances to which reference was made further disclosed that appellees had produced substantial evidence to prove that the implied covenant to develop had been breached, thus making out a prima facie case in compliance with the burden cast upon appellees. Appellants undertook to prove in defense that oil from the 10-acre tract in question would be produced through wells on the Gibson lease to the extent that it was economically recoverable — that there was an effective water drive across the undeveloped portions of the lease. Proof by appellants disclosed that eventually all the recoverable oil from the 10-acre tract in question would be produced by existing wells on the Gibson lease.
It is at this point that the time element must be reconciled with the established Prudent Operator Rule. It is well settled that where the existence of oil in paying quantities is made apparent, it is the duty of the lessee to continue the development of the property and to put down as many wells as may be reasonably necessary to deplete the oil and gas reserves underlying the premises for the common advantage of both the lessor and the lessee. Obviously, fulfillment of this obligation might require the drilling of several wells, despite the fact that one well alone might ultimately drain the entire reservoir given unlimited time. In other words, lessees cannot prove compliance with the Prudent Operator Rule by showing they have drilled enough wells to “adequately” drain the recoverable oil from the leased premises “eventually.” Here the requirement to “adequately drain” is conditioned by appellants on the time element — given sufficient time the wells will eventually drain the recoverable oil adequately. Such ambiguity in defense, once the lessors have sustained their burden of proof in accordance with the established law, is equivalent to no defense. Appellants, having thrust the time element into a defense under the Prudent Operator Rule, cannot now be heard to say this court is making a departure from the Rule by inserting a time element into the implied covenant to develop an oil and gas lease. The term “Prudent,” with reference to an Operator of an oil and gas lease, is sufficiently broad to ensnare any ingenious device or scheme conceived to circumvent the plain meaning of the Prudent Operator Rule.
By resorting briefly to figures geometrically it is apparent that a well located on the center of a 10-acre tract must drain a radius of 330 feet (exclusive of the corners in a square beyond this radius). But here Gibson No. 5 (the nearest well) would be required to drain oil from a radius of 990 feet (exclusive of the corners beyond this radius) to eventually drain all the recoverable oil from the 10-acre tract in question.
In view of the foregoing discussion and upon all the facts and circumstances presented by the record appellants’ failure to drill a well on the 10-acre tract in question after an unreasonable delay in time, once having initiated a 10-acre well spacing pattern followed by substantial production, was a failure to fully develop and produce the lease with reasonable diligence and along such lines as are reasonably calculated to make extraction of oil from the leased lands of mutual advantage and profit to the lessors and the lessees, and by reason thereof appellants have failed to comply with the implied covenants to develop the lease. A lessor or his successors are entitled to the benefit of oil produced from the lease at the time it should be produced and not at some remote period of time in the future. Time is thus an element in the Prudent Operator Rule which must be considered in relation to all of the other factors of a given case in the development of an oil and gas lease.
A recital in the quoted paragraph of the specific facts disclosed by the record relative to this time delay was incidental to focusing attention upon the extent of this delay in drilling the location in controversy. By no reasonable interpretation can the opinion be said to state a specific time limitation for the exhaustion of a pool. Many factors make the depletion time of an oil and gas reservoir a matter of great variance. This was recognized by the order of the court in granting appellants four months to commence the drilling of a well. Should oil be found and produced from the 10-acre tract in question by appellants, by drilling prior to cancellation under the order, it may require considerable time before the recoverable oil is produced. Under the terms of the lease appellants would be entitled to produce it within the requirements of state laws and regulations.
A generous supply of proration data is presented in appellants’ brief on motion for rehearing. Unfortunately the record itself is barren of any stipulations or evidence by appellants concerning restrictions or regulation by the State Corporation Commission relative to the Geneseo Pool, except insofar as such information may be inferred from the facts disclosed in the opinion. This was appellants’ choice in presenting its case to the trial court, not a choice of this court nor a disregard by this court of legislation controlling the production of oil and gas. (In Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95, the defendants pleaded the oil and gas proration and conservation laws and the limitation of production by reason of regulation. There the parties stipulated the limited extent to which production of the potential capacity of an oil well was permitted.) To the extent that the appellants’ record in the trial court, as abstracted, presented stipulations and other evidence which incidentally reflected limitations and requirements of good conservation practice and of compliance with the state laws and the orders and regulations of the State Corporation Commission, this court has given them full consideration and proper weight.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an action to foreclose a mechanics lien filed in the district court of Douglas County, Kansas. A general contractor, Otto W. Nitsch, joined as a defendant, built a house on a one-acre tract of land and in his answer requested specific performance of an oral agreement or promise for the conveyance of this tract. The plumbers, plaintiffs, and the lumbermen, defendants, as lien claimants, also sought to enforce this alleged oral agreement and to foreclose their respective hens. The aggrieved parties duly perfected their appeals from all adverse rulings of the lower court after trial and judgment.
The plaintiffs, Waldon L. Norris, Claude V. Norris and Everett L. Norris, doing business as Norris Bros., appellees herein, are a partnership engaged in the plumbing, wiring, heating and air-conditioning business, and will hereinafter be referred to as the plumbers. The defendant, Logan-Moore Lumber Company, appellant herein, a Missouri corporation authorized to do business in Kansas, is engaged in the lumber business and will hereinafter be referred to as Lumber Co. The defendant, Dr. Ray A. Clark, ap-pellee and cross appellant herein, is the owner of the legal title to the land involved in this action, and will hereinafter be referred to as vendor or Clark. Thé defendants, Robert L. Nitsch and Mabel L. Nitsch, husband and wife, appellees herein, contracted to purchase the land involved in this case from Clark, and will hereinafter be referred to as vendees or Robert, omitting reference to the wife. The defendants, Otto W. Nitsch and Gladys Nitsch, husband and wife, appellants herein, are the father and stepmother of the defendant, Robert L. Nitsch, and received a warranty deed from Robert for one acre of the land purchased by Robert from Clark under contract, and they will hereinafter be referred to as assignees, or Otto, omitting reference to the wife.
The case was tried to the district court of Douglas County upon appropriate pleadings in which the issues were joined. The evidence at the trial was conflicting and the trial court made findings of fact and conclusions which it set forth in a memorandum opinion. The findings of fact, insofar as the same are material to the issues herein, may be summarized as follows:
On or about January 26, 1955, Clark purchased the SWh of 2-13S-19E in Douglas County, Kansas. On February 1, 1955, Clark contracted in writing with Robert to sell him a tract of approximately seven acres in the southwest corner of the quarter above described for $8,000, said tract being 700 by 450 feet, the length thereof running north and south. This land will hereinafter be referred to as Tract No. 1. Shortly thereafter Clark decided that he wanted the west 232 feet of the southwest corner of said Tract No. 1 returned to him. He communicated this to Robert whereupon it was orally agreed between them sometime in June, 1955, that the seven-acre tract would be shifted 232 feet to the east and the price reduced from $8,000 to $7,000, so that thereafter the tract Robert was purchasing from Clark was a tract 700 feet north and south by 450 feet east and west, the southwest corner of which was 232 feet east of the southwest corner of Tract No. 1. The tract Robert orally agreed to purchase in June, 1955, will hereinafter be referred to as Tract No. 2.
Near the southeast corner of Tract No. 2 was a barn which Robert tore down, leaving a foundation. Otto assisted Robert in the construction of Robert’s home which was built on a portion of the seven-acre tract. Ry reason of Robert’s indebtedness to Otto it was orally agreed between them, among other things, that Otto could use the barn foundation above mentioned upon which to construct a house.
On or about June 24, 1955, the Lumber Co. began supplying lumber and other building materials to Otto on an open account, it being understood that Otto was going to use such materials in the construction of a home on the site above mentioned. At the time the Lumber Co. began supplying such materials, Otto told the manager of the Lumber Co. that he would get a loan to pay for the same when the house was completed, at which time Robert would convey the land on which the house was built to Otto. The last materials were supplied by the Lumber Co. on September 7, 1955, and on November 9, 1955, its lien statement was filed in the office of the clerk of the district court of Douglas County. The amount claimed in said lien was the sum of $1,899.31 with interest at 6% from September 7, 1955. The lien for said amount was claimed on Tract No. 2. The Lumber Co. had made no previous effort to contact Clark and had made no investigation as to the interest Otto had in the land in question other than to hear the representations made in that connection by Otto at the time the Lumber Co. began supplying building materials. After the Lumber Co.’s lien was filed, its manager contacted Clark and the only response Clark gave was that he “wanted to rid the woods of the Nitsches.”
On or about July 27, 1955, Otto and the plumbers entered into an oral agreement by the terms of which the plumbers were to supply and install certain plumbing, electrical, heating and kitchen equipment and to furnish the labor necessary in connection therewith for an agreed price. At the time of this agreement, the plumbers inquired only as to whether or not Otto would be able to pay for the labor and materials covered by the contract, and upon being assured by Otto in the affirmative, the plumbers proceeded, beginning July 28, 1955, with the plumbing and wiring which had to be done before the fixtures and equipment could be installed and connected. After such preliminary work was completed and prior to the installation of any fixtures and equipment, Claude V. Norris, one of the plumbers, called Clark on the telephone, asked him whether or not he intended to release the land on which the house was being built to Otto, and whether or not Otto would have adequate financing to pay the plumbers’ bill when the house was completed. Clark assured Claude V. Norris that he intended to release the land to Otto and to arrange financing for him when the building was completed. With this assurance from Clark, the plumbers completed their contract. On January 17, 1956, the plumbers filed their lien statement claiming $1,047.60 as a lien on Tract No. 2.
On October 5, 1955, Otto went to an attorney, Wm. L. Lemesany, who at Otto’s request wrote a letter to Clark explaining that Robert had agreed to sell Otto some land on which to build a house, that Otto’s materialmen were pressing for payment, that with Clark’s “mortgage” on the land Robert could not give Otto a clear title, and without such title Otto could not secure a loan on the property and inquired whether or not Clark would release his “mortgage” in exchange for an agreed sum of money which Otto would be able to pay after he secured a loan on the property. Prior to and after the date of this letter Otto had sought Clark’s release of the land on which he had built his house, but to no avail.
On October 7, 1955, Clark and Robert entered into a written contract by the terms of which Clark agreed to sell and Robert agreed to purchase Tract No. 2 for $12,000. This contract in substance reduced to writing the oral arrangement agreed upon in June, 1955, except that among other things, the consideration was increased from $7,000 to $12,000- to include a $5,000 loan made by Clark to Robert on July 28, 1955, by check. The balance owed on this contract by Robert on the date of trial was $11,000, payable $75 per month with interest at 6% per annum on the unpaid balance.
Before Otto began construction of his house he talked with Clark about helping Clark develop his acreage. Otto was a building contractor in Norton, where he allegedly had constructed some 13 houses. At this time Otto was talking in terms of building a small moveable shack in which he could live while engaged in his building operations. At one time this shack was going to be built back of the present site of Clark’s home on the west 232 feet of Tract No. 1. Later the shack was to be built back of the site of Robert’s home, and finally Robert permitted what is now the house in controversy to be built on the old barn foundation previously mentioned. During much of the time between the start of construction on Clark’s home in the early summer of 1955, and January, 1956, Otto worked off and on for Clark, at one time early in this period having borrowed $300 which Clark permitted him to work out.
The trial court specifically found:
“. . . Vendor knew assignees were building on the bam foundation and objected several times to assignees building there but made no real effort to stop them believing, as he said, that they were building a house to move. As a matter of fact at one time vendor told Otto that if everything worked out all right he, vendor, would release the land to assignees, but at no time did vendor and assignees arrive at any definite agreement, written or oral, by the terms of which vendor bound himself to release the land in question to assignees.”
The house built by Otto did not contain the square footage required by the contract dated October 7, 1955, which Clark had with Robert. An attorney, Robert B. Oyler, went to Clark’s office in this connection and secured from Clark a statement dated December 7, 1955, which reads:
“This is to certify that I will sign an amendment to the contract for Robert L. Nitsch allowing him two years to enlarge one building on the land to meet restrictions provided all construction costs are cleared.”
Clark testified that the building referred to in the above statement was the house on Tract No. 3, hereafter described.
On February 15, 1956, Robert gave Otto a warranty deed to a tract 436.6 feet north and south by 100 feet east and west, the southwest corner thereof being 582 feet east of the southwest corner of Tract No. 1. This tract, comprising exactly one acre, is the land upon which Otto constructed his home on the barn foundation and will hereinafter be referred to as Tract No. 3. At the time this deed was given, Otto knew Robert was purchasing Tract No. 3 and the other land in Tract No. 2 from Clark and that Otto’s title was subject to Clark’s interest.
On August 13, 1956, the plumbers filed this action to foreclose their lien on Tract No. 2, joining as defendants in their petition all parties heretofore mentioned. The Lumber Co., thereafter, in addition to answering, filed a cross-petition to foreclose its lien on Tract No. 2. Clark, Robert and Otto have answered the pleadings of the plumbers and the Lumber Co.
At the trial Clark’s demurrer, both to the evidence of the plumbers and the Lumber Co., was sustained insofar as it pertained to the attachment of a lien upon land other than that contained in Tract No. 3, and overruled insofar as it pertained to Tract No. 3.
The trial court on the 25th day of March, 1957, announced its decision. It found that the plumbers and the Lumber Co. were, respectively, entitled to judgment against Otto for the total amounts claimed in their pleadings; that the mechanics’ liens filed by the plumbers and the Lumber Co. (as amended by the court) should be foreclosed; that the plumbers’ hen attached to Tract No. 3 and was prior to the interest of Otto and Clark therein; that Clark had an interest in Tract No. 3 valued at $7,000; that the Lumber Co.’s lien attached to Tract No. 3 and was prior to the interest of Otto, but was subject to and did not attach to' the interest of Clark; and that Robert had no interest in Tract No. 3 except the obligation of paying Clark for it.
The journal entry decreed in accordance with the foregoing findings and ordered the property sold.
Otto and the Lumber Co. appeal to this court asserting as their principal contention error of the trial court in not rendering a judgment for the specific performance of an oral contract between Clark and Otto. This contention may be answered briefly by stating that the trial court upon conflicting evidence presented at the trial found that no oral agreement existed between Clark and Otto.
The trial court in its order ruling the motions for a new trial stated:
“In their argument, counsel for Lbr. Co. and for assignees interpreted the Court’s findings as entitling assignees to a conveyance of Tract No. 3 from vendor and requested that the Court decree specific performance accordingly. This being done, vendor would be out of the picture with his vendor’s lien on Tract No. 3 and Lbr. Co.’s lien would be on a par with the lien of plaintiff.
“The difficulty with this argument is that the Court’s findings were, that at no time, either orally or in writing, did vendor bind himself to release or convey his interest in Tract No. 3 to assignees. Likewise, the findings were, that at no time did vendor subject his interest in said Tract to the lien of Lbr. Co. Since there was no contract binding vendor to release or convey to assignees, there is nothing upon which equity can predicate specific performance.”
Clark appealed from the judgment entered March 25, 1957, awarding the plumbers a prior lien; from the order overruling his motion for a new trial; and from all other adverse rulings.
The contention of Clark is that the house built by Otto is personal property and no mechanic’s lien can attach. (Lumber Co. v. Larmor, 110 Kan. 670, 205 Pac. 621; and State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 283 P. 2d 461.) This contention will be considered later. Clark also contends that the lien statements of both lien claimants are void because the name of one of the owners is not mentioned in either of the lien statements. (Citing, McHenry v. McHenry, 150 Kan. 498, 95 P. 2d 261; Lang v. Adams, 71 Kan. 309, 80 Pac. 593; Blattner v. Wadleigh, 48 Kan. 290, 29 Pac. 165; and Glass Co. v. Mill Co., 1 Kan. App. 614, 42 Pac. 387.) For this reason it is asserted the demurrer to the evidence of the lien claimants should have been sustained. Clark calls attention to the fact that both claimants in their respective pleadings allege that the land against which they claim a lien is owned by Otto W. Nitsch and Gladys Nitsch; that they attach to their pleadings a copy of a deed from Robert L. Nitsch and Mabel L. Nitsch, his wife, conveying the one-acre tract to Otto W. Nitsch and Gladys Nitsch; and that the lien statements omit the name of Gladys Nitsch.
The appellees (plumbers) counter by calling the court’s attention to the fact that Clark did not at any time raise this issue in the lower court. Upon examination of the record presented to this court, it does not affirmatively appear that the question was presented to or determined by the trial court. This court has repeatedly held that where it does not affirmatively appear that a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. (Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215; Holton v. Holton, 172 Kan. 681, 243 P. 2d 222; Wests Kansas Digest, Appeal and Error, § 169; and Hatcher s Kansas Digest, Appeal and Error, § 304.)
While the facts in the instant case are voluminous and somewhat complicated, the issues are relatively simple.
The principal question presented is whether Otto owned such an interest in Tract No. 3 that it could be subjected to a mechanic’s lien.
The deed from Robert to Otto on February 15, 1956, confirmed in all respects the previous oral contract whereby Otto was placed in the possession of Tract No. 3 prior to the construction of the house in question. The legal effect of the agreement between Otto and Robert was the assignment to Otto of all the right, title and interest of Robert in and to Tract No. 3. There is no question but that Robert had an equitable interest in this real estate under his contract with Clark. Otto was put in possession by Robert, was in possession when the contracts with the lien claimants were made, as well as during the period of the construction of the house in question. He became and now is the equitable owner of Tract No. 3, subject to the interest of Clark who owns the legal title. Under the provisions of G. S. 1949, 60-1401, the owner of an equitable interest in real estate is such an owner as may subject his interest to a mechanic’s hen. (Getto v. Friend, 46 Kan. 24, 26 Pac. 473; Lumber Co. v. Fretz, 51 Kan. 134, 32 Pac. 908; Bond v. Westine, 128 Kan. 370, 278 Pac. 12; see, also, annotation in 2 A. L. R. 794 supplemented in 95 A. L. R. 1095.)
This court has held that a person in possession of real estate under a verbal agreement to convey the fee simple title to him is an owner thereof within the meaning of our statute relating to a mechanic’s lien, and may subject his interest therein to such a lien. (Bond v. Westine, supra; and Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019.)
Did contracts which Otto had for labor and materials with the lien claimants subject the interest of Clark in Tract No. 2 to the liens of the plumbers and the Lumber Co.?
For a lien to attach under the statute it is not necessary that the contract for labor and materials be made with the one who owns the fee title. Ordinarily the right to a lien upon real property is limited to the interest of the person for whom or at whose instance the labor was performed or the materials furnished. (Huff v. Jolly, 41 Kan. 537, 21 Pac. 646; Getto v. Friend, supra; 36 Am. Jur., Mechanics’ Liens, § 84, p. 68; and see, also, note in 102 A. L. R. 234.) Reference is made to Seitz v. U. P. Railway Co., 16 Kan. 133, where the facts and legal questions presented were closely analogous to the instant case.
The following is stated in 58 A. L. R. 912:
“Under statutes confining mechanics’ liens to claims for labor or materials furnished for improvements made under contract with the owner, or proprietor, it may be stated generally that a contract for labor and materials, made by a vendee, will not subject the legal owner’s interest to a lien, even if the latter has knowledge that the labor and material are being furnished . . .”
Ey reason of the foregoing principles of law the contracts Otto had with the plumbers and the Lumber Co., which resulted in the filing of mechanics’ liens on Tract No. 2 for labor and materials, did not subject the legal estate or affect the rights of Clarlc holding the legal title to Tract No. 2, but subjected only the equitable estate of Otto in Tract No. 3 to the liens. The demurrer of Clark to the evidence of the lien claimants was properly sustained insofar as it pertained to the attachment of liens upon real estate other than that contained in Tract No. 3.
Did Clark himself do anything which subjected his interest in Tract No. 3 to the mechanic’s hen of either the plumbers or the Lumber Co.?
Where improvements are contracted for and made with what is deemed to be the consent and authority of the vendor of real estate, a lien arises on the latter’s interest, as well as on that of the purchaser. (White v. Kincade, 95 Kan. 466, 148 Pac. 607; and see, 58 A. L. R. 949.) If, however, a vendor does no affirmative act to induce the materialmen to advance the credit upon which the lien is claimed, a vendor retaining title under a contract of sale is not estopped to assert his title as against one claiming a lien for materials furnished the purchaser. (Fine v. Dyke Bros., 175 Ark. 672, 300 S. W. 375, 58 A. L. R. 907.) Those who furnish labor and materials to the purchaser of real estate are bound under the ordinary rules of law to ascertain the nature and extent of the purchaser’s equity in the real estate. (Getto v. Friend, supra.)
Upon the foregoing rules of law it is clear from the facts that the Lumber Co.’s lien did not attach to the interest of Clark. On the other hand, although the plumbers made no inquiry of Clark at the time they began supplying labor and materials to Otto, they did before the fixtures and equipment were delivered and connected, have Clark’s assurance that he intended to release Tract No. 3 to Otto and help him finance the building when the house was completed. This was an affirmative assurance by Clark which induced the plumbers to advance further credit to Otto for materials and labor in the construction of the house on Tract No. 3 upon which the lien is claimed. Under these facts and circumstances it would be inequitable to hold that Clark did not subject his interest in Tract No. 3 to the plumbers’ lien. We therefore hold that such assurance on the part of Clark subjected his interest in Tract No. 3 to the lien of the plumbers.
The foregoing statements of the law and conclusions are substantially those stated by the trial court in its memorandum opinion dated March 25, 1957, pursuant to which it entered judgment.
The trial court found the extent of Clark’s interest in Tract No. 3 to be $7,000, Various arguments are advanced challenging this finding. Clark contends that it should be $11,000, the balance due on the contract he has with Robert, while Otto and. the Lumber Co. think it should be considerably less. It must be remembered that Tract No. 3 is a component part and superimposed upon Tract No. 2 upon which Clark has a contract with Robert. By oral agreement the original written contract was subsequently modified in June, 1955, to cover Tract No. 2, when the purchase price was changed from $8,000 to $7,000. The $5,000 which Clark loaned Robert on July 28, 1955, by check was to pay for materials and labor in the construction of Robert’s house on Tract No. 2. The trial court found that a vendor’s lien of $7,000 existed before the Lumber Co. supplied any materials for the building here in question. The Lumber Co. began supplying lumber on June 24, 1955. G. S. 1949, 60-1401, gives the lien of a mechanic preference over all liens or encumbrances which may attach subsequent to the commencement of the building. It follows that the additional amount over $7,000 written into the contract of October 7, 1955, between Clark and Robert was subsequent to the lien of the Lumber Co. In cases where the matter is governed by statute the law is followed and equity cannot be invoked. (Beeson v. Lotz, 101 Kan. 399, 166 Pac. 466; and Pownall v. Connell, 155 Kan. 128, 122 P. 2d 730.)
Other questions raised by the parties to this appeal, in ■ effect, ask this court to determine the credibility of the witnesses, weigh the evidence and assume the position of the trier of the facts. This is not the function of appellate review. A trial court’s findings of fact will not be disturbed where there is competent and substantial evidence to support them. (McHenry v. McHenry, 150 Kan. 498, 95 P. 2d 261; and cases therein cited.) While there is conflicting testimony as to some matters covered in the findings of fact, we find from a careful examination of the record that there was ample evidence to support the findings heretofore recited.
Upon all of the facts and circumstances herein presented, we conclude that the trial court was correct in its application of the law to the facts.
The judgment of the lower court is affirmed. | [
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