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The opinion of the court was delivered by
Beier, J.:
This appeal requires us to decide whether Norton County (County) lawfully employed its home rule power to pass an ordinary resolution regulating confined animal feeding operations (CAFOs) more strictly than they are regulated by the State.
The Board of County Commissioners of Norton County passed Home Rule Resolution 2002-06, attempting to regulate CAFOs within the County’s borders. The individual plaintiffs are CAFO operators affected by the resolution. Before the resolution’s passage, each plaintiff had received a permit from the State that would have allowed expanded operations. With the adoption of the resolution, expansion was prevented. The individual plaintiffs and the Kansas Livestock Association filed this declaratory judgment action to strike down the resolution.
The district judge held that the resolution exceeded the County’s home rule authority and that the State had manifested a clear intent to preempt the field of CAFO regulation. The district judge relied in part on the language of K.S.A. 2003 Supp. 19-101a(a)(30) and noted that the legislature “reserve [d] exclusive jurisdiction in a particular area by enacting a law of uniform application throughout the [S]tate, which manifested] a clear intent to preempt the field.” The district judge also held, in the alternative, that the resolution’s provisions regarding separation distances constituted an unlawful attempt to engage in zoning of agricultural land.
The County now appeals.
To the extent the district judge relied on K.S.A. 2003 Supp. 19-101a(a)(30) or other statutes, our review of his decision'is de novo. “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute.” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). We also have plenary or de novo review of preemption questions, which are questions of law. Doty v. Frontier Communications, Inc., 272 Kan. 880, 888, 36 P.3d 250 (2001); Lindemuth v. Goodyear Tire & Rubber Co., 19 Kan. App. 2d 95, 99, 864 P.2d 744 (1993).
Kansas counties derive all of their home rule authority from a statutory scheme originally enacted in 1974. See K.S.A. 19-101 et seq.
“Home rule powers are those granted ... by legislative act to units of local government to transact local business and perform such local and administrative duties as these local units may deem appropriate .... Counties in Kansas are now empowered to transact all county business . . . subject, however, to the restrictions and prohibitions set forth in K.S.A. 2001 Supp. 19-101a.” Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, Syl. ¶ 2, 62 P.3d 247 (2003).
See also State ex rel. Stephan v. Board of Lyon County Comm’rs, 234 Kan. 732, Syl. ¶ 6, 676 P.2d 134 (1984) (Counties have no constitutional basis for home rule; authority dependent upon legislation). Unlike city home rule, county home rule is not provided for in the Kansas Constitution. See Kan. Const. art. 12, § 5 (city home rule provision). However, we recognize that “Kansas county home rule powers are to be liberally construed for the purpose of giving counties the largest measure of self-government.” Board of Trego County Comm’rs v. Kansas Dept. of Revenue, 261 Kan. 927, Syl. ¶ 3, 933 P.2d 691 (1997); see K.S.A. 19-101c (county home rule powers to be liberally construed).
The portions of K.S.A. 2003 Supp. 19-101a we regard as influential in this appeal read:
“(a) The board of county commissioners may transact all county business and perform all powers of local legislation and administration it deems appropriate, subject only to the following limitations, restrictions or prohibitions;
(30) Counties may not exempt from or effect changes in K.S.A. 2-3302,2-3305, 2-3307, 2-3318, 17-5904, 17-5908, 47-1219, 65-171d, 65-1,178 through 65-1,199 or K.S.A. 2003 Supp. 17-5909, and amendments thereto.
“(b) Counties shall apply the powers of local legislation granted in subsection (a) by resolution of the board of county commissioners. If no statutory authority exists for such local legislation other than that set forth in subsection (a) and the local legislation proposed under the authority of such subsection is not contrary to any act of the legislature, such local legislation shall become effective upon passage of a resolution of the board and publication in die official county newspaper. If the legislation proposed by the board under authority of subsection (a) is contrary to an act of the legislature which is applicable to the particular county but not uniformly applicable to all counties, such legislation shall become effective by passage of a charter resolution in the manner provided in K.S.A. 19-101b, and amendments thereto.”
What is now subsection (a)(30) of 19-101a was first added to the county home rule statutes in 1998 (as subsection [a][28]), when the legislature passed Substitute for House Bill 2950. See L. 1998, ch. 143, sec. 39. That bill provided for comprehensive state regulation of CAFOs, including the subjects dealt with in the County’s Home Rule Resolution 2002-06. In 1999, the legislature amended 19-101a to include subsection (a)(30) in its current form, as previously quoted. See L. 1999, ch. 146, sec. 4.
Several other subsections of 19-101a(a) use the “may not exempt from or effect changes in” language selected by the legislature for subsection (a)(30). See, e.g., K.S.A. 2003 Supp. 19-101a(a)(9), (12), (14) to (21), (23) to (27), and (29) to (32). Several other subsections use alternate wording. For example, subsection (a)(3) states: “Counties may not affect the courts located therein.” Subsection (a)(6) says: “Counties may not legislate on social welfare . . . .” Subsection (a)(ll) says: “Counties shall have no power under this section to exempt from” certain statutes.
These wording differences among the subsections of K.S.A. 2003 Supp. 19-101a(a) are the basis for the County’s first argument on appeal. It asserts that subsection (a)(30) was designed only to prevent counties from chartering out from under the state statutes governing CAFOs through K.S.A. 19-101b, not to prevent them from concurrently regulating CAFOs more strictly than the State through the passage of ordinary resolutions under K.S.A. 2003 Supp. 19-101a(b). In the County’s view, if the legislature had wanted counties also to be unable to pass ordinary resolutions under 19-101a(b), it would have worded subsection (a)(30) as a clear prohibition, as it did with subsections (a)(3), (6), and (11), rather than using the word "exempt,” which also is used in K.S..A. 19-101b.
The County also argues that its resolution is merely supplemental to, not in conflict with, state regulation of CAFOs. In essence, according to the County, the State must have already expressly permitted something in order for a county resolution prohibiting the same thing to cause a conflict. The County asserts that its home rule resolution neither exempts it from or effects changes in state law in violation of subsection (a)(30) nor qualifies as “contrary to any act of the legislature” in violation of K.S.A. 2003 Supp. 19-101a(b). The resolution merely prohibits activities that had been implicitly permitted by the State, the County argues.
These arguments are counterintuitive. In addition, they are weakened by the County’s reliance on city, rather than county, home rule cases. It is true that Kansas cases examining city home rule have held no conflict was created when a city ordinance was merely more restrictive or demanding than a state statute, see City of Wichita v. Hackett, 275 Kan. 848, 851, 69 P.3d 621 (2003) (city ordinance prohibiting driving bicycle while intoxicated upheld); Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 625-26, 549 P.2d 864 (1976) (no conflict between city ordinance regulating hours of alcohol consumption, club closings and state Liquor Control Act, Private Club Act); City of Junction City v. Lee, 216 Kan. 495, 502-04, 532 P.2d 1292 (1975) (city ordinance forbidding carrying weapon not preempted by state statute on concealed weapons), but these cases do not control in the county home rule arena.
We have articulated the following standard for when a conflict exists between a county enactment and a state statute: “The primary method for determining whether an ordinance or resolution of a county is inconsistent with a state statute is to see whether the local law prohibits what the state law permits or the state law prohibits what the local law permits.” Trego County, 261 Kan. 927, Syl. ¶ 5; see Missouri Pacific Railroad v. Board of Greeley County Comm’rs, 231 Kan. 225, 227, 643 P.2d 188 (1982).
This court has previously decided nine county home rule cases governed by the 1974 legislation or amendments thereto: General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 66 P.3d 873 (2003); Nielander, 275 Kan. 257; Trego County, 261 Kan. 927; Dillon Stores v. Lovelady, 253 Kan. 274, 855 P.2d 487 (1993); Blevins v. Hiebert, 247 Kan. 1, 795 P.2d 325 (1990); Moody v. Board of Shawnee County Comm’rs, 237 Kan. 67, 697 P.2d 1310 (1985); Board of Sedgwick County Comm’rs v. Noone, 235 Kan. 777, 682 P.2d 1303 (1984); Board of Lyon County Comm’rs, 234 Kan. 732; and Missouri Pacific Railroad, 231 Kan. 225.
In all but three of these cases, this court struck down the county home rule action in question. The facts of the three cases in which we ruled otherwise are so distinct that they provide no guidance here. The resolution in General Building Contr., LLC dealt with a county’s exercise of eminent domain power. Dillon Stores dealt with a county’s hiring of an accounting firm to assist with the work of the appraiser. Moody rejected challenges under the First, Fourth, and Fourteenth Amendments to the United States Constitution to a county resolution regulating “adult” entertainment establishments. 237 Kan. at 76-78.
Of the six cases in which we struck down a county home rule resolution, Trego County bears the strongest factual resemblance to the case now before us. In that case, Trego County attempted through ordinary resolution to add requirements beyond those set forth by the State for the position of county appraiser. See K.S.A. 2003 Supp. 19-101a(a)(14), which states: “Counties may not exempt from or effect changes in” the state statute containing the requirements for that job. Although Trego County’s effort, like the effort of Norton County here, could have been characterized as concurrent supplemental regulation merely setting forth more rigorous requirements not expressly prohibited by the State, this court held that Trego County had effected a change in the state statute and thus exceeded its home rule power under 19-101a(a)(14). 261 Kan. at 933-35.
We arrived at an identical conclusion in Nielander. In that case, Lincoln County passed a resolution giving its county commissioners exclusive authority to handle county personnel and then attempted to dismiss a deputy sheriff over the objections of the sher iff. See K.S.A. 2003 Supp. 19-101a(a)(15), which provides: “Counties may not exempt from or effect changes in” the state statute giving county sheriffs sole authority to manage their deputies. Again, we struck down the county resolution, recognizing that Lincoln County’s action was an attempt to effect changes in the state provision. 275 Kan. at 266-67.
The reasoning and outcomes of Trego County and Nielander control here. The County’s resolution imposes CAFO requirements that are more strict than those imposed by the State. The County is trying to exempt itself from or effect change in the state statutory provisions in violation of subsection (a)(30), and the resolution cannot stand.
On the facts of this case, we also can dispose of this appeal by holding that the County’s home rule resolution fails because it is “contrary to any act of the legislature” under K.S.A. 2003 Supp. 19-101a(b). As counsel for the County was forced to admit at oral argument, the “local law prohibits what the state law permits,” albeit implicitly. See Trego County, 261 Kan. 927, Syl. ¶ 5. We see no language in the county home rule statutes or cases to justify the County’s attempt to distinguish express from implicit Kansas statutory permission for a given CAFO activity. That which is not prohibited by tire statutory CAFO provisions is necessarily permitted by such provisions. When a County prohibits the same CAFO activity, its prohibition is “contrary to any act of the legislature.” The County’s argument that there was no conflict here is nothing more than a word game, exalting form over substance.
Given these two sound, alternative reasons for disposition of this matter, we see no need to address the parties’ arguments on express or implied state preemption of the County’s resolution. Suffice it to say that the analytical distinction between a county resolution that exempts a County from or effects changes in a state statutory requirement, one that is contrary to any act of the legislature, and one that has been expressly preempted may be exceedingly difficult to discern in certain circumstances, including those before us here.
The County also makes a halfhearted effort to justify its home rule resolution on the basis of its police power to regulate public safety and health. Before the legislature’s blanket grant of home rule power to counties in 1974, police power was repeatedly invoked to avoid what was then known as Dillon’s rule (local governments may exercise only those powers specifically granted by legislature). See General Building Contr., LLC, 275 Kan. at 533-34. Dillon’s rule prevented counties from legislating in any area other than one authorized in advance by passage of a specific statute. The enactment of county home rule statutes, K.S.A. 19-101 et seq., ehminated Dillon’s rule and, to a large extent, the need for police power analysis to justify a County’s legislative acts. See 275 Kan. at 534. To the extent such analysis survives, however, we note that a County’s exercise of police power still cannot conflict with state law. See Blevins, 247 Kan. at 5-10. Because we have already recognized a conflict between Kansas statutes and the resolution at issue here, the County’s police power argument cannot rescue the home rule resolution.
We also are not persuaded by the County’s argument based on uniformity or lack thereof in this particular context. To the extent uniformity has a role in the validity of county ordinary resolutions, we are satisfied that the state CAFO statutes which we are concerned with were uniformly applicable to all counties when Norton County passed its home rule resolution at issue. The only nonuniform statutory provision pointed out by the County was in effect for less than 1 year after initial passage of the CAFO legislation, from May 7 through December 31, 1998. See L. 1998, ch. 143, sec. 38.
• Finally, we also need not address the district court’s alternative holding on agricultural zoning. Our previous rulings mean the outcome in the district court had ample support without this alternative rationale.
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The opinion of the court was delivered by
Nuss, J.:
This case concerns a consumer credit transaction between borrowers David and Ronda Green and their lender Johnson County Auto Credit, Inc. (Auto Credit). The loan was secured by the Greens’ van which Auto Credit repossessed and sold because it believed its collateral had been significantly impaired. The district court granted Auto Credit a deficiency judgment , against the Greens but also granted judgment to the Greens on their counterclaim because the repossession violated the Uniform Consumer Credit Code (UCCC), K.S.A. 16a-l-101 et seq. The court also granted the Greens’ accompanying request for attorney fees under the UCCC.
Auto Credit appealed, and, in a split decision, the Court of Appeals reversed. Johnson County Auto Credit, Inc. v. Green, 31 Kan. App. 2d 250, 62 P.3d 680 (2003). It essentially held that a borrower’s failure to insure a secured vehicle — as required by the terms of a consumer credit transaction — overrides all other facts and by itself constitutes significant impairment of the collateral as a matter of law under K.S.A. 16a-5-109. We granted the Greens’ petition for review under K.S.A. 20-3018(b).
The parties present three issues on appeal:
1. Did the Court of Appeals apply an erroneous standard of review?
2. Did the Court of Appeals err by holding that the failure to insure a secured vehicle, by itself, constitutes significant impairment under K.S.A. 16a-5-109(2) as a matter of law?
3. Did the district court err in awarding attorney fees?
We reverse the Court of Appeals and affirm the district court.
FACTS
In February 1996, David and Ronda Green purchased a 1989 Ford Aerostar van from Shawnee Mission Ford, making a down payment of $3,000 and financing the remaining $7,598.18 through Auto Credit. The Greens executed and delivered to Auto Credit a promissory note and security agreement, granting to Auto Credit a security interest in the van and promising to make weekly payments of principal and interest of $65.34.
Terms of three separate agreements signed by the Greens required them to carry insurance on the van. Accordingly, the Greens purchased insurance coverage and furnished proof of insurance to Auto Credit. However, on November 6, 1997, their insurer, California Casualty Group, gave notice to Auto Credit of its intention to cancel the van’s insurance 15 days later on November 21 for nonpayment of premium. The notice provided that cancellation was rescindable if the “Premium Due” was paid by November 21. Auto Credit received no further notice of whether the Greens’ insurance was cancelled or continued and made no inquiry of the Greens or of the Greens’ insurer. The Greens later acknowledged their van’s insurance coverage terminated on November 21 for nonpayment of premium.
Per one of the signed agreements, Auto Credit had reserved the option to purchase insurance coverage and to add the cost to the Greens’ payment obligation. Despite the notice from the Greens’ van insurer of imminent insurance cancellation, Auto Credit declined to purchase insurance for the van because its usual practice was not to do so for uninsured vehicles in which it holds a security interest.
Shortly thereafter on November 14, because the Greens had been unable to maintain their schedule of obligations, the Greens and Auto Credit executed an extension agreement providing payment of past due interest and for extension of time to make the next installment payment. Despite the notice from the Greens’ van insurer of imminent insurance cancellation, Auto Credit made no demand on the Greens to provide additional proof of coverage.
After signing the extension agreement on November 14, the Greens made five additional payments but failed to make any after December 22.
On January 7,1998, Auto Credit received the following undated, handwritten note from Mrs. Green:
“Johnson County Auto Credit
“We here we [sic] are again! Our financial situation is falling fast. I am so sorry. We really appreciate all the work you’ve done for us. We have an appointment on Jan. 12th concerning these issues. We’ll be back in contact then!
“Thanks & Sorry again
“Mrs. Ronda Green.”
The same day Auto Credit received Mrs. Green’s note, it ordered Full Moon Recovery Services to repossess the Greens’ van. The special instructions from Auto Credit on the repossession order stated: “We think these folks are going to file bankrupsy [sic].” The van was repossessed from the Greens’ residence the next day, January 8.
On February 23, 1998, Auto Credit sold the van for $1,400. It then sued the Greens for the amount of the deficiency on the loan, and the Greens counterclaimed, alleging that Auto Credit repossessed the van in violation of K.S.A. 16a-5-109.
Auto Credit argued to the district court that it relied upon the following factors to establish its belief of significant impairment of the collateral and to justify its' repossession: "
1. The Greens’ past payment history and current "status of delinquency in payment on the extension agreement;
2. the notice of cancellation of insurance coverage dated November 6 and effective November 21;
3. the inability to contact the Greens by phone after two attempts;
4. the handwritten note from Mrs. Green, which Auto Credit interpreted to mean the Greens were filing for bankruptcy.
The district court found that payment was 15 days in arrears. It also found, however, that the Greens did not attempt to conceal their whereabouts, despite Auto Credit’s assertion that it was unable to contact the Greens on two occasions. The court additionally found, based on the testimony of Auto Credit’s employees, that there was no evidence that the vehicle was not at the appropriate location, was in the hands of third parties, had been damaged or allowed to deteriorate, or was otherwise in physical jeopardy.
The district court also found that Mrs. Green remained communicative with Auto Credit by sending a written ápology for any late payment and by advising Auto Credit of her intent to' meet with an advisor concerning her financial situation. It further found that Mrs. Green’s note “expressed no intent to pursue bankruptcy and was subject to several reasonable interpretations.” The court additionally found that Auto Credit made no attempt to contact the Greens for an explanation of the note prior to ordering repossession of the van, but simply assumed that they intended to declare bankruptcy, although they never specifically used the word “bankruptcy” during their communications with Auto Credit.
The district court then ruled as follows:
“The court finds that Plaintiff has failed to prove that it reasonably deemed the collateral or prospect of payment to be impaired. The repossession [of] Defendants’ automobile was a wrongful taking and Defendants are therefore entitled to the reasonable replacement value of their automobile at the time of its taking, i.e., $2,925.00. However, the court also finds that Plaintiff did prove that the balance due on tire promissory note was $2,727.70 and Defendants are entitled to set off the value of the vehicle of $2,925.00 against the balance due on the note claimed by Plaintiff in the amount of $2,727.70, leaving a net judgment in favor of Defendants Green in the sum of $197.30.”
In. a separate journal entry of judgment, the district court reiterated that the taking of the van violated K.S.A. 16a-5-109 and that the court was without discretion to deny the Greens’ prayer for an award of attorney fees. It awarded $5,000 for attorney fees, considering the complexity of the issues, the removal of the case from a lower court, the discovery, the research necessary, the trial of the case, and the submission of suggested findings and supplemental suggested findings.
Auto Credit appealed both determinations. A split Court of Appeals reversed on the significant impairment issue, which made the attorney fees award moot.
ANALYSIS
Issues 1 and 2: Did the Court of Appeals apply an erroneous standard of review and, if so, did the district court correctly determine that the collateral was not significantly impairedP
Our threshold task is to determine the standard of review. The Greens contend that the Court of Appeals failed to apply the proper standard. They assert that the district court issued a negative finding when it determined that Auto Credit failed to prove that the prospect of payment, performance, or realization of collateral was significantly impaired. See In re Estate of Haneberg, 270 Kan. 365, 374, 14 P.3d 1088 (2000) (A negative finding means the party with the burden of proof failed to meet that burden.). See also K.S.A. 16a-5-109 (creditor has burden of establishing significant impairment). As a result, they contend we should not disturb this negative finding absent proof of arbitrary disregard of undisputed evidence or some extrinsic circumstance such as bias, passion, or prejudice. See 270 Kan. at 374.
Auto Credit, however, examines the language of the Court of Appeals’ opinion and essentially argues that the Greens’ admitted failure to maintain insurance is a breach of contract, that the determination of significant impairment is one of law, and that our review is therefore unlimited. See Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
The Court of Appeals did not articulate the standard it used for reviewing the district court’s decision but stated:
“We hold that when the terms of the promissory note or security agreement for a loan to purchase an automobile require the borrower to insure the vehicle and the borrower defaults on this provision, the collateral is significantly impaired as a matter of law pursuant to K.S.A. 16a-5-109(2) and the automobile may be attached by the lender.” (Emphasis added.) 31 Kan. App. 2d at 256.
Auto Credit, and the Court of Appeals, are incorrect for two reasons.
First, whether an impairment is significant under K.S.A. 16a-5-109(2) is a question of fact. In the two cases where this court has addressed the issue, we upheld both district courts’ findings of significant impairment on the basis that substantial competent evidence supported their determinations. See Medling v. Wecoe Credit Union, 234 Kan. 852, 859, 678 P.2d 1115 (1984); Prairie State Bank v. Hoefgen, 245 Kan. 236, 248, 777 P.2d 811 (1989). In other words, each district court determined that the creditor had met its burden of proof on the issue. See K.S.A 16a-5-109.
Second, and more important, the district court in the instant case — unlike the district courts in Medling and Hoefgen — determined that the creditor failed to meet its burden of proof to show significant impairment. This is a negative finding, and as the Greens point out, our resultant standard of review would be even less stringent than the one we used in Medling and Hoefgen. See Haneberg, 270 Kan. at 374.
As discussed below, the Greens prevail under both standards, i.e., negative finding and substantial competent evidence. There is no proof of the district court’s arbitrary disregard of undisputed evidence or the influence of some extrinsic circumstance such as bias, passion, or prejudice. Furthermore, the findings of the district court are supported by substantial competent evidence. More particularly, contrary to the Court of Appeals’ decision, the Greens’ failure to insure a secured van — as required by the terms of their consumer credit transaction — does not override all the other facts in this case and does not by itself constitute significant impairment of the collateral as a matter of law under K.S.A. 16a-5-109.
Before further analyzing how the Greens satisfy even die higher standard, a look at the statutoiy and case law is required.
As stated previously, this transaction is subject to the UCCC. While the rights of the creditor and debtor in the default of a secured transaction are controlled by the Uniform Commercial Code (UCC), K.S.A. 84-9-101 etseq., such rights nevertheless may be changed by the UCCC. Kelley v. Commercial National Bank, 235 Kan. 45, 51, 678 P.2d 620 (1984); see K.S.A. 84-9-203(4) (transaction subject to the UCC may also be subject to the UCCC). Where provisions of the UCC and the UCCC conflict, the provisions of the UCCC shall control. Kelley, 235 Kan. at 51.
The UCCC is more restrictive than the UCC on the subject of default. K.S.A. 16a-5-109 provides as follows:
“An agreement of the parties to a consumer credit transaction with respect to default on the part of the consumer is enforceable only to the extent that
“(1) the consumer fails to malee a payment as required by agreement; or
“(2) the prospect of payment, performance, or realization of collateral is significantly impaired; the burden of establishing the prospect of significant impairment is on the creditor.” (Emphasis added.)
In short, under the UCCC a creditor seeking to enforce the terms of a consumer credit transaction against a consumer who has defaulted on those terms can do so only if either (1) the consumer fails to make a payment required by the agreement or (2) the prospect of payment, performance, or realization of collateral is signif icantly impaired. Confining default to these scenarios is designed to prevent abuse of the consumer by the creditor. See K.S.A. 2002 Supp. 16a-5-109, Kansas Comment, 2000, subsection 1; Prairie State Bank v. Hoefgen, 245 Kan. at 243 (creditor no longer has unilateral power to define “default” as broadly as he desires in the security agreement).
While both scenarios are the product of efforts to protect the consumer, they also contain a fundamental difference. A creditor seeking to enforce based on the consumers failure to make a payment is required to send the consumer a notice of the consumer’s right to cure. See K.S.A. 16a-5-110(l). The consumer then has 20 days to cure. See K.S.A. 16a-5-111. The philosophy is to give the consumer a fair opportunity to bring his or her payments current before acceleration, repossession, or suit. Medling, 234 Kan. at 860.
On the other hand, a creditor seeking to enforce the agreement because of the prospect of significant impairment is not required to give the consumer notice, and the consumer has no right to cure. K.S.A. 2002 Supp. 16a-5-110, Kansas Comment, 2000, subsection 3. There is no right to cure because unlike a default for a missed payment such a default endangers the prospects of a continuing relationship between the creditor and the debtor. K.S.A. 2002 Supp. 16a-5-109, Kansas Comment, 2000, subsection 2; see K.S.A 2002 Supp. 16a-5-110, Kansas Comment, 2000, subsection 3 (unlike a late payment, a breakdown in the relationship between the consumer and the creditor which constitutes “significant impairment” cannot be cured).
While the creditor under this latter scenario does not have to give notice, it does have the burden of establishing the prospect of significant impairment by a preponderance of the evidence. K.S.A. 16a-5-109(2); Prairie State Bank v. Hoefgen, 245 Kan. at 246. Subsection 2 of the statute therefore changes the UCC in two ways. First, it places the burden of proof on the creditor to justify action on a claim of default of this type. K.S.A. 2002 Supp. 16a-5-109, Kansas Comment, 2000, subsection 2. Contrast K.S.A. 84-1-208 (burden of establishing lack of good faith is on the party against whom the power has been exercised). Second, it also prohibits the so-called insecurity clauses under which default and acceleration can be called'whenever the creditor in good faith feels .“insecure.” K.S.A. 2002 Supp. 16a-5-109, Kansas Comment, 2000, subsection 3; see K.S.A. 84-1-208 (creditor has power to accelerate because of insecurity “only if he in good faith believes that the prospect of payment or performance is impaired”). The creditor arguing significant impairment under the UCCC, therefore, has a more stringent test than the UCC test for acceleration. See Kelley, 235 Kan. at 51 (where provisions of the UCC and the UCCC conflict, the UCCC controls). The trial court may, however, “[ajlong with other relevant evidence,” consider the reasonable beliefs of the creditor as a factor to determine significant impairment. Hoefgen, 245 Kan. at 243.
We must now consider how to determine whether “significant impairment” exists. K.S.A. 2002 Supp. 16a-5-109, Kansas Comment, 2000, subsection 2, provides general parameters, stating that significant impairment “relates to behavior of the consumer which endangers the prospect of a continuing relationship. It may be insolvency, illegal activity, or an impending removal of assets from the jurisdiction. There must, however, be circumstances present which significantly impair the relationship.”
The general contours were somewhat filled in by Hoefgen. There, the trial court’s finding of significant impairment which we upheld was based on 13 factors including, among others, the debtor’s problems with insufficient funds checks, the declining perishable inventory, declining sales, threats from the debtor’s agent, the specter of bankruptcy, and the debtor’s threats to withhold future payment. A major factor was the debtor’s refusal to communicate with the creditor. 245 Kan. at 245-47.
Five years earlier in Medling v. Wecoe Credit Union, 234 Kan. 852, the creditor had relied upon eight factors: the inability to get the debtor to discuss the loan; the inability to get the debtor to clarify statements regarding a possible move to Michigan; unsuccessful attempts to verify the Michigan address; the uncertain status of a cosigner’s employment and residency in Kansas; the knowledge that the debtor was now unemployed; the termination of the debtor’s automatic payroll deductions; the creditor’s fear that the debtor would leave Kansas with the collateral; and the fact that the loan was at the upper limits of the creditor s lending policy. 234 Kan. at 857.
We upheld the trial court’s finding of significant impairment. It had specifically found the debtor advised the creditor on November 27 she would be quitting her job on January 4; in fact, she quit on November 27 and was going to move to Michigan, taking the car to an address which the creditor was unable to identify. The court also found that the creditor contacted the debtor on four different days in December for the purpose of having her come in to explain the inconsistencies between her stated plans and her actual conduct. Each time the debtor promised to come in shortly thereafter but never did. The court also found that after the promissory note was executed, the debtor became divorced from the cosigner, and he was “apparently not very reliable.” 234 Kan. at 858-59.
Both Medling and Hoefgen demonstrate that this court has reviewed a variety of factors considered by the district court to determine whether significant impairment existed. The factors in each case will vary, and we have not set out a comprehensive list.
This court, however, has decided no cases addressing whether the consumer’s failure to insure collateral, as required by the terms of a consumer credit transaction, by itself constitutes significant impairment. Auto Credit cites Kelley v. Commercial National Bank, 235 Kan. 45. There, the trial court found that the debtor was in default for failing to keep the automobile insurance in effect. Kelley is of no guidance, however, because this issue was not raised on appeal.
Auto Credit also cites Farmers & Merchants Bank v. Copple, 190 Kan. 170, 373 P.2d 219 (1962). There, this court found that a mortgagee could foreclose a real estate mortgage upon a breach of the mortgagors’ covenant to keep the premises insured. 190 Kan. at 175. Copple, however, was decided prior to Kansas’ adoption of the UCCC. Accordingly, the Copple court did not perform the analysis required in the instant case. Specifically, it did not determine whether the failure to insure — while a breach of the agreement — also constituted significant impairment of the prospect of payment, performance, or realization of collateral. Moreover, un like the instant case, Copple does not provide that even after the creditor learned of the imminent cancellation of insurance that it entered into a new agreement with the debtors and continued receiving regular payments. Instead, the Copple creditor made the insurance payment for the debtors on the day it was due and then sued.
We acknowledge that courts in other states have ruled that the debtor s lack of insurance, as required by an agreement, constitutes default, allowing the creditor to repossess the collateral. Ash v. Peoples Bank of Greensboro, 500 So. 2d 5, 7 (Ala. 1986); Wagner v. Ford Motor Credit Co., 155 Ga. App. 729, 729-30, 272 S.E.2d 500 (1980); Ford Motor Credit Co. v. Neiser, 196 Ill. App. 3d 515, 527, 554 N.E.2d 322 (1990); Johnston v. Stinson, 418 So. 2d 805, 806 (Miss. 1982); McCall v. Owens, 820 S.W.2d 748, 751 (Tenn. App. 1991). However, these cases do not hold that under.statutes similar to K.S.A. 16a-5-109, fáilure tó'insure automatically constitutes substantial impairment. Indeed, they make no mention of the UCCC, much less make any application of the code to the specific case facts to determine whether the lack of insurance significantly impairs the prospect of payment, performance, or realization of collateral.
Nevertheless, Auto Credit argues that the lapse or cancellation of insurance coverage is a clear indication of impairment of the collateral, asserting that there is no category of collateral more subject to destruction than a motor vehicle. It asserts that a vehicle can be destroyed by storm, fire, or collision and is highly susceptible to theft and vandalism. Auto Credit concludes that failure to insure alone constitutes significant impairment of collateral as a matter of law under K.S.A. 16a-5-109.
Essentially, Auto Credit argues that the Greens’ failure to insure overrides all other facts in This case. Judge Pierron’s dissenting opinion for the Court of Appeals in .the instant case expresses the problem with that approach:: . '
“Failure to insure a vehicle as required by the.financing agreement could certainly be a factor leading to the conclusion that the collateral was significandy'impaired. However, in the instant, case, it did not seem, to be a weighty one in the mind of. Auto Credit, as it apparently took no action because of it.” 31 Kan. App. 2d at 257-58.
In rejecting Auto Credit’s argument, we also affirm the analytical path we took in Medling and Hoefgen, i.e., examining all the facts relevant to the issue of significant impairment.
Here, the district court found that the van was not insured and payment was 15 days in arrears at the time of repossession. It also found, however, that despite Auto Credit having been informed of the imminent insurance cancellation, Auto Credit did not follow up with either the insurer or the Greens to learn if the insurance had been actually cancelled nor did Auto Credit purchase replacement insurance itself and pass the cost on to the Greens. It also found that — despite Auto Credit’s reliance upon the insurance cancellation as a basis for believing its collateral was significantly impaired — after Auto Credit learned of the insurance problem, it executed an extension agreement and accepted five payments under the agreement.
The district court also found that the Greens had not concealed themselves or the collateral, that the collateral was not in physical jeopardy, that the Greens remained communicative with Auto Credit, and that the note from Ronda Green expressed no intent to pursue bankruptcy. It found that these factors, taken together, did not constitute a significant impairment of the prospect of payment, performance, or realization of the collateral.
Given our deferential standard of review of a district court’s findings, we hold substantial competent evidence exists to support these findings of the district court. See Hoefgen, 245 Kan. at 246. There certainly has been no proof provided on appeal that the district court arbitrarily disregarded undisputed evidence or was influenced by bias, passion, or prejudice when it found Auto Credit had not met its burden of proof. See Haneberg, 270 Kan. at 374. Accordingly, under the facts of this case, Auto Credit’s repossession of the Greens’ van was wrongful because it violated K.S.A. 16a-5-109.
Issue 3: Was the district court’s awarding of attorney fees appropriate P
The Greens argue that because the van repossession was wrongful, Auto Credit must pay their attorney fees of $5,000.
K.S.A. 16a-5-201(8) addresses the attorney fees issue:
“In an action in which it is found that a creditor has violated any provision of K.S.A. 16a-I-101 through 16a-9-102, and amendments thereto, the court shall award to the consumer the costs of the action and to the consumer’s attorneys their reasonable fees. Reasonable attorney’s fees shall be determined by the value of the time reasonably expended by tire attorney and not by the amount of the recovery on behalf of the consumer.” (Emphasis added.)
The statute is mandatory, and the awarding of attorney fees is not a matter within the court’s discretion. See Farmers State Bank v. Haflich, 10 Kan. App. 2d 333, 340, 699 P.2d 553 (1985). The amount of an attorney fee award, however, is within the sound discretion of the district court and will not be disturbed on appeal absent a showing that the district court abused that discretion. Davis v. Miller, 269 Kan. 732, 750, 7 P.3d 1223 (2000). Discretion is abused only where no reasonable person would take the trial court’s view. State ex rel. Stovall v. Alivio, 275 Kan. 169, 173, 61 P.3d 687 (2003).
A violation of the UCCC occurred, and the Greens’ counsel provided the district court with an affidavit regarding attorney fees. Auto Credit does not contest the specific amount of the attorney fees. Consequently, we cannot say that no reasonable person would take the position adopted by the district court when it awarded $5,000. Therefore, attorney fees for the Greens in that amount are appropriate.
The decision of the Court of Appeals is reversed, and the decision of the district court is affirmed.
Beier, J., not participating.
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The opinion of the court was delivered by
Nuss, J.:
This case requires us to review a trust and determine the validity of its purported amendment. Among other things, the amendment changed the beneficiaries of the original trust. Two of the three new beneficiaries, Barbara Godley and Lynda Moore (plaintiffs), sued the original beneficiaries, Katherine J. Bruni, Christina Toliver, Mark Toliver (defendants), and others and sought a judicial determination that the amendment was valid. The district court agreed with the plaintiffs, granting their motion for summary judgment and denying defendants’.
Defendants timely appealed. We transferred from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c).
The issues on appeal, and this court’s accompanying holdings, are as follows: •
1. Did the district court err in failing to conclude that the March 25 amendment was invalid? No.
2. Did the district court err in holding the March 25 amendment was executed in compliance with the Original Trust Agreement? No.
Accordingly, the judgment of the district court is affirmed.
FACTS:
The summary judgment motions of the parties established that the material facts are uncontroverted.
On May 13, 1993, Mariza V. Toliver executed a 25-page Trust Agreement creating a revocable trust (Original Trust Agreement). Mariza, as grantor, and Mariza and her husband Jack Toliver, as co-trustees, each signed in those capacities. Article TENTH of the Original Trust Agreement provided: “In the event neither Jack M. Toliver nor Mariza V. Toliver is able to serve as trustees hereunder, then the Overland Park State Bank and Trust Company shall serve as successor trustee hereunder.”
Article TWELFTH provided that any successor trustee would have the same powers, authorities, and discretions as though originally named as the trustee:
“All the estate, powers, trusts, duties and discretion anywhere herein created or conferred, shall be held, possessed or exercised by and shall extend to any Trustee hereunder whether such be the Trustee named herein or its successors or substitutes. No bond shall be required in any jurisdiction of any Trustee acting hereunder.”
Jack’s three children (Mariza’s stepchildren) were among those named as remainder beneficiaries: Katherine Bruni, Christina To-liver, and Mark Toliver. Article FIRST specifically addressed beneficiaries at paragraph C:
“C. The property comprising Trust B shall be held, managed, invested and reinvested by the Trustee, and the Trustee shall collect the income therefrom and pay over and distribute the net income and principal thereof as follows:
“1. While Grantor’s mother, RUTA BALCIUNAS, is living, tire Trustee shall pay over to her not less often than quarter-annually all of the net income of the trust.
“2. Upon the death of Grantor’s said mother, or upon Grantor’s death, if she does not survive her, tire Trustee shall pay over to Grantor’s spouse, not less often than quarter-annually, all of the net income of the trust. Upon the death of both Ruta Balciunas and Jack M. Toliver, or upon Grantor’s death if neither Jack M. Toliver nor Ruta Balciunas are then living, the Trustee shall distribute the remaining trust estate in equal shares to Katherine J. Bruni, Christina Toliver and Mark S. Toliver, and if any of said persons are not then living, then his or her share shall pass to his or her then-living descendants, per stirpes, and if none, then to the survivors of the above-named beneficiaries, per stirpes.”
Mariza’s right as grantor to alter, amend, or revoke her Original Trust Agreement was contained in Article FIFTEENTH as follows:
“FIFTEENTH: Grantor expressly reserves the right, at anytime and from time to time, to alter, amend and revoke this Agreement, in whole or in part, by duly executed instrument delivered to the Trustee. No amendment shall be made, however, which shall in any way increase the obligations of the Trustee hereunder or change its rights or duties without its written consent. Upon any revocation, the Trustee shall deliver to Grantor, against receipt, any property on hand as to which the Trust has been revoked, together with such supporting instruments as may be necessary to release any interest the Trustee may have in or to such property.”
Approximately 5 years later on January 12,1998, Mariza and Jack placed their notarized signatures on a form published by Merrill Lynch Trust Company of America (Merrill Lynch) captioned Amendment to Revocable Trust Agreement: Appointment of Successor Trustee (January Amendment). The main purpose of signing the form was to name Merrill Lynch as successor trustee, i.e., to replace Overland Park State Bank and Trust Company. The Jan uaiy Amendment addressed this issue in the recitals and in paragraph 1:
“WHEREAS, the Grantor desires to amend the Agreement [Original Trust] to designate a Successor Trustee to succeed the current trustee and to provide for its compensation, and to provide the Successor Trustee with certain additional powers respecting the trust property.
“NOW THEREFORE, the Grantor amends the Agreement to add the following new provisions:
“la. Appointment of Successor Trustee.
“Merrill Lynch Trust Company of America, an Illinois corporation, ... is appointed as Successor Trustee ... to succeed the current trustee and to serve hereunder pursuant to the terms of the Agreement [Original Trust], This appointment shall become effective upon the resignation, removal, disability or death of the current trustee.” (Emphasis added.)
Less than 1 month later, on or about February 8, 1998, Jack died. His death left Mariza as the sole trustee. Merrill Lynch remained the ostensible successor trustee, effective upon Mariza’s resignation, removal, disability, or death.
Approximately 6 weeks after Jack’s death, on or about March 25,1998, Mariza placed her notarized signature as grantor on a 39-page document entitled “Amendment and Restatement of Mariza V. Toliver Revocable Trust Agreement of May 13, 1993” (March Amendment). Among other things, the March Amendment removed Mariza’s stepchildren as the remainder beneficiaries. It replaced them with two of Mariza’s caregivers, Lynda Moore and Barbara Godley — who were each to receive one-fourth of the residuary estate — and a third individual, Sigitas Babarskas, who was to receive one-half. The March Amendment also named Merrill Lynch as the trustee, and essentially relieved Mariza of any trustee duties.
Charles Hammond, the counsel who created the March Amendment for Mariza, intended to have Merrill Lynch execute it before a notaiy so he included a signature block for Merrill Lynch and a notary block. Once Mariza’s notarized signature was obtained, the March Amendment was delivered to Merrill Lynch.
According to Hammond, he had been assured by Merrill Lynch’s Lewis Gregory and others that Merrill Lynch would sign. As a result, since Merrill Lynch had still not executed it as trustee by April 15, 1998, Hammond sent a letter on that date to Gregory stating:
“Dear Lewis:
“I am concerned that the trust agreement of Mariza Tolive[r] has not yet been executed as you advised in our telephone conversation of this date. Although Mariza Toliver is presently living, I am concerned that her death is imminent and without the trust having been executed, there may be an issue relating to its validity.
“I encourage you to review the status of the execution immediately so that the trust may be executed without further delay.
“Sincerely,
[Signed]
“Charles E. Hammond” (Emphasis added.)
Mariza died that day. Two days later, on April 17, Merrill Lynch surprised Hammond by “declining” not only the position of trustee under the Original Trust Agreement per the March Amendment but also the position of successor trustee under the January Amendment. Its Declination of Office to Act stated:
“MERRILL LYNCH TRUST COMPANY OF AMERICA, by its duly authorized officer, hereby [1] declines the office of Trustee of the Mariza V. Toliver Revocable Trust Agreement U/A/D May 13, 1993 and as amended and restated and [2] further declines the office of Successor Trustee of the Mariza V. Toliver Revocable Trust Agreement pursuant to an amendment dated January 12, 1998.”
Accordingly, Merrill Lynch never placed its signature, notarized or not, on the March Amendment.
Article ELEVENTH of the March Amendment empowered a majority of the beneficiaries to appoint a successor trustee in the event of a trustee’s resignation or removal. It also provided that any successor trustee would have the same powers, authorities, and discretions as though originally named as the trustee. Like Article TWELFTH in the Original Trust Agreement, Article THIRTEENTH affirmed this concept.
“All the estate, powers, trusts, duties, and discretion anywhere herein created or conferred, shall be held, possessed or exercised by and shall be extended to any Trustee hereunder, whether such be the Trustee named herein or its successors or substitutes. No bond shall be required in any jurisdiction of any Trustee acting hereunder.” (Emphasis added.)
Pursuant to Article ELEVENTH, on May 1,1998,16 days after Mariza’s death, since Mariza had died and Merrill Lynch had “declined,” two of the three new beneficiaries, Barbara Godley and Lynda Moore, executed a document entitled Direction with Respect to Successor Trustee, in which they appointed Valley View State Bank (Valley View) as successor trustee. On that same day, Valley View accepted the office of successor trustee under the March Amendment.
On October 22, 1999, Godley and Moore filed a declaratory judgment action seeking a judicial determination of the March Amendment’s validity. Although the resultant motions for summary judgment presented Mariza’s competence as a controverted fact, by the time of oral argument there was no longer any dispute about her mental capacity, nor was there any allegation of her operating under undue influence at the time she executed the March Amendment. The district court held in favor of the plaintiffs on September 24, 2002, and the defendants appealed.
ANALYSIS:
The district court granted summary judgment to plaintiffs, and there is no dispute regarding the material facts on appeal. Accordingly, our review is de novo. Duarte v. DeBruce Grain, Inc., 276 Kan. 598, 602, 78 P.3d 428 (2003). Moreover, determining the nature, construction, and legal effect of a trust is a question of law over which we have unlimited review. State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 641, 822 P.2d 1033 (1991).
Our review of the trust is also governed by the recognition that the primary objective of trust law is to carry out the settlor’s intent. See English, The Kansas Uniform Trust Code, 51 U. Kan. L. Rev. 311, 328 (2003). Consequently,
“[i]f the text of the trust indenture is plain and unambiguous, the intent of the trustor (settlor) can be ascertained from the language used. [Citation omitted.] Where construction is necessary [however] the court must put itself in the situation of the trustor when the trustor made the trust instrument and, from consideration of the language used in the entire instrument determine the intention of the trustor. [Citations omitted.] The cardinal rule is that the intention of the trustor as gathered from the whole instrument must control unless contrary to settled principles of law.” In re Estate of Pickrell, 248 Kan. 247, 806 P.2d 1007 (1991).
During our review, we will not apply the provisions of the Kansas Uniform Trust Code (KUTC), K.S.A. 2003 Supp. 58a-101 et seq., which became effective on January 1, 2003, approximately 3Vz months after the district court’s journal entry was filed. We decline because we agree with defendants that the KUTC’s possible application was not raised in this case until the plaintiffs’ response brief was filed on November 13, 2003. We also decline because we agree with defendants that applying the KUTC would prejudice their rights, i.e., they would be replaced as residuary beneficiaries. See K.S.A. 2003 Supp. 58a-1106(a)(3) (KUTC applies to judicial proceedings concerning trusts commenced before its effective date unless the court finds that application of a particular provision of this act would prejudice the rights of the parties, in which case the particular provision of this act does not apply and the superseded law applies.).
Issue 1: Did the district court err in failing to conclude that the March Amendment was invalid?
Defendants first characterize the March 25, 1998, document — the March Amendment — as a “bilateral trust agreement” that consequently should be controlled by general contract principles. Accordingly, they argue it was invalid because it was not signed, i.e., agreed to, by one of the two parties to the purported contract, the trustee. They point to language in the document that states it is being reached “by and between” Mariza as grantor and Merrill Lynch as trustee and that states in several places it is an “agreement.” Defendants also focus on the signature blocks for Mariza as “Grantor” and Merrill Lynch as “Trustee.” Their supporting authorities include Denny v. Guarantee Title & Trust Co., 118 Kan. 286, 234 Pac. 966 (1925), where a named trustee’s failure to accept the trust in writing, as required by the terms of the trust document, rendered the trust contract unenforceable.
They also point out that in Kansas trust law, the essential elements of an express trust have been (1) an explicit declaration and intention to create a trust, (2) definite property or subject matter of the trust, and (3) the acceptance and handling of the subject matter by the trustee as a trust. In re Estate of Ingram, 212 Kan. 218, Syl. ¶ 4, 510 P.2d 597 (1973); Shumway v. Shumway, 141 Kan. 835, Syl. ¶, 44 P.2d 247 (1935). According to the defendants, Merrill Lynch never accepted or handled the subject matter. They conclude that since this essential element is missing, the bilateral trust agreement must fail.
We disagree with defendants’ characterization and resultant conclusions for several reasons.
First, while Ingram and Shumway provide that an express trust cannot be created without all three elements, here all three elements were present when the trust was created in 1993. In particular, Mariza and Jack both signed as trustees accepting the trust. Moreover, the 1998 document does not purport to create a new trust, but rather to “amend and restate” the original trust. It is captioned: “Amendment and Restatement of Mariza V. Toliver Revocable Trust Agreement of May 13,1993.” (Emphasis added.) Additionally, it provides in the Recitals that “the Grantor now desires to amend, restate and republish” the Original Trust Agreement. Furthermore, Article FIFTEENTH of the Original Trust Agreement empowered the grantor, Mariza, to amend and restate: “Grantor expressly reserves the right ... to alter, amend, and revoke this Agreement, in whole or in part.” (Emphasis added.)
Second, we reject defendants’ invitation to apply all the same standard rules of contract law, to trust amendments, that we may have applied to trust creations. Their authorities, e.g., First Nat. Bank of Kansas City v. Wheeler, 557 S.W.2d 639 (Mo. App. 1977), and Denny v. Guarantee Title & Trust Co., 118 Kan. 286, concern only trust creations and are inapplicable. Defendants have provided no legal authority for their specific proposition, despite their notification from the district court almost 18 months before the case was argued before this court. The court’s September 24,2002, journal entiy stated: “Significantly, defendants cite no cases wherein a trust amendment failed for lack of a co-trustee or successor trustee’s acceptance.” Additionally, we observe that under the KUTC (which we are not applying), trustee acceptance apparently is no longer even necessary for the creation of a trust. See, K.S.A. 2003 Supp. 58a-401; K.S.A. 2003 Supp. 58a-402; English, The Kansas Uniform. Trust Code, 51 U. Kan. L. Rev. 311, 327 (2003).
Third, we observe that the March Amendment’s specific naming of Merrill Lynch as trustee — which defendants argue required Merrill Lynch’s written acceptance — was a redundancy. Per the January Amendment naming Merrill Lynch the successor trustee, Merrill Lynch had automatically succeeded Mariza as trustee once she essentially resigned as sole trustee (after Jack’s death) by executing the Amendment on March 25. See 76 Am Jur 2d, Trusts § 252 (disclaimer of the position of trustee requires no specific formality to be effective, and conduct will suffice). The January Amendment, i.e., Merrill Lynch’s printed form, stated that Merrill Lynch “is appointed as Successor Trustee ... to succeed the current trustee and to serve hereunder pursuant to the terms of the [Original Trust] Agreement. This appointment shall become effective upon the resignation, removal, disability or death of the current trustee.” (Emphasis added.)
At a minimum, Merrill Lynch had automatically succeeded Mariza as trustee upon her death on April 15 and remained so until its “declination” — more accurately characterized as its resignation from its present position as sole trustee.
In short, based upon the record before us, there was no requirement for Merrill Lynch to sign the March Amendment to agree to serve as a trustee. Per the January Amendment (Merrill Lynch’s own form), it had already stepped into this role upon Mariza’s resignation or certainly upon her death. As explained below, however, Merrill Lynch still had the right to later resign, e.g., because the Amendment increased its obligations.
Issue 2: Did the district court err in holding the March Amendment was executed in compliance with the Original Trust Agreement, i.e., is the amendment validP
The defendants next argue that the March Amendment is invalid for reasons they assert are separate from those advanced in issue 1. Specifically, they claim Mariza failed to comply with the particular conditions for altering or amending the Original Trust Agree ment. They point to the first two sentences of Article FIFTEENTH of the document which they construe to set forth those conditions.
“FIFTEENTH: Grantor expressly reserves the right, at any time and from time to time, to alter, amend and revoke this Agreement, in whole or in part, [1] by duly executed instrument delivered to the Trustee. [2] No amendment shall be made, however, which shall in any way increase the obligations of the Trustee hereunder or change its rights or duties without its written consent.”
In an argument that somewhat overlaps the defendants’ assertion in issue 1 above, they urge us to accept their construction which makes the March Amendment invalid because Merrill Lynch did not sign or accept it — contrary to the purported requirements in condition one. They also urge us to accept their construction which makes the entire 39-page March Amendment ineffective because it increased Merrill Lynch’s obligations as trustee without Merrill Lynch’s written consent — contrary to the purported requirements in condition 2.
The plaintiffs, on the other hand, urge us to accept their construction which makes the March Amendment valid and complete when Mariza placed her notarized signature on it and delivered it to either herself, as present trustee, or to Merrill Lynch, as the new trustee. They also urge us to accept their construction which makes the second condition merely a safeguard for Merrill Lynch, simply allowing it to refuse service as a trustee under increased obligations. According to plaintiffs, Merrill Lynch’s refusal has no bearing on the validity of the amendment, c.g., the change in beneficiaries. As a result, a majority of the new beneficiaries can appoint the new trustee, Valley View, upon Merrill Lynch’s resignation or refusal to serve as trustee.
Our determination of this issue requires a review of pre-KUTC Kansas trust law. Per K.S.A. 58-2417 — in effect at the time of the Original Trust Agreement’s creation — the power to revoke or modify must be reserved in the Original Trust Agreement. Moreover, “[i]f the settlor reserves a power to modify the trust only in a particular manner or under particular circumstances, he can modify the trust only in that manner or under those circum stances.” Restatement of Trusts (Second) § 331(1), comment d (1957). See In re Estate of Sanders, 261 Kan. 176, 182, 190, 929 P.2d 153 (1996) (where a trust document contains specific provisions to be complied with, they are required to be followed).
No Kansas courts have directly addressed trust language similar to Article FIFTEENTH which contains the conditions defendants allege. We find Woodward v. Ameritrust Co., 751 F.2d 157 (6th Cir. 1984), however, quite similar and persuasive on both conditions.
In Woodward, the appellant had sought a declaratoiy judgment holding that she was the sole life tenant of an inter vivos trust which was created by her mother, Blanche Woodward, and that an attempted amendment to the trust altering her status was ineffective. The mother had established the trust in 1969 with Ameritrust Corporation as trustee and the mother and daughter as sole beneficiaries. Mother was to receive the income from the trust for life, with the remainder paid to daughter.' The mother expressly retained the power to revoke or amend the trust as follows:
“Grantor further reserves the right to amend any provision of this Trust Agreer ment at any time during her lifetime by filing a written amendment with the Trustee; but if the Trustee does not consent to such amendment, the Trustee may terminate the Trust and return all of the Trust Estate to the grantor. At the death of the Grantor, this Trust shall become irrevocable.” (Emphasis added.) 751 F.2d at 158.
In July 1973, mother exercised her power to amend by delivering a written instrument to Ameritrust signed by both mother and Ameritrust. The amendment provided that upon her death the income was to go to her husband for life; upon his death the income was to go to the daughter for life.
When the husband preceded the mother in death, she executed a formal second amendment to the trust in November 1975. While mother again retained her life interest in the trust, she added successive life interests in her two sisters after her own. The daughter, as a remainder beneficiary, was also granted a life estate with a limited right to invade the principal, but it became effective only after the interests of her mothers two sisters.
Mother signed and mailed the amendment to Ameritrust on November 4, 1975. As in the instant case, despite the absence of trust language requiring the trustee’s execution of the amendment, her counsel enclosed a letter requesting Ameritrust “execute” both originals and return one “fully executed.” However, on November 14, Ameritrust returned the two unexecuted duplicate originals to her counsel along with a letter providing that its counsel had various “comments” to make concerning the “proposed second amendment.”
Mother died on December 18, 1975, and the next month her counsel again sent the original second amendment, signed by mother in November 1975, to Ameritrust requesting execution with a copy returned. Ameritrust signed it approximately 2 months later on Februaiy 23, 1976, continuously acted under the terms of the second amendment, and never attempted to terminate the relationship.
The narrow question on appeal, after summary judgment against the daughter, was whether the second amendment sent to, but not signed by, Ameritrust on November 4,1975, effected a valid modification of the trust. The court first noted that Ohio law, like that of Kansas, provides that the settlor of an inter vivos trust may reserve various rights and powers in relation to the trust estate. In acting to exercise any of these reserved rights, however, the settlor must act as provided in the reservation. 751 F.2d at 160 (citing, inter alia, Restatement [Second] of Trusts § 331, comment d [1957]).
Somewhat similar to the defendants in the instant case, the daughter argued that to amend the trust, two separate conditions had to have been met; first, mother had to file a written amendment with the trustee and second, the trustee had to “consent to such amendment.” Because under the facts no consent was given by the trustee during mother’s lifetime, daughter contended that the second amendment was never effectuated.
In response, Ameritrust asserted that only one condition was needed to amend the trust: the grantor file “a written amendment with the Trustee.” 751 F.2d at 160. The amendment was effective at that point, whether the Trustee consented or not. Ameritrust contended that the trust’s consent provision “merely provided the trustee with a means to avoid being bound by harsh, unwanted amendments, and a means to terminate its trusteeship in that event.” 751 F.2d at 160.
The court held:
“We agree [with Ameritrust]. Ament-rust's termination of its interest, in our view, would not affect the validity of any properly executed single amendment, nor would it necessarily revoke and/or bring to an end the entire trust, [holding in fn. 7 that ‘upon termination of the trusteeship, a new trustee could always be appointed’.] Under the undisputed facts as they exist in this case, a written amendment was filed with Ameritrust during Blanche’s [mother] lifetime. The amendment then immediately became effective even though Ameritrust had suggestions for purported improvements in carrying out Blanche’s purposes. Ameritrust then had, but failed to exercise, the right to terminate its trusteeship. The fact that Ameritrust sent the second amendment back, unexecuted, with comments for revision is irrelevant to our determination of a valid execution and delivery of the amendment in question.
‘We therefore agree with the district court that there was only one condition precedent to the amendment of the Trust; that the settlor file ‘a written amendment with the Trustee.’ The execution and delivery effectuated a filing of the amendment with Ameritrust, the trustee, which then continued to serve in that capacity without any effort to terminate its trusteeship or to ‘terminate’ the carrying out of the amended trust provisions.’’ (Emphasis added.) 751 F.2d at 160.
The Woodward court held that the actions of mother’s legal counsel and Ameritrust, again similar to the actions of Mariza’s counsel in the instant case, were irrelevant. While they both acted as if the original second amendment signed and filed by mother was not effective until consented to by Ameritrust, and that amendment was also drawn with signature lines for Ameritrust, the court concluded it was unnecessary to look at these extrinsic facts to decide the case because the language of the trust was unambiguous. Such extrinsic evidence was admissible only where the language was either uncertain or ambiguous. 751 F.2d at 161 (citing Restatement [Second] of Trusts § 38, comment a).
• Similar to the Woodward court’s reading of its trust language, we hold our Article FIFTEENTH does not provide the trustee with power to veto, through its failure to execute the amendment as requested by counsel, the settlor’s right to modify her estate plan for the disposition of her property. Defendant’s contrary con struction renders the article’s second sentence superfluous; if the trustee can essentially veto any amendment by simply refusing to “duly execute” for any reason, or for no reason at all, there is no need for the specific veto power in die second sentence which is limited to when the trustee’s obligations increase or its rights or duties change. When construing a trust, a court must consider language in the entire instrument. In re Estate of Pickrell, 248 Kan. 247, 255, 806 P.2d 1007 (1991).
Likewise, our Article FIFTEENTH does not provide the trustee with power to veto, through a failure to consent because of its increased obligations or changes in its rights or duties, the settlor’s right to modify her estate plan for the disposition of her property. Rather, if the trustee does not desire to accept these changes, it has the right to simply refuse to accept them, leaving the amendment intact and requiring the settlor, or her designated agent, to appoint another trustee. 751 F.2d at 160 n.7. In short, this second sentence exists to protect the trustee. Despite defendants’ argument and citation to Cole v. Cole, 317 Mont. 197, 75 P.3d 1280 (2003), it does not exist to protect Mariza from the consequences of her whim, caprice, or momentaiy indecision, or from the undue influence by other persons.
Like Woodward, the case of In re Estate of Mueller, 933 S.W.2d 903 (Mo. App. 1996), also addresses both of the purported conditions in Article FIFTEENTH in the instant case. More important, it clearly illustrates the problem when a trustee simply refuses to agree to an amendment and thereby threatens to destroy a settlor’s estate plan.
There, on August 30, 1989, Emma Mae Mueller created a revocable living trust naming Gary Johnson trustee. Section IX, subsection (c) provided: “The Grantor may at any time, or from time to time, by instrument in writing executed by Grantor and delivered to and executed hy the Trustee, amend, alter or modify this Indenture, or revoke any amendments hereto.” (Emphasis added.) 933 S.W.2d at 904.
Approximately 3 years later, on September 21, 1992, Mueller executed an amendment to her trust. While Johnson remained trustee and a remainder beneficiary who would share equally with other beneficiaries in the estate following her death, the amendment decreased the remainder estate, resulting in less principal and income to Johnson. He told Mueller that he was upset with the September 21 amendment because his share of the estate would be diminished. As a result, he refused to execute the amendment. Mueller then died.
Johnson argued that because he never executed the amendment as required under the terms of the trust, the trust was never properly amended. According to him, the trust should have been administered in accordance with the terms of the original August 30, 1989, trust, thus restoring his lost principal and income.
The Court of Appeals acknowledged that Missouri law (like Kansas law and Woodward’s Ohio law) provided that if the settlor reserves a power to modify the trust only in a particular manner or under particular circumstances, he can modify the trust only in that manner or under those circumstances (citing, inter alia, Restatement of Trusts 2d § 331[1], comment d (1957). It then rejected Johnson’s position, stating:
“Section IX(c) did not grant the trustee the power to veto modifications of the trust’s terms. Johnson’s discretionary powers as trustee did not apply to the power decedent reserved to herself to amend, alter and modify the trust. Whether Johnson approved of an amendment or not, he was powerless to withhold execution of the amendment.” 933 S.W.2d at 907.
Accordingly, the court found the amendment was effective upon execution by Mueller, despite its apparent signature line for Johnson as trustee.
While we concede that Mueller’s overreaching trustee is not present in the instant case, its general principle remains valid. A trustee’s noncooperation should not be allowed to destroy a settlor’s modification to her estate plan, particularly when, like here, the settlor has died, and where neither undue influence nor the settlor’s mental capacity is an issue. This principle applies whether the trustee refuses to sign because of financial overreaching (Mueller), or simply delays signature until after the settlor’s death because of comments about the proposed amendment (Woodward).
The principle also applies when the trustee refuses to sign for no reason whatsoever. Here, the record does not disclose why Merrill Lynch was noncooperative. It does disclose, however, that after being named successor trustee in January; after assuring Mariza’s counsel it would execute the March Amendment; and after becoming sole trustee upon either Mariza’s resignation on March 25, or upon her death on April 15, Merrill Lynch then “declined” to serve without providing any reason.
Inherent, but unstated, in our defendants’ construction is the argument that this one-time, unexplained, post-settlor’s-death declination by one trustee essentially destroyed any possibility of the amendment ever becoming effective, i.e., by another trustee consenting to the alleged increased obligations (as was actually done by Valley View merely 16 days after Mariza’s death). Stated a slightly different way, the entire amendment had been invalid since its creation and would remain so until a trustee were to validate it by consenting in writing to the alleged increased obligations. Since Merrill Lynch declined, the amendment remained void forever.
In light of our earlier holding that the March Amendment is not a bilateral contract whose offer expired upon Mariza’s death, the Amendment’s life did not end with hers. See Woodward, 751 F.2d at 160. It could still be accepted by a trustee — and was accepted. This conclusion is also consistent with Mariza’s chosen language in not only the Original Trust Agreement, Articles TENTH and TWELFTH, but also the March Amendment, Articles ELEVENTH and THIRTEENTH. These articles provide that if for some reason the designated trustee cannot or will not serve, regardless of reason, the successors will be chosen as prescribed and they will have the same powers as the original trustees. In short, they clearly contemplate that the trust and its amendments have more than one chance for trustee acceptance. Unlike the defendants’ construction, plaintiffs’ construction therefore considers more than just Article FIFTEENTH in isolation from the entire document. See In re Estate of Pickrell, 248 Kan. at 255.
Plaintiffs’ construction also supports the primary objective of trust law: to carry out the settlor’s intent. English, The Kansas Uniform Trust Code, 51 U. Kan. L. Rev. 311,328 (2003). Here, Mariza created a 25-page revocable trust in 1993, serving with her husband as a co-trustee and naming Overland Park State Bank and Trust Company as successor trustee. It cannot be seriously argued that Mariza intended, under these circumstances, to empower a successor trustee whose specific nomination she had not even contemplated at the time to — 5 years later — destroy her modified estate plan 2 days after her death for no reason, or merely because the trustee’s obligations arguably had increased.
In conclusion, the March Amendment was effective upon the notarized signature of Mariza and delivery to the then trustee, Merrill Lynch. Per Article FIFTEENTH, Mariza performed all the steps required by the trust to amend it. Cf. State Bank of Parsons v. First National Bank in Wichita, 210 Kan. 647, 651, 504 P.2d 156 (1972). Merrill Lynch’s declination to continue serving as trustee, i.e., its resignation, does not invalidate the remaining 39 pages of the amendment, e.g., the naming of new beneficiaries and removal of the old.
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The opinion of the court was delivered by
Beier, J.:
This case comes to us on two certified questions from the United States Court of Appeals for the Tenth Circuit:
1. Independent of the Kansas alternative remedies doctrine, does Kansas law — including but not limited to Flenker v. Willamette Industries, Inc., 266 Kan. 198, 967 P.2d 295 (1998); Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988); Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 998 P.2d 114 (2000); and Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981)—recognize an action in tort based on an employer’s discharge of an employee in retaliation for the employee’s exercise of rights under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq. (2000)? In other words, will the Kansas Supreme Court extend the public policy exception to the at-will employment doctrine to authorize a state tort action retaliation for filing a FELA claim?
2. If the answer to (1) is yes, under the Kansas doctrine of alternative remedies — as articulated in Flenker, 266 Kan. 198; Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988); or elsewhere — do the remedies available in tire Railway Labor Act (RLA), 45 U.S.C. §151 et seq., (2000) preclude an action in tort based on an employer s discharge of an employee in retaliation for the employee’s exercise of rights under FELA? In other words, are an employee’s rights adequately protected by the RLA, the statute that governs the employment relationships in the railway industry?
We answer the first question “yes” and the second question “no.” Plaintiff Larry D. Hysten was employed for 22 years by defendant Burlington Northern & Santa Fe Railway Company (Burlington Northern). Hysten began experiencing severe lower back pain. Although he was unsure of the cause, Burlington Northern wanted a commitment from him on whether the pain was work-related. Hysten eventually declared his injury to be work-related “to preserve his FELA rights.” He was then disciplined for violating company regulations by, “among other things, failing to promptly report a work-related injury.” Burlington Northern management eventually determined that Hysten should be terminated for violating the company’s rules governing the reporting of work-related injuries.
Hysten filed suit in federal district court; his complaint included both federal and state law causes of action. The court granted Burlington Northern’s motion for summary judgment on tire federal law claims and declined to exercise supplemental jurisdiction over the state law claims.
Four months later, as a result of an RLA arbitration under Hysten’s collective bargaining agreement, Burlington Northern reinstated Hysten with full retirement, seniority, and health benefits. Hysten was not awarded back pay, although that remedy generally is available under the RLA.
Hysten then brought this case in state district court, alleging “Burlington’s termination in retaliation for . . . filing a claim un der FELA constituted a public policy tort under Kansas Law." Burlington Northern removed the case to federal court and filed a motion to dismiss.
The federal district judge held that the mere fact a collective bargaining agreement governed Hysten’s contractual relationship with his employer did not eliminate his Kansas tort claim. Defendant had argued the existence of the agreement meant the RLA preempted any retaliation claim. In the judge’s view, any analysis of Burlington Northern’s duty to Hysten would require interpretation of the agreement. The district court examined the United States Supreme Court’s decision in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 256, 129 L. Ed. 2d 203, 114 S. Ct. 2239 (1994), and the Tenth Circuit’s decisions in Garley v. Sandia Corp., 236 F.3d 1200 (10th Cir. 2001), and Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d 1419 (10th Cir. 1993), concluding:
“ ‘So long as the state law cause of action is concerned not with the employer s contractual rights to discharge the employee, but rather with its motives in exercising that right, the [collective bargaining agreement] is not relevant and preemption does not apply.’ . . .
“In this matter, plaintiff does not argue that defendant violated his rights under the [collective bargaining agreement] or that defendant failed to perform its obligations under the [collective bargaining agreement]. Plaintiff and defendant complied with the grievance procedure delineated in the [collective bargaining agreement] and plaintiff was ultimately reinstated to his position. Plaintiff merely argues that under Kansas law he is entitled to additional remedies.” Hysten v. Burlington Northern Santa Fe Ry. Co., 196 F. Supp. 2d 1162, 1166 (quoting Jarvis, 985 F.2d at 1427).
In the end, however, the district court granted Burlington Northern’s motion to dismiss, holding Hysten had failed to state a claim under Kansas law. The court summarized its conclusion:
“Plaintiff does not complain of the timeliness, impartiality, affordability or fairness of the process which the RLA establishes. Nor does he explain why the remedies available under the RLA are inadequate to advance any articulated interest of the State of Kansas in prohibiting retaliation for the filing of FELA claims. Plaintiff simply asks the Court to hold that a remedy which provides something less than the full array of actual and punitive damages to an aggrieved employee is inadequate as a matter of law. The Court does not believe that the Kansas courts would agree with this proposition, or that the public policy of the State of Kansas requires that the exceptions to the doctrine of employment at will be extended to create an actionable retaliation claim under FELA.” Hysten, 196 F. Supp. 2d at 1169-70.
The parties appear to agree that the district court relied on alternative rationales for its decision: First, Kansas would not recognize a tort for wrongful discharge in retaliation for exercise of FELA rights; second, the adequate alternate remedy of the RLA would foreclose any such claim that existed.
Hysten’s appeal of the district court dismissal to the Tenth Circuit has now generated the certified questions before us. Our review of these questions is unlimited. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 765, 986 P.2d 377 (1999). The answer to a certified question must be based on our precedent, not on federal rulings interpreting Kansas law. Flenker, 266 Kan. at 201-02.
Recognition of a Wrongful Discharge Retaliation Claim for Exercise of FELA Rights
“Kansas employment law is grounded in the doctrine of em~ ployment-at-will. In the absence of an express or implied contract of duration or where recognized public policy concerns are raised, employment is terminable at the will of either party.” Riddle, 27 Kan. App. 2d 79, Syl. ¶ 2.
So far, Kansas courts have departed from the at-will doctrine and recognized a common-law tort for wrongful discharge in violation of public policy in two types of cases, those in which a terminated employee has acted as a whistleblower and those in which the employee has filed a workers compensation claim. See Palmer, 242 Kan. at 900 (whistleblowing); Murphy, 6 Kan. App. 2d at 495-97 (workers compensation).
The parties to this case begin their arguments with contrasting characterizations of these earlier at-will exceptions. The plaintiff uses a broad brush, asserting these two categories of cases demonstrate the existence of an expandable public policy exception to the Kansas at-will doctrine. The defendant uses a brush picked nearly clean of bristles, reading our two earlier exceptions far too narrowly and specifically to support extension to this case. In reality, the question of which of the parties’ dueling characterizations is more accurate matters little. What does matter is the absence of a dispute over whether we have previously recognized the exception Hysten seeks to invoke. We have not.
“ ‘Our recognition of such causes of action is limited to wrongful discharge in violation of state public policy clearly declared by the legislature or by the courts.’ ” Flenker, 266 Kan. at 204 (quoting Coleman, 242 Kan. 804, Syl. ¶ 4). Thus our first step is an examination of Kansas public policy.
“The public policy of a state is the law of that state as found in its constitution, its statutory enactments, and its judicial decisions.” Petty v. City of El Dorado, 270 Kan. 847, 854, 19 P.3d 167 (2001). “Before courts are justified in declaring the existence of public policy, the policy should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.” Riddle, 27 Kan. App. 2d 79, Syl. ¶ 3.
Hysten urges us to draw an analogy to Murphy, 6 Kan. App. 2d 488, in which our Court of Appeals created an exception to the employment-at-will doctrine and allowed a wrongful discharge lawsuit when the plaintiff employee alleged he was discharged for filing a claim under the Kansas Workers Compensation Act. The court said:
“The Supreme Court of Indiana, in Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), supplied the first judicial recognition that discharge of an employee in retaliation for filing a workmen’s compensation claim is actionable at law and may support an award of both actual and punitive damages. Commenting on the case, Vol. 2A Larson’s Workmen’s Compensation Law § 68.36, p. 68 (1980 Supp.), states: ‘It is odd that such a decision was so long in coming. Perhaps the explanation may he in the fact that the conduct involved is so contemptible that . . . few modern employers would be willing to risk the opprobrium of being found in such a posture.’ We would add that such instances may also be rare because employers have simply assumed such conduct was either illegal, actionable or both.” 6 Kan. App. 2d at 495.
The court also noted that the Illinois Supreme Court had held the protection afforded by workers compensation laws furthered sound public policy, and thus “an employee had a civil tort action against an employer who discharged her for filing a claim.” 6 Kan. App. 2d at 495 (citing Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 384 N.E.2d 353 [1978]). Our Court of Appeals then held:
“We believe the public policy argument has merit. The Workmen’s Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer’s negligence. To allow an employer to coerce employees in the free exercise of their rights under tire act would substantially subvert the purpose of the act.” 6 Kan. App. 2d at 495-96.
Defendant Burlington Northern’s first response to Hysten’s Murphy-based argument is that recognition of a wrongful discharge claim for FELA retaliation would not further the purpose of the Kansas Workers Compensation Act. Because FELA is a federal rather than a state statute, and because the Kansas Workers Compensation Act expressly excludes claims arising under FELA, defendant asserts, the rationale of Murphy cannot apply here.
These hypertechnical arguments are unconvincing. We are attempting to discern the breadth and depth of underlying public policy, not defining the specific parameters for application of either statute. The mere fact that FELA is a federal statute and the Kansas Workers Compensation Act a state statute does not necessarily mean that the public policy promoted by one has an inadequate or nonexistent overlap with the public policy promoted by the other. We have previously recognized that federal legislation could have a role in defining wrongful discharge causes of action based on one’s whistleblower status. See Flenker, 266 Kan. at 199 (Occupational Safety and Health Act violations); Palmer, 242 Kan. at 899 (Medicaid fraud). We agree with the Court of Appeals of Colorado, which has stated:
“[T]he mere fact that plaintiff s entitlement to compensation arises from a federal statute rather than a state statute should not, of itself, affect the importance of the public policy allowing injured employees to seek compensation or preclude plaintiff from asserting his claim of retaliatory discharge if FELA can be shown to establish a duty on the part of San Luis to pay compensation and a commensurate right to plaintiff to seek such payment.” Herrera v. San Luis Central Railroad Co., 997 P.2d 1238, 1240 (Colo. App. 1999).
Regardless of whether FELA or the Kansas Workers Compensation Act supplies the framework to support an injured worker’s pursuit of recovery, the public policy underlying that framework would be undermined if the worker could be fired for the exercise of his or her statutory right. Such a situation effectively releases an employer from the obligation of the statute. See Murphy v. City of Topeka, 6 Kan. App. 2d 488, 495-96, 630 P.2d 186 (1981).
In addition, the mere fact that the Kansas Workers Compensation Act is designed to govern claims not governed by FELA tells us nothing about the nature of the policy underlying either statute. It tells us only that the Kansas Legislature was careful not to duplicate protections for on-the-job injuries already provided certain Kansas citizens because of their dual status as employees covered by FELA. .
Burlington Northern’s next response to Hysten’s invocation of Murphy is a perennial favorite of litigants and their counsel, “parade of horribles.” Should this court permit Hysten’s cause of action to continue, defendant’s argument goes, it would “lend the common law of Kansas to enforce any right or privilege created by Congress. This throws open the doors to the United States Code, the Code of Federal Regulations, and the Federal Register. Any federal law becomes fodder for a state law claim.”
We disagree. Not every public policy underlying a federal statute or regulation is identical to a Kansas public policy as previously clearly expressed in our statutes, regulations, or case law. It happens that the public policy underlying FELA—providing a mechanism to allow certain workers injured on-the-job to recover from their employers—is identical to the public policy underlying the Kansas Workers Compensation Act. Such a perfect analog will rarely exist. Even when it does, as defendant has recognized in this action, preemption or the alternative remedies doctrine may prevent an aggrieved employee from pursuing a state cause of action for wrongful discharge.
Burlington Northern also argues that the weight of authority is opposed to recognition of this state tort cause of action.
It does this first by attempting to distinguish the Herrera case from Colorado. In Herrera, the court allowed a state tort action for retaliatory discharge based on the plaintiff s exercise of his FELA rights. 997 P.2d at 1240-41. Burlington Northern argues that Herrera is weak authority because, unlike Hysten, the plaintiff in that case was not part of a collective bargaining agreement and thus not covered by the RLA. Although this is true, we disagree with Burlington Northern’s prediction that Herrera would necessarily have come out differently if the plaintiff had been subject to a collective bargaining agreement. The Colorado Court of Appeals opinion merely observes that the cases cited to it by the defendant had precluded a state tort action because of RLA preemption, a factor not present before it. The opinion then notes that a plaintiff such as the one before it would have no remedy for wrongful discharge without a state tort. It also, tellingly, cites to Sabich v. National R.R. Passenger Corp., 763 F. Supp. 989, 993 (N.D. Ill. 1991), for the proposition that the RLA does not preempt a retaliatoiy discharge claim independent of a collective bargaining agreement. 997 P.2d at 1241.
The Colorado judges then conclude:
“Further, although FELA does not create a private cause of action to sue an employer under the statute, plaintiff was not bringing suit pursuant to FELA. Rather plaintiff asserted a state common law claim of retaliatory termination, relying on the public policy exception to at-will employment concerning his right to pursue a remedy under FELA without reprisal from his employer.
“Here, plaintiff, in his complaint, stated that he had been awarded FELA benefits and that he had been terminated for asserting his right to seek such benefits in violation of the public policy that workers have an important public interest in not having to shoulder the financial burden for a work-related injury. Thus, the complaint sets forth a claim for retaliatory discharge based upon a public policy exception to the general doctrine of at-will employment, and the trial court erred in dismissing it.” 997 P.2d at 1241.
This reasoning and language from Herrera do not support the weight defendant would have them bear. The court did not say that its decision on the state tort rose and fell on the applicability of the RLA. Indeed, it came much closer to saying that the RLA, in its view, was irrelevant to the inquiiy at hand.
Burlington Northern next attempts to distinguish Herrera by saying the Colorado court found the public policy to be furthered was “that of protecting injured workers” while “Murphy relied on the [workers compensation statute] and implied a remedy for em ployee[]s that suffer because of the exercise of their rights under the [statute].” This argument ignores the Murphy court’s express invocation of public policy and its reliance on the statute’s underlying purpose. 6 Kan. App. 2d at 495-96. That purpose was obviously to protect injured workers.
Finally, as support for its “weight of authority” argument, Burlington Northern cites several federal cases, asserting that they counsel against allowing a common-law retaliation claim under FELA. Most of these cases are inapposite. Rather than dealing with recognition of a state tort for retaliatory discharge, they address federal preemption, the recognition of a private right of action under FELA, or exhaustion requirements. See, e.g., Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (no private right of action); Lewy v. Southern Pacific Transp. Co., 799 F.2d 1281, 1293 (9th Cir. 1986) (no private right of action); Minehart v. Louisville & Nashville R. Co., 731 F.2d 342, 344 (6th Cir. 1984) (exhaustion); Choate v. Louisville & Nashville R. Co., 715 F.2d 369, 370-72 (7th Cir. 1983) (preemption); Nelson v. Soo Line R. Co., 58 F. Supp. 2d 1023, 1025-26 (D. Minn. 1999) (preemption; no private right of action). The certified questions before us do not deal with these issues. The federal district court has already disposed of Burlington Northern’s preemption argument, and Hysten does not attempt to rely on FELA as the source of his cause of action.
Sabich is the only one of the federal cases cited by Burlington Northern in which a federal court attempts to rule definitively on what is necessarily a point of state law. In that case, Judge Bua of the Northern District of Illinois observes that the Illinois Supreme Court has not previously interpreted its public policy exceptions to the at-will doctrine expansively and refuses to recognize a state cause of action for retaliatory discharge based on die plaintiffs exercise of FELA rights. 763 F. Supp. at 994-95. As we noted above, questions such as those before us cannot be answered by federal precedent. Flenker v. Willamette Industries, Inc., 266 Kan. 198, 201-02, 967 P.2d 295 (1998). The most that Judge Bua could properly do was speculate on Illinois’ future course, a limitation on federal power apparently recognized in at least two of the other federal cases cited by Burlington Northern. See Mayon v. Southern Pacific Transp. Co., 805 F.2d 1250, 1253 (5th Cir. 1986) (noting Texas has not yet recognized tort); Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1053 (7th Cir. 1983), cert. denied 465 U.S. 1007 (1984) (characterizing Indiana law as unresolved).
It is important to remember that retaliatory discharge claims such as Hysten’s arise under state tort law. They are not creatures of federal law or of collective bargaining agreements. See Jackson, 717 F.2d at 1058-59 (Posner, J., dissenting) (claim not founded on collective bargaining agreement, would exist without agreement; “retaliatory discharge, even if not forbidden by the agreement, may ... be tortious under state law”).
In Jackson, a majority of a Seventh Circuit panel held that the plaintiff s state retaliatory discharge claim for exercise of FELA rights was preempted by the RLA. Jackson, 111 F.2d at 1054-56 (federal interest embodied in policies of FELA not sufficient to rebut “persuasive preemption”). Judge Posner dissented, agreeing that federal courts should protect the RLA arbitrators' exclusive competence to interpret collective bargaining agreements but disagreeing with the majority’s methods. Any necessary protection, he argued, should come at minimal expense to workers rights under state tort law.
“It puzzles me why we should go further and hold, as my brethren do in effect, that even if the arbitrators decide that the railroad had no contractual right to fire the employee, the employee may not maintain a tort action for retaliatory discharge. It is a grave matter for an employer to fire an employee for exercising a legal right. True, if he does this he may well be violating the collective bargaining agreement and the arbitrators can order the employee reinstated with back pay. But it would be surprising if compulsory arbitration of contract disputes was intended to wipe out the employee’s common law rights other than his right to enforce the very contracts that are subject to the scheme of compulsory arbitration. It might be different if Congress had established an administrative agency to police tort or tort-like conduct in railroad employment, but it has not; it has contented itself with requiring arbitration of contract disputes.
“. . . No one would argue that if Jackson’s supervisor had punched him in the nose for refusing to obey an order Jackson could have prosecuted a complaint against the railroad only as a grievance before one of the arbitration panels, and not as a complaint in court for common law battery. I do not see why a case where a railroad intimidates (though not physically) workers who file accident claims should be treated differently.” Jackson, 717 F.2d at 1060-61.
We have also recognized that an employee subject to a collective bargaining contract does not surrender state tort remedies that were neither included in the bargaining process nor intended by the parties to be a part of the contract Coleman v. Safeway Stores, Inc., 242 Kan. 804, 813, 752 P.2d 645 (1988) (overrulingArmstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 [1987]; Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 [1987]; Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 [1986]). We did not wish to immunize employers with collective bargaining contracts from “accountability for violations of state public policy.” Coleman, 242 Kan. at 813 (citing Midgett v. Sackett-Chicago, Inc., 105 Ill. 2d 143, 150, 473 N.E.2d 1280, 1283-84 [1984]).
Given all of the above, we hold that Kansas law recognizes a tort for retaliatory discharge based on an injured worker s exercise of his or her rights under FELA. The design and language of the Kansas Workers Compensation Act and the logic of Murphy, 6 Kan. App. 2d 488, persuade us that Kansas has a “thoroughly established” public policy supporting injured workers’ rights to pursue remedies for their on-the-job injuries and opposing retaliation against them for exercising their rights. It matters not that the vehicle for that exercise is a federal rather than a state statutory provision. The policy is the thing, and the first of the certified questions before us must be answered: “Yes.”
Adequacy of Alternative Remedy
“Under the alternative remedies doctrine, a state or federal statute would be substituted for a state retaliation claim if the substituted statute provides for an adequate alternative remedy. [Citations omitted.] The question to ask in resolving recognition of a state tort claim for retaliatory discharge is whether the statutory remedy is adequate and thus precludes the common-law remedy. [Citation omitted.]” Flenker, 266 Kan. at 202-03.
In this case, Burlington Northern argues that arbitration under the RLA is an adequate alternative remedy because it provides for reinstatement, restoration of seniority, and an award for economic loss. It also points out that a claimant may be represented by counsel and that awards must be in writing. It characterizes Hysten s inability to recover compensatory damages for pain and suffering and punitive damages as relatively minor omissions from a comprehensive scheme of redress.
We held in Flenker that the remedy in § 11(c) of the Occupational Safety and Health Act was inadequate because (1) a plaintiff had only 30 days to file his or her claim; (2) the claim was filed with the Secretaiy of Labor, who had sole discretion to decide whether to pursue a wrongful discharge claim; and (3) the statute did not include guidelines “ ‘as to what factors the Secretary must or may consider to constitute an investigation.’ ” Flenker, 266 Kan. at 205-07. We focused on the allocation of “the decision to pursue an employee’s claim of retaliatory discharge” to an administrative agency rather than to the plaintiff. Flenker, 266 Kan. at 208-10 (citing Coleman, 242 Kan. at 813-14).
In Coleman, as Burlington Northern concedes, we were critical of reliance on arbitration in the public policy tort arena:
“The grievance and arbitration procedure is an inappropriate forum for the enforcement of state public policy because arbitrators are bound by the limitations imposed by the terms of the collective bargaining agreement. . . .
“Arbitral procedures, while well suited to the resolution of contractual disputes, are comparatively inappropriate for the resolution of tort claims .... As Justice Powell reasoned . . ., the specialized competence of arbitrators pertains primarily to the law of die shop, and not the law of the land. The factfinding process in arbitration does not equate with judicial factfinding. Rules of evidence do not usually apply; the rights and procedures common to civil trials such as discovery, compulsory process, cross-examination, and testimony under oath are often severely limited or unavailable. [Citation omitted.] These limitations have a significant impact in a case of retaliatory discharge where the focus is on die employer’s motive for the firing.” Coleman, 242 Kan. at 813-14.
As in Coleman, the RLA process at issue here is arbitration, a process we have already held is far less than ideal.
In terms of control, one might say that Hysten could exercise more control over his claim in the first instance, when compared with the plaintiff in Flenker. Burlington Northern also argues that he had a right to appeal the ruling of the National Railroad Adjustment Board to federal district court. Although this is true, we agree with Hysten that the narrowness of the standard of review on that appeal robbed him of most of his control over the issues to be addressed. In the words of the United States Supreme Court, the RLA provides that the Board’s decisions shall be final and binding upon both parties to the dispute. An adverse decision may be appealed to the federal district court on only three grounds: “(1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine itself to matters within the scope of its jurisdiction; and (3) fraud or corruption.” Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 93, 58 L. Ed. 2d 354, 99 S. Ct. 399 (1978) (citing 45 U.S.C. § 153[q]).
This narrow standard insulates the factfinding of the Board from careful judicial scrutiny. This is unsatisfactory, given our earlier observation that factfinding in arbitration is deficient when compared with factfinding in the judicial process. See Coleman, 242 Kan. at 813-14.
We also do not regard the unavailability of compensatory damages for pain and suffering and punitive damages as trivial. As we recognized in Coleman, a retaliatory discharge action, such as the one Hysten brings here, is designed to redress a violation of state public policy. Coleman, 242 Kan. at 813. The availability of compensatory damages beyond those designed to eliminate purely economic loss and particularly the availability of punitive damages can deter such violations. As Judge Posner said: “It is a grave matter for an employer to fire an employee for exercising a legal right.” Jackson, 717 F.2d at 1060. Deterrence of such conduct is essential.
A recent federal case from the Northern District of Illinois held that the unavailability of punitive damages under the RLA did not make it an inadequate alternative to an action for retaliatory discharge under Illinois law. See Emery v. Northeast Illinois Regional Commuter R. Corp., 2003 WL 22176077 (N.D. Ill. 2003). However, the decision suggests the result would have been the opposite if Illinois law would have permitted recovery of such damages in that instance. In contrast, Kansas law would permit recovery of punitive damages in Hysten’s action for retaliatory discharge. See Murphy v. City of Topeka, 6 Kan. App. 2d 488, Syl. ¶ 7, 630 P.2d 186 (1981).
We conclude that the remedy afforded Hysten by the RLA is not an adequate alternative to a retaliatory discharge action under Kansas tort law. We are influenced by differences in process, differences in claimant control, and differences in the damages available. It may be that additional factors will also be influential in a future case. Here, all of these differences are enough to dictate that the second certified question be answered: “No.”
We answer the first certified question in the affirmative and the second certified question in the negative. Kansas law recognizes a tort of retaliatory discharge for exercise of an injured employee’s rights under FELA, and any RLA proceeding available to that employee is not an adequate alternative remedy. | [
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The opinion was delivered by
Luckert, J.;
In 1988, Manford Cooper was convicted of a single class A felony and received a life sentence, which was tripled pursuant to the Habitual Criminal Act, K.S.A. 1986 Supp. 21-4504. The Department of Corrections (DOC) informed Cooper, an inmate at the Lansing Correctional Facility, that he would be eligible for parole in October 2002, at which time he would have served 15 years of imprisonment. Later, DOC advised Cooper his parole eligibility was changed from 15 to 45 years. Cooper filed a petition for a writ of habeas corpus under K.S.A. 2002 Supp. 60-1501 after exhausting his administrative remedies.
The district court initially denied Cooper s request for relief, but upon reconsideration, granted the petition. The Secretary of Corrections appeals. The case was transferred to this court on the court’s own motion pursuant to K.S.A. 20-3018(c).
The overarching issue for our determination is whether Cooper, whose life sentence was tripled under the Habitual Criminal Act, K.S.A. 1986 Supp. 21-4504, is eligible for parole under K.S.A. 1986 Supp. 22-3717 after serving 15 years, or whether by operation of K.S.A. 1986 Supp. 21-4504 he must serve three consecutive 15-year periods before becoming parole eligible.
Before reaching this issue, however, we must consider the Secretary’s argument that the district court erroneously applied the current version of the statute which specifies the time frame for parole eligibility, K.S.A. 2002 Supp. 22-3717, and retroactively applied the 1993 amendments to 22-3717(b)(3).
The Secretary is correct that the outcome of this case is governed by the statutes in effect at the time the crime of conviction was committed. See State v. Martin, 270 Kan. 603, 605, 17 P.3d 344 (2001) (“Criminal statutes and penalties in effect at the time of the criminal act are controlling.”) However, the district court did not disregard this rule, but stated that the current statute was essentially the same as previous versions of the statute. In this case, the crime of conviction was committed in January 1987, and the parole eligibility statute in effect at that time, K.S.A. 1986 Supp. 22-3717, provided:
“(b) An inmate sentenced for a class A felony, including an inmate sentenced pursuant to K.S.A 21-4618 and amendments thereto, shall be eligible for parole after serving 15 years of confinement, without deduction of any good time credits.
“(c) Except as provided in subsection (d), if an inmate is sentenced to imprisonment for more than one crime and the sentences run consecutively, the inmate shall be eligible for parole after serving the total of
(1) The aggregate minimum sentences, . . . and
(2) an additional 15 years, without deduction of good time credits, for each crime which is a class A felony.”
The current version, K.S.A. 2002 Supp. 22-3717, which the district court quoted, states:
“(b) . . . (3) Except as provided by K.S.A. 1993 Supp. 21-4628 [hard 40] prior to its repeal, an inmate sentenced for a class A felony committed before July 1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and amendments thereto, shall be eligible for parole after serving 15 years of confinement, without deduction of any good time credits.
“(c) Except as provided in subsection (e), if an inmate is sentenced to imprisonment for more than one crime and the sentences run consecutively, tire inmate shall be eligible for parole after serving the total of:
(1) The aggregate minimum sentence, as determined pursuant to K.S.A. 21-4608 and amendments thereto, less good time credits for those crimes which are not class A felonies; and
(2) an additional 15 years, without deduction for good time credits, for each crime which is a class A felony.”
Comparison of the two versions of the statute reveals the accuracy of the trial court’s conclusion that the current statute is “essentially the same language” as that found in the 1986 version of the statute. Thus, although tire statute which controls is that which was in effect at the time Cooper committed the crime of conviction, we are not faced with an issue of whether subsequent amendments affected the time of Cooper’s parole eligibility. Consequently, we need not consider an issue regarding retroactivity.
Rather, we must determine whether the district court’s interpretation of the language of the statute was erroneous. In doing so, our standard of review is unlimited. Interpretation of a statute is a question of law over which appellate courts exercise unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). Additionally, in cases involving habeas corpus relief pursuant to K.S.A. 2002 Supp. 60-1501, an appellate court’s review of the district court’s conclusions of law is unlimited. Darnell v. Simmons, 30 Kan. App. 2d 778, 780, 48 P.3d 1278 (2002).
This court and the district court’s interpretation of the statute must occur within the parameters of well-established rules.
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of die legislature as expressed, radier than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001) (citing In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 [1998]).
We agree with Cooper’s argument and the district court’s conclusion that the language of K.S.A. 1986 Supp. 22-3717(b) is plain and unambiguous. The statute provides in relevant part: “An inmate sentenced for a class A felony . . . shall be eligible for parole after serving 15 years of confinement . . . .” K.S.A. 1986 Supp. 22-3717(b). Aggregation of sentences occurs only “if an inmate is sentenced to imprisonment for more than one crime” (Emphasis added.) K.S.A. 1986 Supp. 22-3717(c). An additional 15 years is imposed “for each crime which is a class A felony.” (Emphasis added.) K.S.A. 1986 Supp. 22-3717(c)(2). Cooper committed one crime and is eligible for parole after serving 15 years. Additional periods are not imposed because Cooper did not commit more than one crime.
The Secretary also argues that K.S.A. 1986 Supp. 22-3717 and K.S.A. 1986 Supp. 21-4504 operated in pari materia and that Cooper’s suggested interpretation of 22-3717 would implicitly repeal 21-4504. K.S.A. 1986 Supp. 21-4504(b) provided:
“(b) If a defendant is convicted of a felony a third or subsequent time, the trial judge shall sentence the defendant as follows, upon motion of the prosecuting attorney:
“(1) The court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence authorized by K.S.A. 21-4501 and amendments thereto, for the crime for which the defendant is convicted; and
“(2) the court may fix a maximum sentence of not less than the least nor more than three times the greatest maximum sentence provided by K.S.A. 21-4501 and amendments thereto, for the crime.”
In essence, the Secretary seeks to treat the parole eligibility period as if it had been announced as a minimum sentence under subsection (1). However, as we have explained in the past: “The term for a class A felony is imprisonment for life, which is not an indeterminate sentence. ... [A] class A felony has no maximum or minimum that can be set by the court.” State v. Van Winkle, 256 Kan. 890, 899, 889 P.2d 749 (1995). Hence, the tripling of a life sentence does not fall squarely within the terms of the statute. Despite this, we have recognized that K.S.A. 21-4504 (and its relevant predecessors) gives the sentencing court the authority to double or triple the life sentence of a habitual violator. See State v. Sanders, 263 Kan. 317, 328, 949 P.2d 1084 (1997); State v. Patterson, 257 Kan. 824, 896 P.2d 1056 (1995); State v. Baker, 237 Kan. 54, 56-57, 697 P.2d 1267 (1985); State v. Beasley, 205 Kan. 253, 469 P.2d 453 (1970), cert. denied 401 U.S. 919 (1971).
The Secretaiy relies upon Sanders, arguing that in that decision this court recognized that tripling a life sentence under the Habitual Criminal Act would lengthen the time an inmate must serve before being parole eligible. In Sanders, the court restated the defendant’s argument that the imposition of consecutive life sentences under the Habitual Criminal Act was “illegal because its only purpose is to push back his parole eligibility date.” 263 Kan. at 328. The court did not resolve the issue now before us because the court determined that even if the defendant’s argument were true, the sentence was not illegal. The court simply noted that in Baker and Beasley the court upheld the enhancement of a life sentence under K.S.A. 21-4504, and in State v. Evans, 251 Kan. 132, 141, 834 P.2d 335 (1992), “dismissed a similar argument regarding the alleged illegality of enhancing a sentence to postpone parole eligibility.” Sanders, 263 Kan. at 328.
Although in Patterson the court concluded that “the result of the district court’s invoking the habitual criminal provision of 21-4504 to defendant’s life sentence of first-degree murder is to impose three consecutive life sentences,” 257 Kan. at 829, the court also noted: “A life sentence enhanced by application of the habitual criminal provision remains a single sentence for a single offense.”
257 Kan. at 827. Applying this conclusion to the plain language of K.S.A. 1986 Supp. 22-3717, Cooper committed a single class A felony and he is parole eligible after serving 15 years of imprisonment. The Habitual Criminal Act does not change the effect of K.S.A. 1986 Supp. 22-3717, which is specific to the determination of parole eligibility.
Additionally, the Secretary argues that the Secretary’s interpretation of the statutes is entitled to considerable weight since there is not a controlling appellate decision. See Muir v. Bruce, 28 Kan. App. 2d 482, Syl. ¶ 1, 18 P.3d 247 (2001). The doctrine of operative construction provides that the interpretation of a statute by an administrative agency charged with the responsibility of enforcing it is entitled to judicial deference. However, an agency’s interpretation of a statute is not conclusive or binding on the courts. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 317, 22 P.3d 600 (2001).
The Secretary asks us to apply the doctrine and defer to the DOC’s interpretation and conclusion that Cooper was not parole eligible until he had served 45 years. As we have previously noted, the Secretary’s interpretation is contrary to the plain language of K.S.A. 1986 Supp. 22-3717, which provides that Cooper is eligible for parole after having served 15 years of imprisonment.
In granting relief on the motion for reconsideration, the district court implicitly applied the doctrine of operative construction against the Secretary by relying upon a regulation promulgated by the DOC. K.A.R. 44-6-112 (1984) provided: “(d) Those sentences imposed under the ‘habitual criminal act,’ K.S.A. 21-4504, and which have a minimum sentence of 15 years or more, shall have a parole eligibility fixed at 15 years.” The Secretary accurately points out that the regulation relied upon by the district court did not apply to Cooper’s case. The heading of K.A.R. 44-6-112 (1984) stated that it applied to parole eligibility computation for “crimes between January 1979 and July 1982, including aid and abet after July 1981.” Cooper committed his offense in January 1987; therefore, this regulation did not apply to him.
The regulation which actually applied to Cooper was K.A.R. 44-6-114 (1984); it governed parole eligibility computation for crimes committed after July 1982. K.A.R. 44-6-114(a) provided that “[a]ny class A felony sentence . . . shall have a fixed parole eligibility date of 15 years.” The regulation also provided that if an inmate had consecutive sentences for one or more class A felonies, an additional 15 years should be added for each class A felony. K.A.R. 44-6-114(c)(l). The regulation makes no mention of the Habitual Criminal Act. However, it is persuasive that the agency’s regulation for a different time period when the statutory scheme was essentially the same would require the same result we reach here. We hold that under the plain and unambiguous language of K.S.A. 1986 Supp. 22-3717, Cooper is parole eligible after serving 15 years.
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The opinion of the court was delivered by
Gernon, J.;
Binh Ly appeals his convictions for one count each of felony murder, K.S.A. 21-3401, and aggravated burglary, K.S.A. 21-3716.
On May 24, 2001, 20-year-old Chanh Chantivong and his younger twin brothers, Chin and Done, were at Woody Sim’s house for haircuts. Several other young men, who were suspected to be members of the East Side Crips gang, were also at Sim’s house. Because Sim’s house had formerly been a duplex, his bedroom had an exterior door leading onto the front porch. The young men were hanging out in Sim’s bedroom and on the front porch.
During the evening, the young men had a conflict with a rival gang member who had fired shots at Sim’s house. Afterwards, Chanh sent Done home to get Chanh’s gun. When Done returned, the group of young men at Sim’s house sat on the deck and discussed the earlier shooting incident. They kept all of the lights off because the police were patrolling the area and they did not want to attract attention. At about midnight, Done saw two cars following each other down the street. The two cars parked near Sim’s house. A group of people ran from the cars, lacked in the door to Sim’s bedroom, and turned on the lights. Some of the young men ran from the deck to the backyard, but Chanh ran into the house with his gun. A round of gunshots followed, and the group ran back to their cars and drove away. Witnesses estimated that the shooting lasted about 1 minute, but when it was over, Chanh lay dead on the floor. He had been shot 16 times and stabbed once.
Police found 26 cartridge casings in Sim’s bedroom from four different caliber weapons. The ballistics report indicated that Chanh’s attackers used five different guns, but the only gun police recovered from the scene was Chanh’s.
Ly became a suspect in Chanh’s murder when Salina police responded to a statewide alert for anyone reporting to a hospital with gunshot wounds. Ly sought treatment at the Salina Hospital for two gunshot wounds. A hospital employee notified the Salina police, who questioned Ly and his companions about Ly’s injuries. Both Ly and his companions told the Salina police that Ly had been shot while he was urinating near the highway in Salina. However, a firearms expert analyzed the bullet removed from one of Ly’s wounds and determined that it had been fired from Chanh’s gun. After his arrest, Ly admitted to being present at the shooting but told police that he did not have a weapon. Ly gave the police the names of three individuals who were armed.
■ The State charged Ly with one count of aggravated burglary and one count of first-degree murder under alternative theories of premeditated murder and felony murder. The case was originally set for trial on August 13, 2001, but the State received a continuance, over Ly’s objection, until September 10, 2001, to get the ballistics report completed. On September 5, 2001, the State orally advised Ly’s counsel of the results from the ballistics report. The next day, Ly’s counsel orally moved for a continuance to get a ballistics report from an independent firearms expert. The court denied Ly’s request.
At trial, Ly claimed ignorance as a defense. He told police that he thought he was going to a party and that no one had talked about any shooting. Disbelieving Ly’s claim of ignorance, the jury found him guilty of felony murder and aggravated burglary. Ly appeals directly to this court pursuant to K.S.A. 22-3601(b)(l).
Ly first argues that the trial court should have granted him a continuance to find a firearms expert to rebut the State’s ballistics report, which placed six guns at the shooting, including the gun used by. the victim. Ly claims that his request for a continuance should have been granted because the trial court granted the State’s motion for a continuance to complete the ballistics report, and he was denied an opportunity to prepare a response. Ly asserts that his ability to rebut the State’s ballistics report was critical to his defense because it contradicted his claim that there were only three shooters.
The trial court has discretion to grant or deny continuances. An appellate court will not disturb the trial court’s ruling unless the defendant can show that the trial court abused its discretion and prejudiced his or her substantial rights. Judicial discretion is abused when no reasonable person would adopt the position taken by the trial court. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997).
In State v. Snodgrass, 252 Kan. 253, 264, 843 P.2d 720 (1992), the defendant requested a continuance 2 days before trial to pursue independent DNA testing. This court held that it was not an abuse of discretion to deny the defendant’s request because the defendant’s counsel chose to wait until the State’s testing was complete to request the independent testing. 252 Kan. at 264. The Snodgrass court concluded that the defendant could not complain of his own counsel’s inaction when he could have pursued the independent testing long before the State’s test results were complete and the trial date had arrived. 252 Kan. at 264.
Like the defendant in Snodgrass, Ly chose to wait until he received the State’s report before requesting independent ballistics analysis. Ly knew that the State was analyzing the shell casings and planned to use the ballistics report. His attorney understood the importance of the ballistics report and could have requested independent testing prior to 4 days before the trial was scheduled but chose not to pursue that course of action. Ly cannot now complain of his attorney’s inaction.
In State v. Daigle, 220 Kan. 639, 642, 556 P.2d 400 (1976), cert. denied 430 U.S. 983 (1977), the State admitted evidence from an expert who analyzed the tom edges of two pieces of a wrapper and testified that the two pieces came from the same wrapper. When the State discovered the evidence during the trial, the defendant requested a continuance to find an out-of-state “fracture expert” to rebut the State’s evidence. 220 Kan. at 645. This court upheld the denial of the defendant’s continuance, finding that the defendant failed to demonstrate any prejudice and relying on the defendant’s failure to seek testing after the trial concluded in preparation for a motion for a new trial. 220 Kan. at 645.
This case is also like the Daigle case. Although Ly indirectly argues that he was prejudiced because forensic experts have been known to testify falsely, he fails to establish any actual prejudice. Ly cites two federal cases involving deception by forensic experts in criminal trials. However, Ly fails to point to any evidence indicating that the forensic expert in this case testified falsely at his trial or in any previous trial. Ly could have had independent testing done after his trial and presented any contrary findings to the trial court in a motion for a new trial based on new evidence. Like the defendant in Daigle, Ly did not avail himself of this relief. Without any evidence to establish that the State’s forensic expert was lying or that his findings were inaccurate, Ly has failed to establish any reason for granting his motion for a continuance.
Ly also failed to take advantage of the trial court’s offer to reconsider his motion for a continuance before the trial began if he found a firearms expert that would provide new information regarding the issue. Ly had 4 days to locate and discuss the matter with another firearms expert but chose not to pursue that course of action. Ly did not present any further evidence to the trial court to demonstrate his need for a continuance.
In State v. Burnison, 247 Kan. 19, 795 P.2d 32 (1990), this court addressed the issue of a continuance to investigate last-minute evidence. Six days before the trial started, the prosecutor discovered that the victim’s cigarette lighter was in the defendant’s property envelope at the county jail. The prosecutor mailed a copy of the report to the defendant’s attorney, who received the report 3 days before trial. On the day of trial, the defendant filed a motion in limine, seeking to prevent the State from mentioning the lighter in its opening statements, but the motion was denied. Four days later, the defendant filed a motion to suppress the lighter. The trial court denied the motion 5 days later and denied the defendant’s motion for a continuance. This court upheld the trial court’s denial, noting that the defendant made no attempt to investigate tire evidence during the 7-day period between the discovery of the evidence and the introduction of evidence at the trial. 247 Kan. at 31-32.
The same analysis applies in this case. Thé trial court gave Ly 4 days to locate another firearms expert, stating that it would reconsider its decision if Ly could demonstrate a reason to grant the continuance. Ly failed to make any effort to locate another firearms expert or otherwise investigate the State’s ballistics report. With no evidence to support a different ruling, the trial court did not abuse its discretion in denying Ly’s request for a continuance.
Ly’s argument that he was prejudiced because he could not get an independent ballistics expert is further diminished by the State’s theory of the case. Although the State attempted to prove that Ly was an actual shooter, it argued in the alternative that he was guilty as an aider and abetter. There is no dispute that Ly was present at Chanh’s murder. A bullet fired from Chanh’s gun was removed from Ly’s leg, and Ly admitted he was present at the shooting. Ly’s only defense was ignorance. He claimed that he was unaware of the group’s intentions to break in the door and hurt someone and thought the group was just going to a party.
The number of guns does not affect tire aiding and abetting theory of guilt. Either Ly knew what the group planned to do or he did not. If he knew that the group planned to break in and shoot someone, then his presence indicates his ratification of those acts, making him an aider and abetter. We can infer from the verdict that the jury did not believe Ly’s defense. Without that defense, Ly is guilty whether he actually had a gun and shot the victim or not.
Ly cites State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), for the proposition that this court considers a five-factor test in determining whether the trial court should have granted the defendant’s motion for a continuance. Ly misapplies the test from Anthony. In Anthony, the issue was whether the court should have granted the defendant a continuance so his newly retained counsel could prepare for trial. The five-factor test considered by the Anthony court specifically balances a defendant’s right to secure counsel of his or her choice against the court’s discretionary power to deny continuances. Anthony is not on point. Ly did not request a continuance so he could retain new counsel. Consequently, the five-factor test from Anthony does not apply.
In light of the opportunities Ly had to dispute the evidence both before and after trial, Ly cannot now complain of his attorney’s actions or inactions. See Snodgrass, 252 Kan. at 264. Likewise, Ly has failed to demonstrate any prejudice because the State’s case was not based purely on the theory that Ly shot the victim. As a result, we do not believe that the trial court abused its discretion by denying Ly’s motion for a continuance to allow him time to locate a firearms expert.
Next, Ly argues that the prosecutor improperly discussed facts that were not in evidence during his closing arguments. Specifically, Ly claims that there is no evidence to support the prosecutor’s statement that there were five people plus the victim at the scene and that all five people had guns. Ly, however, raised no objection to either of these statements at trial.
Generally, when there is no objection at trial, there can be no reversible error based on a prosecutor’s misconduct during closing argument. However, if the prosecutor’s statements violate a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, an appellate court may find reversible error without a contemporaneous objection. When this court determines that the claimed error may violate a defendant’s right to a fair trial, it will consider the error. State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999).
We apply a two-step analysis to determine the effect of a prosecutor’s alleged improper remarks in closing argument. First, we consider whether the-remarks are outside the considerable latitude allowed to the prosecutor in discussing the evidence. The prosecutor is given wide latitude in both the language and the manner of presentation of closing argument so long as the argument is consistent with the evidence. Second, we must determine whether the remarks constitute plain error. Plain error occurs when the prosecutor’s remarks are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial, requiring reversal. 267 Kan. at 278-79.
A prosecutor’s remarks during closing argument are so gross and flagrant that they deny the defendant a fair trial when the reviewing court, using a harmless error analysis, finds that the error would have changed the result of the trial. Otherwise, the court must be willing to declare beyond a reasonable doubt that the error was harmless. 267 Kan. at 279.
Based on our review of the record, the prosecutor s statement that five people entered Sim’s room is supported by the evidence. Because Ly did not object to this statement, we decline to consider his claim of error in this regard.
However, we will consider Ly’s claim that the prosecutor committed misconduct with the following statement:
“When [Sovong Vann] wakes up, he sees guys moving across his bed out the door. He says everybody had guns. He can recall the description of one of the people, and they had on a yellow shirt and that that person with the yellow shirt had a gun. He says all of them had guns.”
Our review of the record reveals that this statement is not supported by evidence introduced at trial. Vann testified that he saw an Asian male in a yellow shirt with a gun. Vann did not make any statements to indicate that all of the intruders had guns. Ly claims that this error requires reversal because without it, the prosecutor could not establish that Ly had a weapon.
The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is clearly improper for the prosecutor to state facts that are not in evidence. State v. Gardner, 264 Kan. 95, 105-06, 955 P.2d 1199 (1998). Because the prosecutor’s statement was not supported by the evidence, it was outside the considerable latitude allowed to prosecutors in discussing the evidence. Therefore, we must proceed to the second step in our prosecutorial misconduct analysis— whether the statement constituted plain error. See McCorkendale, 267 Kan. at 278.
In Gardner, the prosecutor told the jury during closing argument that the defendant’s bloodstained boots were found under the victim’s tools. This court determined that the prosecutor’s remark was a misstatement of fact but found it to be harmless error because the juiy heard evidence that the victim’s tools were found in the same house as the defendant’s boots. 264 Kan. at 106. The Gardner court determined that the State’s improper allegation was not a significant part of the State’s case. 264 Kan. at 106.
The reasoning from Gardner applies in this case. Although the prosecutor s statement in this case is improper, the error is harmless because the State’s misstatement of fact was an insignificant part of its case. Vann testified that he saw a person with a yellow shirt carrying a chrome gun. Ly admitted to Detective Relph that he was wearing a yellow shirt at the time of the shooting. The prosecutor connected Ly to the person in the yellow shirt in his closing argument. Thus, the prosecutor’s statement that the person with the yellow shirt carried a gun and his argument that Ly carried a gun is supported by the evidence. The additional statement drat everyone had a gun has no real import. See Gardner, 264 Kan. at 106.
Furthermore, Ly’s argument overlooks the State’s aiding and abetting theory. Under that theory, the State did not have to place a gun in Ly’s hands to prove first-degree murder. All the State had to prove was that Ly was not an inadvertent witness. The jury’s verdict indicates that it did not believe Ly’s claim that he was an inadvertent witness.
Because the prosecutor’s statement had no significance to the State’s case and was unnecessary under the State’s alternative theory of guilt as an aider and abetter, the error, when viewed in light of the whole record, would not have changed the verdict or the result of the trial.
For his final issue, Ly argues that there is insufficient evidence to support his convictions. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all tire evidence, viewed in a 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. See State v. Beach, 275 Kan. 603, 610-11, 67 P.3d 121 (2003).
Ly claims that his mere presence did not constitute aiding and abetting. The mere presence of the defendant at the time and place of the crime is insufficient for establishing the defendant’s guilt for that crime. However, if, from the facts and circumstances surrounding the defendant’s presence and the defendant’s conduct, it appears that the defendant’s presence did in fact encourage some one else to commit the crime, guilt may be inferred. If the defendant’s conduct does not demonstrate a design to encourage, incite, aid, abet, or assist in the crime, the factfinder may consider the defendant’s failure to oppose the commission of the crime, along with other circumstances, and conclude that the defendant assented to, approved of, or encouraged the commission of the crime, thereby aiding and abetting the commission of the crime. State v. Wakefield, 267 Kan. 116, 121, 977 P.2d 941 (1999) (holding that defendant’s willing participation in an aggravated burglary, his failure to oppose his companion’s premeditated murder of the residents, and his continued actions in loading the victim’s property after the murders constituted sufficient evidence for finding defendant guilty of first-degree premeditated murder as an aider and abetter).
Ly relies on State v. Green, 237 Kan. 146, 697 P.2d 1305 (1985), to support his theory that he was not guilty of aiding and abetting because he was merely along for the ride. In Green, the defendant was charged with theft as an aider and abetter for driving the getaway car. This court upheld the trial court’s dismissal of the charge for lack of probable cause, finding that the defendant was a “mere associate” of the principals and there was no evidence that he willfully furthered the crime. 237 Kan. at 149. However, three justices dissented, finding that the majority disregarded evidence favoring the State. 237 Kan. at 149-50. The dissenting justices determined that Green assisted in the crime by driving away from the scene to prevent detection while his companions carried out the theft and by returning with the car to pick up his companions and the stolen goods. 237 Kan. at 150. The key to the Green court’s analysis is the evidence.
Ly’s argument that he was merely along for the ride overlooks several key pieces of evidence. First, Ly was shot twice by the victim. One bullet entered the front of Ly’s thigh and penetrated to the back of his buttocks, where it remained. These wounds indicate that Ly was facing Chanh when Chanh shot him.
Second, one of the eyewitnesses described a man in a yellow shirt with a gun. This testimony is not disputed. Ly admitted to police that he had a yellow shirt on at the time of the shooting. Based on this evidence, it is reasonable to infer that Ly had a gun.
Third, the victim’s brother observed the two cars as they approached the house and testified that the people in both cars ran together to the front door and kicked in the front door. The victim’s brother also testified that the group of people ran back to the cars together after the shooting. The witness estimated that the entire incident took about 1 minute. This testimony contradicts Ly’s statement that he and a friend remained in the car for about 45 seconds after the others walked up to the house. The fact that the people from both cars ran to the door together implies that they coordinated their actions before arriving at the house. This evidence negates Ly’s claim that the group did not discuss the shooting prior to arriving at Sim’s house and his claim that he did not know what was going on. From this evidence, the jury could have inferred that Ly encouraged and participated in the incident regardless of whether he possessed or shot a gun.
Fourth, the shooting occurred at about midnight. The victim’s brother testified that all of the lights were off at the house because there were police in the area and they did not want to attract attention. This evidence negates Ly’s claim that he thought there was a party going on at the house. If there had been a party going on, the lights would not have been off.
Finally, the crime scene investigator testified that the exterior door had been forced open and that the deadbolt lock on the door was engaged. When this evidence is considered in connection with the testimony that the group ran to the house together, it further contradicts Ly’s claims that he thought there was a party and he did not know how the others had entered the room. If there had been a party, the door would not have been forced open with the deadbolt engaged.
Other than ■Ly’s statement to Detective Relph, there is no evidence to support his theory that he thought he was going to a party. Considering these key pieces of evidence and making all reasonable inferences in favor of die prosecution, we conclude that a rational factfinder could have found Ly guilty beyond a reasonable doubt of felony murder with aggravated burglary as the underlying felony.
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The opinion of the court was delivered by
Nuss, J.:
This case involves a dispute about interest accruing on escrowed funds. ARY Jewelers, L.L.C. (ARY) contracted to buy Krigel’s, Inc., which owned and operated a jewelry business in several Midwestern states. After the sale failed, a Johnson County District Court granted summary judgment to ARY and ordered return of its $1.5 million in escrow. Scott Krigel, individually and as trustee of the Scott W. Krigel Revocable Trust which owned the company stock (collectively the Krigels), appealed not only the grant of summary judgment to ARY but also the denial of their own summary judgment motion based upon breach of contract.
After the Krigels’ appeal was docketed, ARY filed a motion essentially seeking prejudgment and postjudgment interest at the Kansas statutory rates on its $1.5 million. The court denied the motion, and ARY appealed. After the Court of Appeals denied ARY’s motion to consolidate, we transferred both cases on our own motion pursuant to K.S.A. 20-3018(c).
We affirmed the district court’s summary judgment for ARY on the substantive issues in ARY Jewelers v. Krigel, 277 Kan. 27, 82 P.3d 460 (2003) (ARY I). We essentially ruled that under the express terms of paragraph 4(c) of the Stock Purchase Agreement (SPA), the SPA was null and void as of December 19, 2000, because of an unfulfilled financing condition.
Concurrent with the release of ARY I, we ordered the parties to submit supplemental briefs on the issue of prejudgment and postjudgment interest by January 30,2004, since our holding the SPA null and void placed in doubt (1) the district court’s ruling that per the SPA and related agreements the parties had “agreed” upon the interest rate and (2) the viability of the SPA’s choice of law provision. The parties timely complied.
Accordingly, the central issue on this appeal is whether the district court correctly concluded that the parties had agreed upon the rate of interest to accrue on the escrowed funds and, if not, whether Missouri or Kansas law supplies the statutory rate of interest.
Other issues include whether the district court had jurisdiction to address the interest issue, whether interest is available in declaratory judgment actions, and whether the awarding of prejudgment and postjudgment interest is discretionary with the district court.
We hold that the district court had jurisdiction, but that it erred in holding the parties had agreed upon an interest rate. We therefore reverse and remand for a determination of the amount of interest accruing under the statutes as described in die opinion.
FACTS
Krigel’s, Inc., a family-owned Kansas corporation operating jewelry stores across several Midwestern states, began having financial problems early in 2000 and soon became insolvent. Scott Krigel (Scott), on behalf of the Scott W. Krigel Revocable Trust, began to seek a buyer for the family business. On November 21, 2000, following extended negotiations with Gohar Husain, both Scott on behalf of his trust and Husain on behalf of ARY, signed the SPA, which underlies the dispute in this case and in its companion, ARY I.
The SPA called for Krigel’s, Inc., to file for Chapter 11 bankruptcy. After approval of the bankruptcy court and sale closing, ARY was to purchase all of the stock of Krigel’s, Inc. According to SPA paragraph l.(b), at the time of closing — which was to be no later than April 30, 2001 — the stock purchase price of $50,000, plus accrued interest, was to be paid in cash to Scott’s trust from the $50,000 ARY escrowed at Assured Quality Title Company exclusively for that purpose. Upon closing, ARY was also to pay 60% of the debt owed to each of Krigel’s, Inc.’s unsecured creditors and assume responsibility for or pay off all debt Krigel’s, Inc., owed to its only secured creditor, Foothill Capital Bank (Foothill Capital).
The same day as the SPA’s execution, Husain, again on behalf of ARY, and Scott, on behalf of himself and Krigel’s, Inc., signed a Consulting and Noncompetition Agreement for Scott Krigel (consulting agreement). It required ARY to hire Scott as a consultant for up to 1 year and forbade him from competing with ARY in the area of existing Krigel’s, Inc., stores for 2 years. In exchange for these considerations, ARY was to pay Scott the entire $1.45 million it placed in a second escrow account at Assured Quality Title exclusively for that purpose.
More specifically, both the consulting agreement at paragraph 9, and the SPA at paragraph 2, provided that at the time of closing, $950,000 for Scott’s covenant not to compete, plus accrued interest, was to be paid to him from the escrowed funds. Additionally, paragraph 4 of the consulting agreement provided that $500,000 for Scott’s consulting services was to be paid to him from the escrow in six equal monthly installments, with the first installment due at closing. It further provided that at the time of the final installment, Scott could “also withdraw all accrued interest on the $500,000.”
Two other documents, the escrow agreements themselves, were also dated November 21, 2000, and were signed by ARY, Scott, and Assured Quality Title. Among other things, they provided Scott could direct the investment of ARY’s funds with certain restrictions. The escrow agreement controlling the $1.45 million ARY deposited for Scott’s services provided at paragraph 5:
“Escrowee [Assured Quality Title Company] shall invest and as necessary reinvest the Escrowed Funds in interest bearing securities issued, guaranteed or secured by the United States or the Federal Deposit Insurance Corporation as directed by Krigel for the account of Krigel.”
The escrow agreement controlling the $50,000 ARY deposited for the stock purchase was essentially the same. It provided at paragraph 5:
“Escrowee [Assured Quality Title Company] shall invest and as necessary reinvest the Escrowed Funds in interest bearing securities issued, guaranteed or secured by the United States or the Federal Deposit Insurance Corporation as directed by Shareholder for the account of Scott W. Krigel.”
The SPA provided at paragraph 9, and the consulting agreement at paragraph 19, that if ARY failed to provide proof of its ability to pay unsecured creditors prior to Krigel’s, Inc.’s bankruptcy filing, or if it failed to pay the unsecured creditors on the effective date of the bankruptcy plan, then Scott and his trust would immediately be entitled “to receive all funds escrowed” pursuant to paragraphs 4 and 9 of the consulting agreement and paragraph 1(b) of the SPA.
The SPA also contains the “Foothill Capital financing condition” and provides at paragraph 4(c):
“(c) Within four weeks from the date hereof [December 19, 2000] Purchaser shall provide Seller with evidence of Foothill Capital’s consent to the continued financing of Company’s obligations to Foothill Capital. In the event Foothill Capital does not consent within the foregoing time period this Stock Purchase Agreement and related agreements shall be void and of no further effect.” (Emphasis added.)
SPA Paragraph 8(a) provides that the SPA and “any other agreements referenced herein,” i.e., the consulting agreement and two escrow agreements, “shall be governed and construed in accordance with the laws of the State of Missouri.”
SPA Paragraph 8 continues at subsection (e) with integration language:
“Entire Agreement. This Agreement (including the Exhibits referred to herein) sets forth the entire Agreement and understanding of the parties with respect to the transactions contemplated hereby and supersede^] all prior agreements, arrangements, and understandings, whether written or oral, related to the subject matter hereof. No representation, promise, inducement or statement of intention has been made by any party hereto which is not embodied in the Agreement or in the Exhibits attached hereto or the written statements, certificates or other documents delivered pursuant hereto.”
The consulting agreement expresses a similar message. Paragraph 13 states: “Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the matters set forth herein.”
The transaction did not close by the specified date of December 19, 2000, but ARY and KrigePs, Inc., continued to negotiate with Foothill Capital to try to salvage the transaction. Finally, on March 28, 2001, ARY notified KrigePs, Inc., that if Foothill Capital did not approve continued financing on the same terms as KrigePs, Inc., had enjoyed prior to insolvency, ARY would consider the SPA void.
Two days later, on March 30, 2001, ARY failed to close on the SPA and failed to pay KrigePs, Inc.’s unsecured creditors. Because of ARY’s alleged failure to perform, the next day Scott made a demand on Assured Quality Title for release of the escrowed $1.5 million per the default provisions of the agreements. ARY contested the demand and claimed the entire transaction void due to Foothill Capital’s failure to agree to continued financing on the same terms as KrigePs, Inc., had enjoyed prior to insolvency. ARY consequently requested the Krigels provide Assured Quality Tide with a “joint written instruction” to release the $1.5 million to ARY. The Krigels failed to do so.
ARY then filed a petition for declaratory judgment in Johnson County District Court essentially seeking a judgment declaring that the SPA was null and void, that ARY was therefore relieved of any SPA obligation, and that ARY was entitled to return of its escrowed $1.5 million. Scott and his trust filed an answer and a counterclaim for breach of contract seeking possession of the funds.
After both parties filed motions for summary judgment, the court held that SPA paragraph 4(c), which contained the Foothill Capital financing condition, “affected” both parties. As a result, the court stated, “pursuant to SPA ¶¶ 5(c) and 6(a), ARY would also have had to waive it, or Foothill’s lack of consent to financing ren dered the SPA and related agreements null and void.” (Emphasis added.) It concluded ARY had not waived the financing condition in writing. Accordingly, the SPA and consulting agreement were null and void as of December 19, 2000. As a result, the district court denied Krigels’ motion for summary judgment, granted ARY’s, and ordered Assured Quality Title to release the escrowed $1.5 million to ARY.
According to Krigels, the district court signed an initial journal entry of judgment on May 6, 2002. The journal entry in the record on appeal, however, is hand-dated May 28 and file-stamped May 29. Krigels filed a notice of appeal on May 30 and docketed their appeal with the Clerk of the Kansas Appellate Courts on June 4. On June 5, the district court issued an order setting Krigels’ appellate bond at $10,000 and also providing that pursuant to agreement by Krigels, ARY was now entitled to direct investment of the escrowed funds, subject to the same conditions which had been in effect against Krigels per paragraph 5 of each escrow agreement.
On June 10, 2002, ARY filed a motion to modify the district court’s journal entry of judgment. Specifically, it requested the court grant prejudgment interest in the amount of $100,596. According to ARY’s calculations, this figure represented the difference between the amount that would have accrued on the es-crowed funds at the Kansas statutory rate of 10% and the lower amount which had actually accrued from April 2,2001, (when ARY made demand for return of its escrowed funds) until judgment was granted on May 29,2002. In that same motion, ARY also requested postjudgment interest in an amount to be determined upon satisfaction of the May 29, 2002, judgment. Contained in ARY’s motion was the understanding that it would also receive the interest which had actually accrued to date on the escrowed funds, so that all awarded interest would total that allowed under Kansas statutoiy rates.
On September 13, 2002, the district court filed a journal entry denying ARY’s motion. The court held in relevant part:
“1. Plaintiff ARY Jewelers, L.L.C., and Defendant Scott Krigel, individually were represented by separate counsel throughout the negotiations that culminated in the execution of the Escrow Agreements, entered into by them on November 21, 2000.
“2. Plaintiff ARY Jewelers, L.L.C., and Defendant Scott Krigel, trustee of the Scott W. Krigel Revocable Trust, were represented by separate counsel throughout the negotiations that culminated in the execution of the Escrow Agreements, entered into by them on November 21, 2000.
"3. Plaintiff ARY Jewelers, L.L.C., Defendant Scott Krigel, individually and Defendant Scott W. Krigel, trustee of the Scott W. Krigel Revocable Trust, are all sophisticated parties.
“4. Paragraph 5 of each Escrow Agreement provides that:
“Escrowee shall invest and as necessary reinvest the Escrowed Funds in interest bearing securities issued, guaranteed or secured by the United States or the Federal Deposit Insurance Corporation as directed by [Scott W. Krigel, individually or as trustee of the Scott W. Krigel Revocable Trust.]
“5. On June 5, 2002, the Court entered an order granting Plaintiff ARY Jewelers, L.L.C. the authority to direct the investment of the escrowed funds, as long as they remained invested in interest bearing securities issued, guaranteed or secured by the United States or the Federal Deposit Insurance Corporation.
“6. K.S.A. 16-201 and 16-204 are inapplicable because the parties agreed to the interest that would be earned on the escrowed funds, which is set forth in paragraph 5 of each Escrow Agreement.
“7. If it is determined that this Court lacked jurisdiction to hear this motion, then this is only an advisory opinion.”
ARY timely appealed the district court’s ruling.
ANALYSIS
The parties raise a multitude of arguments.
The Krigels claim that although this court held the SPA was null and void, the escrow agreements were not null and void because they represented agreements separate from the SPA, i.e., were divisible. Accordingly, they argue that the district court was correct when it held the escrow agreements contained an interest rate agreed upon by the parties, i.e., investment of the escrowed funds in Federal Deposit Insurance Corporation (FDIC) or United States government-backed interest-bearing securities. In the alternative, they argue that if the parties did not agree upon an interest rate, or if the escrow agreements are null and void, then Missouri statutory law supplies the rate for prejudgment interest (9% per Mo. Rev. Stat. § 408.020 [2000]) and that Kansas statutory law supplies the rate for postjudgment interest (7.25% per K.S.A. 2001 Supp. 16-204[e]). See 20 Kan. Reg. 1113.
Krigels also make other arguments, several of which were not presented to the district court but are nevertheless claimed because “a district court’s decision that reaches the right result will be upheld on appeal even though it relied upon the wrong ground or assigned erroneous reasons for its decision” (citing National Inspection & Repair, Inc. v. Valley Forge Life Ins. Co., 274 Kan. 825, 56 P.3d 807 [2002]). Their ancillary arguments are: (1) Interest is not available in declaratory relief actions; (2) the awarding of prejudgment and postjudgment interest is discretionary with the district court; (3) the court did not have jurisdiction on the interest issue as ARY’s motion was filed more than 10 days after the original journal entry of judgment was entered; and (4) the court did not have jurisdiction on the interest issue as ARY’s motion was filed after the appeal had been docketed.
ARY responds that the escrow agreements are null and void as between ARY and Krigels, and thus their interest provisions cannot supplant ARY’s statutory interest entitlement. Further, ARY claims that the law of both prejudgment and postjudgment interest is determined by the place of performance, which it argues is Missouri. Accordingly, while ARY agrees with Krigels’ alternative argument that Missouri statutory law supplies the rate for prejudgment interest (9%), it argues that Missouri statutory law also supplies the rate for postjudgment interest (9% per. Mo. Rev. Stat. § 408.040 [2000]) and not Kansas’ rate (7.25% per K.S.A. 2001 Supp. 16-204[e]). It further rejects the ancillary arguments raised by Krigels.
Resolution of many of these issues depends upon whether Missouri or Kansas law applies. This in turn depends upon whether these are questions of procedure or substance. For the procedural issues, Kansas law applies because suit was filed in a Kansas court; for the substantive issues, Missouri law applies. See Vanier v. Ponsoldt, 251 Kan. 88, 102-03, 833 P.2d 949 (1992); Intern. Minerals & Chem. v. Avon Products, 889 S.W.2d 111 (Mo. App. 1994). Issue 1: Did the district court have jurisdiction to address the interest issue?
The Krigels first claim that ARY’s motion for interest should have been denied because the district judge signed a journal entry resolving the substantive case on May 6, 2002, but ARY waited too long until June 10, 2002, to file its motion. The parties do not dispute that Kansas law applies to this issue: We agree because determining whether jurisdiction lies in a .Kansas district court or instead in a Kansas appellate court must be governed by Kansas law. See Vanier, 251 Kan. 88; Western Video Collectors v. Mercantile Bank, 23 Kan. App. 2d 703, 705, 935 P.2d 237 (1997) (In conflict of laws situations, matters of procedure are usually considered to be subject to the law of the forum.).
As support, the Krigels argue that under K.S.A. 60-259(f), ARY should have filed its motion within 10 days of the signing of the court’s journal entry and that ARY was simply too late.
Krigels’ argument has no merit. Under K.S.A. 60-258, the effective date of a journal entry is when “signed by the trial judge and filed with the clerk of the court.” The clerk of the court filed the first signed journal entry resolving the substantive case on May 29, 2002. Under K.S.A. 60-259(f), ARY had 10 days afterward to file a motion to alter or amend the judgment. K.S.A. 2001 Supp. 60-206(a) dictates that if the allocated period is 11 days or less, weekends and holidays are not counted when calculating the due date. ARY’s motion, filed on June 10, 2002, was timely..
For the Krigels’ second jurisdictional argument, they claim the district court should not have heard ARY’s motion because their appeal had already been docketed in the Court of Appeals. On May 30, 2002, the day after the filing of the journal entry, Krigels filed their notice of appeal with the district court. On June 4,2002, they docketed their appeal with the Clerk of the Appellate Courts. Six days later, on June 10, 2002, ARY timely filed its motion to alter or amend the substantive judgment.
This court has recognized: “A trial court does not have jurisdiction to modify a judgment after it has been appealed and the appeal docketed at the appellate level.” In re Estate of Robinson, 232 Kan. 752, 754, 659 P.2d 172 (1983). However, instead of summarily remanding the interest issue — which is a meaningless exercise in light of paragraphs 6 and 7 of tire district court’s decision which resolved tire issue on September 13, 2002, i.e., the parties agreed to the rate at which interest would be earned on the escrowed funds — we will consider the interest issue out of judicial economy. Cf. Martin v. Martin, 5 Kan. App. 2d 670, 674-75, 623 P.2d 527, rev. denied 229 Kan. 670 (1981) (Even where district court lacks jurisdiction to rule on a motion for new trial under K.S.A. 60-260, the preferable procedure is for that court to consider the motion, if warranted, to prevent inefficient adjudication of the issue.).
Issue 2: Did the district court correctly hold that the parties had contractually agreed to the interest rate on the escrowed funds?
The district court correctly observed that paragraph 5 of the escrow agreements controlling the $1.45 million that ARY deposited for Scott’s services and the $50,000 deposited for the stock purchase were essentially the same:
“Escrowee [Assured Quality Title] stall invest and as necessary reinvest the Escrowed Funds in interest bearing securities issued, guaranteed or secured by the United States or the Federal Deposit Insurance Corporation as directed by [Scott W. Krigel, individually or as trustee of the Scott W. Krigel Revocable Trust for the account of Krigel.]”
The district court construed these respective paragraph 5’s as an agreement about tire interest that would be earned on the es-crowed funds and that K.S.A. 16-201 and K.S.A. 16-204 were therefore inapplicable.
K.S.A. 16-201 provides in relevant part: “Creditors shall be allowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due.” (Emphasis added.)
K.S.A. 2001 Supp. 16-204 provided:
“(d) Any judgment rendered by a court of this state on or after July 1, 1986, shall bear interest on and after the day on which the judgment is rendered at the rate provided by subsection (e).
“(e)(1) . . . on and after July 1, 1996, the rate of interest on judgments rendered by courts of this state pursuant to the code of civil procedure shall be at a rate per annum: . . . (B) which is equal to an amount that is four percentage points above the discount rate (the charge on loans to depository institutions by the New York federal reserve bank as reported in the money rates column of the Wall Street Journal) as of July 1 preceding the date the judgment was rendered.”
Although not specifically mentioned by the district court, when the parties do agree upon an interest rate, then that rate generally applies both prejudgment and postjudgment until payment is made in full. See K.S.A. 16-205(a). According to the district court, the agreed rate was that earned in interest-bearing securities backed by the U.S. government or the FDIC. On the other hand, if there is no agreement upon an interest rate, then the creditor may receive 10% prejudgment interest (K.S.A. 16-201), and, because of the date of this particular judgment, 7.25% postjudgment interest (K.S.A. 2001 Supp. 16-204).
We disagree with the district court’s conclusion for several reasons, under both Kansas and Missouri law.
First, while it is true that the escrow agreements provided the funds could be invested in certain government-backed interest-bearing securities, these agreements were void and no longer in effect in early April 2001 when ARY demanded Krigels issue a joint written consent to Assured Quality Title to release the escrowed funds to ARY, and Krigels refused. Paragraph 4(c) of the SPA expressly states:
“(c) Within four weeks from the date hereof [December 19] Purchaser shall provide Seller with evidence of Foothill Capital’s consent to the continued financing of Company’s obligations to Foothill Capital. In the event Foothill Capital does not consent within the foregoing time period this Stock Purchase Agreement and related agreements shall be void and of no further effect.” (Emphasis added.)
In ARY Í, we held the SPA was null and of no further effect as of December 19, 2000, because the financing condition failed. The escrow agreements are also null and of no further effect because they clearly are “related agreements.” They not only were executed the same day as the SPA, but were also incorporated into the SPA: “attached and incorporated collectively herein as Exhibit ‘A.’ ” They were also specifically referred to in the SPA (paragraph 2) and the consulting agreement (paragraphs 4 and 9). Moreover, the escrow agreements themselves mention the SPA and consulting agreement, referring to them as the “Related Documents.”
Agreements that are null and of no effect cannot serve under either Missouri or Kansas law as the basis for an “agreed upon interest rate” as determined by the district court. See Raynolds v. Row, 184 Kan. 791, 794, 339 P.2d 358 (1959); Nelson v. Marshall, 869 S.W.2d 132, 134 (Mo. App. 1993). The district court erred in so holding.
Second, we also reject — under both Missouri and Kansas law— Krigels’ argument that even if the SPA is null and of no effect, the escrow agreements are separate, independent agreements from the SPA and remain valid under the divisibility doctrine. Both jurisdictions recognize the doctrine which generally states that whether a contract is entire or divisible is a question of construction to be determined by the court according to the intention of the contracting parties as ascertained from the contract itself, upon a consideration of all the circumstances sunrounding the making of it and the subject matter of the agreement. Blakesley v. Johnson, 227 Kan. 495, 500-01, 608 P.2d 908 (1980); Grease Monkey Intern., Inc., v. Godat, 916 S.W.2d 257, 261(Mo. App. 1995).
Here, SPA paragraph 4(c) expressly provides the intention of the parties: if the financing condition fails, the SPA and all related agreements are null and of no further effect. The parties’ intention that the transaction was entire, i.e., not divisible into parts, is also contained in other language of their documents. Paragraph 4 of the consulting agreement provides that the first of six equal monthly installment payments totaling $500,000 for Scott’s consulting services is not due from escrow until the transfer of the company stock to ARY. Likewise, paragraph 9 of the consulting agreement provides that ARY shall not pay Scott the $950,000 from escrow for his covenant not to compete until the transfer of the company stock to ARY.
Moreover, if Scott’s trust remained as the sole owner of the Krigel’s, Inc., stock, there seems little reason for him to separately consult for, and agree not to compete against, a company owned by his trust for which he serves as trustee.
Finally, even if there were an agreed upon interest rate that remained in effect, it would not apply to the situation where, as here, the financing condition failed. Both the SPA and the con- suiting agreement contain integration clauses that provide they constitute the “entire agreement.” The documents, primarily the SPA and the consulting agreement, repeatedly state that the accrued interest will transfer with the principal in only two specific scenarios.
First, the principal and interest transfer to Krigels when the transaction closes. See SPA paragraph 1(b) (“The Purchase Price, plus accrued interest, shall be paid in cash to Seller on the Closing Date”) and paragraph 2 (“Additionally, at closing, Scott’s $950,000, plus accrued interest, shall be paid from escrow”); consulting agreement paragraph 4 (at the time of the final installment, Scott could “also withdraw all accrued interest on the $500,000”) and paragraph 9 (“ARY shall pay Krigel the sum of $950,000, plus all accrued interest, upon the transfer of . . . stock to ARY.”).
Second, the principal and interest transfer to Krigels when ARY defaults by not providing proof of its ability to pay unsecured creditors prior to Krigels, Inc.’s bankruptcy filing or by failing to pay the unsecured creditors on the effective date of the bankruptcy plan. See SPA paragraph 9 (upon default by ARY, Scott entitled to “all funds escrowed” per paragraphs 4 and 9 of the consulting agreement, i.e., principal and interest, and his trust entitled to “all funds escrowed” per paragraph 1(b) of the SPA, i.e., principal and interest). See also consulting agreement paragraph 19 (same).
In short, the escrow agreements contemplate — and therefore apply — only to successful demands for the escrowed funds by Krigels, not by ARY. Had either of the two scenarios occurred which would have provided Krigels a legitimate entitlement to the es-crowed funds, then Krigels would have received the interest on those funds at the purported agreed upon rate. There is no agreement for interest, however, when the transaction did not close because of a failed financing condition.
Issue 3: Is interest available in actions for declaratory relief?
The Krigels claim that the district court was correct but, in the alternative, for the wrong reason, citing National Inspection & Repair, Inc., 274 Kan. 825, Syl. ¶ 3 (A district court’s decision that reaches the right result will be upheld on appeal even though it relied upon the wrong ground or assigned erroneous reasons for its decision.). Specifically, they contend the statutory interest rates are inapplicable to this case because the judgment of the trial court was for declaratory relief only.
Krigels rely upon Greenhaw v. Board of Johnson County Comm’rs, 245 Kan. 67, 774 P.2d 956 (1989). This court in Green-haw did not state the broad proposition that a declaratory judgment could not bear interest as a money judgment. We in fact affirmed the district court, which had awarded postjudgment interest on a declaratory judgment. 245 Kan. at 75.
Furthermore, we need not decide whether Kansas or Missouri law applies because interest in Missouri has been awarded on declaratory judgments when, as here, the right to money has been determined. American Family Mut. Ins. Co. v. Nigl, 123 S.W.3d 297, 301-02 (2003).
Krigels also cite two Ohio cases, Jeppe v. Blue Cross, 67 Ohio App. 2d 87, 425 N.E.2d 947 (1980), and Johnson v. Burgins, 103 Ohio App. 3d 584, 660 N.E.2d 525 (1995). This court in Greenhaw found Jeppe distinguishable and unpersuasive. 245 Kan. at 70. The Jeppe court affirmed a district court’s denial of interest on a judgment because no money judgment of a definite amount was rendered. 67 Ohio App. 2d at 93. By contrast, in the instant case the judgment awarded control of a definite amount of money — $1.5 million. Jeppe therefore is not persuasive. Similarly, the issue in Burgins was whether the judgment was a money judgment which was definite in amount. Burgins therefore is also not persuasive.
Krigels finally cite Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 382 P.2d 645 (1963), for the proposition that there is a difference between money judgments and judgments for only declaratory relief. While this may be true, the court in Pan Am. Petroleum Corporation never even mentions the application of judgment interest to this difference.
The declaratory judgment in the present case awarded control of a definite amount of money to ARY after ARY had been deprived of its use for over 1 year. Under those circumstances, interest is allowed under Kansas and Missouri law. Issue 4: What states’ laws supply the rates for prejudgment and postjudgment interestP
Now that we have determined there is no agreed upon interest rate, and that interest can accrue in declaratory relief actions, we examine what states’ statutes supply the rates. Toward that end, neither the parties nor the court has found any cases from the Kansas appellate courts stating whether Kansas considers the issues of prejudgment interest and postjudgment interest to be matters of procedure or of substance.
Postjudgment interest
We observe that the language of K.S.A. 2001 Supp. 16-204 certainly suggests that postjudgment interest is procedural:
“(d) Any judgment rendered by a court of this state on or after July 1, 1986, shall bear interest on and after the day on which the judgment is rendered at the rate provided by subsection (e).
“(e) (1) . . . on and after July 1, 1996, the rate of interest on judgments rendered by courts of this state pursuant to the code of civil procedure shall be at a rate per annum:... (B) which is equal to an amount that is four percentage points above the discount rate (the charge on loans to depository institutions by the New York federal reserve bank as reported in the money rates column of the Wall Street Journal) as of July 1 preceding the date the judgment was rendered.” (Emphasis added.)
Furthermore, our own research has revealed no jurisdiction which considers postjudgment interest to be a question of substance. We find the rationale best summarized in Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 848 F.2d 613, 623 (5th Cir. 1988):
“Postjudgment interest has a substantive characteristic because the applicable rate of interest and rules of accrual can increase or decrease the amount of a monetary award. But postjudgment interest is better characterized as procedural because it confers no right in and of itself. Rather, it merely follows and operates on the substance of determined rights. Postjudgment interest is designed to compensate ‘a successful plaintiff for the time between his entitlement to damages and the actual payment of those damages by the defendant.’ ”
We therefore hold that postjudgment interest is a question of procedure; accordingly, the law of Kansas — as the forum state— applies. Consequently, whether the parties’ choice of law provision in the null SPA — paragraph 8(a), which applies to the SPA and all “agreements referenced herein” — is also null, or whether it remains valid under the divisibility doctrine, is irrelevant, since such a provision, even if valid, does not displace Kansas procedural law. See Western Video Collectors v. Mercantile Bank, 23 Kan. App. 2d 703, 705-06, 935 P.2d 237 (1997).
As mentioned earlier in the opinion, we acknowledge that parties can agree upon a different rate of interest from the postjudgment rate fixed by statute. See K.S.A. 16-205(a); Producers Equip. Sales, Inc., v. Thomason, 15 Kan. App. 2d 393, 403-04, 808 P.2d 881 (1991). However, for several reasons we have held there is no valid agreed upon interest rate in the instant case. Accordingly, the appropriate rate of postjudgment interest under K.S.A. 2001 Supp. 60-204(e), given the date of the judgment in this case, is 7.25%. ARY is therefore entitled to postjudgment interest on its $1.5 million at the rate of 7.25% per annum from May 29, 2002 (the date of the filing of the journal entry of judgment) until paid in full. See K.S.A. 60-258.
Prejudgment interest
Determining whether prejudgment interest is a substantive or procedural issue is not as easily reached. Other jurisdictions are split, though the majority hold the issue is substantive. Annot., 78 A.L.R. 1046,1048; Cooper v. Ross & Roberts, Inc., 505 A.2d 1305, 1307 (Del. Super. 1986) (the majority view among states is that “prejudgment interest, like the issue of damages, is substantive, and the state whose laws govern the substantive legal questions also governs the question of prejudgment interest”).
Missouri considers the issue substantive. Intern. Minerals & Chem. v. Avon Products, 889 S.W.2d 111 (Mo. App. 1994).
The federal district courts for Kansas conclude, or at least imply, that Kansas appellate courts would consider the issue to be substantive. See Black & Veatch International Co. v. Foster Wheeler Energy Corp., 2002 WL 1934372 (D. Kan. 2002); Burlington North & Santa Fe Ry. v. Kansas City Ry., 73 F. Supp. 2d 1274, 1283 (D. Kan. 1999); Contract Lodging Corp. v. Union Pacific R.R., 1991 WL 278482 (D. Kan. 1991).
Both ARY and the Krigels (in the alternative) argue the issue is substantive, and that Missouri law would therefore apply. For the reasons presented below, we agree. Accordingly, as with the issue of postjudgment interest, whether the parties’ choice of law provision in the null SPA — which also applies to the escrow agreements — is null and of no further effect, is irrelevant because here it is also redundant.
When addressing choice of law issues, Kansas appellate courts still follow the Restatement (First) of Conflict of Laws (1934). Brenner v. Oppenheimer & Co., 273 Kan. 525, 538, 44 P.3d 364 (2002). Under the First Restatement of Conflict of Laws § 584: “The court at the forum determines according to its own Conflict of Laws rule whether a given question is one of substance or procedure.”
Burlington North & Santa Fe Ry. v. Kansas City Ry., 73 F. Supp. 2d 1274 is of guidance — more so than the other Kansas federal district court decisions on the specific issue of whether Kansas or another state’s law governed the issue of prejudgment interest— because it looked to Kansas choice of law rules (the First Restatement).
The court stated:
“The court’s research fails to reveal any Kansas authority resolving the issue as to what law governs the allowance of prejudgment interest as an element of damages for the breach of a contract where a conflict of laws is involved. Under Kansas choice of law rules, Kansas courts generally follow the First Restatement approach to resolving conflicts of law issues. See Safeco Ins. Co. of America v. Allen, 262 Kan. 811, 822, 941 P.2d 1365, 1372 (1997)(contracts actions); Brown v. Kleen Kut Mfg. Co., 238 Kan. 642, 644, 714 P.2d 942, 944 (1986)(tort actions). Thus, the court looks to the First Restatement of Conflicts to determine whether Kansas or Missouri law governs the issue of prejudgment interest in this case.
“Section 418 of the Restatement of Conflicts, entitled ‘Interest as Damages for Rreach of Contract,’ provides that ‘[t]he rate of interest allowed as part of the damages for the breach of a contract is determined by the law of the place of performance.’ Restatement of Conflict of Laws § 418 (1934).” 73 F. Supp. 2d at 1283.
The contract in Burlington Northern was to be performed in Missouri, so the court held: “Thus, in light of the First Restatement of Conflicts’ view that prejudgment interest is to be governed by the law of the state where the contract is to be performed, the court concludes that Missouri law applies to the issue of prejudgment interest under the facts of this case.” 73 F. Supp. 2d at 1283.
The court concluded that under Missouri statutory law, since no rate of interest was agreed upon, plaintiff was entitled to prejudgment interest at the rate of 9% per annum.
We agree with Burlington Northern’s basic rationale and its specific holding under the First Restatement. We would add that when the First Restatement is used to determine whether prejudgment interest is a substantive or procedural issue, it lists a number of subjects under the “Procedure” heading, none of which includes prejudgment interest. Moreover, the subject of interest is listed under the “Damages” heading; § 418 (Interest as Damages for Breach of Contract) is linked with a clearly substantive issue, i.e., § 413 (“Measure of Damages for Breach of Contract”). Cf. McDaniel v. Sinn, 194 Kan. 625, 626-627, 400 P.2d 1018 (1965) (Measure and amount of damages recoverable are questions of substantive law.).
Both the measure of damages for breach of contract, and the rate of interest allowed as part of those damages, are “determined by the law of the place of performance.” (§§ 413, 418). We conclude that both are substantive issues. Likewise, while the Burlington Northern court did not address whether prejudgment interest was procedural or substantive, it can be inferred because the court used § 418 — which directs us to examine the law of the place of performance rather than the law of the forum — that the court would have labeled prejudgment interest a substantive matter.
While no actual breach of a contract occurred in the instant case as in Burlington Northern, § 418, as applied by that court, most closely resembles our facts: interest is determined by the law of the place of performance. As § 355 of the First Restatement additionally provides: “The place of performance is the state where, either by specific provision or by interpretation of the language of the promise, the promise is to be performed.” Here, the $1.5 million was deposited in two separate accounts with Assured Quality Title, an escrow agent based in Kansas City, Missouri. Additionally, the closing was to occur “at the offices of Berman, DeLeve, Kuchan & Chapman, LC, or such other place ... as the parties may agree.” That firm’s main office is located in Kansas City, Missouri. The place of performance was clearly in Missouri; therefore, Missouri law on prejudgment interest applies.
The plaintiff in Burlington Northern was entitled to 9% per annum prejudgment interest under Missouri statute. Mo. Rev. Stat. § 408.020 (2000) states in full:
“Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts, and on accounts after they become due and demand of payment is made; for money recovered for the use of another, and retained without the owner s knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made.”
Accordingly, ARY is entitled to interest on its $1.5 million at 9% per annum from April 2, 2001 (the date it made demand for return of its escrowed funds) until May 29, 2002 (the date of judgment).
Per ARY’s offer contained in its briefs, Krigels are entitled to a setoff of (1) all amounts actually accrued on the escrowed funds via government-backed interest-bearing securities (2) against the interest to which ARY is entitled — both prejudgment (9%) and postjudgment (7.25%) — until paid in full by Krigels. See also Dillon v. Montgomery, 138 Idaho 614, 67 P.3d 93 (2003) (affirmed trial court’s granting of prejudgment interest on an interest-bearing escrow account pursuant to statute akin to Missouri’s and offsetting that amount by the interest accrued in the account).
Issue 5: Is the awarding of interest discretionary with the district court?
Finally, and as another reason why the district court was correct but for the wrong reason, Krigels claim it was within the district court’s discretion to deny ARY’s request for prejudgment and postjudgment interest, and the court did not abuse that discretion. It cites, among others, Bigs v. City of Wichita, 271 Kan. 455, 480, 23 P.3d 855 (2001).
There is no need to determine whether Missouri or Kansas law applies to this issue because Krigels simply misunderstand the district court’s ruling. It did not deny ARY interest.
The district court held: “K.S.A. 16-201 and K.S.A. 16-204 are inapplicable because the parties agreed to the interest that would be earned on the escrowed funds, which is set forth in paragraph 5 of each Escrow Agreement.” As mentioned earlier in the opinion, K.S.A. 16-201 provides in relevant part: “Creditors shall be ¿lowed to receive interest at the rate of ten percent per annum, when no other rate of interest is agreed upon, for any money after it becomes due.” (Emphasis added.)
Consequently, the statute recognizes that parties may agree upon the interest rate that would apply to monies due and owing. The statute ¿so provides that if the parties do not so agree, then the statute will provide that interest rate for them: 10%. Similarly, while K.S.A. 2001 Supp. 16-204 provides a postjudgment rate— under our facts, 7.25% — the parties can agree on a different rate. See K.S.A. 16-205(a); Producers Equip. Sales, Inc., 15 Kan. App. 2d at 403-04.
Accordingly, whether the parties agree on a rate of interest, or whether a statute provides it for them, the salient point is the court has approved it per the statute, i.e., granted the imposition of interest. Thus, when the district judge in this case ruled that the parties had agreed upon the interest rate, he essentially was authorizing its use as recognized in the statutes. He was not, contrary to Krigels’ argument, denying interest, but rather approving both prejudgment and postjudgment interest. In short, we cannot consider any argument that the denial of interest was within the court’s discretion because there was no deni¿.
While we hold the district court correctly authorized prejudgment and postjudgment interest, as stated earlier in the opinion, it essenti¿ly authorized the wrong rates. Accordingly, we reverse and remand for a district court determination of the correct amounts due and owing ARY consistent with the direction provided in the opinion.
Reversed and remanded.
Abbott, J., not participating.
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The opinion of the court was delivered by
Horton, C. J.:
On the 6th day of December, 1883, a judgment was rendered on a forfeited recognizance in the district court of Harper county, in favor of the state of Kansas, against Hiram Raff and others, for $3,000, with interest and costs. On the 12th day of May, 1885, an execution was issued by the clerk of the district court of Harper county on the judgment to the sheriff of Reno county to collect the same. Hiram Raff and others then commenced an action in the district court of Reno county against the sheriff of that county, to obtain an injunction restraining him from levying the execution or attempting to collect the amount thereof. In that action, the board of county commissioners of Harper county was made a party defendant, on its application, but neither the state of Kansas, nor any officer of the state, nor the county treasurer of Harper county, nor any treasurer of the school districts of that county was a defendant. On the 29 th day of July, 1887, the sheriff was perpetually enjoined from levying or attempting to levy the execution, and the sheriff and the county commissioners of Harper county were also enjoined from attempting to collect the execution by virtue of any process issued thereon. The defendants excepted to that judgment, and prosecuted proceedings in error in this court. At the July term of this court for 1889, the judgment was reversed, and the cause remanded to the district court, with instructions to render a judgment in favor of the sheriff and the other defendants. (Smith v. Collins, 42 Kas. 259.) While the case was pending in this court, and on June 4, 1888, Hiram Raff die,d. On June 28 of the same year, his widow, Emma Raff, who was the sole heir, was appointed administratrix of his estate. On November 21, 1888, the judgment in the district court of Reno county was revived by consent against the personal representative of Hiram Raff, deceased, and soon after the action was also revived in the supreme court, with consent, against such personal representative. On April 8, 1889, the state — the plaintiff in the judgment in Harper county against Hiram Raff — filed its motion in the district court of that county for an order reviving the judgment against Mrs. Raff, the sole heir and the personal representative of Hiram Raff, deceased. The motion to revive was granted. Mrs. Raff excepted, and brings the case here.
It is insisted that the state of Kansas was not entitled to revive the judgment rendered in the district court of Harper conrty so long as the injunction rendered by the district court of Reno county remained unreversed. In the action brought by Hiram Raff and others in Reno county, neither the state of Kansas, nor any officer of the state, nor the county treasurer of Harper county, nor any treasurer of the school districts of that county, was'defendant. Section 332 of the criminal code-provides:
“All fines and penalties imposed, and all forfeitures incurred, in any county, shall be paid into the treasury thereof, to be applied to the support of the common schools.”
In the case of Blake v. Comm’rs of Johnson Co., 18 Kas. 266, this court expressly declares that the county treasurer is by the statute made the proper party to collect moneys due on a judgment of a forfeited recognizance, and that his duty is to-pay the money collected on such a judgment to the school-district treasurers. And. this has been the uniform practice-in this state ever since its admission. The order of revivor in Harper county was not in violation of the injunction rendered in Reno county. The judgment had tb be revived within the year; otherwise it could not be revived except by consent. (Civil Code, §§ 433, 434; Green v. McMurtry, 20 Kas. 189; Myers v. Kothman, 29 id. 19; Tibbetts v. Deck, 41 id. 492.) The order was necessary to keep the judgment from becoming dormant, and was not an attempt to collect the same by virtue of any process. It was not made at the instance or at the request of any defendant in the Reno county injunction case.
The order and judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
John M. Anderson, who was engaged in constructing a court-house for Clark county, obtained from Burchett & Fraley brick to be used in the construction of the building. A dispute arose between them as to the quantity and price of the brick used, and they agreed to submit the matters in controversy to arbitration, the award to be made a rule of the district court. Under the agreement, William A. Deeds, James J. Kennedy and James D. Whitfield were designated as arbitrators. Each party gave an obligation that he would faithfully submit to and perform the award of the arbitrators, and it was provided that the arbitration should be begun on February 14, 1889, and that the award should be made on or before March 8,1889. After the arbitrators'had qualified, Burchett & Fraley filed before them a statement of their claim, to the effect that they had furnished Anderson 504,000 brick, at an agreed price of $6.50 per 1,000, which were of the total value of $3,276, and that Anderson had paid thereon the sum of $2,650, and they demanded an award of the difference between these sums, $626, with interest from the 1st day of December, 1888. Anderson filed an answer, which was a general denial. They entered upon the arbitration on the 14th day of February, 1889, and continued the hearing from time to time until March 8, 1889, when they reached a conclusion, awarding Burchett & Fraley $700.45, but decided that the costs should be equally divided between the parties. Anderson filed exceptions to the award of the arbitrators, alleging that it was obtained by fraud and undue meaos, and also that there was misbehavior on the part of the arbitrators during the proceedings. Testimony was received upon the exceptions, but the court sustained the award, and entered judgment thereon in accordance with the agreement of the parties.
Only the legal objections to the making of the award a rule of the district court have been brought up for review. The first objection is, that all the arbitrators did not exercise their judgment and discretion in deciding the questions that arose during the proceedings. It appears that Kennedy and Deeds were first selected, and that they chose Whitfield, the third arbitrator, who acted as chairman of the board, and was spoken of as an “umpire.” Kennedy testified that it was the duty of Whitfield to give the deciding vote when objections were raised upon which there was a difference of opinion between himself and Deeds. Once or twice there were dif ferences of opinion, when the deciding vote was given by Whitfield; but the decisions were satisfactory to the board. All the arbitrators were named in the agreement of the parties, and of course the disputants were entitled to the wisdom, discretion and judgment of each of the arbitrators, in the •determination of all material questions. Although the conduct of the arbitrators in this respect was somewhat irregular, we do not think it was prejudicial. The only question submitted to the arbitrators was the number of brick which had been furnished, and the price which was to be paid for the ■same. All the arbitrators were present throughout the hearing, and all of them agreed to the award that was made, and from the testimony it is seen that there was no division of •opinion upon any substantial question during the hearing.
Another objection is, that one of the arbitrators was not disinterested and impartial, but was indebted to one of the contesting parties, and had counseled with him respecting the subject-matter of the controversy. Kennedy was indebted to Burchett to the extent of $50; but mere indebtedness of an arbitrator to one of the parties does not disqualify him. (Wallace v. Carpenter, 13 Allen, 19.) The indebtedness was small, and it is not shown that it was insecure, or that its payment •depended to any extent on the result of this controversy. The interest of Kennedy, if it can be called one, was so remote and contingent that it could not, we think, have influenced him in his action, and nothing was shown in his conduct to indicate partiality or corruption.
The other objection made to Kennedy is untenable. It appears that some time prior to the arbitration Burchett mentioned to Kennedy that Anderson owed him for the brick used in building the court-house, and Kennedy suggested to him to file a lien on the building. The matter of lien, however, was not a subject of controversy, and nothing in the testimony •shows that Kennedy had any knowledge or preconceived opinion regarding the indebtedness existing between the parties to this proceeding. The plaintiff in error learned the facts which he now claims disqualified Kennedy as an arbitrator during the progress of the trial, but he did not present his objection to the board of arbitration. After proceeding in this way, and taking the chances of a favorable decision, he should not be permitted afterward to raise objection. “ If a party to an arbitration objects to one of the arbitrators on account of an incompetency, he must make his objection known as soon as he receives knowledge of facts making the arbitrator incompetent. If he goes on with the proceedings he will be considered to have waived his objection.” (1 Am. & Eng. Encyc. of Law, 673.)
Another objection is, that the plaintiff in error was absent from the hearing a portion of the time on account of a stipulation made between the attorneys. It is contended that an agreement was made between counsel that, if either party could not be present at a certain time, the case should be continued, and that neither should take advantage of the absence of the other. The testimony, however, shows that the agreements of counsel,, whatever they may have been, were not reduced to writing, nor was there in fact an agreement to continue the cause. Negotiations were had between the attorneys respecting the continuance, but they were not of such a character that the courts can recognize them, or upon which either attorney had a right to rely. More than that, when the board resumed the hearing of the case at the appointed time, there was no application for a continuance, nor any showing made of the misunderstanding which had arisen with reference to a further continuance of the cause. The application for a continuance should have been presented to the arbitrators by the plaintiff in error, and having failed to make such application, it is now too late to raise objection.
The court permitted an amendment to the plaintiff’s petition or statement of his claim, so as to correspond with the award made by the arbitrators. Although an objection is made to this ruling, the practice is permissible.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
John Stoffel was prosecuted upon a charge of robbery, and convicted of grand larceny. He appeals, and his first ground of error is that the original complaint filed before the magistrate charged him with stealing the animal “lawfully” instead of “unlawfully;” and hence he urges that no crime was committed, and no reason exists for his arrest or prosecution. The word “lawfully” is the one used in the record, but, from the other terms employed in describing the offense, it would appear that this defect was a clerical error. However, it is unimportant now, as the warrant was the basis of the preliminary examination, and not the complaint. It served its purpose when the arrest of the defendant was accomplished, and if he desired to challenge its sufficiency, he should have done so by a motion to quash the warrant. (Redmond v. The State, 12 Kas. 172; The State v. Reedy, 44 id. 190.)
An objection is made to the verification of the information. It was verified upon the knowledge and belief «of the county attorney. This is a substantial compliance with the- requirements of the criminal code. (Gen. Stat. of 1889, ¶ 5131; The State v. Montgomery, 8 Kas. 351; The State v. Nulf, 15 id. 404.)
It is contended in argument that the court erred in overruling a plea in abatement. It is claimed that this plea raised the question that the information charged a different and higher grade of offense than the one stated in the warrant upon which the defendant was arrested. The confused state of the record, however,, with reference to when and in what respect the information was amended, precludes a determination of this question. Another sufficient reason is, that the grounds that were stated in the plea in abatement cannot be ascertained from the record.
It is contended that the defendant was tried for an offense not charged in the information. It charges —
“That on the 5th day of March, A. D. 1890, in the county of Grant and state of Kansas, one John Stoffel did then and there unlawfully, feloniously, forcibly, and violently, from the person and in the presence of one Karl Gall, then and there being, by putting him in fear of injury to his person and property, steal, take and carry away from the person and in the presence of the said Karl Gall one medium-sized black mare, three years old, of the value of $100, in the possession and in the control of the said Karl Gall, property belonging to Karl Gall, jr., and against the will of the said Karl Gall, and from the premises, person and presence of the said Karl Gall, with the intent feloniously to steal, take and carry said mare away, suffered by the said Karl Gall to be taken and carried away through fear of great injury and harm to the person and property of said Karl Gall, and to the persons of the members of his family, threatened to be inflicted by the said John Stoffel, at divers times prior to and at the time of the taking of said mare by the said John Stoffel, with the felonious intent of him, the said John Stoffel, in so doing, him, the said Karl Gall, then and there to rob,” etc.
The case was tried upon the theory that the offense charged was robbery in the second degree, and ■ the court instructed the jury that the defendant was charged with a violation of § 74 of the crimes act, which reads:
“ Every person who shall be convicted of feloniously taking the personal property of another, in his presence or from his person, which shall have been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been produced by the person so receiving or taking such property, shall be adjudged guilty of robbery in the second degree.” (Gen. Stat. of 1889, ¶ 2203.)
In this respect the court erred. It is probable that the charge is sufficient under § 73 of the crimes act to constitute robbery in the first degree, but certainly it does not come within the statutory definition of robbery in the second degree. It will be observed that the information alleges that Gall suffered the property to be taken through fear of injury to himself and to members of his family, “threatened to be inflicted by the said John Stoffel at divers time prior to and at the time of the taking of the said mare.” The phrase used in § 74, “at some different time,” means “at some future different time.” One of the distinguishing characteristics between robbery in the first and second degree is, that in the one case the property is delivered or suffered to be taken through fear of some immediate injury, while in the other it is through fear of injury to be inflicted at some future and different time. This was the interpretation placed by the supreme court of Missouri upon a statute of that state, which is substantially similar to our own. The construction was placed upon the Missouri statute in 1865, and we are inclined to, follow it. ( The State v. Jenkins, 36 Mo. 372; Kelley, Crim. Law, §§ 577, 581.) According to the allegations of the information, the time for the infliction of the threatened injuries had passed. Gall may have been put in fear of immediate injury, but it. cannot be said from the averments of the charge that he suffered the property to be taken through fear of injury to be inflicted at some future time. In view of the fact that the defendant was found guilty of grand larceny only, this error is not of great importance, and may not have been prejudicial to the rights of the defendant.
The most serious complaint of the defendant, and one which must be held fatal, is the action of the court in giving oral instructions to the jury. Several hours after the case had been submitted, the court sent for the jury and learned that they did not fully understand the'law of the case or the written instructions which had been given. The court then, in answer to inquiries and upon its own motion, proceeded to orally charge the jury at considerable length as to what constitutes felonious intent and the unlawful taking of the property of another, as well as what are the duties of a juror in measuring the value of testimony. Explanations of some portions of the general charge were made, and in some cases the court modified the rules of law originally stated to the jury. The defendant at the time excepted to the giving of the oral instructions and explanations.
The action of the court was a plain violation of the statute. For good reasons, a court is required in criminal cases to reduce its instructions to writing and file them among the papers of the cause. (Crim. Code, § 236.) This is an imperative requirement, and it has been held that its violation is reversible error. (The State v. Huber, 8 Kas. 447; The State v. Potter, 15 id. 302; City of Atchison v. Jansen, 21 id. 560; Rich v. Lappin, 43 id. 666.)
Other errors are assigned, but in view of the fact that there must be another trial, they do not require attention.
The judgment of the district court will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
Action on a fire policy issued by defendant company to plaintiff for $2,000. The loss by fire occurred September 15, 1887. On the 28th day of December, 1887, the plaintiff commenced an action in the district court of Wabaunsee county against the defendant company, and that action was, upon motion of plaintiff, on the 18th day of October, 1888, dismissed without prejudice to a future action. The petition does not allege that the actions are the same, and that the first failed otherwise than on the merits, but uses the expression, “This suit was commenced in this court on the 28th of October, 1888.” The policy contained this agreement:
‘f It is hereby covenanted and agreed, that no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, until after an award shall have been obtained by arbitration or appraisal in the manner above provided, nor unless commenced within 12 months next ensuing after the fire, exclusive of any time consumed in arbitration or appraisal.”
This action was commenced the 18th day of October, 1888. The trial court sustained a demurrer to the petition, on the ground that it does not state facts sufficient to constitute a cause of action' against the defendant, and that ruling is brought here for review.
The theory of the demurrer is, that the partie.s by their agreement have fixed a limitation of time within which an action on the policy can be commenced, and this action not having been brought within that time, any cause of action which plaintiff in error might have had on the policy by reason of the loss by fire is barred by the limitation created by the agreement. Against this contention, it is said that § 23 of the code of civil procedure, that reads': “If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if 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 he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure,” applies as well to the limitations made by the agreement as to those made by the statute. In this court, it was agreed on the argument that both sides had waived that part of the limitation contained in the policy as to arbitration or appraisal, leaving the controlling question in the case to be, whether or not § 23 of the .code applies to periods of limitation created by the agreement of parties. There is some contention in the brief of the plaintiff in error, although none at the bar, that, as this policy gave the assured 60 days within which to make proofs of loss, this time of 60 days must be deducted from the 12 months prescribed by the agreement, but the weight of the well-considered cases is against such a construction. See, notably, Chambers v. Atlas Ins. Co., 51 Conn. 17; King v. Fire Ins. Co., 47 Hun, 1; Fire Ins. Co. v. Wells, 83 Ya. 736; Travelers’ Ins. Co. v. California Ins. Co., 19 Ins. Jour. 636; Bradley v. Phoenix Ins. Co., 28 Mo. App. 7; Johnson v. Humboldt Ins. Co., 91 Ill. 92. But in considering the cases cited, a proper discrimination must always be observed between those policies that read, “after the loss,” “from the loss,” “ from the time the loss occurs,” and this policy, that reads, “within 12 months after the fire shall have occurred.”
On the other question: While it is admitted that parties to a contract may, by express agreement, fix a limitation of time within which any action for its breach shall be commenced, even if the time fixed is less than that allowed by statute, and that in such cases of agreement the statutory limitations do not apply, yet it is insisted that the exceptions to the statutory limitations do apply in such cases. This seems to us to be an unreasonable contention, and not supported by any authority to which our attention has been called. The case of Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386, says “that the rights of the parties flow from the contract. That relieves them from the general limitations of the statute, and, as a consequence, from its exceptions also.”
In the case of Wilkinson v. Fire Ins. Co., 72 N. Y. 499, the policy sued upon contained a provision that no suit for the recovery of any loss thereunder shall be sustainable in any ■court of law or chancery, unless it shall be commenced within twelve months after the loss occurs, any statute of limitation to the contrary. The action was commenced more than two years after the loss occurred. •• To avoid the limitation contained in the policy, the plaintiff alleged that the insurance •company had been enjoined by a court of competent jurisdiction from paying, and a third party, who claimed to own the policy, from receiving the amount of the loss. Section 105 of the code of New York contains a provision saving the rights of parties stayed by injunction. The court says:
“It is to be observed that this claim is.not justified by the terms of the contract. The provision fixing the time within which an action must be brought is distinct, definite, and unqualified. The contract contains no saving of the right of action after the expiration of a year from the loss for any cause whatever, and unless the bringing of the action within the time limited by the contract was waived by the defendant, or was excused and made impossible by the act of God or of the law, the remedy of the plaintiff has been lost.”
The court further says, in commenting upon saving the rights stayed by an injunction:
“This provision does not ai'd the plaintiff. The exception has no application where a limitation is prescribed by the contract of the parties, but only applies to cases governed by the limitations in the general law” — citing the case in 7 Wall, and others.
The iast case is affirmed in Arthur v. Homestead Ins. Co., 78 N. Y. 462, the facts being similar to the one we are now considering.
In the case of Wilson v. Ætna Ins. Co., 27 Vt. 99, the policy contained the one-year limitation. The loss occurred on the 6th day of May, 1849. On the 1st day of September, 1849, the plaintiff commenced an action on the policy to recover the loss. On the second Tuesday of March, 1851, the plaintiff was obliged, without fault on his part, to submit to a nonsuit. On the 20th of August he commenced this suit. The court says:
“A stipulation in a policy of insurance, that no action shall be sustainable unless commenced within 12 months after the loss, is binding, and bars a suit commenced after that time, even though a prior suit was commenced within 12 months, and failed without fault on the part of the plaintiff.”
Redfield, C. J., commenting on such a stipulation, remarks:
“This stipulation is too explicit to allow of any escape from its import by construction. It is not that an action shall be commenced within 12 months, but that no recovery shall be had unless such action is commenced within 12 months after the loss. Such action can only signify the action in which recovery is sought. That must be this action, and all actions in which a recovery is claimed, and there is no provision for any exception on account of the failure of any such action. And without such a provision in the contract the court cannot import one, without subjecting the contract to virtual disregard at the mere will or caprice of the parties. No court of law could relieve the party from the performance of a condition of this nature, unless it be on proof of the fraud of the other party. If the party could have any relief in such case, which is questionable — too questionable to be hopeful — it would not be here.”
To the same effect is the case of Brown v. Insurance Co., 7 R. I. 301. The court says:
“The statute of limitations has no application in any of its provisions to the clause in question, and, indeed, the only argument against the clause is, that it sets up for the contract a different law of limitation from that which the law imposes. We have held that the contracting parties have a right to do- this in reference to a policy of fire insurance, and we know no right that we have, from a consideration of general equity, to import into their contract qualifying terms which they have not seen fit to adopt.”
It seems to us that if it be conceded, as it has been by many courts of last resort, including the supreme court of the United States, that the parties to an insurance contract can stipulate as to the time within which an action shall be brought to recover a loss, independent of the limitations prescribed by the statute, then that stipulation alone must govern; because it is both unreasonable and illogical to say that the general limitations, that are almost universal in their operation upon all causes of action, cannot control the conventional limitation fixed in the policy, but that the exceptions to the general limitations prescribed by the statute, that are contingent, incidental, and entirely dependent upon the general limitations, do apply to and control the stipulation of the parties.
"We are of opinion that the trial court ruled right in sustaining the demurrer to the petition, and recommend that the judgment be affirmed.
By the Court:'It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
August 28,1888, Dan. Jones obtained from the probate judge of Hamilton county an order of injunction restraining the defendants, T. D. Ross and J. W. Phillips, and one David Kraemer, from enforcing a judgment rendered before a justice of the peace in said county, in favor of Ross and Allen and against said Dan. Jones. To obtain the order of injunction, Jones, as principal, and the Coolidge State Bank and T. H. Curren, as sureties, executed and filed with the district court a bond to the defendants in the injunction proceeding, in the sum of $500, to pay all damages the defendants should sustain by reason of said injunction proceeding.' "While the order of injunction was in force, Ross and Phillips violated its provisions, on account of which a warrant was issued, upon which they were arrested and placed in custody of an officer, who for 16 days nominally held them in charge. On the 24th of November, 1888, a motion to vacate the injunction order was heard by Hon. A. J. Abbott, judge of the district court of said county, at his chambers, at Garden City, in Finney county, and said motion was sustained and said order of injunction vacated. Afterward, December 5, 1888, this suit was instituted to recover damages alleged to have been sustained by the plaintiffs below, on account of said injunction proceeding. A petition was filed alleging the injunction proceeding, that the Coolidge State Bank was a corporation, and the damages sustained, and setting up the bond in the injunction proceeding. A general denial was filed and verified.
On the trial, which was had by the court without a jury, the defendants not being represented, the petition, bond and journal entry in the injunction proceedings were introduced to support the allegations of the plaintiffs’ petition. The plaintiffs then testified in relation to their damages. They claimed as damages $5 each per day for the time they were under arrest for violating-the order of injunction issued by said probate judge, amounting to $160; $50 attorney’s fee for vacating the injunction; $15 traveling expenses in connection with the vacating of said order, and $275 for loss of business during the period they were in custody under arrest, amounting in all to $500. They alleged that the Coolidge State Bank was a corporation, but they offered no proof on the subject, nor did they prove the execution of the injunction bond offered in evidence. There is nothing in the record to connect the defendant Borders with the case, either in the pleadings or in the evidence, except that he is named as a defendant in the title of the case. Judgment was rendered for the plaintiffs for $240, on a general finding of the court in favor of the plaintiffs. A motion for a new trial was filed, which was argued and overruled, and the case comes here for review.
The injunction complained of in this case was allowed as a provisional remedy. It. was a suit to perpetually enjoin the collection of a judgment, and there is nothing in the record to show that it has ever been brought to a final trial. The temporary injunction was vacated, on motion, at chambers. This-court, in Brown v. Smelting Co., 32 Kas. 528, says:
“In a suit for a perpetual injunction, a right of action does not accrue on an undertaking given on the issue of a temporary injunction or restraining order until a final judgment in the suit in which it was issued was rendered; and suit commenced on such undertaking before such entry of judgment is prematurely brought, and cannot be maintained.”
Again, the petition in the case alleges that the Coolidge State Bank is a corporation, and sets up the injunction bond filed in the injunction proceeding complained of, and the journal entry of the vacation of said injunction. The answer in the case was verified. No proof was offered in support of the allegation that the Coolidge State Bank was a corpoi’ation; nor was the execution of the injunction bond proven; and the alleged journal entry of the vacation of the injunction at chambers was not in any way identified. The answer being verified, no judgment could be obtained against the bank without proof of its incorporation. No proof being offered of the ex ecution of the injunction bond, it could not properly be received in evidence for any purpose. The action, being based upon the injunction bond, failed when proof of the execution of said bond failed. And lastly, the journal entry of the vacation of the injunction not being identified, there is nothing in the record to show that the injunction is not still in force, and certainly an action for damages based upon an injunction wrongfully allowed cannot be maintained while such injunction remains untried and still in force. We do not think it necessary to say anything about the character of damages claimed and received.
We recommend that the judgment of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opiuion of the court was delivered by
Johnston, J.:
It is obvious from the findings and concedí d facts that Louis Hammerslough did not have the quantity and quality of title which he undertook to convey to Margaret A. Hackett in his deed of January 10, 1879. He claimed title to the land through a conveyance made to him on March 5, 1874, by Levison & Co., who it would seem obtained all the title and interest of George W. Campbell through foreclosure proceedings and a sale and conveyance made to Levison & Co. on September 29, 1873. The mortgage had been given by George W. Campbell on October 6, 1866, and it is contended that as to 160 acres of the land mortgaged by Campbell, and which was conveyed by Hammerslough, Campbell only had such a share therein as descended to him from W. R. Campbell, who was his father and the patentee of the land. Although the plaintiff in error contends that George W. Campbell was the only ehild of W. R. Campbell and his only surviving heir, there is testimony tending to show that W. R. Campbell left surviving him a widow and eight children, and there is nothing to show that there was a transfer or relinquishment of their interest to George W. Campbell. A portion of the land appears to have been sold for taxes, and on May 14, 1877, a tax deed was executed to Austin Corbin for the same; but in October of the same year Corbin reconveyed the land to Coffey county, and Hammerslough subsequently redeemed the land from the tax sale and paid the taxes which had been charged against it. After Louis Hammerslough had obtained the deed from Levison & Co., he sent the same to the register of deeds in Coffey county to be recorded, but for some reason it was not entered of record. It was mislaid or lost and was npt found until after the commencement of these proceedings. There was therefore no rec- cord of title in Louis Hammerslough on January 10, 1879, when the conveyance in question was made. On March' 5, 1874, Louis Hammerslough made a conveyance of the land to Julius Hammerslough, which was in form a warranty deed, but the claim is that it was merely given as a security for a debt, and that the debt had been paid and discharged prior to the time of the conveyance to Hackett. In an effort to perfect the title Louis Hammerslough obtained from Julius, on May 24, 1880, a quitclaim deed for the land, and on February 25, 1882, a like conveyance was obtained from the widow and heirs of George W. Campbell. On July 22, Louis Hammer-slough, not being able to find the original deed from Levison & Co. to himself, procured a second deed from them, which recited the making of the former deed and that it was supposed to be lost or destroyed; and with a view to further perfect his title, he obtained from Austin Corbin, on March 25, 1886, a conveyance which intended to transfer from Corbin to Hammerslough whatever interest remained in Corbin by virtue of the tax sale of 1874. It thus appears that the title was so far defective when the Hackett conveyance was made that there was a breach of the covenants of seizin and of right to convey.
From the conclusion which we have reached, it is unnecessary to determine how far the title of Hammerslough fell short of a complete title at the time of his conveyance to Hackett. The covenants of seizin and of right to convey were broken at the time of the execution of the conveyance, and if Hackett had brought her action upon the covenants at once, and tendered a reconveyance of the same to Hammer-slough, she would have been entitled to recover the consideration paid, with interest. Instead of availing herself of this opportunity, however, she accepted the deed and the land, and by her act and the operation of law she has transferred the land to others. On February 27,1879, she, with her husband, executed a mortgage upon the land to Foreman & Freidlander, to secure the payment of a promissory note for $600, which was due March 1, 1880. The debt and mortgage were afterward assigned to Lathrop & Smith, and default being made, foreclosure proceedings were begun, which resulted in a decree of foreclosure, and a sale of the premises thereunder was made to Lathrop & Smith on July 29,1881. Since that time there have been several conveyances of the land, and each transfer has been for a substantial consideration. ■
It is true that the defendant in error insists that the foreclosure proceedings are not sufficiently valid to make them effective, but upon this question she is concluded by the finding of the court that there was a foreclosure and a sale. No-cross-petition in error has been filed by her, and therefore she-is in no position to complain or to secure a modification of the finding. The defect asserted relates to insufficiency of notice,, but it satisfactorily appears that there is nothing substantial in the objection, as the defect has been remedied. (Hammerslough v. Hackett, 30 Kas. 57; Lathrop v. Hackett, 36 id. 661.)' She has been wholly divested of title, and Lathrop & Smith and the subsequent grantees not only acquired all the title that was then in her, but which might inure to her by reason of the covenants in the conveyance which she received from Hammerslough. The conveyance to her contained all the usual covenants including warranty of title running to her heirs and assigns. Her alienees are entitled to the benefits of the covenants for title which run with the land, and they will take the subsequently acquired title of her grantors by inurement. (Gen. Stat. of 1889, ¶ 1114.) When she parted with all her interest in the land she had no longer any right or control over the covenants which ran with it, anc¡ thereafter had no right to recover more than nominal damages for the technical breach of the covenants of seizin and of right to convey. During her ownership there was no adverse possession of the land nor any hostile assertion of paramount title in another. She suffered no actual loss, and the parties who claimed through her it appears have not been disturbed in their possession or ownership by any adverse claimant. With a view of recovering substantial damages, she tendered in her reply a reconveyance to Hammerslough, but this was wholly ineffectual, as the title or right to the benefit of the covenants had passed from her and had vested in her assigns. Lathrop & Smith, who purchased at the sheriff’s sale, and their grantees, are at liberty to take advantage of the covenants for title whenever a breach occurs, to the extent of the actual loss sustained. The sheriff’s deed conveyed to them as full and complete a title to the land as she could have given at any time after it became liable to the judgment, and fully conferred on them the benefit of the covenants for title. (Civil Code, §459; Rawle, Cov. Tit. 213.) That she is entitled to no more than nominal damages has practically been determined by this court in Scoffins v. Grandstaff, 12 Kas. 467. It was there declared that where personal covenants are connected with the sweeping covenant of warranty, and the covenant of seizin is broken, but the grantee has parted with the property, and has never been disturbed in his ownership nor paid anything in purchasing in the paramount title, nor became liable to pay anything, he can at most recover only nominal damages from the grantor for the breach of the covenant of seizin. (See also Morrison v. Underwood, 20 N. H. 369; Baxter v. Bradbury, 20 Me. 260; Kimball v. Bryant, 25 Minn. 496; Burke v. Beveridge, 15 id. 205; King v. Gilson, 32 Ill. 349; Brandt v. Foster, 5 Iowa, 287; Prescott v. Trueman, 4 Mass. 627; College v. Cheney, 1 Vt. 340; Garfield v. Williams, 2 id. 327; Reese v. Smith, 12 Mo. 344; Wilson v. Forbes, 2 Dev. 30; McCarty v. Leggett, 3 Hill, 134; Colby v. Osgood, 29 Barb. 339; Boon v. McHenry, 55 Iowa, 202; Rawle, Cov. Tit., §§179, 180, 215, 220, 248; Tied., Real Prop., §851; Devl., Deeds, § 894.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of a criminal prosecution, wherein the city of Pittsburg, a city of the second class, was the plaintiff, and Mrs. A. E. Reynolds was the defendant, and in which the defendant was charged with violating a city ordinance prohibiting the keeping or maintenance of places where intoxicating liquors were sold or kept for sale. The action was commenced before the police judge of the city, but after trial and judgment the case was appealed by the defendant to the district court, in which court the defendant filed a plea in bar of the action, setting forth substantially that the ordinance was never published as required-, by law, and was therefore void. The city of Pittsburg demurred to this plea, upon the ground that it did not state any defense to its prosecution, which demurrer the court overruled, and the city standing upon the demurrer, the court dismissed the action, rendered judgment in favor of the defendant, and against the plaintiff for costs, and discharged the defendant; and the city now appeals to this court.
It seems to be admitted that before a city ordinance can have any force or effect it must be published as prescribed by law. (Second-class-city act, § 8.) And it seems also to be admitted that the present ordinance was published in accordance with the provisions of the aforesaid § 8 of the second-class-city act, and therefore it is claimed by the city that the ordinance was and is valid. The defendant, however, claims that since March 4, 1891, when chapter 156 of the Laws of 1891 took effect, in order to render a city ordinance valid when passed, it must be published in- accordance with the provisions -of said chapter 156; and it is admitted that the ordinance in the present ease was not published in accordance with said chapter 156. The defendant’s plea sets forth that the ordinance was passed and approved on August 19, 1891, and was first published on August 22, 1891, in a newspaper then printed and published in the city of Pittsburg, and known as the Pittsburg Daily Times; that the said newspaper had not been published for 52 weeks prior to such publication, nor since January 1, 1891, and that there were other -newspapers which had been published in the city of Pittsburg for 'the required length of time. It seems to be admitted by counsel that the only question presented to this court is, whether the ordinance, in order to be valid, must necessarily be published in accordance with the provisions of chapter 156 of the Laws of 1891; or whether the publication of the ordinance in accordance with the provisions of §8 of the second-class-city act only would be sufficient? It is claimed by counsel for the city: First, that said chapter 156 has no application to the publication of city ordinances; and, second, that if it has, then to that extent it is unconstitutional and void, being in contravention of § 16, article 2, of the constitution, which provides that “ no bill shall contain more than one subject, which shall be clearly expressed in its title.” The title of said chapter 156 reads as follows: “An act to regulate the printing of legal notices and advertisements;” and the body of the act provides, among other things, as follows:
“Section 1. No legal notice, advertisement or publication of any kind required or provided by any of the laws of the state of Kansas to be published in a newspaper, shall have any force or effect as such unless the same be published in a newspaper of the county having general circulation therein, and which said newspaper has been continuously and uninterruptedly published in said county during the period of 52 consecutive weeks prior to the first publication of the notice or advertisement: Provided, That nothing in this act shall invalidate the publication in a newspaper which has simply changed its name or moved its place of publication from one part of the county to another part without breaking the continuity of its regular issues for the requisite length of time: And provided further, That nothing in this act shall apply to counties wherein no newspaper has been published the requisite length of time: Provided also, That nothing in this act shall affect newspapers that have been continuously and uninterruptedly published since January 1, 1891.”
Has the foregoing statute any application to this case?
I. No attempt is made by the passage of such statute to repeal or modify § 8 of the second-class-city act, nor indeed to repeal or modify any other statute unless by implication, and repeals by implication are never favored.
II. The title to the foregoing act relates only to “notices and advertisements.” Now, is it possible to suppose that the legislature intended to include city ordinances within the words “notices and advertisements”? The body of the act, however, uses the words “ publication of any kind,” as well as the words “notices and advertisements;” but can the body of the act, in violation of § 16, article 2, of the constitution, so en large the title or the subject contained in the title as to make either contain what the title does not already contain? In the case of The State v. Barrett, 27 Kas. 214, 218, subdivision 9 of the syllabus and of the opinion, it is said that such a thing cannot be done; and many other cases might be cited to the same effect.
III. But chapter 156 requires merely that the matter to be published shall be published in a newspaper which “ has been continuously and uninterruptedly published in said county during the period of 52 consecutive weeks prior to the first publication of the “notice or advertisement.” But suppose that the matter to be published is not a notice or advertisement, but is the “publication of any kind,” elsewhere mentioned in the body of the act: then is such “publication of any kind” to be published in such 52-weeks newspaper, or may it be published in any kind of a newspaper published in the county? It would seem that only notices and advertisements are required to be published in a 52-weeks newspaper.
IV. Besides, these “notices and advertisements” are to “be published in a newspaper of the county,” and not necessarily in a newspaper of the city. Hence, if this chapter applies to city ordinances, a city ordinance for the city of Pittsburg might be published in a newspaper published in the city of Girard, a city of the same county, or, indeed, in any other newspa'per published in the county, and in violation of that portion of § 8 of the second-class-city act which provides that “all ordinances shall, as soon as practicable after they are passed, be published in some newspaper printed within the city,” provided, of course, that there is some newspaper printed in the city. Is this provision of § 8, requiring ordinances to be published “within the city,” repealed by implication ?
V. And further, it will be noticed that chapter 156 mentions county in every instance where locality is mentioned, and never mentions city in any case; and therefore, can it be supposed that an act relating generally to counties could repeal by implication special provisions of other acts relating only to cities, when cities are not even mentioned in the act? And can it be supposed that such act could also require that ordinances which pertáin only to cities should be published in accordance with the provisions of the general statutes for counties, when city ordinances are not even mentioned in such act?
We think that chapter 156 of the Laws of 1891 has no application to the publication of city ordinances, and therefore the judgment of the court below will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In 1887, H. S. Henry purchased lumber and building materials from Howell Bros., of Stockton, for the purpose of erecting a dwelling-house at Nicodemus, and it was so used. He failed to pay the price of the same, and on November 22,1887, Howell Bros, made and filed a statement for a lien against the lots on which the house was constructed. On November 19, 1887, the property was conveyed to S. G. and L. J. Wilson. This action was brought by Howell Bros, to recover the price of the lumber and to enforce a mechanic’s lien. Judgment was given in their favor and against Henry for $119.16, and the lien claimed by them against the property was foreclosed. The Wilsons bring the case up for review, contending that the lien was not filed within four months after the completion of the building; and further, that the lumber was sold without any intention or understanding that it should be used in the construction of the building.
A preliminary objection is made by the defendants in error to the consideration of these questions, on the ground that the record does not show that all the evidence is preserved. This objection cannot be sustained. There is in the record, preceding the certificate of the judge, a stipulation signed by counsel for both parties, to the effect that the case-made contains a true, full and correct statement of the proceedings in the action. This appears to have been settled by the judge as a part of the case, and is sufficient to entitle the plaintiffs in error to a review of the testimony.
The principal controversy appears to have been in regard to whether the lien was filed in good time. Plaintiffs in error contended, and offered testimony tending to show, that the building in which the material was used was completed prior to July 20,1887, and it is conceded that the lien was not filed until November 22, 1887. The defendants in error, however, offered testimony tending to show that the building was not completed until the last days of July, or later. Proof was offered that some of the material used in the construction of the building was purchased and taken from the lumber yard on the 25th and 27th days of July. Although the plaintiffs in error offered positive testimony tending to sustain their theory, the time of the completion of the building was a question of fact for the determination of the court, and it having been settled upon conflicting testimony, the decision is conclusive with us.
The second ground of error cannot be sustained. It has been established beyond cavil that the material was purchased for the erection. of the dwelling-house in Ni'codemus. It is true that the defendants in error did not, at the time of the sale, know the exact description and locatiou of the lots upon which the building was to be erected. It is not essential, however, that there should be a contract specifically describing the lots or building, nor that Howell Bros, should have known the exact location of the same. If the material is sold on the personal credit of the purchaser, and without reference to what use he shall make of the same, no lien will attach; but where there is a mutual understanding between the parties that the material is furnished to be used in the construction of a particular building, and it is furnished and placed in such building, a lien will exist, although the exact description of the land on which the building was placed was not specifically named or accurately known by the vendor. (Deatherage v. Henderson, 43 Kas. 684; Phillips, Mech. Liens, § 126.) Judgment affirmed.
All the Justices concurring. | [
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Opinion by
Gkeen, C.:
This was an action in replevin, to recover certain personal property claimed by the plaintiff below under a chattel mortgage duly executed and filed in the office of the county clerk of Richardson county, Nebraska, on the 28th day of July, 1886.. The property was removed to Horton, in Brown county-, some time in November or December, 1887, and sold by the mortgagor to the plaintiff in error, who had no knowledge of the existence of the Nebraska mortgage. The jury returned a verdict for the plaintiff, and the defendant below brings the case here for review.
It is first urged that the district’ court erred in admitting in evidence the statutes of Nebraska in relation to chattel mortgages. We think this evidence was competent under the allegations of the petition. It was alleged that the plaintiff had a special ownership in the property replevied, under a chattel mortgage duly executed and filed in the office of the county clerk of Richardson county, Nebraska; that at the time the mortgage was executed ,the parties were residents of that county, and the property was situated there; that by the laws of the state of Nebraska the county clerk’s office is the proper place to file chattel mortgages, in order to impart constructive notice to third parties; that a chattel mortgage to secure promissory notes is good and imparts notice for five years after filing the same in the county clerk’s office, without making any affidavit to renew the same. The plaintiff below had a right to show that the chattel mortgage was valid in the state where it was executed. “The law of the place of contract, when this is also the place where the property is, governs as to the nature, validity, construction and effect of a mortgage, which will be enforced in another state as a matter of comity, although not executed or recorded according to the requirements of the law of the latter state.” (Jones, Chat. Mortg., § 299.) A chattel mortgage executed in another state should be given such effect as it is entitled to in the state where it is executed. (Blystone v. Burgett, 10 Ind. 28.)
The claim is next made that the court should not have admitted in evidence the chattel mortgage. The execution of the mortgage was hot challenged by a verified answer, so that its introduction was immaterial.
It is further claimed by the plaintiff in error that the mortgagee knew that the property described in the chattel mortgage had been removed to Kansas in November or December, 1887, and that he permitted the property to remain there until the month of April, 1888, without claiming the same, and was therefore guilty of such laches as would bar him of all right to recover the property from an innocent purchaser for value, as the plaintiff in error claimed to be. We do not think that the mortgagee was guilty of such laches as precluded a right of recovery. The mortgage was properly recorded in Nebraska, where the parties resided and the property was situated at the time it was executed. The plaintiff thus obtained a title to the property, absolute or qualified, by the laws of another state, and was entitled to maintain and enforce his right to the property in this state. Where personal property has been mortgaged and left in the possession of the mortgagor, and the mortgage is duly recorded, a subsequent removal of the mortgagor to another state does not make a new record of the mortgage necessary in the county and state to which the mortgagor has removed with the property. (Offutt v. Flagg, 10 N. H. 47; Langworthy v. Little, 12 Cush. 111.)
“If the holder of property has recently come from an adjoing state, there may be a mortgage upon the property in that state; and a purchaser or creditor must exercise his diligence by inquiring there whether the property is incumbered, just as when the owner has recently removed from another part of the same state the purchaser or creditor is bound to inquire at such former residence of the owner for incumbrances there recorded.” (Jones, Mortg., § 260.)
The supreme court of Iowa has held that the constructive notice imparted by the recording of a chattel mortgage is not confined to the county or state where the mortgage was executed and the property then was, but extends to wherever the property may be removed. (Smith v. McLean, 24 Iowa, 323.) The following authorities sustain this doctrine: Kanaga v. Taylor, 7 Ohio St. 134; Holt v. Remick, 11 N. H. 285; Whitney v. Heywood, 6 Cush. 82; Barrows v. Turner, 50 Me. 127; Hicks v. Williams, 17 Barb. 523; Cool v. Roche, 20 Neb. 550; Iron Works v. Warren, 76 Ind. 512; Mumford v. Canty, 50 Ill. 370; Beall v. Williamson, 14 Ala. 55; Feurt v. Rowell, 62 Mo. 525.
Complaint is made of the instruction given and the refusal of instruction requested. Substantially the same questions are raised by the instructions as those we have already discussed, and we need not consider them further.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action originated in the court of common pleas of Wyandotte county. It was commenced to restrain the collection of certain taxes levied upon the property of the defendant in error, by reason of the improvement of streets in the city of Kansas City, by the board of county commissioners, under the provisions of “An act for the improvement of county roads,” approved March 5, 1887. The case was tried below on an agreed statement of facts that reads as follows:
“ 1. John Steffens, Nelson Garcelon, and C. E. Horstman constitute the board of county commissioners, Charles E. Bruce is county clerk, and M. W. Stewart is county treasurer of Wyandotte county, Kansas.
“2. During all the times referred to in plaintiff’s petition the city of Kansas City, in said county, was, and is, a city of the first class, duly organized under and by virtue of the laws of the state of Kansas as such.
“ 3. The petition presented praying the improvements of Lafayette avenue, and the petition presented praying for the improvement of Stewart avenue, and the petition presented praying for the improvement of Third street, were each and all signed by a majority of the resident land-owners on either side of said street or avenues, and said petitions were in form as provided for in an act for the improvement of county roads, approved March 5, 1887, and the plaintiff in this action signed all the petitions for the improvements therein mentioned.
“4. At the time of the presentation of said petitions, Lafayette avenue, Stewart avenue and Third street were all public streets, lying wholly within Edgerton place; and plaintiff knew that said streets were not county roads, and that said improvements were made under the laws of 1887; Edgerton place was at that time a body of land subdivided and platted and regularly laid out into lots, block, streets, and alleys, and was afterward made an addition to Kansas City, a city duly organized as a city of the first class; all the land lying on either side of said streets and avenues, at the time of the improvements aforesaid, consisted of lots, blocks, streets and public alleys, and none of said streets or avenues at that time was a county road. Plaintiff lived upon one of said streets and his property was benefited by said improvements.
“5. The improvements of said streets and avenues, for which plaintiff’s property has been specially taxed, consist of paving said streets and avenues with cedar blocks and with placing stone curbing on either side of said paving, so that each of said avenues and said street was improved in the same manner and in connection with the streets of the city of Kansas City.
“6. The allegations of plaintiff’s petition with reference to the apportionment of said taxes are.true.”
The court below granted a perpetual injunction restraining the collection of such taxes. All proper exceptions were saved, and the case is here to review the final order.
We are unable to distinguish this case from that of Stewart v. Comm’rs of Wyandotte Co., 45 Kas. 708. In that case it was held:
“That a land-owner who voluntarily invokes for his benefit the provisions of chapter 214, Laws of 1887, for the purpose of improving a county road contiguous to his land; signs, circulates and presents a petition to the board of county commissioners under the statute, and asks for the improvement subsequently made; lives in the immediate vicinity of the improvement during its entire progress; is present upon the work at various times; knows that the petition is insufficient under the statute; and the improvement greatly enhances the value of his property, much in excess of any tax or assessment attempted to be imposed, is not entitled to an injunction to restrain the collection of such tax or special assessment, although the improvement is made without any authority whatever.”
In this case it appears from the agreed statement of facts that Hoag signed the petitions for the improvement of these streets; that at the time the petitions were presented, these streets were all public streets, and not county roads; that Hoag lived on one of these streets, and that his property was greatly benefited by the improvements made thereon. That is, that Hoag, in conjunction with other neighbors, petitioned for these improvements, and, after the work was done in accordance with his request, he now seeks to avoid his proportionate payment of the cost by saying that it was done without authority. And while it is shown by the record that he was not as active in the preparation of the petitions as Stewart was, he signed the petition and asked that his property be benefited, and when the- benefit occurred seeks to repudiate his responsibility in procuring the work to be done. He cannot thus invite and encourage these improvements, and then ask a court of equity to protect him from the inevitable consequences of his own personal, voluntary action.
We recommend that the judgment be reversed, with instructions to dissolve the injunction and dismiss the action.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
The first error co'mplained of is the refusal of the court to require the plaintiff below to make more definite and certain the second amended petition. If there was any error in such refusal, it is wholly immaterial, in view of the subsequent pleadings which were filed. The answer of the defendants below contained as a part thereof a statement of the accounts of James A. Loper, as county treasurer, as shown by the books in the clerk’s office of Atchison county of the date of the 17th of May, 1886, embracing over 12 pages. This statement purported to give the items of credits and debits for and against Loper as county treasurer in detail, and also in the aggregate. With this statement in the answer, and with the allegations of the answer concerning the same, the defendants were fully apprised of the specific claims and each item thereof against Loper as county treasurer. The reply to the answer stated the official action of the board of county commissioners of Atchison county on November 10,1885, and on November 18, of the same year, in suspending James A. Loper as county treasurer, and in appointing, in the first instance, C. W. Rust as acting county treasurer, and in the second instance, of appointing in his place S. A. Frazier as acting county treasurer; therefore, in the reply, the defendants were fully informed of the official action of the county eommis- » sioners as to any suspension or removal of Loper as county treasurer.
The next complaint is, that the trial court had no power to make the reference of the case, against the objections of the defendants. It is also urged that the defendants were entitled to a trial by jury. It has been frequently decided by this court that the state constitution entitles a party to a jury trial only in such cases as, prior to the constitution, he had a right to a jury. (Boss v. Comm’rs of Crawford Co., 16 Kas. 411.) Under the provisions of § 292 of the code, a reference was not only proper, but, in a case like this, necessary.
The petition alleged, in the first cause of action, that in 1882 and 1883, Loper, as county treasurer, received tax-rolls and other large sums of money, aggregating $453,334.78, and that he was entitled to credits thereon of $440,891.45. The petition further alleged, as a second cause of action, that Loper received, as treasurer, in 1884, tax-rolls amounting to $271,-061.85, and other moneys amounting to $30,072.55, and that of these sums he failed to account for $12,443.33. Then the answer set up an itemized statement, made out by the clerk of Atchison county, of the accounts of James A. Loper, as county treasurer, in detail, during the time he served as county treasurer. The answer contained the further allegation that Loper, during his first term of office, paid out as county treasurer the sum of $30,000 in excess of all moneys received by him. The reply contained a general denial to the new matters alleged in the answers. Upon the pleadings and the issues framed thereby, an examination of mutual accounts was required. In such a case, the court may direct a reference when the parties do not consent.
Further complaint is made that the report pf the referee and the judgment rendered thereon are not sustained by the pleadings. It appears that the total claims alleged in the second 'amended petition, as originally filed, aggregated $754,469.18. The reply did not increase or vary this amount. The referee reported that Loper was entitled to credits aggregating $754,- 142.83; therefore the credits to which Loper was entitled, under the findings of the referee, were $326.35 less than the debts or charges against him, as alleged in the second amended petition. The tax-rolls of 1884, according to the proof, were $6,344.61 less than alleged; therefore, the total charges of $754,469.18 were decreased by the proof before the referee of that amount, thereby making the charges less than the credits. While the case was being heard by the referee, and when it appeared that the credits to which Loper was entitled exceeded the charges against him in the' petition, defendants requested the referee to stop the further taking of evidence. Thereupon the plaintiff asked leave of .the referee to amend its second count or cause of action by increasing the sum of $30,072.55, alleged to have been received by Loper, as county treasurer, to $40,072.55. The referee refused to stop the hearing or allow the amendment requested, but proceeded with the case. He subsequently made his report to the court, showing the total charges against Loper as county treasurer at $763,351.35, and stating his credits at $754,142.83, leaving a balance of $9,208.52, which balance he reduced by other credits to $8,-172.57. When the referee’s report was examined by the district court, the court allowed the motion of defendants to change the $30,072.55 charged to Loper to $40,072.55, thereby increasing the claims of the second cause of action $10,000. The court then entered judgment against the defendants, including interest, for $10,257.35.
The amendment of $10,000 allowed by the court did not increase the claims of the petition sufficiently to sustain the findings of the referee and the judgment rendered. The petition, as finally amended, alleged the total claims or charges against Loper at $764,469.18, made up of the following sums: $453,334.78, $271,061.85, $40,072.55. The charge of $271,-061.85 for the tax-rolls of 1884 must be reduced, under the findings of the referee, to $264,727.24, being $6,344.61 less than stated in the petition; therefore, this sum must be deducted from $764,469.18, leaving $758,124.57 as the only charges of the petition established by proof, under the findings of the referee. The total credits allowed by the referee were $754,142.83. If the credits proved be deducted from the charges of the petition as finally amended, the recovery or judgmentwould be about $4,000; not $8,172.57, as reported by the referee, or $8,586.66, as increased by the court. But if the counts or causes of action of the petition be considered separately, a less favorable showing is made for the plaintiff. So examined and considered, the findings of the referee and judgment cannot be sustained under the allegations of the petition, as amended, and the proofs.
The second count or cause of action in the petition as amended charged Loper as county treasurer with the tax-rolls of 1884, amounting to $271,061.85, and other moneys amounting to $40,072.55, total $311,134.40; but the tax-rolls of 1884 amounted to $264,727.24 only, being $6,344.61 less than stated in the petition. This sum deducted from $311,-134.40 leaves $304,799.79 as the'charges in the second cause of action of the petition, construed with the proofs and findings of the referee. The referee reported upon the first count or cause of action in the petition $10.58 only as the deficit^ and stated that Loper was entitled to credits during his second term of office for $305,306.65, making his credits nearly $500 in excess of the charges established under the second count or cause of action of the petition; therefore the finding of the referee of $8,161.99, with interest, against Loper, under the second count or cause of action in the petition, is clearly erroneous, if the allegations of the petition and reply, even as amended, are to have force or effect.
It appears from the findings of the referee that, at the close of the first official term of Loper, $42,515.88 were in his hands as county treasurer, which were carried forward to the like funds in his second term, or rather turned over by him from his first term to his second term. This sum should have been alleged in the second count or cause of action of the petition. Out of abundant caution, this sum might have been included in both causes of action. It is elementary that a plaintiff cannot recover beyond the allegations of his pleadings.
It is urged that the report of the referee and the judgment of the court below may be sustained under the decision in the case of Comm’rs of Harvey Co. v. Hunger, 24 Kas. 205; but that case does not control, because it appears from the findings of the referee that the amount of deficit for the first term was $10.58 only, and that the credits of the second term exceeded the amount of deficit alleged for that term. After the referee filed his report, the court might have allowed the pleadings to be amended as now desired, upon such terms as were just and proper, and then ordered another reference, if further proof was necessary. But the amendment granted by the court did not go far enough. It did not increase the charges against Loper sufficiently.
It is suggested upon the part of the plaintiff that the report of the referee and the judgment may be sustained upon the answer filed to the second amended petition, which contains the statement of the charges against Loper as county treasurer, made out and certified to by the county clerk. It is possible, if there were no other answer than that contained in the third defense, which includes this statement, we might, construing the allegations of such defense most strongly against the pleader, uphold the findings of the referee and the judgment rendered, but two difficulties prevent: First, if that defense be considered an admission of the certified statement as correct, then a few items only are in dispute between the parties, and no reference of the case ought to have been made. Most of these items raise questions of law only. Second, the fourth defense set forth the payment of $30,000 by Loper as county treasurer, during his first term of office, in excess of any deficit. When the case was before the referee, all that the defendants below were required to do to entitle them to judgment was, to establish that the credits during the first and second official terms of Loper were in excess of the charges against him. If it be conceded that the third defense was an admission of the accounts certified to by the county clerk, there are other allegations in the answer that the balance claimed from Loper was overpaid.
It is suggested upon the part of the plaintiff that this court may pass upon the case as if the amendments which ought to have been made were in fact made before the case went to the referee. (Mo. V. Rld. Co. v. Caldwell, 8 Kas. 244; Hawley v. Histed, 10 id. 266; Organ Co. v. Lasley, 40 id. 521; Lemon v. Dryden, 43 id. 477.) We cannot do this, because the defendants objected in every possible way to the insufficient allegations of the petition before the referee and the court. At the very first opportunity they had, they filed a motion asking the petition to be made more definite and certain. This was overruled, and the objections which they commenced at their first appearance in the court below were kept up in all the proceedings of that court, and are vigorously insisted upon again in this court. If the case had been tried by all the parties as if the pleadings had been amended, or if no objection had been taken to the proof of all the charges of the official terms of Loper as county treasurer, we might consider the pleadings as amended to conform to the facts proved; but we cannot do this now. (Green v. Dunn, 5 Kas. 254; Pratt v. Brockett, 20 id. 201.) If the petition was merely defective, or if the variance in the proof was trivial only, under some of the decisions of this court, we might pass upon the case as if amended. (K. P. Rly. Co. v. Montelle, 10 Kas. 119; Pape v. Capitol Bank, 20 id. 440; Bank of Lindsborg v. Hageman, 31 id. 599; City of Topeka v. Sherwood, 39 id. 690; Grandstaff v. Brown, 23 id. 176.) But we cannot now change the petition by allowing amendments of $8,000 or $10,000 more than requested of the court below, with no opportunity for either party to present other or further evidence. If the court had allowed the amendments now suggested, the defendants might have asked and obtained a further reference so that additional proof could have been received. On account of the errors referred to, the judgment of the district court must be reversed.
There are various other important questions discussed in the briefs, and in view of another trial it is deemed advisable to comment upon some of them. It is contended that Loper was only suspended, and therefore was not required by the statute to deliver to either Rust or Frazier the moneys in his hands by virtue of his office; that this action was prematurely brought, because no sufficient demand was made for any balance claimed; and that, as Loper was suspended and not removed, he was entitled to his salary until the end of his term. It is also contended, as the law requires the appointment of a depository in all counties of the population of Atchison and the daily deposit of the treasurer’s funds therein, that the sureties of Loper signed his official bonds with this law as a part of the contract, and that the failure of the county commissioners to designate such depository and compel the daily deposit of the treasurer’s funds limited or discharged the sureties from liability.
It appears that on November 18, 1885, at the instance of the sureties, the county ¡commissioners, having previously suspended James A. Loper as county treasurer, appointed S. A. Frazier acting county treasurer, “ to forthwith take possession of the county treasurer’s office, the books, papers, moneys and records thereof, and to do and perform all the duties and assume all the responsibilities of the acting county treasurer during the further suspension of James A. Loper, county treasurer, and until the further order of the board.” This order, made with the consent of the parties now complaining, was fully authorized under the provisions of ¶ 1709, Gen. Stat. of 1889. (The State v. Majors, 16 Kas. 440.) Instead of using the word “suspension,” under the facts disclosed, the order should have been absolute removal. Frazier was appointed the acting county treasurer, and the sureties agreed to become responsible as his bondsmen for all his acts. He was such a successor of Loper that, under ¶ 1703, Gen. Stat. of 1889, he was entitled to have received from him all moneys in his hands by virtue of his office.
Prior to the commencement of this action in the court below, Loper was well acquainted with the proceedings of the county commissioners, his suspension from office, the appointment of an acting county treasurer, the claims made against him, and at no time has he offered or tendered to his successor in office, or to anyone else, any of the balance alleged to be due; therefore we do not think the action was prematurely brought, or that any defense can be made for him upon the ground that he had not resigned or been removed from office. His suspension, succeeded by the appointment of Frazier in the terms of the order referred to, was in one sense a removal from office — at least such a removal as is embraced in ¶ 1703, Gen. Stat. of 1889. If the . . county commissioners had suspended Loper as coun^y treasurer temporarily, for the purpose of examining the public funds, and then, if these had been found correct, he had resumed the discharge of his official duties, much that is said in the briefs of defendants about his right to his salary would have force; but the commissioners did not suspend him merely. They appointed Frazier as acting county treasurer, as his successor during such suspension, and such acting county treasurer discharged all the duties of the office to the end of Loper’s term. If the county commissioners had made an order of absolute removal, it would not have accomplished broader results in this respect. If, after suspension, it were determined that a county treasurer was not in default, but had been unjustly suspended, he would be entitled to be reinstated; and, of course, entitled to his salary to the end of his term of office. But if, for the preservation and protection of the public funds, a county treasurer is suspended or removed, and it appears upon examination that such suspension or removal is fully justified, the officer, whether suspended or removed, ought not to be entitled to any salary after such suspension.
If the allegations in the reply are true, that the officers and persons interested in the First National and the Atchison Savings Banks executed the official bonds of Loper as county treasurer, with the agreement that Loper was to deposit the official funds in about equal proportions in the banks for their , use and benefit, as other deposits, or if the sureties, with full notice thereof, permitted this to be done, they cannot limit or ^essen their liability by charging or proving the failure of the county commissioners to designate a depository for the public funds. Parties cannot make an arrangement favoring the violation of a statute regulating the duties of a public officer, and, having obtained an advantage or profit thereby, ask that their liability upon the official bond of such officer be lessened or discharged because the statute was not complied with. (The State v. McCrillus, 4 Kas. 250; The State v. Magill, 4 id. 356; Clough v. Hart, 8 id. 487; Manley v. City of Atchison, 9 id. 358.)
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
R. M. Smith and 13 other per-' sons, who describe themselves as tax-payers of Barber county, commenced an action against the board of county commissioners of that county, the object of which was to perpetually enjoin the board of county commissioners from purchasing any or all bridges built on the public highways of said county, under and by virtue of the terms of an act entitled “An act concerning bridges in Barber county, Kansas,” published March 11,1891, that reads as follows:
“Section 1. That the county commissioners of Barber county, Kansas, are hereby authorized to purchase, at their true value, any or all bridges, built on the public highways of said county, by any township or private person or persons, and pay for the same in county bonds; said bonds not to draw over 6 per cent, interest, and made payable not under 10 years; or said bonds may be sold at not less than par, and the proceeds applied for the payment of said bridges.”
In the absence of the district judge from the county, a temporary injunction was allowed by the probate judge, issued, and served on the board. Afterward a motion was made before the district judge to dissolve the injunction, and a demurrer to the petition was filed, claiming that the petition did not state facts sufficient to constitute a cause of action. The motion to dissolve the injunction and the demurrer to the petition were both overruled by the trial court, and these are the errors complained of. Three questions have been discussed by counsel in their briefs and at the bar.
I. The first of these is, whether the plaintiffs below have such a peculiar interest in the subject-matter of the action, aside from the general public, that they can maintain such an action as this. This court has always held that, before a private citizen can be allowed to maintain an action of this character, he must allege and show some interest personal and peculiar to himself, that is not shared by or does not affect the general public; and it is not enough that his damages are greater than those sustained by the general public, thus differing only in degree; but they must be different in kind. (School District v. Neil, 36 Kas. 617, and authorities cited; Mikesell v. Durkee, 34 id. 509; School District v. Shadduck, 25 id. 467.)
Ever since the case of Craft v. Jackson Co., 5 Kas. 518, this court has constantly held that, if the injury is one that peculiarly affects a person, he has his right of action; but if it affects the whole community alike, the remedy is by proceedings instituted by some public officer. The only reason given why these defendants in error have a peculiar interest, different in kind from the balance of the people of the county of Barber, is, that they live and have property in townships in which no bridges have been built, and consequently they will be compelled to pay taxes to purchase bridges to be used and enjoyed by the' people of other townships. This is not sufficient. Under the operation of the general law authorizing the board of county commissioners to build or purchase bridges, the people of all the other townships, except the one in which the bridge is located, are. affected the same way. If this board of county commissioners purchase the bridges, as authorized by the act of 1891, they become county bridges, and every tax-payer in the county pays his proportionate share of the purchase-money in the way of taxes. It is alleged that these defendants in error are the principal taxpayers in their respective townships. To this we reply, in the language of Craft v. Jackson Co.: “The amount of taxes he pays is immaterial. A pecuniary interest, however small, as much entitles him to have his grievances heard and adjudicated, as though he controlled half of the revenue of the county.” It is not the amount involved, but the peculiar personal interest in the subject-matter of the action, different in kind from that of the general public, that determines his right to maintain such a suit. Both the motion to dissolve the injunction and the demurrer to the petition ought to have been sustained, because as to these plaintiffs below no cause of action is alleged in the petition.
II. The petition does not allege that an official action had been taken by the board toward purchasing the bridges. The strongest allegations are, that “the said defendants have determined to buy the bridges;” “that the defendants have determined to have an adjourned or special meeting on the 1st day of June, 1891, and at said meeting purchase all of said bridges, and issue and deliver bonds in payment thereof;” “that the defendants are about to purchase the bridges.” These are not sufficient. (Troy v. Comm’rs of Doniphan Co., 32 Kas. 507, and authorities cited; Challiss v. City of Atchison, 39 id. 276; Andrews v. Love, 46 id. 264; Stoufer v. Comm’rs of Seward Co., 47 id. 287.) All these cases hold that, before an injunction can issue against an officer or tribunal, some official steps towards the performance of the act claimed as injurious must be alleged and shown. For this reason the demurrer and motion to dissolve the injunction ought to have been sustained.
III. Finally, it is claimed that the law of 1891, authorizing the board to purchase the bridges, is unconstitutional. It is claimed that it violates § 16 of article 2 of the constitution in two respects, to wit: It contains more than one subject, and the subject is not clearly expressed by its title. The title is comprehensive enough to embrace everything connected with bridges, their mode and manner of construction, purchase and payment, and it embraces but one subject, and that is “bridges.” It is said that it violates § 17 of. the same article, because the subject is one where a general law could have been made to apply. It is doubtful whether such a condition, with reference to bridges, exists in any other county in the state. To say the least, it is an unusual condition of affairs, because the law and the rule is, that counties and townships build bridges, and not private individuals; hence, this is one of the cases in which the legislature must determine whether their purpose can or cannot be accomplished by a general law. (The State, ex rel., v. Hitchcock, 1 Kas. 178.)
It is claimed that it violates the spirit of § 1, article 2, of the constitution; but as this act does not undertake to provide for a rate of assessment or taxation, but only authorizes the purchase of bridges and issue of bonds in payment thereof, that section is not attacked or threatened with infringement..
We recommend that the judgment be reversed, and the cause remanded, with instructions to dissolve the injunction and sustain the demurrer.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion was delivered by
Luckert, J.:
Ruby Nicholas filed for divorce from Sheryl Nicholas and obtained an ex parte temporary restraining order prohibiting either party from disposing of assets. Knowing he was terminally ill, Sheryl created a new will, changed the beneficiary on his life insurance policy, made pay on death (POD) and transfer on death (TOD) designations on several accounts, and attempted to unilaterally sever joint tenancies. He also sued Ruby for invasion of privacy and trespass, alleging that she broke into his home and removed documents and financial records. Sheryl died 2 days before the divorce trial date.
Sheryl’s executor filed suit against Ruby and, in an amended answer, she asserted claims against those named as beneficiaries on the accounts and insurance. The district court granted summary judgment in favor of Ruby, ruling that Sheryl’s actions had violated the temporary restraining order and that titles to the accounts should remain as they existed at the time the restraining order was issued. The district court also ruled that the invasion of privacy action did not survive. On appeal, a majority of the Court of Appeals panel affirmed. This court granted the executor’s petition for review.
The parties have not contested the Court of Appeals’, rendition of the facts, which was largely based upon stipulations of the parties. As the Court of Appeals recited, on May 9, .2000, after more than 25 years of marriage and approximately 2 years of living separately, Ruby Nicholas filed for divorce from Sheryl Nicholas. Ruby obtained an ex parte temporary restraining order prohibiting either party from disposing of any asset of the parties “except'in the normal course of business.” Knowing that he was terminally ill, on July 18, 2000, Sheryl executed a will devising all of his property in equal shares to his children from a previous marriage, Arthur E. Nicholas and Susan A. Johnson, and naming Arthur as executor of his estate. During July 2000, Sheryl also executed a transfer on death (TOD) form designating Arthur and Susan as beneficiaries of his Van Kampen funds, a TOD form naming Arthur and Susan as beneficiaries of an Edward Jones account, and a pay on death (POD) form naming Arthur as beneficiaiy of a checking account at the Iola Bank and Trust Company (Iola Bank). In August 2000, Sheryl changed the primary beneficiary of his Ameritas life insurance policy from Ruby to Arthur.
Sheryl then filed a cross-petition for divorce and a motion for an emergency divorce. He later filed a motion to sever the joint tenancy property he owned with Ruby. Finally, he sued Ruby for invasion of privacy and trespass, alleging that Ruby broke into his home and removed documents and financial records. Sheryl demanded the return of the documents and sued for damages in excess of $50,000.
The district court denied Sheryl’s motion for an emergency divorce but granted his motions to file a cross-petition for divorce and to modify the restraining order. At the hearing, Sheryl’s counsel reserved argument on the motion to sever the joint tenancies. Trial was set for October 3, 2000.
Meanwhile, the parties attempted to negotiate a settlement agreement. On September 27, 2000, Sheryl executed a property settlement and separation agreement which he believed was consistent with the terms of a previous offer made by Ruby. On September 29, 2000, Sheryl executed a revocable trust funded with all of his personal property and certain real property, with Arthur and Susan as equal beneficiaries.
Sheryl died on October 1, 2000, 2 days before the divorce trial date. Sheryl’s will was admitted to. probate on December 11, 2000, after Ruby withdrew her objections. Arthur, as executor of Sheryl’s estate, filed suit against Ruby seeking delivery of one-half of the joint tenancy property and alleging that she had breached the settlement agreement by refusing to release that property. In her answer, Ruby acknowledged the existence of Sheryl’s new will; however, she argued that most of the marital property was held in joint tenancy with right of survivorship and denied that Sheryl’s actions succeeded in terminating their joint tenancies. Ruby also responded that she had neither approved nor executed the settlement agreement.
On April 13, 2001, Ruby filed an application to amend her answer and join Arthur and Susan as additional parties to the action. Ruby’s amended answer stated a counterclaim and cross-claim against Arthur as executor and against Arthur and Susan as indi viduals. Ruby alleged that Sheryl’s attempts to sever joint tenancy interests and his changing or naming beneficiaries on accounts and his life insurance policy violated the restraining order and were fraudulent under K.S.A. 33-201 et seq., the Kansas Uniform Fraudulent Transfer Act. Ruby asked the district court to impose a constructive trust on those funds transferred by Sheryl “outside the normal course of business” to Arthur and Susan in violation of the restraining order.
Arthur opposed Ruby’s motion, responding that the district court did not have personal jurisdiction over Susan or himself, as individuals. He argued that the district court did not have subject matter jurisdiction over the Van Kampen funds, the Edward Jones account, or the Ameritas life insurance policy because the funds were situated and paid from locations outside of Kansas to parties residing outside of Kansas. The Iola Bank checking account was in the possession of the special administrator and had not been disbursed. Further, Arthur maintained that Ruby claimed these four accounts in ongoing probate proceedings. There is no indication in the record that a hearing was held to address Ruby’s motion.
Both parties filed motions for summary judgment on their respective claims. Ruby argued that Sheryl’s actions did not sever the joint tenancies; Sheryl violated the restraining order when he made POD and TOD designations for the Van Kampen funds, the Iola Bank checking account, and the Edward Jones account; Sheryl further violated the restraining order by changing the beneficiary of his Ameritas life insurance policy; the proposed settlement agreement did not bind the parties because Ruby did not sign or execute it and, without her signature, the agreement violated the homestead laws of Kansas and the statute of frauds; and Sheryl’s invasion of privacy claim did not survive his death.
Arthur’s motion for summary judgment argued that the restraining order did not prohibit severance of the parties’ joint tenancies; Sheryl acted properly in changing or designating beneficiaries on his life insurance policy and the various accounts at issue; the settlement agreement signed and executed by Sheryl was binding on the parties; and Sheryl’s invasion of privacy claim survived his death.
On February 15, 2002, the parties signed a stipulation as to the joint or several ownership of Ruby and Sheryl’s personal and real property as of the date of Sheryl’s death. The stipulation indicates that the Edward Jones account and Iola Bank account were titled solely in Sheryl’s name and that Sheryl was the policy holder on his Ameritas life insurance policy. The parties continue to dispute whether the Van Kampen funds were the sole property of Sheryl or were held jointly with Ruby.
In its March 14, 2002, order, the district court granted summary judgment in favor of Ruby, ruling: (1) Titles to the accounts should remain as they existed when the court issued the restraining order on May 9, 2000; (2) the settlement agreement did not bind the parties because it had not been agreed to by Ruby or approved by the court prior to Sheiyl’s death, which abated the divorce proceeding; and (3) Sheryl’s invasion of privacy claim did not survive his death. Arthur timely appealed.
The Court of Appeals described the remaining procedural history of die case as follows:
“After deciding issues dispositive of Arthur’s suit and Sheryl’s invasion of privacy claim, the district court issued an order consolidating those two cases.
“Arthur filed a temporary restraining order on April 1, 2002. The district court issued its order on July 1, 2002, initially dissolving all prior restraints on the property. However, the order indicated that Ruby was restrained from ‘gifting or spending one-half of the joint tenants’ personal property.’ Ruby was allowed to make estate plans and testamentary dispositions. Arthur was instructed to post a supersedeas bond in the amount of $152,674 to cover 125 percent of the value of the Ameritas life insurance policy and the Van Kampen fund which were at the disposal of Arthur or Susan.
“On July 15, 2002, Arthur filed a motion with this court to modify the July 1, 2002, stay of enforcement of the judgment entered by the district court. This court instructed the district court to hold a hearing for the limited purpose of determining: (1) whether an accounting of assets should be ordered; (2) whether property should be redistributed to restore the parties’ interests; and (3) which measures, if any, should be taken to protect those interests during the pendency of the appeal. A hearing was held on August 29, 2002. The parties were unable to agree on a journal entry and the case was reset for a hearing on November 6, 2002.
“On November 7, 2002; the district court issued its order listing certain assets to be restrained from any direct or indirect acts intended to liquidate, retitle, transfer, or remove them from the jurisdiction of the court.
“In addition, the district court denied Arthur’s request for restoration of Sheryl’s one-half interest in the joint tenancy property. Counsel for the parties were ordered to immediately provide a copy of the district court’s order to all entities and individuals to ensure that the orders concerned with the restrained property are followed.” Nicholas v. Nicholas, 31 Kan. App. 2d 457, 462-63, 66 P.3d 929 (2003).
On appeal, a majority of the Court of Appeals panel affirmed the.district court. Nicholas, 31 Kan. App. 2d at 459. In finding that Sheryl’s actions violated the restraining order, the majority held: “A restraining order that restrains divorcing parties from disposing of any asset except in the normal course of business, restrains the parties from changing (1) beneficiary designations on insurance policies; (2) joint tenancies to tenants in common; (3) transfer on death designations; or (4) pay on death designations.” 31 Kan. App. 2d at 465-66. Chief Judge Rulon concurred in part and dissented in part, stating that Ruby’s claims against Arthur and Susan were not properly before the court because the trial court never ruled on Ruby’s motion to amend her answer. Furthermore, according to Chief Judge Rulon, because Susan and Arthur were never properly made parties to the case, it violated due process for the trial court to issue an order altering title to property now held by them as nonparties. 31 Kan. App. 2d at 475-77.
Standard of Review
This court’s standard in reviewing summary judgment has been frequently stated:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
In this case, the material facts are not in dispute. Rather, it is the legal conclusions of the trial court and the Court of Appeals that are at issue. Our review of conclusions of law is unlimited. Wear v. Mizell, 263 Kan. 175, 177, 946 P.2d 1363 (1997).
Did the Trial Court and Court of Appeals Err in Ruling That Transfers Made Contingent Upon One Spouse’s Death Dispose of Marital Assets in Violation of a Restraining Order Issued Pursuant to K.S.A. 2002 Supp. 60-1607?
Resolution of this case requires a determination of the effect of the restraining .order and the statute authorizing the order, K.S.A. 2002 Supp. 60-1607(a)(l). The order provided that “neither party shall dispose of any asset of the parties except in the normal course of business.” K.S.A. 2002 Supp. 60-1607(a)(l) authorizes the trial court to issue an interlocutory order after the filing of divorce to “[j]ointly restrain the parties with regard to disposition of the property of the parties and provide for the use, occupancy, management and control of that property.”
Arthur, as executor of Sheiyl’s estate, first argues that the restraining order did not cover the accounts held in Sheiyl’s name only and the life insurance for which he was the policyholder and owner. The Court of Appeals noted that, pursuant to K.S.A. 2002 Supp. 23-201(b), all property owned at the commencement of a divorce action becomes marital property regardless of how it is titled and each spouse has a vested interest in the property, the extent of which must be determined and finalized by the court. Nicholas, 31 Kan. App. 2d at 465. Arthur asks this court to reject that view, arguing that K.S.A. 2002 Supp. 23-201(b) only creates a common ownership right in marital property “at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment.” (Emphasis added.) Because no final decree was entered in this case, Arthur contends the statute does not apply. This argument ignores the fact that the restraining order, which was in effect pursuant to K.S.A. 2002 Supp. 60-1607, jointly restrained the parties from disposing of any asset of the parties. Further, as stated in Cady v. Cady, 224 Kan. 339, 581 P.2d 358 (1978):
“The filing for divorce, however, has a substantial effect upon the property rights of the spouses. At that moment'each spouse becomes the owner of a vested, but undetermined, interest in all the property individually or joindy held. The court is obligated to divide die property in a just and equitable manner, regardless of the title or origin of the property. [Citations omitted.]
“We hold that the filing of a petition for divorce or separate maintenance creates a species of common or co-ownership in one spouse in the jointly acquired property held by die other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-1610(b). Except for those rights which vest by virtue of the filing of the divorce action, we in no way change the interest of one spouse in die property held by the other, or in the ability of the other spouse to convey, sell or give away such property.” 224 Kan. at 344.
Applying this analysis, this court in Wear held that, under the facts of the case, life insurance “policies and the right to receive the insurance proceeds upon the death of the insured are marital property within the meaning of K.S.A. 23-201(b).” 263 Kan. at 179. Also, by operation of K.S.A. 2002 Supp. 23-201(b), the various bank and money market accounts at issue were within die marital estate for the purpose of dividing assets at the time of the divorce.
Next, Arthur, acting as executor of Sheryl’s estate, cites the common definition of “dispose” and authority from other states to support his argument that Sheryl did not violate the restraining order because he did not “dispose” of any property. The Court of Appeals rejected this argument and concluded: “Even though the actual transfer would not take place until death, these items had value at the time the changes were made and such transfers affect the value of the marital estate. . . . The marital estate was diminished in value by these changes.” Nicholas, 31 Kan. App. 2d at 470. The court also noted that K.S.A. 2002 Supp. 23-201(b) states that marital property is all property “owned” by the parties and “ownership” is defined to include the right to convey property to others. 31 Kan. App. 2d at 470.
Ruby, in asking us to affirm the Court of Appeals, and Arthur, in asking us to reverse the lower courts, quote portions of our decision in Wear as support for their positions. In Wear, William and Arilla Wear purchased two life insurance policies for Arilla naming William as beneficiary. After filing for divorce, Arilla changed the beneficiary on both policies from William to her par ents. Axilla was killed in a cax- accident before the divox'ce was finalized. No restraining order was issued as part of the divorce proceedings. The trial court ruled that William was not entitled to equitable relief and this couxt affirmed. The Wear court also noted that there was no restraining order, no property settlement agreement, and no divorce decree. The divorce action abated at Axilla’s death. 263 Kan. at 180. And, where thex-e is no divorce, there is no division of property. 263 Kan. at 184.
The Wear court recognized that the issue presented in this case, whether a standard restraining order prohibits a beneficiaxy change, has not been ruled upon in Kansas. Wear only held that where there was no restraining order at all, there was no prohibition against a change of beneficiaxy.
The Wear court noted William’s reliance on Willoughby v. Willoughby, 758 F. Supp. 646 (D. Kan. 1990), a case involving similar facts, but found that case to be distinguishable. In Willoughby, the court held that a standard restraining order issued in a divorce prevented the husband from changing beneficiaries on his life insurance policy. This court stated: “The heart of the Willoughby decision is the finding that the beneficiaxy change violated the restraining order. All of the cases from other jurisdictions relied upon in Willoughby involved beneficiaxy changes that violated restraining orders or decrees.” 263 Kan. at 182.
The Wear court noted that Willoughby involved a general restraining order while some cases from other jurisdictions involved restraining orders that expressly mentioned life insurance policies. The court noted the split of opinion in various jurisdictions as described in Annot., Divorce and Separation: Effect of Court Order Prohibiting Sale or Transfer of Property on Party’s Right to Change Beneficiary of Insurance Policy, 68 A.L.R.4th 929, § 3. The court also quoted 4 Couch on Insurance 3d § 64.20 (1996):
“ ‘A temporary restraining order or injunction obtained in order to prevent an insured spouse from transferring property during pendency of divorce proceedings may also preclude the insured from changing beneficiary during pendency of suit, notwithstanding that no precise reference was made to life insurance policies. Any such temporary order is effective only as to actions taken after the order is made, and cannot invalidate the insured’s prior change of beneficiary in ac cordance with the rights and procedures under the policy terms.''' 263 Kan. at 182.
However, the Wear court stated: “The better practice is to specifically reference a prohibition against a beneficiary change in a marital property restraining order.” 263 Kan. at 181. Ruby and the Court of Appeals rely upon this statement to mean that an order specifically mentioning change of beneficiaries is not necessary.
Arthur particularly relies upon the concluding sentence of Wear, which states: “Absent entry of a K.S.A. 60-1607 order restraining the parties-from changing beneficiaries on life insurance policies, K.S.A. 23-201(b) imposes no restrictions on either party from making such changes during the pendency of the divorce.” 263 Kan. at 184. Arthur argues that this language means that a general restraining order does not prohibit the action he took and that to prevent a change of or designation of beneficiaries, one must seek a specific order.
Additionally, Arthur notes that many, if not most, of the out-of-state cases which have considered the issue have upheld beneficiaiy changes made while a general restraining order was in effect during the pendency of a divorce. See Gorman-English v. Estate of English, 849 P.2d 840, 843 (Colo. App. 1992) (change of beneficiary designation on life insurance policy not a conveyance or disposal of marital assets in violation of preliminary injunction; only cash surrender value of policy was frozen by injunction). Gleed v. Noon, 415 Mass. 498, 500-01, 614 N.E.2d 676 (1993) (change of life insurance beneficiary not a conveyance, transfer, or disposal of proceeds; no violation of temporary restraining order); Bell v. Bell, 896 S.W.2d 559, 562, 565 (Tenn. App. 1994) (wife as prior beneficiary had mere expectancy in decedent’s life insurance policies; restraining order entered in divorce proceedings did not prohibit beneficiary change); Lindsey v. Lindsey, 342 Pa. Super. 72, 79, 492 A.2d 396 (1985) (change of beneficiary designation on life insurance policy not a conveyance or disposal of marital assets in violation of preliminary injunction; only cash surrender value of policy was frozen by injunction).
In a variation on these cases, some courts have held that, even if the beneficiary change violated a restraining order, imposition of a constructive trust is not warranted absent some kind of unconscionable or wrongful conduct. E.g., Wilharms v. Wilharms, 93 Wis. 2d 671, 679-80, 287 N.W.2d 779 (1980) (temporary restraining order did not specifically mention insurance policy and husband may have thought he was acting properly in changing beneficiary; “[e]ven so, if it can be shown that he changed beneficiaries in the policies in order to defraud, or otherwise unconscionably deprive his wife of the policy proceeds, then his actions may warrant the imposition of a constructive trust”); Balfany v. Balfany, 239 Neb. 391, 398, 476 N.W.2d 681 (1991) (“violation of a restraining order, standing alone, is insufficient for imposition of a constructive trust on property which is subject to the restraining order”).
On this issue, the United States District Court of Kansas has stated:
“[T]he court does not believé that Kansas has of would adopt a rule that an insured’s act of changing a beneficiary while subject to a temporary restraining order restraining the parties to a divorce action from selling, encumbering or disposing of the parties’ property, automatically results in the voidance of the insured’s change in the designation of the beneficiary.” Pope v. Cauffman, 885 F. Supp. 1451, 1456 (D. Kan. 1995).
In addition to these decisions dealing with life insurance, there are decisions addressing designations on POD and TOD accounts. See, e.g., Estate of Westfall v. Westfall, 942 P.2d 1227, 1230 (Colo. App. 1996) (wife’s designation of brother as POD beneficiary not a violation of restraining order).
To analyze which line of authority is most persuasive requires examination of the role and purpose of the restraining order. In Wear it was stated that the purpose of the restraining order is to preserve the “status quo between the divorcing parties as to marital property.” 263 Kan. at 179. The restraining order serves the short-term need of resolving disputes regarding use and control of property while the divorce is pending and the long-term goal of maintaining the court’s adjudicatory control over the property. The purpose of the latter goal is to preserve the marital estate until the court enters the final property division. To accomplish this goal, K.S.A. 2002 Supp. 60-1607(a)(l) allows the court to enter an order which (1) prohibits disposing of property and (2) provides for the use, occupancy, management, and control of the property. However, there is no automatic freezing of assets; rather, the specifics of the order control. The order may prohibit the parties from disposing of assets or allow disposition under certain terms, such as the order in this case which allowed the parties to dispose of assets in the normal course of business. The order may also specify certain terms regarding the use, management, occupancy, or control of property.
Within the context of estate planning, other courts have recognized that the purpose of statutes such as K.S.A. 2002 Supp. 60-1607(a)(1) is not to “freeze each party’s estate plan as of the date of the filing” of the divorce action, rather it “is to forbid actions by either party that would dissipate the property of the marital estate or place it beyond the court’s adjudicatory power in the dissolution proceeding.” Lonergan v. Strom, 145 Ariz. 195, 200, 700 P.2d 893 (Ct. App. 1985). See Benson v. District Court, 57 Idaho 85, 91-92, 62 P.2d 108 (1936); Girardi v. Girardi, 140 App. Div. 2d 486, 487, 528 N.Y.S.2d 397 (1988); Lindsey v. Lindsey, 342 Pa. Super. 72, 76, 492 A.2d 396 (1985); Dyer v. Dyer, 87 S.W.2d 489, 490 (Tex. Civ. App. 1935); In re Knickerbocker, 912 P.2d 969, 976 (Utah 1996).
In this case, the restraining order did not limit the use or control of the property in question, at least in a way which affects the issues in this case. Thus, the question is whether Sheryl’s actions disposed of the property. An appropriate test for this determination is that recognized in the above-cited cases: whether the action affected the value of the marital estate or placed the property outside the adjudicatory power of the court. Sheryl’s action did not change the value of the marital estate and did not do anything that would prevent the court from having power over the property for purposes of property division.
Ruby, like William in the Wear case, had no vested interest in. the insurance policy because “ ‘[a] beneficiary has only an inchoate right to the proceeds of a policy, subject to being divested at any time during the lifetime of the insured, by transfer, assignment, or change of beneficiary.’ ” 263 Kan. at 178 (quoting Hollaway v. Selvidge, 219 Kan. 345, 349, 548 P.2d 835 [1976]). Had Ruby and Sheryl not been parties in an action for divorce, Sheryl could have changed the beneficiary designation. The same is true of the POD and TOD accounts. K.S.A. 2002 Supp. 9-1215 provides that the owner of a POD bank account retains the right “to change the designation of beneficiary” and also specifies that the “interest of the beneficiaiy shall be considered not to vest until the death of the owner.” A TOD or POD designation on a security “has no effect on ownership until the owner’s death” and a registration of a security in beneficiary form may be canceled or changed at any time without the beneficiary’s consent. K.S.A. 17-49a06. Contrary to the Court of Appeals’ conclusion, when Ruby filed for divorce, K.S.A. 2002 Supp. 23-201(b) did not change Sheryl’s ability to convey or give away property. See Cady, 224 Kan. at 344. That is why a restraining order is necessary under K.S.A. 2002 Supp. 60-1607(a)(1) to prevent the disposal of property.
Furthermore, had the divorce been granted before Sheryl’s death, Ruby’s interest in the property and its value to the estate remained within the adjudicatory power of the court. Pursuant to K.S.A. 2002 Supp. 60-1610(b)(l), the district court would have had the power to divide the property, including granting the cash value or appropriate balances to Ruby, or to order Sheryl to change the beneficiary designations he had previously made. The statute provides:
“The decree shall divide the real and personal property of the parties, including any retirement and pension plans, whether owned by either spouse prior to marriage, acquired by either spouse in the spouse’s own right after marriage or acquired by the spouses joint efforts, by: (A) a division of the property in land; (B) awarding the property or part of the properly to one of the spouses and requiring the other to pay a just and proper sum; or (C) ordering a sale of the property. . . and dividing the proceeds of the sale. . . . The decree shall provide for any changes in beneficiary designation on: (A) Any insurance or annuity policy that is owned by the parties, or in the case of group life insurance policies, under which either of the parties is a covered person; (B) any trust instrument. . .; or (C) any transfer on death or payable on death account under which one or both of the parties are owners or beneficiaries.” K.S.A. 2002 Supp. 60-1610(b)(l).
The Court of Appeals held Sheryl’s actions changed the value of the estate. It did change the value of the estate which Ruby re ceived upon Sheryl’s death. However, changing or designating a beneficiary did not change the cash value of the insurance policy or the account balances and, therefore, did not change the value of the marital estate for divorce purposes. The appropriate inquiiy is only the impact upon the marital estate, and Sheryl’s beneficiary designations had no impact until his death. At that point, the divorce action abated and there remained no action for division of the marital estate. Wear, 263 Kan. at 184. Ruby no longer had a vested interest in the property pursuant to K.S.A. 2002 Supp. 23-201. .
We hold that Sheryl did not dispose of property by changing or designating a beneficiary on the TOD or POD accounts or changing the beneficiary on the life insurance policy. Under the provision of K.S.A. 2002 Supp. 60-1607(a)(l) allowing a court to issue an order providing for the use, management, and control of property, the district court had the power to prohibit Sheryl or Ruby from making a change of beneficiary designation, but no such order was entered in this case.
Did the Court of Appeals Err in Ruling That Sheryl Did Not or Could Not Unilaterally Sever the Joint Tenancy Property ?
Arthur contends that Sheryl severed all joint tenancies with Ruby on real and personal property and that the Court of Appeals erred in finding that the restraining order barred Sheryl from unilaterally severing the joint tenancies. He points out that other states have recognized that a spouse may sever a joint tenancy with another spouse during a pending divorce proceeding without violating the intent of a restraining order. See In re Knickerbocker, 912 P.2d 969. Arthur’s petition alleged that Sheryl had severed the joint tenancy interests he and Ruby held in both real and personal property. Arthur contends that Sheryl severed the joint tenancy interests by (1) executing his July 2000 will; (2) creating a revocable trust and transferring property into that trust; (3) changing the beneficiary on his life insurance policy and making TOD and POD designations in favor of his children; (4) filing a motion to sever the joint tenancies in the divorce proceedings; (5) negotiating and executing a property settlement agreement; and (6) making re peated statements to family, friends, lawyers, and health care providers that he wanted his children to inherit his property.
Ruby contends that Sheryl’s attempts to sever die joint tenancies were insufficient and the restraining order prevented severance.
We find that Sheiyl did not sever the joint tenancies on the property in question and, consequently, did not violate the restraining order. Because we reach this holding, we do not decide the broader issue of whether severance of a joint tenancy violates a restraining order which prohibits the disposal of property.
The Court of Appeals correctly determined that execution of a will cannot unilaterally terminate a joint tenancy. “It is hornbook law that neither joint tenant can, without the consent of the other, dispose of his interest in the joint property by will and thereby defeat the right of survivorship.” In re Estate of Laue, 225 Kan. 177, 185, 589 P.2d 558 (1979). Arthur relied upon Berry v. Berry, 168 Kan. 253, 212 P.2d 283 (1949), which held that a husband and wife had severed a joint tenancy by executing joint and mutual wills contractually providing that at the death of one spouse, the other would inherit a life estate in property held in joint tenancy. The Court of Appeals correctly found Berry to be distinguishable because Sheryl’s 2000 will was not a mutual and contractual will. Nicholas, 31 Kan. App. 2d at 469.
Arthur also argues that Sheryl severed the joint tenancy interests, or showed his intent to do so, by designating his children as beneficiaries of his life insurance policy and several accounts. While the beneficiary designations might constitute evidence of Sheryl’s intent as to those particular accounts, Sheryl maintained he held those accounts individually and not in joint tenancy. Making a beneficiary designation on one account does not constitute evidence of intent to sever a joint tenancy interest in a different account.
Next, Arthur contends Sheryl severed the joint tenancy interests by negotiating and executing a settlement agreement with Ruby. The Court of Appeals rejected this argument, finding that the settlement agreement was not binding because it was not signed by Ruby or approved by the district court. Nicholas, 31 Kan. App. 2d at 467. Arthur has not challenged this portion of the Court of Appeals’ ruling in his petition for review.
Arthur also contends that Sheiyl severed the joint tenancies by filing a motion to that effect in the divorce proceedings. The district court never ruled on Sheryl’s motion because Sheryl’s counsel reserved argument on the motion. In Hall v. Hamilton, 233 Kan. 880, 884, 667 P.2d 350 (1983), this court quoted the following statement from 20 Am. Jur. 2d, Cotenancy and Joint Ownership § 20 (now § 29):. “ ‘[T]he mere commencing of an action for partition of joint-tenancy property does not serve to terminate tire tenancy; only the judgment or decree has that effect.’ ” Filing a motion to sever joint tenancies is analogous to bringing a partition action. We conclude the same rule should apply and hold that the bringing of the action did not sever the joint tenancy where no judgment was entered.
Additionally, Arthur points to Sheryl’s repeated statements to family, friends, and lawyers as evidence of his intent to sever the joint tenancies. Citing Campbell v. Black, 17 Kan. App. 2d 799, 844 P.2d 759 (1993), Arthur asserts that a simple expression of intent alone is sufficient to sever a joint tenancy. This is not the holding in Campbell. In Campbell, the Court of Appeals held: “[A] joint tenancy may be terminated (1) by mutual agreement of the parties, (2) by course of conduct indicating tenancy in common, or (3) by operation of law upon destruction of one or more of the required unities (time, title, interest, and possession).” 17 Kan. App. 2d at 804. The Campbell court considered the decedent’s intent in determining whether the decedent’s actions were sufficient to sever the joint tenancy, concluding that the decedent had effectively terminated the joint nature of several accounts by directing the institutions holding those accounts to convert all funds to her sole ownership. The court also considered the decedent’s contemporaneous will as evidence of her intent. 17 Kan. App. 2d at 803-04. This approach is consistent with the modern trend of looking to the parties’ intent as the operative test of whether a joint tenancy has been severed rather than depending upon the traditional doctrine of the four unities. See Helmholz, Realism and Formalism in the Severance of Joint Tenancies, 77 Neb. L. Rev. 1 (1998). However, contrary to Arthur’s argument, intent alone will not sever the joint tenancy. Sheryl’s intent is irrelevant if he took no effective action.
The only remaining issue is whether Sheryl’s transfer of property into a revocable trust severed the joint tenancies. In the trust agreement, Sheryl conveyed the following property listed in Schedule A to himself as trustee:
“1. All of the Grantor s tangible personal property in and about Grantor’s place of residence, now owned and hereafter acquired by Grantor, and all other tangible personal property, of whatsoever kind or wheresoever located, now owned and hereafter acquired by Grantor, including but not limited to miscellaneous household goods, furnishings and equipment, and jewelry, and all other tangible personal property owned by the Grantor that does not have a certificate of title.
“2. Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, Block 3 Palmer’s Second Addition to the City of LaHarpe, Allen County, Kansas, together with any and all other real estate that the Grantor may own in the State of Kansas.”
The trust agreement also included a “Declaration of Trust Ownership” stating that Sheryl held the following property in trust:
“Any and all properties of all kinds, whether tangible or intangible, whether presently owned or hereafter acquired (regardless of the means by which acquired), and wherever situated, including, without limitation:
Bank accounts (checking, savings, certificates of deposit, etc.),
Tenancies in safe deposit boxes,
Mutual and money market funds of all kinds,
Securities (stocks, bonds, treasury bills, notes receivable, etc.),
Agency and custody accounts (at banks, brokerage firms, etc.), and
Real property wheresoever located (mortgages, land contracts, leaseholds, mineral interests, etc.), oil and gas interests (including royalty interests) which now and at any time after the date of this instrument are either registered or titled in the name of Grantor in Grantor’s individual capacity (regardless of whatever variation of Grantor’s name may be employed), whether as a sole owner or in co-ownership with any other person or persons or entities, except and for so long as Grantor holds any such property in joint tenancy loith rights of survivorship between or among Grantor and any other joint tenant( s).” (Emphasis added.)
The declaration further provided: “This declaration does not affect or revoke any payable-on-death or transfer-on-death designation with respect to any property that is now in effect; any property subject to such a designation shall be paid or distributed upon Grantor’s death to the beneficiaries so designated.”
By the trust’s own terms, it did not include any property held in joint tenancy. Therefore, unless Sheryl effectively severed the joint tenancies before creating the trust, creation of the trust itself did not have that effect. As discussed earlier, none of Sheryl’s other actions had the effect of severing the joint tenancies.
Since Sheryl’s actions were not effective in severing the joint tenancies, we need not reach the issue of whether severance of joint tenancy is a violation of a restraining order issued pursuant to K.S.A. 2002 Supp. 60-1607.
Further, because we reverse the Court of Appeals’ and the trial court’s determinations that there was a violation of the restraining order, we need not address Arthur’s request that we adopt the dissent of Chief Judge Rulon and hold that the trial court’s ruling violated due process because it sought to alter title to assets held by nonparties, Arthur and Susan.
Did.the Court of Appeals Err in Ruling That Sheryl’s Invasion of Privacy Action Abated at His Death?
Finally, Arthur argues that the Court of Appeals erred in ruling that Sheryl’s invasion of privacy action abated at his death. He points out that K.S.A. 60-1802 does not list invasion of privacy as one of those actions which abates upon the death of a party.
Both the district court and the Court of Appeals relied upon Burroughs v. Thomas, 23 Kan. App. 2d 769, 937 P.2d 12, rev. denied 262 Kan. 959 (1997), in holding that Sheiyl’s invasion of privacy action did not survive his death. In Burroughs, a surviving spouse sought disclosure of the coroner’s investigative records regarding the deceased spouse. The district court found the investigative records were public records subject to disclosure under the Kansas Open Records Act, K.S.A. 45-215 et seq. On appeal, the coroner argued that the records were exempt under K.S.A. 45-221(a)(30), which provides that an agency is not required to disclose “[pjublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” The Burroughs court rejected the coroner’s argument, stating: “The Kansas survival of actions statute, K.S.A. 60-1801, does not provide for survival of a cause of action for invasion of privacy, which generally may only be claimed by the person whose privacy was invaded.” 23 Kan. App. 2d at 772.
Arthur accurately points out that this language is dicta. The question in Burroughs was whether certain records were subject to public disclosure as open records; no action for invasion of privacy was involved. Furthermore, the Burroughs court cited no authority for its conclusion that a cause of action for invasion of privacy does not survive a party’s death.
Whether a cause of action survives a party’s death is governed by K.S.A. 60-1801 and K.S.A. 60-1802, which provide as follows:
“In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.” (Emphasis added.)
“No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution or for a nuisance.”
In Gross v. VanLerberg, 231 Kan. 401, 405, 646 P.2d 471 (1982), this court held that “whether a particular cause of action survives the death of a party is to be determined by K.S.A. 60-1801. K.S.A. 60-1802 simply provides the procedure for the continuation of an action by substitution of parties in cases where the cause of action survives the death of a party.” Thus, the question to be resolved is whether the language of K.S.A. 60-1801, which provides for the survival of causes of action for injury to the person, is sufficiently broad to encompass a cause of action for invasion of privacy.
Arthur points out that other jurisdictions have found the language “injuries to the person” in survival statutes to be broad enough to encompass invasion of privacy. K.S.A. 60-1801 contains the same language. In support, he cites Reed v. Real Detective Pub. Co., 63 Ariz. 294, 300-01, 162 P.2d 133 (1945), and Allred v. Solaray, 971 F. Supp. 1394, 1398 (D. Utah 1997). Neither case provides direct support for Arthur’s argument.
In Reed, the Arizona Supreme Court interpreted an Arizona survival statute which provided that an action “for injuries to the per son . . . shall not abate by reason of the death of the defendant.” The court explained that “injuries to the person” did not encompass all “personal injuries” and distinguished between injuries to the person and injuries to the person’s reputation. 63 Ariz. at 300-01. The court found that a claim for libel was a claim for injury to the reputation and did not survive but that a claim for invasion of privacy, which was alleged to have caused mental suffering to the plaintiff, was an injury to the person and did survive. Thus, the court held that the plaintiff s cause of action for violation of the right to privacy was a personal action which could be revived against the estate of the deceased defendant. 63 Ariz. at 301-06.
Notably, it was the defendant in Reed who had died, not the plaintiff, and the statute at issue provided for causes of action which survived a defendant’s death, not a plaintiff s. It is not clear that the Reed court would have reached the same conclusion if the plaintiff had died, for the court recognized that an invasion of privacy action “is a personal action which does not survive the death of the injured party.” 63 Ariz. at 304.
In Allred v. Solaray, Inc., the United States District Court interpreted Utah law in determining that an employee’s claims under the Americans with Disabilities Act did not survive his death. The Utah survival statute provided that “[cjauses of action arising out of personal injury to the person ... do not abate upon the death of the . . . injured person.” Utah Code Ann. § 78-ll-12(l)(a) (1996). The court cited Reed for the premise that injuries to the person do not necessarily mean only physical injuries; mental suffering may also be included. However, the court also concluded that the term “personal injury to the person” did not include claims for injury to a person’s rights, reputation, or property. Because an ADA claim is not a claim of injury to the person, but rather a claim of injury to the person’s rights or reputation, the court held ADA claims do not survive a plaintiffs death under Utah law. 971 F. Supp. at 1398.
Ruby, on the other hand, cites Carter v. City of Emporia, Kan., 543 F. Supp. 354 (D. Kan. 1982), in support of her argument that Sheryl’s invasion of privacy action abated at his death. In Carter, the United States District Court interpreted K.S.A. 60-1801 and 60-1802, stating: “K.S.A. 60-1802 provides that claims for libel, slander and malicious prosecution, which are personal in nature, abate at the death of the party making such claims.” 543 F. Supp. at 356. The court found that the plaintiffs claim under 42 U.S.C. § 1981 (1982) “for denial of rights on the basis of race” was similarly personal in nature and therefore abated. 543 F. Supp. at 356.
The analysis of Carter is consistent with the general rule that an action for invasion of privacy is personal in nature and must be brought by a living person who was the subject of that invasion of privacy. In this case, the Court of Appeals noted that even a close relative may not recover for the invasion of privacy of another, citing 62A Am. Jur. 2d, Privacy § 20, p. 650. 31 Kan. App. 2d at 474. That publication also states: “The general rule that an action for invasion of privacy may be brought only by the person who was the actual subject of the invasion of privacy, and not by other persons such as members of his or her family, applies in cases where the subject is deceased.” 62A Am. Jur. 2d, Privacy § 21, p. 651.
In Dotson v. McLaughlin, 216 Kan. 201, 208, 531 P.2d 1 (1975), this court adopted the Restatement (Second) of Torts analysis of the right to privacy and directed “that the courts of this state should follow it in fixing the boundaries for its protection.” Restatement (Second) of Torts § 6521 (1976) provides: “Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.” The comments explain:
“a. The right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. The cause of action is not assignable, and it cannot be maintained by other persons such as members of the individual’s family, unless their own privacy is invaded along with his. The only exception to this rule involves the appropriation to the defendant’s own use of another’s name or likeness. (See § 652C, particularly Comment a).
“b. In the absence of statute, the action for the invasion of privacy cannot be maintained after the death of the individual whose privacy is invaded. In a few states particular statutes permit the survival of an action for invasion of privacy that has occurred before death. In a smaller number of states there is statutory authorization for an action on the part of surviving relatives for invasion of the privacy of one who is already deceased, with the invasion occurring after his death. Since appropriation of name or likeness is similar to impairment of a property right and involves an aspect of unjust enrichment of the defendants or his estate, survival rights may be held to exist following the death of either party.”
Kansas statutes contain no specific language referencing actions for invasion of privacy. If the action survives, it does so under the language of the general statute allowing for injuries to the person. Some courts have rejected arguments that general references to survival of actions are sufficient to keep the invasion of privacy claim from abating. In Mineer v. Williams, 82 F. Supp. 2d 702 (E.D. Ky. 2000), the court rejected an argument similar to Arthur s:
“Plaintiff argues that the need for a statute to preserve her privacy right of action is met by Ky. Rev. Stat. § 411.140, supra, which preserves all rights of action after the death of the claimant ‘except actions for slander, libel, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for personal injury.’
“Plaintiff invokes the ancient maxim expressio unius est exclusio alterius (the mention of one thing implies the exclusion of other things not mentioned). She argues that tire specific mention of actions for libel and slander as abating with the death of the injured person, with no mention of privacy, implies that an action for privacy should survive.
“The court holds, however, that there was no need to mention the right of privacy action specifically because one of its essential elements is that only a living person can sue for invasion of privacy. Restatement of Torts (Second) § 652, supra.” 82 F. Supp. 2d at 705.
Other courts have noted that this element requiring a living person to bring the action is important in privacy actions “[bjecause the alleged injuries are so personal, a jury would have to guess on the extent and nature of the decedent’s emotional devastation, humiliation and ostracism without his presence and testimony at trial.’’ Estate of Benson v. Minn. Bd. of Med., 526 N.W.2d 634, 637 (Minn. App. 1995).
Consistent with our approach to defining the parameters of a right to privacy action by following the Restatement (Second) of Torts, we hold an invasion of privacy action as stated in this case for intrusion upon seclusion does not survive the death of the alleged victim.
Motion for Substitution of Surety on Supersedeas Bond
On October 7, 2003, Ruby filed a motion asking this court to require substitution of the surety on Arthur’s supersedeas bond. Arthur’s attorney currently serves as surety. Ruby argues this violates Supreme Court Rule 114 (2003 Kan. Ct. R. Annot. 168), which provides that no attorney may act as surety on a bond in a case in which the attorney is counsel. Arthur filed a response arguing that Supreme Court Rule 114 only applies to bonds taken by a clerk or sheriff. Because the district court approved the bond in this case, Arthur contends Rule 114 does not apply.
Rule 114 provides in its entirety:
“Whenever any bond is permitted or required to be taken by a clerk or sheriff in accordance with the provisions of Chapter 60 without being approved by the court, it shall be sufficient if the surety thereon is a surety company currently admitted to do business in the State of Kansas. No corporation other than a surety company may be accepted as a surety unless so ordered and approved by the judge. Whenever a natural person is accepted and approved as a surety by a clerk or sheriff, the surety shall be required to attach to the bond a sworn financial statement which reasonably identifies the assets relied upon to qualify him as surety and the total amount of any liabilities, contingent or otherwise, which may affect his qualifications as a surety. No attorney or the attorney’s spouse may act as a surety on a bond in any case in which the attorney is counsel. The principal on any bond may at his option, in lieu of providing a surety, deposit with the clerk of the district court cash money in the full amount of the bond. The deposit shall be retained by the clerk until the bond is fully discharged and released or the court orders the disposition of the deposit.” (Emphasis added.) (2003 Kan. Ct. R. Annot. 168-69.)
Although the first sentence of Rule 114 applies only to bonds “permitted or required to be taken by a clerk or sheriff in accordance with the provisions of Chapter 60 without being approved by the court,” the remainder of the rule is not limited to those particular types of bonds. The sentence relied upon by Ruby, which prohibits an attorney from acting as surety in a case in which the attorney is counsel, stands alone. Ruby’s motion for substitution of the surety, therefore, has merit and is granted. If there are further proceedings on appeal or otherwise requiring a surety, Arthur must obtain a different surely on his supersedeas bond.
Affirmed in part, reversed in part, and remanded.
Davis and Beier, JJ., not participating.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
Brian Keith McAdam was convicted by a jury of conspiracy to unlawfully manufacture methamphetamine, attempted theft, attempt to unlawfully possess anhydrous ammonia, and conspiracy to unlawfully possess anhydrous ammonia. He was sentenced to 173 months in prison. The Court of Appeals affirmed the convictions of conspiracy to unlawfully manufacture methamphetamine and attempted theft, reversed the convictions of attempt to unlawfully possess anhydrous ammonia and conspiracy to unlawfully possess anhydrous ammonia, remanded for resentencing in accordance with reversal of those convictions, and affirmed the drug severity level 1 felony penalty for conspiracy to unlawfully manufacture methamphetamine. State v. McAdam, 31 Kan. App. 2d 436, 66 P.3d 252 (2003). This court granted McAdam’s petition for review and denied the State’s cross-petition for review. Therefore, our review is limited to the issues of determining the sufficiency of the evidence to support McAdam’s convictions of conspiracy to unlawfully manufacture methamphetamine and attempted theft and whether McAdam was illegally sentenced for conspiracy to unlawfully manufacture methamphetamine.
McAdam was staying at the home of his friend, Marcus Maley, who lived with his girlfriend. Maley and McAdam agreed to manufacture methamphetamine. When they had made methamphetamine before, Maley had helped McAdam by doing tasks like removing ephedrine pills from blister packaging and poking holes in cans of ether.
On this occasion, they had everything they needed to make methamphetamine except anhydrous ammonia. Before Maley and McAdam left Maley’s residence to steal anhydrous ammonia from the Kincaid Co-op, they were joined by Casey Carter. Also before leaving Maley’s house, they placed the materials that they were going to use for manufacturing methamphetamine into the trunk of Maley’s girlfriend’s vehicle because Maley would not allow the manufacturing to be done where he lived. They were going to use his girlfriend’s vehicle rather than Maley’s because his was well known in the area.
At approximately 9:30 or 10 p.m., Maley, McAdam, and Carter drove to the Kincaid Co-op to get anhydrous ammonia. Maley drove his vehicle, Carter sat in the front passenger seat, and McAdam sat in the back. Maley and McAdam brought along two water jugs to carry the anhydrous ammonia and a large cooler. They also had a couple of scanners, some night vision goggles, and wal kie-talld.es. According to Maley, McAdam had no particular responsibility during the trip, but Maley testified that the three were worldng together and he went to the Co-op because that was part of tire agreed-on plan. When they arrived at the Kincaid Co-op, Carter got out of the vehicle to steal the anhydrous ammonia.
Deputy Max Skelton was at the Kincaid Co-op checldng on the anhydrous ammonia tanks when he smelled anhydrous ammonia and saw a man running away from the tanks toward the trees. As Skelton was driving to the road to cut the man off, he saw a vehicle’s headlights come on. The vehicle was driven slowly toward the deputy, who turned around and stopped it. Maley was driving the vehicle, and McAdam was in the back seat.
A second officer, Undersheriff Darin Dalsing, got consent from Maley to search the vehicle. In the trunk, there was an ice chest containing a single water jug that smelled of anhydrous ammonia and a margarine container with an orange powder residue. It smelled of ether and later tested positive for methamphetamine. There were scanners, a fist of scanner frequencies, a walkie-talkie, and night vision goggles in the passenger compartment.
In an effort to stay out of jail, Maley told Dalsing that he could give him McAdam’s methamphetamine lab. Maley gave the officers consent to search his residence and his girlfriend’s vehicle. In the trunk of her vehicle, the officers found a shotgun, starting fluid, coffee filters, a face mask, lithium batteries, rock salt, drain opener, a weed sprayer, propane bottles, a heater, a 2-liter bottle full of ether, a digital scale, rubber gloves, and 10 bottles of ephedrine tablets. A few days later, a Kincaid Co-op employee found two water jugs, one of which was half full of anhydrous ammonia, in some trees in the vicinity of tire anhydrous ammonia tanks.
We first determine if there was sufficient evidence from which a rational factfinder could find McAdam guilty of conspiracy to commit manufacture of methamphetamine.
K.S.A. 21-3302(a) provides:
“A conspiracy is an agreement with another person to commit a crime or to assist in committing 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 such person or by a co-conspirator.”
In this case, the jury was instructed that the following claims had to be proved in order to establish the charge of conspiracy to commit unlawful manufacture of methamphetamine: (1) McAdam agreed with another person to manufacture methamphetamine, (2) he did so with the intent to manufacture methamphetamine, and (3) McAdam “or any party to the agreement acted in furtherance of the agreement by attempting to steal anhydrous ammonia.”
McAdam contends that it was not shown that McAdam or another party to the agreement committed an overt act in furtherance of the agreement to manufacture methamphetamine. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
The Court of Appeals disregarded the cases relied on by McAdam for the proposition that the overt act must extend beyond mere preparation, State v. Chism, 243 Kan. 484, 759 P.2d 105 (1988), and State v. Garner, 237 Kan. 227, 699 P.2d 468 (1985), because they involved overt acts for the crime of attempt rather than conspiracy. 31 Kan. App. 2d at 441. The Court of Appeals cited State v. Hill, 252 Kan. 637, 642, 847 P.2d 1267 (1993), in which the court quoted the following definition of overt act from Black’s Law Dictionary 1104 (6th ed. 1990):
“An open, manifest act from which criminality may be implied. An outward act done in pursuance and manifestation of an intent or design. An open act, which must be manifestly proved.
“An overt act which completes crime of conspiracy to violate federal law is something apart from conspiracy and is an act to effect the object of the conspiracy, and need be neither a criminal act, nor crime that is object of conspiracy, but must accompany or follow agreement and must be done in furtherance of object of agreement. [Citation omitted.]”
See 31 Kan. App. 2d at 441. The Court of Appeals’ discussion of this issue continued:
“Here, there was sufficient evidence that the act of attempting to steal anhydrous ammonia was done in furtherance of the parties’ agreement and plan to commit the unlawful manufacture of methamphetamine. Evidence existed that McAdam and Maley had agreed to manufacture methamphetamine. All they lacked was anhydrous ammonia. Thus, the act to acquire the anhydrous ammonia was in furtherance of their agreement. Because the State did not have to demonstrate that this act extended beyond mere preparation, McAdam’s argument fails.” 31 Kan. App. 2d at 442.
McAdám also argues that there was insufficient evidence to show that Carter, who stole the anhydrous ammonia, was a party to the agreement to manufacture methamphetamine. In this regard, the Court of Appeals stated:
“The jury drew a reasonable conclusion that because Carter had joined Maley and McAdam in their quest to obtain anhydrous ammonia, he had agreed to help them manufacture methamphetamine. Because Maley drove Carter to the Kincaid Co-op and because McAdam was checking scanner frequencies in the backseat of Maley’s vehicle, it was reasonable for the jury to conclude that Carter was a coconspirator. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Penn, 271 Kan. 561, 564, 23 P.3d 889 (2001). Thus, there was sufficient evidence to support the inference that Carter had agreed to the conspiracy.” 31 Kan. App. 2d at 441.
McAdam has added nothing to his arguments on this issue in this court, and we agree with the Court of Appeals.
We next consider whether there was sufficient evidence from which a rational factfinder could find McAdam guilty of attempted theft.
McAdam contends in his petition for review that there was no overt act to support his conviction of attempted theft of anhydrous ammonia. On this issue the Court of Appeals stated the following:
“McAdam argues that the evidence shows only that he was riding along in Maley’s car on the night of the incident. However, Maley’s testimony at trial went further than that. McAdam told Maley that anhydrous ammonia was the only ingredient they were lacking to produce methamphetamine. McAdam was part of the discussion regarding who was going to get the anhydrous ammonia and how they would do it. McAdam had one two-way radio in the back seat with him, and Carter had the other. As a result, sufficient evidence existed that McAdam had performed an overt act in furtherance of his attempt to take anhydrous ammonia from the Kincaid Co-op and possess it in an unapproved container.” 31 Kan. App. 2d at 442.
It is McAdam’s position that Carter was the only one to commit any overt act toward the theft of anhydrous ammonia. He further contends that there is no evidence that he intentionally aided, abetted, advised, or counseled Carter to commit the crime. He cites State v. Scott, 250 Kan. 350, 362, 827 P.2d 733 (1992), for the proposition that mere association with persons who commit a crime or mere presence in the vicinity of a crime does not provide a sufficient basis to establish guilt of aiding and abetting. In Scott, the court also stated that “ ‘ “when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury.” ’ [Citations omitted.]” 250 Kan. at 362. In this case, the manufacture of methamphetamine was the objective. McAdam had the necessary equipment and ingredients except anhydrous ammonia to make methamphetamine. McAdam was the person who was going to make methamphetamine, he knowingly associated himself with Maley and Carter in order to obtain the anhydrous ammonia that was necessary to make methamphetamine, and he went with Maley and Carter to the Kincaid Co-op for the purpose of stealing anhydrous ammonia.
The Court of Appeals stated that his overt act was having a walkie-talkie in the back seat with him while Carter had the other, the implication being that McAdam could communicate with Carter to further the success of the theft. The evidence supporting the Court of Appeals was Maley’s testimony that they took two walkietalkies with them to the Co-op and that Carter had one of them. When the officers searched Maley’s vehicle, one walkie-talkie was found in the back seat, where McAdam had been sitting. From this evidence and evidence of the circumstances, the jury reasonably could find that McAdam knowingly associated himself with the theft of anhydrous ammonia and participated in a way that indicated his intentional furthering of the theft. We find no merit in McAdam’s argument and affirm his convictions.
McAdam also argues that he was illegally sentenced for conspiracy to unlawfully manufacture methamphetamine when he was sentenced for violation of K.S.A. 65-4159(a), a drug severity level 1 felony, rather than for violation of K.S.A. 65-4161(a), a drug severity level 3 felony.
A conspiracy is an agreement with another person to commit a crime. K.S.A. 21-3302(a). The crime that McAdam was charged, convicted, and sentenced of conspiring to commit was the unlawful manufacture of methamphetamine. See K.S.A. 65-4159(a). He argued in the Court of Appeals that he was illegally sentenced under K.S.A. 65-4159(a) and that he should have been sentenced under K.S.A. 65-4161(a). He did not raise the issue of his sentence in the trial court. The Court of Appeals considered the issue pursuant to K.S.A. 22-3504(1), which allows the appellate court to correct an illegal sentence. 31 Kan. App. 2d at 445. This court has said that a sentence that does not conform to the statutory provision is an illegal sentence. State v. Johnson, 269 Kan. 594, 600, 7 P.3d 294 (2000). Upon granting McAdam’s petition for review, this court reviews the decision of the Court of Appeals. See Rule 8.03(g)(1) (2003 Kan. Ct. R. Annot. 58).
K.S.A. 65-4159(a) provides: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” Methamphetamine is a controlled substance. K.S.A. 65-4101(e); K.S.A. 65-4107(d)(3). The penalty for violation of 65-4159(a) is a drug severity level 1 felony. K.S.A. 65-4159(b).
K.S.A. 65-4161(a) provides:
“Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b), (c) and (d), any person who violates this subsection shall be guilty of a drug severity level 3 felony.”
Methamphetamine is a stimulant designated in 65-4107(d)(3).
The Court of Appeals stated that 65-4159(a) and 65-4161(a) “address the same offense, the compounding of methamphetamine.” 31 Kan. App. 2d at 446. The Court of Appeals continued:
“Although K.S.A. 65-4159(a) and K.S.A. 65-4161(a) contain identical elements as applied to this case, K.S.A. 65-4161(g) states: ‘The provisions of this section shall be part of and supplemental to the uniform controlled substances act.’ (Emphasis added.) Thus, it seems that K.S.A. 65-4161 was intended to fill the gaps in the Uniform Controlled Substances Act.
“ ‘General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. [Citation omitted.]’ In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999). Furthermore, although criminal statutes should be interpreted in favor of the accused, ‘judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]’ State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001). The language in K.S.A. 65-4161(g) indicates it was the legislature’s intent to make K.S.A. 65-4151 a general statute, which only applies when no other statute will.
“K.S.A. 65-4159 clearly applies to the unlawful manufacture of methamphetamine. Because there is no conflict between K.S.A. 65-4159(a) and K.S.A. 65-4161(a), the trial court appropriately sentenced McAdam under the special statute, K.S.A. 65-4159. See State v. Luttig, 30 Kan. App. 2d 1125, 54 P.3d 974, rev. denied 275 Kan. 967 (2002) (holding defendant was properly sentenced under special statute that conflicted with general statute). Thus, McAdam’s argument fails.” 31 Kan. App. 2d at 446-47.
The State contends that the Court of Appeals reached the right decision for the wrong reason. According to the State, 65~4161(a) and 65-4159(a) are not identical and K.S.A. 65-4161(a) does not apply to McAdam’s conduct. The State’s position is that methamphetamine is not made by compounding, which is the conduct prohibited by K.S.A. 65-4161(a), but rather is made by a chemical synthesis called reduction. The State seems to expect the court to take it on faith that methamphetamine is not made by compounding and, because not made by compounding, it is made by manufacturing within the meaning of K.S.A. 65-4159(a). The State provides molecular diagrams and descriptions but nothing that would assist a layperson in distinguishing between compounding and manufacturing.
The State has not provided the court with enough information to evaluate the merits of the scientific argument on distinguishing compounding from manufacturing, and the State’s common-sense and legal arguments are less than convincing. Moreover, the State fails even to mention the intent of the legislature, which is the critical issue, in wording 65-4159(a) and 65-4161(a) as it did. The interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). At oral argument the State conceded that if compounding is synonymous with manufacturing then the State loses the argument. The statutory definition of “manufacture” is:
“ ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance either directly or indirectly or by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container . . . .” (Emphasis added.) K.S.A. 65-4101(n).
Based on compounding’s being included in the definition of manufacture, the State would have the court conclude that compounding is a type of manufacturing, as apple is a type of fruit, and that compounding is a more specific term than manufacturing. If the statutory definition is to be interpreted so that compounding is a particular subdivision of manufacturing rather than a synonym of manufacturing, then it seems that production, preparation, propagation, conversion, and processing also ought to be particular types of manufacturing rather than synonyms. It is not apparent that they are, and, in fact, “production” is defined as including the manufacture of a controlled substance. K.S.A. 65-4101(w). By definition compounding is manufacturing, and the State loses this argument.
The State also condemns the Court of Appeals’ decision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), as a misapplication of State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989), which held that “[w]here two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” In Frazier, the Court of Appeals concluded that possession of ephedrine or pseudoephedrine under K.S.A. 2001 Supp. 65-7006(a) and possession of drug paraphernalia under K.S.A. 2001 Supp. 65-4152(a)(3) are identical offenses so that only the lesser penalty could be imposed on Frazier. 30 Kan. App. 2d at 405-06. In the present case, the Court of Appeals distinguished Frazier as not involving a statute that was part of and supplemental to the Uniform Controlled Substances Act. 31 Kan. App. 2d at 446. Based on its perception that 65-4161 was a gap filler, the conclusion drawn by the Court of Appeals was that the statute was a general statute, “which only applies when no other statute will.” 31 Kan. App. 2d at 447. The Court of Appeals further reasoned that K.S.A. 65-4159(a) “clearly applies to the unlawful manufacture of methamphetamine” and therefore concluded that McAdam was appropriately sentenced “under the special statute, K.S.A. 65-4159.” 31 Kan. App. 2d at 447.
Under the particular facts of this case, we agree with McAdam’s contention that 65-4161(a) and 65-4159(a) are identical and thus he can be sentenced only under the lesser penalty provision of 65-4161(a). See Nunn, 244 Kan. at 229.
The key difference between McAdam’s position and the reasoning of the Court of Appeals is that the Court of Appeals treated the analysis applicable to identical statutes as if it could be combined with the analysis applicable to general and specific statutes. McAdam, on the other hand, treats the two concepts as separate and separately analyzed. The Court of Appeals characterized K.S.A. 65-4159(a) and K.S.A. 65-4161(a) as identical and then applied the general and specific analysis to them. By doing so, the Court of Appeals created a hierarchy with the general and specific analysis trumping the analysis for identical provisions.
In Nunn, the court considered two criminal offenses with identical essential elements but different penalties. The defendant contended that the trial court erred in not instructing the jury on the offense with the lesser penalty as a lesser included offense. The court rejected defendant’s contention and quoted from State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), where the same argument already had been turned down:
“ Where identical offenses are involved, the question is not truly a matter of one being a lesser included offense of the other. Each has identical elements and the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging. As to identical offenses, a defendant can only be sentenced under the lesser penalty. Here, it would have been tire better practice to have instructed on indecent liberties with a child, but the error could have been remedied by sen tencing defendant as having been convicted of a class C felony rather than a class B felony. Accordingly, the sentence imposed herein must be vacated.’ 241 Kan. at 83.” 244 Kan. at 229.
The governing principle, as stated by the court in Nunn, is: “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” 244 Kan. at 229.
In State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), the court considered two criminal offenses that, although dealing with the same subject, did not have identical essential elements. Williams was charged with one count of indecent liberties with a child, K.S.A. 1991 Supp. 21-3503, for the alleged sexual molestation of his step-granddaughter. The court concluded that he should have been charged with the more specific offense of aggravated incest, K.S.A. 21-3603, which had the additional essential element of kinship. The governing principle, as stated by the court in Williams, is: “When 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 controls unless it appears that the legislature intended to make the general act controlling.” 250 Kan. 730, Syl. ¶ 3.
The statutory provisions either have identical elements or they do not, and the analysis for statutes with identical elements differs from the analysis applicable where statutes do not have identical elements. Thus, if K.S.A. 65-4159(a) and K.S.A. 65-4161(a) have identical elements, the proper analysis is that set out in Nunn. As we have seen, the elements of K.S.A. 65-4159(a) and K.S.A. 65-4161(a) are identical, as the Court of Appeals noted, “as applied to this case.” 31 Kan. App. 2d at 446. For example, in other circumstances, the essential elements of a violation of K.S.A. 65-4161(a) could be that the defendant sold opium. For this reason, a decision that McAdam’s conduct was prohibited by K.S.A. 65-4161(a) as well as by K.S.A. 65-4159(a) so that he maybe sentenced only under the lesser penalty provision of K.S.A. 65-4161(a) is limited to the facts of this case. We, therefore, vacate McAdam’s sentence for violation of K.S.A. 65-4159(a) and remand to the district court for resentencing McAdam to a drug severity level 3 felony as provided for a violation of K.S.A. 65-4161(a).
Judgment of the Court of Appeals affirming the district court on the limited issues subject to our grant of review is affirmed in part and reversed in part. Judgment of the district court on these issues is affirmed in part, tire sentence is vacated, and the case is remanded with directions.
Beier, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
Ronell Williams was convicted by a jury of two counts of premeditated first-degree murder, one count of aggravated robbery, and one count of aggravated burglary. He was sen tenced to two hard 50 terms, a term of 59 months, and a term of 32 months, all to run concurrently. He appeals his convictions and sentences.
At approximately 6 p.m. on August 4, 1999, their daughter and granddaughter found Wilbur and Wilma Williams, who were not related to the defendant, lying on their kitchen floor. An emergency medical technician who was dispatched to the Williams’ house in response to the daughter’s 911 call determined that both victims were dead. The bodies were lying in pools of blood that had begun to diy at the edges, which indicated that the injuries had occurred some time earlier.
Police were dispatched to the Williamses’ residence shortly after 6 p.m. No sign of forced entiy was found, and the house had not been ransacked. Police found seven spent 7.65 mm. shell casings in the kitchen area. One additional spent shell casing of the same kind was found in the body bag in which Wilma Williams’ body was transported from the scene.
An autopsy showed that Wilma Williams had suffered four gunshot wounds — two to the right side of her face, one to the left side of her neck, and a graze wound across her left hand. Three bullets were recovered from Wilma Williams’ body during the autopsy. The pathologist testified that in his opinion she died as a result of multiple gunshot wounds, which caused a combination of blood loss, shock, and stress on her heart rather than immediate death.
An autopsy of Wilbur Williams’ body showed that he suffered five gunshot wounds — one to the left side of his face, one to the left side of his head behind the ear, one to the left side of the back chest, one to his left hand, and one to his right upper arm. Four bullets were recovered from Wilbur Williams’ body during the autopsy. The pathologist testified that in his opinion Wilbur Williams died as a result of multiple gunshot wounds, which caused blood loss rather than immediate death.
Police found that the door from the kitchen to the basement stairs was open and that the basement door to the outside also was open. Outside there was an empty carport. Mr. and Mrs. Williams owned a 1992 white Dodge Spirit, which their son had seen there a few days earlier.
On August 3, the day before the bodies of Wilbur and Wilma Williams were found, a woman who lived approximately 2 blocks away from the Wilhamses arrived home and found that her back door had been pried open. The house had been unoccupied only about an hour. Several diamond rings, three cameras, a .32 caliber pistol, and a full box of Fiocchi brand .32 caliber automatic ammunition were missing.
During the afternoon of August 3, the Williamses’ next door neighbor, who was going into his house through the back door, heard what he thought were firecrackers. Minutes later he heard the squealing of tires. A young man who had grown up two houses away from the Wilhamses was coming home in the afternoon when he saw two young, black male teenagers driving the Williamses’ car out of their driveway.
At approximately 2 a.m. on August 5, 1999, the car that had belonged to the Wilhamses was found burned out in a parking lot. On August 7, an informant told pohce that Michael Elias, Kendall Elias (Kendall), Jeffery Brown (Jeffery), and Jeremy Brown had been in the car. Jeffery and Kendall told pohce that they had been picked up by identical twins named Ronell and Donell.
Jeffery, who was 16 at the time of trial in December 2000, testified that he and Kendall rode around with the Wilhams twins until the twins said they had to go home before their mother woke up. The twins told Jeffery and Kendall to keep the car and meet them back at their house with it the next night. Jeffery and Kendall drove the car to Kendall’s house, Jeffery went home and gave his brother, Jeremy, the keys. Jeremy and Jeffery picked up Michael Elias and drove around in the car the next morning, but did not drive it back to the twins’ house later because by tíren they had seen on television that the car was stolen. Michael Elias gave the car to someone named “Jay”.
On August 8, police officers searched the Williams twins’ house, which lay approximately a half mile from Wilbur and Wilma Williams’ house. A 7.65 mm. live round was found in the twins’ room. An empty box which had held Fiocchi .32 caliber shells was found along the fence line separating the suspects’ house from the neigh boring property. Four shell casings and four gauge tokens were found in the back and side yards.
A firearms examiner testified that all the shell casings recovered by the police were of the Fiocchi brand, of the same caliber — 7.65 mm. or .32 caliber automatic, and were fired from the same gun— most likely a .32 caliber automatic or semiautomatic handgun.
In a statement to police, Ronell Williams said that Donell had burglarized a house and stolen a .32 caliber pistol, which they fired in their own backyard. They walked over to the house of a friend and were walking back home when they saw Wilbur Williams out by his mailbox. Ronell took the gun from Donell and put it to Mr. Williams’ head and ordered him to the backyard where Mrs. Williams was working in the garden. Ronell told Mr. Williams that they were planning to rob him, and they ordered Mr. and Mrs. Williams to go into the house through the back door and up the stairs. In the kitchen, the couple whispered to one another and Mrs. Williams picked up their cordless telephone. Donell took the telephone from her and put it in the southwest bedroom, where police later found it. Donell rummaged through the house trying to find something of value and found car keys in Mrs. Williams’ purse. Ronell told his brother to go get the car because he was going to have to kill the old people. Donell went down the stairs to get the car. Because Mr. Williams grabbed for a knife, Ronell fired the gun. No one was hit, but it made Mr. Williams drop the knife. Mr. Williams fell to his hands and knees, and Ronell shot him four times. Mrs. Williams became hysterical and laid down on the floor on her back screaming. Ronell shot her in the face from close range. Ronell left the house, got into Mr. and Mrs. Williams’ white Dodge, and left the scene.
Williams first argues that his evidence as to mental disease or defect should not have been limited to the mental examination report filed pursuant to K.S.A. 22-3219(2).
The required notice and procedure for a defense of mental disease or defect that would exclude criminal responsibility are set out in K.S.A. 22-3219. Subsection (1) requires service and filing within 30 days after entry of a not guilty plea of a written notice of a defendant’s intention to assert a defense of mental disease or defect. Subsection (2) sets out the procedures governing mental examination of a defendant who files a notice of intention to assert a defense of mental disease or defect. It provides that “[a] report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.” K.S.A. 22-3219(2).
During trial, after the State had called its final witness and the trial court overruled defendant’s motion for judgment of acquittal, the State argued that Dr. Roosa, a clinical psychologist, should not be allowed to testify for defendant for several reasons, one reason being that his report did not bear on the issue of mental disease or defect that would exclude criminal responsibility. It was stated during the discussion of the State’s request to exclude or limit Roosa’s testimony that, at the time Roosa made his report, he had not interviewed the defendant. According to defense counsel, Roosa interviewed the defendant after the report was made. The trial court noted that no supplementaiy report had been submitted stating Roosa’s conclusions after interviewing the defendant. The State further objected to Roosa’s proposed testimony on the ground that its cross-examination of the witness would be seriously hampered by the lack of an addendum to his report.
In order to give the State an opportunity to interview Dr. Roosa with regard to his post-report meetings with the defendant and conclusions, the trial court recessed the trial proceedings at 3:15 p.m. on December 6th to reconvene at 9 a.m. the next morning. After the jury had been excused, the trial court questioned Roosa about what had occurred after his report was filed. Roosa said that a new psychological examination had been done at the University of Kansas Medical Center, he had examined the report of the new testing, he had examined notes of Dr. Logan that he had not had before, and he had conducted at least 3 hours of clinical interviews with the defendant. Roosa also mentioned examining the defendant’s school records and a letter from the defendant’s mother. Roosa said that he had not compiled a second report. Asked if his findings changed after the initial report was submitted, Roosa said: “I think to be added onto, yes, I think there are factors seen and been able to look at more closer that I don’t suspicion somewhat.” Roosa said that he did not recall being asked by defense counsel to submit a report after finishing his evaluation of the defendant. The trial court said to Roosa:
“I guess my problem is we are in the middle of trial and the State and, frankly, I don’t know even if the defendant knows exactly what you’re going to say and why you’re going to say what you’re going to say and certainly that would lead the court to order an interview with the prosecutor in this case before you testify so that he has some idea of what your opinion is and why and how you got there.”
The next morning the trial court gave counsel an opportunity to argue their positions on the question of Dr. Roosa’s testifying. Defense counsel argued that it should be enough that the State had notice of defendant’s intent to present a defense of mental disease or defect excluding criminal responsibility, had the initial report, and had defendant’s witness list, which included Roosa. The State argued that the defendant had not satisfied the statutory requirement despite being prodded by the State’s motion in limine, which was filed 4 months before trial began in December 2000. The State indicated it had received nothing with regard to any evaluation conducted by Roosa after May 15.
The trial court stated:
“The statutory language is clear that any, any examination of the defendant, each mental examination of the defendant shall be filed with the court, with defense counsel and with the prosecuting attorney. At the close of the State’s evidence and with the defense ready to present their testimony is the first time anybody other than defense counsel perhaps and, of course, defense witness knew that other things, other examinations had been done, other reports had been seen, referred to and incorporated then into a final decision about the defendant’s mental status at the time of the commission of these crimes. The State was and is unprepared to cross-examine, to test the conclusions reached by the defendant’s expert witness with no notice. The order and ruling of this court will be that the defense’s expert witness may testify about the report presented to this court and the parties. I believe the testing date was October the 20th of 1999. That’s the only date that I’ve been able to glean from the report. It would appear that this report was based solely upon a number of procedural tests used; that, if I’m not mistaken, were actually administered to the defendant by someone other than Doctor Roosa, but in any event, he used these results to present a tentative, initial blind analysis, I guess is the phrase used to describe what he had done, and he made certain conclusions based upon this testing without having seen the defendant. It would appear based upon our record outside the presence of the juiy, the conversation yesterday, that he has since done — had three one hour sessions at least with the defendant. He has read and incorporated all of the other reports submitted to the court and the parties and I would assume taken the initial test and then spun that into something that he and the defendant feel is much stronger and more objective with a lot more foundation to establish the defense of mental disease or defect. I cannot and it will be the order of this court that the witness will not testify about anything done after the submission of his initial October of 1999 report since his endeavors were not filed with the court, the State or the defendant to the best of my knowledge. It’s just as if they had not been done. He may testify to the conclusions he reached from the testing that he appears to have had done with the defendant and anything contained in that report, but the foundation for that report remains, as far as I’m able to ascertain, the procedures and tests administered to the defendant at that time and the scoring that he did, the State will be precluded from cross-examining the defendant as to what he could have, should have or would have done. If they do so and open the door to what could have or should have been done and this witness had, in fact, done it even after the fact, that’s a different ball game, but as we stand now I cannot let your witness testify to anything other than what is contained in his initial report.”
Dr. Roosa testified on behalf of defendant. Asked for his opinion whether defendant had any diagnosable mental disorders that would affect his ability to form the intent to kill someone, Roosa stated:
“I came to the conclusion he suffered from severe problems of defect in social judgment and that— and having a tremendous difference in the right brain function, which has to do with — the left is on verbal function which makes him often sound like he knows more of what is going on than he really does and his right brain function has to do with what we call performance, being able one, to see the big picture under the social context of what he’s in, the situations that he’s in and to be able to put into action what he does see and does understand. He’s, in effect, operating with one very deficient brain function, so it’s a very lopsided function. People like that — the extreme of that is where there is split brain function where the right brain has been really cut off and only the left brain is operating. The extreme of that is that those people are totally blind to social form neurosis and cannot pick up on the usual cues that most of us have regarding the appropriateness of actions. In this case though he still has right brain. It’s seriously defective in its use.”
Dr. Roosa further testified that his conclusion about the defendant’s right brain being defective was based on the results of the Wechsler Intelligence Scale for Children that was administered to the defendant. According to Roosa, the defendant’s test scores show the difference between the left and right sides of his brain: “Verbal IQ is 83, which is land of a border line below average, low average level and the performance IQ, which is the right brain function is in the mentally retarded level.” Right brain functions, Roosa testified, “are necessary for seeing the big picture, being able to process information in the middle of a circumstance to see the big picture, to go well beyond what might be meaningful kind of thoughts that might occur and to think it all the way — help you think it all the way through.”
In response to the question whether, in his opinion, the defendant’s disorder would affect his ability to premeditate tire killings, Dr. Roosa testified:
“I don’t see any evidence of any sldllfulness of premeditation and if there is a thought about something, if a situation comes up what we all do we have a thought about something, we have some idea of what we are going to do, but then as the reality hits us, as we get closer to, we begin to make adjustments and that ability to make those adjustments, that ability to talk to the left side of the brain is seriously deficient.”
Dr. Roosa added: “You can have a meaningful intent. You can have a thought at the moment, but he has those thoughts, but then the reality of the situation doesn’t strike him and, therefore, it inhibits and reduces the effectiveness of modulating of what might be the original thoughts.” Roosa testified that the defendant had an actual incapacity, not just a character trait or something derived from his personality. In further explaining the incapacity, Roosa testified:
“The testing, as I said, indicates very clearly that he’s got this large discrepancy between right and left brain function and as a result of that we have to see that as an impairment in right brain and as a result of that behavior we often call impulsive is simply behavior that is not stopped by the ability to really see what is going on, what the situation really is about given the situation. Ronell is not a person without any caring or any land of feeling. He’s very much more reactive and because of those — because of those impairments.”
On cross-examination Dr. Roosa reiterated that in his opinion, because of his mental disorder, Williams could not premeditate or think things over beforehand.
Although he does not argue that the trial court misinterpreted the statute in requiring a second report by Dr. Roosa, defendant agrees with tire State that this matter depends on interpretation of K.S.A. 22-3219. Interpretation of a statute is a question of law, and the court’s review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
On appeal, defendant contends that he should not have been penalized for Dr. Roosa’s failure to file a second report. The filing required by K.S.A. 22-3219(2), however, is not tire responsibility of the witness. Defendant also contends that the trial court should have, but failed to, consider lesser sanctions for the statutory violation. Not one of the cases he relies on involved the statutory notice requirement at issue here. Moreover, the sanction imposed by the trial court was a lesser sanction certainly than excluding the testimony of Dr. Roosa and was well tailored to fit the peculiar circumstances of this case. We find no error.
Williams next argues that the failure to comply with K.S.A. 38-1636(c)(2) deprived the district court of jurisdiction to try him as an adult.
This issue again involves statutory interpretation, which is a question of law over which the court has unlimited review. Maass, 275 Kan. at 330.
K.S.A. 38-1636 provides for prosecution of a juvenile as an adult in certain circumstances. The procedure may be commenced by tire county or district attorney filing a “motion requesting that the court authorize prosecution of tire respondent as an adult under the applicable criminal statute.” K.S.A. 38-1636(a)(l). Subsection (c)(1) provides that, upon receiving such a motion, tire court is to conduct a hearing on tire motion. K.S.A. 38-1636(c)(l) further provides: “The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent.” K.S.A. 38-1636(d) provides in part: “If the respondent fails to appear for hearing on a motion as established in subsection (a) after having been served with notice of the hearing, the court may hear and determine the motion in the absence of the respondent.” See State v. Muhammad, 237 Kan. 850, 703 P.2d 835 (1985) (essentials of due process were met even though respondent’s failure to appear at K.S.A. 38-1636 hearing was involuntary).
A joint hearing was conducted in this case, In the Matter of Donell Williams, case No. 99JV1585 and In the Matter of Ronell Williams, case No. 99JV1586, on October 26,1999. The State concedes that at the hearing the court did not inform the defendant of the items listed in K.S.A. 38-1636(c)(2).
The defendant argues on appeal that the court’s failure deprived the trial court of jurisdiction in his prosecution as an adult. K.S.A. 38-1636(c)(2), which became effective in May 1999, provides:
“(2) At the hearing, the court shall inform the respondent of the following:
(A) The nature of the charges in the complaint;
(B) the right of the respondent to be presumed innocent of each charge;
(C) the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;
(D) the right to subpoena witnesses;
(E) the right of the respondent to testify or to decline to testify; and
(F) the sentencing alternatives the court may select as the result of the juvenile being prosecuted under an extended jurisdiction juvenile prosecution.”
Although the statute provides that the court shall inform the respondent of the items listed in subsection (c)(2), if the respondent is not present for the hearing, as permitted by subsection (d), the court cannot inform the respondent at the hearing of the items listed in subsection (c)(2). Hence, contrary to the defendant’s contention, the fact the court did not inform the respondent of the items in subsection (c)(2) could not logically be a basis for depriving the district court of jurisdiction of the criminal prosecution.
Moreover, the authority cited by defendant, State v. Jones, 273 Kan. 756, 47 P.3d 783, cert. denied 537 U.S. 980 (2002), does not support his proposition that failing to inform a respondent of the items listed in K.S.A. 38-1636(c)(2) deprives the district court of jurisdiction. In Jones, the defendant contended that the procedure set out in K.S.A. 38-1636 “runs afoul of Apprendi because the fact that he should be tried as an adult is made by a judge resulting in a penalty beyond the statutory maximum.” 273 Kan. at 770. Jones further contended that he was denied due process of law for failure to comply with K.S.A. 38-1636(c)(l) and 38-1636(e). Failure to comply with 38-1636(c)(2) was not raised on appeal in Jones.
As the State points out, the statute is silent about the consequence, if any, of the court’s failing to inform respondent of the items listed in subsection (c)(2). The State would have the court contrast the absence of any consequence in K.S.A. 38-1636 with the stated imperative that a criminal case be dismissed for failure to comply with the speedy trial statute, K.S.A. 22-3402(1).
Defendant cites State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), as approving the use of juvenile adjudications in calculating criminal history scores for the sentencing guidelines because of the procedural safeguards afforded by the Juvenile Justice Code. Defendant seems to contend that informing respondent of the items listed in K.S.A. 38-1636(c)(2) is among the procedural safeguards essential to guaranteeing the constitutional validity of juvenile adjudications. Defendant, however, was not adjudicated as a juvenile.
In arguing that failure to inform respondent of the items listed in subsection (c)(2) divests the district court of jurisdiction of the criminal prosecution, defendant likens the K.S.A. 38-1636 hearing to a criminal defendant’s entering a guilty plea. Because by pleading guilty a defendant is giving up constitutionally guaranteed rights, including trial by jury, the entry of a guilty plea “is such a critical stage within our system of criminal justice that the only sure method of demonstrating the plea is voluntarily and knowingly entered is for tire trial judge to follow a detailed checklist covering every aspect of K.S.A. 22-3210.” State v. Moore, 16 Kan. App. 2d 472, Syl. ¶ 5, 825 P.2d 537 (1992). The State disputes the comparison, pointing out that a juvenile waives no rights during the hearing to determine whether he or she should be adjudicated as a juvenile or prosecuted as an adult.
In any event, there is no statutory or case law basis for divesting the district court of jurisdiction if defendant was not advised of the items specified in K.S.A. 38-1636(c)(2). Morever, because respondents need not be present for a 38-1636 hearing, there is no logical basis for divesting the district court of jurisdiction if defendant was not advised at the hearing of the subsection (c)(2) items. Some sanction may be appropriate, but it would not include divestiture of district court jurisdiction.
Williams also argues that the failure to advise him of the rights enumerated in K.S.A. 38-1636(c)(2) violated his Sixth Amendment right to a jury determination as required under Apprendi.
The court’s review of this constitutional question is unlimited. See Hitt, 273 Kan. at 226.
Defendant concedes that in Jones, 273 Kan. 756, the court rejected die argument that because prosecution of a juvenile as an adult substantially increases the potential penalty for an offense, the Sixth and Fourteenth Amendments require jury determination of the question whether a respondent should be prosecuted as an adult. Williams would distinguish Jones from the present case, however, because in this case he was not informed of his rights as enumerated in K.S.A. 38-1636(c)(2). He contends that what removed the adult certification proceeding from the rule of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 147 (2000), in Jones were the juvenile’s right to counsel and the procedural safeguards provided by 38-1636(c)(2).
After discussing the procedural safeguards of K.S.A. 38-1636 and quoting K.S.A. 38-1636(c)(2), the court stated in Jones: “We conclude that the above reasons, as well as the other procedural safeguards provided for in K.S.A. 38-1636, are sufficient and support a determination that certification proceedings under our statutory scheme for the care and treatment of juveniles fall outside the dictates of Apprendi.” 273 Kan. at 774. The State contends that the procedural safeguards referred to in Jones are found in K.S.A. 38-1636(c)(l), (e), and (f)(1). Subsection (c)(1) requires the court to give notice of the certification hearing to the respondent; his or her parents, if possible; and counsel. Subsection (e) identifies factors that must be considered by the court in determining whether prosecution as an adult should be authorized. Subsection (f)(1) provides that a determination to prosecute as an adult must be based on substantial evidence.
In Jones, the court discussed at some length the interface of Apprendi with the statutory provision for prosecuting, certain juveniles as adults, and first made it clear that the procedural safeguards of K.S.A. 38-1636 were among the factors weighing against application of Apprendi. Consideration of the procedural safe guards was far from the end of the analysis. The court continued by discussing decisions of other courts, which depended little or not at all on procedural safeguards in relating the juvenile proceeding to Apprendi’s sphere:
“The Kansas Court of Appeals has considered and rejected the precise argument raised by Jones. State v. Hartpence, 30 Kan. App. 2d 486, Syl. ¶ 4, 42 P.3d 1197 (2002). The Hartpence court classified Apprendi as dealing with the sentencing phase of a prosecution, while the K.S.A. 38-1636 procedure is a jurisdictional matter where the decision is made which court will resolve the case. 30 Kan. App. 2d at 496.” 273 Kan. at 775.
The court then proceeded to quote extensively from the opinions of the New Mexico Court of Appeals and the Appellate Court of Illinois rejecting an argument similar to the one made in Jones; and the opinion of tire Supreme Judicial Court of Massachusetts, finding that Apprendi was applicable to adult certification. 273 Kan. at 775-77. The Court of Appeals then concluded:
“Apprendi reviewed a law permitting a judge, after making a factual finding about the crime, to sentence a defendant beyond the statutory sentence authorized by the jury’s verdict. In the present case, the decision under K.S.A. 38-1636 does not follow a finding of guilt for any crime. The decision under K.S.A. 38-1636 determines whether there is substantial competent evidence to authorize prosecution of a juvenile as an adult under the applicable criminal statute. If that decision is in tire affirmative, the juvenile will be exposed to the statutory maximum sentence under the applicable criminal statute, which in most cases will exceed the statutory maximum disposition in tire juvenile system. However, the juvenile tried as an adult will be subjected to tire statutory maximum sentence under the applicable criminal statute only after a jury has determined his or her guilt beyond a reasonable doubt.
“The determination under K.S.A. 38-1636 does not involve guilt or innocence, but involves the determination of which system will be appropriate for a juvenile offender. As indicated above, we conclude that the Kansas procedure for authorizing adult prosecution under K.S.A. 38-1636 does not violate the Sixth and Fourteenth Amendments to the United States Constitution. The juvenile system is different. Jones’ argument attempts to erode that difference and, thereby, potentially erode some of the protections offered by the juvenile system. As noted by this court in Hitt, Jones’ argument, if adopted, would cause substantial disruption in the juvenile justice system. Before causing such disruption, this court would require a clear mandate from the United States Supreme Court or state legislation. Finally, sentences imposed following certification to stand trial as an adult must not exceed the statutory maximum and every fact or factor determining such sentences must be proved beyond a reasonable doubt by a jury or a judge as fact finder before imposition of the sentence.” 273 Kan. at 777-78.
Thus, it appears that the court’s decision rested only in part on the procedural safeguards of K.S.A. 38-1636(c)(2). This impression is confirmed by the two syllabi related to this discussion:
“Procedural safeguards provided in the juvenile justice system, and specifically those safeguards in K.S.A. 38-1636, are sufficient to support a determination that certification proceedings of juveniles fall outside the dictates of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
“The juvenile tried as an adult will be subjected to the statutory maximum sentence under the applicable criminal statute only after a jury has determined his or her guilt beyond a reasonable doubt.” 273 Kan. 756, Syl. ¶¶ 5 and 6.
With this dual basis for not applying Apprendi to juvenile proceedings and because the procedural shortcoming was confined to one aspect of a system of safeguards, the failure to advise defendant of the items enumerated in K.S.A. 38-1636(c)(2) does not bring the determination to prosecute Williams as an adult within the rule of Apprendi.
Williams next argues that the trial court abused its discretion in responding to the jury’s question on premeditation.
Under K.S.A. 22-3420(3), a trial court has a mandatory duty to respond to a jury’s request for further information as to the law of the case. The manner and extent of the trial court’s response rest in the sound discretion of the trial court. State v. Sperry, 267 Kan. 287, 311, 978 P.2d 933 (1999).
During its deliberations, the jury asked, “How long beforehand does the thought have to occur to make it premeditation?” The word “beforehand” was circled. The district court responded, with no objection from counsel, “No particular amount of time is required to form premeditation.” Later, the jury made this request: “Would like to have premeditation defined again. How long does the thought have to be beforehand to be premeditation? Does premeditation include a preconceived plan period. Explain the relation between intent and premeditation.” The district court responded:
“Premeditation is a state of mind relating to a person’s reasons and motives for acting as he or she did. Unless a person actually communicates his or her reasons for taking another life, evidence of premeditation must be proved by circumstantial evidence. Such evidence however is sufficient to establish even the gravest offenses. Premeditation cannot be inferred from the use of a deadly weapon alone, but it may be inferred where other circumstances also exist. The circumstances which may give rise to an inference of premeditation include but are not limited to, one, the nature of the weapon used; two, a lack of provocation; three, the defendant’s conduct before and after the lulling; four, threats and/or declarations made by the defendant before and after the killing and five, lethal blows inflicted after the deceased was felled and rendered helpless. Premeditation means any length of time sufficient to form an intent to act. Please reread Instructions 7,11 and 18.”
Defendant states on appeal that the second response was given over the objection of defense counsel. Although defense counsel did not directly say that he objected to the trial court’s proposed response, he expressed his dissatisfaction with it:
“Judge, I think that case is possibly taken from a set of facts that must have dealt with circumstantial evidence since it states it can be determined from the circumstantial evidence submitted. In this case we also have evidence of a mental defect which is not included and is not circumstantial evidence. That is not included in that instruction or in that proposed instruction regarding evidence. I think it just highlights then the State’s evidence and not the defendant’s evidence and does not allow us then to reargue the point drat they should also consider the mental capacity that was at issue in this case.”
On appeal, defendant concedes that the trial court’s response, which was taken from State v. Jamison, 269 Kan. 564, 571-72, 7 P.3d 1204 (2000), was a correct statement of law in the circumstances of Jamison. He would distinguish the present case from Jamison, however, because the key issue in the present case was defendant’s capacity to premeditate the murders. Thus, he argues, the trial court’s answer should have included comment on the role of a mental defect on premeditation and could have been accomplished by directing the jury’s attention to Instruction 22, the mental defect instruction.
Defendant cites State v. Cathey, 241 Kan. 715, 730-31, 741 P.2d 738 (1987), for the proposition that the trial court’s response, without mention of his mental defect, emphasized the State’s evidence over his own. Cathey involved a jury instruction rather than a response to an inquiry. In a case decided several years before Cathey, the court disapproved instructing the jury regarding flight as an indication of guilt because such an instruction emphasized certain evidence. 241 Kan. at 730. In violation of the rule, the trial judge in Cathey instructed the jurors that they could consider Cathey s flight in determining guilt or innocence. 241 Kan. at 729-30. What defendant directs the court’s attention to in Cathey is what was wrong with the instruction on flight — “Such an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury.” 241 Kan. at 731. Williams’ point seems to be that the trial court’s response to the inquiry about premeditation singled out and emphasized the weight of the State’s evidence of premeditation, and, by the same token, de-emphasized the weight of his evidence of mental defect. The analogy is faulty in that a response to an inquiry, unlike an instruction, is formulated in response to a particular inquiry. A trial court’s task in responding to an inquiry is to provide guidance with regard to the subject of the inquiry. If the subject of the inquiry involves primarily the evidence of one party, the trial court may be hard pressed, in drafting a helpful response, to avoid singling out and emphasizing the weight of any party’s evidence. In this case, the subject of the inquiry was premeditation, and the trial court appropriately gave a response that was formulated to help the jury understand premeditation. If defendant wanted the trial court to remind the jury of the mental defect or disease defense, a request could have been made to include the mental defect instruction, Instruction 22, among those the trial court asked the jury to reread. There was, however, no request to include Instruction 22 in the response. The trial court did not abuse its discretion.
Williams next argues that the trial court abused its discretion in determining that the State’s peremptory strikes were constitutionally permissible.
Under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712(1986), whether a prima facie showing of a racially based strike of a potential juror has been made is a question of law subject to plenary review. The district court’s decision about whether the State acted with discriminatory purpose, however, is subject to an abuse of discretion standard of review. State v. Douglas, 274 Kan. 96, Syl. ¶ 1, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003).
Defendant’s principal contention is that the reasons given by the State for striking minority veniremen Crawford, Carey, and Anderson are not supported by the record. Even though conceding that the prosecutor’s explanation need not be persuasive nor even plausible, State v. Sanders, 263 Kan. 317, Syl. ¶ 8, 949 P.2d 1084 (1997), defendant contends that the stated reasons must be consistent with the facts. Defendant cites McClain v. Prunty, 217 F.3d 1209, 1222 (9th Cir. 2000), in which tihe stated reasons for striking veniremen were directly contradicted by the record. Because defense counsel made no objection to the prosecuting attorney’s stated reasons, this court must accept them as true. State v. Washington, 275 Kan. 644, Syl. ¶ 3, 68 P.3d 134 (2003). In the present case, comparison of the State’s reasons and the answers given by the veniremen reveal consistency rather than contradiction.
The prosecuting attorney gave the following reason for striking Crawford:
“My reason for striking Mr. Freeman Crawford is because he indicates he’s a counselor and he spent so many years as a counselor. This testimony might come down to mental state and the testimony of a psychologist. He indicated that while he didn’t do those land of tests, but he sat in on tire many staffings of ldds, so I struck him for that reason, his expertise in that area.”
Defendant contends that the record shows that Mr. Crawford had no expertise in psychology. During voir dire, the prosecuting attorney asked, “Does anybody have any strong background or concentrated areas of education in the areas of mental health psychology, things of that nature?” Crawford raised his hand. He said that his experience was “[cjounseling for about 20 years, teaching and counseling for about 20 years.” He is employed as a school counselor and has been assigned to Northeast Junior High School and Central Middle School. Crawford said that he did not administer intelligence tests, but that he “sat in on a lot of screening and things for placement of students who had.” The reason given by the prosecuting attorney is reflected in the record.
The prosecuting attorney gave the following reasons for striking Carey:
“No. 6 is Mr. Carey. He indicated that he had — that he had a son that was charged in Cahfornia with drags and that he thought that he was treated fairly. He really didn’t know much about it at all, so I struck him for two reasons and one is that it seems to me if after you[r] child is charged with something, you know you would know something about it, but he acted like he didn’t know anything about it at all and No. 2, because the fact that he had a relative charged. I went through and I tried to malee sure I got everybody that had a relative charged in that first 38 and actually in the first 40 something.”
Defendant argues that the record does not support the reasons given by the prosecuting attorney. Defendant, however, does not deny that the record shows that Carey was uninformed about his son’s prosecution. He only contends that it was reasonable for Carey to be uninformed about his son’s criminal charges. Moreover, the prosecuting attorney indicated that he would have stricken Carey simply on tire ground that Carey had a relative who had been charged with a crime.
The prosecuting attorney gave the following reasons for striking Anderson:
“No. 16, judge, is Melvie Anderson. I asked about relationships and who knew each other. I did not want two people on the panel on the jury knowing another person on the jury and I had Mrs. Anderson knowing No. 13, Eudora Douglas, which is the minority that I did not strike. I thought I needed to strike one of the two of them. The reason I struck that one instead of Eudora Douglas was because she spent a lot of years in the school system working as a cook with lads of this age that the defendant is, so I struck her instead of the other one. Also, on her form she doesn’t list any job whatsoever. I think she leaves it completely — I think she had trouble with maybe some instructions or directions. If you look at the form she shows present employer, no. Work duties, no. Length of time with present employer, no. ‘If less than five years or retired, state previous employer. No.’ And she clearly stated on the record that she worked as a cook for a lot of years, that’s how she knew No. 13, so I chose her instead of the other lady because I thought maybe this one had a little bit more difficult time following directions.”
Defendant contends that Anderson’s knowing Eudora Douglas was not a good reason for striking Anderson because the State did not strike other veniremen who were acquainted with people involved in the trial. What the prosecuting attorney said was he did not want people on the jury who knew each other. The veniremen cited by defendant were acquainted with a witness and with the prosecuting attorney, not with other veniremen.
No abuse of the trial court’s discretion has been shown.
Next, Williams argues that it was error for the trial court to refuse to instruct the jury that mental disease or defect could be a defense to the crime of aggravated burglary.
The jury was instructed that in order to establish the charge of aggravated burglary, the State was required to prove:
“1. That the defendant knotoingly entered into a building, to-wit: 2200 N. 44th Street, Kansas City, Kansas, which is a dwelling;
“2. That the defendant did so without authority;
“3. That the defendant did so with the intent to commit a felony, to-wit: aggravated robbery, therein;
“4. That at the time there was a human being, to-wit; Wilbur and/or Wilma Williams, in the dwelling; and
“5. That this act occurred on or about the 3rd day of August, 1999, in Wyandotte County, Kansas.” (Emphasis added.)
Defense counsel asked for an instruction regarding intent and mental defect as it affects the charge of aggravated burglary. The trial court denied the request: “The aggravated burglary charge I’m going to deny your request because I don’t think there is an issue in tire evidence that supports your contention that he didn’t have specific intent for that particular crime based upon his own testimony and the testimony of the State, so that will be denied.”
In a criminal action, a trial court must instruct the jury on the law applicable to. the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Gholston, 272 Kan. 601, 615, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002).
• On appeal, defendant does not address his own testimony or that of the State’s witnesses but asserts that Dr. Roosa’s testimony supported an instruction that the defense of mental disease or defect was applicable to the aggravated burglary charge. In his brief, defendant asserts that Roosa testified that defendant had a mental defect that limited his capacity to think things through, “leaving him only able to form general intent, or intent at the moment.” Roosa, however, did not testify that Williams could only form gen eral intent. Roosa’s core conclusion is that the defendant’s mental defect hindered his ability to understand the consequences of his actions. At the pages cited by defendant in support of his position, Roosa was asked and answered as follows:
“A. I don’t see any evidence of any skillfullness of premeditation and if there is a thought about something, if a situation comes up what we all do we have a thought about something, we have some idea of what we are going to do, but then as the reality hits, as we get closer to, we begin to make adjustments and that ability to make those adjustments, that ability to talk to the left side of the brain is seriously deficient.
“Q. You’re talking about Ronell is deficient—
“A. Yes.
“Q. —in forming an intent, is that what you said, in forming an intent then?
“A. You can have a meaningful intent. You can have a thought at the moment, but he has those thoughts, but then the reality of the situation doesn’t strike him and, therefore, it inhibits and reduces the effectiveness of modulating of what might be the original thoughts.”
Dr. Roosa’s testimony supports the trial judge’s decision not to give a mental defect or disease instruction in conjunction with the aggravated burglary instruction. Moreover, although denying that he intended to kill Mr. and Mrs. Williams when he went into their house, defendant testified that he “was just going down there to rob them.” Even viewed in the light most favorable to defendant, neither his testimony nor Roosa’s testimony supports, his request for a mental defect instruction in conjunction with the aggravated burglary instruction.
Williams argues that the hard 50 sentencing scheme violates the Sixth and Fourteenth Amendments to the United States Constitution and the rule of Apprendi.
Although noting that the court rejected this argument in State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002), defendant reargues it in order to preserve the issue for federal review. Since Boldridge was decided, the court has reiterated its ruling that Apprendi is not violated by a hard 50 sentence in Washington, 275 Kan. at 680. Williams’ argument has no merit.
Finally, Williams argues that cumulative trial errors deprived him of a fair trial.
Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Humphery, 267 Kan. 45, Syl. ¶ 10, 978 P.2d 264 (1999). Since we find there are no errors to accumulate in this case, Williams’ argument fails.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Kathryn S. Polsley, of Ottawa, an attorney admitted to the practice of law in Kansas.
The complaint filed against the Respondent alleged that the Respondent violated KRPC 8.4(b) (2003 Kan. Ct. R. Annot. 464) (misconduct). A disciplinary panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing as required by Kansas Supreme Court Rule 211 (2003 Kan; Ct. R. Annot. 264). The office of the Disciplinary Administrator appeared by and through Stanton A. Hazlett, Disciplinary Administrator. The Respondent appeared pro se and files no exceptions to the disciplinary panel’s final hearing report.
The final hearing report of the panel makes the following findings of fact, conclusions of law, and recommendations to this court;
“FINDINGS OF FACT
“1. Kathryn S. Polsley (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 10370. Her last registration address with the Clerk of the Appellate Courts of Kansas is Spring Hill, Kansas. At the hearing on this matter, the Respondent testified that her current address is Ottawa, Kansas. The Respondent was admitted to the practice of law in the state of Kansas on September 14,1979. (On October 7, 2002, the Kansas Supreme Court suspended the Respondent’s license to practice law for failing to pay the Annual Registration fee, for failing to pay the annual Kansas Continuing Legal Education Commission fee, and for failing to comply with the requirements of the Kansas Continuing Legal Education Commission. To date, the Respondent has taken no action to reinstate her license. As such, the Respondent’s license remains suspended.)
“2. The Respondent is married to David L. Polsley. Mr. Polsley is also an attorney at law, Kansas Attorney Registration No. 11104.
“3. In 1998, the Respondent’s mother, Lois Ann Simpson, became seriously ill. In January, 1999, Mrs. Simpson was released from a hospital to her home. Mrs. Simpson’s condition required twenty-four hour care. The Respondent, Mr. Polsley, and their four children moved into Mrs. Simpson’s house. From January, 1999, and continuing until Mrs. Simpson’s death on July 3, 2000, the Respondent and Mr. Polsley provided the care that Mrs. Simpson needed.
“4. Prior to her death, Mrs. Simpson had been receiving benefits from the Social Security Administration. The Social Security Administration benefits were paid by direct deposit into a trust set up for the benefit of Mrs. Simpson. The Respondent was the trustee of the trust.
“5. Following Mrs. Simpson’s death, the Respondent and Mr. Polsley notified the Social Security Administration that Mrs. Simpson had died. However, the Social Security Administration continued to directly deposit benefit checks into Mrs. Simpson’s trust. The Respondent and Mr. Polsley knew that the funds had been deposited in error.
“6. After Mrs. Simpson’s death, the Respondent and Mr. Polsley used funds from Mrs. Simpson’s trust, including the Social Security benefits, to meet their personal obligations. The Respondent personally wrote checks to use Social Security benefits for her personal or family use.
“7. On November 14, 2002, the United States government charged the Respondent in a fifteen (15) count indictment with having violated 42 U.S.C. § 408(a)(4), 18 U.S.C. § 2, and 18 U.S.C. § 641. The indictment alleged that the Respondent committed the offense of theft of government property. On February 5, 2003, the government filed a superseding indictment with the same charges.
“8. On April 9, 2003, the Respondent entered into a Plea Agreement with the government. According to the Plea Agreement, the Respondent agreed to enter a plea of guilty to Count 2 of the superseding indictment, charging her with violating 18 U.S.C. § 641 and 2 U.S.C. § 2, theft of government property, a misdemeanor. The Respondent filed a Petition to Enter Plea of Guilty. In that document, the Respondent admitted that she knowingly and willfully converted government property to her own use.
“9. Pursuant to the Plea Agreement, on April 9, 2003, the Respondent entered a plea of guilty to Count 2 of the indictment. Thereafter, on August 18, 2003, the Court sentenced the Respondent to home detention for three (3) months, perform 100 hours of community service work, and probation for three (3) years.”
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b), as detailed below.
“2. ‘It is professional misconduct for a lawyer to: . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b).
“3. Kan. Sup. Ct. R. 202 provides that
‘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 evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment.’
“4. On April 9, 2003, the Respondent was convicted of theft of government property, a crime that reflects adversely on her honesty and trustworthiness. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(b).
“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated her duly to the public to maintain personal integrity.
“Mental State. The Respondent knowingly violated her duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused damage to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. A conviction of theft of government property necessarily requires that the Respondent engaged in dishonest or selfish conduct. As such, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“A Pattern of Misconduct. According to the indictment, the Respondent repeatedly engaged in criminal behavior for a period of time exceeding one year.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1979. At the time the Respondent engaged in the criminal conduct, the Respondent had been practicing law for a period of twenty-one (21) years.
“Illegal Conduct. By converting property belonging to the United States government, the Respondent engaged in illegal conduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent and her husband have made restitution with the United States government.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully and freely acknowledged the wrongful nature of her conduct.
“Imposition of Other Penalties or Sanctions. The Respondent has been sentenced to home detention for three (3) months, perform 100 hours of community service work, and probation for three (3) years.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘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
(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.’ Standard 5.11.
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2. ‘Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.2.
“In this case, because of the circumstances relating to the nursing care provided by the Respondent and her husband, the Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for an indefinite period of time. At the hearing on this matter, Mr. Polsley recommended that because the Respondent has not previously been disciplined, the discipline imposed against the Respondent should not be as severe as the discipline imposed against him. Based upon the arguments of the parties, the findings of fact, the conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law in the state of Kansas for a period of one year. Additionally, the Hearing Panel recommends that before the Kansas Supreme Court reinstates the Respondent’s license to practice law, that the Re spondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Hearing Panel recommends that the Respondent be required to establish that she is psychologically able to handle the rigors of the active practice of law.”
The Respondent files no exceptions to the panel’s final hearing report. The court, having considered the final hearing report, accepts and adopts the findings of fact and conclusions of law of the panel. Those findings and conclusions establish by clear and convincing evidence that the Respondent violated KRPC 8.4(b) (2003 Kan. Ct. R. Annot. 464). Upon further consideration of the Disciplinary Administrator’s oral presentation and recommendations, the recommendations of the panel, the oral presentations of the Respondent and her husband, David Polsley, and the entire record, the court concludes that a 2-year suspension from the practice of law in Kansas is appropriate discipline.
It Is Therefore Ordered that the Respondent, Kathryn S. Polsley, be suspended from the practice of law in the state of Kansas for a period of 2 years, commencing on the date of this opinion, March 19,2004, in accordance with Supreme Court Rule 203(a)(2) (2003 Kan. Ct. R. Annot. 226).
It Is Further Ordered that the Respondent shall forthwith comply with the provisions of Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the Respondent. | [
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The opinion of the court was delivered by
Gernon, J.:
This case comes before us on petition for review by the State of Kansas from a Court of Appeals decision which vacated Scott E. Manbeck’s sentence for his conviction of involuntary manslaughter while driving under the influence of alcohol or drugs.
Manbeck pled guilty to one count of involuntary manslaughter as a result of driving under the influence of alcohol or drugs. Man-beck had four prior DUI convictions. Pursuant to K.S.A. 2002 Supp. 21-4711(c)(2), the presentence investigation report gave Manbeck a criminal history score which included his four previous DUI convictions as person felonies. The significance of this scoring is that it raised his criminal history score from “F” to “A.”
Manbeck objected to his criminal history score, but the sentencing court overruled his objection and sentenced him to 162 months’ imprisonment, using a criminal history score of “A.”
The Court of Appeals vacated Manbeck’s sentence and remanded the matter to the district court for resentencing using a criminal history of “F.” State v. Manbeck, 31 Kan. App. 2d 618, 621, 69 P.3d 636 (2003). This court granted the State’s petition for review.
The State argues that the Court of Appeals erroneously interpreted the provisions of K.S.A. 2002 Supp. 21-4711(c)(2). Resolution of this question involves the interpretation of a statute, over which this court has unlimited review. State v. Gordon, 275 Kan. 393, 402, 66 P.3d 903 (2003).
K.S.A. 2002 Supp. 21-4711(c)(2) provides:
“If the current crime of conviction was committed on or after July 1,1996, and is for involuntary manslaughter while driving under the influence of alcohol and drugs, each prior adult conviction, diversion in lieu of criminal prosecution or juvenile adjudication for: (A) An act described in K.S.A. 8-1567 and amendments thereto; or (B) a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the act described in K.S.A. 8-1567 and amendments thereto shall count as one person felony for criminal history purposes.” (Emphasis added.)
The Court of Appeals concluded that the phrase “driving while under the influence of alcohol and drugs” applied to a defendant’s prior DUI convictions that were for driving while under the influence of both alcohol and drugs. Manbeck, 31 Kan. App. 2d at 620-21. The Court of Appeals held that only those prior DUI convictions for driving under the influence of both alcohol and drugs could be counted as person felonies for the purposes of sentencing a defendant for involuntary manslaughter. 31 Kan. App. 2d at 620-21.
Judge Johnson of the Court of Appeals wrote a concurring opinion in which he interpreted the phrase “[i]f the current crime of conviction ... is for involuntary manslaughter while driving under the influence of alcohol and drugs” as a condition precedent to the application of K.S.A. 2002 Supp. 21-4711(c)(2). Under Judge Johnson’s reasoning, a defendant must have committed involuntary manslaughter while under the influence of both alcohol and drugs for the sentencing provisions to apply. The convictions subject to Judge Johnson’s interpretation are limited to those that violate K.S.A. 2002 Supp. 21-3442, involuntary manslaughter committed while driving under the influence of alcohol or drugs.
The majority opinion applies the same phrase to the prior DUI convictions rather than the manslaughter conviction. If a prior DUI conviction is not for driving while under the influence of both alcohol and drugs, then it cannot be used to modify the criminal history score for involuntary manslaughter. Under the majority interpretation, the provisions of K.S.A. 2002 Supp. 21-4711(c)(2) apply to all involuntary manslaughter convictions, not just those in violation of K.S.A. 2002 Supp. 21-3442.
K.S.A. 2002 Supp. 21-3442 states:
“Involuntary manslaughter while driving under the influence of alcohol or drugs is tire unintentional killing of a human being committed in the commission of, or attempt to commit, or flight from an act described in K.S.A. 8-1567 and amendments thereto.
“Involuntary manslaughter while driving under the influence of alcohol or drugs is a severity level 4, person felony.”
The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs, if that intent can be determined. Gordon, 275 Kan. at 402.
An appellate court may consider various aspects of the statute in attempting to determine the legislative intent. The court must first look at the intent as expressed in the language of the statute. When the language is plain and unambiguous, an appellate court is bound to implement the expressed intent. Gordon, 275 Kan. at 402. Ordinary words are to be given their ordinary meanings without adding something that is not readily found in the statute or ehminating that which is readily found therein. State v. Haug, 237 Kan. 390, 391-92, 699 P.2d 535 (1985).
Courts, however, are not limited to examining the language of the statute alone but may also consider the causes that impel the statute’s adoption, the statute’s objective, the historical background, and the effect of the statute under various constructions. State v. Dickson, 275 Kan. 683, 689, 69 P.3d 549 (2003).
An appellate court must consider all of the provisions in pari materia rather than in isolation, and these provisions must be reconciled, if possible, to make them consistent and harmonious. Gordon, 275 Kan. at 402. As a general rule, statutes should be interpreted to avoid unreasonable results. State v. Allison, 259 Kan. 25, 34, 910 P.2d 817 (1996).
Generally, criminal statutes are construed in favor of the accused. Any reasonable doubt about their meaning must be resolved in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be sensible and reasonable to effect the legislative design and intent. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
As evidenced by the different interpretations given by the Court of Appeals, the language of K.S.A. 2002 Supp. 21-4711(c)(2) is ambiguous.
Judge Johnson, in his concurring opinion, wrote:
“I concur with the foregoing result, but I disagree with the statement that ‘the question becomes whether the legislature intended that all prior convictions for driving while under the influence of alcohol or drugs should be scored as person felonies in determining the defendant’s criminal history score, or should only those convictions for driving while under the influence of alcohol and drugs be scored as person felonies.’ If K.S.A. 2002 Supp. 21-4711(c)(2) applies, all prior convictions under K.S.A. 8-1567, regardless of the substance or combination of substances consumed, are scored as person felonies.
“However, the statute specifically limits its applicability to the post-July 1,1996, commission of ‘involuntary manslaughter while driving under the influence of alcohol and drugs.’ K.S.A. 2002 Supp. 21-4711(c)(2). Therefore, the question presented is whether the legislature intended the enhanced scoring to be limited to those involuntary manslaughter convictions based upon driving ‘under the influence of a combination of alcohol and any drug or drugs.’ K.S.A. 8-1567(a)(5).
“The State’s public policy arguments are seductive. One might perceive the goal of K.S.A. 2002 Supp. 21-4711(c)(2) is to more severely punish a repeat offender whose refusal to refrain from driving under the influence eventually results in a person’s death, irrespective of the offender’s substance of choice. However, our directive is to refrain from making decisions based upon public policy in derogation of rules of construction. See O’Bryan v. Columbia Ins. Group, 274 Kan. 572, Syl. ¶ 2, 56 P.3d 789 (2002).
“In K.S.A. 8-1567, the legislature provided alternative means by which aperson can commit or be convicted of driving under the influence (DUI) of alcohol or drugs. An alcohol concentration in a driver’s blood or breath of .08 or higher is sufficient, without more. K.S.A. 8-1567(a)(l) and (2). Alternatively, DUI is committed by being incapable of safely driving a vehicle when that condition is caused by alcohol (K.S.A. 8-1567[a][3]), any drug or combination of drugs (K.S.A. 8-1567[a][4]), or a combination of alcohol and any drug or drugs (K.S.A. 8-1567[a][5]).
“K.S.A. 2002 Supp. 21-4711(c)(2) specifically applies the enhanced scoring to involuntary manslaughter while driving under the influence of alcohol and drugs, which is a specific alternative under K.S.A. 8-1567(a)(5). If the lawmakers viewed drivers using both drugs and alcohol to be a special class of DUI offenders worthy of enhanced punishment for committing involuntary manslaughter, the use of the conjunctive ‘and’ in K.S.A. 2002 Supp. 21-4711(c)(2) would accomplish thatpolicy decision. Under that scenario, our intuitive perception that the legislature simply used imprecise language in the enhancement statute would actually circumvent legislative intent. In the long run, our applying statutory law as it is written, rather than as we divine that it was intended to be written, will preserve the integrity of the legislative function.” 31 Kan. App. 2d at 621-22.
There is some legislative histoiy, including the testimony of Representative Greg Packer, which supports a different version of the legislation and would have adopted language using the disjunctive “or” rather than the conjunctive “and.” Whether an act of commission or omission, the use of the conjunctive “and” cannot be ignored in our view. We assume the legislature meant what it passed. If it did not, it is the legislature’s prerogative to change the statute.
We agree with Judge Johnson’s interpretation of K.S.A. 2002 Supp. 21-4711(c)(2). Driving under the influence of alcohol and drugs is a specific alternative of K.S.A. 8-1567. Reading the plain language of K.S.A. 2002 Supp. 21-4711(c)(2) in conjunction with the specific language of K.S.A. 8-1567 requires us to agree with the result the Court of Appeals arrived at, but we adopt the reasoning of the concurring opinion of Judge Johnson.
Manbeck also argues that the sentencing enhancement provisions of K.S.A. 2002 Supp. 21-4711(c)(2) violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The Court of Appeals did not address this issue in its opinion, and the State did not raise the issue in its petition for review. However, Manbeck raised the issue both before the trial court and the Court of Appeals. In the interest of judicial economy, we will address this issue.
Manbeck asks this court to reverse its decision in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), which held that the Apprendi rule specifically excludes prior convictions. Manbeck argues that the Apprendi court impliedly overturned Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998), which established the exception for prior convictions. This court addressed that very argument in Ivory, finding that there was no authority for extending the holding of Apprendi to prior convictions. 273 Kan. at 47. Manbeck fails to cite any new authority in support of his proposition that Ivory should be overturned, and we decline to do so.
In State v. Washington, 275 Kan. 644, 680, 68 P.3d 134 (2003), this court addressed a similar issue. The defendant in Washington claimed that his hard 50 sentence violated Apprendi, arguing that this court’s decision in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), was in error. Without any authority to the contrary, this court refused to overrule its prior decision in Conley and rejected the defendant’s argument. 275 Kan. at 680. The reasoning in Washington applies in this case. Manbeck’s claim that K.S.A. 2002 Supp. 21-4711(c)(2) violates Apprendi is without merit.
The Court of Appeals’ decision is affirmed. The district court is affirmed in part, Manbeck’s sentence is vacated, and the case is remanded for resentencing using a criminal histoiy score of “F” consistent with this opinion.
Beier, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Beier, J.;
Defendant Joseph Dodds Morton appeals his first-degree murder and aggravated robbery convictions. He argues that he could not be convicted of first-degree murder on the combined theories of premeditation and felony murder, that the evidence on premeditation presented at his trial was insufficient, and that prosecutorial misconduct and cumulative error require reversal.
Morton was discharged from his employment at a grocery store. He decided to rob the store; he stole an unloaded gun from his mother by breaking into her locked bedroom, loaded the gun with loose bullets already in his possession, and returned to the store with the excuse of returning his uniform.
Before entering the store, Morton parked across the street to check the number of cars in the parking lot and ensure that only the manager remained inside after hours. He hid the gun between his two work shirts. When he entered, store manager David Mor rell asked about Morton’s box cutter and bailer key. Morton then left the store and sat in his car for approximately 2 minutes, pondering whether he should commit the crime. He then reentered the store and told Morrell he “was [t]here for the money.” Morrell offered no resistance and led Morton to the store office, where money was on a desk. According to Morton, he then squeezed the trigger of the gun. He said he was not sure where he was pointing the gun and fired to scare the manager. After pulling the trigger, however, he heard the manager hit the floor. Morton left the store, took a turn in the parking lot, and then returned to the store office. He stole a video recorder and videotape, destroyed security monitors, and took a cordless phone to ensure that Morrell could not call the police. According to Morton, when he returned to the office, he saw Morrell slumped on the floor. He admitted that Morrell looked dead. He did not check him for signs of life or summon help.
Other evidence at trial demonstrated Morrell had been shot in the face from a distance of not more than three feet.
After the crime, Morton went to play billiards with friends. He told his girlfriend that he robbed the store, purchased stereo equipment for his car and 2 pounds of marijuana, and took his girlfriend shopping. A few days later, Morton offered to pay a friend to destroy the security videotape and then fled the state. He eventually confessed to the crime, making a recorded statement to the police.
At trial, the jury received the following Instruction No. 9:
“In this case, the State has charged the defendant Joseph Dodds Morton with one offense of Murder in the First Degree and has introduced evidence on two alternative theories of proving the crime.
“The State may prove murder in the first degree by proving beyond a reasonable doubt that die defendant killed David Morrell intentionally and with premeditation or in the alternative by proving beyond a reasonable doubt that the defendant lolled David Morrell and that such killing was done while in the commission of a felony or in flight from attempting to commit a felony, to-wit: aggravated robbery, as fully set out in these instructions.
“Here evidence is presented on the two alternate theories of proving the crime charged, you must consider both in arriving at your verdict.”
Instruction No. 10 stated, in part:
“If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.”
During closing argument, the prosecutor said:
“Was this killing premeditated? That’s the second question we want to look at. And to look at that question, we look at the jury instructions. And if you remember in the jury instructions, premeditation means to have thought it over beforehand for any length of time. Premeditation' does not necessarily mean that somebody has to plan it out weeks or months beforehand. And if you remember — you look at that police statement. Detective Zeigler’s last question was, okay, did you plan this out last week or weeks before and he said no. But it doesn’t have to be weeks or months before.
‘We know he walked off the job on Friday. We don’t know, though, if he started thinking about it Saturday or Sunday or Monday or Tuesday. But we do know that he started thinking about it before he got to the Save-A-Lot store. And remember one doing. Premeditation means to have thought over the matter beforehand for any length of time.”
The prosecutor then gestured with her fingers as though she was firing a gun and continued: “That can be premeditation under the laws of the State of Kansas. One squeeze of the trigger is all it takes.” The defense did not object.
The juxy returned a guilty verdict, but its verdict form stated the jurors were “unable to agree whether the defendant is guilty of Murder in the First Degree on the theory of premeditated murder or felony murder.” The jury “unanimously [found] the defendant guilty of murder in the first degree on the combined theories of premeditated murder and felony murder.”
Conviction of First-Degree Murder on Combined Theories
Morton breaks this first issue in two, presenting it first as a violation of his right to a unanimous verdict and second as an error in instructions. Both challenges, when reduced to their essence, require us to decide a question of law, and our review is therefore unlimited. See State v. White, 275 Kan. 580, 597-98, 67 P.3d 138 (2003).
Like the defendant in the recent case of State v. Hoge, 276 Kan. 801, 80 P.3d 52 (2003), Morton points to language from State v. Vontress, 266 Kan. 248, 262, 970 P.2d 42 (1998), and State v. Wakefield, 267 Kan. 116, 139, 977 P.2d 941 (1999), to support this argument. Wakefield merely repeated the language from Vontress: “The Vontress court observed that as stated in the statute, premeditated murder and felony murder were separate and distinct offenses.” Wakefield, 267 Kan. at 139.
This language is confusing when considered in isolation. It is inconsistent with previous and succeeding Kansas case law, as well as the reasoning and outcome of the cases in which it appears. As Justice Gernon observed in Hoge, the statement was dicta, included in Vontress without any analysis of whether premeditated murder and felony murder actually constitute separate crimes. Hoge, 276 Kan. at 809.
Before Vontress and Wakefield were decided, this court had stated clearly: “Premeditated and felony murder are not separate, distinct offenses but are two separate theories under which the crime of first-degree murder may be committed.” State v. McKinney, 265 Kan. 104, Syl. ¶ 1, 961 P.2d 1 (1998); see also Hoge, 276 Kan. at 809 (premeditated murder, felony murder “merely different theories of proving the required elements of premeditation and intent for the crime of first-degree murder”) (citing State v. Chism, 243 Kan. 484, 491-92, 759 P.2d 105 [1988]; State v. Matson, 260 Kan. 366, 372, 921 P.2d 790 [1996] (harsher sentence for premeditated murder is “just that, a sentence — not a separate crime”); State v. Barncord, 240 Kan. 35, 37-38, 726 P.2d 1322 [1986]; State v. McCowan, 226 Kan. 752, 759-61, 602 P.2d 1363 [1979]). In essence, the felonious conduct proved in a felony murder is a stand-in for the deliberation and premeditation usually required to be proved in a first-degree murder case. Hoge, 276 Kan. at 809 (quoting State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 [2001]).
In Vontress, the jury was presented with a verdict form similar to the one used in this case. During deliberations it marked the form to indicate that the first-degree murder conviction was based on the jury’s unanimous agreement on the defendant’s guilt of premeditated murder and its unanimous agreement on the defendant’s guilt of felony murder. Vontress, 266 Kan. at 261-62. The defendant received the harsher sentence available only for premeditated murder. 266 Kan. at 250-51. The defendant appealed, arguing the verdict was ambiguous. We held that there was no ambiguity. The juiy had found the defendant guilty under each theoxy of first-degree murder, and his sentence for premeditated murder was not illegal. 266 Kan. at 264.
The Wakefield jury also was presented with a verdict form similar to the one used in this case. See 267 Kan. at 137. In that case, the juiy selected all three options on the form; the jurors unanimously found the defendant guilty of premeditated murder and of felony murder, but they also said they were unable to agree under which theoxy the defendant was guilty. Again, the defendant received the harsher sentence available only for premeditated murder. We again affirmed, holding the harsher sentence was legal because the order of the jury’s options on the verdict form meant the “juiy first unanimously found Wakefield guilty of premeditated murder and then unanimously found Wakefield guilty of felony murder prior to finding Wakefield guilty on the combined theories.” 267 Kan. at 141.
In State v. Davis, 268 Kan. 661, 678-79, 998 P.2d 1127 (2000), the defendant argued on appeal that he was denied his right to jury unanimity on his first-degree murder conviction for aiding and abetting the crime because the juiy had not agreed on either premeditation or felony murder as the theory of guilt. We recited the alternative means rule of State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]);
“ ‘ “In an alternative means case, where a single offense may be committed in more than, one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]” ’ ’’Davis, 268 Kan. at 679.
Under this rule, we upheld the verdict because each “means” of committing first-degree murder — aiding and abetting a premeditated killing or participating in a felony murder — was supported by sufficient evidence. Davis, 268 Kan. at 680-81. Jury unanimity on either means was not required.
The holding of Davis was not only consistent with Timley; it also followed from pre-Timley case law in Kansas and United States Supreme Court precedent.
In State v. Wilson, 220 Kan. 341, 345, 552 P.2d 931 (1976), we had upheld a first-degree murder conviction, stating, under the alternative means rule:
“If a verdict of first degree murder can be justified on either of two interpretations of the evidence, premeditation or felony murder, the verdict cannot be impeached by showing that part of the jury proceeded upon one interpretation of the evidence and part on another.”
In Schad v. Arizona, 501 U.S. 624, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991), the Supreme Court examined a conviction for first-degree murder obtained after the prosecution had advanced both premeditation and felony murder theories. The majority, citing Wilson among many cases from various states that had upheld such a practice, rejected the defendant’s contention that due process was offended by his conviction on the combined theories. 501 U.S. at 630-45.
Regardless of whether we consider jury unanimity a federal constitutional guarantee or a state statutory right, see K.S.A. 22-3421, these cases confirm that Morton got all that he was entitled to in this case. Although we know from the verdict form that Morton’s jury could not agree on premeditation or felony murder, it was unanimous as to his guilt of first-degree murder. That was enough as long as the evidence of each means was sufficient. Instruction and conviction on the combined theories was proper. See Hoge, 276 Kan. at 817. Moreover, because Morton was not given the harsher sentence appropriate only for a unanimous conviction under a premeditation theory, his sentence also would pass muster. See Wakefield, 267 Kan. at 136; Vontress, 266 Kan. at 264.
Sufficiency of the Evidence of Premeditation
As discussed above, in order to uphold a conviction based on alternative means under Timley, we must see sufficient evidence of each means in the record before us. See Timley, 255 Kan. at 288-90. Morton’s next argument is that the evidence of premeditation presented at his trial was insufficient.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
We have recognized several factors that will give rise to an inference of premeditation:
“(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The jury has a right to infer premeditation from the established circumstances if the inference is a reasonable one.” State v. Murillo, 269 Kan. 281, Syl. ¶ 2, 7 P.3d 264 (2000).
We see ample evidence to support the second and third factors in the record before us.
Morton admitted Morrell did nothing to provoke him. There was no resistance on the manager’s part.
In addition, Morton’s actions before entering and reentering the store and after the shooting reflected careful initial planning, reconsideration and a determination to proceed, and callous disregard of the consequences. Morton admitted deciding ahead of time to rob the store. He then went to no small trouble to steal the gun from his mother and prepared an excuse to use in the event he was questioned about his reappearance at the store after being discharged from employment. He then drove to the store and parked across the street, where he could carefully observe how many cars remained in its parking lot, guaranteeing that he would be alone with Morrell after business hours. After entering the store for the first time, he left and sat in his car awhile, thinking through his plan again and deciding to proceed. He then reentered the store and followed Morrell to the store office, where he took the money on the desk.
After intentionally squeezing the trigger, shooting Morrell in the face, and hearing Morrell hit the floor, Morton left the store a second time. He returned to his car, “took a turn around in the parking lot,” and apparently decided he had not done enough to cover his tracks. He entered the store a third time and observed the apparently lifeless Morrell on the floor. Morton did nothing to assist Morrell. Instead, he stole or destroyed the security camera and videotape and monitors that might have led to his apprehension by law enforcement. Morton then went out to socialize, playing billiards and purchasing marijuana. He later offered to pay a friend to destroy the security videotape and then left town.
With all of this evidence in the State’s favor, some of it from the defendant himself, members of the jury could have reasonably disregarded Morton’s stoiy that he fired the gun only to scare Morrell and did not know where it was pointing. There was ample evidence to support premeditation.
Prosecutorial Misconduct in Closing Argument
When there is no contemporaneous objection to a prosecutor’s argument, we reverse only if the prosecutor’s misconduct rises to the level of violating a defendant’s right to a fair trial and denies the defendant his or her Fourteenth Amendment right to due process. See State v. McHenry, 276 Kan. 513, 522, 78 P.3d 403 (2003) (citing State v. Lumley, 266 Kan. 939, 964-65, 976 P.2d 486 [1999]). Further, we generally employ a two-step process to analyze prosecutorial misconduct claims. First, we decide whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, we decide whether the comments constituted plain error; that is, whether the statements were so gross and flagrant that they could have prejudiced the jury against the defendant and denied him or her a fair trial. If so, reversal is required. McHenry, 276 Kan. at 522; State v. McCorkendale, 267 Kan. 263, 279, 979 P.2d 1239 (1999).
In this case, the prosecutor’s questionable conduct consisted of gesturing with her fingers as though she were firing a gun and stating: “That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes.” This was not a comment on the evidence but a purported statement of controlling law. Because a misstatement of controlling law denies a criminal defendant his or her right to due process, we agree with the defense that the alleged error must be reviewed on appeal despite the absence of an objection at trial.
In State v. Pabst, 273 Kan. 658, 659, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002), this court held that premeditation was defined adequately in Pattern Instructions for Kansas (PIK) Crim. 3d 56.04(b), as “to have thought over the matter beforehand.” In our view, premeditation “means something more than the instantaneous, intentional act of taking another’s life.” Pabst, 273 Kan. at 660.
In Pabst, the prosecutor had said:
“ ‘[T]here’s no amount of time required.
“ ‘You notice that there’s no time element in premeditation. There’s no interval that’s required. There’s no plan. You don’t have to think about it for weeks.
“ ‘You don’t have to think about it for weeks, days, hours, 50 minutes, ten minutes. It means to have thought over the matter beforehand. It’s the conscious act of a person.’ ” Pabst, 273 Kan. at 661.
We held that this language did not constitute a misstatement of the law and thus did not qualify as prosecutorial misconduct.
However, we cautioned prosecutors to read State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). In Holmes, the prosecutor had said: “[Pjremeditation can occur in an instant. That’s the law in the State of Kansas.” 272 Kan. at 497. We held that this definition did constitute a deliberate misstatement, noting the prosecutor had been cautioned in the instructions conference before argument began. 272 Kan. at 495, 499-500. In Pabst, we amplified that holding by warning prosecutors to avoid the use of the word “instanf’or any synonym or motion that would convey that message. Pabst, 273 Kan. at 662.
Later, in State v. Doyle, 272 Kan. 1157, 1163, 38 P.3d 350 (2002), we also found the prosecutor’s statement that “something can be premeditated as soon as it happens” to be a misstatement of the law. In that case, however, this court saw nothing in the record to indicate the misstatement was deliberate and held it to be harmless. 272 Kan. at 1165.
When the prosecutor in this case pantomimed the firing of a gun and made her accompanying comment that “[o]ne squeeze of a trigger is all it taires,” she conveyed the message that premeditation can be instantaneous, or virtually so. This definition of premeditation approximated those given by the prosecutors in Holmes and Doyle, and we conclude that she misstated Kansas law. Although ■she also mentioned the correct definition from the jury’s instructions more than once, we do not regard this as a cure for her colorful misstatement of such a critical point — a definition of one of the crime’s essential elements.
The defense argues that we should also hold that the prosecutor’s conduct was deliberate rather than unintentional because she was a “seasoned veteran.” Morton contends that the prosecutor necessarily knew better and purposely ignored what she knew to bolster weak evidence of premeditation.
■ We can go along with defendant approximately halfway. Morton is correct that an experienced prosecutor such as the one in his case should have been well aware of this court’s and the Court of Appeals’ numerous recent cases on prosecutorial misconduct and/ or the definition of premeditation. See, e.g., Pabst, 273 Kan. at 661-62 (prosecutor should avoid temptation to use synonym of “an instant”); Holmes, 272 Kan. at 499-500 (prosecutor’s deliberate misstatement “premeditation can occur in an instant” constitutes reversible error); State v. Lockhart, 24 Kan. App. 2d 488, 491-93, 947 P.2d 461 (1997), rev. denied 263 Kan. 889 (1997) (prosecutorial misconduct constituted reversible error where prosecutor stated defendant lied). This prosecutor should have known better and apparently did, given her references to the correct definition in the jury instructions. As our earlier discussion makes evident, however, we cannot agree with Morton that the State’s evidence of premeditation was weak. We do not discern any motivation for deliberate misconduct.
That being said, we are nevertheless compelled to hold here that the prosecutor’s misstatement regarding premeditation requires reversal. Although we see plenty of evidence of premeditation in Morton’s behavior, when judged under the correct definition, we know in this particular case that not every member of the juiy was willing to convict on that basis. Because of the jury’s specific statement in its verdict form that it could not agree unanimously on the premeditation theory, we are not comfortable calling the prosecutor’s error harmless beyond a reasonable doubt. Morton is therefore entitled to reversal and a new trial.
Cumulative Error
We do not reach the defendant’s argument on cumulative error. We find only one error in this trial, and it is reversible in and of itself.
Reversed and remanded for new trial. | [
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The opinion of the court was delivered by
Gernon, J.:
We granted Michael Abbott’s petition for review from a Court of Appeals’ decision which affirmed his convictions of one count each of possession of methamphetamine with intent to sell and possession of drug paraphernalia.
Abbott became the focus of a drug investigation when a confidential informant (Cl) advised Detective Howard Shipley that Abbott would be traveling in a two-tone van from Hutchinson to Haven, giving a specific date and time, to purchase methamphetamine from someone named Greg.
The person named Greg was known to Detective Shipley as Greg Proffitt, who lived near Haven and who was known as a seller of methamphetamine.
Detective Shipley parked near the Proffitt house in an unmarked car. Detective Shipley was called by the informant, who informed him that Abbott would be later than he had previously thought and that Abbott had just left Hutchinson.
Approximately 45 minutes after the call from the informant, Detective Shipley observed a two-tone tan van arrive at the Proffitt house. The van was there for approximately 30 minutes. When the van left, Detective Shipley followed it and eventually stopped the van and asked its occupants for identification. The van had three rows of seating. The front two rows consisted of two seats each. The third row was a bench seat. Abbott was seated on the bench seat. One of the van’s owners was driving, and another owner was seated in the middle row.
Detective Shipley determined that there were no outstanding warrants and then asked the occupants to exit the vehicle. Detective Shipley checked the individuals for weapons and then searched the van. He discovered a glass pipe, a set of electronic scales, a pouch with ziplock baggies, a razor blade, and a business card folded into a funnel shape. All of these items were found in the rear pockets of the two seats in the middle of the van. Abbott was arrested and transported to the local law enforcement center for processing. A pouch of methamphetamine was discovered in his underwear.
Abbott was charged with and found guilty at a bench trial of possession of methamphetamine with intent to sell and possession of drug paraphernalia. Before his trial, the trial court denied his motion to suppress. The Court of Appeals affirmed his convictions in State v. Abbott, 31 Kan. App. 2d 706, 71 P.3d 1173 (2003). We granted Abbott’s petition for review.
Probable Cause to Arrest
Abbott frames his first issue on appeal as whether there was an unreasonable search and seizure, i.e., a Fourth Amendment to the United States Constitution issue. We believe the starting point for any discussion is whether there was probable cause to support Abbott’s arrest. We must first determine whether Abbott was láwfully arrested and, if so, whether the warrantless search which followed was permissible under the facts and circumstances.
Warrantless searches incident to an arrest are permissible. Police may search both the person and the immediate area surrounding the person contemporaneously with the arrest. State v. Payne, 273 Kan. 466, 475, 44 P.3d 419 (2002). This exception to the Fourth Amendment requirement for a warrant is codified at K.S.A. 22-2501, which provides:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
Pursuant to K.S.A. 2002 Supp. 22-2401(c)(l), a law enforcement officer may arrest a person without a warrant if the officer has probable cause to believe that the person is committing or has committed a felony. “ ‘Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime.’ ” State v. Aikins, 261 Kan. 346, 355, 932 P.2d 408 (1997) (quoting State v. Grissom, 251 Kan. 851, Syl. ¶ 22, 840 P.2d 1142 [1992]). Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt. Draper v. United States, 358 U.S. 307, 311-12, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959); Aikins, 261 Kan. at 355.
In Draper, 358 U.S. at 313, the United States Supreme Court stated:
“ ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [Citation omitted.] Probable cause exists where ‘the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. [Citation omitted.]”
• ■. When determining whether probable cause exists, this court considers the totality of the circumstances, including all of the information in the officer’s possession, fair inferences therefrom,' and any other relevant facts, even if they may not be admissible on the issue of guilt. Payne, 273 Kan. at 474.
In Draper, a federal narcotics, agent received a tip from a Cl that Draper had traveled from Denver to Chicago by train for the purpose of purchasing heroin and that Draper would be returning to Denver by train on one of two specified mornings. The Cl gave the agent a detailed description of Draper, his clothing, and' his luggage and noted that Draper habitually “walked real fast.” Because the narcotics agent had found the information from the ,CI to bé rehable in the past, he waited at the train station on the specified dates for someone matching the description given by the CL Draper exited a train from Chicago on one of the mornings specified and walked very quickly towards the exit. Draper had the exact physical attributes, clothing, and luggage matching the description given by the Cl. The narcotics agent immediately arrested Draper and searched him, finding two envelopes of heroin in Draper’s left hand. Draper sought to have the evidence suppressed, but the United States Supreme Court upheld the admission of the evidence, finding that the narcotics officer had probable cause to arrest Draper and had properly searched him incident to that arrest. 358 U.S. at 314. The Draper court focused on the Cl’s prior reliability; the Cl’s description of Draper’s physical attributes including his appearance, clothing, luggage, and gait; the Cl’s accuracy in predicting Draper’s activities; and the narcotics agent’s confirmation of the Cl’s information. 358 U.S. at 313.
The Kansas Court of Appeals reached the same result in State v. Houze, 23 Kan. App. 2d 336, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997). In Houze, law enforcement officers received a tip from a Cl who had proven to be accurate in previous investigations. The Cl advised the officers that Houze would arrive at a specified motel carrying drugs. In addition, the Cl gave a description of Houze’s car and license number and told the officer what time he would arrive. The Cl also told the officers that he had contact with Houze on that day and that he had observed Houze with drugs. Based on this information, the officers awaited Houze’s arrival at the motel in an unmarked vehicle, independently verifying the Cl’s tip when Houze arrived at the time and place and in the manner predicted by the CL The officers later stopped Houze as he walked from his car into a residence, searched him without a warrant, discovered cocaine in his possession, and arrested him. The Houze court upheld the admission of the drug evidence, finding that the officers had probable cause to arrest Houze and that exigent circumstances justified his search and arrest without a warrant. 23 Kan. App. 2d at 338-41. The Houze court relied on the Cl’s previous accuracy in other investigations, the Cl’s accurate prediction of Houze’s actions, the Cl’s accurate description of Houze’s car, and the Cl’s personal basis for his knowledge. 23 Kan. App. 2d at 339.
This case is analogous to Draper and Houze. Detective Shipley received information from a Cl who he knew to be reliable. He verified the accuracy of the CPs information by performing surveillance at the location where the Cl predicted Abbott would purchase drugs. Abbott arrived at the location in the manner and at the time predicted by the Cl. In fact, the Cl called during the surveillance to update Detective Shipley on Abbott’s arrival time because Abbott was running behind. In addition to the Cl’s information, Detective Shipley knew that Abbott had sold methamphetamine to the Cl prior to the date of his surveillance in Haven and that Abbott’s destination was the home of a methamphetamine distributor.
Based on the Cl’s prior reliability, the Cl’s accurate prediction of Abbott’s activities and description of the vehicle he would be in, and Detective Shipley’s independent confirmation of the CI’s information, there was probable cause to arrest Abbott when Detective Shipley stopped behind the van and verified that Abbott was inside. Because the van was mobile and the evidence could have been lost or destroyed before a search warrant could be obtained, there were exigent circumstances justifying Abbott’s immediate arrest and the search of-the van without a warrant. See Houze, 23 Kan. App. 2d at 340-41. The subsequent search of Abbott at the police station- was properly conducted, as a search incident to a lawful arrest. See Payne, 273 Kan. at 475-76.
The facts in the record before us distinguish this appeal from State v. Freel, 29 Kan. App. 2d 852, 32 P.3d 1219 (2001), a case Abbott argues is analogous to his.
The Cl in Freel informed police that Freel possessed drugs and was parked in a maroon station wagon in a specific location. An officer noticed the maroon station wagon leaving the parking location and followed it. After stopping Freel for failing to stop at a stop sign, the officer noticed that Freel acted nervously and the officer asked for permission to search Freel. When Freel failed to consent, the officer detained Freel until a drug dog could sniff the exterior of Freel’s car. The drug dog did not alert on the exterior of the car, so the officer encouraged the dog to enter the open car window and sniff the interior of the car, where it ultimately dis covered drugs. Although the Freel court concluded that the officer had reasonable suspicion to stop and question Freel, the court suppressed the drug evidence, concluding that the sniff search of the interior of the car exceeded the scope of the stop and was not supported by probable cause. 29 Kan. App. 2d at 856-60.
A reading of Freel leads us to conclude that the quality of the information provided in Abbott’s case is greater than in Freel’s case. The Freel court correctly concluded that the Cl there was a mere tipster who had not worked with law enforcement for approximately a year, there was no corroboration of the information, and there was no evidence that the Cl had witnessed any crime involving Freel. Here, there was evidence that the Cl had executed a controlled purchase of methamphetamine from Abbott for Detective Shipley and that Detective Shipley had previously received rehable information from the CL
We conclude, as did the Court of Appeals, although through a different analysis, that based on the reasoning found in Draper and Houze, Abbott’s warrantless arrest was legal based on probable cause and the searches of Abbott and the van were valid incident to that arrest.
Sufficiency of the Evidence
Abbott next claims that there is insufficient evidence to support his conviction for possession of drug paraphemália. When considering whether there was sufficient evidence to support a criminal conviction, an appellate court must review all of the evidence, viewed in a light most favorable to the prosecution. If the appellate court is convinced that a rational factfinder would have found the defendant guilty beyond a reasonable doubt, then the conviction must be affirmed. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
The drug paraphernalia in this case was found in the rear seat pocket of both of the two middle seats in a customized van. Detective Shipley observed Abbott in the third row of seats in the van. One of the owners of the van was seated in one of the middle seats; the other owner was in the driver’s seat. The officer observed movement in the van before he contacted the occupants but could not determine what the movement was or who had been moving.
Citing State v. Rios, 19 Kan. App. 2d 350, 869 P.2d 755 (1994), the Court of Appeals determined that this case “is not a case of nonexclusive possession,” presumably because Abbott was sitting in the third seat behind the seat pockets where the drug paraphernalia was found. Abbott, 31 Kan. App. 2d at 715. This conclusion, however, overlooks the fact that the van was not owned by Abbott and was occupied by two other people.
In State v. Faulkner, 220 Kan. 153, 160, 551 P.2d 1247 (1976), this court stated that
“when illicit drugs are found in an automobile containing more than one person, the defendant’s mere presence in the vehicle, without more, would not sustain his conviction for possession. Other circumstances which have been held sufficiently incriminating to link a defendant with illicit drugs in a vehicle are his previous participation in the sale of drugs, his use of narcotics, his proximity to the area where the drugs are found and the fact the drugs were found in plain view.”
In reversing the defendant’s conviction for possession of drugs, the Rios court relied on this language from Faulkner and listed additional factors that may be considered for establishing possession when there is more than one person present when the contraband is found, including:
“(1) incriminating statements made by defendant; (2) suspicious behavior on the part of the defendant; (3) previous drug sales by defendant; (4) defendant’s use of narcotics; (5) proximity of defendant to the area where drugs were found; (6) drugs found in plain sight; and (7) other drugs or paraphernalia found on defendant.” 19 Kan. App. 2d at 357.
Several of these factors point to Abbott’s possession of the drug paraphernalia. They include his proximity to the area where the items were found, his previous drug sale to the Cl, and his possession of drugs in his underwear when the drug paraphernalia was found.
The United States Supreme Court recently ruled on a case which has similar facts, and that ruling requires us to extend our ruling in Faulkner.
In Maryland v. Pringle, 540 U.S. 366, 157 L. Ed. 2d 769, 124 S. Ct. 795 (2003), a police officer stopped a car for speeding, searched the car, seized $763 from the glove compartment of the car and cocaine from behind the back-seat armrest, and arrested the car’s three occupants after they denied ownership of the drugs and money. Pringle, who had been the front-seat passenger, was convicted of possession with intent to distribute cocaine and possession of cocaine and was sentenced to 10 years’ imprisonment. The Maryland Court of Special Appeals affirmed, but the Maryland Court of Appeals reversed, holding that absent specific facts tending to show Pringle’s knowledge and dominion or control over the drugs, the mere finding of cocaine in the back-seat armrest when Pringle was a front-seat passenger in a car being driven by its owner was insufficient to establish probable cause for an arrest for possession.
The United States Supreme Court held:
‘We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle cpmmitted the crime of possession of cocaine, either solely or jointly.” 540 U.S. at 372.
United States v. Di Re, 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222 (1948), is also helpful to this analysis.-The Di Re Court concluded that there was no probable cause for arresting Di Re because an informant had singled out another occupant in the car as the culprit. The Court there stated: “Any inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” 332 U.S. at 594.
Such singling out by an informant is precisely within the factual record in this case. We, therefore, conclude that there was sufficient evidence to support Abbott’s conviction for possession of drug paraphernalia even though he was not .the owner or the sole occupant of the van.
Abbott’s convictions are affirmed.
Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed.
Beier, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Horton, C. J.:
Ou the 7th day of December, 1885, this action was commenced by Mrs. Clarinda Chapman, to subject the lands of John B. Chapman, deceased, in Anderson county, in this state, alleged to have been fraudulently conveyed by him to Charles W. Chapman, to the payment of a judgment of alimony for $4,000, obtained by her in 1858, against John B. Chapman, her husband, and also for a partition of the lands between her and the children of John B. Chapman. Trial be fore the court without a jury. The court made and filed conclusions of fact and of law, and rendered judgment in favor of the defendants for costs. Mrs. Chapman excepted, and brings the case here.
It appears from the record that Mrs. Chapman was married to John B. Chapman on August 4,1853, in Ohio. They resided in Kansas in 1855 and 1856, and then Mrs. Chapman returned to Ohio; John B. Chapman remaining a resident of Kansas until 1862, living a part of the time on the land in dispute. At the June term for 1858 of the common pleas court, in Summit county, Ohio, Mrs. Chapman obtained judgment for alimony in.the sum of $4,000 against John B. Chapman, her husband, on account of ill usage and cruelty. In that action John B. Chapman personally appeared and answered. The only execution ever issued on this judgment was dated October 27, 1860. John B. Chapman died in Indiana in 1877, and no proceedings were ever taken to revive the judgment. It appears that John B. Chapman died intestate, but no letters of administration on his estate have been granted. Within the decisions of this court already announced, the judgment for alimony cannot be declared a legal or equitable lien on the property in this state of John B. Chapman, deceased, even if the property were fraudulently conveyed. In Ohio, a judgment for money becomes dormant after five years from its rendition; if an execution is issued, then within five years after the date of the last execution. As the last execution was issued on October 27, 1860, the judgment was dormant in Ohio long before John B. Chapman died. A judgment may be revived in Ohio by notice and motion, substantially as in this state. Even if the Ohio judgment were a judgment of this state, it would be dormant in five years after the date of the last execution issued thereon. (Civil Code, § 445.) A judgment cannot be revived after the expiration of one year from the death of the judgment debtor, without the consent of his representative or successor. (Green v. McMurtry, 20 Kas. 189; Halsey v. Van Vliet, 27 id. 474; Mawhinney v. Doane, 40 id. 681.) But on account of the dormancy of the judgment, and the failure to have it properly revived after the death of John B. Chapman, such judgment was not at the commencement of this action enforceable in Ohio, or in this state.
It is next contended that the plaintiff, as the former wife of John B. Chapman, deceased, is entitled to dower in the lands in controversy, and, therefore, that the court committed error in refusing to declare a partition thereof. The record shows that at the October term for 1865 of the common pleas court of Lorain county, in Ohio, Mrs. Chapman obtained a divorce from John B. Chapman on account of his willful absence from her for more than three years. Service in this action was obtained by publication, John B. Chapman not appearing in the case by answer or otherwise. Before Mrs. Chapman obtained her divorce, but after alimony had been allowed her, John B. Chapman had a marriage ceremony performed between himself and one Susan A. Chapman, on the 30th of January, 1859, at Washington, D. C. Mrs. Clarinda Chapman continued to reside in Ohio after 1858, excepting when temporarily absent in Iowa and Indiana. Prior to 1868, there was a statute in force in this state relating to dower, giving the widow at her election dower in her deceased husband’s real estate. (Comp. Laws of 1862, ch. 83.) But in 1868 this statute was repealed, and the estates of dower and by curtesy were abolished. (Gen. Stat. of 1868, ch. 23, §28; Comp. Laws of 1879, ch. 33, §28: Crane v. Fipps, 29 Kas. 585.) We cannot consent to the view vigorously claimed, that dower is such a vested right as to forbid the legislature from changing or repealing such contingent interest. (Crane v. Fipps, supra; Buffington v. Grosvenor, 46 Kas. 730; Cooley, Const. Lim., p. 361; 5 Am. & Eng. Encye. of Law, p. 904, and cases cited.) The effect of the divorce obtained by plaintiff from John B. Chapman was to exclude her from any interest, in his property, not specially mentioned, reserved or provided for in the decree of divorce. (Mitchell v. Mitchell, 20 Kas. 665; Daleschal v. Geiser, 36 id. 374; Crane v. Fipps, supra; Buffington v. Grosvenor, supra.)
It is urged that the divorce, having been obtained by publication, was not valid or binding upon John B. Chapman beyond the limits of Ohio. The divorce was alleged by Mrs. Clarinda Chapman in her petition and was admitted by the answer. John B. Chapman in his life-time]took no exception to it, and seems to have considered it valid and binding upon him.. It was a valid judgment rendered by a court having jurisdiction in Ohio. Mrs. Clarinda Chapman was the moving party to the judgment and claimed a divorce thereby. Under the pleadings she is in no condition to object to that judgment, and, so far as she is concerned, it is as good in Kansas as it is in Ohio. The jurisdiction over a divorce cause, properly brought in a court under the statutes of the state where the plaintiff actually resides, gives the court authority to nullify or dissolve the marriage status, although it has obtained no control over the person of the defendant, excepting by publication. Mrs. Clarinda Chapman had her domicile in Ohio at the time of the divorce proceedings. The court, under the statute of that state, had jurisdiction, and the proceedings therein render the divorce complete. After the decree of divorce, Mrs. Chapman was not legally the wife of John B. Chapman in Ohio, or in Kansas. See, also, ¶ 2900, Gen. Stat. of 1889, relating to executors and administrators, which provides that no claim to lands fraudulently conveyed shall be made unless within three years after the decease of the grantor; and Buffington v. Grosvenor, 46 Kas. 730, which decides that “where a husband conveys land in this state while his wife is a non-resident thereof, she has no dower interest in the land thus conveyed.”
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below, brought by the Bank of Pleasanton to recover $400 and interest, upon a fire insurance policy issued by the Capitol Insurance Company. The policy was issued on the 14th day of June, 1888, on a one-story frame building, situate in Blue Mound, Linn county, in this state. A premium of $16 was paid in cash to the insurance company at the time the policy was obtained. The building was destroyed by fire on the 2d of November, 1888. The case was tried by the court without a jury, by consent of the parties. Judgment was rendered in favor of the bank and against the insurance company for ’$414 and costs. The insurance company complains of the judgment and rulings of the trial court. As the by-laws of the insurance company attached to the policy were not signed by the president and secretary of the company or the insured, as prescribed by the statute under which the policy was issued, we cannot consider them as a part of the policy, and, therefore, one question only remains for our consideration. ( Capitol Insurance Co. v. Bank of Blue Mound, just decided.)
It is alleged that the bank, over the objection of the insurance company, introduced evidence upon the trial tending to show a waiver by the company of the proofs of loss required by the policy. In its petition the bank alleged that “it made out and delivered to- the insurance company proofs of loss in regular form, and that it had done and performed all of the requirements and conditions of the policy.” It also alleged in the petition that the insurance company “ denied all liability under the policy.” The policy required that the insured, after sustaining any loss or damage by fire, “should give notice in writing forthwith of its loss to the company, accompanied with a copy of the written portion of the policy.” The insurance company, in its answer, denied all of the allegations contained in the petition, but admitted the execution of the policy sued on, and then alleged a breach of the conditions thereof under the policy of the company, on account of misstatements or false representations in the application of the bank concerning the ownership or title of the property insured and an alleged incumbrance thereon. As a rule, a waiver of proofs of loss cannot be proved unless it is within the issues made by the pleadings. (Insurance Co. v. Johnson, 47 Kas. 1; same case, 27 Pac. Rep. 100; Insurance Co. v. Thorp, ante, p. 239; same case, 28 Pac. Rep. 991.)
On December 8, 1888, about 35 days after the building had been destroyed by fire, the insurance company, through one of its officers, wrote to the bank as follows:
“We are advised by our attorneys, after a careful examination, that we are not liable to you under our policy No. 4207, for any loss or damage to property, as stated in your purported proofs of loss. Denying liability as we do, we hold said proofs of loss subject to your order.”
It appears from the evidence introduced before the letter was admitted that the bank had shown it had sent proofs of loss after the fire to the insurance company, and that it had received from the company this letter in answer. This letter, therefore, was competent, as tending to show that the insurance company had received the proofs of loss, as alleged, and took no exception to their form, but “denied all liability under the policy,” and offered, for that reason, to return the proofs. This case, therefore, differs from the eases cited, holding that, in absence of proper issues, proof of waiver cannot be made. Again, this case was tried by the court without a jury. The evidence of the denial of all liability under the policy was the letter or writing from the insurance company. Even if there was any variance between the issues presented and the evidence received, such variance is so slight in this case that the petition might be considered as amended to conform to the facts proved. (M. V. Rld. Co. v. Caldwell, 8 Kas. 244; Mitchell v. Milhoan, 11 id. 617.)
The judgment of the district court will be affirmed.
Valentine, J., concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
B. H. Mott brought his action against the Cherryvale Water & Manufacturing Company for $700 damages. He alleged in his petition that the defendant is a corporation having the right to construct, maintain and operate a system of water-works in the city of Ottawa, in this state, and has carried on that business under an ordinance enacted by the mayor and council of said city; that on May 2, 1887, he was a citizen and resident of Ottawa and owned personal property, then in his place of business, on block 71, which was, on that day, burnt up without his fault; that it was, by the terms of said ordinance, defendant’s duty to furnish a water pressure of 65 pounds within seven minutes after a fire alarm, 75 pounds within 10 minutes, and thereafter, during the fire, a sufficient supply for fire protection; the alarm to be given by the bell, such pressure to be determined by the register in the engine house; that defendant agreed, by the terms of the ordinance, “that it would pay all damages that might accrue to any citizen of the city by reason of a failure on the part of de fendant to supply a sufficient amount of water, or a failure to supply the same at the proper time, or by reason of any negligence of the defendant;” that the alarm was given at 1:45 A. M., but defendant failed and neglected, within seven minutes thereafter, to furnish a water pressure of 65 pounds, and within 10 minutes a pressure of 75 pounds, and thereafter, during the fire, a sufficient supply of water for fire protection; that, by reason thereof, his goods were consumed by the fire. Defendant answered, admitting that it was a corporation, as alleged; denying, “all and singular,” the other allegations of the petition, and averring “that there is and always was a total want of consideration for the supposed and pretended contract, alleged in the petition.” Upon the trial, a verdict was rendered for the plaintiff for $200. Defendant filed its motion for a new trial, which was granted. The plaintiff excepted, and brings the case here.
The trial court, in granting the motion for a new trial, ruled that the clauses of the contract and ordinance between the water and manufacturing company and the city of Ottawa did not give the plaintiff a right to recover the damages alleged in his petition, there being no privity of contract between him and the city of Ottawa, and no legal obligation from the city to the plaintiff upon which it could contract for indemnity. The ruling of the trial court is fully sustained by the great weight of the authorities — by all, or nearly all, of the decisions. . The fact that a city levies and collects a tax to be paid to a water company does not create any privity of interest between the water company and a citizen or a resident of the city. In making such contract, the city discharges one of its duties for which it was created, and in raising the required money it only provides the consideration due from it by virtue of the contract. A water company could not proceed directly against a citizen or resident in the first instance for unpaid money due under the contract from the city. “Municipal corporations have and can exercise only such powers as are expressly granted to them by law, and such incidental ones as are necessary to make those powers avail able, and are. essential to effectuate the purposes of the corporation ; and those powers are strictly construed. The law which authorizes cities to contraet with individuals and companies for the building and operating of water-works confers no powers upon a city to make a contract of indemnity for the individual benefit of a citizen or resident of the city for a breach of which he can maintain an action in his own name.” Under the powers conferred by the statute upon cities in this state, a city making a contract with a water company to furnish water for fires, etc., is not liable to its citizens or residents on account of the failure of the company to furnish water or to perform the conditions of the contract. If a city is not liable to its citizens or residents, the water company is not liable to such citizens or residents upon a contract between it and the city. The contract in such a case is between the city and the water company only. (Gen. Stat. of 1889, ¶¶ 1401, 1402; Becker v. Water-Works, 79 Iowa, 419; Davis v. Water-Works Co., 54 id. 59; Van Horn v. City of Des Moines, 63 id. 447; Nickerson v. Hydraulic Co., 46 Conn. 24; 33 Am. Rep. 1, and notes 5-9; Fowler v. Water-Works Co., 83 Ga. 219; Vrooman v. Turner, 69 N. Y. 280; Weet v. Village of Brockport, 16 id. 161; Foster v. Water Co., 2 Lea, 42; Safe Co. v. Ward, 46 N. J. L. 19; same case, 31 Alb. L. J. 449; Blake v. Ferris, 5 N. Y. 48; Exchange Bank v. Rice, 107 Mass. 37; same case, 9 Am. Rep. 1; Ferris v. Water Co., 16 Nev. 44, and the cases there cited.)
In several cases, it has been held that a city is not liable for its neglect in cutting water off from a hydrant, but for which the fire might have been extinguished. (Taintor v. Worcester, 123 Mass. 311; New Orleans v. Insurance Co., 25 La. Ann. 390; Wheeler v. Cincinnati, 19 Ohio St. 19; Heller v. Sedalia, 53 Mo. 159; 14 Am. Rep. 444; 25 id. 90.) This action is not based upon a breach of a statutory duty, but upon the failure of the water and manufacturing company to comply with a contract made with the city of Ottawa. It is not charged in the petition that the plaintiff is a tax-payer, or has ever paid any taxes in Ottawa. It is alleged, however, that he is a citizen and resident of Ottawa, and, at the time of the fire, was the owner and in possession of personal property, consisting of clothing, household fixtures, furniture, etc., of the value of $700.
There is no claim that this is an action ex delicto. In support of the contention of the plaintiff, the case of Lumber Co. v. Supply Co. (Ky.), 12 S. W. Rep. 554, is referred to. That case differs from this. In that case there was an express contract, set out in the petition, between the lumber company and the water-supply company, by which, in consideration of rent paid for the use of the two hydrants on its own lot, water was agreed to be furnished directly to the lumber company. In referring to the decision in that case, Mr. A. C. Freeman, the law writer, and one of the editors of “The American Decisions,” says, “that the Kentucky court took a different view and reached an opposite conclusion from the other courts by which the question has been considered-and determined.” (18 Am. St. Rep., notes on pp. 380, 381.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district .court of Crawford county, on March 1, 1888, by the Pittsburg Roller Milling Company against W. H. Cogshall and C. S.Henning, partners, doing business under the firm-name of Cogshall & Henning, to recover for an alleged breach of a contract to sell and deliver 10 car-loads of corn at Cherokee, in Crawford county. At the August term, 1891, a trial was had before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendants, and assessed plaintiff’s damages at $247.50, and the court rendered judgment accordingly; and the defendants, as plaintiffs in error, have brought the case to this court for review. Errors are assigned in this court as follows:
“1. The said court erred in overruling the defendants’ demurrer to the petition of the plaintiff, which demurrer should have been sustained by the court for the reason therein set forth and for the ground thereof.
“2. The court erred in overruling the demurrer of the defendants to the evidence of the plaintiff, as said demurrer should have been sustained for the causes therein set forth • and the grounds thereof.
“3. The court erred in overruling the defendants’ motion for a new trial, which motion should have been sustained for the reasons therein set forth and upon each and every ground thereof.”
The grounds upon which the defendant’s motion for a new trial was based are as follows:
“1. For error in the assessment of the amount of the recovery, said amount of recovery being too large.
“2. Because the verdict is not sustained by sufficient evidence.
“ 3. Because the verdict is contrary to law.
“4. For error of law occurring at the trial and excepted to by the defendants at the time.”
In this court it is claimed that the petition of the plaintiff below did not state facts sufficient to constitute a cause of action; that the evidence introduced on the trial did not prove any cause of action; that the court below erred in the admission and exclusion of evidence, and that the verdict is excessive. There is really so little ground for any claim of material error that we scarcely know what to say. The petition of the plaintiff below clearly stated a cause of action; and the evidence tending to prove the plaintiff’s case clearly proved a cause of action. But probably the principal cause for complaint is this: There was much contradictory evidence, and the evidence of the defendants appears from the record brought to this court to be fully as strong and convincing as that of the plaintiff. These matters, however, we cannot con sider. What the evidence proves and what it disproves, where there is a conflict, are questions solely for the jury and the trial court, and the jury and the trial court, that see the witnesses' and hear them testify, are much better qualified to determine these questions than we are. Some slight errors were committed during the trial, but not one of them or all of them together would authorize a reversal of the judgment of the court below. They were slight and immaterial. Some of the supposed errors, however, of which the plaintiffs in error, defendants below, complain, are not errors at all. For instance, it was not error for the court below to refuse to permit the following question, propour, ded by the defendants to the defendant Henning, to be answered, to wit: “Did you ever accept this proposition of his?” The defendants should have asked their own witness, who was also a party, only what was said and what was done, and then let him state the facts, and not merely conclusions. It was shown, however, by the testimony of this same witness that he did not accept the proposition; but it was also shown on the other side, by the testimony of the plaintiff below, that he did.
It is now claimed that the verdict of the jury is excessive. This claim was perhaps not fairly made in the court below. But treating it as having been specifically made in that court and overruled, then did the court commit such an error by overruling it as will require a reversal or modification of its judgment by this court? The defendants below agreed to furnish 10 cars of shelled corn at Cherokee. They furnished one car, and then failed and refused to furnish the remainder, the nine other cars, claiming that they never agreed, and were under no obligation, to furnish more than one car. They were to furnish the corn on the cars at the price of 34 cents per bushel, which was about the market price at the time of the agreement; but corn immediately advanced in price. It is supposed by the defendant in error, plaintiff below, that the verdict of the jury was rendered upon the following theory: Each car would hold about 550 bushels of shelled corn, or the nine cars would hold about 4,950 bushels, and the jury estimated the price of the corn when it should have been delivered at about 39 cents per bushel and allowed as damages about 5 cents per bushel. The evidence tended to show that some cars would hold more and some less than 550 bushels of shelled corn, but that cars of average capacity would hold about that amount; and the evidence also tended to show that at about the time when this corn was to be delivered the price went up as high as 38 cents per bushel on the street, and that it would have taken 3 or 4 cents more per bushel to have shelled it and put it into the cars according to the contract, which would have made it cost from 41 to 42 cents per bushel on the cars. The jury probably allowed for the corn at the rate of 39 cents per bushel, although this is not definitely shown. The jury may have estimated the cars as holding more than 550 bushels, and the corn worth less than 39 cents per bushel.
We have considered all that counsel for the plaintiffs in error have said with respect to the different kinds of corn, the different kinds of value, the fluctuations in the prices of corn at Cherokee and the causes for such fluctuations, the supposed hearsay testimony of Boaz, the s’upposed irrelevant testimony of Lanyon, the Memphis matter, etc., and, taking all these matters and others into consideration, still we do not think that anything occurred in the case that would require or even authorize a reversal of the judgment of the court below. The judgment of the court below will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action commenced before a' justice of the peace of Greenwood county, on November 10,. 1888, by Nelson Curtis, Albert Curtis, and Frank Curtis,, partners doing business under the firm-name of Curtis Bros.,, against the St. Louis & San Francisco Railway Company, tereco ver for damages caused by fires occurring October 10,. 1888, and November 1,1888, and originating from the operation by the defendant of its line of railroad. After judgment in the justice’s court, the case was appealed to the district-court. Afterward, and on February 1, 1889, the case was- tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiffs and against the defendant, for $200, and also made special findings in favor of the plaintiffs and against the defendant, finding that the damages caused by the fire of October 10 amounted to $172, and that the damages caused by the fire of November 1 amounted to $5, and the court found that a reasonable attorney’s fee was $50; and the court rendered judgment in favor of the plaintiffs and against the defendant for $177 damages and $50 attorney’s fee, and for costs of suit; and the defendant, as plaintiff in error, brings the case to this court for review.
The first objection to the rulings of the court below presented by the plaintiff in error, defendant below, is the overruling of the motion of the defendant below to require the plaintiffs to separately state and number their several causes of action, and to make their bill of particulars more definite and certain, by stating the negligence relied on, the kind of train from which the fires were set out, and the time when the fires were set out. The plaintiffs’ bill of particulars was filed in the justice’s court on November 10,1888. Evidently a final judgment was rendered in that court, for otherwise no appeal could have been taken to the district court; and from the brief of counsel on the other side it appears that there was a trial in that court and that it was the defendant that appealed, though the record does not show this. Evidently the defendant knew just what the plaintiffs relied on. It is true the plaintiffs’ bill of particulars stated two causes of action without separately stating or numbering them, and the bill of particulars may not have been as definite and certain as a petition in the district court ought generally to be; but, as before stated, the defendant evidently knew just what the plaintiffs relied on, and it would have been a purely technical requirement to have required the plaintiffs to amend their bill of particulars as desired by the defendant. Eor the purposes of justice, it was wholly unnecessary that the amendment should be made. Besides, the statute provides that in all cases of appeal from a justice of the peace to the district. court “ the case shall be tried de novo in the district court, upon the original papers on which the cause was tried before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to be made or new pleadings to be filed.” (Justices’ Act, § 122.) The defendant’s motion was not filed until January 14, 1889. We think no error was committed by the court below in overruling it.
It is also claimed that the court below erred in instructing the jury. Now, taking only that isolated portion of one of the instructions referred to and quoted in the brief of counsel, it would be subject to criticism; but, taking the whole of the instruction and the entire charge of the court to the jury, we do not think that it is possible that the jury could have been misled, and therefore the error, if any was committed, is immaterial.
It is further claimed that the court below erred in rendering judgment against the defendant for $50 as an attorney’s fee, when the plaintiffs in their bill of particulars stated that $20 was a reasonable attorney’s fee, and prayed for judgment for that amount only. We think in this respect the contention of the plaintiff in error, defendant below, must be sustained.
There are other questions presented by counsel for the plaintiff in error, defendant below, which for reasons not necessary to state we need not consider.
The judgment of the court below with regard to damages will be affirmed, and with regard to attorney’s fee it will be modified by reducing the amount to $20.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is contended that the trial court committed error in admitting evidence for the purpose of proving an estoppel. The petition alleged that the foundation and brick wall were on the division line between lots 16 and 18, on Market street, in Wichita. The evidence offered tended to show that the plaintiff below employed the city engineer to designate and mark out the correct division line between lots 16 and 18. It seems to have been established that the foundation and wall were constructed upon the line so designated, and that the defendant below not only used the south half of the foundation and brick wall as a part of the north wall of his own building, which he erected, but also that he verbally agreed with plaintiff below to pay one-half of the expenses thereof. There is a conflict in the evidence as to whether the city engineer designated the correct division line, it being claimed upon the part of defendant below that the foundation and wall were actually laid upon his own lot, not the division line, nor upon the lot of plaintiff.
We think, upon the record, defendant below has no complaint to make.
There is evidence supporting the general verdict of the jury, and the special findings are to be harmonized, if possible, to sustain the verdict. They can be so harmonized, and therefore the judgment properly followed the verdict. The admissions and agreements of plaintiff below tended to prove that, at the time of the erection of the foundation and wall, the ■parties supposed they were being erected upon the division line between the lots. After the survey was made, the defendant below was present at the construction of the foundation and wall and made no objection. Both parties treated the foundation and wall as upon the division line, and the defendant below afterward used this wall in the construction of his own building, and appropriated to himself the benefits growing out of the construction of the same. At most, the evidence objected to merely tended to corroborate the evidence of the plaintiff below, and to establish that a party wall was built; and whether it was upon the exact division line or not, is not, for the purpose of this case, material. We do not think there was such a variance between the allegations of the petition and the proof offered as to justify any reversal.
The other points submitted have been considered, and, in, our opinion, they do not prevent the recovery.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by Elvira Mizee against the city of Olathe, to recover for personal injuries sustained by her in falling into an excavation in a public street of the city of Olathe, which was left uncovered and unguarded. She was injured in the night-time, while crossing Kansas avenue at its intersection with Park street, and while passing along on the south side of Park street. An excavation was made by the city, under the direction of the street commissioner, about 20 inches deep and 20 inches wide, for the purpose of laying a drain pipe to carry off water along the east side of Kansas avenue. It extended from the cross-walk on the south side of Park street southward. The cross-walk was constructed of two rows of stone, each of which was 20 inches wide, with an intervening space between them of 20 inches. The ditch, which extended up to this cross-walk, was left unguarded; and the plaintiff, in attempting to pass along the cross-walk, met parties going in an opposite direction, and, stepping aside to allow them to pass, she fell into the ditch and sustained the injuries complained of. The jury awarded her f800, and the city complains, and assigns several rulings •of the court as error.
An exception was taken to the admission of testimony in •regard to the placing of a light at the ditch by the city marshal subsequent to the occurrence of the injury. It was con tended that it was offered to show negligence on the part of the city and an admission that such a precaution should have been taken prior to the accident. On the other side, it was said that it was not offered for that purpose, but that as one witness had incidentally remarked that there was a light there, the testimony was introduced merely to show that it was not there when the injury occurred, and to prevent the inference that Mrs. Mizee, by the aid of such light, should have seen and avoided the excavation. Whatever may have been the purpose of the parties in respect to this testimony, it is unimportant in this case, and the objection made is immaterial. The negligence of the city in the matter is undoubted. To leave such a dangerous excavation in a public thoroughfare of the city, and close to a much-used walk, without guards, barriers, lights, or danger signals, is a marked case of carelessness. It would be clearly negligence to leave such a ditch uncovered and unguarded in the day-time; but for the city authorities to permit such a pitfall to remain open and without lights or guards in the night-time, with full knowledge of its dangerous character, is gross carelessness. There is no dispute as to the existence, location and character of the excavation; and hence the ruling of the court upon the admission of testimony respecting the negligence of the city is unimportant. If the question of negligence on the part of the city had been in issue, the court would have been justified in admitting the testimony. (Railroad Co. v. Chase, 11 Kas. 47; Railroad Co. v. Retford, 18 id. 245; City of Emporia v. Schmidling, 33 id. 485; Railway Co. v. Weaver, 35 id. 412; City of Abilene v. Hendricks, 36 id. 196; Railroad Co. v. McKee, 37 id. 592.)
Complaint is made of the refusal of an instruction requested by the city, that if it was found from the evidence “that the injury complained of was caused by the negligence of the city, combined with the negligence of a third party, for whose acts the city was not responsible, and would not have happened but for the acts of such third party, then the city is not liable, and you must find for the defendant.” The request was based upon testimony to the effect that Mrs. Mizee stepped from the cross-walk to avoid a collision with persons who were approaching her on the walk from the opposite direction. The testimony in the case is not such in our opinion as to require a statement of the rule with reference to the proximate and remote causes of the injury. It is not of such a character that it can be said that the injury would not have occurred but for the negligence of the persons who met and passed her upon the street. There is nothing to indicate any negligence on their part. They did not jostle or push her. She was carrying large bundles in her arms, and, as they did not appear to see her in the darkness as they approached, she stepped aside in order to allow them to pass. If they had seen her, and stepped aside, it is quite probable that they would have suffered the same misfortune which befell her. Even if the testimony warranted an instruction upon the subject of concurring negligence, the one requested by the city does not correctly state the law. (Village of Carterville v. Cook, 129 Ill. 152; Webster v. Railroad Co., 38 N. Y. 260; Ring v. City of Cohoes, 77 id. 83; Railroad Co. v. Mahoney, 57 Pa. St. 187; Burrell v. Uncapher, 117 id. 353; Smith v. Railroad Co., 46 N. J. L. 7; Winship v. Enfield, 42 N. H. 197; Railroad Co. v. Terry, 8 Ohio St. 570; Hunt v. Pownal, 9 Vt. 411; Taylor v. City of Yonkers, 18 Am. & Eng. Cor. Cases, 266; Patt. Rly. Acc. Law, §§39, 95; Shear. & R. Neg., §§31, 36, 346.)
The proximate cause of the injury was the negligence of the city. It was its duty to keep, not only the cross-walks, but the entire width of the street in a reasonably safe condition for both pedestrians and teams. It was one of the principal thoroughfares of the city, and in the absence of any guards, lights, or notices of danger, Mrs. Mizee had a right to presume that all parts of it could be traveled with safety. A divergence or departure from the cross-walks is ordinarily not an evidence of want of care. Pedestrians have a right to cross a street at any point, and it is the common practice to do so. A difference in this respect exists between sidewalks and crosswalks, as the former are for pedestrians only, while the latter are placed on a level with the street and are traveled over by both foot passengers and vehicles. The cross-walk in question was narrow, consisting of two rows of stones; but the plaintiff was not restricted to picking her wáy across the street on these stones; and if she had crossed at another point where the open ditch was met, and, without negligence on her part, had fallen therein, she might have recovered for her injuries.
“'A person desiring to cross the street, either in the nighttime or in the day-time, is not confined to a crossing. He has a right to assume that all parts of the street intended for travel are reasonably safe; and if in the night-time he desires to cross from one side to the other, and knows of no dangerous excavations in the street, or other obstructions, he may cross at any point that suits his convenience, without being liable to the imputation of negligence.” (Brusso v. City of Buffalo, 90 N. Y. 679; also Raymond v. City of Lowell, 6 Cush. 524.)
The city assigns as error the refusal of the court to require more specific answers to several questions. One of them was: “Could the plaintiff have remained upon the cross-walk by the use of ordinary care?” Another was: “Would she have been injured if she had passed to the right of the walk?” In response to these questions, the jury answered: “No evidence.” From what has been said it will be readily seen that there is no materiality in either of the questions.
Some other objections are made, but they are not of.suffieient importance to require consideration or comment.
We think the case was fairly tried, and that a just result was reached. Judgment affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This action was brought by defendant in error in the district court of Cowley county, to recover of the plaintiff in error the sum of $3,000. The cause of action, as alleged in the petition, was that plaintiff furnished defendant certain moneys to invest for her, and that the defendant, in the course of business which continued several years, made some bad investments, whereby the plaintiff claims to have suffered loss. She also claims that defendant made certain erroneous charges against her, specifying each item of said charges. The defendant in his answer denies all of the allegations of the petition, sets up certain demands or claims against the plaintiff, and demands judgment against her for $3,100. To this answer the plaintiff filed a general denial in reply. The issues thus made were, by the court, referred to a referee on the 17th day of April, 1888, and the referee ordered to report at the September, 1888, term of the court. At the September, 1888, term, on the 12th day of November, 1888, the referee was given until the first day of the next term to make his report. The next term of the court began on the 18th day of December, 1888, and on the 25th day of February, 1889, an adjourned day of the said December term, the said referee, without the appearance of either party or their attorneys, was given until the first day of the next regular term of the court to make his report. On the first day of the next April term of court, to wit, April 2,1889, the referee was given until the 1st day of May, 1889, to make his report. On the 4th day of May, 1889, after the expiration of the last extension of time, the referee again appeared, in the absence of the parties and their attorneys, and obtained further extension of time until the 1st day of July, 1889, and on that day the referee filed his report, together with the exceptions of the defendant. On the 8th day of July, 1889, the court overruled the motion of the plaintiff to confirm the report of the referee, and on its own motion, without application by anybody, and over the objection of the plaintiff, sent the report back to the refferee with directions and instructions that he should make findings in the case in accordance with the trial already had, and should give notice, etc., “and to make due return of his doings under this order.” On the 2d day of October, 1889, the referee filed his report, together with the exceptions of the defendant, which findings were as follows:
“1. On the 20th day of October, 1887, the same being the date of the commencement of this action, upon a fair settlement and accounting between said parties of the matters and things stated and set forth in the pleading in said cause, there was justly due and owing from the said defendant, J. C. McMullen, to the said plaintiff, S. E. Sehermerhorn, the sum of $268.13, and by the contract between said parties said plaintiff is entitled to have interest upon said sum at the rate of 12 per cent, per annum from said October 20, 1887, until paid.
“2. Said plaintiff is entitled to have judgment against said defendant in this action for said sum of $268.13, with interest thereon at the rate of 12 per cent, per annum from October 20, 1887, until the date of the rendition of such judgment, and to have such judgment bear interest at the rate of 10 per cent, per annum, and plaintiff is also entitled to judgment against said defendant for her costs.”
On the 3d of October, 1889, the plaintiff filed her motion to confirm the report, and the defendant filed his motion to set aside the report and for a new trial. Both motions were heard on the 29th day of October, 1889, and the motion to set aside the report and for a new trial was overruled, and the report was confirmed and judgment rendered against the defendant, in accordance with the report, to all of which the defendant duly excepted. The trial before the referee was had on the 13th day of September, 1888, and the findings of fact and conclusions of law were announced September 2, 1889.
It is not necessary to comment on the other questions discussed by counsel, as we are of the opinion that it was the duty of the referee to find specifically the facts in reference to the disputed items of account between the parties. For instance, we think that there should have been a specific finding as to the Winfield bank stock, as to the Rose collection of $75, as to the Sthule note and mortgage, as to the loans to Wright and McKibben, and as to other important accounts, about which there was conflicting evidence. We think specific findings of all important facts in issue are required by the code, and by the cases of Oaks v. Jones, 11 Kas. 443; Dodd v. Hill, 21 id. 707, and some other authorities. The attention of both the referee and the trial court was called to this requirement, and each refused to observe it. The special finding of the referee in this case is so indefinite and so general in terms that the specific controlling facts cannot be reviewed. We suppose that either party has the absolute legal right to have such a presentation of the controverted questions, where there are several of them, that errors can be assigned with reference to each one of them. The finding in this particular case is so general that it is impossible for the plaintiff in error to complain that the Winfield bank transaction, for instance, was not sustained by sufficient testimony, or by any legal evidence. For this reason, we are of the opinion that the judgment must be reversed and a new trial granted. There may be a new trial de novo, or some other order may be made by the district court of Cowley county whereby the rights of all parties may be protected without the expense and trouble of a trial de novo. This ruling dispenses with the consideration of the question of the power of the referee, by reason of the various extensions of time within which to make his report.
We recommend that the judgment be reversed, and the cause remanded for further proceedings.
, By the Court: It is so ordered. ■
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action to cancel certain bonds issued by the city of Pomona, in Franklin county, under the authority conferred by chapter 114 of the Laws of 1887, (¶458, Gen. Stat. of 1889,) being an act to authorize counties and cities of the second and third class to issue bonds for the purpose of encouraging the development of coal, natural gas, and other resources, by subscribing to the stock of companies organized for that purpose. On the 4th day of July, 1887, J. H. Whetstone and 42 others petitioned the city council of Pomona, a city of the third class, to call a special election for the purpose of authorizing the city council to subscribe for the purpose of developing the natural resources of the city by boring or mining for natural gas, coal or artesian wells, etc. The council granted the petition, and gave notice of an election to be held on the 28th day of July, 1887, for the purpose of authorizing the council to subscribe to the capital stock of a company, and to fund the subscription in accordance with the statute. The company to which it was proposed to issue bonds and in which it was proposed to take stock was not named or stated in the petition, the vote of the city council, or the mayor’s proclamation. The election notice did not state the amount of stock the city was to take, but did state the limit under the law. On the 6th day of February, 1888, the mayor was authorized by an ordinance of that date to subscribe to the capital stock of the Pomona Mining and Gas Company in the sum of $3,000, and, in payment for the same,issue a like sum of the bonds of the city. The bonds were issued January 2,1888, and registered by the state auditor on the 8th day of August, 1888. On the 16th day of February, 1888, the mining company and the mayor negotiated a loan of $1,000 from the plaintiff in error, and pledged the bonds issued by the city to the bank for the payment of the loan. The money thus secured was used in paying the debts of the mining company. In August, 1888, the city levied the tax to pay the interest on the bonds, which was collected and paid to the bank. In March, 1888, the Pomona Mining and Gas Company transferred its interest to another company, which seemed to have failed. In the business transactions of the mining company the city took part and voted its stock. No part of the $1,000 loan has been paid, except the interest paid from the tax levy of 1888. The district court found that the bonds were void, and should be surrendered and canceled, and enjoined the levy and collection of any tax for the payment of the interest or principal upon them. The bank brings the case here.
We think the bonds were unauthorized. The law provides that— !
“No such subscription shall be made until a majority of the voters . . . shall have voted, at some . . . election called therefor, ... in favor of so doing, stating the amount of stock desired, the amount of bonds to be issued; and upon a majority vote therefor, the city council shall make such subscription, to the amount so authorized at said election.”
This would clearly indicate that some amount should be stated in the notice for the election. Simply stating the limit of the issue fixed by the law would not, in our judgment, be sufficient. The amount of the proposed issue of bonds should have been stated in the election notice. We are of the opinion, too, that the corporation to which the city proposed to issue the bonds should have been named in the petition and notice. It was said by Mr. Justice Brewer, delivering the opinion of the court in the case of Lewis v. County of Bourbon, 12 Kas. 206, under a statute similar to the one authorizing the issuance of bonds in this case:
“But the issue of the bonds is the last act, . . . the consummation of the contract. If the language limits the question to that of issuing bonds, it limits it to that which implies a subscription already made, a contract already entered into, and therefore an existing and named corporation, the recipient of the subscription, and the party to the' contract. . . . The fairness and good sense of the legislation is altogether on the side of the construction which the natural meaning of the language so plainly demands. It seems, therefore, that some corporation must be named as the recipient of the subscription and bonds, or the proceedings will be without warrant of law and void.”
(See, also, Railroad Co. v. Miami County, 12 Kas. 230; The State v. Roggen, 22 Neb. 118; Coler v. Cleburn, 131 U. S. 162.)
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
On the 19th day of January, 1888, Thomas H. Stone commenced an action against the defendants in error and S. B. Warren, sole surviving partner and administrator of the partnership estate of Warren & Harrison, in the district court of Marion county, to foreclose a mortgage. Summons was personally served upon the defendants, and they were required to answer the plaintiff’s petition on or before the 20th day of February, 1888. Ou the 9th day of March, 1888, Thomas J. Curry, who held a third mortgage upon the real estate covered by the plaintiff’s mortgage, made application to the district court to be made a party defendant; and was given permission to file an answer and cross-petition setting up his mortgage, which was done. The plaintiff and the defendant Warren each filed a reply to the answer and cross-petition of Curry. On the 8th day of April, 1888, a judgment was duly entered, and a finding made that the defendants in error had been duly and personally served with summons; that the plaintiff had a first lien upon the mortgaged premises; that the defendant Warren had a second lien ; and that the plaintiff in error had a third lien; and the court ordered the premises sold to satisfy the several judgments and costs according to priority. On the 24th day of July, 1889, the defendants in error filed a motion to set aside the findings, decree and judgment in favor of the plaintiff in error, for the following reasons: (1) That the court had no jurisdiction; (2) that the summons did not show Curry to be,a party; (3) because Curry was made a party by the court afcer answer-day ; (4) because the judgment in favor of Curry was void; (5) because of irregularity in obtaining the judgment. The court sustained the motion, and made an order vacating the findings and judgment in favor of Curry, and directed the return of an execution which had been issued thereon. This ruling of the court is assigned as error.
This court said over 25 years ago, that when the original summons is served the defendants are in court for every purpose connected with the action, and the defendants served are bound to take notice of every step taken. (Kimball v. Connor, 3 Kas. 414.) This practice has been followed since 1866 in this state, and we do not think the rule should be disturbed now. It is recommended that the order of the district court, setting aside and vacating the judgment for the sum of $1,046, rendered on the 9th day of April, 1888, in favor of the plaintiff in error and against the defendants in error, be reversed, and that the case be remanded with instructions to the district court to overrule the motion to set aside the findings, decree and judgment in favor of the plaintiff in error.
By the Court: It,is so ordered.
All the Justices concurring. | [
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In a letter dated November 25, 2003, to the Clerk of the Appellate Courts, respondent Thomas R. Lietz, of Topeka, Kansas, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice in Kansas, effective December 31,2003, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281).
At the time the respondent surrendered his license a hearing involving complaints filed by 8 of his clients was pending. In addition, an additional 10 cases involving complaints filed by the respondent’s clients were being investigated by the Topeka Bar Association Ethics Committee. The cases involved allegations of lack of competence, lack of diligence, lack of communication, and accepting retainers and performing no work.
This court, having examined the files of the office of Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and the respondent should be disbarred.
It Is Therefore Ordered that Thomas R. Lietz be and he is hereby disbarred from the practice of law in 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 Thomas R. Lietz from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
Dated this 31st day of December, 2003. | [
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The opinion of the court was delivered by
Davis, J.:
This case presents the question whether a workers compensation claimant’s use of a false name in applying for benefits and lying under oath as to her identity in the proceeding to obtain benefits were fraudulent or abusive acts under K.S.A. 44-5,120 (1993 Furse) even though the claimant was legally entitled to the benefits she received. Jane Doe, a/k/a Victoria Acosta, a/k/a Deha Butanda, appeals from the district court order affirming the final order of the Secretary of Human Resources imposing a civil fine against Butanda for fraudulent or abusive acts under K.S.A. 44-5,120 (1993 Furse). We affirm.
FACTS:
Deha Butanda was an illegal immigrant who sought and obtained employment with National Beef Packing Company (NBP) in Dodge City using an assumed name and social security number. On September 8, 1995, Butanda was injured during the course of her employment. She filed a workers compensation action using the name and social security number of Victoria Acosta. During the workers compensation proceedings, Butanda lied under oath about her identity on four different occasions. (March 18, 1996, November 19, 1996, January 22, 1997, and March 10, 1997) For a detailed statement of the facts involving Butanda’s workers compensation claim, see this court’s decision in Acosta v. National Beef Packing Co., 273 Kan. 385, 44 P.3d 330 (2002).
On August 17, 1999, the Workers Compensation Division’s Fraud and Abuse Unit received a referral from the Kansas Insurance Department indicating that Butanda was using a false name. On November 17,1999, Investigator Jimmy D. Huff submitted an investigation summary to the Fraud and Abuse Unit. On January 3, 2001, Director of Workers Compensation Philip S. Harness issued a summary order pursuant to K.S.A. 77-537 finding that Butanda had violated K.S.A. 44-5,120(d)(4)(A) and/or (B) (1993 Furse) by using an assumed name and social security number in her workers compensation claim. The summary order indicated that the complaint was received on August 20, 2000. Butanda was assessed a monetary fine of $2,000 pursuant to K.S.A. 44-5,120(g)(1) (1993 Furse). Butanda filed a timely request for hearing on the summary order.
On September 21, 2001, a fraud and abuse hearing was conducted before Hearing Officer Larry Kams regarding the summary order. At the hearing, Butanda admitted she had intentionally testified her name was Victoria Acosta during workers compensation hearings and depositions, but denied that such constituted fraudulent and abusive acts.
In the December 10, 2001, amended order granting penalties and costs, the hearing officer found that Butanda falsely testified under oath in three depositions (March 18, 1996, November 19, 1996, and March 10,1997), and in one hearing (January 22,1997), that her name was Victoria Acosta in connection with her attempt to obtain workers compensation benefits. Butanda also used tíre assumed name when she filed her application for workers compensation benefits.
The hearing officer concluded Butanda’s intentional failure to disclose her identity and her use of an assumed name in an attempt to obtain benefits constituted a false and misleading statement in violation of K.S.A. 44-5,120(d)(4)(A) (1993 Furse), and the misrepresentation and concealment of her true identity was a misrepresentation and concealment of a material fact in violation of subsection 44-5,120(d)(4)(B). The hearing officer reasoned that a person’s identity was a material fact, enabling an employer to obtain and verily previous medical and wage history, which are relevant in computing permanent partial disability benefits and in the reduction of awards by the amount of preexisting functional impairment under K.S.A. 44-501(c) (1993 Furse). Butanda was ordered to pay $5,000 in penalties ($1,000 for each false and misleading statement), pursuant to K.S.A. 44-5,120(g) (1993 Furse), and $794.55 in costs.
Butanda petitioned the Secretary of the Kansas Department of Human Resources to review the amended order pursuant to K. S .A. 2003 Supp. 77-527. On May 29, 2002, the Secretary Designee, Douglas A. Hager, issued a final order affirming the amended order:
“Liability under the Fraud and Abuse section ‘rests only with persons who act willfully or intentionally.’ Excel Corp. v. Jimenez, 269 Kan. 291, 296 (2000). ‘Only those who have actually committed a fraudulent or abusive act may be liable.’ Id. It is the conclusion of the Secretary’s Designee that the presiding officer’s determination below should be affirmed. Although Petitioner’s deceit appears to have been rooted in a desire to secure employment, it is nonetheless true that she intentionally and willfully made false and misleading statements and misrepresented or concealed a material fact, by withholding her true identity, in attempting to obtain payment of workers compensation benefits. As noted in the presiding officer’s Amended Order, a claimant’s preexisting medical condition, work history and any preexisting impairments are material facts in a workers compensation proceeding because of the manner in which permanent partial disability benefits are computed and because awards are reduced by the amount of preexisting functional impairment. [Citation omitted.] At the very least, Petitioner’s repeated acts of intentionally lying under oath while attempting to obtain payment of workers compensation benefits constituted an abuse of the workers compensation system.
Butanda appealed this decision to the district court according to the provisions of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. On December 16, 2002, the district court, in a memorandum decision, affirmed the final order of the Department of Human Resources. Butanda appealed from the memorandum decision, and this court has jurisdiction by transfer on its own motion pursuant to K.S.A. 20-3018(c).
Butanda identifies the following five questions in her appeal: (1) Whether her actions were fraudulent or abusive under K.S.A. 44-5,120(d)(4)(A) or (B) (1993 Furse); (2) whether the final order entered was based upon alienage and therefore unconstitutional; (3) whether her employer s participation in her actions constitutes a defense; (4) whether she was denied due process of law; and (5) whether the district court’s refusal to remand for additions to the record on appeal was an abuse of discretion.
Standard of Review
When an administrative agency action is appealed to the district court pursuant to KJRA and then appealed from the district court to this court, we review the agency’s decision as though the appeal had been made directly to us, and we are subject to the same limitations of review as the district court. Pitts v. Kansas Dental Bd., 267 Kan. 775, 776, 987 P.2d 348 (1999). Our scope of review is set forth in K.S.A. 77-621(c)(1) through(8). More specifically, as discussed below, our scope of review is governed by K.S.A. 77-621(c)(1), (c) (4), and (c)(5). We are called upon to interpret K.S.A. 44-5,120(d)(4)(A) & (B) (1993 Furse), as well as statutory provisions for Butanda’s hearing and the constitutional issues raised. The facts are not in dispute. Thus, our scope of review is unlimited.
1. Whether Butanda’s actions were fraudulent or abusive under K.S.A. 44-5,120(d)(4)(A) or (B) (1993 Furse).
Resolution of this issue involves the interpretation of provisions of the Workers Compensation Act (Act). Interpretation of a statute is a question of law, and this court’s review is unlimited. Duarte v. DeBruce Grain, Inc., 276 Kan. 598, 602, 78 P.3d 428 (2003). While an appellate court gives deference to the Board’s interpretation of the law, if such interpretation is applied erroneously, the court may grant relief. Burton v. Rockwell International, 266 Kan. 1, 5, 967 P.2d 290 (1998).
“The fundamental rule of statutory construction guiding this court’s determination is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, we must give it the effect intended by the legislature rather than determine what the law should or should not be.” State v. Kleypas, 272 Kan. 894, 949, 40 P.3d 139 (2001).
In determining whether Bufanda’s use of an assumed name constituted a fraudulent or abusive act under K.S.A. 44-5,120(d)(4)(A) or (B) (1993 Furse), the district court found that it was undisputed that she received workers compensation benefits and that she made numerous false statements regarding her identity. In concluding that Butanda had misrepresented or concealed a “material fact,” the district court reasoned:
“In a world where individuals are defined more and more by the records maintained by the various agencies and organizations, e.g., credit bureaus, the Department of Motor Vehicles, hospitals, etc., the manner in which those records are kept and filed has become increasingly important. Most agencies, organizations, and other such entities use a person’s name and often their social security number to properly identify and index that person. Thus, that person’s name and social security number become essential to later recovering the required information when it is needed. In the case at hand, die State persuasively argues that a person’s name is important to determine the employment and medical history of the injured worker so that a proper award can be calculated. Without a person’s name and social security number, an agency or organization would be unable to properly investigate and gather information on that individual, or at the very least, it would be severely handicapped in its efforts to uncover information. As a result, this Court finds a person’s name and social security number are important and are, therefore, material facts in a workers compensation action.
“The simple truth of the matter is that Petitioner lied about her identity on numerous occasions in order to obtain workers compensation benefits. Her entitlement to those benefits is no excuse for intentionally misrepresenting herself. The question before this Court is not whether she was entitled to benefits but rather whether she made any false statements or misrepresented a material fact in obtaining them. Therefore, it is the opinion of this Court that Petitioner’s actions of intentionally misrepresenting and concealing her true identity were fraudulent and abusive acts as defined by the Workers Compensation Act. Petitioner is an adult and therefore responsible for her own actions. Her attempts to divert that responsibility and needlessly cloud the issues in this case are meritless. The Final Order of Secretary Designee Douglas A. Hager was reasonable and was a correct interpretation of the law in Kansas. To hold otherwise would eviscerate the workers compensation system and allow dishonesty, greed and corruption to become commonplace.”
Butanda argues that the use of an assumed name was not a fraudulent or abusive act under 44-5,120(d)(4)(A) or (B). Butanda correctly points out that the district court used the wrong version of the statute. The applicable statute, K.S.A. 44-5,120 (1993 Furse), provides in relevant part:
“(d) Fraudulent or abusive acts or practices for purposes of the workers compensation act include, but are not limited to, willfully or intentionally:
“(4) obtaining, denying or attempting to obtain or deny payment of workers compensation benefits for any person by:
“(A) Making a false or misleading statement;
“(B) misrepresenting or concealing a material fact”
(A) K.S.A. 44-5,120(d)(4)(A) (1993 Furse)
The plain language of the statute defines what “fraudulent or abusive acts or practices are for purposes of the workers compensation act.” K.S.A. 44-5,120(d) (1993 Furse) (Emphasis added.) The statute defines fraudulent or abusive acts or practices in a nonexclusive list. Excel Corp. v. Jimenez, 269 Kan. 291, 295, 7 P.3d 1118 (2000); see also Elliott v. Dillon Companies, 21 Kan. App. 2d 908, 913, 908 P.2d 1345, aff'd 260 Kan. 411, 918 P.2d 1305 (1996) (distinguishing a case that rejected a claim that employees could bring common-law actions for fraud in interpreting K.S.A. 44-5,121 (1993 Furse) because it did not interpret a statute which authorizes a cause of action to recover economic loss resulting from fraudulent or abusive conduct). In the case we now consider, the district court concluded that Butanda willfully and intentionally committed one of the 20 fraudulent or abusive acts enumerated in the statute. Thus, for the purposes of the Act, Butanda’s false statements fit within the provisions of K.S.A. 44-5,120(d)(4)(A) (1993 Furse).
Butanda argues that the test under the statute is whether she testified falsely or concealed or misrepresented a material fact solely to obtain or attempt to obtain benefits that she was not entitled to under the Act. Butanda relies upon the traditional definition of fraud, which requires proof that: “(1) An untrue statement known to be untrue by the party making it and made with the intent to deceive; (2) reasonable and justifiable reliance by the victim on the truth of the statement; and (3) damages as a result of that reliance.” See Tetuan v. A.H. Robins Co., 241 Kan. 441, Syl. ¶ 2, 738 P.2d 1210 (1987); Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 6, 605 P.2d 545 (1980); Robinson v. Shah, 23 Kan. App. 2d 812, 819, 936 P.2d 784 (1997).
It must be emphasized again that K.S.A. 44-5, 120(d) (1993 Furse) defines what “fraudulent or abusive acts or practices axe for purposes of the workers compensation act. ” The making of the false statements by Butanda in obtaining workers compensation benefits is for purposes of the Act defined as fraudulent. “The Workers Compensation Act is substantial, complete, and exclusive, covering every phase of the right to compensation and of the procedure for obtaining it.”' Acosta, 273 Kan. at 396. Thus, an intent to deceive and damages normally associated with fraud, indicated by Butanda’s authority, are not included in the statutory definition.
Assuming arguendo that the case law definition of fraud applies to Butanda’s false statements, her statement also fit the definition of “abusive” as that term is defined by K.S.A. 44-5,120 (1993 Furse). Although the district court did not make this distinction in finding Butanda’s actions were fraudulent and abusive, it affirmed the final order of the Department of Human Resources, which concluded: “At the very least, Petitioner’s repeated acts of intentionally lying under oath while attempting to obtain payment of workers compensation benefits constituted an abuse of the workers compensation system.” (Emphasis added.) Thus, making false statements by lying under oath in workers compensation proceedings are abusive notwithstanding Butanda’s legal entitlement to the benefits obtained.
We conclude that the district court determination that Butanda’s actions in lying to obtain benefits under the Act were fraudulent and abusive acts under K.S.A. 44-5,120 (d)(4)(A) (1993 Furse) is correct.
(B) K.S.A. 44-5,120(d)(4)(B) (1993 Furse)
While a finding of Butanda’s violation of K.S.A. 44-5,120(d)(4)(A) (1993 Furse) is sufficient to affirm the district court, the question of whether her actions constituted a violation of K.S.A. 44-5,120(d)(4)(B) (1993 Furse), the obtaining of workers compen sation benefits by concealing a material fact, is a question ripe for resolution by this court. The answer to this question depends upon whether the concealment of her true identity amounted to the concealment of a material fact.
“Material fact” is not defined under the Act. However, material fact has been defined in cases involving a fraudulent misrepresentation claim: “ ‘A fact is material if it is one to which a reasonable person would attach importance in determining his choice of action in the transaction involved.’ ” Koch v. Koch Industries, Inc., 203 F.3d 1202, 1230-31 (10th Cir. 2000) (citing Timi v. Prescott State Bank, 220 Kan. 377, 389, 553 P.2d 315 (1976); see also Orr v. Holiday Inns, Inc., 6 Kan. App. 2d 335 Syl. ¶ 1, 627 P.2d 1193, aff'd 230 Kan. 271, 634 P.2d 1067 (1981) (when the Workers Compensation Act is raised as a defense to a common-law negligence action, the identity of the employer of the injured worker is a material fact).
Butanda admits that her preexisting medical condition, work histoiy, and any preexisting impairments are material facts in a workers compensation proceeding because of the manner in which permanent partial disability benefits are computed. However, she argues that NBP’s actions in terminating her employment made her eligible for a permanent partial general disability compensation award beyond her functional rating before she testified to the false identity. She also states that she eventually provided her full work history to NBP, but NBP had no interest in her medical history based on its failure to inquire, with five opportunities to do so.
Butanda’s argument ignores the fact that she filed the claim for workers compensation under the false identity before she was terminated from her position. She also fails to note that the prior employment information she listed in her application was false, and at her April 21, 2000, deposition, she refused to answer any questions which might incriminate her, including questions as to her name, social security number, whether she had any prior work-related injuries, and whether she had worked for any other employer.
Finally, Butanda’s medical condition, work history, and any preexisting impairments are relevant because permanent partial dis ability benefits are computed by examining Butanda’s work tasks for the past 15 years. Moreover, any award is reduced by the amount of preexisting functional impairment. See K.S.A. 44-501(c) (1993 Furse); K.S.A. 44-510e (1993 Furse). Without knowledge of Butanda’s true identity, NBP would not be able to obtain and verify her previous medical or work history. Because of the importance of accurate information in the establishment of final awards, we conclude that one’s true identity in a worker compensation proceeding is a material fact. Thus, its concealment or its misrepresentation is the concealment or misrepresentation of a material fact. Contrary to Butanda’s contention, it does not matter whether the employer actually inquired into these areas; rather, it is the fact that Butanda intentionally and willfully concealed the material fact of her true identity in the proceedings which gives rise to the finding that her acts of concealment constituted both fraudulent and abusive acts under the statute.
We conclude that the district court determination that Butanda’s intentional and willful acts in misrepresenting and concealing the material fact of her identity constituted fraudulent and abusive acts under K.S.A. 44-5,120(d)(4)(B) (1993 Furse) is also correct.
2. Whether the final order entered was based upon alienage and therefore unconstitutional.
The district court ruled that Butanda’s contention that the final order was unconstitutionally based on alienage was meritless. It reasoned that no indication was given in the final order or the amended order that the Secretary Designee or the hearing officer ever gave any consideration to Butanda’s alienage when considering whether to assess fines for her fraudulent or abusive acts.
Butanda argues that by adopting the Board’s orders dated November 9, 1999, and November 28,. 2000, the hearing officer did consider alienage as a basis for his finding and by affirming the totality of the amended order, the Secretary Designee also considered alienage in reaching the final order. Butanda argues the amended order specifically adopted these orders in findings of fact No. 21 and No. 22:
“On November 9,1999, the Appeals Board for the Kansas Division of Workers Compensation concluded in the underlying workers compensation proceedings that ‘individuals who misrepresent their true identity, depending on the circumstances, may have committed fraud or serious misconduct that may be grounds to void the initial award ab initio. It cannot be genuinely argued that such misrepresentation is harmless.’ (Appeals Board Order dated November 19, 1999, p. 3-4). In that same Order, the Appeals Board concluded that there had been a ‘preliminary showing of fraud or serious misconduct.’ (Appeals Board Order dated November 19, 1999, p. 5).
“On November 28,2000, the Appeals Board for the Kansas Division of Workers Compensation found that the Administrative Law Judge ‘properly set aside the February 2, 1999, Order awarding claimant benefits. Claimant concealed-and misrepresented her identity. Therefore, respondent and its insurance carrier could not investigate or verily employment or medical history.’ (Appeals Board Order dated November 28, 2000, p. 7). The Appeals Board also concluded: ‘appellant has intentionally misrepresented her true name and identity. Because of the manner in which permanent partial general disability benefits are computed, a workers true name and identity are relevant and material. It is not only the misrepresentation that claimant made in her employment application with Respondent that is egregious. But it is also the misrepresentation and concealment that was practiced upon the respondent and insurance carrier in this claim.’ (Appeals Board Order, November 28, 2000, p. 6, paragraph 3) (Emphasis added.)”
Regarding alienage, the November 9, 1999, order found in relevant part: “National Beef and its insurance carrier are correct that an individual’s status as a citizen or an alien may affect the computation of the permanent partial general disability rating.” Likewise, the November 28, 2000, order discussed the appellant’s immigration status:
“[T]he Board has not found that claimant is an illegal alien or that claimant cannot legally work in the United States. Second, if claimant could not legally work in the United States, that factor alone would not prevent her from recovering workers compensation benefits. On the other hand, it cannot be ruled out that there may be some situations where a worker’s legal status may be relevant in determining whether there has been a good faith effort to find appropriate employment or in determining whether the difference in a worker’s pre-and post-injury wages has been caused by a work-related injury or some other reason.”
Butanda’s argument is without merit. Although portions of the November 9, 1999, and November 28, 2000, orders discuss Butanda’s alienage in determining whether her benefits could be calculated, the portions of these orders which were cited in the amended order did not refer to alienage. Further, Acosta reversed these orders in concluding that the Board did not have jurisdiction in a review and modification proceeding to vacate ab initio Butanda’s previous award of $57,936.72. See Acosta, 273 Kan. at 398.
Butanda contends that the trial court’s use of the computation of permanent partial general disability benefits as one of the bases for affirming the final order was unconstitutional because her alienage was an integral part of that basis. She cites Jurado v. Popejoy Const. Co., 253 Kan. 116, 126, 853 P.2d 669 (1993), in which this court held that statutory classification based on alienage was subject to strict scrutiny, and disparate treatment between employees with nonresident alien dependents and other employees is unconstitutional and violative of the Equal Protection Clauses of the Kansas and the United States Constitutions.
However, Butanda fails to recognize that Acosta affirmed summary judgment in her favor for $57,936.72 in temporary total and permanent partial general disability compensation. See 273 Kan. at 400-01. Butanda does not argue that her alien status altered the calculation of the benefits that she actually received. Butanda is not being penalized based on her alien status, but for her actions in intentionally and willfully using a false identity throughout the workers compensation proceedings.
Butanda also cites Reinforced Earth Co. v. W.C.A.B., 749 A.2d 1036 (Pa. Commw. 2000), in which the Pennsylvania appellate court concluded that denial of benefits to an illegal alien due to his immigration status would reward an employer who failed to properly ascertain an employee’s immigration status. Butanda fails to recognize that this case was affirmed and remanded in Reinforced Earth Co. v. W.C.A.B., 570 Pa. 464, 810 A.2d 99 (2002). This case does not support Butanda’s position.
The trial court properly concluded that the amended order and the final order were not unconstitutionally based on alienage.
3. Whether employer participation constitutes a defense.
The district court found that the question of whether the employer “actively and knowingly participated” in the alleged fraudulent or abusive acts was irrelevant to Butanda’s fraudulent and abusive acts. The district court concluded that this issue was moot because the knowledge or activities of the employer would not make Butanda any more or any less responsible for her own acts.
Butanda argues that the agency was precluded from finding that she committed a fraudulent or abusive act because NBP actively and knowingly participated in the alleged acts by ignoring certain information that she provided in the January 6,1994, employment application. Specifically, she disclosed that she was prevented from lawfully working in the country because of VISA or immigration status, that she had lived in Dodge City for a year but had worked at a Dodge City restaurant 6 months prior to moving to Dodge City, and that she provided NBP with a Nebraska identification card issued during the time she claimed she was living in Kansas.
The penalties assessed against Butanda were for her actions during the workers compensation proceedings. While it is true that NBP did not encourage Butanda to use a false name in the workers compensation proceeding, NBP knew or should have known that Butanda was an undocumented alien and yet was willing to look the other way when it hired her. NBP’s complicity does not change the fact that Butanda filed an application for workers compensation benefits using a false identity and continued to identify herself by the assumed name under oath throughout those proceedings.
The statutory language provides Butanda no defense based upon an employers actions. It must also be emphasized that 44-5,120 proceedings are not between Butanda and the employer but are concerned with whether Butanda committed a fraudulent or abusive act in obtaining workers compensation benefits. The imposition of penalties does not benefit the employer; they are paid to a workers compensation fee fund. K.S.A. 44-5,120(k) (1993 Furse).
4. Whether she was denied due process of law.
The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P.3d 1274, 1283 (2002), cert. denied 537 U.S. 1088 (2002). Whether due process has been accorded in a particular case is a question of law. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001).
The district court identified the real issue to be addressed as whether the Workers Compensation Division engaged in any unlawful procedures or failed to follow proper procedure as required by K.S.A. 77-621(c)(5). K.S.A. 44-5,120(e) provides in relevant part:
“Whenever die director . . . has reason to believe that any person has engaged or is engaging in any fraudulent or abusive act or practice in connection with the conduct of Kansas workers compensation insurance, claims, benefits or services in this state, . . . the director . . . shall issue and serve upon such person a summary order or statement of die charges widi respect thereto and shall conduct a hearing thereon in accordance with the provisions of the Kansas administrative procedure act. Complaints filed with the director . . . may be dismissed by the director ... on [his or her] own initiative, and shall be dismissed upon the written request of the complainant, if the director . . . has not conducted a hearing or taken other administrative action dismissing die complaint widiin 180 days of the filing of the complaint.”
In concluding that the Division of Workers Compensation did not engage in any unlawful procedures or fail to follow proper procedure, the trial court found:
“[A] summary order/complaint was issued by the Director of the Workers Compensation Division, Phillip Harness, on January 3,2001, diereby making Petitioner aware of the charges against her and satisfying the requirement of K.S.A. 44-5,120(e). Although more than 180 days passed between the filing of the summary order on January 3, 2001, and the fraud and abuse hearing conducted on September 21, 2001, Petitioner apparently never filed a request to have the complaint dismissed pursuant to K.S.A. 44-5,120(e), therefore, the issue is moot.
“The next requirement of K.S.A. § 44-5,120(e) mandates a hearing be conducted in accordance with the Kansas Administrative Procedure Act (KAPA) § 77-501 et seq. K.S.A. § 77-513 provides guidance on the applicable procedures for hearings. . . .
“Contrary to the assertions by Petitioner that she was denied the benefit of a hearing or the opportunity to present evidence, a fraud and abuse hearing was conducted on September 21, 2001, during which time Petitioner was given the opportunity to present evidence for herself. Statements made otherwise by Petitioner in her brief are a blatant misrepresentation of fact and are a disservice to the administration of justice.
“The Workers Compensation Act provides for a hearing in accordance with KAPA, which indicates in K.S.A. 77-513 that hearings are governed by K.S.A. 77- 513 through 77-532. The Kansas legislature’s intent, concerning which portions of KAPA are to be applied to a hearing, is unambiguous. Arguments made by Petitioner that K.S.A. 77-511, which is not one of the statutes enumerated by K.S.A. 77-513, imposes any duties upon the Division of Workers Compensation are erroneous and therefore irrelevant and will not be considered further.”
On appeal, Butanda first argues she was denied due process because the Division of Workers Compensation did not notify her of the complaint within 30 days and did not approve or deny the complaint within 90 days after receipt of the complaint pursuant to K.S.A. 77-511. Other than her own contention, Butanda provides no authority or reasons concerning her claim that K.S.A. 77-511 applies. Issues not briefed are deemed abandoned. State v. Brown, 272 Kan. 843, 844, 35 P.3d 910 (2001).
Nevertheless, an examination of K.S.A. 77-511 and K.S.A. 77-513 reveals that the trial court determination that 77-513 applied is correct. K.S.A. 44-5,120(e) provides that the hearing should be conducted in accordance with the provisions of the Kansas Administrative Procedure Act (KAPA). Both statutes are part of KAPA. K.S.A. 77-511 provides in part:
“(a) Except to the extent that the time limits in this subsection are inconsistent with limits established by another statute, a state agency shall process an applh cation for an order on which a statute provides for a hearing under this act as follows:
(1) Within 30 days after receipt of the application, the state agency shall acknowledge receipt thereof and inform the applicant of the name, official title, mailing address and telephone number of a state agency member or employee who may be contacted regarding the application. As soon as practicable, the state agency shall notify the applicant of any apparent errors or omissions. Failure to detect such errors or omissions does not preclude the state agency from raising them at a later stage of the proceeding.”
K.S.A. 77-513 provides:
“When a statute provides for a hearing in accordance with this act, the hearing shall be governed by K.S.A. 77-513 through 77-532, and amendments thereto, except as otherwise provided by:
(a) A statute other than this act; or
(b) K.S.A. 77-533 through 77-541, and amendments thereto.”
In this case, neither the complaint nor the summary order is an application for an order under K.S.A. 77-511. In contrast, K.S.A. 77-513 unambiguously provides that when a statute provides for a hearing in accordance with KAPA, as does 44-5,120, the hearing is governed by other statutes which do not include K.S.A. 77-511. As such, Butanda was not denied due process by tire Director’s failure to comply with K.S.A. 77-511.
Butanda next argues that- she was denied due process of law when the director waited over a year after receiving tire results of the investigation on November 17, 1999, before issuing the summary order. She argues there was no need to protect the public interest pursuant to K.S.A". 77-537(2). Butanda also contends that she was denied due process of law when she was not given a right to a hearing before she was found guilty in the summary order.
K.S.A. 77-537 provides in relevant part:
“(a) A state agency may use summary proceedings, subject to a party’s request for a hearing on the order, if:
(1) The use of those proceedings in the circumstances does not violate any provision of law; and
(2) the protection of the public interest does not require the state agency to give notice and an opportunity to participate to persons other than the parties.
“(b) The state agency shall serve each party with a copy of tire order in a summary proceeding in the manner prescribed by K.S.A. 77-531, and amendments thereto. The order shall include at least:
(1) A statement of the state agency’s action and, if unfavorable action is taken, a brief statement of the reasons for the action;
(2) notice of the time and manner for requesting a hearing on the order, as provided in K.S.A. 77-542.”
Although there was a delay in the issuance of the summary order, the director complied with this provision of KAPA by issuing a summary order on January 3, 2001, and informing Butanda that she must request a hearing within 15 days of service of the order. See K.S.A. 77-542. Butanda was provided a full hearing on the matter before the hearing officer on September 21, 2001, where she had the opportunity to be heard, present evidence, and cross-examine witnesses.
Butanda argues she was denied due process of law when the hearing officer denied her motion to take the deposition of the director. She claims she had a right to ask him about the factual basis for the complaint and the right to ascertain the exact date that the complaint was received. The summary order issued by the director provided Butanda with the specific charges she was alleged to have violated subject to her request for a hearing. If she requested no hearing, the allegations in the order are deemed admitted. However, she was granted a full hearing upon her request with the right to confront witnesses through cross-examination and present her own evidence. The need to depose the director to determine the factual basis for the complaint was therefore properly denied. Her further contention that the director would establish a date for the complaint was based upon her contention that K.S.A. 77-511 applied. Our determination that K.S.A. 77-513 applied demonstrates that a deposition of the director for this purpose was not necessary. The denial of her request to depose the director did not deny Butanda due process.
Butanda argues she was denied due process of law when the hearing officer who serves as a special administrative law judge for the Division of Workers Compensation refused to recuse himself. She argues that he was not an objective trier of fact because he is under the supervision of the director, the complainant in this case.
K.S.A. 2003 Supp. 77-514(a) provides that the agency head, one or more members of the agency head, an administrative law judge assigned by the office of administrative hearings, or, unless prohibited by K.S.A. 77-551, one or more persons designated by the agency head may be the presiding officer. The director complied with this statute by appointing a special administrative law judge, Larry Kams, to serve as the hearing officer. Butanda’s argument is akin to a defendant arguing that he cannot be represented by a public defender because the State is paying his fees. This argument is without merit.
Likewise, Butanda argues that she was denied due process when the director appointed a nonobjective trier of fact in Secretary Designee Hager because he is an attorney for the Kansas Department of Human Resources and represents the interest of the director and the Division of Workers Compensation. This argument likewise fails, as the appointment was within his authority pursuant to K.S.A. 2003 Supp. 77-514(a), and Butanda failed to petition for his disqualification under K.S.A. 2003 Supp. 77-514(c).
Pursuant to K.S.A. 44-5,120(e), Butanda was given notice of the complaint by receipt of the summary order. Although the hearing was conducted beyond 180 days later, Butanda failed to request that the case be dismissed as required by the statute. Butanda was given the opportunity to be heard at the fraud and abuse hearing on September 21, 2001, and she has had the benefit of two additional levels of appeal. Butanda was not deprived of her right to due process.
5. Whether the district court’s refusal to remand was an abuse of discretion.
“Remand under the KJRA is discretionary. K.S.A. 77-622(b).” Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, 447, 885 P.2d 1233 (1994).
Within 30 days after service of the petition for judicial review, the agency shall transmit the original or a copy of the agency record, and the court may permit subsequent additions to the record. K.S.A. 77-620(a) and (£). Additional evidence in addition to the agency record may be added if it relates to the validity of the agency action at the time it was taken and is needed to decide disputed issues regarding the unlawfulness of procedure or of a decision-making process. K.S.A. 77-619(a)(2).
“(b) The State agency record consists only of:
(1) Notices of all proceedings;
(2) any prehearing order;
(3) any motions, pleadings, briefs, petitions, requests, and intermediate rulings;
(4) evidence received or considered;
(5) a statement of matters officially noticed;
(6) proffers of proof and objections and rulings thereon;
(7) proposed findings, requested orders and exceptions;
(8) the record prepared for the presiding officer at the hearing, together with any transcript of all or part of the hearing considered before final disposition of the proceeding;
(9) any final order, initial order, or order on reconsideration; and
(10) staff memoranda or data submitted to the presiding officer.
“(c) Except to the extent that this act or another statute provides otherwise, the state agency record, excluding matters under paragraph (10) of subsection (b), constitutes the exclusive basis for state agency action in formal hearings and for judicial review thereof.” K.S.A. 77-532.
The trial court memorandum decision and order was filed on December 16, 2002, and Butanda filed a notice of appeal with the Court of Appeals. On June 6, 10, and 11, 2003, Butanda filed a request and two amended requests with the district court for additions to the agency record pursuant to Supreme Court Rule 3.02 (2003 Kan. Ct. R. Annot. 20) and K.S.A. 77-532. Butanda argued that an incomplete agency record had been delivered to the clerk’s office, and she listed 22 items which had either been admitted into evidence at the fraud and abuse hearing, or were other motions and orders. Of significance to this appeal, the motion seeking to recuse the hearing officer and the order denying the same, the petition and order denying mandamus involving Butanda’s desire to depose the director, the November 28, 2000, Board order, and the summaiy order were added to the record on appeal.
The record on appeal includes 26 items added to the appeal record. Butanda seeks a remand, claiming that these items were not before the district court when it issued its December 16,2002, order. Butanda argues that the absence of some of these items from the agency record before the district court prevented it from adequately addressing her claims regarding alienage and due process.
Regarding alienage, Butanda argues that the district court did not have the November 9, 1999, and November 28, 2000, Board orders, that the hearing officer relied upon the Board’s findings in the amended order, and that the amended order was affirmed in the final order. As such, she contends the district court was unable to determine whether alienage had been part of the earlier decisions without these portions of the record on appeal.
Contrary to Butanda’s assertion, the November 9, 1999, order was part of the agency record before the district court. Additionally, although not signed and dated, the November 28, 2000, order was also part of the agency record in its entirety. Even if these orders were not before the trial court, its conclusions that alienage played no part was the correct determination. Thus, her argument fails.
Butanda also argues that the district court could not adequately consider her due process claims without the inclusion of the refusal of the hearing officer to recuse himself, the denial of Butanda’s request to take the director’s deposition, and the summaiy order.
The additions to the record indicate that Butanda filed a motion asking the hearing officer to recuse himself because he refused to issue a subpoena for the director and because he works under the supervision of the director. The hearing officer denied the motion, reasoning that he was an outside attorney working under contract for the Division of Workers Compensation to hear fraud and abuse cases; that he was not an employee of the Division and the director was not his supervisor; that the reasons for dismissal of the subpoena had been addressed in a previous order; that Judge Bullock’s dicta was not applicable because an evidentiary hearing was going to be held; and that no bias, prejudice, or interest had been alleged or proven in order for him to be disqualified under K.S.A. 2003 Supp. 77-514. As discussed above, even if these items were included in the
agency record, the district court would have reached the same conclusion. The district court did not abuse its discretion in refusing to remand this case for additions to the record.
Affirmed.
Luckert, J., not participating.
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The opinion of the court was delivered by
Nuss, J.:
Karen Krueger contested the appraisal of her house for tax years 1999, 2000, and 2001. The Board of Tax Appeals (BOTA) upheld the appraisal value, as did the district court. In a published opinion by Judge Lewis, a unanimous panel of the Court of Appeals affirmed. This court granted Kruegers petition for review.
We have carefully considered and reviewed the briefs, arguments, and the record in this case, and we conclude that the Court of Appeals was correct. We, therefore, adopt the opinion of the Court of Appeals and affirm BOTA, the district court, and the Court of Appeals.
Beier, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
The City of Wichita (City) appeals the decision of the Kansas Board of Tax Appeals (BOTA) affirming the Kansas Department of Revenue’s (Revenue Department) assessment of sales tax, compensating use tax, and interest for transactions by the water utility department (water department). The City additionally appeals BOTA’s denial of attorney fees and the issuance of a protective order regarding internal Revenue Department documents. We affirm.
Procedural History
The Revenue Department conducted an audit of the City for the period of June 1, 1992, through May 31, 1995, and the notice of assessment of retailer’s sales tax, compensating use tax, and interest was issued on February 5, 1996. The City appealed the assessment on April 1, 1996, requesting a hearing pursuant to the Kansas Administrative Procedure Act, K.S.A. 77-501 et seq. The Secretary of Revenue’s designee, Douglas Hager, conducted an administrative hearing beginning on March 27, 1997. On December 29, 1997, Secretary of Revenue Karla Pierce determined that the case should be stayed pending the resolution of the case of In re Appeal of Water District No. 1 of Johnson County, 26 Kan. App. 2d 371, 988 P.2d 267, rev. denied 268 Kan. 846 (1999), because it contained similar issues to those in this case.
On September 29, 1998, Hager wrote to the City’s counsel advising of the recent amendments contained in K.S.A. 79-2975, which required that a “written final determination” should be issued on or before October 1, 1998. Hager aslced the City if it wanted a final written determination issued prior to the conclusion of Johnson County. The City responded that it was requesting a final written determination on all other issues in this case, even if the primary issue would be resolved by Johnson County.
The Secretary scheduled final arguments in the case for January 14, 1999, before the issuing of a determination. On February 11, 1999, Hager bifurcated the case and issued a summary final determination upholding the assessment of sales tax on electricity purchased to pressurize water in the City’s water distribution system. The parties agreed to have this sole issue decided because it related to the pending Johnson County. The appeal regarding this issue was ultimately decided by this court in In re Tax Appeal of City of Wichita, 274 Kan. 915, 59 P.3d 336 (2002) (City of Wichita I).
The remaining issues, relating to the assessment of sales tax, compensating use tax, and interest relating to the City’s water department, were decided in a final written determination on June 30, 2000, by Hager’s successor, David Heinemann. Heinemann upheld the Revenue Department’s assessments and interest and denied the City’s request for attorney fees. The City appealed this final determination to BOTA.
BOTA conducted a de novo hearing on the matter in October 2001. On June 14, 2002, BOTA entered an order affirming the assessment of sales tax on certain water department fees and interdepartmental transfers and compensating use tax on computer hardware and related equipment. BOTA denied the City’s requests for an abatement of interest and for attorney fees. On November 13, 2002, BOTA issued an order on reconsideration upholding all of its original findings. The City appeals from the BOTA decision, and this court transferred the appeal from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Standard of Review
BOTA is considered the paramount taxing authority in Kansas: however, if BOTA’s interpretation of law is erroneous as a matter of law, appellate courts will take corrective steps. City of Wichita I, 274 Kan. at 923.
“Tax exemption statutes are to be construed in favor of imposing the tax and against allowing an exemption. However, the taxing statutes will be construed favorably to the taxpayer where there is a reasonable doubt as to the meaning of the statutes.” 274 Kan. 915, Syl. ¶ 3.
K.S.A. 77-601 et seq. sets forth our scope of review. See K.S.A. 74-2426(c). K.S.A. 77-621(a) provides that “[e]xcept 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.” K.S.A. 77-621(c) further specifies that this court may grant relief in the following cases:
“(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.”
Interpretation of statutes is a question of law; thus, to the extent statutory interpretation is required in this case, our review is unlimited. City of Wichita I, 274 Kan. at 924.
Interdepartmental Transfers
The City’s internal auditor from 1994 to 2001, Jeanne Hernandez, testified that the various operating departments of the City, including the water department, shared services for the sake of efficiency. The data center fully costs itself, and then those charges are allocated to the user department for those services. This transaction occurs as a journal entry in the financial accounting system where it is an allocation of those expenses to the water department.
The City argues that BOTA erred in concluding that the following four categories of interdepartmental transfers were taxable:
“Interdepartmental Transfers Tax
Data Center Charges $37,692
PBX Instrument Charges $ 5,256
Long Distance Pagers $ 1,728
Photocopy Charges $ 972”
Data center charges were characterized as payments for professional services such as billing, accounting, training, personnel, and payroll and for purchases of equipment or other tangible personal property by the City.
The PBX instrument charges are the instrument charges for phones, actual phone lines, and equipment for the water department. The long distance pagers charges were allocations for pager and long distance services. The photocopy charges are accumulated by the data center s dictionary stores and its operation and allocated to the individual departments. Any equipment purchased in connection with tírese charges is purchased by the data center, and the cost is transferred to the water department.
Some of the expenses constitute a monthly, recurring charge, which is not recalculated each month and is simply an automated journal entry in the accounting system that transfers the expense to the water department. Some charges, like photocopying and long distance services are not automated charges and are calculated each month based on actual use. Money does not change hands, as the water department has an account number in the accounting system to which the expenses are charged. As the water department does not have its own separate bank account, the money collected from customers, i.e., the receipts from selling and furnishing of water, are deposited into the City’s bank account. The expenses attributable to the water department are then noted as accounting debits and credits.
When the allocations to the water department are made, the bundle of costs for the data center charges are classified in the following categories: equipment charges, including software application fees for software such as the payroll and billing software utilized by the water department; replacement reserves for future purchases of equipment; license fees; personnel; training services; and strategic planning. When asked if the Revenue Department’s audit made any effort to segregate these costs based on their tax-ability, Hernandez responded that the Revenue Department took out all of the labor services from the interdepartmental transfers but did not make an effort to segregate any of the other costs listed.
BOTA concluded that the interdepartmental transfers constituted taxable sales:
“62. The Board finds that the subject ‘interdepartmental transfers’ as they are referred to by the parties constitutes sales of tangible personal property or services. Although the consideration was recorded by journal entry, the Board finds that there was an exchange of tangible personal property for a consideration.
"63. The Board finds that implicit in K.A.R. 92-19-72 is die fundamental assumption that the initial purchase by the single legal entity is subject to sales tax or that all the various departments are independently exempt from sales tax. Administrative rules and regulations must be appropriate, reasonable, and not inconsistent with the law to be valid. Pemco, Inc. v. Kansas Department of Revenue, 258 Kan. 717, 720, 907 P.2d 863 (1995). To interpret K.A.R. 92-19-72 to allow a city to purchase property and services exempt from sales tax and then simply transfer the property to a taxable department, such as the water department, would be inconsistent and unreasonable with the law of K.S.A. 79-3606(b), and amendments thereto. As a result, the Board concludes that the subject ‘interdepartmental transfers’ are taxable, and the Department’s assessment is sustained.
“64. The Board notes that if it were to adopt the Taxpayer’s assertion that the interdepartmental transfers were not ‘sales,’ the initial exempt purchases by the City may need to be evaluated to determine whether they were properly exempt pursuant to K.S.A. 79-3606(b), and amendments thereto. Based upon the facts presented, the property and services were used or proposed to be used in part by the political subdivision in the business of furnishing waters to others. Pursuant to K.S.A. 79-3606(b), the initial purchases by the City may not be exempt from sales tax. The Board does not believe that this is the result intended by the Taxpayer.”
Discussion
The City argues that BOTA’s conclusions were erroneous because the assessed transactions do not constitute “sales” as defined by K.S.A. 1992 Supp. 79-3602(c). The City contends the transactions do not involve the exchange of property for consideration; the transactions would not be considered taxable if made within any other single legal entity under K.A.R. 92-19-72; and BOTA viewed the tax imposition statue with an apparent bias in favor of taxation rather than in favor of the taxpayer, as no statute imposes tax on allocations of shared costs within a single legal entity.
K.S.A. 1992 Supp. 79-3606(b)(2) provides that the following is exempt from tax imposed by the Kansas Retailers’ Sales Tax Act:
“(b) all sales of tangible personal property . . . purchased directly by the state of Kansas [or] a political subdivision thereof . . . and used exclusively for state [or] political subdivision . . . purposes, except when . . . (2) such political subdivision is engaged or proposes to engage in the business of furnishing gas, water, electricity or heat to others and such items of personal property or service are used or proposed to be used in such business.”
K.S.A. 1992 Supp. 79-3602(c) defines “sales” in relevant part:
“ ‘Sale’ or ‘sales’ means the exchange of tangible personal property, as well as the sale thereof for money, and every transaction, conditional or otherwise, for a consideration, constituting a sale, including the sale or furnishing of electrical energy, gas, water, services or entertainment taxable under the terms of this act and including, except as provided in the following provision, the sale of the use of tangible personal property by way of a lease, license to use or the rental thereof regardless of the method by which the title, possession or right to use the tangible personal property is transferred.”
The regulation corresponding to the K.S.A. 1992 Supp. 79-3606(b) exemption is found at K.A.R. 92-19-76(d):
“The exemption from sales tax for political subdivisions applies only to the extent the political subdivision is not engaged nor proposes to engage in the business of furnishing gas, water, electricity or heat to others and the tangible personal property or taxable services are used or proposed to be used in such business. When a political subdivision is engaged or proposes to engage in furnishing any of these four businesses, the political subdivision shall pay sales tax on all purchases of tangible personal property and taxable services used in these businesses. Nothing under this section of the act shall be construed to limit other exemptions which may be available to a political subdivision which furnishes gas, water, electricity or heat.”
The City first argues the transaction did not involve the exchange of property for consideration because the assessments were not made on the initial purchase of property or services by the political subdivision, were not made on each use or value of use made by the water department of political subdivision property or services, and were not made on the purchase of the equipment or materials used.
The Revenue Department responds that it only taxed a percentage of the interdepartmental transfers that reasonably reflected what tangible personal property and taxable services the water department received from the City. Before figuring this percentage, the Revenue Department took the total data center charges and took out nontaxable items such as personnel and labor services in order to tax only those charges to the water department which were taxable.
Other than citing K.A.R. 92-19-72, which is discussed below, the City has provided no authority that a sale only occurs when the property or service is initially purchased, and the K.S.A. 1992 Supp. 79-3602(c) definition of sale does not include this requirement. Photocopying and long distance charges were calculated based on each use by the water department, and the remaining charges, while primarily fixed, were allocated among the departments which used them. Contrary to the City’s assertion, its own internal auditor testified that the data center charges included purchases of equipment and other tangible personal property.
The water department receives this equipment, property, and services, and in exchange the expense is applied to the water department account. Each department within the City has an annual budget. Although the accounting records for the water department are not readily available, it would seemingly follow that these expenses would then be subtracted from its budget. As such, the City’s argument that the transaction did not involve the exchange of property for consideration fails.
The City next argues the transactions would not be considered taxable if made within any other single legal entity under K.A.R. 92-19-72. The City argues that the taxable or nontaxable nature of the entities involved was irrelevant to the issue of whether a sale had occurred. The Revenue Department responds that the City’s interpretation , of K.A.R. 92-19-72, which would allow the City to buy everything tax free and transfer it to the water department tax free, would erroneously violate K.S.A. 1992 Supp. 79-3606(b).
K.A.R. 92-19-72(a), Retail Sales Between Related Entities, provides: “Each interdepartmental transfer of tangible personal property and taxable services between various departments of a single legal entity shall not constitute a sale subject to sales tax.” The parties in this case have stipulated that the City, together with its various departments including the water utility, is a single legal entity.
In interpreting administrative regulations, appellate courts are to grant considerable deference to an agency’s interpretation of its own regulation, which should not be disturbed unless that interpretation is clearly erroneous or inconsistent with the regulation. Murphy v. Nelson, 260 Kan. 589, 595, 921 P.2d 1225 (1996).
Administrative regulations have the force and effect of law. They are presumed to be valid, and one who attacks them has the burden of showing their invalidity. To be valid, rules or regulations of an administrative agency must be within the statutoiy authority conferred upon the agency and must be appropriate, reasonable, and not inconsistent with the law. Those rules or regulations that go beyond the statutory authorization violate the statute, or are inconsistent with the statutoiy powers of the agency have been found void. Pemco, Inc. v. Kansas Dept. of Revenue, 258 Kan. 717, 720, 907 P.2d 863 (1995).
In order to determine whether K.A.R. 92-19-72(a) is consistent with the statutory authority set forth in K.S.A. 1992 Supp. 79-3606(b)(2), it is necessary to consider the entire circumstances of the situation, including whether the entity paid tax on the initial purchase. Otherwise, as BOTA concluded, the City would be able to utilize K.A.R. 92-19-72(a) to purchase everything exempt from taxation and circumvent the specific statutory authority of K.S.A. 1992 Supp. 79-3606(b), which states that purchases for the water department are taxable. BOTA’s interpretation of the regulation prevented it from being declared void.
As discussed above, the transactions between the City and its water department constituted exchanges of property for consideration, or sales. As BOTA pointed out, it is unlikely that the City would like for the initial exempt purchases (often purchases for all of the City’s departments) to be evaluated as to whether they should really be exempt under K.S.A. 1992 Supp. 79-3606(b)(2), as the property and services were used in part by the political subdivision in the business of furnishing water to others. In City of Wichita I, this court found that purchases of electricity by the City which were used for both exempt and nonexempt purposes under K.S.A. 1992 Supp. 79-3606(b)(2) should not be prorated because they were used for purposes which were expressly nonexempt under law. See 274 Kan. at 933-36.
Based on this analysis, the City’s final argument that BOTA viewed the imposition statute with an apparent bias in favor of taxation because no statute imposes tax on such allocations fails. K.S.A. 1992 Supp. 79-3606(b)(2) exempts from sales tax the tangible personal property purchased directly by a political subdivision and used exclusively for political subdivision purposes, except when such political subdivision is engaged or proposes to engage in the business of furnishing water. As discussed above, the “interdepartmental transfers” at issue clearly constituted an exchange of property for consideration to the taxable water department. This conclusion prevents K.A.R. 92-19-72(a) from being construed to violate K.S.A. 1992 Supp. 79-3606(b)(2) and being declared void. Giving proper deference to the agency’s interpretation of this regulation, B OTA’s determination that these transfers were taxable under K.S.A. 1992 Supp. 79~3606(b)(2) is upheld.
Water Department Fees
BOTA sustained the Revenue Department’s assessment of six categories of water department fees as follows: (1) turn on/tum off fees — $3,315; (2) account origination fees — $11,580; (3) lawn connect fees — $372; (4) plant equity fees — $8,078; (5) fees in lieu of special assessments — $1,434; and (6) priority service charges— $733.
These fees were described by the City’s director of the water and sewer departments, David Warren. The turn on/turn off fees are for the actual physical service of going to a location and physically turning on the curb stop that allows the flow of water from the City’s water system through the meter and into the residence or business. This fee covers part of the cost of the personnel, the vehicle, and the equipment involved in carrying out that service. Lawn connect fees are essentially a turn on and turn off fee for a lawn meter or a lawn irrigation account.
Priority service charges were established for customers who want a turn on or turn off at a certain time. The account origination fee is a charge to a new customer for setting up a new account, and the physical aspect of originating that account occurs at city hall.
The plant equity fee is a contribution of capital from a new customer to recover part of the cost of the backbone facilities, which includes the water treatment plant, major transmission lines, and development of sources of supply. Oftentimes this fee is paid by a builder or developer in cases of new development, and the furnishing of water usually occurs after title has passed to the next builder or homeowner.
The fee in lieu of specials is also a capital recovery fee that relates to facilities such as the sewer main or water distribution line that are immediately adjacent to the property being served. If a person lives in a benefit district, the person would pay special assessments that directly pay for the facilities that are serving the property. If an owner of adjacent property that is not included in the benefit district wanted to connect to the existing line, this owner would have to make payments in lieu of special assessment to represent an equal share in the cost of that plan that has already been paid by others. Hernandez indicated that this fee could be passed on to the home buyer by being embedded in the lot price or the home price, or billed directly by the water department or the developer.
Warren testified that the turn on/tum off fees, the account origination fees, and the lawn connect fees are not included in the gross receipts from the sale of water, that water is not furnished with the payment of these fees, that the fees show up as a separate fee on the customer’s bill, and that the payment of the fee does not pass title to any personal property. However, the fees are all reflected on one bill, and if the customer fails to pay the fee(s), the water department will forfeit the customer’s deposit and eventually disconnect the customer’s water supply.
The plant equity fee and the fee in lieu of special assessment are one time fees paid to obtain water. The plant equity fee is usually paid by a builder or developer at the time it makes an application to connect a new development to the City’s infrastructure. If the developer did not pay the plant equity fees, the City would either not provide a water hookup or disconnect the water supply.
BOTA concluded that these fees were taxable gross receipts:
“53. Sales tax is imposed on the gross receipts from the sale or furnishing of water. K.S.A. 79-3603(c). In other words, sales tax is imposed on the total selling price or total cost to a consumer for the sale or furnishing of water. Ordinary words are to be given their ordinary meaning. Director of Taxation v. Kansas Crude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). The Board is not persuaded by the Taxpayer’s argument that the occurrence of actual, simultaneous, and physical delivery of water is required for the fees to be included in the gross receipts from the sale or furnishing of water.
“54. The Kansas Court of Appeals in Newton Country Club adopted the ‘mandatory-voluntary test’ and found that mandatory gratuities were subject to sales tax pursuant to K.S.A. 79-3603(d) which assessed ‘the gross receipts from the sale of meals or drinks.’ (Emphasis added.) The mandatory gratuities were for the benefit of the employees of the taxpayer for their services rendered, not for the actual meals or drinks. The Board finds that the charges and fees at issue in this matter are similarly required to be paid in order to receive water from the Taxpayer. If a customer does not pay these fees, the Taxpayer will eventually discontinue service. In this situation, the Board finds that the consumer or account holder is required to pay these fees in order to establish or main its water service, and thus, these fees are taxable pursuant to K.S.A. 79-3603(c), and amendments thereto.
“55. Like the franchise fees in Atchison Cablevision, the subject fees should be part of the rate structure of the water department or could be a separate charge. Merely by making these fees separate charges on the itemized bill, the Board finds that the Taxpayer has not removed these fees from the total cost to its consumers.
“56. Further, the Board is not persuaded by the Taxpayer’s argument that in many cases persons and entities, such as developers and builders, pay these fees, but never intend to purchase water for the location where the fees were charged. The Board does not believe that a unity of the payor of the fees to establish water service and the ultimate consumer of the water is required. The Board concludes that the Department’s assessment is sustained.”
Discussion
The City argues BOTA erred in concluding that water department revenue from providing services and infrastructure was taxable pursuant to K.S.A. 1992 Supp. 79-3603(c).
K.S.A. 1992 Supp. 79-3603(c) imposes a retail sales tax on “the gross receipts from the sale or furnishing of gas, water, electricity and heat, which sale is not otherwise exempt from taxation under tire provisions of this act, and whether furnished by municipally or privately owned utilities.” This statute was subsequently amended to include the following additional language:
“[B]ut such tax shall not be levied and collected upon the gross receipts from: (1) The sale of a rural water district benefit unit; (2) a water system impact fee, system enhancement fee or similar fee collected by a water supplier as a condition for establishing service; or (3) connection or reconnection fees collected by a water supplier.” K.S.A. 2003 Supp. 79-3603(c).
However, K.S.A. 1992 Supp. 79-3603(c) controls.
K.S.A. 1992 Supp. 79-3602(c) defines sale as “the exchange of tangible personal property . . . including the sale or furnishing of electrical energy, gas, water, services or entertainment taxable under the terms of this act.” K.S.A. 1992 Supp. 79-3602(h) defines gross receipts as “the total selling price or the amount received as defined in this act, in money, credits, property or other consideration valued in money from sales at retail within this state; and embraced within the provisions of this act.” “ ‘Selling price’ means the total cost to the consumer exclusive of discounts allowed and credited, but including freight and transportation charges from retailer to consumer.” K.S.A. 1992 Supp. 79-3602(g).
In In re Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 753 P.2d 304 (1988), the Court of Appeals considered whether mandatory gratuities charged to customers on the sales of food and liquor in the club’s restaurant and bar were subject to sales and excise tax because they were part of the club’s gross receipts under K.S.A. 79-3603(d) and K.S.A. 79-41a02. The amount of the mandatoiy gratuity was listed separately on each ticket, the gratuities were pooled, and the club distributed the gratuities to its employees based on the number of hours they worked each week.
On appeal, the Court of Appeals adopted a mandatoiy-voluntaiy test in concluding that under the plain language of the statutes, mandatory gratuities were subject to sales and excise tax. It reasoned:
“The sales tax is imposed on the ‘gross receipts,’ defined as the ‘selling price or the amount received . . . fromsalesatretailwithinthisstate.’K.S.A.79-3602(h). ‘Selling price,’ in turn, is defined as the ‘total cost to the consumer.’ K.S.A. 79-3602(g). Here, the customer is required to pay a mandatory gratuity as part of the monthly billing for food and drinks. As such, this mandatory gratuity is part of the ‘total cost to the consumer’ and is taxable. The excise tax is imposed upon ‘gross receipts,’ defined as ‘the amount charged the consumer for a drink containing alcoholic liquor.’ K.S.A. 79-41a01(c). Here again, the mandatoiy gratuity must be paid on each drink purchased and is therefore part of the ‘amount charged for a drink’ and taxable.” 12 Kan. App. 2d at 644.
In In re Tax Appeal of Atchison Cablevision, 262 Kan. 223, 936 P.2d 721 (1997), this court considered whether cable television franchise fees which were passed on to subscribers and listed as a separate charge on the bill were part of the total selling price of the cable television service and, thus, taxable as part of the gross receipts received by the cable operator.
Relying on Newton Country Club, this court reasoned that because the franchise fee was a mandatory part of the bill, the fee was part of the gross receipts subject to the sales tax. The court rejected Cablevisioris strict construction argument that 79-3603 did not contain authority to impose sales tax on a pass-through franchise fee, reasoning that nowhere in the statute was there authority to impose sales tax on mandatory gratuities tacked onto bills, yet the Newton Country Club court found these gratuities were taxable under the plain language of the statute. Atchison Cablevision, 262 Kan. at 230.
The court found that the fees were part of the “total cost to the consumer” under K.A.R. 92-19-46, and the regulation clearly intended to include within gross receipts whatever the customer must pay in order to receive cable services. 262 Kan. at 230. It reasoned that the franchise fee was nothing more than a cost of doing business and was, thus, a part of the total cost to the consumer included within the selling price and a part of gross receipts under 79-3606(a), upon which sales tax is collected. 262 Kan. at 231-32.
The City distinguishes the fees from the mandatory gratuity in Newton Country Club by arguing none of the fees must be paid to receive water, the fees are not paid on each quantity of water purchased, the fees are not included in gross receipts of sales, water is not furnished with payment of these fees, the fee is separate on the customer’s bill, payment does not pass title to any personal property, turn off fees need not be paid to receive water, and plant equity fees and fees in lieu of special assessment need not be paid to receive water, especially if they were paid by a developer or prior water user.
The City distinguishes this case from Atchison Cablevision because the statute, K.S.A. 1996 Supp. 79-3603(k), imposed a tax on the gross receipts from cable services, while the statute in this case imposes a tax on the gross receipts from the sale or furnishing of water under K.S.A. 1992 Supp. 79-3603(c). The City argues no evidence was presented that the fees are a mandatory charge for the sale or furnishing of water; rather, they are for the unrelated act of incidental services or collecting a portion of the capital costs for infrastructure.
The City’s attempt to distinguish this case from Atchison Cablevision and Newton Country Club is without merit. Although K.S.A. 1992 Supp. 79-3603(c) does not include the term service, it imposes a tax on the sale of water. Sale is defined as “the exchange of tangible personal property . . . including the sale or furnishing of electrical energy, gas, water, services.” (Emphasis added.) K.S.A. 1992 Supp. 79-3602(c).
Moreover, contrary to the City’s argument, implicit in the furnishing or sale of water is the City’s provision of these services. The testimony was clear that if the plant equity fee or fee in lieu of special assessment were not paid, even though they were a one time payment normally paid by the developer, water would not be furnished. Likewise, if the turn on/off, account origination, lawn connect, and priority service charges were not paid, the customer’s water supply would be disconnected. The fact that these fees were listed separately on the bill makes this case more analogous to Atchison Cablevision and Newton Country Club, as the mandatory gratuity and the franchise fees were likewise listed separately.
The rationale of Atchison Cablevision and Newton Country Club applies to this case. As these fees must be paid, whether by the developer or the final customer, in order to establish or maintain water from the City, they are part of the total cost to the consumer under K.A.R. 92-19-46. As such, they are included within the selling price under K.S.A. 1992 Supp. 79-3602(g) and are a part of gross receipts under K.S.A. 1992 Supp. 79-3603(a), upon which sales tax is collected. BOTA’s determination is upheld.
Computer Equipment
In the final determination letter, the Revenue Department assessed compensating use tax on the City’s purchase of computer hardware and miscellaneous equipment used to upgrade its billing services. Hernandez testified that this upgraded equipment was necessary for the establishment and implementation of the storm water utility department established in 1992, which is separate from the water department and is not a taxable entity. The upgrade was necessary to handle the increased volume and data management of the storm water utility accounts and to allow merging with the water department and sewer department billing system.
Although die sewer department purchased this equipment, the storm water utility department reimbursed the sewer department for the entire purchase cost of the computer equipment. Hernandez explained that the water and sewer departments did not need this upgrade to continue their billing practices, and she concluded that the water department was not responsible for any of the cost of the upgraded equipment. However, this upgrade provides an integrated bill which reflects the charges for the storm water, sewer, and water departments on the same statement.
BOTA affirmed the Revenue Department’s assessment, reasoning:
“The Board finds that billing is an essential function in business, including the business of furnishing water. Although the water department did not need and did not purchase the subject computer upgrade and equipment, the Board finds that the computer upgrade is actually used in part by or for the water department to assist in its billing function. As a result, the Board concludes that K.S.A. 79-3606(b), and amendments thereto, does not exempt the subject Computer upgrade and equipment from compensating use tax, and the Department’s assessment is sustained.”
Discussion
K.S.A. 1992 Supp. 79-3703 imposes compensating use tax for the privilege of using, storing, or consuming in this state any article of tangible personal property. Pursuant to K.S.A. 1992 Supp. 79-3702(b), the exemptions within K.S.A. 1992 Supp. 79-3606 have full force and effect under the provisions of the Kansas Compensating Use Tax Act, K.S.A. 79-3701 et seq.
As discussed above, K.S.A. 1992 Supp. 79-3606(b)(2) provides that all sales of tangible personal property purchased directly by the State of Kansas or a political subdivision used exclusively for the political subdivision are exempt from sales tax except when the political subdivision is engaged in the business of furnishing water and the personal property or services are used in that business.
The City argues that the purchase of this specific equipment was for use by the political subdivision for efficiency in billing customers for the services of several departments in a single bill. It contends that because the water department already had adequate billing capability, it had no use for the integration hardware. Thus, the exclusive “use” of the computer equipment was billing integration by the political subdivision.
The City attempts to confuse the issue in this case by focusing on the “use” or the need for the property or services at the time of purchase. However, the question under K.S.A. 1992 Supp. 79-3606(b)(2) is not whether the computer equipment was purchased for the exclusive use of the political subdivision, but whether the political subdivision used the computer equipment in the business of furnishing water. It does not matter whether the water department actually needed the equipment to successfully bill its customers or for what purpose it was purchased; rather, it matters solely whether the water department used the equipment.
In this case, it is undisputed that the water department utilized this computer equipment to assist in its billing function, which the City concedes is an essential function of the business of furnishing water. Even though the equipment was used by other nontaxable departments, K.S.A. 1992 Supp. 79-3606(b)(2) does not require that the excepted use (furnishing water) be the exclusive use of the tangible personal property or service in order for it to be disqualified from exemption. See City of Wichita 1, 274 Kan. at 933. The political subdivision used the computer equipment in its business of furnishing water; BOTA properly concluded that the equipment did not qualify for an exemption under K.S.A. 1992 Supp. 79-3606(b).
Abatement of Interest
In this case, BOTA found that the City was not entitled to an abatement of interest on the assessment of sales tax:
“74. For the Taxpayer to be entitled to the abatement of interest, the delay in assessing the tax must have resulted from the negligence of a Department employee. Black’s Law Dictionary (6th Ed. 1991), defines negligence as, ‘The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.’ In this case, a delay in completing the assessment was caused by the retirement of the first auditor. Once a second auditor was assigned, the audit was completed in a timely manner. The Board finds that the Department assessed the subject tax by its Notices of Assessment dated February 5,1996. Based upon the de novo record before this Board, the Board believes there was no negligence on the part of any employee of the Department [that] contributed to the delay in completing the assessment. The Board finds that the Taxpayer’s request for an abatement of interest is denied.
“75. Further, the Board notes that essentially the Taxpayer’s assertion is that there was an undue delay in the issuance of the final determination letter pursuant to K.S.A. 79-2975, not the Notices of Assessment. However, the Board finds diat its jurisdiction is limited to a review of the director’s waiver or non-waiver of interest in this matter for a delay in the Notices of Assessment. ‘The State Board of Tax Appeals is a creature of the Legislature. Its authority is only such as is expressly or impliedly given by legislative enactment. If it attempts to exercise jurisdiction over a subject matter not conferred by the Legislature, its orders with respect thereto are without authority of law and void.’ Walkenmeyer v. Stevens County Oil & Gas Co., 205 Kan. 486, 491, 470 P.2d 730 (1970) (citations omitted); Vaughn v. Martell, 226 Kan. 658, 603 P.2d 91 (1979). The Board finds that K.S.A. 79-3268(f), and amendments thereto, does not address a delay in the issuance of a written final determination. Absent any other statutory authority, the Board lacks jurisdiction to consider the specific interest issue raised by the Taxpayer.”
In City of Wichita I, the City argued that it was entitled to an abatement of interest on the assessment of additional sales tax on electricity. BOTA reached a verbatim conclusion as was reached in paragraph 74 in this case, but it did not malte the findings set forth in paragraph 75. On appeal, the City argued that BOTA erred in finding no departmental evidence and it argued that BOTA failed to address the application of K.S.A. 79-3268(d) to “inordinate” delays in the administrative proceedings, specifically, the 3-year delay and statutory violations in issuing a final determination upholding the assessment.
On appeal, this court affirmed BOTA’s conclusion:
“Before the Court of Appeals, the City argued that the audit began in September 1994 and was not complete until February 1996. However, the delay from the time Smith began his work on the audit until the time Blaha began her work on the audit affected the audit period itself. Thus, any delay gave the City the benefit of excluding 9 months, i.e., 3 years before Smith began his audit (September 1991) until 3 years before Blaha began her audit (June 1, 1992), from the audit period. Regarding the time Blaha took to complete the audit, the City’s attorney at the hearing before the ALJ remarked that the time was not unreasonable. The record supports BOTA’s determination and there is no evidence which would support reversal of the negative finding that the Department’s employees were not negligent in either assessing die tax or in notifying the taxpayer.
“The City complained about the ‘inordinate time required to move this case through the administrative process.’ The Department pointed out that the statutory language only contemplated delay in assessing the tax or notifying the taxpayer of the liability. The City fails to persuasively respond to the Department’s argument that delays odier than in assessing tax and notification of the taxpayer are beyond the reach of K.S.A. 79-3268(d). ‘Ordinary words are to be given their ordinary meaning, and 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. [Citation omitted.]’ GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001). Without any statutory authority for extending K.S.A. 79-3268(d) to delays other than those plainly specified in that subsection, we decline to expand that subsection.” City of Wichita I, 274 Kan. at 936-37.
Discussion
The City argues that BOTA erred in denying the City an abatement of interest on any remaining tax due pursuant to K.S.A. 79-3268(d) of the Taxpayer Bill of Rights Act. The Revenue Department counters that the City should be collaterally estopped from raising this issue because it was already decided in City of Wichita I. The Revenue Department’s argument has merit.
K.S.A. 79-3268(d) provides: “The director shall waive any interest assessed against a taxpayer when it is determined by the director that the negligence of an employee of the department resulted in undue delay in either assessing tax or notifying the taxpayer of the liability owed.”
“Whether the doctrine of issue preclusion or claim preclusion applies in a certain situation is a question of law. An appellate court may analyze the question using unlimited de novo review. [Citation omitted.]” Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 396, 949 P.2d 602 (1997), cert. denied 525 U.S. 831(1998).
“ ‘The requirements of collateral estoppel are (1) a prior judgment on the merits which determined die rights and liabilities of die parties on the issue based upon ultimate facts as disclosed by die pleadings and judgment, (2) the paides must be the same or in privity, and (3) the issue litigated must have been determined and necessary to support the judgment.’ ” Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002).
“The doctrine of collateral estoppel is different from the doctrine of res judicata. Instead of preventing a second assertion of the same claim or cause of action, the doctrine of collateral estoppel preveiits a second litigation of the same issues between the same parties or their privies even in connection with a different claim or cause of action.” Williams v. Evans, 220 Kan. 394, Syl. ¶ 1, 552 P.2d 876 (1976).
The City first contends that BOTA erred in finding that no negligence delayed the audit because the audit spanned 19 months and the performance of the two auditors was not “reasonable” or “prudent” under the circumstances. However, the City of Wichita I court clearly rendered a prior judgment on this precise issue; the parties are identical; and the issue was litigated, determined, and necessary to support the judgment. Under these circumstances, the City is collaterally estopped from arguing that the audit was delayed by negligence warranting an abatement of interest.
The City also argues that BOTA misconstrued K.S.A. 79-3268(d) in concluding that the statute did not address a delay in the issuance of a final determination letter. The City contends BOTA’s conclusion that initial notices of assessment are the only notifica tions subject to this statute was without support, unduly technical, and contrary to the spirit of the Taxpayer Bill of Rights Act.
The City did not raise these points in City of Wichita I when it was arguing about the inordinate delays in the administrative proceedings. These arguments appear to be a response to this court’s finding in City of Wichita I that the City failed to persuasively respond to tire Revenue Department’s argument that delays other than in assessing tax and notification of the taxpayer were beyond the reach of K.S.A. 79-3268(d).
We have already reached a prior judgment on this issue in City of Wichita I where the parties were exactly the same and the issue was litigated and necessary to support the court’s denial of an abatement of interest. The City had the opportunity but chose not to raise this particular supporting argument when this precise issue was raised in City of Wichita 1. Under these circumstances, the City is likewise collaterally estopped from raising new arguments to support its position on this issue when the issue has already been decided in the Revenue Department’s favor.
Attorney Fees
In City of Wichita I, the City sought attorney fees and costs pursuant to K.S.A. 79-3268(f), and BOTA found that it did not have jurisdiction to award attorney fees in its August 29, 2000, order denying reconsideration:
“In regard to the Taxpayers request for attorney s fees and related costs, the Board finds no express statutory grant of power that authorizes tire Board to grant a request for attorney’s fees. ‘The State Board of Tax Appeals is a creature of the Legislature. Its authority is only such as is expressly or impliedly given by legislative enactment. If it attempts to exercise jurisdiction over a subject matter not conferred by the Legislature, its orders with respect thereto are without authority of law and void.’ [Citations omitted.] ‘No power has ever been delegated to this [B]oard to adopt or determine laws contrary to express statutory provisions. Any such attempted delegation of power would be [an] unlawful delegation of power and not binding on this court.’ ”
The City appealed this decision, and the Court of Appeals affirmed, reasoning:
“Taxpayer also claims it is entided to attorney fees and costs. Without deciding whether BOTA has the statutory authority to grant a request for attorney fees, we hold Taxpayer is not entitled to attorney fees and costs in this case, as we are unable to hold the Department of Revenue made its assessment without a reasonable basis in law and fact. See K.S.A. 79-3268(f).” In re City of Wichita, No. 85,953, unpublished opinion filed November 2, 1001.
This court affirmed the Court of Appeals’ denial of attorney fees and costs:
“The Court of Appeals, in this case, determined the City was not entitled to attorney fees and costs because, citing K.S.A. 79-3268(f), it could not determine that the Department ‘made its assessment without a reasonable basis in law and fact.’ Unlike the Court of Appeals, we affirm the BOTA decision. Thus, in light of our conclusion, we find that attorney fees are even less appropriate in this case and affirm the Court of Appeals’ denial of attorney fees and costs.” 274 Kan. at 938.
In this case, BOTA likewise denied the City’s request for attorney fees:
“80. K.S.A. 79-3268(f), and amendments thereto, explicitly requires that the taxpayer first exhaust its administrative remedies before an award of attorney fees may be made under the section. The Board finds that the Taxpayer has not yet exhausted its administrative remedies in this matter. A final order from this Board is required for administrative remedies to be exhausted. See In the Matter of the Application of Reno Township, 27 Kan. App. 2d 794, 10 P.3d 1 (1999). The Board concludes that it lacks jurisdiction to award attorney fees in this matter pursuant to K.S.A. 79-3268(f), and amendments thereto.”
BOTA made no additional finding on this issue when ruling on the City’s motion for reconsideration even though the motion argued that the administrative remedies were exhausted with that step.
BOTA member David L. Patton dissented from the majority’s decision, reasoning that regardless of whether K.S.A. 79-3268(f) was applicable, BOTA has awarded attorney fees as sanctions in the past in In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 957 P.2d 473 (1998). He reasoned:
“The issue in this case is not necessarily the negligence by the Department of Revenue, although there is ample testimony to that fact, but a deliberate delay in the processing of the case by the Department, which damaged the City. Therefore, the award of attorney fees and expenses outlined in the City’s Proposed Findings of Fact and Conclusions of Law are justified and should be awarded to the City in the amount of $189,667.”
Discussion
The City first argues that BOTA’s interpretation of K.S.A. 79-3268(f) effectively requires the taxpayer to perfect a judicial review proceeding in order to be eligible for a fee award, which is not a practical or taxpayer-friendly construction of the Taxpayer Bill of Rights Act.
K.S.A. 79-3268(f) provides:
“Attorney fees and related expenses may be awarded to a taxpayer if it can be proved that an assessment or claim asserted by the department is without a reasonable basis in law or fact. A taxpayer must first exhaust its administrative remedies before an award of attorney fees may be made under this section.”
When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed in the language of the statute rather than determine what the law should be. In construing statutes and determining legislative intent, it is presumed that the legislature understood the meaning of and intended the words used and that the legislature used the words in accordance with their ordinary and common meaning. In re Care & Treatment of Searcy, 274 Kan. 130, 49 P.3d 1 (2002). Interpretation of a statute is a question of law, and this court’s review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
The plain and unambiguous language of K.S.A. 79-3268(f) provides that administrative remedies must be exhausted before attorney fees can be awarded under this statute. As such, any request for fees at the administrative level is premature as the administrative remedies were not exhausted until a final order was issued by BOTA on the motion for reconsideration. BOTA’s determination that it was without jurisdiction to award attorney fees under K.S.A. 79-3268 was correct.
The City next argues that if BOTA’s construction of K.S.A. 79-3268 is upheld, this court must determine whether attorney fees are appropriate in this case. The City points to six assessments and claims it argues were made by the Revenue Department without basis in fact or law: (1) the claim that various fees for service charged by the City were collected for “the sale or furnishing of water,” (2) the assessment of retailers’ sales tax on interdepartmental transfers, (3) the assessment of electricity purchases at the full 4.9% rate, (4) the assessment of electricity consumed in production at 4.9% after In re Appeal of Water Dist. No. 1 of Johnson County, 26 Kan. App. 2d 371, 988 P.2d 267, rev. denied 268 Kan. 846 (1999), was filed, (5) the failure to issue a final determination until after final argument before Secretary Pierce contrary to the 270-day time limit of K.S.A. 2003 Supp. 79-3226(a), and (6) the claim that the June 30, 2002, final determination was based upon reconsideration of all the facts and issues underlying the assessment, given administrative law judge Heinemann’s admission that it was merely to provide the Revenue Department’s position.
The Revenue Department responds that the City should be collaterally estopped from relitigating this issue, as City of Wichita I was unable to hold that the Revenue Department made its assessment without a reasonable basis in law and fact. The Revenue Department contends that the City is not really arguing that the assessment was without a reasonable basis in law and fact, as it did not appeal all of the assessment but it simply disagrees with the arguments or positions put forward by the Revenue Department in support of its assessment.
As in City of Wichita I, this court affirms BOTA’s order affirming the assessment by the Revenue Department. As such, the Revenue Department did not malee its assessment without a reasonable basis in both law and fact, and the City is not entitled to attorney fees under K.S.A. 79-3268(f).
The City also cites American Restaurant as alternative authority for the award of attorney fees in this case. In that case, this court affirmed BOTA and the district court’s award of discovery sanctions, including attorney fees, pursuant to K.S.A. 60-237, for the costs of the motion to compel discovery filed by the taxpayer. 264 Kan. at 538-39. However, American Restaurant and its statutory authority were inapplicable to this case because they dealt with sanctions for discovery violations rather than the length of the ad ministrative proceedings, which is at issue in this case. We conclude that B OTA’s order denying attorney fees be upheld.
Protective Order
On February 26, 2001, the City filed a request for production of documents. On March 28, 2001, the Revenue Department filed a response objecting to certain documents on the grounds of attorney-client privilege, executive privilege, and quasi-judicial administrative privilege. On March 29,2001, BOTA ordered the Revenue Department to produce the documents, and the Revenue Department complied.
On April 5,2001, the Revenue Department filed a motion asking BOTA to issue a protective order covering certain documents and deposition testimony of hearing officers David Heinemann, Douglas Hager, and Secretaiy of Revenue Karla Pierce it had provided to the City. The Revenue Department cited no authority for this motion; it merely argued that the information was confidential and privileged.
The City opposed the motion, arguing that no legal authority existed to protect these documents, that the public interest overwhelmingly outweighs protection under these circumstances, and that the Revenue Department was seeking to cover up its own illegal acts from public scrutiny. On April 10, 2001, BOTA held oral arguments on the motion. The Revenue Department argued that disclosure of these materials to the public would have a chilling effect on the administrative decision-making process.
After the hearing, the Revenue Department filed a response that it was asserting quasi-judicial administrative privilege, executive privilege, governmental deliberative process privilege, and attorney-client privilege, and it cited the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. The City filed a supplemental memorandum in response reiterating that the motion failed to state the factual or legal basis for a protective order and that a general claim of privilege does not entitle the Revenue Department to a protective order under K.S.A. 2003 Supp. 60-226.
BOTA entered a protective order regarding the following documents: (1) 10/20/97 email from Douglas Hager to John LaFaver at 4:13 p.m.; (2) 3/6/96 memo from Tom Sheridan to LaFaver; (3) 1/24/96 memo from Sheridan to Wayne Vennard; (4) 11/10/97 email from Hager to LaFaver at 12:52 p.m. and the 11/11/97 response at 10:16 p.m.; (5) 10/28/97 memo from Hager to LaFaver including 6 Post-It notes containing internal working notes; (6) 10/ 10/97 unsigned draft of the final determination; (7) 6/28/00 email from Richard Cram to David Heinemann at 10:06 a.m.; (8) 10/23/ 97 email from Hager to LaFaver at 12:42 p.m. and reply emails on 10/24/97 at 8:14 a.m. and 12:04 p.m; (9) 4/1/97 Hager hearing notes; (10) 3/27/97 and 3/28/97 Hager hearing notes; (11) 3/20/97 Hager internal working notes; (11) undated Heinemann internal working notes; and (12) undated LaFaver internal working notes.
BOTA explained its reasoning for the protective order:
“8. Pursuant to K.S.A. 60-226(c), and amendments thereto, the Board may issue a protective order upon the motion of a party and for good cause shown. The Department has filed a motion for a protective order requesting that the disclosure of clearly identified documents be limited to die parties and the Board until the Board has had an opportunity to rule on the issues of privilege and admissibility of dre documents. Further, the Department cites the Kansas Open Records Act.
“9. As stated in the Kansas Open Records Act, the public policy of the state of Kansas is that ‘public records shall be open for inspection by any person unless otherwise provided by this act, . . .’ K.S.A. 45-216(a). However, the act acknowledges diat certain records are not required to be open. K.S.A. 45-221(a)(2) states drat a public agency is not required to disclose ‘[n]otes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting.’ The Board finds that there is sufficient detailed information before the Board to conclude that the documents at issue in tiiis motion would qualify as notes, preliminary drafts, memoranda or recommendations in which opinions of actions are proposed.
“10. The Board finds that under the Kansas Open Records Act the documents at issue would not have to be produced if requested by an unrelated third party to this matter. In its discretion, the Board finds that this fact constitutes good cause to issue a protective order. The Board finds that pursuant to K.S.A. 77-522, K.S.A. 60-226(c), and K.A.R. 94-2-14, tire Board has the authority to issue a protective order. Further, the Board finds that a protective order should be entered.”
BOTA Chairman David Patton dissented from the majority opinion:
“The majority has further alluded to the Kansas Open Records Act. The Kansas Open Records Act has no application in this case since the records have in fact been produced without objection.
“The Department has totally failed to provide good cause in support of a protective order. . . .
“Upon review of the Department’s original Motion for Protective Order, oral arguments, and Reply, the Department has failed to show good cause pursuant to statute why a protective order should be issued. The Department has not shown that a protective order is necessary to protect the Department from annoyance, embarrassment, oppression, or undue burden or expense, and the Department’s motion should be denied.”
Discussion
The control of discovery in Kansas is entrusted to the sound discretion of the district court, K.S.A. 60-226(c) and K.S.A. 60-237(a)(2), and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion. Lone Star Industries, Inc. v. Secretary of Kansas Dept. of Transp., 234 Kan. 121, 131-32, 671 P.2d 511 (1983).
K.S.A. 77-522(a) grants the presiding officer the authority to issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure.
K.S.A. 2003 Supp. 60-226(c) provides in relevant part:
“Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
K.A.R. 94-2-14(a)(2) provides that the following criteria shall be considered by BOTA when ruling on a motion for a protective order for confidential business records: “(A) [wjhat risk of financial or competitive harm to the party seeking to prevent disclosure faces; (B) whether or not disclosure will aid the board in its duties; (C) whether or not disclosure serves or might harm the public interests; and (D) whether or not alternatives to full disclosure exist.”
An interesting preliminary question arises as the City did not suffer any harm by the protective order issued by BOTA. The City had access to all of the information and has been free to use it throughout the proceedings before BOTA and this court. At the hearing, BOTA member Jill Jenkins asked the City’s counsel if the City would be harmed in any way if BOTA were to grant the Revenue Department’s motion, and counsel responded:
“Well, it’s an excellent question, and I would say that the harm to my client in this case would be difficult to cite to you. In other words, as long as this Board will review these documents in connection with the issues in this case and in the Court of Appeals in their case, then in terms of this limited proceeding, we don’t talk about harm. But, you know, what I think is before the Board really, Ms. Jenkins, is beyond that. It’s sort like well, what about my client in future cases? What happens the next time that drey have to go through the Department of Revenue on a case drat they have to be embroiled in an administrative hearing at dre Department of Revenue level? Are they harmed because they’re still stuck widr drat old procedure and the way it works I would argue, yes. You know, really the principal harm of the Board’s — of a conscious approach here and saying let’s just keep die lid on this is really more to the taxpayers across the State of Kansas, of which my client is only one. It’s time to clean it up down there, and we will all be harmed if that doesn’t happen. In that sense we stand with all odier taxpayers but not specific to this case.”
Where the parties have conflicting interests in material sought to be discovered, the protective power of the court may be sought by a party and the court must balance the litigant’s interest in obtaining the requested information with the resisting party’s interest, as well as the public interest in maintaining the confidentiality of the material. When a trial court orders production of confidential records, it has a duty to limit the availability and use of documents by carefully drawn protective provisions. Wesley Medical Center v. Clark, 234 Kan. 13, Syl. ¶ ¶ 13, 14, 669 P.2d 209 (1983).
In this case, BOTA clearly balanced the City’s need to have these documents with the Revenue Department’s assertions of privilege and the chilling effect their disclosure would have on the administrative process by crafting a protective order which resulted in no prejudice to either party in this case. The City would be able to' use all of the information, and the Revenue Department would not suffer the embarrassment of having it disseminated to the public.
Ultimately, it appears from the record that the City asks this court to decide this issue as a matter of principle, a question which will have no effect on the outcome of this case. We decline the request. We are reminded 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 matters in issue before the court.’ ” In re Appeal of Colorado Interstate Gas Co., 270 Kan. 303, 305, 14 P.3d 1099 (2000) (quoting Miller v. Sloan, Listrom, Eisenbarth & Glassman, 267 Kan. 245, 262, 978 P.2d 922 [1999]); accord Burnett v. Doyen, 220 Kan. 400, 403, 552 P.2d 928(1976).
Should a question relating to KORA arise in another context, there is nothing to prevent the court from giving it consideration.
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Per Curiam,-.
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Troy L. Daugherty, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas on September 20, 1990. The alleged misconduct arises from two client complaints filed with the Disciplinary Administrator s office, DA 8341 and DA 8427. Both complaints allege the misconduct occurred while respondent was representing the respective clients, Elizabeth A. Mann and Gaye Lynn Manning, in divorce proceedings commenced in May and September 2000.
The formal complaint filed by the Disciplinary Administrator involving these two cases alleged respondent violated KRPC 1.1 (2003 Kan. Ct. R. Annot. 324) (competence); KRPC 1.3 (2003 Kan. Ct. R. Annot. 336) (diligence); KRPC 1.4 (2003 Kan. Ct. R. Annot. 349) (communication); KRPC 1.5 (2003 Kan. Ct. R. Annot. 362) (fees); and KRPC 8.4(g) (2003 Kan. Ct. R. Annot. 464) (professional misconduct). The underlying facts found by the panel concerning these alleged violations are summarized as follows:
Elizabeth A. Mann Complaint (DA 8341)
Respondent began representing Mann in her divorce action in May 2000. This was a highly contested divorce and initially respondent provided Mann with diligent representation and adequate communication. On October 12, 2000, opposing counsel, Ann Hansbrough, commenced a second round of discovery which included additional interrogatories and requests for document production. Respondent received and reviewed these requests.
At the disciplinary hearing, Mann and respondent disagreed as to whether she received the second set of discovery requests. The panel carefully reviewed all the evidence presented on this point and concluded that respondent did not provide her with a copy.
On December 6, 2000, Hansbrough still had not received the requested discovery and sent respondent a letter to that effect. When respondent failed to reply, Hansbrough filed a follow-up motion to compel, and thereafter Hansbrough and respondent agreed the requested discovery would be provided by January 15, 2001. The parties memorialized their agreement in a proposed journal entry signed by the district court on January 17, 2001. Respondent, however, failed to notify his client, Mann, of her obligation to complete the discovery.
On February 13, 2001, Hansbrough sent respondent another letter requesting the discovery and expressing her intent to seek sanctions for nonproduction. Respondent received and reviewed the letter, but failed to notify or otherwise discuss the matter with Mann. On February 20, 2001, Hansbrough filed the motion for sanctions and a hearing was set for March 16, 2001. Neither respondent nor Mann appeared at the hearing. Respondent testified he never received the motion or notice of hearing. However, evidence in the record, including a confirmed fax report supplied by Hansbrough and respondent’s own billing records, indicate otherwise.
As a result of respondent’s failure to attend the hearing, Mann received an order to appear and show cause why she should not be held in contempt of court and sanctioned for her failure to comply with the discovery order. The show cause hearing was scheduled for April 4, 2001. After being served with this order, Mann contacted respondent who assured her he would provide her with the discovery requests by March 31, 2001. After he failed to do so, Mann terminated respondent’s representation, paid her account balance, and picked up her case file.
Mann and her new attorney, Donna Manning, appeared at the April 4, 2001, show cause hearing. Mann explained that she was unaware of the discovery request until served with the show cause order and produced the requested discovery. That same day the district court sent respondent a letter inviting him to express, in writing, any reason why he should not reimburse Hansbrough for $704 in fees she billed for her efforts to obtain the requested discovery. Respondent did not respond as suggested and did not pay Hansbrough’s fees until March 2003.
Although Mann terminated respondent on April 3, 2001, respondent continued to bill against her account on 12 separate occasions dating from April 4,2001, until October 26,2001. Included in these charges were amounts totaling $750 for respondent’s time spent responding to the disciplinary complaint Mann filed with the Administrative Disciplinary Commission of the Missouri Supreme Court. Respondent’s records also reflect he “credited” her account $831.93 in April 2002.
At the hearing respondent testified that he did not intend for Mann to be billed for his response to the disciplinary complaint. He explained he tracks all his time and that the bill was sent inadvertently. The panel noted inconsistencies in respondent’s explanation and found his “self-serving, inconsistent testimony to be disingenuous.”
Complaint of Gaye Lynn Manning (DA8427)
In September 2000, respondent began representing Gaye Lynn Manning in her divorce action. In this case, the issues were also contentious, and the client was initially satisfied with respondent’s representation and level of communication. Regarding a May 21, 2001, scheduled hearing, Manning grew concerned that respondent was not adequately preparing her case; ultimately, she was dissatisfied with respondent’s representation. Following this hearing, which ordered the division and sale of real estate, the district court instructed respondent to prepare the journal entry within 10 days. Respondent failed to do so. Thereafter, Manning contacted the respondent about the status of the journal entry as she felt it was necessary to effect the sale of the marital residence. Respondent never complied with Manning’s request for information. On June 18, 2001, and July 6, 2001, opposing counsel also inquired as to the status of the divorce, and likewise, respondent failed to respond.
Respondent’s records indicate he began drafting the journal entry on July 20 and “finalized” it on July 31. However, he failed to provide a copy of it to either his client or opposing counsel. On August 23, 2001, opposing counsel made a written request for a copy of the journal entry, and respondent did not respond. Eight days later, Manning sent respondent a letter documenting the chronology of events concerning the journal entry and respondent’s failure to complete same. She also informed respondent that he should box up her files for pick up as she planned on obtaining a new attorney. Again, respondent failed to respond. He did not file a motion to withdraw and, in September 2001, he refused to turn over the client’s files to her mother when she arrived at his office to pick them up.
Because the journal entry had not been forthcoming from the respondent, opposing counsel set a status conference with the district court for October 4, 2001, and provided respondent with a notice of the conference. Respondent failed to inform the client of the status conference, but appeared himself on her behalf despite having been terminated. He provided the court and opposing counsel with the journal entry he had drafted.
On October 15, 2001, the client sent another request to respondent for her files and this time included a notarized statement directing him to release the files to her mother. Respondent complied. However, he continued to bill the client for services and expenses after he was terminated. He charged the client $400 for appearing at the October 4 status conference; approximately $30 for mailing a change of address and for expenses related to the disciplinary complaint; and $58.75 for photocopying expenses. At the disciplinary hearing herein, respondent agreed to “write off’ any remaining balance on the client’s account.
The Hearing Panel’s Conclusions of Law
In the final hearing report, the panel presented its conclusions of law as follows;
“1. The Formal Complaint included allegations that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, and KRPC 8.4(g). It is appropriate to consider violations not included in the Formal Complaint under certain cir cumstances. The law, respective of this issue, was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as Mows:
‘Supreme Court Rule 211(b) [2003 Kan. Ct. R. Annot. 260] requires the formal complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent of the alleged misconduct.
‘The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222, reh. denied 391 U.S. 961 (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
‘Decisions subsequent to Buffalo have refined the concept of due process as it applies to lawyer disciplinary hearings, and suggest that the notice to be provided be more in the nature of that provided in civil cases. The weight of authority appears to be that, unlike due process provided in criminal actions, there are no stringent or technical requirements in setting forth allegations or descriptions of alleged offenses. [Citation omitted.] Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the State is not required to plead specific rules, since it is the factual allegations against which the attorney must defend. [Citation omitted.] However, if specific rules are pled, the State is thereafter limited to such specific offenses. [Citation omitted.]
‘Subsequent to the Ruffalo decision, the due process requirements in lawyer disciplinary proceedings have been given exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas and federal precedent on the question, including Buffalo, and held in accordance with established precedent that the State need not set forth in its complaint the specific disciplinary rules allegedly violated [citation omitted], nor is it required to plead specific allegations of misconduct. [Citation omitted.] What is required was simply stated therein:
“ ‘ ‘We must conclude that where the facts in connection with the charge, are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. . . .
“ ‘ “It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result.” ’ State v. Turner, 217 Kan. at 579-80.”
235 Kan. at 458-59 .... Thus, only when the Formal Complaint alleges facts that would support findings of violations of the amendments, will considering additional violations be allowed. In this case, the Formal Complaint contains sufficient facts to support a finding that the Respondent violated KRPC 1.16. See ¶ 17 of the Formal Complaint. Thus, in the opinion of the Hearing Panel, it is appropriate to consider whether the Respondent violated KRPC 1.16.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ Id. Regarding Ms. Manning, the Respondent should have timely completed the Journal Entry and forwarded die same to counsel for approval. In the event opposing counsel failed to approve or timely object, the Respondent should have filed the Journal Entry with the Court, pursuant to Kan. Sup. Ct. R. 170. Thus, the question becomes whether the Respondent’s failure to provide appropriate representation in this regard amounts to incompetence or a lack of diligence. The Hearing Panel believes that the Respondent possesses the necessary legal knowledge and skill to prepare and file the Journal Entry. Accordingly, the Hearing Panel concludes that the Respondent’s failure in this regard, while recognizing that it is a close call, does not amount of a lack of competence. As such, the Hearing Panel concludes that the Respondent did not violate KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Ms. Mann and to Ms. Manning. Regarding Ms. Mann, the Respondent failed to provide her with diligent representation when he failed to work on the answers to the second request for discovery. It was ultimately the Respondent’s responsibility to ensure that responses to discovery requests were provided in a timely fashion. In representing Ms. Manning, the Respondent failed to diligently prepare a Journal Entry, memorializing the May 21, 2001, hearing. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ Id. In this case, the Respondent violated KRPC 1.4(a) in his representation of Ms. Mann and in his representation of Ms. Manning. Specifically, the Respondent failed to inform Ms. Mann that a second set of discovery requests had been propounded; the Respondent failed to provide Ms. Mann with a copy of the discovery requests; the Respondent failed to inform Ms. Mann that he had received a motion to compel discovery; the Respondent failed to inform Ms. Mann that he had agreed to an order compelling her to comply with the discovery requests by January 15, 2001; the Respondent failed to inform Ms. Mann that he had received a motion for sanctions; and the Respondent failed to inform Ms. Mann that the motion for sanctions was scheduled for March 16,2001. Additionally, regarding his representation of Ms. Manning, the Respondent failed to respond to requests for information regarding the status of the journal entry from Ms. Manning. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. ‘[A] lawyer . . . where representation has commenced, shall withdraw from the representation of a client if . . . the lawyer is discharged.’ KRPC 1.16(a)(3). On August 31, 2001, Ms. Manning fired the Respondent. Despite the fact that the Respondent had been terminated, tire Respondent failed to file a motion to withdraw and, in fact, appeared in Ms. Manning’s behalf at an October 4, 2001, hearing. The Hearing Panel concludes that, therefore, the Respondent violated KRPC 1.16(a)(3).
“6. The Formal Complaint also contained allegations that the Respondent violated KRPC 1.5 [fees] and KRPC 8.4(g) [engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law]. While the Hearing Panel is concerned that the Respondent issued bills to Ms. Mann and Ms. Manning for time he spent after he was terminated from their representation, including time that he spent responding to the ethics complaints, the Hearing Panel concludes that the provisions of KRPC 1.5 are inapplicable to the situation. Additionally, because the Respondent testified that the bills were sent inadvertently, the Hearing Panel concludes that clear and convincing evidence was not presented to establish that the Respondent violated KRPC 8.4(g). Accordingly, the Hearing Panel concludes, as a matter of law, that the Respondent did not violate KRPC 1.5 and KRPC 8.4(g).”
To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2003 Kan. Ct. R. Annot. 264); In re Harris, 261 Kan. 1063, 1066, 934 P.2d 965 (1997). In sum, the panel concluded respondent violated KRPC 1.3 and 1.4, as to each of the clients and 1.16 only as to Manning. The panel further concluded respondent did not violate KRPC 1.1, 1.5, or 8.4(g).
A hearing panel’s report is deemed admitted under Rule 212(c) and (d) (2003 Kan. Ct. R. Annot. 270) when a respondent fails to file exceptions. In re Howlett, 266 Kan. 401, 969 P.2d 890 (1998); accord In re Juhnke, 273 Kan. 162, 168-79, 41 P.3d 855 (2002). In this case, respondent filed no exceptions to the panel’s final hearing report. We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. Further, we adopt the panel’s findings and conclusions.
Panel’s Recommended Discipline
At the hearing, the Disciplinaiy Administrator argued that respondent should receive a 6-12-month suspension. The respondent argued that “if any sanction would be appropriate, it would be an admonition.” In its final hearing report, the hearing panel unani mously recommended unpublished censure as the appropriate discipline.
The panel found six aggravating factors present: (1) Prior disciplinary offenses — on April 4, 2003, the Missouri Supreme Court Region IV disciplinary committee informally admonished respondent for his misconduct in representing three clients, including Mann and Manning; (2) Pattern of misconduct; (3) Multiple offenses; (4) Refusal to acknowledge wrongful nature of conduct; (5) Vulnerability of the victims; and (6) Substantial experience in the practice of law based on the 15 years respondent had been practicing at the time the offenses occurred (initially admitted to practice of law in Illinois in 1985). The panel also found one mitigating factor present: absence of a dishonest or selfish motive.
The recommendation of the panel as to sanctions to be imposed shall be advisory only and shall not prevent the court from imposing discipline greater or lesser than that recommended by the panel or Disciplinary Administrator. Rule 212(f).
The respondent wasted a great deal of the time of his clients, the courts, and opposing counsel. Clients in contested divorce proceedings, especially involving child custody disputes, need expeditious resolution of the issues in order that they may get on with their lives. Respondent’s wholly unjustified delays in completing relatively simple tasks and in not responding to his clients’ inquiries made already difficult situations worse and more stressful. As noted by the panel, respondent, at the hearing, refused to acknowledge most of his wrongdoing. A minority of the court would accept the panel’s recommended discipline of unpublished censure. The majority of the court concludes that published censure is the appropriate discipline.
It Is Therefore Ordered that the respondent, Troy L. Daugherty, be censured in accordance with Supreme Court Rule 203(a)(3) (2003 Kan. Ct. R. Annot. 226) for the violations found herein.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent. | [
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The opinion of the court was delivered by
Nuss, J.:
Reginald Meeks appeals his conviction for the first-degree premeditated murder of James Green. Our jurisdiction is under K.S.A. 22-3601(b)(l), a maximum sentence of life imprisonment imposed.
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the trial court commit error in allowing the admission of the victim’s statement, “Meeks shot me?” No.
2. Did the trial court abuse its discretion in denying defendant’s request for a continuance? No.
3. Did the trial court abuse its discretion in permitting the jury to hear the entire recording of the 911 call? No.
4. Did the cumulative effect of trial errors deny the defendant a fair trial? No.
5. Did sufficient evidence establish that the murder was premeditated? Yes.
Accordingly, we affirm.
FACTS
At 9 p.m. on August 21, 2001, the decedent, James Green, his brother Imon (a/k/a Shawn) Wright, Mia Taylor, and Dennis Jennings (a/k/a Rusty) were with Christopher Graves at his home at 647 Troup in Kansas City, Kansas. The defendant, Reginald Meeks, who was a friend of Christopher Graves’ brother Jesse, came to the Graves house and demanded an apology from Green regarding a prior incident where Green had shut Meeks’ hand in a door. Green refused to apologize.
Meeks challenged Green to fight outside, and Green reluctantly agreed. Meeks went outside first, followed by Green and the others. Green and Meeks fought and wrestled for about 5 minutes. Green then stopped, telling Meeks that he was tired and that they did not need to fight.
Green’s brother, Wright, testified that Meeks continued tiying to get to Green, so Wright stepped in to calm Meeks down. As Green was walking away toward his home at 648 Troup, Meeks pulled out a handgun. As everyone scattered, Wright warned Green that Meeks had a gun. Meeks began chasing Green around Wright’s car, which was parked on the street.
When Green slipped and fell, Wright threw a brick toward Meeks. Meeks turned and aimed his handgun at Wright, so Wright ran to 647 Troup. As Wright reached the door, he heard two gunshots. After he went inside the house and shut the door, he looked back into the street. He saw his brother, Green, lying on the ground and Meeks standing in front of Green. Meeks then ran away with tire gun in his hand.
The other people present testified to similar events. Taylor testified that as Green got up and started to walk away from the fight, Meeks followed him and pulled out a gun. When someone yelled that Meeks had a gun, Green turned around and then began running around Wright’s car. Meeks fired several shots, Green fell down, and Meeks ran away.
Jennings testified that after Meeks and Green were wrestling, Meeks pulled out a gun and fired. When Jennings heard the first shot, he ran to his house with Graves.
Wright, Taylor, and Graves were later shown photographic lineups; each one separately identified Meeks as the shooter.
Around 9 p.m., Reverend Lacy Rydell, a neighbor, heard two gunshots and heard Green cry for help. Rydell went to the door and saw Green stooped down in the street behind a car. Rydell then called 911. He saw Green fall to the ground and the other man shoot at Green and then run. Rydell heard five to six gunshots in all.
Two other people in the neighborhood also heard the shots that evening and saw Green running around a car. Barbara Ann Brooks, Green’s girlfriend, was at 648 Troup. She testified that when she heard gunshots, she ran to the door and saw a guy chasing Green around the car and shooting him. Cassie Glover, who lived at 650 Troup, heard five or six gunshots and went to her door. She saw Green running around a car, but saw no one else. After running upstairs to lay her stepdaughter down, she returned and saw Green lying on the street.
Officer Terrance Hall was the first police officer to arrive at the scene, appearing approximately 10 minutes after tire shooting. He asked Green who shot him, and Green answered, “Meeks shot me.” By 9:22 p.m. Green was unconscious; at 10:47 p.m. he was pronounced dead. The coroner found one gunshot wound in the chest from a .25 caliber bullet which missed Green’s right lung but pierced his left lung and one of the major veins that drains blood from the arm. He also found several small abrasions. He opined that based upon Green’s wound, Green could have remained conscious for 10 to 15 minutes after being shot.
Detective Terry Zeigler spoke with Meeks on August 27, 2001, 6 days after Green’s death. Meeks waived his Miranda rights and told Zeigler that he was with his mother at her house at 9 o’clock the night of Green’s death. However, his mother, Esther Hawkins, later testified that she worked from 3 p.m until 11 p.m. that night, that she got home from work around 11:15 p.m., and that she saw Meeks coming down the street. He stayed for only a few minutes.
Despite what Meeks had initially told Detective Ziegler about being with his mother at her house at 9 o’clock the night of Green’s death, his theory of defense at the trial was that he was at the Club Uptown that night, not wrestling and shooting Green on Troup. As support, his sister, Ra’meka Meeks, testified that when she was still 19 years old, she went to the Club Uptown with Reginald Meeks, Jason Meeks, and a friend named Mike one weeknight sometime around August 2001. The defendant then testified that the night they had gone to that club was Tuesday, August 21.
However, Norma Harris, the manager and owner of Club Uptown, testified as a State rebuttal witness that her club was only open Thursdays through Saturdays before August 28, 2001. She also testified that the club’s video system, which through its video tape might confirm or deny Meeks’ defense that he was present, was not in place until the end of January 2002. She also provided summaries of liquor purchases during various months in an attempt to corroborate her testimony that the club was not open on the night of the murder.
, The jury convicted Meeks of first-degree premeditated murder, and the court sentenced him to life, without eligibility for parole for 25 years.
ANALYSIS
Issue 1: Did the trial court err in allowing the admission of Green’s statement, “Meeks shot me?”
Meeks claims that the trial court abused its discretion in admitting Green’s statement, “Meeks shot me,” because the statement lacked adequate indicia of reliability, thus violating his Sixth Amendment right to confront the witnesses against him.
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her. As acknowledged by the parties in their briefs and oral arguments, however, this constitutional provision does not preclude the admission of all out-of-court statements. See State v. Sanders, 258 Kan. 409, 417-18, 904 P.2d 951 (1995). As this court stated 6 years ago in State v. Bailey, 263 Kan. 685, 692-93, 952 P.2d 1289 (1998) (quoting State v. Bratt, 250 Kan. 264, Syl. ¶ 1, 824 P.2d 983 [1992]):
“ ‘The Confrontation Clause operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness’ statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness.’ ” (Emphasis added.)
Consistent with this guidance in Bailey, the trial court allowed the admission of Green’s statement into evidence under K.S.A. 2003 Supp. 60-460(d)(3). That statutory hearsay exception requires that the declarant be unavailable and the statement be made at a time when the declarant had recently perceived the matter, while the declarant’s recollection was clear, and that the statement was made in good faith prior to the commencement of the action and with no incentive to falsify or distort.
That ruling is now suspect, however, because in an opinion filed on March 8, 2004, approximately 6 weeks after oral arguments in the instant case, the United States Supreme Court substantially altered the Confrontation Clause analysis expressed in Bailey which was in large part based upon Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). In Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the Court drew distinctions between testimonial and nontestimonial hearsay evidence. It held:
“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations.” (Emphasis added.) 541 U.S. at 68.
In short, the Court held that witnesses’ out-of-court statements that are testimonial are barred under the Confrontation Clause unless (1) the witnesses are unavailable and (2) the defendants had prior opportunity to cross-examine those witnesses. In other words, the Roberts standards of admissibility, as used by this court in Bailey, could not apply to testimonial statements, with the possible exception of testimonial dying declarations. Crawford, 541 U.S. at 56 n.6.
In the instant case, Officer Hall was arguably conducting an interrogation when he asked Green if he knew who shot him, thus making the response testimonial. Moreover, Meeks was not given the opportunity to confront Green through cross-examination because Green died before testifying at trial. We need not determine whether the response was testimonial or not, however, because we hold that Meeks forfeited his right to confrontation by killing the witness, Green.
In Crawford, the Court stated that it continued to accept the rule of forfeiture by wrongdoing which “extinguishes confrontation claims on essentially equitable grounds.” 541 U.S. at 62 (citing Reynolds v. United States, 98 U.S. 145, 158-59, 25 L. Ed. 244 [1879]). As the Reynolds Court stated;
“The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own [the accused’s] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.” 98 U.S. at 158.
In State v. Gettings, 244 Kan. 236, 769 P.2d 25 (1989), the Kansas Supreme Court addressed an appellant’s argument that in his trial for burglary and aggravated arson, admission of a statement by a deceased was improper because it violated his right to confrontation and because it was hearsay. The court rejected his argument, holding that the defendant waived his right to confrontation because he was involved in procuring the absence of the murdered witness. Citing United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982), cert. denied 459 U.S. 825 (1982), we stated: “ ‘[Wjhen confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him.’ ” 244 Kan. at 239.
We went on to hold that by adopting the reasoning of Thevis and others, a waiver of the right to confrontation based upon the procurement of the absence of the witness also constitutes a waiver of any hearsay objections to prior statements of the absent witness. We also held that where waiver by misconduct is an issue, the burden of proving that the defendant procured the absence of the witness is upon the State by a preponderance of the evidence. 244 Kan. at 240.
Although Gettings involved somewhat different facts from those of the instant case, in an amicus brief filed in Crawford by law professors Clark, Duane, Friedman, Garland, Maveal, McCormack, Moran, Mueller, and Park in support of petitioner, the professors addressed our specific situation:
“If the trial court determines as a threshold matter that the reason the victim cannot testify at trial is that the accused murdered her, then the accused should be deemed to have forfeited the confrontation right, even though the act with lohich the accused is charged is the same as the one by which he allegedly rendered the witness unavailable. Just as in Bourjaily, bootstrapping does not pose a genuine problem. See Richard D. Friedman, Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997).” (Emphasis added.) Brief, p. 24 n.16.
In the instant case, the trial court, with Bailey as its pr e-Crawford guide, did not specifically “[determine] as a threshold matter that the reason the victim [Green] cannot testify at trial is that the accused [Meeks] murdered” him, because the State did not present that narrow issue for determination. Our review of the transcript of the hearing on the State’s motion to admit Green’s statements, however, reveals that the court did consider Green had been shot in the chest from a range of 4 to 6 feet; that Green was dead; and that at least four witnesses were present when Green told the officer, “Meeks shot me.” Scant evidence was presented to the contrary. We therefore, hold that the issue is proven by a preponderance of the evidence.
Meeks forfeited his right of confrontation and waived any hearsay objections. Green’s statement was properly admitted.
Issue 2: Did the trial court abuse its discretion in denying defendant's request for a continuance?
In the trial of a criminal case, the matter of a continuance is within the discretion of the trial court and its ruling will not be disturbed unless such discretion has been abused and the substantial rights of the defendant have been prejudiced. State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997). Discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Bey, 270 Kan. 544, 546, 17 P.3d 322 (2001). The burden of proof is on the party alleging the discretion is abused. Bey, 270 Kan. at 546.
Meeks’ theory of defense was that he was at Club Uptown on Tuesday August 21, 2001, the night Green was murdered. Norma Harris, the club manager and owner, testified as a State rebuttal witness that the club was not open that night and its video system was not in place until the end of January 2002. She also provided summaries of liquor purchases in an attempt to corroborate her testimony that the club was not open that night.
Meeks’ attorney cross-examined Harris about the video system, business records, and evidence that people under 21 have been allowed into the club in the past. Although the record is not clear, it appears when counsel had earlier requested the videotape of that night from the club to confirm or deny Meeks’ presence, he had not been informed that the system was not in place, but that the video tape had been “taped over,” leading him to conclude the club had been open.
After Harris’ testimony, Meeks’ attorney therefore requested a continuance to “look into this surprise information, get records, speak to police officers involved in these other cases I know about to establish that the cameras were [at the Club Uptown] on August 21st.”
The Court replied:
“Mr. D’Arcy, I’m going to deny that request. I think we’re awfully far afield right now from what the issue in this case is. And whether we’re going to litigate how much liquor she was buying at any particular time and whether or not there were cameras there or not is just too peripheral to the issues in this case I believe and so your request for a continuance would be denied.”
On appeal, Meeks claims that the failure to grant the continuance to allow him to seek support for his alibi deprived him of a fair trial. He argues that he did not know what Harris’ testimony would be until the morning she actually testified.
Meeks cites State v. Betts, 272 Kan. 369, 33 P.3d 575 (2001). In Betts, however, this court found no abuse of discretion in the trial court’s denying a continuance to investigate allegedly exculpatory evidence. Betts requested a continuance to interview a detective who was alleged to have told the victim’s family about weapons involved in the crime, hoping to use the information to rebut the State’s contention that because Betts’ uncle knew which weapons were used in the crime, he must have received the information from someone associated with the crime. 272 Kan. at 386-87. This court found that the materiality of the evidence was doubtful and that any investigation would “necessarily be a fishing expedition to try to establish a link.” 272 Kan. at 387.
Although Meeks may not have been on notice that his alibi would be rebutted so strongly, he was able to cross-examine Harris. Additionally, if his alibi were true, Meeks certainly would have been able to subpoena club workers and patrons who were at the club on August 21, 2001,— especially Jason Meeks and a friend named Mike, whom his sister testified had accompanied them on an Au gust weekniglit — to bolster his alibi by testifying in his case in chief. Whether such witnesses could have been found and so testify, however, is in doubt when at least three eyewitnesses identified Meeks as fighting Green and then shooting him to death on Troup Street at the time he claimed to be in the club. Moreover, the defense still would have had to contend with the fact his first alibi, that he was at home with his mother, had already been shaken by her testimony.
Meeks fails to meet his burden of proving abuse of discretion. We cannot say that no reasonable person would take the view adopted by the trial court. We therefore need not reach the issue of whether the district court’s denial of the continuance prejudiced Meeks’ substantial rights.
Issue 3: Did the trial court abuse its discretion in permitting the jury to hear the entire recording of the 911 call?
Meeks claims that it was error for the trial court to play the entire recording of a 911 call made by Lacy Rydell during the shooting because the prejudicial impact of the recording substantially outweighed the probative value.
Generally, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. State v. Dreiling, 274 Kan. 518, 549, 54 P.3d 475 (2002); see also State v. Kingsley, 252 Kan. 761, 770, 851 P.2d 370 (1993)(noting that despite the wording of K.S.A. 60-445, the element of surprise does not get factored into the equation).
Our standard of review of otherwise relevant evidence which arguably should have been excluded after this particular weighing is abuse of discretion. Kingsley, 252 Kan. at 770. As mentioned, discretion is abused only when no reasonable person would take the view adopted by the trial court; the burden of proof is on the party alleging that the discretion is abused. See Bey, 270 Kan. at 546.
Defense counsel objected to the portion of the tape in which crying could be heard, arguing that there are statements by un known declarants and that it was cumulative and unduly prejudicial. The State responded that the tape corroborated Rydell’s testimony that he called 911 as he was viewing the incident; that it corroborated testimony by Mia Taylor and Green’s brother, Shawn Imon Wright, about the commotion at the scene; and that it gave insight as to the medical status of Green after the shooting.
The court ruled:
“Well, I have also listened to that tape and the portion that Mr. D’Arcy is concerned about. I think we’ve listened to that perhaps three times and I certainly am not able to discern any words that are actually being spoken and I don’t believe that there’s anything there that is unfairly prejudicial to the defendant in that regard.
“Mr. D’Arcy, I know that you’re concerned that perhaps someone is speaking your client’s name. I think that that is probably a stretch and I think it would take somebody with ears the size of an elephant to hear what’s being said there and to discern any individual words. It’s primarily screaming and hollering and yelling. I think that that exhibit probably conveys what was going on at the scene at that moment probably better than any testimony that’s being recalled after the fact. And so, Mr. D’Arcy, your objection to that tape after 50 seconds is overruled.”
In State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), this court upheld the admission of a 911 tape that recorded conversations, screams, and other noises heard by the dispatcher for 30 minutes during the victim’s rape. The defendant argued that the recording was so gruesome that it was more prejudicial than probative. We found that the argument was without merit.
“The recording went to the very heart of the case showing the victim’s lack of consent, that her resistance was overcome by force or fear, and that the sexual assault occurred. The tape also corroborates the testimony of several witnesses, including the victim. The tape is not inadmissible because it is gruesome and shocking. It is a true reproduction of a gruesome, shocking event. The fact the recording reflects this may not be used by appellant to exclude such evidence as ‘prejudicial.’ It was prejudicial as is all evidence against the accused in criminal actions. That is its purpose. It is only when such prejudicial evidence has little probative value that it is excluded. Here its probative value was strong. The tape recording was properly admitted.” 235 Kan. at 493.
Similarly, in State v. Abu-Fakher, 274 Kan. 584, 56 P.3d 166 (2002), this court upheld the admission of an audiotape made by the defendant that recorded the events occurring before, during, and after the moment he shot his wife. The defendant sought to exclude the portion of the tape containing his wife’s dying moans and gasps. This court first looked at whether the recording was inadmissible and then whether it would tend to prejudice the jury. We concluded:
“[T]he trial court correctly determined that the probative value of the recording as a whole outweighed any prejudicial impact created as a result of the dying sounds of [the wife]. As in Williams, the recording captured a shocking, gruesome event; however, the probative value of the recording is strong. The tape recording captured the demeanor of the parties involved and changes in the demeanor of [the defendant] and [his wife] before, during, and after the shooting. In addition, the recording not only corroborates the testimony of [the defendant] and [a witness] concerning their telephone conversation, but provides evidence of the nature and duration of their exchange. The recording is the most probative and comprehensive evidence of the actual commission of the crime, the sequence in which events occurred, and their duration; it provides considerable context for the manner of death and time span in which the events took place.” 274 Kan. at 598.
The tape in the instant case contains relevant evidence. As the district court ruled, it “probably conveys what was going on at the scene at that moment probably better than any testimony that’s being recalled after the fact.” Moreover, the tape corroborates the testimony of several witnesses, particularly about the victim’s condition after the shooting. Meeks fails to meet his burden of demonstrating that the court’s admission of this evidence, after weighing the probative value against the prejudicial, was an abuse of discretion. Specifically, we cannot say that no reasonable person would take the view adopted by the trial court. See Bey, 270 Kan. at 546; Kingsley, 252 Kan. at 770.
Since Crawford v. Washington had not been released at the time of oral arguments, we acknowledge that on appeal Meeks may not have raised a Confrontation Clause argument because of prior case law, i.e., Ohio v. Roberts and State v. Bailey. Nonetheless, our review of the 4-minute recording against this new backdrop essentially supports the admission of this evidence. Even if we assume (but do not decide) much of the recording is testimonial because the 911 operator was affiliated with law enforcement and was therefore “interrogating” Rydell, there is no Confrontation Clause violation: the few voices which were intelligible belong to witnesses who testified at trial.
Green himself can be heard at least twice responding to Rydelfs questions — as requested by the 911 operator — about whether Green can move his legs (yes) and about whether he can breathe all right (no). As explained in issue 1 regarding the “Meeks shot me” statement, however, Meeks forfeited his right to confrontation and waived his right to object on hearsay grounds once he killed the declarant, Green.
Issue 4: Did the cumulative effect of trial errors deny the defendant a fair trial?
“ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ State v Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).” State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001).
Meeks claims that the admission of the statement “Meeks shot me;” the admission of the recording of the 911 call; and the refusal to grant a continuance to investigate alibi evidence were errors that collectively denied him a fair trial. The State argues that the evidence was overwhelming against Meeks and that there were no trial errors to accumulate.
The trial court did not commit the errors alleged by Meeks. Without error, there can be no cumulative error.
Issue 5: Was there sufficient evidence that the murder was premeditated?
“Our standard of review, when sufficiency of the evidence is the issue, is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, this court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Decker, 275 Kan. 502, 505, 66 P.3d 915 (2003).
As we stated in State v. Saleem, 267 Kan. 100, 104, 977 P.2d 921 (1999): “ ‘[pjremeditation is the process of simply thinking about a proposed killing before engaging in the homicidal conduct.’ ” While premeditation may be established by circumstantial evidence, it may not be inferred merely by the use of a deadly weapon alone.
“ ‘Circumstances which may give rise to the inference of premeditation include: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.’ ” State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000) (quoting State v. Cravatt, 267 Kan. 314, 328-29, 979 P.2d 679 [1999]).
Meeks contends that because he did not shoot Green on sight, but instead fought with him first, Meeks’ possession of a gun did not show premeditation. Meeks also argues that premeditation is absent because it would not make sense to stage the murder in full view of the victim’s friends and family so that he could be easily identified. Meeks points out that witnesses had seen him carrying a weapon before and that he did not continue to fire rounds into Green to ensure his death.
Here, the evidence most favorable to the prosecution is that Meeks sought out Green at another’s house and insisted that they fight, which Green did reluctantly. After wrestling and fighting with Meeks for 5 minutes, Green stopped the fight, saying he was too tired and that they did not need to fight. As Green walked away, Meeks pursued him and pulled out a handgun, all without provocation. When Green’s brother intervened by throwing a brick to distract Meeks, he pointed his handgun at Wright and then continued his pursuit of Green. Although Green sought refuge behind a car, Meeks chased him around the car while shooting approximately five to six times. When Green fell on the ground, Meeks finally and fatally shot him in the chest. Meeks then fled.
At least three witnesses observed not only the wrestling that immediately preceded the shooting, but also the fatal shooting itself. They identified Meeks as the antagonist in both.
The evidence presented at trial, in the light most favorable to the prosecution, was sufficient to establish premeditation.
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The opinion was delivered by
Luckert, J.:
Tim and Loretta Alires purchased a house from James and Dorothy McGehee and sued when the basement leaked. After a bench trial, the district court found that the McGehees had fraudulently misrepresented the condition of the house. The district court entered judgment in favor of the Alireses for $25,621.68. The McGehees appealed, and a majority of the Court of Appeals panel reversed. The majority found the evidence did not establish that the McGehees made untrue statements about the basement with the intent to deceive or fraudulently induce the sale or that the Alireses were justified in relying on the alleged misrepresentations. Alires v. McGehee, No. 88,514, unpublished opinion filed September 12, 2003. This court granted the Alireses’ petition for review.
On appeal, the Alireses argue the Court of Appeals, applying the wrong standard of review, erroneously concluded that the Mc-Gehees had no intent to deceive and that the Alireses were not justified in relying upon the McGehees’ statements. The Alireses assert that the judgment entered by the district court should be affirmed.
Facts
The fact that the basement leaked was discovered very soon after the Alireses purchased the house in September 2000. Mr. Alires watered the front lawn and then discovered water leaking into the basement. The basement leaked twice more in October 2000, once during a rainstorm and once when a main water line broke in the alley behind the house.
The McGehees, as sellers, had made several representations regarding the condition of the basement. Mr. Alires testified that, upon first touring the home, he asked Mrs. McGehee whether the basement leaked and she said, “No.” The McGehees’ real estate agent, Janie Rine, who showed the house to the Alireses, testified that she heard this exchange.
In addition, Mrs. McGehee completed and signed a seller’s property disclosure statement, which contained the question: “Has there ever been leaking or seepage in the basement or crawl space?” She answered: “Yes,” and in the space provided for explanation wrote: “Repaired broken pipe.”
At trial Mrs. McGehee testified to instances of water leakage in the basement which she had not disclosed on the seller s property disclosure statement. She testified that she had discovered water stains on carpet in two different rooms in the basement during the last 2 to 3 years. She believed moisture had come in through the basement windows, and this was the reason the McGehees had their patio repaired. On another occasion, a broken water heater had leaked in the utility room. Mrs. McGehee also testified about the broken water pipes in a bathroom which were mentioned in the seller’s disclosure statement. She stated that she simply forgot to mention the other incidences of water leakage in the disclosure. Mrs. McGehee explained that she underwent surgery,for a brain tumor in 1998 and her short-term memoiy was affected. She also testified her husband had a massive stroke in 1985, just before the couple purchased the house, which caused him to have difficulty speaking. Therefore, he was not involved in providing information to the buyers.
Mr. Alires testified that, had he known the history of leaking in the basement, he would not have purchased the house. Rine confirmed that she knew Mr. Alires was particularly concerned about leaky basements.
Mr. Alires also testified that as soon as he discovered that the basement leaked, he called Rine who in turn contacted Mrs. McGehee. According to Mr. Alires, Rine said Mrs. McGehee told her there was a crack around the foundation and that the Mc-Gehees avoided watering too close to the house. Rine testified that when she called Mrs. McGehee to tell her about the leaking, Mrs. McGehee responded that there was no warranty on the house and that the McGehees did not water close to the house. A few days later, Mrs. McGehee told Rine that they had no problems watering near the foundation. Rine also explained that Mrs. McGehee never said there was a crack in the foundation, but that there had been a crack in the ground near the foundation and the McGehees had concrete work done as a result.
The contractor who performed the concrete work in May 1999 testified that he removed and replaced a crumbling patio and put in a sidewalk around the house. He explained that the existing patio was sloping toward the house and causing a water leak. His work established a grade so that water would flow away from the house.
Robert Smith, owner of a basement and foundation repair company, testified that the concrete in the Alireses’ house was deteriorating and showed both angular and horizontal cracking, which indicated inward wall movement. Smith observed that the brick and mortar on the outside of the house showed stair-step type cracks. He also observed cracking inside where the walls were not covered.
However, his inspection was not conducted until after the home was purchased even though, in the original contract, the Alireses reserved the right to conduct mechanical, structural, and wood infestation inspections of the house. If defects were found, the McGehees agreed to pay up to $250 for repairs. If the cost of repairs exceeded that amount, either the Alireses or the McGehees could pay the excess amount or the contract could be canceled. The contract specifically provided that the house was being purchased “as is.” The contract also included a waiver of all claims arising because of any patent defects in the property, stating:
“If inspections are not performed regarding all or part of the property, Buyer is bound by whatever information an inspection would have revealed, and waives any claim, right or cause of action relating to or arising from any condition of the property that would have been apparent had inspections been performed.”
In an addendum to the contract covering certain repairs to be made before closing, the Alireses agreed to waive the inspections. Mr. Alires testified that he did not have the foundation inspected because he trusted Mrs. McGehee’s representation that the basement did not leak. He agreed that, had such an inspection been done, a determination about the condition of the basement could have been made before closing.
At some point, the McGehees attempted to back out of the sales contract because Mrs. McGehee was concerned about finding a new place to live. The Alireses refused to allow the cancellation of the contract, and the sale went forward.
After hearing the evidence, the trial court determined that Mrs. McGehee knew the basement leaked, failed to disclose the fact to the Alireses, and misrepresented the nature of past water problems. The trial court recognized the contractual provisions regarding inspections, including the waiver for claims arising from defects which would have been detected by inspection. However, the court entered judgment for the Alireses, finding that Mrs. McGehee had superior knowledge and an obligation to disclose the past leakage problem when she knew the Alireses were not having an inspection performed.
Court of Appeals Decision
On appeal, a majority of the Court of Appeals panel reversed. The majority noted that Mrs. McGehee had attempted to back out of the sales contract at one point, but the Alireses would not agree to the cancellation. The majority therefore concluded that the McGehees could not have had any intent to deceive or fraudulently induce the Alireses to purchase the house. The majority also found that the Alireses were not justified in relying on the alleged misrepresentations because the seller s disclosure statement contained a section specifically allowing the Alireses to note any important representations being relied upon and the Alireses wrote nothing in that section.
Judge Green dissented, disagreeing with the majority’s reasoning that the Alireses’ claim of fraud should be cut off simply because Mrs. McGehee, who made the affirmative misrepresentations, attempted to back out of the contract. The dissent also noted that the section of the seller’s disclosure statement relied upon by the majority contained the following acknowledgment: “I state that no important representations concerning the condition of the property are being relied upon by me except as disclosed above or as fully set forth as follows . . . .” (Emphasis added.) The basement leakage caused by a broken pipe was disclosed by the McGehees in the “above” section of the seller’s disclosure. The dissent characterized this as a partial disclosure which was materially misleading.
This court granted the Alireses’ petition for review.
Did the Court of Appeals Erroneously Conclude That the McGehees Had No Intent to Deceive and That the Alireses Were Not Justified in Relying upon the McGehees’ Statements?
Although the majority of the Court of Appeals did not state the applicable standard of review, it did cite Waxse v. Reserve Life Ins. Co, 248 Kan. 582, 586, 809 P.2d 533 (1991), for the premise that fraud is never presumed and must be established by clear and convincing evidence. Waxse also states the standard of review: “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.” 248 Kan. at 586. The elements of an action for fraud include an untrue statement of fact, known to be untrue by the parly making it, made with the intent to deceive or with reckless disregard for the truth, upon which another party justifiably relies and acts to his or her detriment. Gerhardt v. Harris, 261 Kan. 1007, 1013, 934 P.2d 976 (1997).
The Alireses argue that the Court of Appeals majority did not apply this standard of review, but instead concluded that “the evidence does not establish” all of the elements of fraud and, in support of its decision, relied upon evidence not mentioned by the district court. Additionally, the Alireses, in their petition for review, argue that the majority’s ruling sets a dangerous precedent in holding that because the McGehees attempted to back out of the contract at one point, even if they did make misrepresentations about the house, they could not have had any intent to deceive or fraudulently induce the Alireses to purchase the house. The majority cited no authority for this ruling. Under the majority’s rationale, the Alireses argue, a person could freely perpetrate fraud to induce another to enter a contract, attempt to back out of the contract without disclosing the fraud, and then escape all liability.
The Alireses’ argument is persuasive. The evidence showed that Mrs. McGehee attempted to back out of the sale at one point because she was concerned about finding a new place to live. She never mentioned the other basement leaks or corrected her prior misstatements. The fact that Mrs. McGehee later wanted out of the deal has no bearing on whether her misrepresentations, made before the Alireses entered into the contract, were made with the intent to deceive or with reckless disregard for the truth. See Restatement (Second) of Contracts § 164 (1979) (when party induced to enter contract by fraudulent or material misrepresentation upon which party justified in relying, contract voidable, not void). At best there would be a factual question regarding her intent; this would be a question of fact, not one for determination at the appellate level. Worse, 248 Kan. at 586. Therefore, the Court of Appeals erroneously determined that there was no intent to deceive.
Next, the majority ruled that the Alireses were not justified in relying on the alleged misrepresentations because the seller’s disclosure statement contained a section specifically allowing the Alireses to note any important representations being relied upon and the Alireses wrote nothing in that section. The dissent aptly noted this write-in section was for representations not mentioned in the “above” section of the contract, the section where the McGehees disclosed the basement leakage caused by a broken pipe but not the other incidences of leakage. The dissent characterized this as a partial disclosure, citing Sparks v. Guaranty State Bank, 182 Kan. 165, 168, 318 P.2d 1062 (1957), for the premise that when a person makes an equivocal, evasive, or misleading statement which is literally true but fails to disclose the whole truth, that person has made an affirmative misrepresentation.
Again, we agree with the dissent. The seller’s disclosure form was integrated into the contract, and one of the alleged fraudulent representations was contained within the disclosure form itself. There was no need for the Alireses to write in the representation on which they were relying because Mrs. McGehee’s representation that the basement had leaked only when broken pipes needed repairing was already listed.
However, this does not dispose of the issue of reasonable reliance and the other issues raised by the McGehees on appeal. Other issues not addressed by the Court of Appeals remain which we will consider pursuant to Supreme Court Rule 8.03(h)(3) (2003 Kan. Ct. R. Annot. 61) (“issues decided by the district court were presented to, but not decided by, the Court of Appeals,” this court may consider and decide those issues).
Did the District Court Err in Ruling in Favor of the Alireses?
The remaining issues raised in the parties’ original briefs before the Court of Appeals may be summarized as: (1) whether the trial court’s finding that the McGehees knew or had reason to know of prior water leakage in the basement was supported by substantial competent evidence and (2) whether the Alireses’ agreement to purchase the house “as is” and their waiver of the right to have inspections performed abrogated their claim of fraud.
The first issue requires a review of the relevant district court findings, which we have summarized as:
1. Prior to the sale, the Alireses asked Mrs. McGehee whether the basement leaked and she said no.
2. Under the contract, the Alireses had the right to have various inspections performed but chose not to do so.
3. Mrs. McGehee knew the basement leaked and failed to disclose that fact to the Alireses even though she knew they were not having the house inspected.
4. After being informed that the Alireses had experienced leaking in the basement as a result of watering the front yard, Mrs. McGehee told the realtor “that’s why we don’t water up close to the house.” Mrs. McGehee denied making that statement.
5. Approximately 1 year before the sale, the McGehees had concrete work done in an attempt to correct water draining towards the house and basement.
6. Having lived in the house for more than 15 years, the Mc-Gehees must have had personal knowledge of the fact that the basement leaked.
The McGehees specifically take issue with the district court’s finding that, having lived in the house for 15 years, they must have known about the leakage problem. In support, the McGehees cite Miles v. Love, 1 Kan. App. 2d 630, 632, 573 P.2d 622, rev. denied 225 Kan. 845 (1977), for the premise that implied knowledge is insufficient to maintain a cause of action for fraud and that actual knowledge is required. However, tire McGehees ignore the fact that the evidence established actual, not implied, knowledge on their part. Mrs. McGehee testified about two other incidents of leakage which she claimed she had forgotten to mention in the seller’s disclosure statement. In one of those incidents, Mrs. McGehee believed water had come in through basement windows and the McGehees had the patio repaired as a result. The contractor who performed the concrete work testified that he spoke with Mrs. McGehee about the reason they were performing the work, which was because of a water leak. This evidence was sufficient to establish that the McGehees had actual knowledge of a water leakage problem in the basement which they did not disclose.
Our review of the record reveals substantial competent evidence to support the findings of the trial court that Mrs. McGehee made untrue statements of fact and knew the statements were untrue.
Next, the McGehees argue that, as part of the real estate contract, they bargained for limited liability by including provisions that the Alireses purchased the house “as is,” obtained the right to have the house inspected for structural defects, and, if they elected not to have an inspection, waived any claim for defects which would have been apparent had an inspection been performed. Alternatively, the McGehees argue that there could not have been reasonable reliance upon the alleged misrepresentation, as a matter of law, because of the disclaimer or waiver provisions.
The seller’s property disclosure statement, which was integrated into the contract, stated: “The Seller discloses the following information with the knowledge that even though this is not a warranty, prospective Buyers may rely on this information in deciding whether, and on what terms, to purchase the subject real property.” At the end of the disclosure statement was a buyer’s acknowledgment and agreement, signed by the Alireses, which provided:
“1. I acknowledge that I have read and received a signed copy of the Seller’s Property Disclosure Statement from the Seller, the Seller’s agent, or transaction broker.
“2. I have carefully inspected the property. Subject to any inspections allowed under my contract with Seller, I agree to purchase the property in its present condition only, without warranties or guarantees of any kind by Seller or any real estate bcensee concerning the condition or value of the property.
“3.1 agree to verify any of the above information that is important to me by an independent investigation of my own. I have been advised to have the property examined by professional inspectors.
“4. I acknowledge that neither Seller nor any real estate licensee involved in this transaction is an expert at detecting or repairing physical defects in the property. I state that no important representations concerning the condition of the property are being rebed upon by me except as disclosed above or as fully set forth as follows:__”
As previously discussed, the partial disclosure regarding past water leakage was included in the “disclosed above” section. However, the Court of Appeals did not discuss other contract provisions regarding the issues of reliance and waiver of claims. Conspicuously displayed at the top of the disclosure form was the following: “THIS STATEMENT ... IS NOT A WARRANTY OF ANY KIND BY THE SELLER(S) OR ANY REAL ESTATE LICENSEE IN THIS TRANSACTION, AND SHOULD NOT BE ACCEPTED AS A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THE BUYER MAY WISH TO OBTAIN.”
The contract also contained the following paragraph regarding inspections:
“Buyer and Seller agree that the real estate bcensees involved in this transaction are not experts regarding whether any environmental or health hazards, defects in the mechanical equipment or systems, structural defects, or damage from wood destroying insects exists in and on the property. Buyer and Seller should seek expert advice and obtain inspections to determine if hazards, defects or damage exist in and on the property. If inspections are not performed regarding all or part of the property, Buyer is bound by whatever information an inspection would have revealed, and waives any claim, right or cause of action relating to or arising from any condition of the property that would have been apparent had inspections been performed. Unless otherwise provided in paragraphs relating to specific inspections, Buyer accepts the property in its current condition. This shall not be deemed a waiver or modification of any impked warranties which may exist.”
The McGehees argue that these contractual provisions should be given effect and should bar the Alireses’ cause of action, citing Hamtil v. J.C. Nichols Real Estate, 22 Kan. App. 2d 809, 923 P.2d 513 (1996), and Boegel v. Colorado Nat’l Bank of Denver, 18 Kan. App. 2d 546, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993). The Alireses argue that because the contract was fraudulently induced, the court should ignore those terms of the contract wherein the McGehees attempted to limit their own liability.
Hamtil involved a buyer’s acknowledgment and agreement essentially identical to the one used in this case. In Hamtil, the buyers were given a seller’s disclosure form stating the sellers knew of no water leakage or damage or any foundation problems in the house. The buyers had inspections performed which did not reveal any problems. Shortly after taking possession, the buyers discovered water damage and rotted wood. They sued the realty company for negligence and'negligent misrepresentation. The district court denied the realty company’s motion for summary judgment, holding that public policy “should not allow the language set out in the Buyer’s Acknowledgment and Agreement ... to bar the actions by home buyers against real estate brokers for negligent misrepresentation.” 22 Kan. App. 2d at 811.
The Court of Appeals reversed, citing Boegel for the premise that courts will enforce contractual provisions entered into knowingly and voluntarily. Hamtil, 22 Kan. App. 2d at 812-14. The Ham-til court found that the Buyer’s Acknowledgment and Agreement was not contrary to public policy and should be enforced. In so ruling, the court noted that the buyers had inspected the property themselves and any damage apparent the day after the sale should have been apparent’before they entered into the contract; the buyers chose to rely on professional inspectors, which was in itself an expression of not relying on any statement made by a sales agent; and the buyers had the advice of an attorney before signing the Buyer’s Acknowledgment and Agreement. 22 Kan. App. 2d at 813.
Similar to the Court of Appeals’ conclusion in this case, the Ham-til court noted that the sales agreement contained blank lines where the buyers could list any representations upon which they were relying, but the buyers made no notations in the blanks. 22 Kan. App. 2d at 813-14.
There are two distinctions between Hamtil and the present case. First, in Hamtil, the buyers were suing the realtors. If the realtors had made any representations to the buyers, they would not have been included in the “above” section of the seller’s disclosure state ment because that form, by its very nature,- lists only disclosures made by the sellers and not the realtors. Second, and more critically, the buyers in Hamtil alleged negligence and negligent misrepresentation, while the buyers in this case alleged fraud. Hamtil stated that “ ‘competent parties may make contracts on their own terms, provided they are neither illegal nor contrary to public policy, and that in the absence of fraud, mistake, or duress a party who has fairly and voluntarily entered into such a contract is bound.’ ” (Emphasis added.) 22 Kan. App. 2d at 813 (quoting Adams v. John Deere Co., 13 Kan. App. 2d 489, 492, 774 P.2d 355 [1989]). This conclusion is consistent with the majority rule that an “as is” provision in a real estate contract does not bar a buyer’s claim based on fraud or intentional misrepresentation. See Annot., Construction and Effect of Provision in Contract for Sale of Realty by Which Purchaser Agrees to Take Property “As Is” or in its Existing Condition, 8 A.L.R.5th 312.
In Boegel, the buyer appealed the juiy’s verdict denying his claim for fraudulent concealment against the bank that sold him a farm which included irrigation equipment. Boegel’s purchase agreement stated that he was relying upon his own inspection and not upon any express or implied warranty or representation being made by the seller and that the farm was being sold “as is where is.” Boegel did not have the farm’s irrigation systems tested or inspected. After the sale closed, Boegel learned that several wells were in poor condition. Evidence at trial revealed that the bank did not disclose its knowledge, or constructive knowledge, that several wells were not working optimally.
The Court of Appeals affirmed the jury’s verdict, finding that the seller had bargained for limited liability and that Boegel had contractually assumed a duty to inspect the property. 18 Kan. App. 2d at 554. The key issue was the reasonableness of Boegel’s reliance on the Bank’s representations. Boegel, like the Alireses, argued that the seller knew that he, as buyer, was mistaken and relying upon the seller’s representations. The Court of Appeals rejected this argument, concluding that the contract required that the buyer not rely on the express or implied representations of the seller; rather, the contract required the buyer to purchase the property based upon his own representations. 18 Kan. App. 2d at 552.
The court also briefly considered the seller s argument that Boegel’s claim should not have been allowed to proceed to trial in the first place and determined it need not reach the issue; however, the court noted that “to allow Boegel to proceed to trial on his claim of fraudulent concealment seems to nullify the limited liability for which the Bank bargained.” 18 Kan. App. 2d at 554.
The Alireses argue that Boegel is distinguishable because it involved a claim of fraudulent concealment versus active fraud, and the district court apparently adopted this argument. To prove fraudulent concealment, a plaintiff must establish that the party concealing facts was under a légal or equitable duty to communicate those facts to the plaintiff. 18 Kan. App. 2d at 549. No such duty was involved in this case where the McGehees were alleged to have made affirmative misstatements about the condition of the basement. However, tire Alireses’ attempt to distinguish Boegel ignores the fact that the bank’s agent represented to Boegel that all but one well were in “good shape.” 18 Kan. App. 2d at 547. Thus, a misrepresentation was made. Further, it ignores the Court of Appeals’ conclusion that “the contract imposed upon the buyer a duty in inspect and to rely on his own inspection rather than upon the seller’s express or implied representations.” (Emphasis added.) 18 Kan. App. 2d at 554.
Additionally, the buyers in this case, the Alireses, not only contractually assumed a duty to inspect the property and failed to have the property inspected, but the Alireses agreed that if they failed to have inspections performed, they waived “any claim, right or cause of action relating to or arising from any condition of the property that would have been apparent had inspections been performed.” Thus, in order to prove their case, it was incumbent upon the Alireses to provide evidence that, even if an inspection had been performed, die water leakage problems in the basement would not have been apparent. The Alireses provided no such evidence. To the contrary, under cross-examination, Mr. Alires admitted that, had an inspection been done, a determination about the condition of the basement could have been made before closing.
Still, the Alireses assert that this waiver should not be given effect because it was induced by the misrepresentation. This brings into question whether their reliance upon the representation was reasonable. This court has previously addressed a similar factual situation. In Munkres v. McCaskill, 64 Kan. 516, 68 Pac. 42 (1902), a case cited in the McGehees’ reply brief, the parties entered into an agreement to exchange land subject to a stipulation that the contract should not be binding until each party had investigated the property of the other and each assumed the responsibility to make a full, fair, and complete examination of the property to be satisfied as to the truth or falsity of the representations made by the other and the advisability of making the exchange. The Munkres court held that after one of the parties made the examination, signified satisfaction, and closed the trade by exchanging title papers, such party could not rescind the contract upon the ground that the party was induced to make the contract in reliance upon false representations made by the other party, unless the other party fraudulently prevented the making of a full, fair, and complete examination of the property. 64 Kan. 516, Syl. ¶ 1.
In contrast, in Fox v. Wilson, 211 Kan. 563, Syl. ¶ 9, 507 P.2d 252 (1973), we concluded that where a contract is induced by a false representation of fact, it is not a defense that the buyer could have discovered the falsity of the representation if due diligence had been exercised. A critical distinction between the two outcomes is the agreement in Munkres to undertake an investigation; the fact that there was an undertaking to investigate relates to both the issues of whether the representation was material and of whether the recipient of the information reasonably relied upon the representation. See Restatement (Second) of Contract § 167, comment b; Restatement (Second) of Contract § 172, comment b.
Under the facts of this case, the buyer of real estate could not reasonably rely upon representations of the seller when the truth or falsity of the representation would have been revealed by an inspection of the subject property and the misrepresentations were made prior to or as part of the contract in which the buyer con- traded for the right to inspect, agreed that the statements of the seller were not warranties and should not replace the right of inspection, declined inspection, and waived any claims arising from defects which would have been revealed by an inspection. There is no showing in the record that the subsequent contract addendum which contained the waiver of the right to inspect was induced by any additional misrepresentations of the seller. Thus, although we disagree with the analysis of the Court of Appeals, we reach the same conclusion that the Alireses were not justified in their reliance upon the misrepresentations of Mrs. McGehee.
Having reached this conclusion, we need not address other issues raised by the McGehees.
We affirm the Court of Appeals decision reversing the judgment of the district court. | [
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In a letter signed April 21, 2004, to the Clerk of the Appellate Courts, respondent Octavio J. Viveros, Jr., an attorney admitted to the practice of law in the State of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281).
At the time the respondent surrendered his license, a formal complaint had been filed in which it was alleged that the respondent had misappropriated several thousand dollars of his client’s funds and engaged in dishonest conduct.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Octavio J. Viveros, Jr., be and he is hereby disbarred from the practice of law in 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 Octavio J. Viveros, Jr., from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs therein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
Dated this 27th day of April, 2004. | [
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The opinion of the court was delivered by
Nuss, J.:
This is an employer’s appeal from an award of benefits by the Workers Compensation Board. Benny Titterington was a salesman for Brooke Insurance Company (Brooke) who died after his 'car left the highway and then struck an embankment. An administrative law judge (ALJ) approved the claim for benefits filed by Titterington’s surviving spouse and dependent children. The Board affirmed, and Brooke appealed, claiming Titterington died as a result of a heart attack and an award therefore was barred by K.S.A. 44-501(e), the so-called heart amendment. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the Board err in finding that claimant’s cause of death
was not coronary heart disease? No.
2. Did the Board err in finding that claimant’s death arose out
of and in the course of his employment? No.
Accordingly, we affirm.
FACTS:
Titterington was an insurance salesman for Brooke, which had offices in Columbus and Pittsburg. Brooke required him to work in Columbus and to provide his own transportation between the two towns so he could also call on clients in Pittsburg and work out of the Pittsburg office. His job required him to drive between the two offices on almost a daily basis.
According to Titterington’s wife, Susan, he normally traveled between the offices on Highway 69. On April 18, 2001, the day of the accident, he went to the Columbus office to work. He had set business hours and would not quit before 5 p.m.
Titterington’s daughter, Meghan, testified she had a telephone conversation with him around 4 p.m. the day of the accident. He called to say he was on his way from the Columbus office to the Pittsburg office where he was going to do some work and to make a client call. Consequently, Titterington asked his daughter to pick up her mother from work for him.
Shirley Hartley and Mary Harding were the only witnesses to Titterington’s accident. Harding testified she did not see Tittering-ton’s car as it left the highway, but later she saw the car go down the highway slope. The car’s brake lights never came on. She saw no road construction, nothing blocking the road, and no animals running across the road that would have caused the red car to have left the roadway.
Hartley testified that the accident occurred south of Pittsburg on Highway 69. She first noticed the red car because it was traveling on the wrong side of the road for two or three car lengths. It then drifted into the correct lane for two or three car lengths and onto the shoulder for about 100 feet. Hartley’s car was traveling about 65 miles per hour, and Hartley estimated that the other car was traveling 60 miles per hour. She never saw the brake lights come on, nor did she see any animals or construction. There was no other traffic on the road.
According to Hartley, Highway 69 has shoulders about the width of a car. Past the shoulder was an embankment and then a field, which is about 10 feet lower than the road. She testified that after the car went off the road, it angled to the north until it hit the flat ground and then it went straight north, parallel to the road. The car came to a very sudden stop 50 feet from the shoulder when it struck the north bank of a slough, i.e., a drainage ditch with knee-high water. Water and mud flew in every direction.
Derek Edmondson, a deputy sheriff for Cherokee County, investigated the accident. He testified that the highway is relatively flat and straight where the accident occurred. He measured 798 feet from where the front wheels left the pavement to where the red car stopped in a water-filled ditch 2 to 3 feet deep. There were no indications of skid marks or braking activity, and the car struck with such force that it was embedded in the mud bank. The EMS crew told him they believed the driver probably experienced some type of medical event, possibly cardiac, prior to the accident occurring.
Edmondson performed no calculations to estimate speed at the point of impact and did no testing of the brakes or steering mechanism. Susan Titterington later testified that the car had never before gone out of control or swerved without reason. As far as she knew, it was in good mechanical condition and the tires were good.
James Loumiet, who specializes in accident reconstruction and highway safety analysis, was hired by Brooke to investigate the accident. His report contained the following preliminary opinions:
"1. The path traveled by the Titterington vehicle after it left Highway 69 indicates that the Titterington vehicle was neither braked nor steered after it left the'roadway, either because Mr. Titterington was unable to do so, or unwilling to do so. The vehicle traveled approximately 800 feet to final rest after it left the roadway, where it impacted a ditch embankment, causing significant damage to the vehicle. Yet even with a moderate level of braking, the vehicle should have been able to stop within 400 feet. Thus, if Mr. Titterington had braked after leaving the roadway, he would have been able to stop well short of the ditch embankment. Ms. Hartley’s deposition testimony that she never saw the brake lights come on and that the vehicle didn’t slow before it hit the ditch embankment also supports the conclusion that the Titterington vehicle was never braked after it left the roadway.
“2. For the Titterington vehicle to travel 800 feet at a constant speed of 65 mph would take over 8 seconds. If the Titterington vehicle left the roadway at 65 mph and hit the ditch embankment at 30 mph, it would have taken over 11 seconds to travel the 800 feet. In either case, if Mr. Titterington had been able to brake his vehicle, he had ample time and distance to stop his vehicle well short of the ditch embankment.
“3. There is no evidence to indicate that anything related [to] the roadway or vehicle caused or contributed to the loss of control of the Titterington vehicle. The damage to the right front tire was probably caused by the impact with the ditch embankment. According to Officer Edmonson, there were no tire marks on the roadway. If the tire had blown on the roadway, it probably would have left marks on the roadway.
“4. Considering all of the above-referenced facts and conclusions and the materials I reviewed, and considering Mr. Titterington’s erratic driving before leaving the roadway leads me to conclude that Mr. Titterington’s loss of control and, failure to stop before reaching the ditch embankment was solely a result of his inability or unwillingness to control his vehicle.” (Emphasis added.)
Dr. Mark Harrell was working at St. John s Regional Medical Center in Joplin, Missouri, on April 18, 2001, as an emergency medicine physician when Titterington was brought in at 5:10 p.m. Titterington showed no signs of life.
Dr. Harrell observed that Titterington had a significant abrasion all the way across his chest, indicating a tremendous amount of physical force applied from the seat belt. He found bruising from the seatbelt abrasion, but no bleeding and no evidence that Titterington’s chest had struck the steering wheel. He also observed air in Titterington’s subcutaneous tissue, indicating it had been forced out of the lung cavity itself and into the tissue. These findings signified to him a major trauma.
Harrell then placed tubes in both sides of Titterington’s chest to check for the presence of blood. He noticed blood coming out of the left chest tube, signifying a large vessel rupture in the chest. According to Dr. Harrell, the left chest is the site of most chest bleeds caused by trauma; finding a large amount of blood there is consistent with massive chest trauma and death as a result of that chest trauma.
Harrell next performed a pericardiocentesis by placing a needle in the sac around the heart. He recovered about 2 cc’s of nonclotting blood, indicating the blood had extruded from the heart into the sac. He testified that this amount of blood accumulation in the sac around the heart causes great pressure and can cause the heart not to beat. Dr. Harrell stated this physical finding is also consistent with massive chest trauma and death as a result of that chest trauma.
Harrell knew that someone on the medical crew questioned whether Titterington was in cardiac arrest before he had the accident. He found nothing, however, to substantiate that theory, either in his physical findings or in testimony from witnesses. He explained that in a heart attack, one would not expect to find a large amount of blood from the left chest tube or 2 cc’s of non-clotting blood in the sac. Moreover, in a heart attack, the blood would not have flowed into the chest cavity. Finally, the air found in the subcutaneous tissue is not dependent on the function of the heart.
As a result, Harrell concluded Titterington did not die of a heart attack and placed “massive chest trauma” as the cause of death on Titterington’s death certificate. He admitted, however, that he did not know the specifics of Titterington’s cardiac history. He acknowledged that risk factors for heart attacks include being male, family history of heart disease, smoking, high blood cholesterol, and high blood pressure.
Dr. Jeffrey Curtis, a cardiologist hired by Brooke, examined Titterington’s medical records, Dr. Harrell’s deposition transcript, and statements from Harding and Hartley. The records disclosed that Titterington had prior heart problems. In 1990, when he was 40, he had quadruple bypass surgery. In 1994 and 1998 he was admitted to the Mt. Carmel hospital because of chest pains; a stent was installed in his heart in 1998. In November 1999, he was admitted again because of chest pains and a separate stent was installed.
Titterington also had a family history of heart disease; his mother was 70 when she had a valve replaced. He smoked a pack of cigarettes a day and had since he was 18. At the time of the accident, Titterington was taking Zocor for high cholesterol, Atenolol for blood pressure, folic acid, and Zestril. He carried nitroglycerin with him, but was not taking it.
In contrast, Susan Titterington testified her husband exercised three or four times a week and she was not aware of any unusual stress in his life at the time of the accident. Titterington had been to the doctor in January 2001, 3 months before the accident, and was told he was fine. Prior to undergoing earlier cardiac treatments, he had a tightness in his chest and a .tingly feeling in his left arm and hand. In the weeks before his death, Titterington did not indicate to Susan that he was again experiencing these problems.
After Dr. Curtis’ review of the documents, he opined that Titterington had chronic coronary artery disease for 9 years after his bypass surgery, and was continuing to have symptoms of his ischemic heart disease with chest pain and significant progression of coronary and artery blockage disease. Curtis’ opinion, considering Titterington’s medical history, is that one of two things happened to Titterington:
“One is he either suffered an acute coronary thrombosis, which is the same as an acute myocardial infarction, and then suffered arrhythmic cardiac death or ventricular fibrillation which would cause him to immediately pass out and be unconscious and unable to control the car. Or I think more likely, he just had a primary sudden cardiac death due to sudden ventricular fibrillation and suddenly passed out on the road and therefore was unconscious and unable to control the car.”
He further explained that “[W]hen someone develops ventricular fibrillation, they pass out within 5 seconds and unless resuscitated with electrical countershock are essentially dead at that time. The heart is not beating, breathing ceases, unconsciousness happens immediately.”
In short, Dr. Curtis rejected Dr. Harrell’s claim of death by massive chest trauma. He concluded Titterington experienced sudden cardiac death in his car shortly after it left the highway or as it was leaving the highway. In his view, Titterington was clearly and clinically dead before his car hit the enbankment.
ANALYSIS:
The Workers Compensation Act specifically adopts the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., for workers compensation appeals. K.S.A. 44-556(a). The appellate court’s review of the Board’s decision “shall be upon questions of law.” K.S.A. 44-556(a). The determination of whether the Board’s findings of fact are supported by substantial competent evidence is such a question of law. Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 191, 62 P.3d 236 (2003).
In workers compensation cases, substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing a substantial basis of fact from which the issue tendered can be reasonably resolved. We review the evidence in the light most favorable to the prevailing party and do not reweigh the evidence or determine the credibility of witnesses. Mudd, 275 Kan. at 191-92.
In proceedings under the Workers Compensation Act, the burden of proof shall be on the claimant to establish the claimant’s right to an award of compensation and to prove the various conditions on which the claimant’s right depends. K.S.A. 44-501(a).
Issue 1: Did the Board err in finding that claimant’s cause of death was not coronary artery disease?
The Board considered the testimony of Dr. Mark Harrell, the first physician who attended Titterington after the accident. Although someone on the medical crew questioned whether Titterington was in cardiac arrest before he had the accident, Harrell testified that his observations from the tubes he placed in Titterington’s chest and the needle he placed in the sac around the heart were inconsistent with a heart attack. These observations and others were, however, consistent with massive chest trauma. Accordingly, in his medical opinion, the cause of death was massive chest trauma due to the car striking the embankment.
Brooke responds that the overwhelming evidence — primarily the opinion of Dr. Curtis, who never examined Titterington— showed Titterington died of coronary disease prior to his car striking the embankment.
The Board weighed the conflicting evidence and apparently found Harrell’s testimony convincing. It stated:
“Specifically, the Board finds decedent’s cause of death was not coronary artery disease. Instead, decedent died from the blunt chest trauma he sustained when his vehicle struck an embankment.
“Why the decedent’s vehicle left the road is unknown. But it is not necessary that the accident’s cause be proven for the death to be compensable. It is necessary, however, that the cause of death not be coronary artery disease. The greater weight of the credible medical evidence is that the decedent’s heart was still pumping when the impact occurred. Accordingly, decedent had not suffered sudden cardiac death and was not ‘clinically dead’ before his vehicle came to a sudden stop when it struck the embankment.” (Emphasis added.)
Harrell’s expert testimony supplies the substantial competent evidence needed to support the Board’s finding that Titterington did not die of a heart attack. Although there was evidence leading to the opposite conclusion, this court does not reweigh the evidence. Additionally, based upon the Board’s finding that the cause of death was blunt chest trauma, and not by a cardiac event, we agree with the Board that the heart amendment, K.S.A. 44-501(e), is not implicated (“Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the employee’s usual work in the course of the employee’s regular employment.”).
Brooke greatly emphasized at oral arguments that Titterington’s heart attack, if it did not directly kill him, was at least the proximate cause of why his car left the highway and struck the embankment. The Board found that the reason his car left the roadway is unknown. More important, however, the phrase “proximate cause” does not appear in Brooke’s brief. Moreover, the brief does not otherwise sufficiently identify the concept so it may be considered on appeal. Certainly no authorities are cited. Titterington’s response brief does not address the issue, either by legal label or by general concept, which further demonstrates that Brooke’s brief was insufficient to timely put opposing counsel and this court on notice that it was part of this appeal.
Accordingly, we need not address the proximate cause issue because at best it was only incidentally raised in Brooke’s brief. It is therefore deemed abandoned. McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994) (A point incidentally raised but not argued is deemed abandoned.).
Issue 2: Did the Board err in finding that claimant’s death arose out of and in the course of his employmentP
Brooke next argues that no competent evidence supports the Board’s finding that Titterington was acting in the course of his employment as is claimant’s burden under K.S.A. 44-501. The Board stated: “The Board further finds that decedent’s accident arose out of and in the course of his employment because the decedent was traveling from respondent’s Columbus, Kansas, office to its Pittsburg, Kansas, office when the accident occurred. Thus, travel was incident to and a hazard of the decedent’s employment.”
The question of whether there has been an accidental injury arising out of and in the course of employment is a question of fact, and its determination will not be disturbed by this court where there is substantial competent evidence to support it. Harris v. Bethany Medical Center, 21 Kan. App. 2d 804, 805, 909 P.2d 657 (1995). The determination of whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Mudd, 275 Kan. at 191.
Susan Titterington testified that her husband was an insurance salesperson for Brooke which had offices in Columbus and Pitts-burg. Titterington was required to drive between the two to malee calls on clients. His normal work day would last until at least 5 p.m. Titterington’s accident occurred at 4:22 p.m. on Highway 69 as he was driving north between Columbus and Pittsburg. Furthermore, Meghan Titterington testified that her father called her around 4 p.m. the day he died. He told her he was on his way from the Columbus office to the Pittsburg office where he was going to do some work and make a client call. He therefore asked Meghan to pick up her mother from work.
Brooke responds that this testimony was self-serving, not competent, and should be disregarded. Under our standard of review, however, we do not reweigh evidence or determine the credibility of witnesses. Instead, this court looks for substantial competent evidence supporting the Board’s finding that the Titterington accident arose out of the course and scope of his employment. The family testimony is such evidence.
Affirmed. | [
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On April 18, 2003, respondent M. Steven Wagle was disciplined by suspension for 1 year and ordered to pay the costs of the disciplinary hearing, restitution to a former client, and provide proof of compliance with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286). On July 10,2003, the court gave the respondent credit for 27 days, which made the respondent eligible for reinstatement on March 24, 2004.
On February 24, 2004, the respondent filed a motion verifying that he has fully complied with the conditions entered by this court and requesting that the court enter an order reinstating him to the practice of law.
The court finds that the motion should be granted and the respondent should be reinstated to the practice of law and discharged from any further obligation in this matter.
It Is Therefore Ordered that M. Steven Wagle be and he is hereby reinstated to the practice of law in the State of Kansas.
It Is Therefore Ordered that this order shall be published in the official Kansas Reports.
Dated this 7th day of April, 2004. | [
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The opinion of the court was delivered by
Nuss, J.:
This case involves a dispute over attorney fees and other expenses between two factions of the Simpson Investment Company, L.C. (Company), a Kansas limited liability company. One faction primarily consists of six members who withdrew from the Company, and the other faction consists of four of the five members who remained. The district court denied the withdrawing members’ motion for declaratory judgment which requested that they not be required to share in paying expenses incurred by the Company totaling approximately $240,000. The withdrawing members appealed, and we transferred the case from the Court of Appeals on our own motion pursuant to K.S.A. 20-3018(c).
The parties raise a total of 11 arguments in their briefs which surround the main issue: Who is to pay for the expenses? The answer is, the Company, i.e., all of its members, including those who withdrew. Consequently, the judgment of the district court is affirmed.
FACTS
Background
These factions have brought their disputes to this court once before. An excellent background is provided in Investcorp, L.P. v. Simpson Investment Co., L.C., 267 Kan. 840, 983 P.2d 265, modified 267 Kan. 875, 983 P.2d 265 (1999) (Investcorp I). A recapitulation, however, is necessary to understand the present controversy.
Company was formed in 1991 by two brothers, Donald and Alfred Simpson, to manage various land holdings of the Simpson family. Donald and Alfred, together with Alfred’s son Mark Simpson, were eventually selected as managers.
The operations of the Company are governed by an Amended and Restated Operating Agreement (operating agreement). Presently, the sole asset of the Company is 104 acres of commercial property at the northeast comer of 135th Street and Pflumm in Johnson County. It has been held by the family since 1941 and is estimated to be wordi over $10 million. Donald and Alfred created several trusts for the benefit of their respective family members and themselves. These trust entities comprise the membership of the Company. (All members but one, Investcorp, L.P., are trusts.)
The two Simpson families had contradictory ideas about the disposition of the 104 acres. Since the family differences were not resolved, Alfred’s family (spearheaded by Mark) decided to force dissolution of the Company by withdrawing as members. The withdravving members were Investcorp, L.P. (Kansas limited partnership), the Kimberly S. Markey Trust, the Kelly S. Moran Trust, the Marty Aarreberg Trust, the Marshall A. Moore Trust, and the Shauna S. Simpson Trust. Together with one remaining member, the Christopher A. Moran Trust, the withdrawing members owned approximately 50% of the Company. They gave notice of their resignations on April 10,1996, which became effective 6 months later per the operating agreement.
The remaining members were those from Donald’s family — the Nina S. Boyd Trust, the Jana E. Simpson Trust, the Reed A. Simpson Trust and the Marshall T. Simpson Trust — and one actually aligned with Alfred’s family, the Christopher A. Moran Trust, for which Mark Simpson served as trustee. The remaining members, from Donald’s family, owned approximately 50% of the Company.
After the resignations, the Company refused to proceed with dissolution, even though the operating agreement required unanimous consent of the remaining members to continue, and the Christopher A. Moran Trust did not consent to continuation. The withdrawing members then sought dissolution by suing the Company on October 15, 1996, only 5 days after their resignations became effective. They also sought appointment of Mark Simpson as receiver to preside over the resultant liquidation and distribution of assets and further sought recovery of their attorney fees and costs.
After the district court reviewed competing motions for summary judgment, it filed its journal entry on June 6, 1997, granting partial summary judgment to the withdrawing members because unanimous consent of the remaining members to continue the Company had not been obtained. It therefore determined that the Company “is in dissolution . . . and should immediately take the steps ... to conclude that dissolution.” The Company did not appeal this ruling.
On August 18, 1997, the district court filed its journal entry granting a partial summary judgment to the Company. It denied the withdrawing members’ request to appoint a receiver and placed control of dissolution in the Company and its current members — which specifically excluded the withdrawing members — “through the proper managers of the Company or otherwise.” The withdrawing members appealed this latter order as well as one dated February 6, 1998, in which the district court refused to conduct an evidentiary hearing regarding the competence and trustworthiness of the remaining members to carry out the dissolution order.
On July 16, 1999, this court affirmed in part, reversed in part, and remanded. In reversing the district court and holding that the withdrawing members remained Company members during dissolution, we relied upon the language of the operating agreement chosen by the parties, particularly section 9.2 captioned Effect of Dissolution. This court concluded that because other sections of the operating agreement, i.e., sections 8.7 and 9.3, specifically refer to remaining members, and section 9.2 does not, then 9.2 applies to all members, including those who have withdrawn. 267 Kan. at 848. Contained in our holding was an acceptance of the withdrawing members’ argument that “member” includes a withdrawing member having a financial interest in the Company’s assets. 267 Kan. at 846, 848, 850.
After each party filed a motion to modify under Supreme Court Rule 7.06 (2003 Kan. Ct. R. Annot. 52), and the Company sought rehearing, we denied the motion for rehearing but modified the original opinion. See Investcorp, L.P. v. Simpson Investment Co., L.C., 267 Kan. 875, 983 P.2d 265 (1999). This court then held:
“(1) The Company through its manager trustees controls dissolution, (2) the plaintiffs [withdrawing members] are ‘members’ of the Company during dissolution, and (3) refusing to appoint a receiver was not error. On remand, the district court has jurisdiction to: (a) monitor its previous orders as modified by this opinion, (b) decide who the managers are to control dissolution, and (c) consider any appropriate future matters that may arise concerning the Company’s dissolution, including the appointment of a receiver, if either the requirements of Browning v. Blair, 169 Kan. 139, 218 P.2d 233 (1950) (fraud, breach of fiduciary duty, or waste) or a showing of good cause have been met and the interests of all members will best be protected by the appointment of such receiver.” 267 Kan. at 877.
Present Controversy
The present controversy concerns certain Company expenses incurred from October 21, 1996, through ,May 30, 2002, which obviously includes the time the case was on appeal before this court, i.e., March 13, 1998, to October 29, 1999. According to the withdrawing members, the expenses generally included certain attorney fees and costs related to the Company’s defense of the lawsuit; interest and other expenses regarding a Company loan; and certain marketing, surveying, and miscellaneous expenses. The expenses totaled approximately $240,869. The withdrawing members allege that almost all of the expenses were incurred after December 20, 1996, when the remaining members voted to remove Alfred and Mark as managers, retained Donald, and added Donald’s son Reed as a manager.
The expenses, other than attorney fees of approximately $175,000, included attempts to find a purchaser or purchasers for the property. They also included payment of principal and interest on funds drawn against a $245,000 line of credit for Company expenses with First National Bank of Kansas. This line of credit was authorized by the December 22, 1997, vote at a meeting of the remaining members and secured by a mortgage on part of the property, the Company’s only asset. Mark Simpson attended the meeting and objected to the proposed action.
The attorney fees were primarily incurred by the Company when it defended the litigation in the district court. These efforts included, but were not limited to, answering the October 15, 1996, lawsuit; responding to the plaintiffs’ motion for a temporary restraining order filed in April 1997, which sought to preclude the Company from incurring any liquidation expenses; and responding to plaintiffs’ motion to enforce judgments filed July 17,1998, while the case was on appeal and ultimately journalized on June 30,2000 (journal entry re plaintiffs’ motion to enforce judgments) after our decision in Investcorp I.
The attorney fees were also incurred by the Company when it filed a motion for declaratory relief in April 2000 and responded to plaintiffs’ cross-motion for declaratory relief filed June 27, 2000, which resulted in the court’s memorandum ruling on opposing motions for declaratory judgment dated January 8,2002, denying both motions.
The attorney fees were also incurred by the Company when it responded to the May 30, 2002, motion for limited declaratory relief filed by the withdrawing members. There, they asked the court to order that they not be required to share in paying the expenses incurred by the managers, Donald and Reed, and that the remaining members who had selected these managers should alone bear the loss. The district court denied the motion in a memorandum order on August 6,2002, which it modified on September 20, 2002.
According to the withdrawing members’ notice of appeal, they appeal only from the August 6, 2002, memorandum order, as later modified.
ANALYSIS
According to the withdrawing members’ position repeatedly stated to the district court, both in their motion for limited declaratory relief and oral arguments supporting that motion, they did not challenge the reasonableness of the expenses or that the expenses were properly attributable to the Company. Rather, they argued that they simply should not have to share in these expenses. They acknowledge the effect of their argument requires that the remaining members, who constitute approximately 50% of the ownership, pay 100% of these expenses from their share of the eventual distribution of Company assets.
In the journal entry from which the withdrawing members appeal, the district court cited excerpts from their motion to essentially acknowledge their concession about the propriety of the Company expenses. The court then held that the withdrawing members and the remaining members should all share in those Company expenses. Although the withdrawing members do not expressly state their concession in their appellate briefs, our anal ysis proceeds from that basic concession. See Mater v. Boese, 213 Kan. 711, 720, 518 P.2d 482 (1974) (appellants barred from taking position inconsistent with position they took before the trial court prior to appeal).
Our review of their basic argument, that they simply should not have to share in these Company expenses, requires us to apply, where relevant, our holdings in Investcorp I, 267 Kan. 840. However, our review is unlimited when we next examine the district court’s legal conclusions, the parties’ operating agreement, and the Kansas Revised Limited Liability Company Act, K.S.A. 2003 Supp. 17-7662 et seq., (KRLLCA or Act), which is retroactively applicable to all Kansas limited liability companies (LLCs), regardless of when formed (see K.S.A. 2003 Supp. 17-76,140); Investcorp I, 267 Kan. at 843 (citing Beverly v. McCullick, 211 Kan. 87, 96, 505 P.2d 624 [1973]).
Issue 1: Is the law of the case doctrine determinative P
As a threshold matter, the Company essentially argues that the issue of the expense attribution to all members had been decided against the withdrawing members in this case years ago. They specifically reference the district court’s journal entry re plaintiffs’ motion to enforce judgments filed June 30, 2000. More important, according to the Company, the withdrawing members’ failure to appeal that journal entry within 30 days of its filing in accordance with K.S.A. 60-2103(a) was a waiver of that right. As a result, the Company argues the findings and conclusions contained in that journal entry became the law of the case (citing Martinez v. Roscoe, 100 F.3d 121 [10th Cir. 1996]).
The withdrawing members respond that the June 30,2000, journal entry simply memorialized findings and conclusions the district court had made in a letter to counsel in February 8, 1999, while tire case was on appeal with this court. Consequently, according to the withdrawing members, that journal entry was rendered moot by this court’s eventual decision in Investcorp I.
We begin by examining the journal entry which states in relevant part:
Conclusions of Law
“81. The Court’s Order of August 18, 1997, requires the Company to: ‘convey and dispose of the assets of the Company (pursuant to K.S.A. 17-7624(c)(2)) and liquidate and reduce to cash (to the extent necessary or appropriate) the assets of the Company as promptly as is consistent with obtaining a fair value therefore (pursuant to section 9.2 of the Operating Agreement)’; and ‘do all other acts required to liquidate the business and affairs of the Company (pursuant to K.S.A. 17-7624(c)(4)).’
“82. Plaintiffs, as the moving parties, have the burden of proving by a preponderance of the evidence that defendant has failed to comply with the Order of August 18.
“83. The Court concludes that plaintiffs have failed to meet their burden of proving that defendant failed to comply with the Order of August 18.
“84. A preponderance of the evidence indicates that defendant has immediately proceeded with the process of liquidating the Property; it has not stalled that process.
“87. The Company’s engagement of Koll (now C.B. Richard Ellis) and Terra Venture to market the Property is appropriate and in compliance with the Order of August 18.
“88. The Company’s engagement of BNIM Architects to revise the masterplan and prepare a marketing brochure for the Property is appropriate and in compliance with the Order of August 18.
■ “89. The Company’s engagement of Appraisal Associates to perform a study of the highest and best use of the Property and to appraise the Property is appropriate and in compliance with the Order of August 18.
“90. Obtaining a survey of the retail portion of the Property is appropriate and in compliance with the Order of August 18.
“91. It is appropriate for the Company to retain and pay attorneys to represent its interests in this litigation.
“92. It is appropriate for the Company to borrow money and secure the loan with a mortgage on the Property, in order to pay operating expenses of the Company.
“93. Activities of the real estate brokers retained by the Company to market the Property are appropriate and in compliance with the Order of August 18.
“104. The Court concludes that, as of this date, defendant has fully complied wnth the Order of August 18, 1997.
“105. The Court concludes that plaintiffs are not entitled to the relief requested.”
We disagree with the Company for several reasons. First, the journal entry only determines that the expenses are appropriate for the Company, a propriety the withdrawing members do not dispute. Contrary to the Company’s suggested interpretation, the journal entry does not contain a determination that the withdrawing members will share in those expenses.
Second, even if the journal entry were interpreted in such a way, the question becomes whether it was appealable within 30 days under K.S.A. 60-2103. In Brower v. Bartal, 268 Kan. 43, 46, 990 P.2d 1235 (1999), we held that K.S.A. 60-2102 also applies to this court. For our court to have jurisdiction of an appeal filed within 30 days of the filing of that journal entry, it therefore had to be either a “final decision” under 60-2102(a)(4) or an interlocutoiy order under 60-2102(b). We conclude it was neither.
We initially observe that the district court did not make the requisite written findings to qualify as interlocutoiy under 60-2102(b). See Brower, 268 Kan. at 46. We next observe die district court did not use language that would suggest the journal entry was a “final decision” under 60-2102(a)(4) as it had done in other journal entries in the instant case. For example, in the February 6, 1998, journal entry from which the withdrawing members had originally appealed, the court had stated, “this resolves all claims and issues in this case and all prior orders of this court now are subject to appeal.”
The district court had used language of similar import in its August 6, 2002, memorandum opinion from which the present appeal is taken. It stated:
“This Memorandum Decision, when signed by the Judge and filed with the Clerk, shall constitute the judgment of the Court. The Clerk is requested to serve a copy of this Order on the attorneys of record within three (3) days from the filing of same with the Clerk all as provided by K.S.A. 60-258.”
We acknowledge the district court’s language or even its determination of finality is not dispositive of the appealability issue. See Plains Petroleum Co. v. First Nat’l Bank of Lamar, 274 Kan. 74, 83, 49 P.3d 432 (2002). Nevertheless, the district court’s apparent treatment of the subjects, coupled with the fact that (1) die case was before this court on appeal at the time the district court had made its February 1999 decision in a letter to counsel, though not journalized until after this court’s decision later that year; (2) the court still had pending before it the parties’ cross-motions for declaratory relief; plus (3) the parties continued to file numerous pleadings (e.g., plaintiffs’ motion for limited declaratory relief), after June 30, 2000, all strongly support the conclusion that the June 30, 2000, order was not final and therefore not appealable in July 2000.
As we stated in Honeycutt v. City of Wichita, 251 Kan. 451, 457, 836 P.2d 1128 (1992):
“In Gulf Ins. Co., v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 (1975), this court said:
‘No definition of “final decision” is contained in the statute [60-2102(a)(4)j but this court has previously construed it to mean, “one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” Bates & Son Construction Co. v. Berry, [217 Kan. 322, 324, 537 P.2d 189]; Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P.2d 164. See also Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637.’
See 6 Vernon’s Kansas C. Civ. Proc. § 60-2102, Author’s Comments, § 2102.2 (1967) and 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-2102, Comments (1979). In Gard, the author commented that a “ ‘final decision” ... is really self-defining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in the case.’ ”
Since we hold the June 30, 2000, journal entry was not appeal-able within 30 days under K.S.A. 60-2102(a)(4), the withdrawing members did not possess a right to appeal that they could have waived at that time. Accordingly, Martinez v. Roscoe, 100 F.3d 121 (10th Cir. 1996) does not apply. There, the Tenth Circuit Court of Appeals applied the doctrines of waiver and law of the case because of a party’s failure to appeal from a federal court’s years-earlier issuance of a permanent injunction. By comparison, such an injunction would have been immediately appealable as a matter of right under Kansas law. See K.S.A. 60-2102(a)(2).
The issue of whether the withdrawing members must share in the Company expenses is properly before this court since it was expressly addressed in the journal entry of August 6, 2002, from which the withdrawing members have timely appealed.
Issue 2: Who must pay the expenses?
During our review of the district court’s holdings in favor of the Company, we are guided by our decision in Investcorp I and by the KRLLCA, but primarily by the language in the Company’s operating agreement. We obviously must also consider other events in the case which have occurred since our decision in Investcorp I. Moreover, as in that case, the law of other states is only of moderate assistance. For these reasons, resolution of the latest Simpson family dispute is again fact driven. See 267 Kan. at 847-48. Our decision is therefore limited to the parties and factual situation before us. See State ex rel. Schneider v. City of Kansas City, 228 Kan. 25, 33, 612 P.2d 578 (1980).
We begin by reviewing our decision in Investcorp I. The essence of our decision was that though the district court did not err by placing control of dissolution in the Company through its managers, the withdrawing members —■ primarily because they have a financial interest in the assets of the Company — continued as members during dissolution. See 267 Kan. at 848, 850. As a result, they ordinarily would be subject to the same conditions of membership as the remaining members. This would include, upon dissolution and winding up, entitlement to distribution from remaining assets, but only after all payments to creditors in satisfaction of liabilities of the Company have first been made. See K.S.A. 2003 Supp. 17-76,119(a). The withdrawing members argue, however, this court should find a deviation from this general rule under the circumstances of this case. According to them, the remaining members should pay all these expenses by having these amounts deducted from their share of the eventual distribution of Company assets.
We next observe that under the Act, operating agreements are of great importance. According to one commentator, “[t]he KRLLCA, continuing and extending the philosophy of its predecessor, is largely a set of default rules, subject to change by the operating agreement. It is this legislative philosophy that gives the LLC form one of its three most important features — flexibility.” Hecker, The Kansas Revised Limited Liability Company Act, 69 J. K.B.A. 16, 20 (Nov;-Dec. 2000). Indeed, K.S.A. 2003 Supp. 17-76,134(b) provides: “It is the policy of this act to give the maximum effect to the principle of freedom of contract and to the enforceability of operating agreements.”
In other words, the Act generally authorizes substantial powers. See K.S.A. 2003 Supp. 17-7668 (“A limited liability company shall possess and may exercise all the powers and privileges granted by this act or by any other law . . . together with any powers incidental thereto.”). The members of the LLC, however, may accept, reject, or modify many of the Act’s provisions in their operating agreement, with a few exceptions. See Hecker, The Kansas Revised Limited Liability Company Act, 69 J.K.B.A. at 20 (listing subjects that may be affected by provisions in the operating agreement).
Company members, though the facts in Investcorp I established they are sophisticated in business affairs, failed to provide in their operating agreement for the specific factual situation that they have created. By contrast, the KRLLCA invites them to do so. See
K. S.A. 2003 Supp. 17-7688(b)(operating agreement may change the general rule regarding member’s nonliability for LLC debt to provide that a member or manager may agree to be obligated personally for any or all of the debts, obligations, and liabilities of the company); K.S.A. 2003 Supp. 17-2003 76,134(c)(2) (Member’s or manager’s or other person’s duties and liabilities may be expanded or restricted by provisions in an operating agreement); K.S.A. 2003 Supp. 17-7691 and K.S.A. 2003 Supp. 17-7696 (operating agreement may subject managers and members alike to specified penalties or specified consequences upon the happening of events specified in the operating agreement, or who fail to perform in accordance with, or to comply with, the terms and conditions of the operating agreement).
Nevertheless, the withdrawing members argue various sections of the operating agreement can apply to their factual situation, generally Article VI, MANAGEMENT AND CONTROL. It provides in relevant part:
“6.1 Designation of Managers. The Managers of tire Company shall be tiróse persons designated as such in the Company’s Articles of Organization, each of whom shall serve until he resigns or is removed from such position. The Managers, or either of them, may be removed from such position at any time, with or without cause, by the vote of a Majority in Interest in favor of such removal. Any vacancy that may occur in the Manager positions shall be filled by a Member appointed or elected by a Majority in Interest.
“6.2 General Powers of Managers. Except as otherwise provided herein, the right and authority to manage, direct, control and conduct the day-to-day business and affairs on bebalf of the Company shall be vested exclusively in the Managers, and all decisions effecting or to be made by, and all actions to be taken and obligations to be incurred on behalf of, the Company shall be made, taken or incurred by any Manager. Any decision or act of any Manager within the scope of his power and authority granted hereunder shall control and shall bind the Company.
“6.3 Actions Requiring Joint Decision of Managers. Notwithstanding the foregoing, the following actions may only be taken by a Manager on behalf of the Company upon the Agreement of a majority in number of the Managers:
. (i) the purchase ... or the sale ... or the creation of any hen . . . upon . . (B) any real property;
(ii) the creation of any obligation ... in excess of $500;
“6.4 Limitation of Powers of Managers. Notwithstanding anything herein to the contrary, the Managers shall not take any action or engage in any transaction not in the ordinary course of business without first obtaining the approval of a Majority in Interest. In determining whether a transaction is not in the ordinary course of business/ the Members recognize that the purposes of the Company include developing and selling the Real Property. Accordingly, the sale or other disposition of any real estate by the Company shall not be considered ‘not in the ordinary course of business’ unless it constitutes a sale of all or substantially all of the Real Property pursuant to a single transaction.
“6.5 Powers of Other Members. No Member, other than the Managers, shall have any right or authority to enter into agreements, execute contracts or other instruments, incur obligations or otherwise bind or act for, in the name and on behalf of the Company in any manner, unless authorized to do so by a Majority in Interest.
“6.6 Liability of Managers. Except in the case where Managers are guilty of fraud, gross negligence, misconduct or reckless disregard of duty, the Managers shall not be hable to the Company or to any other Member for any loss, damage, liability or expense suffered by the Company or any other Member on account of any action taken or omitted to be taken by him as a Manager.
“6.7 Indemnification.
(a) Except as provided in Section 6.6 above, each Member, including the Managers, shall indemnify and hold the Company and the other Members harmless from and against any loss or damage incurred by it or them as a result of any agreement, contract, instrument, obligation or act legally binding the Company that was incurred or performed by such Member outside the scope of the authority granted to such Member pursuant to this Agreement.
(b) Except as otherwise contrary to the provisions of Section 6.6 or Section 6.7(a) above, each Member shall be indemnified by the Company against any liability, judgment, fine, amount paid in settlement, cost and expense (including attorneys’ fees) asserted or threatened against and incurred by such Member in his capacity or arising out of his status as a Member, if such Member acted in good faith and in a manner he reasonably believed to be in the best interests of tire Company and provided that such Member has not committed fraud, gross negligence or reckless disregard of duty with respect thereto.”
According to the witlidrawing members’ brief, they rely upon section 6.2, and the concept of ultra vires which they contend is found in sections 6.3 and 6.4. They argue no other provisions of the operating agreement need be considered to grant them relief from sharing in the expenses.
For their argument regarding section 6.2, they point to the last sentence: “Any decision or act of any Manager within the scope of his power and authority granted hereunder shall control and shall bind the Company.” They claim that by negative implication, acts outside the scope of a manager’s power and authority shall not control and bind the Company. They then argue that if such wrongful acts do not bind the Company, the resulting expenses cannot be imposed upon the withdrawing members. The problem with this argument based upon 6.2 is they do not dispute that the incurred expenses are binding Company obligations. As a result, they argue based upon a point that they have already conceded; their resultant argument must therefore fail.
For their argument regarding sections 6.3 and 6.4, they claim these provisions preclude the Company from incurring expenses without a majority of the Managers agreeing to them and without a majority-in-interest of the members approving them. Among other things, they point out that the witlidrawing members had not been included in the vote (1) removing Alfred and Mark as managers and (2) electing Reed who, together with fellow “rogue manager” Donald, had incurred the expenses. They then argue that under the ultra vires doctrine, these roguish acts do not bind the Company and the resulting expenses cannot be imposed upon the withdrawing members.
The problem with the withdrawing members’ argument based upon sections 6.3 and 6.4 is, once again, that they do not dispute the incurred expenses are binding Company obligations. Accordingly, they again argue based upon a point that they have already conceded; their resultant argument must therefore fail.
The withdrawing members’ ultra vires argument fails for additional reasons.
According to the authority they cite: “The term ultra vires’ means beyond the power. An ultra vires act or contract is one that is beyond the powers expressly or impliedly conferred upon a corporation. The act must be beyond the powers of a corporation as defined by its charter and the law.” (Emphasis added.) 18B Am. Jur. 2d, Corporations § 2009. Even if we assume, without deciding, that the ultra vires doctrine applies to limited liability companies, we note that the withdrawing members do not argue that the Company was without the power to incur these expenses. They only argue that the acts were taken without the allegedly required authority, i.e., permission. The ultra vires doctrine generally does not apply to this situation. See 18B Am. Jur. 2d, Corporations § 2012.
We also observe that the Company is granted a large amount of general power under the Act.
“The KRLLCA replaces prior law’s exhaustive list of specific LLC powers with a general statement that an LLC has and may exercise all powers and privileges granted by the KRLLCA, any other law, or its operating agreement, along with any incidental powers, insofar as necessary or convenient for its business, purposes, or activities.” Hecker, The Kansas Revised Limited Liability Company Act, 69 J.K.B.A. at 17 (citing K.S.A. 1999 Supp. 17-7668[b]).
Moreover, within the context of winding up, the Act provides the Company the specific power to perform a number of the particular acts in dispute in the instant case.
“The persons winding up the LLC have authority to litigate on its behalf, gradually settle and close its business, liquidate its property, pay or make provision for paijment of its liabilities, and distribute its remaining assets to its members, all without affecting the liability of its members or managers and without imposing personal liability on any liquidating trustee.” Hecker, The Kansas Revised Limited Liability Company Act, 69 J.K.B.A. at 39 (citing K.S.A. 2003 Supp. 17-76,118(b) and K.S.A. 2003 Supp. 76,119[b]). (Emphasis added.)
In short, sections 6.2, 6.3, and 6.4 of the operating agreement fail to provide the withdrawing members any deviation from the general rule of liability.
Although the withdrawing members advise that we need not consider any other sections of the operating agreement, they note that the district court also relied upon sections 6.6 and 6.7 to deny them relief. They suggest in passing, however, those sections could support their position because the managers who incurred the expenses did engage in misconduct and reckless disregard of duty. We disagree, and instead concur with the district court that these sections actually serve as additional grounds for denying the relief requested.
Since the withdrawing members do not contest the binding nature of the Company obligations, the requirements of section 6.7(a) would at first blush appear to provide them some relief. It addresses the scenario where members have bound the Company but by acts outside the scope of their authority. It states that as a general rule, members, including managers,
“shall indemnify and hold the Company and the other Members harmless from and against any loss or damage incurred by it or them as a result of any agreement, contract, instrument, obligation or act legally binding the Company that was incurred or performed by such Member outside the scope of the authority granted to such Member pursuant to this Agreement.” (Emphasis added.)
Even assuming the expenses were incurred outside such authority, however, the withdrawing members would be entitled to have the managers pay those members’ shares, i.e., indemnify them, only if the managers were guilty of fraud, gross negligence, misconduct or reckless disregard of duty. See section 6.6 (Managers not liable to Company or members for loss suffered by Company or members except where guilty of fraud, gross negligence, misconduct or reckless disregard of duty). The district court held that the withdrawing members made no such claim and, even if so, there was no evidence to prove such a claim.
Our careful review of the record confirms the district court in both respects. First, the closest to a claim on these grounds would have been the withdrawing members’ 1996 request for the appointment of a receiver. However, they apparently only argued managerial “incompetence and intransigence” as their basis. 267 Kan. at 853. Moreover, the record does not reveal any efforts for appointment of a receiver after Investcorp I. Second, though the withdrawing members suggest on appeal the existence of proof of misconduct and reckless disregard of duty, the district court found Donald and Reed’s actions were reasonable under the facts. Among other things, the court referenced its findings and conclusions contained in its June 30, 2000, journal entry —■ as quoted earlier in the opinion — which upheld the propriety of the expenses. Substantial competent evidence supports the court’s findings.
Additionally, the district court determined that there was no claim and no evidence to prove such a claim, that the “remaining members” (outside of the rogue managers) performed any act outside their scope of authority. After reviewing the extensive record on appeal, particularly the withdrawing members’ motion for limited declaratory relief upon which the journal entiy they appeal from is based, we agree. As mentioned, while their brief suggests that sections 6.6 and 6.7 “also could apply” because misconduct and reckless disregard of duty allegedly did occur, they make no reference to any conduct except the managers.
Issue 3: Do fairness and equity require that the withdrawing members not share in paying the Company expensesP
The withdrawing members also make a number of arguments which can be grouped under the heading of fairness and equity. Essentially, they argue it would be unfair, unjust, and inequitable for them to pay a share of the expenses to which they had objected beginning in 1996. Their argument must be rejected for several reasons.
First, in Investcorp I we concluded that the Company — which would include all members — controls dissolution through its manager trustees. We further held that on remand the district court would have “jurisdiction to . . . decide who the managers are to control dissolution.” 267 Kan. at 877. See also K.S.A. 2003 Supp. 17-7671(a) (Upon application of any member or manager, the district court may hear and determine the right of any person to be come or continue to be a manager of a limited liability company and, in case the right to serve as a manager is claimed by more than one person, may determine the person or persons entitled to serve as managers, and to that end make such order or decree in any such case as may be just and proper). There is nothing in the record on appeal pointed out by the parties, however, to demonstrate that after Investcorp I was released the withdrawing members requested the district court to decide “who the managers are to control dissolution.” It only reveals that they complained about actions of the existing managers, Donald and Reed.
Second, in Investcorp I, we upheld the district court’s refusal to appoint a receiver, holding that “the plaintiffs failed to produce a single compelling or constructive reason for the appointment of a receiver.” 267 Kan. at 853. We acknowledged the court could later appoint one “if either the requirements of Browning v. Blair, 169 Kan. 139, 218 P.2d 233 (1950) (fraud, breach of fiduciary duty, or waste) or a showing of good cause have been met and the interests of all members will best be protected by the appointment of such receiver.” 267 Kan. at 877. As mentioned previously in the opinion, however, the record on appeal does not reveal that the withdrawing members ever again attempted to have a receiver appointed. It only reveals that they complained about the actions of the existing managers, Donald and Reed.
Third, the Act clearly and repeatedly recognizes the power of the members to draft an operating agreement to deal with this specific situation. Moreover, since the members are all entities — many of which are sophisticated in business affairs — they not only had the opportunity, but also the ability to effectively use such power. The members simply failed to do so, and we will not rewrite the agreement for the withdrawing members or otherwise save them from their own agreement. See K.S.A. 2003 Supp. 17-76, 134(b) (It is the policy of this Act to give the maximum effect to the principle of freedom of contract, and to the enforceability of operating agreements.). Cf. Froelich v. United Royalty Co., 179 Kan. 652, 654, 297 P.2d 1106 (1956) (function of a court is to enforce a contract made by the parties, not to create a contract for them which is in accord with the court’s own notions as to what the contracting parties wisely should have done).
In short, under the unique facts of this case, we hold the withdrawing members are Company members who share in the Company expenses. The parties therefore are controlled by their operating agreement concerning distribution of assets and payment of creditors. Section 9.4 provides that, “[u]pon dissolution and liquidation of the Company, the assets of the Company shall be applied and distributed in the order of priority set forth in Section 4.1 (b).” That section in turn provides:
“4.1(b) Liquidation proceeds shall be distributed in the following order of priority:
“(i) To the payment of debts and liabilities of the Company (including those to the Members) and the expenses of liquidation; then
“(ii) To the Managers in payment of the Manager Additional Contributions (if any) and any return thereon; then
“(iii) The remainder to the Members in accordance with their respective positive Capital Account balances.”
Accord K.S.A. 2003 Supp. 17-76,119.
Affirmed. | [
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Opinion by
Green, C.:
This was an action to recover the sum of $365 for work and labor alleged to have been per formed under a written contract with the defendant below for the erection of a house and out-buildings, and to foreclose a mechanic’s lien. The defendant answered that the buildings were not constructed in a workmanlike manner, that the windows were not of the size and dimensions furnished, but were exchanged for smaller ones, and were worth $25 less than the windows furnished; that the house was out of plumb; that the plaintiff had used material in the building which was wholly unnecessary and caused the defendant to pay for material not used, to her damage in the sum of $50; that the out-buildings mentioned in the contract were not of the style, material and workmanship required by the contract, and asked damages for $500. The plaintiff denied generally the allegations of the answer. The action was tried by the court and a jury, and a verdict was rendered in favor of the plaintiff for the full amount claimed in his petition. The defendant filed a motion for a new trial, which was overruled, and she now asks a reversal of the judgment, first, upon the ground that the instructions of the court were confusing and misleading; second, that the court erred in the rejection of testimony offered.
The first assignment of error we cannot consider. The record fails to show any exception to the entire charge of the court or to any portion of it. This is necessary to obtain a review in this court. (Insurance Co. v. Hawley, 46 Kas. 746.)
The second assignment of error is the rejection of evidence offered by the defendant below, and our attention is called to the effort upon the part of the plaintiff in error to establish the fact that the written agreement did not contain all that. was agreed upon between the parties; that there were verbal conversations respecting the details of the work at the time the written contract was signed, which were intended by the parties to become a part of the contract, because it contained the words “as already designated” at the conclusion of each paragraph, but really failed to specify anything as to the details of the work except that the plaintiff below was to construct a building of certain dimensions and connect it with another building, but did not designate when or how the work was to be done. It is unfortunate for the plaintiff in ■error that the written contract was so general, indefinite, and loosely drawn, but there is not such a state of facts exhibited in the record as would warrant us in varying from the well-established rule that a contemporaneous parol agreement cannot change, modify or enlarge a written contract. It is urged that the defendant was not permitted to show fully the character of the work upon the building. We have carefully examined this portion of the record, and while it is true that some evidence may have been rejected which was competent, yet it does appear that the witness was afterward permitted to go on and state quite fully how the house was constructed, and that the workmanship was not good in all parts of the building. We do not think the plaintiff in error was prejudiced, or that the court committed material error in excluding the evidence of which complaint is made.
Our attention is finally called to the refusal of the court to permit evidence'to go to the jury as to the value of the carpenter work upon the building. We do not think this was material error. The plaintiff sued for the amount specified in his contract. The defendant admitted that she had agreed to pay the plaintiff the sum of $365 upon the performance of the work, but alleged that the work was- not done in a good and workmanlike manner. As the case was tried and submitted to the jury by the court, we do not think the evidence as to the value of carpenter work performed upon the. building was material.
An affirmance of the judgment is recommended.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is an application for a peremptory writ of mandamus, brought by G. V. Powers against Hon. J. I). McCue, judge of the eleventh judicial district, to compel him to sign an alleged bill of exceptions in a criminal cause tried in the district court of Montgomery county, wherein the state of Kansas was the plaintiff, and G. "V. Powers the defendant. Powers was convicted of a violation of the prohibitory liquor law of the state. The trial commenced on the 5th day of March, 1891 — the March term of the district court offMontgomery county for 1891. On March 6, the jury returned a verdict of guilty against Powers. On March 8, he filed his motion for a new trial. The motion was heard on the 28th of March, 1891, and overruled. On the same day Powers was called upon to answer why judgment should not be pronounced against him. He thereupon made application to the court for a continuance, and the court passed the rendition of sentence until the following June term. On the 22d day of June, 1891, Powers was sentenced to pay a fine of $100, and to be confined in the county jail of Montgomery county for 30 days. Immediately after sentence had been pronounced, he gave notice of appeal to this court. On the 26th day of June, 1891, during the June term of the court for 1891, Powers, by his attorney, S. M. Porter, Esq., presented what he claimed to be a bill of exceptions, purporting to contain the instructions and all of the evidence given upon the trial, together with his exceptions, and demanded that the district judge should settle and sign the same. The judge refused so to do, upon the ground that the bill of exceptions was not presented at the proper term of the court. The bill of exceptions was not presented at the March term of the court for 1891, at which term the decisions excepted to were rendered, and therefore, as no demand was made for the allowance of the bill until the June term for 1891, the presentation and demand were made too late. Section 300 of the civil code reads:
“The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term.”
Section 219 of the criminal code reads:
“ On the trial of any indictment or information for a crim inal offense, exceptions to any decision of the court may be made, in the same cases and manner provided by law in civil cases; and bills of exceptions shall be settled, signed and filed as now allowed by law in civil actions; and the same proceedings may be had to compel or procure the signing and sealing of such bills, and the return thereof, as in civil cases.”
Under these provisions of the statute, the party objecting to the decision of a district court must not only except at the time the decision is made, but must' reduce the exception to writing and present the same for allowance at the term the decision is excepted to — not beyond the term. (Brown v. Rhodes, 1 Kas. 339; Gallaher v. Southwood, 1 id. 141; The State v. Bohan, 19 id. 28; The State v. Smith, 38 id. 194.)
In the case of The State v. Powers, tried in the court below, all of the proceedings, except the judgment, were concluded at the March term of the court; therefore, as the motion for a new trial had been overruled at the March term, and as Powers knew he would be sentenced at the June term upon the verdict, there was no reason, independent of the statute, for delaying the presentation of the bill of exceptions beyond the March term.
In Butler v. McMillen, 13 Kas. 385, it is said in the opinion that “ exceptions must be reduced to writing at the term.” In Ohio, from the code of which ours was to a considerable extent borrowed, it has been ruled that the continuance of a motion for a new trial to a subsequent term does not carry with it the right to make a bill of exceptions as to the rulings upon the trial. (Kline v. Wynne, 10 Ohio St. 223; Morgan v. Boyd, 13 id. 271.) In the latter case it was decided that —
“ Where a party presented his bill of exceptions for allowance, and also filed a motion for a new trial in the ease during the trial term, and suffered his application and motion to be continued to the next term of court without objection, he thereby lost the benefit of his application for the allowance.”
The peremptory writ prayed for against the district judge will be denied, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This case comes to us at this time upon a motion for a rehearing. In the former opinion handed down, it was said “that the defendant below claims that he purchased the 19 head of cattle for the aggregate sum of $448, and that he paid the full consideration.” “We think, however,” it is said, “ that the evidence of the plaintiff made a prima facie case in favor of his allegation — that he sold the 19 head of ■cattle for $595; therefore, that the trial court committed no error in overruling the demurrer to plaintiff’s evidence.” It was further said in the opinion, “ that there was sufficient evidence to sustain the verdict and judgment thereon.”
A reexamination of all the evidence contained in the record shows us that we overlooked, at the former hearing, certain statements of Mr. O’Neil, the plaintiff below. He testified, among other things:
“Ques. When you were walking around through the cattle, taking your memorandum, Walter was n’t with you, was he? Ans. No.
“ Q. He did n’t know what figures you were putting down ? A. No, he didn’t then.
“Q. After you came back you told him you would let him have the cattle for the figures mentioned there, $488? A. I showed him the figures.
“Q. When you came back to him you put your figures at this $488, and told him that you would take that amount for the cattle? A. Yes, sir; but he had seen me adding the figures.
“Q. And he said he would take them at that? A. Yes, sir.
“Q,. After you put your figures at $488, you told him you would take that for them? A. Yes, sir, I did; I put my finger there on that figure and told him I would take that amount for them.
“Q,. And he told you he would take them at that figure? A. Yes, sir.
“Q,. And he gave you that check? A. Yes, sir.
“Q,. And you received $488? A. Yes, sir; I received $488, and on the strength of that check I delivered the cattle.
“Q,. That is all Griffin had to do with it, wasn’t it? A. That is all, I believe.
“Q,. You had no other talk with him about it at that time? A. Not any more.
“ Q,. Now at that time, as soon as that was done, you signed the bill of sale for the cattle? A. Yes, sir. .
“Q,. That was made while you were together, then? A. Yes, sir.
“ Q,. Immediately after he told you that he would take the cattle at $488 ? A. Yes, sir.
“ Q,. Then you immediately drove away, and you didn’t see him any more or have any talk concerning the cattle ? A. I never saw him until he sent Mr. McQuade after the cattle.
“ Q. At the time you and Griffin were talking there, while, you were making your figures on the cattle, tell the jury if you did n’t tell him if he did n’t want to take them at $488 there was no use figuring, for he could n’t have them ? A. I put my finger there on the paper and told him he could have them at that amount.
“Q,. Answer my question. A. Well, I did in that way.”
Under this evidence, plaintiff below agreed to take $488A for the cattle; and after having made this agreement, received payment, and executed a bill of sale therefor, he cannot change his contract for a different one, which was not entered into by the parties. If he made a mistake in his figures, and Mr. Griffin had no knowledge of the mistake, but relied upon the price stated, Mr. O’Neil is responsible and must suffer. This conclusion will require a reversal of the judgment, because the verdict is not sustained by sufficient evidence. Upon another trial, it is possible that other and further evidence may be presented showing that the mistake was a mutual one, and that the sale was for $595 instead of $488, or that Mr. Griffin knowingly took advantage of the miscalculation of Mr. O’Neil, and therefore understood he was to pay $595 instead of $488.
It is unnecessary to make any other comment upon the evidence brought to this court, excepting those referred to in the former opinion.
The judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was an action in ejectment for lot 5, in section 36, township 34 south, of range 3 east, said land being that part of the southwest quarter of section 36 lying south of the Arkansas river. The case was tried by the the court without a jury, which found the issues in favor of the defendant. Motion for new trial was overruled, and judgment rendered on the finding for the defendant for his costs. The land involved was a part of the school land of the state, and the plaintiff for his title relied on a patent from the state to one Frank Gallotti, and a quitclaim deed from Gallotti and wife to himself. The defendant relied for his title upon a sheriff’s deed to one A. J. Chapel, and a deed from said Chapel and wife to himself. Several errors are alleged in the case. But the contention of the defendant in error is, that the case is not properly before this court for review, that the record nowhere shows the value in controversy in the case, and that, because of the silence of the record upon this point, it must be presumed that such value is under the jurisdictional limit of this court, and that as there is no certificate of the trial judge in the record showing the cause to be one of the •excepted cases under the statute, this court has no jurisdiction. It is conceded that this court may examine a case-made for the purpose of ascertaining the amount involved in the controversy, but the right of the court to look into conflicting evidence in the record to ascertain whether or not the controversy falls within the excepted cases of the statute is negatived. The statute, (¶ 4642, Gen. Stat. of 1889,) reads as follows:
“No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed $100, except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying the case involving less than $100 shall certify to the supreme court that the case is one belonging to the excepted classes.”
We think that the objection to the consideration of this case by this court is good. But we do not think it necessary to go so far as to say, because the record is silent as to the value of the controversy, that we must presume the value is less than the jurisdictional limitation of this court. We think the objection to the consideration of this case by this court upon its merits is good because the record does not show the amount of the controversy, and there is no certificate of the trial judge showing that the case is within any of the excepted classes of cases named in ¶4642, General Statutes of 1889, limiting the jurisdiction of this court. We think the record must affirmatively show that this court has jurisdiction. The statute says: “No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed $100, except” in cases specified therein, and then only upon a certificate of the trial judge showing that the case is within the exception provided in the statute. A fair construction of this language of our statute requires the party appealing to show that his case is within the statute, either by making the rec ord show the amount or value of the controversy, or by including in the record a certificate of the trial judge showing the case to be within the exception of the statute.
In Hayne’s New Trial and Appeal, (ch. 67, § 265, subdiv. 2,) we find the following upon this subject:
“ On the other hand, the transcript must contain everything which is necessary to show that a valid appeal has been taken. Thus, it must affirmatively appear in the transcript that the case is within the jurisdiction of the supreme court.”
In Hoyt v. Stearns, 39 Cal. 92, Crockett, judge, delivering the opinion of the court, upon a like question, says:
“It is incumbent upon a party appealing to this court to show affirmatively, by the record, that the amount in controversy is sufficient to authorize an appeal. Nothing of the kind appears in this record, and the appeal must, therefore, be dismissed.”
This case seems to be squarely in point, and settles the question in accord with what we regard a fair construction of our statute, and also in consonance with good practice.
We therefore recommend that the case be dismissed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This is an action of mandamus, brought originally in this court by Effingham Maynard & Co. against E. E. Olson, county superintendent of public instruction and ex-officio chairman of the text-book board of Riley county, to compel him to deliver to each school district in the county a list of the text-books alleged to have been selected and prescribed by the text-book board on August 28, 1891. Many questions have been presented by the briefs and in the oral argument of counsel, but with the view that we have taken of one of the questions, it will not be necessary to consider any of the others, as a decision of that one will be decisive of the whole case. Section 5 of chapter 171 of the Laws of 1885, (Gen. Stat. of 1889, ¶ 5868,) provides as follows:
“No text-book shall be prescribed in pursuance of the provisions of this act unless the publishers thereof shall have first filed with the county superintendent of public instruction a guarantee of its price, quality and permanence of supply for five years, together with a good and sufficient bond for the faithful compliance with said guarantee, conditioned in such sum as-the county text-book board may determine and approve.”
The minutes of the meeting of the text-book board of Riley county of August 28, 1891, with respect to the bond to be given by the book publishers, and its amount and approval, read as follows:
“On motion, the amount of bonds was fixed at $10,000.
“On motion, president,, secretary and attorney were appointed to draw up bonds.
“Board adjourned. J. W. Lowdekmilk, Secy.”
A bond was given by Effingham Maynard &• Co. in the sum of $4,000, but it was never approved by the text-book board, nor by anyone else except the aforesaid committee, to wit, the president of the board, the secretary, and the county attorney; and it was not approved by them until after the text-book board had adjourned sine die, and was not then approved in writing, but only orally. Mr. Lowdermilk, in his testimony with regard to this matter, testifies, among other things, as follows:
“Q,ues. I will ask you to state whether or not before that meeting adjourned it approved the bond executed by Effing-ham Maynard & Co., marked ‘Exhibit C’? Ans. It did not.
“ Q,. The bond was fixed at $10,000; was that all there was to that motion? A. I presume it was. A motion was made to fix the bond at $10,000, and voted on and carried. I recollect in that manner.
“Q,. Wasn’t there something said about the bond being pro-rated? A. I think there was.
“Q,. Then these minutes [showing witness ‘Exhibit B’] nowhere show that fact. A. The minutes do not show what was said, but it shows the motion that was carried.
“Q,. Wasn’t it a part of that motion that the bond was to be pro-rated up among the various companies? A. I don’t think it was. It was understood, but was not included in the motion.
“Q,. Then the committee of which you were a member, consisting of the chairman, secretary, and county attorney, was to examine the bonds presented by these several persons to whom awards had been made, and approve them? A. We were appointed to examine the contracts and approve the bond.
“Q,. Did you do that duty? A. We did.
“Q. This exhibit ‘C’ and ‘E’ is what you did with relation to the plaintiffs, Effingham Maynard & Co.? A. Yes, sir.
“Q,. What did you do with them after you got through? A. I left them in the possession of the county superintendent.
“Q. You say this committee met; where did it meet? A. At the county superintendent’s office.
“Q,. When? A. After supper on that day.
“Q. After the board had adjourned? A. Yes, sir.
“Q,. Who was present? A. The members of the committee, E. E. Olson, county attorney, and myself.
“Q,. You said you made a contract; where is that contract? Is this paper marked ‘Exhibit E’ what you refer to when you say that you accepted the contract? A. Yes, sir.
“ Q,. The board, as a board, never approved your action, did they, in accepting this bond or this award? A. They did not.
“Q,. You may state whether or not, this meeting by any action had at that time, $4,000 was designated as the bond which Effingham Maynard & Co. should give to the county. A. It was not.
“Q,. These papers were put together by your committee on that occasion and handed over or left with the county superintendent as they are now? A. They were.
“Q. I will ask you if you were instructed by the textbook board to examine these bonds of the several persons to whom awards had been made and then report your action back to the board? A. We were not.
“Q,. Then you were appointed by the text-book board to examine and approve of the contracts and bonds? A. As I understand- the matter, the fixing of the bonds and contracts was left with this committee.
“Q,. Left wholly with the committee? A. Yes, sir.
“Q,. What you did with reference to that matter was done in compliance with the instructions you received from the board? A. It was.”
The testimony of Mr. Olson, the chairman of the board and the chairman of the committee, was substantially the same as that of Mr. Lowdermilk. Mr. Kimble, the county attorney, and a member of the committee, did not testify in the case.
The attorney for the defendant, in his brief in this court, claims that no sufficient bond under the statute was ever given. His language is as follows:
“ The act providing for a uniform series of text-books (§ 5) prescribes that no text-books shall be prescribed in pursuance of the provisions of this act unless the publisher thereof shall first file with the county superintendent of public instruction a guarantee of its price and quality, aud permanence of supply for five years, together with a good and sufficient bond for the faithful compliance with said guarantee, conditioned in such sum as the county text book board shall determine and approve. Now this is the allegation in the petition of the relator, ‘that they executed a good and sufficient bond in the manner pre scribed by law, and that said bond was conditioned that the said plaintiffs would furnish the books in accordance with the said guarantee and proposition.’ Now it is absolute that this statute makes thé execution of the bond and guarantee a prerequisite to the award; that no award shall be made until after the bond and guarantee are filed with the text-book board, and not only that but until after its approval, and the amount shall be fixed and the bond approved by the text-book board.
“Now, assuming that this was a defacto board, all the acts which it undertook to perform, so far as this bond is concerned, were absolutely void under the statute. The evidence shows that a committee was appointed to accept this bond and approve it, and that no definite amount was fixed except $10,-000; that the board adjourned sine die, and that after this adjournment this committee, composed of two members of the board and the county attorney, who was not a member of the board and who had no business there so far as we can learn from the statute, made and fixed the amount of the bond at $4,000, but failed to approve it, so far as the bond itself shows, which is attached to the deposition of the defendant. The evidence shows at least inferentially that this committee undertook to approve this bond, but the board had adjourned, and was functus oficio, and that afterwards this bond in its present condition was returned to the county superintendent of public instruction. No action of the board was ever taken approving the bond. Now then, the relators themselves have failed to comply with the plain requirements of the statute, and being in default, have no obligation resting upon them, and cannot now ask the order of this court to issue to compel compliance with the conditions of their award. The text-book board had no authority to delegate this power to a committee, not even of its own members. Whatever power or authority this text-book board had, had been conferred by the act itself, and they could take nothing by implication. This writ never issues in doubtful eases. (High, Extraord. Legal Rem., §9.) And to warrant the court in granting the writ all the facts must appear so clear that his right to the same cannot be doubted, and it will not be granted to compel the performance of an official act where substantial doubt exists as to the duty of the officer to perform it.” {Ex parte Barnwell, 8 Rich. N. S. 264.)
No reply to this portion of the defendant’s brief has been made by counsel for the plaintiff. The statute (said § 5) evidently means that no text-book shall be prescribed or awarded until after the proper bond has been given. Of course the board might indicate what books it would prescribe, and then, while the board is still in session or before it finally adjourns, a proper bond to the satisfaction of the board could be given, and then the award would be made or become final. This was not done in the present case. The minutes of the meeting show that the board fixed the amount of the bonds at $10,000, and no other amount was mentioned; and then the board appointed a committee, consisting of the president, secretary, and attorney, to draw up the bonds; but the board, according to the minutes, did not give authority to such committee to fix the amount of any bond, or to change the amount, or to pro-rate between bonds, or to approve any bond or the amount thereof, or the security thereon. In fact, according to the minutes, no power was given to this committee except to “draw up bonds.” The bond in all cases should be drawn up and presented to the board while it is in session or before it finally adjourns; but in this case it was not. The question whether the board could delegate its power to a committee is not fairly presented in this case, and we shall not decide it. Under the evidence in the present case, we cannot say that the plaintiff company complied with the statutes in executing the required bond, and therefore we cannot say that it is entitled to a peremptory writ of mandamus to compel the county superintendent to perform an act which he is not required to perform unless such a bond has in fact been given.
The peremptory writ of mandamus will be denied.
All the Justices concurring. | [
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Per Curiam:
The judgments of the court below in these two cases will be reversed, upon the authority of the following cases: K. C. Rld. Co. v. Comm’rs of Jackson Co., 45 Kas. 716; Comm’rs of Greenwood Co. v. K. C. E. & S. K. Rly. Co., 46 id. 104. | [
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The opinion of the court was delivered by
Valentine, J.:
This was originally an ordinary action upon a promissory note and a real-estate mortgage, brought in the district court of Harvey county by Smedley Darlington, the payee and mortgagee, against John D. Caswell and Sarah J. Caswell, husband and wife, the payers and mortgagors, to recover the sum of $866.50 and interest. The plaintiff also made the Union Stove & Machine Works, a corporation of Leavenworth, Kas., a party defendant. As the plaintiff’s claim seems to have been admitted by all the parties, and no claim of error is assigned as against him, it will not be neces sary to again mention his name. The Union Stove & Machine Works answered, setting forth among other things a cause of action against John D. Caswell for $807.82, and to enforce an alleged lien upon the real estate in question, subject, however, to the plaintiff’s lien, which cause of action so set forth by the Union Stove & Machine Works was founded upon an alleged judgment rendered in its favor and against Caswell on December 8, 1886, in the district .court of Pratt county, for the sum of $963.99, and a transcript thereof filed in the office of the clerk of the district court of Harvey county on December 20, 1886, upon which judgment a payment was admitted to have been made of $214. Among other allegations contained in this answer are the following:
“That there was paid on said judgment the sum of $214 on the 8th day of June, 1887; that there is still due and unpaid on said judgment the sum of $807.82, after allowing all credits on the same.”
The defendants, the Caswells, replied to this answer, admitting the judgment, but alleging that it had been paid and satisfied in the following manner, to wit:
“Said John D. Caswell and Sarah J. Caswell further alJege, that since the rendition of said judgment, and on December 12, 1886, one William Fisher, being then and there indebted to said Caswell in a sum greater than the amount of said judgment, assumed the payment of the same, and the said Union Stove & Machine Works took and accepted the said William Fisher therefor in full payment and satisfaction of said judgment, taking from the said William Fisher a note for the same secured by both real and chattel mortgage, and that said Union Stove' & Machine Works has since foreclosed said mortgage by an action of replevin in the district court of Pratt county, Kansas; that by reason of the premises aforesaid said judgment has been fully satisfied, and said Caswells released and relieved from the payment of the same.”
The defendants, the Caswells, with leave of court filed the following amendment to their reply, to wit:
“That said indebtedness of said William Fisher to said J. D. Caswell arose in this manner: That on or about November 27, 1886, said J. D. Caswell sold and conveyed his stock of merchandise and business house and lot in Saratoga, Pratt county, Kansas, to one William Eastland, who, as a part consideration therefor, assumed and promised to pay a note of the said J. D. Caswell to the Union Stove & Machine Works, which note was secured by a mortgage upon the business house and lot aforesaid, and also by a chattel mortgage upon the heating stoves of the stock of merchandise aforesaid; that afterwards, and on or about December 12,1886, said William Eastland sold and conveyed said stock of merchandise to said William Fisher, and said business house and lot to Bertha Fisher, the wife of said William Fisher, subject, however, to-the incumbrances placed on the same by the said J. D. Caswell to the Union Stove & Machine Works as aforesaid; and as a part of the consideration for the sale and transfer of said; business house and lot and the stock of merchandise, the said William Fisher assumed the obligation of the said William Eastland as aforesaid, and promised and agreed to pay the indebtedness of the said J. D. Caswell to said Union Stove & Machine Works as aforesaid.”
The Union Stove & Machine Works replied to the Caswells’ reply by filing a general denial. Afterward the case was taken on a change of venue to the district court of Reno county, where it was tried upon the foregoing pleadings, and as between the Union Stove & Machine Works and the Caswells before the court and a jury, and the jury rendered a general verdict in favor of the Caswells and against the Union Stove & Machine Works, and also made certain special findings of fact, which verdict and findings, omitting formal parts, read as follows:
“verdict.
“We, the jury duly impaneled and sworn in the above entitled case, do, upon our oaths, find for the defendant J. D. Caswell.”
“special findings.
“1. Did the Union Stove & Machine Works ever agree to-release the defendant Caswell from the payment of said judgment and take one Fisher for the payment of the same? Ans. Yes, they did through their agent, McGrrew.
“2. If you find that the Union Stove & Machine Works accepted Fisher as paymaster of the judgment in question and released defendant Caswell from the payment of the same, ■state what witness or witnesses testified to that fact? A. Note and mortgage.
“3. Was it not expressly agreed between the Union Stove & Machine Works Company and Fisher, at the time Fisher gave the chattel mortgage to the Union Stove & Machine Works Company, that it was given as additional security for the Caswell judgment, and that Caswell was not to be released from the payment of said judgment? A. It was not.
“4. If you answer the above question in the negative, then state fully what the agreement between Fisher and the Union Stove & Machine Works was at the time said mortgage was given? A. Note, mortgage, and extension of time.”
The court rendered judgment in accordance with the general •verdict; and the Union,Stove & Machine Works, as plaintiff in error, brings the case to this court, making the Caswells the defendants in error.
The first alleged error is the ruling of the court permitting the Caswells to introduce evidence tending to prove payment and satisfaction of the aforesaid judgment. There was certainly no error in this, for although the Caswells admitted the judgment and did not specifically deny that anything was due thereon, yet they substantially alleged that the whole of it had been paid and was satisfied; and this, under the facts of the ease, was better than a denial.
The next alleged error is, that the court permitted certain papers supposed to constitute copies of certain deeds, mortgages, etc., to be introduced in evidence. There does not apappear to be any error in this. The originals of the papers were not within the custody or the control of the Caswells, and the copies introduced in evidence seem to have been properly certified copies, and they were introduced in evidence under §372 of the civil code. (Hammerslough v. Hackett, 30 Kas. 58.)
The next alleged error is the overruling of the demurrer of the Union Stove & Machine Works to the evidence of the defendants Caswell. The substantial question presented by the demurrer to the evidence was, whether the evidence of the Caswells proved their, alleged defense, that the aforesaid judgment had been paid and satisfied. It is not necessary for us to consider this question, for after the overruling of the demurrer much additional evidence was introduced, and the Union Stove & Machine Works again, by a motion for a new trial, raised the broader question whether, upon the whole of the evidence introduced on the trial, the Caswells’ defense was-proved or not. We shall consider only this broader question raised by the motion for the new trial. Taking all the evidence together, and it proves substantially among others the following facts: John D.Caswell was a retail dealer in hardware, stoves, tinware, etc., at Saratoga, in Pratt county; but he owed the Union Stove & Machine Works a large amount of debt, for which his real estate and some of his personal property were mortgaged, and for which debt the aforesaid judgment was rendered in that county. The judgment was also for the sale of the mortgaged real estate. Caswell sold this property and business to William Eastland, and East-land assumed and agreed to pay Caswell’s debt to the Union Stove & Machine Works. Afterward Eastland sold the property and business to William Fisher, and Fisher assumed and agreed to pay the aforesaid debt. Afterward the Union Stove & Machine Works procured an execution to be issued upon said judgment, and R. F. McGrew, an attorney and agent of the Union Stove & Machine Works, with N. W. Magruder, the under-sheriff of the county, who was holding the execution, went to the place of business of Fisher to levy upon the property, but finally Fisher gave his negotiable promissory note, dated December 17, 1886, to the Union Stove & Machine Works, for $975, due in 10 days, and also executed a chattel mortgage to the Union Stove & Machine Works upon his entire stock of hai’dware, stoves, etc., to secure the payment of the note, and no levy was made, and the execution, by order of McGrew, was returned to the court-. This mortgage included the property which had already been mortgaged by Caswell to the Union Stove & Machine Works and much other property. In all these transactions the Union Stove & Machine Works was repre sented by McGrew. Three days after the execution of this note and mortgage, to wit, on December 20, 1886, the Union •Stove & Machine Works, by its agent, McGrew, filed a transcript of the judgment in the office of the clerk of the district court of Harvey county, in accordance with the provisions of §419 of the civil code, for the purpose that the judgment should become a lien upon all Caswell’s real estate in Harvey county, and-so that the Union Stove & Machine Works •could enforce the judgment against Caswell’s real estate in that county. This note and mortgage were given, according to the testimony of McGrew and Fisher, as additional security for the debt owing by Caswell to the Union Stove & Machine Works and evidenced by the judgment. Afterward the Union Stove & Machine Works replevied the mortgaged property from Fisher. Fisher gave a redelivery bond and retained the property, and carried on his business for some time, but afterward judgment was rendered against him in the replevin action for a return of the property or its value, to wit, $975, and costs, and he delivered the property to the Union Stove & Machine Works. Fhher testified that the replevied property was worth about $1,500, and his evideuce upon this subject was not contradicted by the testimony of any other witness. There is nothing in the case further than the above showing that the judgment of the Union Stove & Machine Works against Caswell has ever been fully paid or satisfied, and nothing further than the above showing that the Union Stove & Machine Works ever released or agreed to release Caswell, or ever took or agreed to take Fisher as their debtor in the place of Caswell; but the evidence, so.far as it goes, shows affirmatively that the note and mortgage taken by the Union Stove & Machine Works from Fisher were taken as additional security for the debt owing by Caswell to the Union Stove & Machine Works, and that the Union Stove & Machine Works did not intend to release either the judgment or Caswell.
Under- the evidence introduced in this case, it is claimed by the Union Stove & Machine Works that the foregoing judg ment in its favor and against the Caswells has never been paid or satisfied or released, but is still in full force and effect; while on the other side it is claimed, first, that under the' facts of this case such judgment had been fully satisfied by payment ; but that if it had not been satisfied in that manner, then, second, that it has been satisfied by a release and discharge in the following manner, to wit: That by the transactions had between Caswell, Eastland, and Fisher, and as between themselves Fisher became the principal debtor and Caswell became only a surety, and that, by the recognition on the part of the Union Stove & Machine Works of Fisher’s liability to it for Caswell’s debt, the Union Stove & Machine Works made Fisher its principal debtor and converted Caswell into only a surety, and that by accepting the foregoing note and chattel mortgage from Fisher to itself, it extended the time for the payment of the debt from Caswell to itself; and thereby, under the rules of law with respect to principal debtors and sureties, Caswell, who was then only a surety, was released from the payment of the debt, and thereby the judgment was also released, discharged and satisfied so far as it affected Caswell or his property. Within these antagonistic claims on the part of these contending parties are involved many questions of law, with respect to which the authorities are diverse and conflicting; while, with respect to others of the questions involved in the case, the authorities are harmonious.
Some of the questions involved in this case have already been settled and determined by this court, while others have not. In all cases where two persons have made a contract for the benefit of a .third, or where an owner of property has sold it upon an agreement that the purchaser should pay the consideration therefor or a part thereof to a creditor of the vendor, some of the questions have been settled by this court. (Manufacturing Co. v. Burrows, 40 Kas. 361, et seq., and cases there cited; Mumper v. Kelley, 43 id. 262.) Also some of the questions with respect to the rights of sureties where the creditor and principal debtor have extended the time for the payment of the debt have also been settled by this court. (Rose v. Will iams, 5 Kas. 483; Hubbard v. Ogden, 22 id. 363.) But there are still many other questions remaining to be settled. All, or very nearly all, the authorities agree that where a vendor of property and the purchaser agree that the consideration therefor, or a part thereof, shall be paid to the creditor of the veQdor, the purchaser, as between these two parties, will become the principal debtor and the vendor be transformed into a mere surety. But no transaction or agreement of this kind or of any other kind had between the vendor and the purchaser alone can affect or abridge any of the rights of the creditor. He may stand upon his absolute legal rights, if he chooses to do so, looking only to the vendor as his debtor. With his consent, however, his rights may be greatly affected. With his consent the original debt may be extinguished absolutely, and the purchaser alone become liable to him. Or the three parties together may modify their rights in any manner and to any extent as they may agree. lYith the creditor’s consent, the vendor who was the original debtor may undoubtedly be made only a surety and the purchaser be made the principal debtor, but of course it takes his consent either expressly or impliedly.
One of the questions then arising is as follows: Can the creditor recognize the purchaser’s liability to him at all without at the same time recognizing it as it really and in fact exists at the time as between the vendor and the purchaser? We would think not, and we would think the weight of authority sustains this view. (George v. Andrews, 60 Md. 26; Calvo v. Davies, 73 N. Y. 211; Paine v. Jones, 76 id. 274; Murray v. Marshall, 94 id. 611; Spencer v. Spencer, 95 id. 353; Fish v. Hayward, 28 Hun, 456; Metz v. Todd, 36 Mich. 473; Insurance Co. v. Hanford, 27 Fed. Rep. 588.) There are cases which hold that in such a case both the vendor and purchaser may be treated by the creditor as principals, and neither merely as a surety. (Boardman v. Larrabee, 51 Conn. 39; Corbett v. Waterman, 11 Iowa, 87; James v. Day, 37 id. 164.) In that class of cases which holds that the purchaser becomes the principal debtor and the vendor merely a surety, it is held that if the creditor eaters into a valid contract with purchaser for the extension of the time for • the payment of the debt without the vendor’s consent, the vendor, who is merely a surety, is • released and discharged; while in that class of cases which holds that both the purchaser and the vendor are principals, it is held that an extension of the time for the payment of the debt by the creditor as to either the vendor or the purchaser ■ will not release or discharge the other. We shall follow the former class of cases, as we are inclined to think that both the weight of authority and of reason is that way. Mr. Jones, in his work on Mortgages, fourth edition, § 742, expresses the doctrine as it relates to mortgage debts, as follows:
“A purchaser having assumed the payment of an existing mortgage and thereby become the principal debtor, and the mortgagor a surety of the debt merely, an extension of the time of payment of the mortgage by an agreement between the holder of it and the purchaser, without the concurrence of the mortgagor, discharges him from all liability upon. it. The holder cannot enlarge the time of payment and protect himself by reserving his rights against the surety in the agreement of extension. Such a reservation has no effect unless the mortgagor agree to it.”
See also, upon the general subject of releasing the surety by the extension of the time for the payment of the debt by the creditor to the principal debtor: 2 Brandt, Sur. (2ded.), §§359, 360, 363, 364, 369, 372, 373, 375.
With the views above expressed, the question then arises, was the time for the payment of the debt in the present case ■ extended? The note and chattel mortgage taken by the Union Stove & Machine Works from Fisher were not to be paid or to be due for 10 days after their date. They were intended, however, by the Union Stove & Machine Works to be taken only as additional security. Now it is true that any kind or any amount of additional or collateral security may be taken by the creditor without discharging a surety on the original debt, provided the time for the payment of the orig- ■ inal debt is not extended. But was that the case in the pres •ent case? If it was, and if the time for the payment of the original debt was not extended, then of course the vendor, ■ Caswell, was not released; but if the time for the payment of the original debt was extended, then the vendor, Caswell, is released. Now Fisher was the principal debtor with regard to the original debt, and was not the time for the payment of all debt extended as to him? Could the Union Stove & Machine Works have sued Fisher for the purpose of collecting any debt prior to the expiration of the 10 days given by the note and mortgage? We must answer this question in the negative. (2 Brandt, Sur., 2d ed., §§ 363, 364.) And answering this question in the negative, then would not Caswell, as the surety, be discharged? This .question we think must be • answered in the affirmative. Upon questions of this kind it is possible, however, that the authorities are not entirely harmonious, but we think the weight of authority and of reason is as we have intimated. (See the authorities above cited; also Insurance Co. v. Randall, 71 Ala. 220; Kane v. Cortesy, 100 N. Y. 132; Cumming v. Bank of Montreal, 15 Grant, Ch. 686.) We think it must be held, under the facts of this case, that Caswell was-discharged, and that by his discharge the judgment held by the Union Stove & Machine Works against him was also discharged, released, and satisfied; and probably there was no injustice in this. The Union Stove & Machine Works probably had sufficient security for its debt against Caswell without recognizing or accepting Fisher as its debtor at all, as it voluntarily did. Caswell, with all his property subject to execution, was liable. Besides, the Union Stove & Machine Works had a chattel mortgage upon a portion of Caswell’s stock in trade, which stock in trade was transferred first to Eastland and then to Fisher; and also had a real-estate mortgage upon the real estate where the goods were kept. But the Union Stove & Machine Works voluntarily chose to recognize and accept Fisher as its debtor, and it thereby under the law made him its principal debtor, and from him it obtained additional security which would seem to be ample. It procured a chattel mortgage upon all Fisher’s stock in trade, and afterward replevied it from him; and Eisher, its own witness, testified that the replevied property was worth about $1,500, while the judgment against Caswell, before any payments were made thereon, amounted to only $963.99. This property was probably largely wasted by the transactions had ■between the Union Stove & Machine Works and Eisher, which perhaps would not have been the case except for the voluntary intermeddling by the Union Stove & Machine Works.
Before closing this discussion, it would perhaps be well to •quote a portion of § 1312 of 2 Daniel on Negotiable Instruments (4th ed.), as follows:
“The principle that whatever discharges the principal discharges the surety is of extended application, and it is operative whenever anything is done which relaxes the terms of the exact legal contract by which the principal is bound, or in •anywise lessens, impairs, 'or delays the remedies which the creditor may resort to for its assurance or enforcement. For, whenever the creditor relaxes his hold upon the principal ■debtor, he impairs the hold upon him which the surety, would acquire by substitution in his place on making payment; and good faith aud fair dealing require that the surety should not be exposed to the injuries which might thus be inflicted upon him. In the immense majority of cases the act done does not actually damage the surety a shilling, yet the doctrine is so firmly established that only legislative enactment can ■change it.”
We have now considered every substantial question in this •case. There-are other questions presented by counsel’s briefs; but with the views that we entertain we do not think that it as necessary to discuss them.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
John Geer was charged with subornation of perjury, under § 150 of the act relating to crimes and punishments. He was convicted and sentenced to confinement at hard labor in the penitentiary of the state for the term of two years. He appeals to this court. Said § 150 reads:
“ Every person who shall procure any other person, by any means whatsoever, to commit any willful or corrupt perjury in any cause, matter or proceeding, in or concerning which such other person shall be legally sworn or affirmed, shall be adjudged guilty of subornation of perjury.”
It is contended that the trial court erred in overruling the motion to quash the amended information. In support of this contention, it is argued that the amended information should have shown that the perjury alleged to have been committed by Margaret F. Mickens was committed by her by reason and in consequence of the persuasion or procurement of Geer. This case was before this court at a prior term. The information was then held defective because it did not aver that the affidavit referred to was to be used in a matter or proceeding before some court, tribunal, or public officer; and that the affidavit or evidence was material. (The State v. Geer, 46 Kas. 529.) Subsequently an amended information was filed, and this information contained the allegations which were omitted in the former one. The amended information also alleged that Geer unlawfully, willfully, corruptly and feloniously persuaded, incited, procured and suborned Margaret F. Mickens to commit the willful perjury alleged. The amended information sufficiently charged Geer with the crime defined in § 150. .
It is next contended that the plea in abatement, which was interposed by Geer, should have been sustained, upon the ground that he had had no preliminary examination, nor had he waived his right thereto, prior to the filing of the amended information. It appears from the record there had been a preliminary examination. This, we think, was prior to the filing of the first information. We suppose it is intended to be claimed that, because the first information was defective, a second preliminary examination should have been had after the filing of the first and before the filing of the amended information. This court has already held that an informanation need not show that there has been a preliminary examination, or a waiver of such an examination. (The State v. Barnett, 3 Kas. 250; The State v. Finley, 6 id. 366.) Where a defendant has waived a preliminary examination, or where an attempt has been made to give him a preliminary examination, and reasonable notice has been furnished him thereby with regard to the nature and character of the offense charged, such examination is sufficient. (The State v. Bailey, 32 Kas. 83; The State v. Spaulding, 24 id. 1.)
It is further contended that the trial court erred in admitting the testimony of Margaret F. Oeer, net Margaret F. Mickens, the wife of John Geer. She was called, sworn and interrogated as a witness for the state. Her husband, John Geer, objected to her testifying, upon the ground that she was his wife. Mrs. Geer did not refuse or make any objection to testifying. While a court cannot require the wife to testify against her husband, it may permit her to do so voluntarily. We think in this case Mrs. Geer testified voluntarily. (Crim. Code, § 215; The State v. McCord, 8 Kas. 232.)
It is also contended, and this is the most serious matter in the case, that Geer cannot be convicted because Margaret F. Geer testified that she made the affidavit referred to in the in formation on account of his threats. At the time of making the false affidavit, her name was Margaret F. Mickens. The affidavit charged John Mickens, the father of Margaret, with rape, incest, and being the father of a child, with which Margaret was at the time pregnant. Mr. Bishop says that subornation of perjury “is a separate offense from perjury only in name; being in fact a particular sort of perjury, or in one form or another aceessorily thereto. It is so even when made punishable by statute.” (2 Bish. Crim. Proc., §1019.) It was said by Wilde, J.,in Commonwealth v. Douglass, 5 Met. (Mass.) 241, that “to constitute subornation of perjury, the party charged must have procured the commission of the peijury by inciting, instigating or persuading the guilty party to commit the crime.”
The argument that Geer is not guilty because Margaret is a person of weak mind or easily influenced by threats is more specious than sound. The affidavit or testimony which she gave against her father was false. It was given by her knowing it to be false. If the evidence of the prosecution is to be believed, John Geer knew or believed that the testimony of Margaret against her father was false, and he also knew or believed that under his orders or direction Margaret would testify to that which he and she knew to be false. (United States v. Denee, 3 Wood, 39; Watson v. The State, 5 Tex. App. 11.) We think, under the statute, to constitute subornation of perjury the party charged is guilty if he procures the commission of the perjury or false testimony by inciting, instigating or procuring a person to commit the same in a cause, matter or proceeding before some competent court, tribunal or public officer, when the testimony is material. Margaret made the affidavit knowingly and falsely. The purpose of the affidavit and false testimony was to have John Mickens arrested upon a criminal charge. Margaret was the instrument or agent of John Geer. He procured her by persuasion, perhaps by threats, to give the false testimony. The statute reads: “By any means whatsoever.” Morally Geer is as guilty as if he committed willful and corrupt perjury himself. We think, under a fair construction of the statute, that Geer is guilty within its terms.
There is evidence tending to show that the affidavit was intended to be used in a criminal prosecution against John Mickens. ' This was sufficient. The person by whom the oath is administered may testify to the fact that he is an acting officer or magistrate, and his testimony, in connection with the original affidavit and jurat of the administration of the oath, is sufficient to show the oath was properly administered. Proof that a justice of the peace or other public officer has acted as such in the ¡administration of an oath is sufficient prima fade of his authority, without putting in evidence his commission or other facts giving jurisdiction. (Woodson v. The State, Ct. App. Tex., 6 S. W. Rep. 148.)
The various other allegations of error urged are included, in one way or another, with these discussed; therefore, they need not be commented upon further. .
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by’
Green, C.:
This was an action for the forcible detainer of a farm in Lyon county, brought by E. M. Harper against Johnson Harris. Some time in the fall of 1887 the parties agreed upon the terms of a lease of the farm in question to March 1, 1889. On the 22d day of February, 1888, Harris signed a written lease for the premises and gave it to Mrs. Harper for her signature. She did not sign the lease, but retained it in her possession, and Harris had no knowledge or notice that the lease was not signed by her until the 12th day of December, 1888. In the latter part of August or the fore part of September of the same year, there were negotiations pending between the parties looking to the leasing of the farm for another year, from March 1, 1889, Harris being under the impression that the lease had been signed by both parties. The leasing for another year was not consummated, and Harris sent word to Mrs. Harper, some time in September, 1888, that he would not take the place for another year. On the 19th day of December, Mrs. Harper gave notice to Harris to vacate the leased premises on the 28th day of February, 1889, and on the 19th of March following gave the three-days’ notice to vacate, under the forcible entry and detainer act. The case was originally commenced before a justice of the peace, tried there, and appealed to the district court, where it was again tried, and resulted in a verdict and judgment against Harris, who brings the case here.
It is first contended by the plaintiff in error that the original leasing was oral, and for more than a year, and was therefore void under the statute of frauds; that the holding thereunder by the lessee, as a matter of law) became and was a leasing from year to year; that no proper notice was given to terminate the tenancy, as was required by §§ 5 and 6 of the act in relation to landlords and tenants, being ¶¶ 3613 and 3614 of the General Statutes of 1889; that the real question in the case is, whether or not the plaintiff in error waived such notice by sending to the defendant in error word that he would not take the place for another year. It is urged that there was not sufficient evidence to establish the fact of a waiver or an estoppel upon him to deny that he ever had notice.
We do not agree with counsel that the lease was void. The plaintiff in error had himself signed the contract, and each party had acted under it. He had gone into possession of the farm, and must have cultivated it for one season, and then commenced negotiating for the occupancy of it for another year. No question was raised by either party as to the respective rights of each under the lease. It was recognized by the lessor and the lessee. So far as we know, each party had fully performed all of the conditions of the lease. The jury found specially that, up to December 12,1888, both parties regarded the writing of February 22,1888, as their valid lease, and that they had acted under it. This, in our opinion, withdrew the lease wholly from the operation of the statute of frauds. We do not think that the signing of the lease by Mrs. Harper was essential to make it valid, under all of the facts of this case. The plaintiff in error signed the same, and she accepted it. This made it a contract in writing, and bound the parties after they had acted under it.
“The acceptance of a deed makes it a contract in writing, binding upon the grantee, just as the acceptance by a lessee ■of a lease in writing, signed by only the lessor, makes it a written contract, binding upon the lessee; and a suit can be instituted upon it, and the same rights maintained, as though it were also signed by the grantee.” (Schmucker v. Sibert, 18 Kas. 111.)
This case is much stronger than the one just cited. The plaintiff in error signed the lease, and it was accepted and adopted by the lessor, and thus became a binding obligation upon both parties. The view that we take of the tenancy of the plaintiff in error to the premises in question renders it unnecessary to consider any other assignments of error. Holding, as we do, that the lease was operative and binding, no notice *o quit was necessary, and it was, therefore, immaterial whether or not there was a waiver of a notice to terminate the tenancy upon the part of the plaintiff in error.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On and prior to the 9th day of January, 1889, and at this time, Alvah Shelden was and is the publisher of the Walnut Valley Times, a weekly newspaper printed and published in El Dorado, in Butler county, in this state, and having general circulation therein. On the 9th day of January, 1889, the board of county commissioners of Butler county — then composed of J. K. Skinner, B. H. Fox, and A. O. Rathburn, the last named being the chairman of the board — at a regular session, designated the Walnut Valley Times as the official paper of Butler county, and directed that the county printing for the next two years be given to that paper, commencing on the 10th of January, 1891, and ending on the 1st of January, 1893. Subsequently, a written contract was entered into between the board and Alvah Shelden, the publisher of the Walnut Valley Times. At the time of the execution of the contract, Shelden made to the state of Kansas a bond in the sum of $500, conditioned for the faithful performance of his duties devolving upon him as county printer, which was approved and accepted by the board and filed with the county clerk. Shelden continued to do the county printing, under the terms of the contract, until the 26th of January, 1892, when the board of county commissioners — then composed of B. H. Fox, John Ellis, and H. M. Brewer, the first named being the chairman — designated by a majority vote the Industrial Advocate as the official newspaper of Butler county. On February 8, 1892, the order of the board , was spread upon the journal by the county clerk. The publisher of the Industrial Advocate entered into a contract with the board for the county printing, and executed a bond which was approved by the board. Since the 8th day of February, 1892, the board of county commissioners has refused to recognize the Walnut Valley Times as the official paper of Butler county, and has directed the county clerk to notify Shelden, the publisher of the Watnut Valley Times, that the Industrial Advocate had been designated as the official paper of Butler county un til the further order of the board. Shelden objected to this, and demanded that he be permitted to do all the county prining of Butler county. This has been refused. On the 15th day of February, 1892, Shelden commenced this proceeding in this court for a peremptory writ of mandamus to compel the board of county commissioners of Butler county, and the clerk thereof, to allow him, as the owner and publisher of the Walnut Valley Times, to do all the county printing, job work, etc., until January 1, 1893.
The principal question in the case is whether a board of county commissioners may designate an official newspaper of the county for a term of two or more years. On the part of the plaintiff it is alleged that this may be done, and on the part of the defendants this is denied. Paragraph 1655, Gen. Stat. of 1889, provides that “the boards of county commissioners of the several counties of this state shall have exclusive control of all expenditures accruing, either in the publication of delinquent tax lists, treasurers’ notices, or county printing.” Under this section, the boards of county commissioners of the several counties have the legal right to designate the paper in which the delinquent tax lists shall appear. (Gen. Stat. of 1889, ¶ 1710; Wren v. Comm’rs of Nemaha Co., 24 Kas. 301.) When a paper is designated by a board of county commissioners, it becomes the official newspaper of the county. In Fuller v. Miller, 32 Kas. 130, it was said:
“We think § 26, construed in connection with amended § 3, means, that on the second Monday of January after each general election at which a commissioner has been elected the board, as an organized body, is dissolved, and the office of chairman is vacant, and before the commissioners can transact any county business, other than to elect a chairman, or fill a vacancy in the office of a commissioner, the board must be again organized, and such organization is effected and the board an organized body for the purposes of its creation as soon as the commissioners elect a chairman. By this construction, the sections of the constitution and statute under consideration are in harmony. Then it follows that a chairman is to be elected in each year, on the second Monday of January, or within thirty days thereafter, and will hold his office until the ensuing second Monday of January, and that the term of office of the chairman of a board of county commissioners is from the day of his election to that office until the next ensuing second Monday of January.”
As the legislature has provided that the boards of county commissioners of the several counties of the state shall have exclusive control to designate a paper and to control the county printing, this, of course, means that the board of county commissioners of each county has that power; therefore, as the board of county commissioners of a county, after one year, is dissolved as an organized body, such board ought not to have the control of the county printing after one year, or for an indefinite term of years. Each board of county commissioners of each county has authority and responsibility in designating the official newspaper of the county, and as a necessary result in providing for the county printing. If the board of county commissioners of a county could tie the hands of a subsequent board in designating the official newspaper and in contracting for county printing, it might tie the hands of subsequent boards for several years — at least, for what would be a reasonable time; and it would be difficult to determine what, under all the circumstances of the case, would be a reasonable time. It follows logically that the board of-county commissioners of a county must be limited to one year, or until the body is dissolved, or else its power is unlimited in this respect, and it may designate a paper as the official newspaper of the county for two, three or more years — at least, for a reasonable time, which is almost indefinite. (See National Bank v. Peck, 43 Kas. 643; National Bank v. Comm’rs of Barber Co., 43 id. 648.)
It appears from the pleadings in this case that it has been the practice in Butler county for a newspaper to be designated by the board of county commissioners of that county as the official paper for the period of two years, and therefore, in this case, the board of county commissioners in 1891 followed the usual practice in designating an official newspaper. It is the practice, however, in most of the counties of the state for the. boards of county commissioners to designate the official newspapers of the counties for the period of one year only. The latter practice seems to us to conform to the constitution and statutes of the state. To avoid complications or other troubles, the designation of the official newspaper should be made as early in each January, after the board is organized, as is convenient for action to be had.
The peremptory writ will be denied, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The mercantile firm of O. Fagerberg & Brother brought an attachment proceeding against Charles Johnson, and caused two promissory notes to be attached by a constable. John W. Johnson, who claimed the ownership of the notes, and that they were sold and assigned to him before they were due, brought an action of replevin against the constable and the mercantile firm of O. Fagerberg & Brother to recover the notes, and, at the February term, 1889, of the district court of Pottawatomie county, recovered a judgment. On April 26, 1889, the mercantile firm filed a petition, asking a new trial, on the ground of fraud in obtaining the judgment, and because of surprise and newly-discovered evidence. Afterward, by leave of the court, an amended petition was filed. Attached to the petition, and made a part thereof, was a large volume of testimony, most of which had been used upon the former trial. Johnson demurred to the original petition, and also to the amended petition, upon the ground that the allegations of the same were insufficient; which demurrers were sustained by the court. O. Fagerberg & Brother excepted to the rulings, and come here contending that both the original and amended petitions state sufficient facts, and that the demurrers to them should have been overruled. No oral argument was made when the case was presented, and there is none contained in the brief which was filed. After a brief statement of the action of the court, the plaintiff in error says in its brief that the demurrers should have been overruled, and to sustain the same it states: “ See the petition and amended petition for a new trial, commencing at page 3 of the record.” The petition and the amended petition, together with the evidence which has been attached to the same and made a part thereof, extended from page 3 to page 103 of the record, and the testimony attached constitutes 70 pages of this record. The errors complained of are not specifically pointed out, and the ease is not presented in such a manner as to require an examination of the record and of the errors of which complaint is made. (Building Association v. Martin, 39 Kas. 750; The State, ex rel., v. Turein, 46 id. 695; 27 Pac. Rep. 148.) Notwithstanding the imperfect presentation of the case, we have examined the record and find that it discloses no error.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Franklin county on October 8, 1887, by Rilla C. Pavey against the Southern Kansas Railway Company, to recover for personal injuries alleged to have been sustained by the plaintiff through the negligence of the railway company. The case was tried before the court and a jury, and the verdict and the findings of the jury, and the judgment of the court, were in favor of the plaintiff and against the defend ant for $6,000, as damages; and the defendant, as plaintiff in error, brings the case to this court.
The first ground urged for reversal is, that there was no negligence shown on the part of the defendant, and that the evidence showed that the plaintiff’s injuries were caused by her own negligence. There was no great conflict in the evidence, but still there was some conflict, and as the verdict and findings of the jury and the judgment of the court were in favor of the plaintiff and against the defendant, we must take the evidence on the part of the plaintiff as true, and must consider all the evidence on the part of the defendant where it conflicts with the plaintiff’s evidence as not true; and viewing the evidence in this light, and taking the case as made out by the plaintiff, the facts are substantially as follows: The plaintiff was a married woman, about 26 years of age when the injury occurred; had resided in Wilson county. The family consisted of herself, her husband, and a baby; but they concluded to change their place of residence to Topeka, and they were on their way from Wilson county to Topeka for that purpose when the injury occurred, which was on March 16, 1887. On the night of March 15,1887, they purchased tickets from the defendant at Chanute for transportation from that place to Topeka, and went into one of the defendant’s cars forming a part of one of its trains going from that place northwardly. Besides the baby which they carried with them, they also had some wraps, and a basket with the baby’s things in it. After starting on their journey the conductor on that train punched their tickets and gave them checks, and told them that they would have to change cars at Ottawa. It was then in the night-time and dark. When the train arrived at or near Ottawa the conductor took up their checks, and shortly afterward the brakeman called out “Ottawa,” and shortly afterward the train came to a full stop. At that time they were sitting about the middle of the car, and the train consisted of the engine and about seven cars, one being a sleeper. When the train stopped they gathered up their wraps and the baby and the basket, and started toward the rear end of the car to get off. They had never before been in Ottawa, and had no knowledge of the place or of the station. The conductor was sitting across the aisle and about three seats back of where they sat, and they passed him as they went to the door; and they met the brakeman at the door as they were going out and passed him. Neither the conductor nor the brakeman said anything to them, nor did they make any inquiries of anyone, nor did they see any other people acting as though they were about to leave the train. They believed that they had arrived at the station and they were intending to leave the train for that reason. Plaintiff’s husband got off the car first with the baby, and she was following him. While she was standing on next to the last step, and was in the act of stepping upon the last step, the train started suddenly with a jerk and threw her-down on the ground. She had heard no signal for starting the train, and knew of none. This was in one of the public streets of Ottawa, named Walnut street. It was then about three or four o’clock in the morning and was dark. There was no station there nor any platform upon which to alight, nor any lights. They believed that they were acting carefully in their attempt to leave the train. The train, however, had not arrived at .the station. It had arrived only at or near the crossing of the Missouri Pacific Railway, and it stopped for that reason. The station was still further north about two blocks, and across the Marais des Cygnes river. The plaintiff was injured by the fall; was hurt in her left hip; lost the use largely of her left lower limb, and has had to use crutches ever since; and her back is also affected. Besides the general verdict of the jury, which was simply in favor of the plaintiff and against the defendant, and assessed the plaintiff’s damages at $6,000, the jury also, upon special interrogatories presented to them by the court at the request of the defendant, made the following findings:
“1. Where did the plaintiff get off the train at the time she received the injury? Ans. Near Second and Walnut streets, opposite Shaner House.
“ 2. Was she ordered or instructed or invited by any of defendant’s employés to get off at that place; if so, by whom? A. She was; by the brakeman and conductor.
“3. Was she induced by any act of defendant’s employés to get off at that place? A. Yes.
“4. If so, by what act or acts of defendant’s employés was she induced to get off there? A. By the conductor’s instructing her to change cars at Ottawa, and the brakeman calling ‘Ottawa,’ and their neglecting to interfere with her when leaving the car.
“5. Did the conductor or brakeman, or either of them on that train, see her when she got off. A. Yes.
“6. Could the plaintiff, when she got off the platform of the car, or before getting off, have seen that there was no station or platform at that place? A. No.
“7. Was the injury complained of by the plaintiff the result of negligence on the part of the defendant, or any of its employés? A. Yes.
“8. If so, who were the employés of the defendant that were guilty of such negligence? A. The conductor and brakeman.
“ 9. What were the acts, if any, of defendant’s employés that caused the plaintiff’s injury? A. Instructing her to change cars at Ottawa; calling ‘Ottawa’ prior to a stop, and then starting before plaintiff had time to alight from the car; by silently consenting for her to leave the car.
“10. Was the negligence of defendant’s employés, if any, slight, or gross, or ordinary ? A. Gross.
“11. Could the plaintiff have avoided the injury by the exercise of ordinary care and prudence on her part? A. No.
“12. Could she have avoided the injury by the exercise of great care? A. No.
“ 13. Did she exercise that degree of caution that a prudent person would under similar circumstances? A. Yes.
“14. Did the conductor or brakeman in charge of that train, or either of them, call ‘Ottawa,’just before or at the time of stopping at the Missouri Pacific railroad crossing? A. Yes.
“15. If so, which called it? A. The brakeman.
“16. Did the brakeman call ‘railroad crossing’ in the car in which the plaintiff was riding, just before or at the time the train stopped for the Missouri Pacific railroad crossing, and where plaintiff got off the train? A. No.
“17. Did the brakeman on that train, after it left the Bur lington junction, call ‘Ottawa the next station,’ in the car in in which plaintiff was ridiDg? A. No.
“18. Did the brakeman call ‘Ottawa’ in each car of the train, except the sleeper, after crossing the Missouri Pacific railroad crossing? A. Yes.
“19. Was the plaintiff guilty of any negligence in getting off the train at the place where she received the injury? A. No.
“20. Did her negligence contribute in any degree to the injury? A. No.
“ 21. What amount of actual damages, if any, did the plaintiff sustain? A. Six thousand ($6,000) dollars.
“ 22. What amount, by way of exemplary damages, do you find, if any, for the plaintiff? [This question was stricken out by the court, to which defendant excepted.]
“23. What amount of damages for pain and suffering do you find for the plaintiff? [Stricken out by the court; defendant excepts.]
“ 24. What amount of damages for mental suffering do you find for the plaintiff? [Stricken out by the court; defendant excepts.]
“25. How long did the train on which the plaintiff was riding stop at the .railroad crossing in Ottawa? A. A short time.
“ 26. Did the engineer give any signal before starting the train on which plaintiff was riding, after the stop at the Missouri Pacific railroad crossing in Ottawa? If so, what signals were given? A. Two short whistles.
“27. In what coach of the train was the plaintiff riding when it came into Ottawa, and in what part of the coach was she then sitting? A. One of the passenger coaches, and near the middle of the car.
“28. Did the plaintiff remain in her seat in the car until the car came to a full stop at the railroad crossing in Ottawa? A. She did.”
x. injuries to pasfng^iaiU-stait" gence. This court cannot say as a matter of law that no culpable negligence was shown as against the defendant, or that the iniury to the plaintiff was caused by her own negligence, or even that she was guilty of any culpable contributory negligence.
It is next claimed that the court below erred in admitting evidence showing a certain rule of the railroad company, which reads as follows: “ Conductors must prevent passengers from endangering themselves by imprudent exposure.” It had already been shown by the evidence of one of the defendant’s witnesses, partly on his examination in chief and partly on his cross-examination, that under the rules of the company it was the duty of both the conductor and the brakeman to prevent all danger to passengers; and therefore it could not have been material error for the plaintiff to show substantially the same thing. Besides,, under the facts of this case, we do not think that it would have been material error for the court to have allowed this evidence to be introduced, even if no previous evidence of the same character had been introduced by the defendant. We can imagine cases, however, where the introduction of such evidence would be erroneous, but we do not think that the present ease is one of such cases.
It is next claimed that the court below erred in giving and refusing instructions. It is claimed that the court erred in refusing to give one certain instruction asked for by the defendant ; and also in giving five different and isolated portions of the general charge. We think, however, no material error was committed. The general charge was full enough to cover everything that was necessary to be given to the jury, and seems generally to be very fair as toward both parties. If we should copy the charge in full it would show that there is but little foundation for any claim of error concerning instructions, either given or refused, but it is' too long to be copied in this opinion. We shall copy one portion thereof, however, which furnishes the strongest ground for a claim of material error of any that can be found in any other portion of the general charge or of the instructions given, and that portion reads as follows:
“ If the brakeman upon the platform saw her descend the steps as if to get off the train, and failed to warn her of the danger, these are matters from which the jury are authorized to find negligence on the part of the company, and sufficient to authorize a recovery, unless, as before stated, she herself was also guilty of negligence directly contributing to the injury.”
This instruction is erroneous in this particular: There was no evidence introduced to show that the brakeman was upon the platform while the plaintiff was descending the steps as if to get off the train, or that he saw her descending the steps, unless by very remote inference. He did, however, under the plaintiff’s evidence, see the plaintiff and her husband, with their wraps, their basket, and their baby, go out of the car as if to get off the train, which is substantially the same thing as is mentioned in the instruction of the court; and yet, notwithstanding the fact that he saw all these things, he still failed to- warn her or her husband of any danger or to give them any information. It is possible that he saw her descending the steps, but the evidence does not show it unless by possible inference. Erom what he did see, however, we think it was just as much his duty to have warned the plaintiff of the danger as it would have been if he had seen her descending the steps. The court in its general charge stated the issues correctly, and the jury had full knowledge with regard to the matters upon which they were to find. The court instructed the jury in substance that the burden of proof rested upon the plaintiff; that in order for her to recover it was necessary for her to prove her ease by a preponderance of the testimony. And the court also instructed the jury that they were the exclusive judges of all questions of fact, of the weight of the testimony and the credibility of the witnesses; and it would therefore seem that the jury could not possibly have been misled to the prejudice 0f the defendant by this slight error of fact contained in the foregoing instruction of the court. We think the error was immaterial.
It is also claimed that the court below erred in striking out the special questions numbered 23 and 24, which the defendant requested the court to submit to the jury. In some cases a refusal to submit such questions might be erroneous, but in this case we are inclined to think it was not. There was no evidence tending to show particularly what damages arose from pain or suffering, either physical or mental, and if the jury found any damages for pain or suffering, they found them only as actual damages. The entire damages allowed in this case were only $6,000, and the jury, by their special findings, show that they allowed the same only as actual damages, and we cannot say that that amount is excessive or even apparently so; hence, while it might be error in some cases for the court to refuse to submit questions to the jury similar to the ones above mentioned, we cannot say that such refusal is erroneous in the present case. We cannot say that any material error was committed' by the trial court in this case, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Robert O. Rizer was elected treasurer of Davis county in 1875, and took possession of said office in October, 1876, holding the same until October, 1880. At that time his accounts as treasurer of said county were unadjusted, and the county claimed that he was a defaulter in the sum of $11,700. Rizer denied that he was a defaulter, or that he was indebted to the county. But to satisfy his bondsmen, defendants with the county herein, pending an investigation of his said accounts, he made a deed of certain real estate in trust to Jacob Callen, for the use of his said bondsmen, in case they should suffer loss by reason of having become sureties on his bond. At’the time said deed was made, said sureties agreed in writing with the plaintiff to carefully investigate and determine the true status of the plaintiff’s accounts with said county, before disposing of any of the property conveyed in said deed of trust for their use, and if it was found, as plaintiff believed, that he was not indebted to said county, to release and return said property to the plaintiff; and if it should be found that the plaintiff was indebted to said county in a sum less than the value of the property conveyed, they should return to him the balance of the proceeds of said property. Afterward, without any attempt on the part of said sureties to ascertain the true status of the accounts of the plaintiff with said county, and without consulting with the plaintiff, they paid the commissioners of said county a large sum of money to compromise the alleged claim of said county against the plaintiff as such treasurer, and for that purpose disposed of the entire property in said deed of trust conveyed, and never returned to the plaintiff any of the proceeds thereof. At the time that the money was paid by said sureties to the county, the said sureties and the board of county commissioners of the county agreed with the plaintiff to adjust and settle his accounts as treasurer of said county, and if it should be found that the plaintiff was not indebted to said county, the said board of commissioners would pay the money so paid to the county back to him; and if he should be found indebted to said county in a sum less than the amount they received for the county, they promised to pay back to him any surplus over and above his actual indebtedness. But when the plaintiff sought a settlement with said commissioners, they put him off from time to time, and finally wholly refused to settle with him.
In January, 1887, the plaintiff presented a full, complete and true statement of his accounts as said treasurer with said county to the board of county commissioners thereof, showing said county to be indebted to him, on his original accounts as treasurer, in the sum of $11,674.90, besides interest, amounting in all to $17,232.20. The refusal of the board of county commissioners to adjust his accounts and settle with the plaintiff; the neglect of said sureties to investigate said accounts aud determine the true status thereof as between the said county and the plaintiff as treasurer thereof; the compromise by said sureties with the county of the alleged claim of said county against the plaintiff, without consulting him; the disposal of the property in the deed of trust conveyed, in violation of their agreement with the plaintiff, and the refusal of said sureties to account to the plaintiff for said property; and all the acts of said board of county commissioners and of said sureties concerning the accounts of the plaintiff as treasurer with said county, and all their acts in relation to the said property of the plaintiff, were in pursuance of a fraudulent conspiracy and design on the part of all of said defendants to defraud the plaintiff out of the amount due him as treasurer of said county, and out of all the property conveyed by him in trust for said sureties. The plaintiff first learned of the conspiracy and design on the part of the defendants to so cheat and defraud him within two years prior to the commencement of this suit. The defendants demurred to the petition filed in the case, which demurrer was sustained. An amended petition was then filed, which was demurred to, and this demurrer was also sustained.
The questions arising on the‘demurrer are the only ones in the case. An examination of the petition satifies us that there are two or more causes of action improperly joined therein. The petition states a cause of action in favor of the plaintiff against the county of Davis, upon his accounts with said county as treasurer thereof, and prays for an accounting with said county and for a judgment against said county for the sum of $17,230.20. It also states a cause of action in favor of the plaintiff against the defendants other than the board of county commissioners, as sureties on his official bond as treasurer, for wrongfully converting property deeded to them in trust, for their protection against loss on account of having become sureties on said bond. And the petition, probably, states a cause of action against the board of county commissioners of said county, and the other defendants, for so much money as was paid by said sureties to the board of county commissioners to compromise the alleged claim of said county against the plaintiff. At least, the petition states two causes of action — one against the county alone, and another against the sureties on the official bond, the defendants other than the county commissioners. The cause of action against the county for an accounting in no wise affects the sureties on the plaintiff’s bond. He could not have a cause of action against the sureties on his official bond for any sum the county might owe him as treasurer théreof. And since this cause of action cannot affect any of the defendants other than the board of county commissioners, and is joined with a cause of action against the other defendants, it follows that the two causes of action are improperly jpined. The language of § 83 of the code is: “ But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, except an action to enforce mortgages or other liens.” In Hentig v. Benevolent Association, 45 Kas. 462, the court says: “It is one of the necessary prerequisites to the uniting of different causes of action, that all the causes of action must affect all the parties to the action.” (See Pom. Rem., §479; Bliss, Code PI., §123; Harsh v. Morgan, 1 Kas. 293.) Since our views upon this question affirm the judgment of the district court on the demurrer, we will not consider the other questions raised by the demurrer, but suggest that perhaps Jacob Callen may be a necessary party to a settlement of the question growing out of the property conveyed by the deed of trust in which he was made the trustee.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action of replevin for the possession of 400 head of Texas cattle. The plaintiff in error, who was plaintiff below, says that he was the owner of 400 head of Texas cattle which he was holding in Greenwood county, Kansas; that the defendant unlawfully deprived him of their possession on or about the 10th day of July, 1890, and has ever since refused to return them. The defendant claims he took possession of and holds the cattle under and pursuant to an order of the live-stock sanitary commission of the state. On the trial, the court instructed the jury to return a verdict for the defendant and to find the value of his possession to be $2,356.57, the amount of his bill for keeping the cattle. The plaintiff objected to this instruction, and insisted on the court giving other instructions prepared by him, which the court refused. The plaintiff says the ease should be reversed for the following reasons: (1) The admission of incompetent evidence; (2) error in giving and refusing instructions; (3) error in amount recovered as the value of the defendant’s possession.
The plaintiff in error first complains of the admission in evidence on the part of defense of the order of the live-stock sanitary commission of the state, under which the sheriff took and held the plaintiff’s cattle. The contention of counsel for plaintiff is, that said order was not admissible in evidence, and could not operate as a justification of the sheriff in taking and holding the said cattle, until he established the fact by competent evidence that the sanitary commission had investigated and made a finding that the cattle of the plaintiff were liable to impart the Texas, splenic or Spanish fever ;• and that such finding, which plaintiff alleges is in the nature of a judgment in a judicial investigation, can only be proved by the record as made and kept by said commission. Is this contention of the plaintiff true, or is the order under which the sheriff took possession of and held the cattle admissible as evidence in the first instance, that is, without first establishing the finding of the commission on which it was based? We think the order of the commission to the sheriff is in the nature of an execution on a judgment, and that it was of itself, prima facie, a sufficient justification of the sheriff in taking and holding the cattle. The plaintiff might in this case have investigated the question as to whether the cattle were liable to impart Texas, splenic or Spanish fever. The finding of the sanitary commission thereon was not conclusive on him at all. There was, however, no attempt to investigate that question. In Crocker on Sheriffs, §866, it is said: “ Where the sheriff is sued by the defendant in the action in which the process issued, for acts done thereunder, as levying on exempt property and the like, it is not necessary for him in justifying under such process that he should show a judgment.”
In Holmes v. Nuncastle, 12 Johnson’s Rep., it was held “that an officer sued for taking goods under an execution need only give the execution in evidence.” The court in the case said: “What the objection was to the admission of the execution in evidence does not appear. The execution was all that it was necessary for the constable to show in his defense, provided he had a right to take the money under it; he was not bound to show the judgment.” The clause in that case, “provided he had a right to take the money under it,” relates to the question therein raised as to whether or not the sheriff could levy on money. See also Savacool v. Broughton, 5 Wend. 170; Barker v. Miller, 6 Johns. 195; Lockwood v. Bull, 1 Cow. 322; Blachley v. Shelden, 7 Johns. 32; Dillenback v. Jerome, 7 Cow. 297.
The order to the sheriff being admissible in evidence, and constituting a prima facie justification of the sheriff for taking and holding the cattle, it was not necessary for him to show the finding of the sanitary commission in relation to the liability of the cattle to impart Texas, splenic or Spanish fever; hence, the fact that the witness White was permitted to testify somewhat in relation thereto was not reversible error, because such testimony was immaterial.
The plaintiff contends that the court erred in instructing the jury to find for the defendant. We do not think so. The plaintiff having brought his action for the possession of the cattle, and the sheriff having justified by showing proper authority for taking and holding them, and the plaintiff having made no attempt to go back of such order to show that the cattle were not infected and liable to impart the said fever, and having failed to rebut the prima facie showing of the sheriff that he had a right to the possession of the cattle notwithstanding the plaintiff’s ownership thereof, it was proper for the court to instruct the jury to find for the defendant, because the plaintiff had failed to show himself entitled to the possession of the cattle as against the officer holding them under process.
The plaintiff also says that the court erred in instructing the jury to find the value of the defendant’s possession to be $2,356.57. The plaintiff claims that the defendant, the sheriff, had been paid in full his expenses for keeping the cattle, and the cost of the commission in connection therewith; and that on that account, if the plaintiff failed in his action, all the defendant was entitled to recover was the cost of the action made prior to such payment. It is conceded that the plaintiff never paid the sheriff any part of the amount due for keeping said cattle, but it is claimed that the sheriff was paid by the county of Greenwood, and that such payment inured to the benefit of the plaintiff. We do not think the board of county commissioners of Greenwood county intended to do more by their act in issuing the warrant of the county to the sheriff than to loan to him the credit of the county to assist him in holding said cattle until he received his pay therefor. In connection with this matter of payment by the county, as claimed by the plaintiff, the record shows that it was not advanced by the county board until after this suit was commenced. The board probably thought that litigation having commenced over the right of possession of the cattle, which involved also the expense of keeping them, it would be some time before the sheriff would be able to realize his money for the keepings from the plaintiff, or out of the cattle, and the sheriff being unable to advance so much money, they would loan to him the credit of the county to help him until he could collect the money from the plaintiff or by sale of the cattle.
But aside from this view of the matter, as this money was not paid until after the suit was commenced some time, the payment constituted no defense under the pleadings in the case. The status of the case was fixed at the time it was commenced, and, in the absence of any supplemental pleadings, all the evidence in relation to the payment subsequent to the commencement of the action was improperly received. The defendant objected to its reception, and also moved the court to withdraw the same from the jury, which objection and motion were both overruled. This was error. The court should have excluded such evidence, and, having admitted it, should, on the request of the defendant, have withdrawn it from the jury. This evidence, having been erroneously received, constitutes no valid defense in the case.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was commenced in the court below by James McKinstry, to recover an interest in certain real estate situate in that county, or its value if partition could not be made. He claimed under a conveyance from W. R. Colcord, who, he alleged, was interested, with W. H. Carter, Thomas B. Campbell and Prank Thornton in the real estate described in his petition. The case was tried before the court with a jury, and the jury found, among other things, that W. R. Colcord owned at one time an undivided one-fourth interest in the land in dispute, subject, however, to certain assessments or moneys due from him to Carter, Campbell, and Thornton, his co-tenants; that Colcord subsequently made a conveyance of his interest in the land to McKinstry, the plaintiff. The trial court decreed a partition of the land, giving McKinstry a one-fourth interest therein, upon the payment of $694.17. The court, however, rendered judgment in favor of W. H. Carter against McKinstry for the sum of $481.67; the same also being decreed a lien upon the interest of McKinstry in the land.
The evidence introduced upon the trial is not preserved in the record, and all that we have before us are the pleadings, verdict, findings of the jury, and the judgment. Where the error of the court is apparent upon the record in the rendition of a judgment, no exception is necessary to bring the case to this court for review. (Lender v. Caldwell, 4 Kas. 339; Zane v. Zane, 5 id. 134; Woolley v. Von Volkenburgh, 16 id. 20; Brown v. Tuppeny, 24 id. 30.) The personal judgment rendered against McKinstry is not supported by the pleadings, and the judgment must be modified to the extent of relieving him from the payment of the same. (Kimball v. Connor, 3 Kas. 415; Green v. Dunn, 5 id. 254; A. T. & S. F. Rld. Co. v. Combs, 25 id. 729.) Upon the trial, on the 19th day of September, 1888, after the plaintiff had introduced all of his evidence, each of the defendants filed a separate demurrer thereto. The court sustained the demurrers of Thomas B Campbell, Caltha C. Campbell, and Ada B. Carter, and rendered judgment in their favor for costs. The petition in error was filed in this court on September 21, 1889.
In the absence of all the evidence, the question whether the trial court committed error in sustaining the demurrers cannot be considered. The record does not show that the motion for a new trial was filed within three days after the 19 th of September, 1888. As to the parties in whose favor the demurrers were sustained, this proceeding was brought too late, under the provisions of § 556 of the civil code. More than a year elapsed after the rendition of the judgment complained of as to them before this proceeding was commenced in this court. As these parties are not properly parties plaintiff or defendant in this court, within the time prescribed by the statute, the proceedings of the trial court concerning the partition of the property in dispute cannot now be inquired into.
“Parties, whether plaintiffs or defendants in the district court, who are affected by errors alleged in the proceedings in that court, must be made parties to proceedings in this court before these errors can be inquired into.” (Ferguson v. Smith, 10 Kas. 394; Bassett v. Woodward, 13 id. 341.)
The judgment of the district court will be modified, as herein stated, and the costs divided.
All the Justices concurring. | [
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Opinion by
Strang, C.:
October 3, 1887, the plaintiff commenced his action against the defendant on the following promissory note:
“$480.80. One day after date, I promise to pay to A. F. Smith, or order, the sum of four hundred and eighty dollars and eighty cents. For value received. Interest at the rate of 6 per cent, per annum.
“Given this 26th day of May, 1885.
Taylor Beeler.”
The petition alleged that no part of said note had ever been paid; and, to show that the cause of action was not barred by the statute of limitations, the petition alleged that on the 14th day of December, 1885, and again on the 6th day of February, 1887, the defendant promised the plaintiff in writing to pay said note, as soon as he was able, which written promises were copied into and made a part of the petition. October 28, 1887, the defendant answered, denying generally all the matters in the petition, and denying under oath the written promises to pay set out in the petition. For a second defense, he alleged that he was not able to pay when the suit was begun; and for a third defense said that on the 4th day of September, 1887, he paid the note sued on in full. The plaintiff replied, denying that the defendant, on the 4th of September, 1887, or at any other time, paid said note or any part of it. The case was called for trial by the court and a jury, whereupon the plaintiff read to the jury the pleadings in the case and rested. Thereupon the defendant also rested. The plaintiff then moved for a judgment on the pleadings, which was overruled. He then moved the court to instruct the jury to return a verdict for the plaintiff for the amount of the note, which motion was also overruled. Thereupon the court, on its own motion, instructed the jury to return a verdict for the defendant, which was done. The jury also answered the following question, submitted by the plaintiff: “"What is the amount of the note in suit with interest? Ans. $810.69.” The plaintiff then moved the court for judgment for the sum of $810.69, the amount found by the jury, and as shown by the pleadings. This motion was overruled. The plaintiff then moved for a new trial, which motion was heard and overruled. The plaintiff brings the case to this court and says the court below erred; that he was entitled to a judgment on the pleadings for the amount of the note.
Was the plaintiff entitled to a judgment on the pleadings? We think not. The petition set up a copy of the note, and alleged written promises to pay within the statute of limitations, and set them out therein. The defendant denied under oath the making of the alleged written promises to pay. No evidence was offered by the plaintiff in support of the alleged promises relied on to take the case out of the statute. The case stood then as upon a petition showing upon its face that the cause of action was barred. An objection to such a petition can be raised at any time, even in arrest of judgment. Objection was raised by the defendant moving for a judgment on the verdict of the jury, which motion was sustained, and judgment rendered for the defendant.
The plaintiff insists that the plea of payment in the defendant’s answer is a waiver of the plea of the statute. We do not think it is a waiver. He had denied under oath the making of the promises relied on to bring the cause of action within the statute. The action was barred then unless the plaintiff prove such promises. The defendant might have paid the note notwithstanding it was barred. And if true, he had a right to so plead, and also to prove the fact. But, as the plaintiff failed to offer any proof to bring the cause of action within the statute of limitations, the defendant was not called on to prove payment. He could rest on his right to recover judgment for costs, on the ground that the plaintiff showed no cause of action within the statute of limitations.
The plaintiff insists that he was entitled to judgment on the special finding of the jury. The jury found simply the amount of the note. They did not find that the defendant owed that sum to the plaintiff, but on the contrary found that the plaintiff had no cause of action against the defend anfc. When there is no conflict between a special finding of the jury and the general verdict, it is not error for the court to enter judgment on the general verdict. The case of Lemon v. Dryden, 43 Kas. 477, settles both of these questions against the plaintiff. We therefore recommend that the judgment of the trial court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
P. J. Lenhard sued the plaintiffs in error in the common pleas court of Sedgwick county for the sum of $350, claimed to be due upon a compromise and settlement for a car load of apples, sold and consigned by him at Pierce City, Mo., to Richardson, Siinon & Co., at Wichita, Kas. The plaintiff below alleged that about the 20th day of January, 1887, he sold and shipped from Pierce City, Mo., to the defendants, at Wichita, a car load of apples, for which he was to receive $569.25; that a dispute arose between the parties as to the quality of the fruit, and the defendants wrote to the plaintiff, and offered by way of a compromise to pay the plaintiff the sum of $350 for the ear load of apples; that the plaintiff accepted the proposition, and agreed, to take the sum named in full satisfaction, but that the defendants refused to pay the same. To this petition the defendants filed a general denial. The jury returned a general verdict in favor of the plaintiff. The jury answered the special findings submitted by the plaintiff as follows:
“1. Is it a fact that, on May 13, 1887, the plaintiff wrote and mailed a letter to defendants, which was received by them, offering to take $350 in settlement of the claims of the plaintiff? Ans. Yes, he did.
“2. Is it a fact that defendants, about May 21, 1887, received a letter again from plaintiff, requesting them to send the $350? A. Yes.
“3. Did plaintiff subsequently express his willingness to accept said sum in settlement? A. Yes.
“4. If so, when and how? A. May 13, 1887, by letter; and by draft, May 24, 1887.
“ 5. Did plaintiff accept the $350 before the offer was withdrawn by the defendants? A. Yes; May 13, 1887.”
The special findings asked by the defendants were answered in the following manner:
“ 1. When was the firm of Richardson, Simon & Co. dissolved? Ans. From evidence, the firm dissolved March, 1887.
“2. Is it a fact that, on May 5,1887, the plaintiff received a letter, dated Wichita, Kas., May 4, 1887, signed ‘Richardson, Simon & Co./ to the effect that Richardson, Simon & Co. offered the plaintiff, by way of compromise of plaintiff’s claim, $350, in full satisfaction of the car of apples sold to the defendants by the plaintiff on January 20, 1887? A. Yes; received letter dated May 4, 1887.
“3. If you answer question 2 ‘yes,’ state who wrote and signed that letter. A. Richardson, Simon & Co.
“4. On receipt of letter by plaintiff, referred to in question 2, did the plaintiff, on May 5, 1887, write and mail a letter to Richardson, Simon & Co., declining and refusing to accept such offer of $350 mentioned in question 2? A. Yes.
“5. Did the plaintiff, on May 10, 1887, write and mail letter to Richardson, Simon & Co., dated at Pierce City, Mo., wherein he offered to take $425 in full satisfaction of plaintiff’s alleged claim against Richardson, Simon & Co.? A. Yes, he did.
“ 6. How far is it from Pierce City, Mo., to Wichita? A. About 230 miles.
“7. How long does it take for a letter to go from Pierce City, Mo., to Wichita, Kas., and vice versa, in the ordinary course of mail? A. About 12 hours.”
The defendants filed a motion for judgment, notwithstanding the general verdict, which was overruled by the court, and this is alleged as error. It is claimed by the plaintiffs in error that the findings of fact show conclusively that the proposition to settle for $350 was never accepted, but was in fact declined, and that the plaintiff below made and submitted a new proposition, which the defendants never accepted. The contention of the defendant in error is, that the offer of May 4 was accepted on the 13th of May, and, as there had been no withdrawal of the proposition, the acceptance was binding upon both parties. From the special findings of the jury we are of the opinion that the minds, of the parties never met so as to constitute a binding obligation. The proposition of the defendants to settle for $350 was declined by the plaintiff on the next day after it was mailed. This was the offer, by mail, which the plaintiff declared on in his petition, and which he alleged was accepted; but the findings do not support the allegations, of the petition. The answer to the fourth finding submitted by the defendants shows that the offer of $350 was declined by the plaintiff. The claim of the defendant in error that the proposition was not withdrawn, and the plaintiff below was at liberty to accept it eight days after it had been made and declined, cannot be maintained. The offer to pay $350 was rejected, and was therefore at an end. A proposition to enter into a contract submitted by mail, to be binding, should be accepted within a reasonable time, and if not so accepted the party making the offer is released from all liability. (Erickson v. Wallace, 45 Kas. 430; Trounstine v. Sellers, 35 id. 447; Maclay v. Harvey, 90 Ill. 525; Dunlop v. Higgins, 1 H. L. Cas. 387; Judd v. Day, 50 Iowa, 247; Martin v. Black’s Executors, 21 Ala. 721; C. & G. E. Rld. Co. v. Dane, 43 N. Y. 240; Taylor v. Rennie, 35 Barb. 272; Moxley’s Administrators v. Moxley, 2 Mete. [Ky.] 309; Oil Co. v. Lead Co., 4 Dill. 431.)
In case the plaintiffs in error have been absent from the state since the original cause of action accrued, suit could be maintained for the value of the apples sold; but, under the special findings of the jury in this case, the judgment of the court cannot be sustained.
It is recommended that the judgment of the common pleas court be reversed, and that the case be remanded, with instructions to enter judgment in favor of the defendants below for costs, upon the special findings of the jury, notwithstanding the'general verdict.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Wyandotte county by Sophia A. Downs against the board of county commissioners, the county clerk, and the county treasurer, to perpetually enjoin them from entering certain alleged illegal taxes upon the county tax-roll, and from collecting or attempting to collect such taxes. At the September term, 1889, the case was tried before the court without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment in favor of the defendants and against the plaintiff for costs; and the plaintiff as plaintiff in error, brings the case to this court for review.
The taxes were levied in attempted pursuance of chapter 214 of the Laws of 1887, to pay for improvements made upon a certain county road sometimes called the “Quindaro road” and sometimes the “ Quindaro boulevard.” "While these improvements were being made the plaintiff’s name was Sophia A. Cobb, but afterward by marriage her name was changed to Sophia A. Downs. On the trial of the case the following, among other facts, were admitted by the parties, to wit:
“It is admitted on the part of counsel for plaintiff herein that the plaintiff signed the petition for the improvement of the Quindaro road, by her agent and attorney in fact, A. H. Cobb, and that plaintiff' knew of the improvements and how the same were to be paid for, and under what law said improvements were being made, and that at no time during the progress of said improvements did the plaintiff or her agent object to the same for any reason whatever. It is further admitted by counsel for plaintiff, that after the petition was signed and the work begun the plaintiff went away, and she only knew of the manner of doing the work through her agent, A. H. Cobb. . . . It is admitted, by and between counsel herein, that A. H. Cobb, the agent and attorney in fact of plaintiff, and one of the attorneys in this case, is the son of the plaintiff in this case in which Sophia A. Downs is plaintiff and the board of county commissioners is defendant; that said A. H. Cobb lives in what is known as (Cobb’s annex,’ within the half-mile limit and within the termini of the improvements of the Quindaro road, and that said A. H. Cobb moved there in December, 1887, and has been a resident there continuously since that time, and had personal knowledge of all the improvements upon said road.”
Among the facts found specially by the court are the following :
“The plaintiff did not live upon her land, which abuts upon the road improved, but she knew how the improvement was being made, that it was under the act of the legislature referred to, and was fully cognizant of the work being done upon the road, and knew that her property would be taxed therefor. She signed the petition praying for the improvement to be made, which petition stated that those whose signatures were attached constituted a majority of the resident land-holders within the territory to be taxed. Her property has been greatly benefited by the improvement, and its value enhanced to an amount far in excess of the tax which is levied against her for the improvement.”
The court also found as a conclusion of law as follows:
“The plaintiff, S. A. Downs, is estopped to set up the illegality of the tax, and the temporary injunction as to her is dissolved.”
As before stated, the court rendered judgment against the plaintiff and in favor of the defendants for costs. We think the cases of Stewart v. Comm’rs of Wyandotte Co., 45 Kas, 708; same case, 26 Pac. Rep. 684, 685; and Comm’rs of Wyandotte Co. v. Hoag, ante., p. 413; same case, 29 Pac, Rep. 758, are controlling and conclusive in this case. The plaintiff in this case, by her attorney in fact, signed the petition for the improvement. She knew what the work was to> be, and had knowledge of the same as it progressed, and knew how payment therefor was to be made, and made no objection. Her real estate was greatly benefited by the improvement and was enhanced in value by reason thereof to an extent much greater than the amount of the tax levied upon it to pay for such improvement. For these reasons, we think she is not entitled to the equitable remedy of injunction to> protect her from the natural cou sequences of her own acts, or from consequences which she at least invited, encouraged and contributed to by her own conduct.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiffs in error, owning a minority interest in the Emporia City Railway Company, a corporation organized under the laws of this state, commenced this action in the Lyon county district court on the 12th day of October, 1889. The principal question in the case determined by the trial court, and the sole question here is, whether a receiver should be appointed. At the trial the court made the following special findings of fact:
“1. The Emporia City Railway Company is a corporation duly organized under the laws of the state of Kansas, and was incorporated about November 3, 1881. It capital stock is composed of 250 shares of $100 each. When this suit was commenced these shares were distributed and owned as follows, viz. t
By the plaintiff John Pinker............................. 60 shares
By the plaintiff D. W. Holderman........................ 16 shares
By the plaintiff John Holderman......................... 8 shares
By the plaintiff Magdalene Holderman.................... 8 shares
By the plaintiff Elizabeth Holderman..................... 8 shares
By the plaintiff J. L. Patty............................... -4 shares
By the plaintiff John H. Patty........................... 4 shares
By the plaintiff D. W. Holderman, administrator, etc....... 4 shares
By the plaintiff H. C. Cross, guardian, etc................. 8 shares
Total............................................. 120 shares
By the defendant Yan E. Holmes......................... 50 shares
By the defendant C. Y. Holmes.................. 1 shares
By the defendant A. F. Crowe............................ 28 shares
By the defendant J. D. Holden........................ — 51 shares
Total.............................................. 130 shares
120 shares
250 shares
“ 2. At the time of the trial the plaintiff D. W. Holderman had sold 14 of his 16 shares, and they were then owned by a person not a party to the suit. Eighty-five per cent, of the capital stock only has been paid in.
“3. The plaintiff John Fluker purchased his said 60 shares of stock about May 17,1887, of his co-plaintiff D.W. Holder-man, at 100 cents on the dollar, at which time the defendants were and ever since have been the owners of a majority of the capital stock, and in the control and management of said corporation.
“4. The board of directors of said corporation are: Van R. Holmes, J. D. Holden, John Fluker, D.W. Holderman, A. F. Crowe, and C. V. Holm.'s. The officers are: Van R. Holmes, president; John Fluker, vice-president; and J. D. Holden, secretary, temporary treasurer, and manager of the railroad.
“5. The 85 per cent, of stock paid in, amounting to $21,-375, was all consumed in placing the road and equipments in operation. A large part of the rails were ‘second-hand/ but with that exception the entire road and its equipments were new and in good condition when the road began to be operated, and up to May or June, 1887, when the last dividend was paid, the road was a fairly successful enterprise, but at that time its business decreased, and ever since it has been operated at a loss. In 1889 its expenses exceeded its receipts $1,235.74. In 1890 the receipts were sufficient to pay operating expenses, but on account of expenses by way of repairs the expenses exceeded the receipts in the sum of $707.21. The deficit for 1887 was $550. The deficit for 1888 was $2,100. Since the corporation began the operation of its street railway, the entire road and its equipments have run down and materially depreciated in value. It being impossible for the officers to make repairs out of the receipts of the road, none were made, except such as were necessary in order to keep the road in operatiop.
“6. The present assets of this corporation consist of the franchise from the city of Emporia, for the use of its streets in the operation of said railway for 20 years from 1881, to gether with 3jr miles of track used and operated by said company, which track is worth $2,850; 20 mules, worth $920; one stable, lot, and building, $600; eight cars, $2,320; 15 per cent unpaid stock, $3,625; total, $10,315.
“ 7. The liabilities of said corporation are as follows: One note to A. F. Crowe, one of the defendants, for $3,000, with interest from August 17, 1889, at 10 per cent., which represented the entire indebtedness at that date, $3,000,; one note in bank, March, 1891, $1,150; unpaid taxes, $132; total, $4,282.
“8. The plaintiffs John Fluker and D. "W. Holderman have, ever since soon after said Fluker purchased his stock, been dissatisfied with the management of the defendant officers of said corporation, and have sought to induce the board of directors to extend the lines of said road and change the manner of operating the road, but the defendants were in the majority, and persisted in pursuing their own methods. This disagreement caused considerable feeling and dissatisfaction on the part of Fluker, and he tried to buy of defendants enough of their 'stock to give him a controlling interest, and to that end made various offers of purchase, offering as high as two dollars for one for 28 shares; but said defendants refused to accept said offer, or any offer which did not include the entire stock of all the said defendants. The said defendants claim to have had no confidence in said Fluker’s business capacity, and agreed together not to permit him to become the owner of a majority of the stock, unless he would purchase all the said defendants owned. Said Fluker then tried to sell his stock to said defendants at different timés and prices, until a short time before this suit was brought he offered to take 40 cents on the dollar for all of his stock, and D. W. Holderman offered to sell to said defendants his stock at 85 cents on the dollar; but the defendants declined to accept any of the offers made. Said Fluker then sought to be employed as manager of said road, and to this end proposed to operate said road without pay for his services, unless he should make the road pay a dividend of 6 per cent, per annum ón all the stock; and to protect the corporation in the fulfillment of this proposition by giving a good bond, which he was able to give, but this proposition was also declined by all the defendants.
“9. The defendant's officers have not received salaries for some time, except the sum of $25 per month to the manager and treasurer, both offices being filled by the same person.
“10. Since 1887 there has been a depression in business generally in the city of Emporia, to which the defendants attribute the falling-off of receipts in the operation of the railway, and insist that the present indications of returning prosperity warrant a continuation of the operation of said road under its present management.
“11. The business of the corporation has been conducted by the defendants to the best of their business ability. No fraud on their part has been shown, the business has been done openly, and in the manner which to the defendants seemed to the best interest of themselves and of the corporation.”
“conclusion op law.
“ The plaintiffs are not entitled to a receiver.”
The right to have a receiver appointed under these findings is strongly insisted upon in this court, and the case of Elwood v. National Bank, 41 Kas., is cited to sustain the contention. It is also claimed as a statutory right under the fifth subdivision of § 254 of the code. Counsel for plaintiffs in error forget that the power of the court to appoint a receiver must be exercised with great care and the utmost caution, and with a due regard for the interests as well as the legal rights of all parties sharing in the property. It is also elementary that the appointment of a receiver is a matter resting largely in the discretion of the court. The trial court has exercised its discretion by refusing to make such an appointment, and unless a very strong showing is made, or this court is satisfied that the discretionary power has not been properly exercised, the conclusion below will not be disturbed.
If a receiver should be appointed in this case, it would be in effect saying that the minority of the stockholders had the right to control the corporate property and dictate its management, because the legal effect of the appointment of a receiver is to take the property out of the control of the owners and suspend for the time being all the functions of the corporation, and there is no fact found by the trial court that would authorize such a proceeding. The sole object of the petition in this action, and its sole prayer, is the appointment of a receiver to take charge of this street railway and manage it under the orders and directions of the court, and the only tangible reason given is, that the minority are dissatisfied with the mode of control pursued by the majority. In other words, the minority want the court to operate the road through the instrumentality of a receivership, rather than permit the majority of the stockholders to do so. The trial court finds that the road has been managed by the defendants in error to the best of their business ability. No fraud is alleged or shown. Open and fair dealing has characterized the entire management.
It may be that, under the fifth subdivision of section 254 of the code, if this corporation was in imminent danger of insolvency, the district court would have the power to appoint a receiver to manage, control and, probably, finally dispose of the corporate property, but we do not think that this record justifies any such conclusion of insolvency.
It seems to us that the trial court acted with wise discretion, and that the judgment ought to be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
A reconsideration of the former decision is asked by both parties. It is insisted in behalf of Eastman, the trustee named by Jones & Everetts, that the instrument under which he took possession and disposed of a portion of the stock of goods is a chattel mortgage, while the opposite party contends that it is a general assignment. If it is a valid mortgage, Eastman is not chargeable as garnishee, and the order discharging him as such should be sustained. If it is to be treated as an assignment, and a valid one, a like result must follow, and it must also be held that the application for a receiver was properly denied. Eastman claims that it was an effort on the part of Jones & Everetts, who became insolvent, to secure their home creditors, and that, as they then had the control of their property, their right to prefer these creditors is beyond question. So far as the record discloses, the debts due to the creditors among whom the assets of the firm were to be distributed by Eastman appear to have been bona fide, and no evidence of dishonesty by any of the parties to the transaction is seen. However, if the instrument executed by Jones & Everetts conveying the property to Eastman is a general assignment, no preferences can be allowed, but the property must be distributed pro rata among all their creditors.
An examination of the instrument, a copy of which was set out in the former opinion, convinces us that it should be classed as an assignment, rather than as a mortgage. While some of its terms are characteristic of a security, or mortgage, yet its general form and principal features classify it as a conveyance and assignment rather than a lien. The usual form of a general assignment is employed, and it appears to have been an attempt on the part of the debtors to avail themselves of the assignment law. In mortgages, the usual method is to convey the property directly to a mortgagee, with a condition of defeasance; but here the debtors recited their insolvent condition, and proceeded to transfer all their property to another in trust for their creditors. The trustee named by them is given absolute possession and control of the property, and the instrument contains no condition that the transfer shall become void if payment of the indebtedness is made before the trust is executed. There is nothing to indicate any agreement or consultation with the creditors as to the execution of the instrument or the selection of the trustee. It appears to have been a voluntary act and choice of the insolvent debtors, who, in view of the fact that they were unable to pay their debts, transferred all their property to a trustee of their own selection, as is usual in cases of general assignment. It seems to us that, in view of the language used and the surrounding circumstances, they transferred to the trustee an absolute and indefeasible title of all their property for the benefit of their creditors, and that the instrument should be treated as a general assignment. It is true, they attempted to direct how the distribution of their estate should be made, but such provision is ineffectual. The distribution is controlled by the statute, and any provision in an assignment inconsistent with the statute must be treated as a nullity. The assignment, however, is not avoided by such a direction, but it inures to the benefit of all the creditors. When the debtors in this instance made an absolute conveyance or assignment of their property to Eastman, their control over the same was ended. Then the statute comes in and provides, in the interest of equity and justice, that the assignee is the trustee for all the creditors, and requires him to make a pro rata distribution among them. (Gen. Stat. of 1889, ¶ 342; Bank v. Sands, 47 Kas. 591, and cases there cited.)
It follows from what has been said that the judgment of reversal first entered by this court must be set aside, and that the orders of the'district judge must be sustained. Yet we think the assignee chosen by the debtors, or the one who may hereafter be selected for the creditors, is the trustee for all the creditors, and that he should be required to distribute the assets among all of them “in proportion to their respective claims.” The rehearing will, therefore, be allowed, and the orders of the district judge will be affirmed.
All the Justices concurring. | [
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Per Cu/riam:
Since the overruling" of the demurrer to the petition in this case, the defendants have waived the issuance of the alternative writ, and answered that, to make the tax levy required by the plaintiff under its contract, the city would exceed the limit prescribed by law for levying city taxes. The plaintiff, regarding the answer as a return to the alternative writ, has filed a motion to quash the same.
It appears by a reference to the exhibit, which is made a part of the answer, that the entire levy for what might be termed city taxes, including the water tax, will not exceed 4 per cent., and is not therefore in excess of the amount authorized by ¶796 of the General Statutes of 1889. As we construe this statute, all state, county and school taxes are excluded.
The motion to quash the return is sustained. | [
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The opinion of the court was delivered by
Johnston, J.:
The Moline Plow Company brought this action against Updyke & Stone to recover $884.82. Ijn its petition it set forth a promissory note, executed by defendants July 4,1888, for $475.56, and asked judgment thereon ; and for a second cause of action it alleged, that during the year 1888 it shipped and delivered to the defendants a large amount of agricultural implements, the ownership of which was to remain in the plaintiff until payment in cash was made by the defendants; and that defendants, after getting possession of the implements, sold the same, and utterly failed to account for the proceeds.' Although it is alleged that a schedule of the implements furnished is attached as an exhibit to the petition, no exhibit is attached, but plaintiff asked judgment on that cause of action for $409.26. At the commencement of the action, plaintiff filed an affidavit to obtain an order of attachment, in which it is alleged that the action is brought for the recovery of $884.82, against the defendants, “for the value of agricultural implements belonging to the plaintiff and disposed of by the defendant and unaccounted for, and for amount due on a promissory note executed by Updyke & Stone July 4, 1888.” It further charges, that the “defendant” has transferred, and is about to transfer, “his” property with the intent to defraud, hinder and delay “his” creditors, and that the debt for which the action was brought had been fraudulently contracted. Upon this affidavit an order of attachment was issued, and levied upon the property of the defendants. They denied the truth of the allegations in plaintiff’s affidavit, and moved to discharge the order of attachment. A hearing was had upon the merits of the motion before the judge of the district court, who sustained the motion and discharged the attachment. The plaintiff complains of this order.
Defendants urge that the order was properly made because of the insufficiency of the affidavit, and also because of the insufficiency of the evidence to sustain the allegations in the affidavit. The averments of the affidavit respecting the nature of the plaintiff’s claim are vague and defective, and the same may be said respecting the second cause of action in the plaintiff’s petition. The affidavit states that there is an indebtedness of $884.82 for the value of agricultural implements and for the amount of a promissory note, without stating what was the value of the implements or the amount of the note. Turning to the petition, however, we can learn the amount of the note and infer that the balance of the claim was for the value of the agricultural implements. There is nothing in the petition, however, to show what the implements were, the price for which they were sold, nor all of the terms of sale. We think, however, that it cannot be held here that the defects in the affidavit are sufficient upon which to predicate the discharge of the attachment. The defective character of the affidavit was not inserted as one of the grounds to vacate the attachment, and it appears not to have been considered by the judge of the district court at the hearing. An affidavit for attachment may be amended for indefiniteness, and if objection was made to the affidavit on that ground the plaintiff would have been permitted to amend, and hence it would be unjust to the plaintiff to permit the defendants to raise the question for the first time in this court. On the merits of the motion, however, the holding must be in favor of the defendants.
This case was heard upon the same testimony as Machine Co. v. Updyke, just decided. There is testimony to sustain the finding of the judge, and, following the decision in that case, there must be an affirmance of the judgment of the district judge in this case.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action for replevin for an undivided two-tbirds interest in six stacks of wheat. A.S. Hunter, a farmer, raised upon the land of his father six stacks of wheat, in all 400 bushels. Two-thirds of said wheat belonged to him and the other third to his father. He was indebted to W. B. Power, assignee of J. E. Hayner & Co., on a note. Power sued him on said note before a magistrate and recovered a judgment, upon which an execution was issued, which was placed in the hands of H. S. George, a constable of the township, who levied the same upon Hunter’s interest in said wheat, and this, action of replevin was brought by Hunter to recover the wheat from the constable. The case was tried by the court and a jury, and resulted in a verdict and judgment for the plaintiff, and the defendant, the constable, brings the case here for review, and assigns the following errors: (1) The court erred in the admission of testimony; (2) error in the instructions given.
The case involves the construction of the seventh subdivision of ¶ 2998 of the law exempting property from levy and sale on execution. The language of the seventh subdivision of said paragraph is as follows:
“The grain, meat, vegetables, groceries and other provisions on hand necessary for the support of the debtor and his family for one year, and also all the fuel on hand necessary for their use for one year.”
The plaintiff below contended that the word “ support,” as used in the statute, is to be construed literally, and means grain enough, in the absence of other property, to support the family for a year. That is, if a debtor has 1,000 bushels of wheat, and no meat, vegetables, groceries or other provisions, he may have sufficient wheat exempt to not only bread his family for one year, but sufficient also to sell, and purchase meat, groceries and other provisions, as well as necessary wearing apparel, for the use of the family for one year; while the contention of the defendant below is, that the word “ support,” as used in the statute, means, and should be construed to mean, grain sufficient to bread the family for one year. The language of subdivision 6 of the paragraph is, “ the necessary food for the support of the stock mentioned in this section for one year.” It will not be said that the word “support,” in this subdivision, means anything more than sufficient food to feed the stock for a year, and we think the word “support” in the seventh subdivision is employed in the same sense, and simply means in connection with the other substantive words therein, grain, meat, or groceries on hand, sufficient to feed the family for one year, or sufficient for the use of the family as food for one year. If a family has on hand 1,000 bushels of wheat, but no meat or groceries, we do not think they may have as exempt sufficient wheat to bread the family a year, and in addition thereto sufficient to sell and purchase meat and groceries, or vegetables or other provisions. If the construction contended for by the plaintiff is correct, then, by the same reasoning, if the family had on hand a stock of groceries worth $1,000, but had no grain, or meat, or vegetables, or “ other provisions,” they might have exempt the whole stock, provided there was no more than sufficient, in addition to the necessary groceries for use of the family, when sold, to purchase grain, meat, vegetables and other provisions for the use of the family for one year. But such a construction in relation to groceries would conflict with the provisions of subdivision 8 of the paragraph. This court has held that the exemption laws of the state must be construed liberally in favor of the debtor, but the provisions of the several subdivisions of the exemption law must not, through a desire to be liberal to the debtor, be warped out of all harmony with each other, nor must such a construction be put upon any of its provisions as to render it uncertain and variable in its application, but it must be so construed as to give it a uniform application to each individual debtor as to all objects of the same class. The amount of exemption, or the benefit to be derived from any particular class of property, cannot be made to' depend upon the possession or want of possession by the debtor of any of the other classes of property made exempt by any of the provisions of the exemption law.
We do not think that the construction put upon the word “support,” in the seventh subdivision of the paragraph referred to, is tenable. It follows, therefore, that the evidence introduced for the purpose of showing what it would cost to support the debtor and his family for a year, and that the whole of his share of the wheat in the six stacks was not worth more than enough to support the family for a year, was improperly received, and constitutes error. The court also erred in the construction put upon the word “ support ” in its charge to the jury. For these reasons, it is recommended that the judgment of the court below be reversed, and the case sent back for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
L. D. Latham & Co., a corporation organized under the laws of the state of Illinois, and doing business in the states of Illinois and Kansas, were engaged, during the years of 1885 and 1886, in building the Kansas City & Southwestern railroad, from Beaumont, in Butler county, to the south line of the state, at Arkansas City. During that time the people of Arkansas City were desirous of securing the building of a railroad from Arkansas City, by way of Geuda Springs, to Caldwell, in Sumner county. The defendants in error were contemplating building the latter road, called the Geuda Springs, Caldwell & Western railroad. The defend ants below were citizens and property-owners of Arkansas City, and, to induce said L. D. Latham & Co. to construct said Geuda Springs, Caldwell & Western railroad, agreed with said construction company, to pay it, when said road was completed within the time agreed upon, the sum of $7,000 in cash, or deliver to it the bonds of the city of Arkansas City in the sum of $10,000 face value. To secure to said company the payment of the said sum of money, or the delivery of said amount in bonds of said city, the plaintiffs herein, who were defendants below, executed to said company their promissory note for the sum of $7,000, in consideration of the building of said road by said company, which note contained a stipulation or condition that the makers thereof could at their option deliver to the payees therein named the bonds of the said city of Arkansas City in the sum of $10,000 par value, in lieu of said $7,000 in cash. This note was given as a guaranty for the delivery of said bonds, but with the understanding that if the makers paid $7,000 in cash that would liquidate and satisfy the agreement. The company built the road. A proposition to vote $7,500 in bonds to the said Geuda Springs, Caldwell & Western railroad was submitted to a vote of the qualified electors of Arkansas City, resulting in favor of the issuance of the bonds, and they were subsequently issued and sold by the defendant company, and the proceeds, $6,437, indorsed on said note or guaranty. The balance not being paid, the instrument was placed in the hands of a justice of the peace with instructions to collect. One hundred and twelve dollars and fifty cents was paid to said justice by some of the makers of said note or guaranty, and the balance was never paid. The instrument itself was lost or stolen while in the hands of the magistrate. Suit was brought to recover the sum remaining unpaid. The defendants below demurred to the second count of the petition. The demurrer was overruled, after which an answer and reply were filed, and the case tried by the court and a jury, resulting in a verdict and judgment for the plaintiffs for $539.92. Motion for new trial was overruled, and the plaintiffs come here alleging that the court erred in overruling the demurrer, in giving and refusing instructions, and in its rulings in relation to the introduction of evidence; and also assert that the verdict is not sustained by the evidence.
Considering these assignments of error in their inverse order, we simply desire to repeat in connection with the last assignment what this court has so frequently said, that as the record discloses evidence in support of the verdict and judgment, this court will not disturb them on the ground alleged in this assignment. We might add, however, in this case, that it seems to us that a clear preponderance of the evidence in the case supports the verdict and judgment.
So far as the next assignment in this order is concerned, it is a sufficient answer thereto to call attention to the fact that the defendants below saved no exceptions to the rulings of the trial court in the admission or rejection of evidence, and, therefore, they are not in a position to ask a review of such rulings. Neither are they in a position to have the instructions given or the instructions asked and refused reviewed, for the reason that they have in the record no valid exception to the instructions given or the instructions refused. There is but a single exception to the instructions given and those refused, as follows: “ By attorney for defendants: We except to the general instructions of the court, and to the refusal of the court to give the special instructions asked by the defendants.” This exception is too general. This court has frequently held that such an exception will not serve to call the attention of the court to defects in the instructions. When counsel want the instructions given by the trial court reviewed in this court, the exception must indicate the instruction objected to, and so of instructions asked and refused. (Bailey v. Dodge, 28 Kas. 72; Fullenwider v. Ewing, 25 id. 69.)
The next and last assignment relates to the' action of the court in overruling the demurrer to the second count of the petition in the case. The grounds for the demurrer, as presented in the brief of the plaintiff in error, are, “defect of parties defendant, misjoinder of causes of action, and insufficient facts to constitute a cause of action.”
The first contention in this connection is, that the city of Arkansas City should have been joined as a defendant with the plaintiffs in error. We do not know of any reason why the said city should have been made a party. The city was not a party to the instrument sued on, nor does the record show that the city at any time was connected in any transaction with the defendants in error. It is true the city issued $7,500 in bonds to the Geuda Springs, Caldwell & Western railroad, and that said bonds were turned over by defendants below in part payment of the sum they agreed to pay the plaintiffs below, and that they received credit on thgir note or written guaranty for the proceeds thereof. The fact that the city issued these bonds did not render the city liable te the plaintiffs below on the instrument sued on in this case. Nor is there anything in the record to show that the plaintiffs ever accepted the city as their, creditor in lieu of the plaintiffs in error. They simply received the bonds voted by the city from the defendants below, sold them, and gave credit for the proceeds by indorsing the amount on the note or guaranty of the plaintiffs in error. As there is but one cause of action stated in the second count of the petition, the complaint that causes of action are improperly joined is without force. An examination of the second count of the petition satisfies us that it states a good cause of action; hence the court committed no error in overruling the demurrer. We therefore recommend that the judgment of the district court be afffirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
This case was dismissed by this court on October 10,1891. (47 Kas. 99; 27 Pac. Rep. 817.) In due time the plaintiffs in error moved for a rehearing, for a reinstatement of the case, and for a decision upon the merits; but a decision upon the merits would not be of any benefit to the plaintiffs in error. It would result in an affirmance of the judgment of the court below. It appears that on September 7, 1888, a judgment was rendered by a justice of the peace of Rooks county in favor of J. E. Mullaney and against Oliver Humes for $7, debt and damages, and for costs of suit $75.95; and immediately afterward the justice of the peace issued an execution on the judgment and placed it in the hands of C. E. Burhans, constable, for collection. Burhans immediately went to the residence of Humes for the purpose of levying upon sufficient of his personal property to satisfy the execution. Humes, at the time, was a married man, and had a wife and two children. He also had 12 head of horses, or, to be more accurate, 12 animals, male, female, old and young, of the horse kind, and also 33 head of neat cattle; but all or very nearly all of this property was mortgaged to secure debts. It does not- appear whether Humes had any other property or not. Humes objected to the constable’s taking of any of his property. Upon this subject Burhans testified, among other things, as follows:
“Ques. Hid you levy that execution on the property of Humes? Ans. I went over there for the property, and he did n’t conseht to let it go, and I did n’t take it that time, and then my wife was sick. I could not leave home; I had Mr. Swan go in my place; deputized him.
“Q,. State how you were received when you went to levy that execution? A. He said he would not let any property go.
<(Q. Make any threats against you? A. No, sir.”
Burhans did not levy upon any of the property, but returned the execution. Afterward, and on September 12,1888, just five days after the rendition of the judgment, the justice of the peace issued another execution and placed it in the hands of R. "W. Swan, as special constable, for the purpose that he might execute the same. Swan went to the residence of Humes, and he testified that he levied upon about 10 horses and about 28 head of neat cattle to satisfy the foregoing execution, and that he left the property in the hands of Humes as his agent to take care of until he should call for it. He testified, among other things, as follows:
“Q,. At the time you went and told him you would leave it in his care as your agent? A. He said he would not consent for that property to go.
“Q,. You say that you told him that you would leave it there as your agent after you had levied upon it? A. Yes, sir.
“Q. What answer did Humes make about holding the property safely for you? A. He said he would hold the property; in case — I understood in case he did n’t file his appeal bond by Monday that I was to come back and he was to satisfy the execution; that is what he told me.”
But Humes testified that no such levy was ever made; that he never consented to any such levy, or to any levy, or that he would hold the property for Swan, or that it might ever be sold on execution. Humes testified, among other things, as follows:
“Q,. I will get you to state if you didn’t turn over the mares and all other property to the constable when he went there. A. No, sir; I never did.
“Q. Didn’t you tell the constable that you considered he had levied upon and was then holding these horses; if you were only allowed you would keep them a day or two more? A. No, sir, I did n’t.
“ Q,. Did n’t you run off the stock after you had agreed with the constable — after you agreed you would keep it safely for him? A. I never agreed that I would keep it for him.
“ Q. Did n’t you run the stock away after the constable had levied on it and left it in your charge? A. No, sir, I did n’t.
“A. Yes, sir. The way he came there, the constable came and wanted it; Mullaney had failed to put up a bond to secure him — indemnifying bond to take this stock — and I told the constable I would not let it go; I wanted to know what kind of bond he put up; he said he did n’t know, but I understood the justice told him the bond was good.
“ Q. When did they do that, before this execution was levied, or afterward? A. That is what I undertook to tell you; he came there and said he was going to take the stock and I would not let him.
“Q. Who did? A. Swan.
“Q,. Who is Swan? A. The deputy constable.
“Q. Levied on it? A. No, sir; he never levied on it.
“Q. Now, Mr. Humes, isn’t it a fact Swan had gone there as constable and levied on this stock and told you he would hold you responsible for its-safe-keeping? A. He did not. He says, ‘Mullaney is trying to bulldoze you right through.’ He says, ‘I will not serve any papers on you at all until the 10 days is up.’”
After Swan was at Humes’s residence, Humes sold, subject to the mortgages, or permitted the mortgagees to take, nearly all the aforesaid property. When Swan returned to Humes’s residence, as he afterward did, he obtained the possession of two mares, two cows, and two colts. On the day the property was to be sold by Swan as constable, Humes appeared, objected to-the sale of the mares and cows for the reason, as he claimed,, that they were exempt from execution, and he warned all persons present not to purchase them. The constable, however,, sold them, and Mullaney, who was the plaintiff in the execution, and who was present and had knowledge of all the facts;, purchased one of the mares. Humes then commenced this present action, which is replevin, in the district court of Rooks county against both Swan and Mullaney, for the recovery of the two mares and the two cows. The sheriff, however, was •unable to obtain the possession of the property by virtue of the writ of replevin, and was therefore unable to deliver the possession of the property to Humes. On the trial, which was before the court without a jury, the findings and judgment were in favor of Humes and against both the defendants, Mullaney and Swan, for a return of the property or its value, to wit, $240, and for costs of suit; and Mullaney and Swan, as plaintiffs in error, bring the case to this court for review.
As the court below found generally in favor of Humes and •against the defendants below, we must assume, in all cases where there is any conflict in the evidence, that the evidence tending to support the claim of Humes is true, and that all the evidence upon the other side or against Humes’s claim is not true; and viewing the evidence in this light, then certainly nothing happened that would estop Humes from claiming that the property in controversy was exempt; and it was exempt. 'Taking this view of the evidence, no levy was made upon any ■of Humes’s property until the constable, Swan, finally took the two mares, two cows and two calves into his possession for the purpose of selling the same. And this was probably in fact the ■only levy that was ever made. We must- so consider it, under the evidence and findings. There are many objections that might be urged against the validity of the constable’s alleged or supposed levy upon the 8 to 12 horses, and upon the 25 to 33 neat cattle, but it is not necessary to state them. Taking the evidence of Humes as true, the property was certainly exempt from the execution, under the statutes of this state and the decisions of this court. (Rice v. Nolan, 33 Kas. 28; Gardner v. King, 37 id. 671.)
Mullaney was the plaintiff in the execution levied upon the property of Humes, and it was at his instance that the execution was issued and levied; and Swan, the constable, was simply his agent in the seizure and sale of the property; hence Mullaney, as well as Swan, is liable for all the property wrongfully seized and sold. ,
It is further claimed that the judgment is-for the recovery of two gray mares, when, in fact, there was only one gray mare, and the other was a sorrel mare. It is true the record by mistake uses the word “gray” in one place where it should have used the word “sorrel;” but yet from the whole of the record it can easily be known what was intended, and the record can easily be corrected by changing the word “ gray ” into the word “ sorrel.” And further, the record shows that at the conclusion of the trial the following proceedings were had, to wit:
“There being no further evidence, the court took the case under advisement; and on the 4th day of December, 1888, the court rendered judgment for plaintiff against both said defendants, for the return of the sorrel mare, or for $125; for the return of the gray mare, or for $85; for the return of the two calves, or for $15 each, and for all costs of this action.”
This certainly shows in detail what kind of judgment was rendered by the trial court, and in this the word “gray” was not used where the word “sorrel” was intended, or where the word “sorrel” should have been used.
No material error was committed by the court below, and upon the merits of the case the judgment of the court below should be affirmed. The motion of the plaintiffs in error will therefore be overruled. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is as follows: After a judgment has been rendered by a justice of the peace against a corporation, and after an execution has been returned “not satisfied,” and after an order upon proper notice has been made by the justice of the peace, under §32, article 4, of the act relating to corporations, awarding an execution in favor of the plaintiff and against a stockholder of such corporation, will an appeal lie from such order of the justice of the peace to the district court? Said § 32 reads as follows:
“Sec. 32. If any execution shall have been issued against the property or effects of a corporation,, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with' any amount unpaid thereon; - but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.”
It appears that on July 20, 1888, the Deepwater Clay Company commenced an action before a justice of the peace of Sedgwick county against the Wichita Exposition & Interstate Fair Association for the recovery of $176.04 and interest. On August 6,1888, a judgment was rendered in favor of the plaintiff and against the defendant for $180.50. Execution was issued thereon and returned not satisfied. The plaintiff then made its motion before the said justice of the peace for an execution against P. V. Healey as a stockholder of the defendant, an alleged corporation. Proper notice was given and the motion was heard before the justice, and the justice awarded an execution against Healey. Afterward, and within 10 days, Healey filed an appeal bond, attempting to take an appeal to the district court. Afterward the Deepwater Clay Company filed a motion in the district court to dismiss the supposed appeal, upon the ground that no appeal will lie in such a case, and that the district court could not obtain jurisdiction to hear and determine the case; and the district court sustained the motion and dismissed the supposed appeal; and for the purpose of reversing this ruling of the district court dismissing such supposed appeal, Healey, as plaintiff in error, brings the case to this court, making the Deepwater Clay Company the defendant in error.
In our opinion the decision of the district court is correct. After the plaintiff in the justice’s court had obtained its judgment, and after, the execution against the defendant corporation was returned not satisfied, the plaintiff then had one or the other, at its option, of two remedies against the stockholders : one by a motion and the other by an action. Such remedies are as follows: One by a “motion in open court, after reasonable notice in writing to the person or persons sought to be charged, and' upon such motion such court may order execution to issue accordingly; or [the other remedy], the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.” (See said § 32.) The plaintiff in the execution in the present case chose to proceed upon a motion and notice, and not by an action and a summons, and it procured only an order and not a judgment. Now is there any appeal from this order f The statute relating to appeals, § 120 of the justices’ act, provides as follows:
“Sec. 120. In all cases, not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered.”
This statute provides only for an appeal from a “final judg merit,” and there is no statute anywhere to be found providing for an appeal from a final order, or from any order. As to final orders, §§ 540, 543, of the civil code, provide as follows :
“Sec. 540. A judgment rendered, or a final order made, by a justice of the peace, or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, or modified in the district court.”
“Sec. 543. An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application.in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.”
Now, Healey might have taken the ruling of the justice of the peace in the present case to the district court for review upon a petition in error, but he could not-take the ruling or the case to the district court upon an appeal, for no statute can be found authorizing the same.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action commenced in the probate court of Pratt county by the plaintiff in error against J. W. Beard, as administrator of the estate of H. N. Walters, deceased, for an order to sell the southeast quarter of section 4, in township 26 south, of range 11 west, as the property of said estate, to satisfy the claim of the plaintiffs in error, amounting to $259.53, which had been allowed by the probate court on the 18th day of October, 1886. To this application the administrator answered, that thé land was exempt; that the widow and son continued to occupy the place as a homestead until December, 1886, when the former deeded her half interest in the land to J. W. Beard, who married the widow after the execution and delivery of such deed; that the real estate had never been partitioned, was still the homestead of Ray Walters, the son, and was not subject to the payment of the debts of the deceased. The administrator asked that Josephine H. Beard, the former wife of the deceased, and Ray Walters, the minor child, be made defendants. The record shows that they appeared and adopted the answer of the administrator, but it is silent as to the appointment of a guardian ad litem for the minor. The court refused to make the order, and the case was appealed to the district court, where it was again tried by the court, and judgment rendered for the defendants.
It appears from the record that H. N. Walters owned and occupied the land in question as a homestead, "with his wife and son. The decedent died on the 17th day of September, 1884. The widow and son continued to reside on the land until some time in December, 1885, when she found herself in such an embarrassed condition that she could not make a living, and her neighbors moved her house to Hainesville, a. distance of two and a half miles, where she kept a small store, and her son attended school and farmed the place, going back and forth from town to the land. • It seems, from the evidence-of the wife, that she still claimed the place as her homestead during her stay in Hainesville, which continued until December, 1886, when she deeded her undivided half interest in the place to J. W. Beard, in consideration of his assuming the payment of certain mortgage for $152, which she had placed upon her interest. On the same day that the deed was made she married the grantee, and she and her minor son have since resided with her husband. The son, in the meantime, has continued to cultivate the farm. There was some evidence which went to establish the fact that there was a sod house, with a. small addition as a granary, still on the place, which was habitable, after the frame building had been moved to Hainesville.
It is claimed by the plaintiffs in error that it is occupancy alone which secures the right to land as a homestead, and when not so occupied and there are existing debts, the land' becomes liable for their payment. The rule contended for does not strictly apply in all cases, especially where the claim is made by the widow, or, as in this case, where the rights of a minor child are involved. The rule has been stated by Mr. Thompson, in his treatise on Homestead and Exemption Laws, § 242: “Although it is necessary that there should have been sufficient occupancy of the premises by the husband or father-prior to his decease to impress them with the homestead character, and the object of the law is to preserve the rights of the survivors to the property in order that they may occupy it, the courts are much more liberal in construing the provisions of the statute having reference to occupancy by the widow or surviving minor children.” Paragraph 2593 of the General Statutes of 1889 wholly exempts the homestead from distribution under the laws of the state and from the payment of debts of the deceased, and makes it the prop erty of the widow and children. This land was unquestionably the homestead of the intestate. The widow was in the actual occupancy of the farm for more than a year after the husband’s death, when, for what seemed to be a necessary cause, she removed temporarily, with the intention, as she claims, of returning to the farm. It was said in the case of Phipps v. Acton, 12 Bush, 377:
“That the widow’s temporary absence from the premises after having rented them out and placed her tenant in possession thereof is not such an abandonment as will forfeit her claims to the homestead under the statute, for she may be said to be in possession by her tenant; and so long as she is in the occupancy or control of the premises, by herself, her agent, or tenant, her right to the homestead will continue; and so far as her infant son is concerned, his right to the homestead does not depend upon his occupancy, but upon his minority; nor can he be deprived of such right, either by his mother’s abandonment of the homestead, or his own failure to occupy the same.”
Chief Justice Horton said, in the case of Vandiver v. Vandiver, 20 Kas. 505:
“No good reason exists why the homestead of the intestate, 'toward which the eye of the creditor need never be turned’ in the lifetime of the debtor, shall, upon his death, be liable for claims of creditors when continued to be occupied by the widow or children of such debtor.
“We are not called upon now to determine the nature of the occupancy after death of a debtor to exempt the homestead from the payment of his debts; but certainly the requirement of 'occupancy’ should be liberally construed, so as to favor the beneficial purposes of this section of the law.”
The application in this case was for the sale of the entire interest in the real estate, including the interest of the minor child. The record does not show that a guardian ad litem was appointed, so that the minor was not really in court. Besides, we do not think the minor’s interest could be sold for the payment of the debts of the intestate. The minor had not abandoned the land; he has continued to cultivate and, so far as he could, occupy the premises. It has been held that minor children are incapable, either by act or declaration, of waiving or abandoning the homestead right. Actual occupancy by them is not necessary. (Shirack v. Shirack, 44 Kas. 653; Booth v. Goodwin, 29 Ark. 633.)
This case is much stronger in favor of the minor than any of the cases cited, because it clearly appears from the evidence that there was no intention upon his part to abandon the premises. He continued in possession from the time of his father’s death to the trial, and has shown no intention of leaving the farm.
Other questions are raised by counsel for plaintiffs in error and urged with force, but the view we take of the law renders it unnecessary for us to consider them, as they become wholly immaterial. We are clearly of the opinion that there was no error in the judgment of the district court, and that the same should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Nuss, J.;
Charles Burhans, a bail bondsman, was convicted of criminal trespass and misdemeanor assault for his efforts in attempting to apprehend Michael Austin after revoking his bond. Following Burhans’ appeal to the Court of Appeals, we transferred the case on our own motion pursuant to K.S.A. 20-3018(c).
The issues on appeal and this court’s accompanying holdings are as follows:
1. Did the district court fail to properly apply the bondsman privilege? No.
2. Did Burhans’ convictions violate his due process rights? No.
3. Did sufficient evidence support Burhans’ convictions? Yes.
Accordingly, we affirm.
FACTS:
Jerome and Margaret Williams, husband and wife, own 2722 Rawhide Lane in Lawrence and have lived there for 20 years. Charles Burhans, a bail bondsman, was seeking to apprehend Mrs. Williams’ brother, Michael Austin, whose bond had been revoked. According to Burhans, a bail agent for ABC Bail Bonds named Michelle Hattemer had asked him to help find Austin and had given him some paperwork, including an application for a bail bond filled out by Hattemer that listed 2722 Rawhide Lane as Austin’s address.
Burhans did not have the actual bail bond, but he testified that Hattemer told him she believed Austin lived at 2722 Rawhide Lane. Burhans did not do a title search, did not check the utilities bills for that address, and did not talk to Yvonne Smith, whom Hattemer listed as the indemnitor on Austin’s bond. Burhans did contact Cablevision, where the bail bond application indicated that Austin worked, but discovered that Austin had never worked there.
Burhans testified that he made several phone calls to 2722 Rawhide Lane, but never spoke to Austin. He had first called under the pretext that he was a landlord returning a deposit for Austin and needed to know where to send the check. According to Burhans, Mrs. Williams told him to send the check to 2722 Rawhide Lane, which she said was Austin’s physical address. Mrs. Williams testified, however, that she never received a call from someone purporting to be Austin’s former landlord. Moreover, she testified that Austin is homeless, has never had a job, and, while welcome to visit her home, has not been welcome to spend the night.
Mrs. Williams also testified that at the beginning of 2002, she had received several calls from a woman named Michelle, who told her that Austin was requesting Mrs. Williams to post bond. Mrs. Williams declined to do so. Michelle later called to see if Austin was there or lived there. Mrs. Williams told Michelle that Austin did not live there, but offered to take a message. She advised Michelle she did not know when she would hear from Austin. She had not seen him for several months.
Around 4 p.m. on April 24, 2002, Burhans came to 2722 Rawhide Lane and falsely told Mrs. Williams he was there to install a house security system. Mrs. Williams responded that she had not requested one and was sure her husband had not either. Burhans stated his appointment was with Mike Austin, and Mrs. Williams said Austin was not there. Continuing with his deception, Burhans then asked if he could step inside the house to use the Williams’ phone to call his security company to verily he had the correct address. Mrs. Williams allowed him inside and handed him a cordless phone.
Hallway through the pretense of making a call, Burhans threw the phone down and announced, “I’m here to arrest Mike Austin.” Mrs. Williams told him that Austin did not live there and asked Burhans to leave. Burhans refused, so Mrs. Williams pushed him out of the doorway with the door and shut the door.
Burhans told Mrs. Williams that he had the right to search for Austin. She warned him that if attempted to reenter the house, she would call the police. Burhans then said to go ahead and call the police. She also told him to get off the property. At about that time, Mr. Williams returned to the house after taking his grandson to baseball practice, and his wife told him what happened.
Burhans left the property and returned to his van, where he called the Lawrence Police Department for a courtesy standby. At 4:55 p.m., Officer Larry Lindsay arrived. Burhans told him he was trying to serve a revocation of bond on Michael Austin. Burhans showed Lindsay bond papers containing Austin’s name and address, but told Lindsay that he did not know if Austin was in the residence. Burhans requested Lindsay’s assistance because he anticipated problems when he went back to the house. Lindsay declined to standby because Burhans told him he had been to the residence, had made no attempts to verily whether Austin was in the residence, and had been asked to leave. Lindsay left at 5:11 p.m.
When Lindsay left, Burhans pulled his handgun from his van, stepped onto the Williams’ driveway, and began heading toward the residence.
Mr. Williams testified he came out his front door onto the driveway and held up his hand to stop Burhans. He told Burhans that Austin was not there and to stop at the end of the driveway. Additionally, Williams told Burhans that he was not welcome to come into the yard and was trespassing. Burhans, now pointing a can of mace at Williams, continued walking up the driveway and insisted that he had a right to come in the house. When Williams told Burhans that the mace did not scare him, Burhans said, “Well, I have this,” pointing to the handgun in his waistband.
Burhans testified that he felt threatened because Williams was coming very fast and yelling obscenities at him. For that reason he pulled his can of mace from his pouch and pointed it at Mr. Williams, warning that he would defend himself if necessary. According to Burhans, since Mr. Williams continued to move toward him, he tapped the can of mace on his handgun for the purpose of stopping Williams. Burhans testified, “at which time he [Williams] pretty much froze in his tracks.”
Mr. Williams testified that Burhans’ tapping the handgun with the mace cannister made him believe Burhans might use either the mace or his gun. Mr. Williams then yelled to his wife to call the police.
As a result of the call, Officer Lindsay returned to the scene at 5:18 p.m. He testified that when he arrived, Burhans and Mr. Williams were having a heated argument in the driveway. He observed that Burhans had a semiautomatic pistol tucked into his waistband, while Mr. Williams appeared to be unarmed.
A second officer, Mike McAtee, then arrived and spoke with Burhans while Lindsay spoke with Mr. and Mrs. Williams. Burhans told McAtee that he had gained entry into the house by tricking the residents. He then showed McAtee the bond revocation papers and stated he had a right to enter the residence because he had the bond paper on Austin.
Mr. Williams then offered to let Burhans search the house for Austin if he was accompanied by an officer and if he left his can of mace and handgun outside. Burhans refused. According to the officers, Burhans said he refused because he knew Austin was not in the residence and that he did not want to go back in there. According to Officer McAtee, Burhans also told everyone present that he would or could return at any time looking for Austin and that he would enter the residence.
After a bench trial, the district court convicted Burhans of criminal trespass and misdemeanor assault, holding in relevant part:
“The individual, Mr. Burhans, given the information that Mr. Austin did not live there, the only information that he had to the contrary was the fact that Michelle Hattemer said that he had listed that address, but indicated that she had found out or at least was told that he wasn’t — didn’t live there, decided, in fact, that he did live there and proceeded back up to the driveway, indicating that he was going back into the place to look around, that [it] was his right to do so.
“The court does not believe under the laws of our state concerning a bail bondsman authority that under the facts of this matter that that was his right to do so. He was told to leave the premises. He came up armed with a can of mace and armed with a firearm and was told to leave.
“He indicated that he used — he tapped his mace onto the firearm in order to stop Mr. Williams from charging him. Of course, Mr. Williams was trying to prevent someone from trespassing onto his property, and he also indicated that he feared that this individual was trying to come back into his house and to his castle, so to speak.
“Certainly the idea of tapping a can of mace onto a firearm would result in what Mr. Williams indicated was a reasonable apprehension of bodily harm from this individual who had been told to leave. Under the facts of this case, the court does not find that the defense of a bail bondsman authority to apprehend or the self-defense apply.”
ANALYSIS:
Several core facts are important to our analysis of the issues.
1. Before Burhans entered the property at 2722 Rawhide Lane, the only information he had that Austin resided there was (a) Michelle Hattemer informing him that this address was listed as Austin’s residence on his bail application and (b) Mrs. Williams allegedly informing him it was Austin’s physical address, which she later denied.
2. The only efforts Burhans himself made to confirm Austin resided at 2722 Rawhide Lane were unsuccessful, with the possible exception of his claim that Mrs. Williams said it was Austin’s physical address, which she later denied.
3. Burhans never observed Austin at 2722 Rawhide Lane, nor communicated with anyone who admitted to ever having observed Austin there.
Issue 1: Did the district court fail to properly apply the bondsman privilege?
Burhans claims that a bail bondsman has broad rights under the common law to enter property which he or she “reasonably believes” serves as the principal’s residence and to arrest the principal. He also claims that a bail bondsman has broad rights under the common law to use such force there as is reasonably necessary to overcome the resistance of a third party who attempts to impede the principal’s recapture. Accordingly, his convictions must be reversed.
The State acknowledges the bondsmans privilege, but argues Burhans was not privileged to enter the property or to attempt to overcome the resistance of Mr. Williams under the facts of this case, particularly because neither Burhans nor his information sources had observed Austin there.
Our standard of review is de novo, since we determine, as a matter of law, the reach of the bondsman privilege. See State v. Harper, 275 Kan. 888, 889, 69 P.3d 1105 (2003).
The right of a bondsman to arrest his principal was discussed in Taylor v. Taintor, 83 U.S. 366, 21 L. Ed. 287 (1872). The Court stated:
“When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modem it is said: ‘The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.’ The rights of the bail in civil and criminal cases are the same. They may doubtless permit him to go beyond the limits of the State within which he is to answer, but it is unwise and imprudent to do so; and if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee.” (Emphasis added.) 83 U.S. at 371-72.
Kansas case law on the subject is minimal but generally consistent with the general principles articulated in Taylor v. Taintor. See, e.g., State v. Midland Ins. Co., 208 Kan. 886, 889, 494 P.2d 1228 (1972). As the Court of Appeals most recently stated in State v. Indemnity Ins. Co. of N. Amer., 9 Kan. App. 2d 53, 56, 672 P.2d 251, rev. denied 234 Kan. 1077 (1984):
“ ‘By the recognizance the principal is, in the theory of the law, committed to the custody of the sureties as to jailers of his own choosing, not that he is, in point of fact, in this country at least, subjected or can be subjected by them to constant imprisonment; but he is so far placed in their power that they may at any time arrest him upon the recognizance and surrender him to the court and, to the extent necessary to accomplish this, may restrain him of his liberty.’ ’’ (Emphasis added.)
A bondsman also has a statutory right to arrest his principal under K.S.A. 22-2809, which generally provides that any person who is released on an appearance bond may be arrested by such person’s surety or any person authorized by such surety and delivered to a custodial officer of the court in any county in the state in which such person is charged.
Because of the paucity of case law in Kansas, we must look to other jurisdictions for specific guidance.
Burhans relies heavily upon a case which appears to be at the outer reaches of the published decisions regarding the bondsman privilege. In Livingston v. Browder, 51 Ala. App. 366, 285 So. 2d 923 (1973), a bondsman entered the residence of the principal’s mother, i.e., a third party’s residence, without her consent and arrested the principal, who apparently was a nonresident. The appellate court reversed the bondsman’s trespass conviction. Among other things, the court found that the right of a surety to capture his or her principal arises not only from common law and Alabama statutory law, but also from private rights established by the bail contract. 51 Ala. App. at 369. The court looked at the arrest powers of a police officer and concluded: “[A] bondsman does have the authority to arrest . . . when he sees his principal in the dwelling; when he properly identifies himself; and when he acts in a reason able manner to enter the dwelling to effectuate his arrest.” 51 Ala. App. at 370.
Livingston does not broadly state, however, as Burhans suggests, that every entry into a third party’s home is reasonable. The court there acknowledged that if the bondsman misrepresented his authority, or did not have authority, he might be guilty of trespass. 51 Ala. App. at 370. Additionally, Livingston is distinguishable from the instant case on critical facts. There, the bondsman actually saw the principal’s car in front of the residence, actually saw him sitting in the living room watching television, and confirmed with the defendant’s mother that he was there. By contrast, Burhans did not see Austin’s vehicle in front of the Williams’ residence, did not see Austin on the property, and certainly did not confirm Austin’s presence with a resident; Mr. and Mrs. Williams both denied it.
Burhans also cites State v. Mathis, 349 N.C. 503, 515, 509 S.E.2d 155 (1998). There, bondsmen searched a house owned by the principal’s mother, but in which the principal resided. The North Carolina Supreme Court rejected that part of the Alabama Court of Appeals decision in Livingston, which held that a surety could enter the home of a third party, i.e., where the principal does not reside, without the consent of the owner. 349 N.C. at 513. It held:
“The right of the surety to enter the residence of his principal and to seize him arises as a matter of contract from the bond agreement which carries with it the principals implied consent that the surety may seize him at any time and may use such force as is reasonably necessary to enter his residence at any time in order to do so. The principal has no authority to authorize the surety, by contract or otherwise, to enter the residence of a third party in which the principal does not himself reside. Therefore, the surety obtains no such power by virtue of the bond agreement.” (Emphasis added.) 349 N.C. at 513.
The Mathis court did hold, however, that when the principal does reside in the house owned by another, the bond agreement allows sureties to break and enter his or her residence even though it may be shared by others. 349 N.C. at 515. Under these circumstances, “Sureties or their agents may use such force as is reasonably necessary to overcome the resistance of a third party who attempts to impede their privileged capture of their principal. But they may use only such force as is reasonably necessary under the circumstances to accomplish the arrest.” 349 N.C. at 514.
The North Carolina Supreme Court held the trial court should have instructed the jury on a bondsman’s common-law and statutory authority and reversed and remanded for a new trial, stating: “[A] jury could find from such evidence that the bondsmen here had a reasonable belief that Mr. Tankersley [principal] was in his or her residence, that Mrs. Nelson [homeowner] was interfering with the arrest, and that-the bondsmen were justified in using the force necessary to enter and seize Mr. Tankersley.” (Emphasis added.) 349 N.C. at 516.
Burhans essentially relies upon this “reasonable belief’ language to support his claim that, under our facts, he had a right to enter the Williams’ property to apprehend Austin. As with Livingston, however, Mathis is of little assistance to Burhans because its important facts are distinguishable from the instant case. Specifically, the principal, Tankersley, actually resided at the location, albeit with numerous family members. Furthermore, as in Livingston, the bondsman surveilling the residence actually saw the principal there. In addition, other bondsmen saw a car appear in the yard outside the residence that the principal had listed as his vehicle on his bond papers.
Even if we were to accept a “reasonable beliefs’ as a basis for the bondsman privilege, it would not protect Burhans under the facts of this case. First, as the district court found:
“Mr. Austin, it appears, gave the address of his sister as his residence. It appears the only verification that the defendant used to determine that was from the information from Michelle Hattemer herself, who indicated that was the address written down on the bond sheet.
“In addition to that, Ms. Hattemer had been told by the alleged victims in this case that this gentleman, Michael Austin, did not live at the residence.”
Second, Burhans did not actually see Austin’s vehicle or Austin himself on the property.
Accordingly, even if 2722 Rawhide Lane were Austin’s residence, which it was not, Burhans could not have had a reasonable belief that Austin actually was in his residence.
The State also cites a number of cases which appear to reject the principle that a bondsman has any right to forcibly enter a third party’s dwelling to arrest the principal.
Foremost among these is State v. Mishler, 660 N.E.2d 343 (Ind. App. 1996). There, the defendant bondsmen were charged with battery and trespass after forcibly entering the apartment of the principal’s mother and knocking her off balance. Apparently, the principal did not reside there, as the court first held that Taylor v. Taintor did not address a bail bondsman’s forcible entry into the dwelling of a third party and was therefore inapplicable.
The Mishler court next indicated it found three states that had rejected the argument that a bail agent has the right to break and enter a third party’s dwelling. 660 N.E.2d at 346; See State v. Tapia, 468 N.W.2d 342, 344 (Minn. App. 1991) (none of the sources from which a bail bondsman derives his or her authority — the common law, state statute, or the bail bondsman’s contract — authorize the bondsman to forcibly enter the private dwelling of a third party to arrest the principal); State v. Lopez, 105 N.M. 538, 543-44, 734 P.2d 778 (Ct. App. 1986) (bail bondsman is not absolved of criminal responsibility for armed, forcible entry of third party residence); and State v. Portnoy, 43 Wash. App. 455, 466, 718 P.2d 805 (1986) (court upheld bondsman’s conviction for assault of a neighbor who was present in the principal’s home, rejecting claim that bondsman may sweep from his path all third parties whom he believes are blocking his search for his client without criminal liability). See also Herd v. State of Maryland, 125 Md. App. 77, 118-19, 724 A.2d 693 (1999) (“The legal conclusion that a bail bondsman is generally entitled to enter, without consent by the homeowner, the home of a third person in an effort to apprehend a fugitive is almost certainly an unreasonable conclusion.”).
The Mishler court joined these jurisdictions, specifically concluding that none of the sources from which a bail agent derived his or her authority — common law, statute, or the bail agent’s contract — authorized a bondsman to forcibly enter the private dwelling of a third party to arrest the principal. 660 N.E.2d at 347. The court also particularly determined that Livingston was inapplicable because the Mishler defendants did not see the principal in the dwelling, but only speculated that he was there. They saw only the mother s car outside; no one saw the principal there; and the mother specifically told the bondsmen that the principal was not there. 660 N.E.2d at 347. The only information they had suggesting the principal was present was from his cousin who advised he might be at his mother s. The court affirmed the convictions.
Accordingly, the majority of the jurisdictions which have addressed the same issue as Burhans’ also would agree that his privilege does not protect him on the Williams’ property when the principal Austin does not reside there, and especially when Austin has not been observed there.
Burhans also argues he had the right to point a can of mace at Mr. Williams and to gesture toward a semiautomatic handgun tucked into the waistband of his pants. He claims that a bail bondsman is allowed to use reasonable force against a third party to effectuate the arrest of his principal. Burhans cites a Virginia trial court decision, Commonwealth of Virginia v. Trevor W. Lyon, 45 Va. Cir. 191 (1998), which is not authoritative, and the previously quoted language from Mathis to support this claim.
The State in turn relies on Mishler, Tapia, Lopez, Herd, and Portnoy to argue that restrictions are placed on the use of force and that several states, i.e., Indiana, New Mexico, and Washington have upheld criminal convictions of bail bondsmen using force against third parties when searching for their principal.
As previously established, Burhans had no right to enter the property at 2722 Rawhide to search for Austin. Accordingly, his use of force there, or threat to use force against Williams was unreasonable and unprotected by any bondsman privilege.
We have found no case protecting any conduct like Burhans’ when the bondsman did not actually see the principal on the property. We therefore need not determine whether Kansas should adopt the far-reaching rationale of Livingston, the “reasonable belief” rationale of Mathis, or the rationale of the majority of the states which have addressed the issue. Under any of these standards, under our facts, Burhans was unprotected.
Issue 2: Did Burhans’ convictions violate his due process rightsP
Burhans next claims that if the district court were correct in holding that the bondsman privilege did not protect his conduct, then that determination violated his right to notice — that his conduct was criminal — under the Due Process Clause of the Fourteenth Amendment.
The due process issue involves a question of law, over which we have de novo review. See Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).
Burhans claims that he could not have known that entering the property of a third party, which the principal had listed as his residence, would be criminal conduct. As support he cites Lopez v. McCotter, 875 F.2d 273, cert. denied 493 U.S. 996 (10th Cir. 1989), where the court found Lopez could not have anticipated the lower court’s holding that the Uniform Criminal Extradition Act modified the established rule that a bail bondsman need not resort to process in rearresting his principal in another state. 875 F.2d at 277. The 10th Circuit Court of Appeals found that no court had previously come to the same conclusion as the lower court and that the statute therefore did not convey a fair warning that Lopez’s conduct was criminal.
Burhans also alludes to Bouie v. City of Columbia, 378 U.S. 347, 351, 12 L. Ed. 2d 894, 84 S. Ct. 1697 (1964) (quoting U.S. v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 [1954]), in which the Court held: “ The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ”
The State responds that the statutes at issue, K.S.A. 2001 Supp. 21-3721, criminal trespass, and K.S.A. 21-3408, assault, have been in effect in Kansas for decades. It also points out that K.S.A. 21-3203 clearly defines when ignorance or mistake as to a matter of either fact or law constitutes a defense:
“(1) A person’s ignorance or mistake as to a. matter of either fact or law, except as provided in section 21-3202, is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the crime.
“(2) A person’s reasonable belief that his conduct does not constitute a crime is a defense if:
(a) The crime is defined by an administrative regulation or order which is not known to him and has not been published in the Kansas administrative regulations or an annual supplement thereto, as provided by law; and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or
(b) He acts in reliance upon a statute which later is determined to be invalid; or
(c) He acts in reliance upon an order or opinion of the supreme court of Kansas or a United States appellate court later overruled or reversed;
(d) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.
“(3) Although a person’s ignorance or mistake of fact or law, or reasonable belief, as described in subsection (2) of this section, is a defense to the crime charged, he may be convicted of an included crime of which he would be guilty if the fact or law were as he believed it to be.” (Emphasis added.)
The State argues that Burhans did not act in reliance upon any of these statutory factors, and therefore, he cannot claim ignorance as a valid defense. It further argues that Burhans admitted that the bondsman privilege to arrest was a gray area of law, but that he acted anyway, without knowing the law or confirming that Austin was present at the residence. Finally, the State contends that even under the broadest understanding of the bondsman privilege, Burhans’ actions were not reasonable and would not constitute a defense.
Although this area of law has not been thoroughly addressed by our courts, we agree with the State. The criminal statutes for trespass and assault are not being construed in a way that would have prevented Burhans from reasonably understanding that his conduct was proscribed; as the State points out, they have been in force for decades. Moreover, as stated earlier, we have been unable to find any case law from any jurisdiction which, under the facts of the instant case, would have even suggested to Burhans that his actions would be privileged. Even in Livingston, which appears to represent the outer reaches of the bondsman privilege, the defendant bondsman actually saw the principal on the property of the third party, a sighting which was confirmed by the homeowner-mother.
We conclude Burhans was sufficiently placed on notice that his actions would be criminal, not privileged. Consequently, his due process rights were not violated.
Issue 3: Did sufficient evidence support Burhans’ convictions?
Burhans also challenges the sufficiency of the evidence for both of his convictions. Our standard of review for claims of insufficient evidence is well-known:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Kunellis, 276 Kan. 461, Syl. ¶ 10, 78 P.3d 776 (2003).
Criminal trespass
K.S.A. 2001 Supp. 21-3721(a) states in relevant part:
“(a) Criminal trespass is:
(1) Entering or remaining upon or in any land, nonnavigable body of water, structure, vehicle, aircraft or watercraft other than railroad property as defined in K.S.A. 2001 Supp. 21-3761 and amendments thereto by a person who knows such person is not authorized or privileged to do so, and:
(A) Such person enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to such person by the owner thereof or other authorized person.” (Emphasis added.)
This court has previously acknowledged:
“The criminal trespass statute is not a model of clarity, and it could be said that the notice provision under the statute seems to be superfluous because the statute also requires knowing unauthorized entry. Our responsibility, however, is to give effect to all portions of the statute and reconcile different provisions ‘in a way that makes them consistent, harmonious, and sensible.’ [Citation omitted.] If reasonably possible, this court is to avoid statutory constructions that make part of a statute surplusage.” State v. Rush, 255 Kan. 672, 677, 877 P.2d 386 (1994).
Nevertheless, the Rush court went on to conclude: “[T]he legislature intended that a trespasser must enter property knowingly and without authority and the State must present evidence of actual or constructive notice in order to support a criminal trespass conviction.” 255 Kan. at 678.
Burhans primarily claims that after he left the house, he had the authority as a bondsman to return to and remain on the property. This position was decided against him in issue 1.
Moreover, the evidence showed that Burhans entered the residence at 2722 Rawhide Lane under the pretext of installing a se curity system, which undermines his argument that he had authority or privilege to enter the property. Additionally, he was told that Austin was not. there and did not reside there. When he announced his true purpose — to arrest Austin — Mrs. Williams told him to leave the house and used the door to push him out. She also told him to leave the property altogether.
Burhans left the property, but soon returned to the driveway. As he approached the house, Mr. Williams told him to stop, that Austin was not there, that Burhans was not welcome, and that he was trespassing. Despite this second notice that Burhans had no authority or privilege to remain, and despite this second order to leave, Burhans continued to approach the house. Burhans clearly reentered the property and remained there in defiance of Mr. and Mrs. Williams’ orders to leave. The evidence, viewed in the light most favorable to the prosecution, supports his conviction for trespass.
Assault
K.S.A. 21-3408 states: “Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.”
Burhans claims that die evidence failed to show that Mr. Williams had a reasonable apprehension of immediate bodily harm. This argument is diluted by Burhan’s own testimony. He testified that Williams was advancing on him, so he tapped the semiautomatic handgun in the waistband of his pants with a can of mace, which had the desired effect; Williams “pretty much froze in his tracks.”
Burhans further claims that Mr. Williams never testified that he had a reasonable apprehension of immediate bodily harm. Even so, Mr. Williams testified that when the handgun was tapped, he believed that Burhans might use either the mace or the gun. When Burhans drew Mr. Williams’ attention to his handgun in his waistband, Mr. Williams yelled to his wife to call the police.
The evidence, when viewed in the light most favorable to the prosecution, supports his conviction for assault.
Burhans also claims that he was using reasonable force to overcome the resistance of a third party who was attempting to impede his privileged search for Austin. His bail bondsman privilege did not protect him under these circumstances, as discussed in issue 1. He was a trespasser and was required to withdraw from the field without provoking potential combat, not to advance on an unarmed homeowner standing on his own property. To paraphrase the United States Supreme Court in Taylor v. Taintor, 83 U. S. at 372, in 1872: If any evil ensue, the bondsman must bear the burden of the consequences.
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The opinion of the court was delivered by
Luckert, J.:
This is a workers compensation case, applying K.S.A. 1999 Supp. 44-501. The Court of Appeals affirmed the Workers Compensation Board’s (Board) determination that Dennis Foos sustained personal injury by accident arising out of and in the course of his employment. However, the Court of Appeals reversed the Board’s award of benefits for Dennis Foos, applying the “intoxication exception” to providing benefits under the Workers Compensation Act, 44-501(d) (2). The Court of Appeals found that the Board erred in determining that the results of a blood test were inadmissible to prove Foos was impaired by alcohol. The Board had determined that the blood test lacked probable cause and its results were inadmissible pursuant to 44-501(d)(2). We granted Foos’ petition for review under K.S.A. 20-3018(b).
Under Supreme Court Rule 8.03 (2003 Kan. Ct. R. Annot. 58), we choose to review both holdings of the Court of Appeals and consider whether: (1) Foos was acting within the course and scope of his employment at the time he incurred his injuries; and (2) Foos’ blood test results were admissible to prove his alcohol impairment, which in turn contributed to his injuries.
We affirm the Court of Appeals, although as to the second holding we do so on different grounds, and reverse the Board’s award of benefits to Foos.
Facts
Dennis Foos worked as a pest control technician for Terminix. His employer assigned him a vehicle to use on his route, which contained approximately 200 accounts. On Friday, May 2, 1997, Foos drove from his home in Solomon to the Terminix office in Topeka for a mandatoiy weekly meeting that began at 8 a.m. After the meeting, he drove to Manhattan to do work for some of his accounts. He worked at Varney’s Bookstore from 10:30 to 10:45 a.m. and at the Children’s Bookstore from 10:45 to 11:05 a.m.
Around 11 a.m., Foos entered a “hole-in-one” contest at the Wildcat Creek Sports Complex. He remembers leaving from there around noon to eat lunch at McDonald’s but has no memories from that time until sometime on Sunday, May 4. Although he had planned to work at some fraternities in Manhattan the afternoon of May 2, those jobs were not performed.
Sometime between 7 and 7:30 p.m. on May 2, Foos’ truck left the roadway and struck two guardrails while he was driving westbound on Interstate 70 between Junction City and Abilene. His Solomon residence is west of Abilene on the interstate. He was thrown from the truck and suffered injuries, including head trauma sufficient to cause permanent severing of his olfactory nerves. He was taken by ambulance to Geary Community Hospital in Junction City where he was stabilized and given morphine. He was then transferred by helicopter to the University of Kansas Medical Center in Kansas City (KUMC).
Foos arrived at KUMC at 11:04 p.m. KUMC medical personnel drew and tested his blood at 11:10 p.m. as part of their regular medical procedures. The tests revealed Foos’ blood contained opiates and an alcohol concentration of .134.
KUMC personnel reported him to be oriented as to person, place, and time. After consenting to surgeiy at 12:50 a.m., as part of his preoperative history he reported to medical personnel at 1:10 a.m. that he had “cocaine 1 week ago/9 beers & shots tonight.”
The Board made the following findings of fact concerning the blood test and its results:
“At that point [of the blood test] there had been no evidence or indication that claimant had used alcohol before the accident. There was no mention of alcohol or the odor of alcohol in any of the records or the odor of alcohol in any of the records or reports by law enforcement, emergency medical, nor hospital personnel. The first indication of alcohol use came at approximately 1:10 a.m. on May 3, 1997, from claimant himself upon questioning by a nurse and an anesthesiologist for the pre-operative history and physical assessment. Neither the nurse nor the anesthesiologist that questioned claimant testified, but tire KUMC Pre-Operative History and Physical Assessment form indicates that claimant reported ‘cocaine 1 week ago/9 beers & shots tonight.’ ”
The administrative law judge (ALJ) held that the test results were admissible under 44-501(d)(2) and denied Foos benefits because his alcohol use contributed to his injuries. He did not reach the parties’ other arguments. The Board reversed the ALJ and awarded Foos benefits after rejecting Terminix’s three main arguments. The Board first found that despite Foos’ deviation from work, he had resumed that work because he was on the highway leading home at the time of the accident. It next excluded the blood test results because Terminix failed to meet the admissibility conditions of K.S.A. 1999 Supp. 44-501(d)(2). Finally, it found that without the blood test evidence, Terminix failed to prove drug or alcohol impairment which contributed to Foos’ injuries.
The Court of Appeals determined the threshold issue in Foos’ favor, i.e., substantial competent evidence supported the Board’s finding that Foos had returned from his deviation from his employment at the time of the accident. It allowed the test results, however, under a “normal course of medical treatment” theory, leading it to conclude Terminix had established that Foos was impaired by alcohol at the time of his accident, that his impairment contributed to his injuries, and that he was not entitled to benefits. It therefore did not reach the third issue, i.e., whether Terminix proved alcohol impairment and its contribution to the injuries through nontest evidence.
Was Foos Acting Within the Course and Scope of His Employment At the Time He Incurred His Injuries P
Before the Court of Appeals, Terminix argued as a threshold matter that the Board erred in finding Foos sustained personal injuiy by accident arising out of the course and scope of his employment under 44-50I(a). It specifically argued that Foos had deviated from his employment after leaving the Children’s Bookstore account and had not returned to his employment at the time of the accident. If Terminix is correct, the other two issues are moot. We agree, however, with the Court of Appeals’ rejection of this argument.
As the court stated:
“The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., provides the grounds upon which relief may be granted in appeals of workers compensation awards entered on or after October 1,1993. See K.S.A. 2001 Supp. 44-556(a).
The court shall grant relief only if it determines any one or more of the following:
‘(4) the agency has erroneously interpreted or applied the law;
‘(7) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole . . . .’ K.S.A. 77-621(c).” 31 Kan. App. 2d at 524-25.
The court correctly observed that whether there has been an accidental injuiy arising out of and in the course of employment is a question of fact, and its determination will not be disturbed by an appellate court where there is substantial evidence to sustain it, citing Harris v. Bethany Medical Center, 21 Kan. App. 2d 804, Syl. ¶ 1, 909 P.2d 657 (1995). It also correctly observed that although there was no direct evidence as to Foos7 destination at the time of the accident, it was the duty of the ALJ and Board to determine “whether Foos had returned to his employment once he was on a direct route home.77 31 Kan. App. 2d at 528.
The court correctly held that substantial competent evidence existed to support the finding that, even if Foos had deviated from his employment for a substantial period of time, he had returned to his employment once he was on the direct route back to his home in Solomon because at the time of his injury Foos was “engaging in an activity contemplated by Terminix while traveling on a public interstate highway.77 31 Kan. App. 2d at 528; see also Kindel v. Ferco Rental, Inc., 258 Kan. 272, 899 P.2d 1058 (1995) (substantial evidence supported the Board’s conclusion that claimant’s death occurred in the course of his employment, despite the fact that he spent 4 hours at a strip club, when his death occurred after resuming the route home).
Were Foos’ Blood Test Results Admissible to Prove His Impairment
Due to Alcohol Which in Turn Contributed to His Injuries?
Terminix argues the Court of Appeals correctly held that Foos7 blood test results were admissible to prove his use or consumption of alcohol impaired him and contributed to his injuries, as provided in 44-501(d)(2). Foos responds that Terminix failed to meet the statute’s conditions to allow admission of the test results into evidence.
Our analysis requires us to interpret the statute. As we stated in In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 221, 883 P.2d 1194 (1994):
“Interpretation of a statute is a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Special rules apply, however, when considering whether an administrative agency ‘erroneously interpreted or applied the law’:
‘The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. . . . [Ijfthere is a rational basis for the agency’s interpretation, it should be upheld on judicial review. . . . [However,] [t]he determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.’ State Dept. of SRS v. Public Employee Relations Roard, 249 Kan. 163, 166, 815 P.2d 66 (1991).”
See K.S.A. 77-621(c)(4).
Moreover, the party asserting the Board’s action is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(l). As a result, Terminix, as the appellant, retains the burden in this court of proving the Board erred. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 245, 75 P.3d 226 (2003).
We begin our analysis by reviewing some of the general tenets of workers compensation law as contained in K.S.A. 1999 Supp. 44-501. If personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the Workers Compensation Act. K.S.A. 1999 Supp. 44-501(a). The burden of proof shall be on the claimant to establish the claimant’s right to an award of compensation and to prove the various conditions on which the claimant’s right depends. K.S.A. 1999 Supp. 44-501(a).
K.S.A. 1999 Supp. 44-501(d)(2), however, provides the employer relief from liability for compensation under the Act “where the injury, disability, or death was contributed to by the employee’s use or consumption of alcohol or any drugs, chemicals, or any other compounds or substances.” This has become known as the “impairment defense” or “impairment exception.” Once the claimant has met his or her burden of proving a right to compensation, the employer has the burden of proving relief from that liability through subsection (d)(2). Cf. Evans v. Frakes Trucking, 31 Kan. App. 2d 211, 216, 64 P.3d 440 (2002).
K.S.A. 1999 Supp. 44-501(d)(2), which provides the basis for the primary dispute in this case, states in relevant part:
“The employer shall not be hable under the workers compensation act where the injury, disability or death was contributed to by the employee’s use or consumption of alcohol . ... It shall be conclusively presumed that the employee was impaired due to alcohol if it is shown that at the time of the injury that the employee had an alcohol concentration of .04 or more. . . . The results of a chemical test shall not be admissible evidence to prove impairment unless the following conditions were met:
(A) There was probable cause to believe that the employee used, had possession of, or was impaired by the drug or alcohol while working;
(B) the test sample was collected at a time contemporaneous with the events establishing probable cause;
(C) the collecting and labeling of the test sample was performed by a licensed health care professional;
(D) the test was performed by a laboratory approved by the United States department of health and human services or licensed by the department of health and environment, except that a blood sample may be tested for alcohol content by a laboratory commonly used for that purpose by state law enforcement agencies;
(E) the test was confirmed by gas chromatography, gas chromatography-mass spectroscopy or other comparably reliable analytical method, except that no such confirmation is required for a blood alcohol sample; and
(F) the foundation evidence must establish, beyond a reasonable doubt, that the test results were from the sample taken from the employee.” (Emphasis added.)
When the Board interpreted the subsection, it held that the probable cause requirement in (d)(2)(A) “makes sense only if [the probable cause] is present before the testing” because “there are privacy issues at stake.” It also observed that there are no exceptions in the statute to the probable cause requirement. Consequently, the Board held, since the events establishing probable cause (Foos’ statements at 1:10 a.m.) occurred after the blood test (at 11:10 p.m.), the statutory requirement was not met and the results were inadmissible.
The Court of Appeals determined: “The Board’s decision to exclude that [test results] evidence is contrary to the established law where blood testing is done by the hospital for the purposes of obtaining relevant medical diagnoses and treatment information.” 31 Kan. App. 2d at 529. While the statute does not contain such an exception, the court found a criminal case, State v. Hickey, 12 Kan. App. 2d 781, 757 P.2d 735, rev. denied 243 Kan. 781 (1988), to be closely analogous, and determined that blood tests taken in the normal course of medical treatment are excepted from the requirements of 44-501(d)(2). We disagree.
Hickey was a criminal case involving a Fourth Amendment issue of whether hospital personnel were agents of the State when drawing a blood sample. In contrast, this case does not involve consti Rational issues and requires application of the workers compensation statutes, which are a legislative creation. Injured Workers of Kansas v. Franklin, 262 Kan. 840, 855, 942 P.2d 591 (1997) (Workers Compensation Act is the legislature’s creation of an adequate substitute remedy for the legislatively abolished common-law right of employees to sue employers for injuries). Accordingly, “[o]ur decisions are replete that Workmen’s Compensation Act undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete, and exclusive, and we must look to the procedure of the act for the methods of its administration.’’Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996) (citing Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P.2d 869 [1960]).
Since the Workers Compensation Act contains no “normal course of medical treatment” exception to the admissibility of a blood alcohol test in 44-501(d)(2), any such exception to the legislature’s scheme must come from the legislature, not the court.
Thus, we review the Board’s interpretation of 44-501(d)(2)(B). The Board and courts reviewing the Board’s interpretation are required to apply the rules of statutory construction. As we said in another workers compensation case:
“The fundamental rule [of statutory construction] to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Where the face of the statute leaves its construction uncertain, the court 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.” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
The legislatxire is presumed to have expressed its intent through the language of the statutory scheme it enacted. State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001) (citing In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 [1998]). Words and phrases that have acquired a peculiar and appropriate meaning in law are to be construed accordingly. Galindo v. City of Coffeyville, 256 Kan. 455, 465, 885 P.2d 1246 (1994). Words which are in common usage should be given their natural and ordinary meaning. Cummings v. City of Lakin, 276 Kan. 858, 862, 80 P.3d 356 (2004).
“Probable cause” is a phrase which has acquired peculiar and appropriate meaning in the law. We have previously explained that “probable cause” refers to a quantum of evidence which would lead one to believe that something (for example, that a crime had been committed) is more than a possibility. City of Dodge City v. Norton, 262 Kan. 199, 203-04, 936 P.2d 1356 (1997) (quoting State v. Clark, 218 Kan. 726, 731, 544 P.2d 1372, cert. denied 426 U.S. 939 [1976]). Thus, paraphrasing 44-501(d)(2)(A) and(B), before test results can be submitted in a workers compensation hearing, there must be sufficient evidence to lead one to believe that it was more than a possibility that the employee used, had possession of, or was impaired by drugs or alcohol while working, and the test sample must have been collected at a time contemporaneous with the events establishing this belief.
“Contemporaneous” is a word of common usage. It is defined as: “Arising, existing, or occurring during the same period of time.” (Emphasis added.) Webster’s II New College Dictionary 243 (1999). The ALJ in this case applied this definition, finding: “The claimant’s admission to a drinking binge establish [ed] probable cause the claimant was impaired. The blood samples were collected within the same period of time as claimant’s admission, which the court finds satisfies the requirement of contemporaneous collection.” (Emphasis added.)
In contrast, the Board’s interpretation substitutes the words “subsequent to” for the words “contemporaneous with.” Such a construction is contrary to the tenets of statutory construction requiring us to presume the legislature expressed its intent through the language it utilized and requiring us to apply the accepted and common meaning of words.
Additionally, the Board’s interpretation, shifts the focus of the statute to one of when tests may be performed as opposed to the legislature’s focus, which was upon when test results will be admissible in hearings. As held by the Court of Appeals panel in Evans, the effect of44-501 is to prohibit admission of results when no probable cause exists independent of the test results. 31 Kan. App. 2d at 215-16. There, the court upheld the Board’s exclusion of the blood test results because they were pursuant to a blood test that was not prompted by probable cause or even a reasonable suspicion, but instead “by nothing more than [the employee’s] status as a commercial driver” who was involved in a fatal accident. 31 Kan. App. 2d at 216. While Terminix argues Evans is distinguishable and irrelevant because there had been no probable cause found, we find it of guidance to the extent it rejected a commercial driver’s “routine blood test” exception to the requirements of 44-501(d)(2). However, we agree with Terminix that Evans is distinguishable because in this case there was probable cause independent of the blood test.
Although the decision in Evans does not cite the Federal Omnibus Transportation Employee Testing Act, 49 U.S.C. § 31306 (2000), that provision mandates testing when a commercial driver, such as Evans, is involved in a fatal accident. Other federal legislation, while not mandating testing, requires federal contractors to assure that the workplace is drug free. See Drug-Free Workplace Act of 1988, 41 U.S.C. § 701 et seq. (2000). This legislation and other drug-free workplace initiatives result in random testing in the workplace.
The legislative history of44-501, in addition to reflecting a trend of lessening the burden upon the employer to establish the impairment exception, reveals that the legislature was aware of the reality of random and mandatory testing in the workplace.
The Kansas Legislature passed its first workers compensation laws in 1911. From the very beginning, the employee’s intoxication was a defense to his or her claim of compensation. “[I]f it is proved that the injury to the workman results . . . from his intoxication, any compensation in respect to that injury shall be disallowed.” (Emphasis added.) L. 1911, ch. 218, sec. 1.
In 1967, the legislature raised the employer’s standard of proof: “[I]f it is proved that the injury to the workman results . . . solely from his intoxication, any compensation in respect to that injury shall be disallowed.” (Emphasis added.) L. 1967, ch. 280, sec. 1.
In 1974, however, the legislature retreated and diluted the employer’s standard of proof when it changed the word “solely” to “substantially”: “[I]f it is proved that the injury to the workman results . . . substantially from his intoxication, any compensation in respect to that injury shall be disallowed . . . .” (Emphasis added.) L. 1974, ch. 203, sec. 1.
In 1993, the legislature further diluted the employer’s standard of proof: “The employer shall not be liable under the workers compensation act where the injury, disability or death was contributed to by the employee’s use or consumption of alcohol... (Emphasis added.) L. 1993, ch. 286, sec. 24.
The 1993 legislature also established specific requirements for admitting a chemical test into evidence to prove presumptive impairment, including the provision at issue in this case of whether there was probable cause contemporaneous with the test and provisions requiring proof of chain of custody, establishing testing standards, and requiring foundation for the test results. L. 1993, ch. 286, sec. 24. The legislative record reveals that these requirements were intended to somewhat balance the reduced burden on the employer. The admission requirements were added pursuant to a proposal by the Kansas Chamber of Commerce and Industry: “KCCI would suggest further protecting employees by including the procedures employers are responsible to follow to receive an employee misconduct ruling in the Kansas Employment Security Law.” Minutes of the Senate Committee on Labor, Industry and Small Business, March 19, 1992, Attachment 5.
It is clear that the legislature, in 1993, followed KCCI’s suggestion and borrowed the language from a statute concerning chemical testing for unemployment compensation purposes, K.S.A. 1992 Supp. 44-706(b)(2), and placed those requirements into K.S.A. 44-501(d)(2) for workers compensation puiposes. These unemployment compensation procedures had not been a part of 44-706 until 1991, when the legislature acted in response to this court’s decision in National Gypsum Co. v. State Employment Security Bd. of Review, 244 Kan. 678, 772 P.2d 786 (1989). See Minutes of the House Committee on Labor and Industry, March 1, 1990, Attachment 1. There, this court had held that an employee who tested positive for marijuana during an employer s drug test did not fit within the statute disqualifying employees for unemployment compensation benefits because the employer did not meet its burden to prove that dre misconduct was “connected with the employee’s work” under K.S.A. 1988 Supp. 44-706(b). In other words, the employer failed to prove that the off-the-job misconduct of marijuana use had an actual on-the-job impact. 244 Kan. at 687. The legislature reacted by creating a presumption that an employee had engaged in misconduct if impaired from alcohol or nonprescription drugs while working. The legislative history reveals that the intent was to allow employers to meet the requirements of the Drug-Free Workplace Act and implement drug-free workplace programs without having to pay employees benefits after they were fired for drug use revealed through drug testing. Minutes of the House Committee on Labor and Industiy, March 1, 1990, Attachment 2.
Thus, the legislature, when placing these same provisions into the Workers Compensation Act, was aware that workplace drug testing would occur with or without probable cause. Because testing might be mandated, either by the government or an employer’s policy, testing might occur contemporaneously witir the investigation of the events causing the worker’s injury. Also, as in this case, the injuiy might require medical treatment and, as a result, testing might occur contemporaneously with investigation.
The legislature, in 44-501(d)(2), established the level for conclusive presumption of workplace impairment at .04. L. 1993 ch. 286, sec. 24. This is the same level at which a presumption arises in proceedings to revoke a commercial driver’s license (K.S.A. 8-1001[j]), but is less than the .08 threshold at which a presumption of impairment arises in criminal prosecutions for driving under the influence (K.S.A. 8-1005) or in administrative proceedings for revocation of a noncommercial driver’s license (K.S.A. 8-1001[h]). At a lower level of impairment, the indicia of impairment may be different or more subtle than those typically examined in a criminal prosecution for driving under the influence. As such, an employer may not have a quantum of evidence sufficient to meet the probable cause standard before the test is performed, yet may under some circumstances be legally required to have the employee tested or, although not mandated, may test under internal policies as part of a drug-free workplace initiative. Also, especially given the low threshold, an employer may decide to test immediately rather than to have the blood alcohol level dissipate because of a delay while an investigation is undertaken. As such, testing may occur before or simultaneous with the investigation of the accident and that investigation may generate a sufficient quantum of evidence to make it more than a possibility that the employee used, possessed, or was under the influence of alcohol or drugs while worldng. In other words, the investigation or other events may establish a basis for probable cause independent of, but contemporaneous with, the taking of the test sample.
Having considered the meaning of the words used by the legislature, the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute would have under different constructions, we conclude that 44-501(d)(2) requires that probable cause arise, exist, or occur contemporaneous with the collection of the test sample in order for a test of alcohol concentration to be admitted into evidence during a workers compensation hearing.
Whether a test sample was collected contemporaneous with the events establishing probable cause is a question of fact, and its determination will not be disturbed on appeal where there is substantial evidence to sustain it. In this case, the ALJ made the finding of fact that the sample was collected during the same time period as the events establishing probable cause and, under the circumstances of this case where these events were part of an emergency room treatment for the injury, the finding is sustained by substantial evidence.
For these reasons, we hold that Foos suffered injury during the course and scope of his employment; that Foos’ blood test results were admissible; that Terminix, by application of the presumption, established that Foos was impaired due to alcohol; and that substantial evidence supports the ALJ’s conclusion that Foos’ consumption of alcohol contributed to the injuiy.
The Court of Appeals is affirmed, and the Board is affirmed in part and reversed in part.
Beier, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
Robert Cordray was found guilty by a jury of one count of reckless second-degree murder and two counts of attempted reckless second-degree murder. He was sentenced to 109 months’ imprisonment. Cordray appealed his convictions. In State v. Cordray, No. 87, 349, unpublished opinion filed March 14, 2003, the Court of Appeals affirmed the conviction of reckless second-degree murder but reversed the convictions of attempted reckless second-degree murder, which is not recognized as an offense by Kansas courts based on State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995). This court granted Cordray’s petition for review of all remaining issues under Supreme Court Rule 8.03(g)(1) (2003 Kan. Ct. R. Annot. 58).
Cordray did not include “a short statement of relevant facts” in his petition for review, as is permitted by Supreme Court Rule 8.03 (a)(5)(d) (2003 Kan. Ct. R. Annot. 59). Thus, we may treat the facts in the opinion of the Court of Appeals as correctly stated. Here are the facts as set out in the Court of Appeals’ opinion:
“In 1997, Cordray purchased an abandoned missile silo. Cordray was plagued by vandalism and theft. On the morning of February 16, 2000, Kristen, Cordray’s daughter, reported that there was a car parked at the bottom of their driveway. Cordray and his family drove towards the car to inquire why it was there. As soon as Cordray passed the gate, the car ‘took off at an extremely high rate of speed’ and a beer can went ‘flying out’ of the car window.
“Cordray followed the car and got the license plate number. When Cordray caught up to the car and it stopped, he approached the driver and told him that he was going to report his license plate number to the authorities. This statement was met with a string of obscenities. The driver would not give Cordray his name. Cordray told the driver to stay away from his property.
“Cordray attempted to reach into the car and turn off the ignition. Mary, Cor-dray’s wife, testified that the driver of the car told Cordray there would ‘be trouble’ if the Cordrays reported his license plate number to the authorities. Cordray believed that the driver and passenger were under the influence of drugs.
“When Cordray and Mary returned home, they called the authorities to report the incident. Jeffrey Hughey, the driver of the car, testified that he picked up his friend James Lyles and drove to the missile silo. Hughey said that he did not go past the ‘no trespassing’ sign. Hughey and Lyles admitted that they were drinking beer.
’ “Hughey testified that as he left Cordray’s property, Cordray’s truck followed him very closely. Hughey testified that after he stopped his car, Cordray tried to pull him out of the car. Hughey admitted that he argued with Cordray. Hughey then testified that Cordray told him he ‘shouldn’t come out again and if we did there would be two dead bodies in his driveway.’ Lyles’ testimony mirrored that of Hughey.
“Later that evening, while driving to his home, Cordray was passed by a red truck going up the road towards his residence. Cordray sat in the car and watched the truck inch forward with its lights off. Cordray could hear the truck’s occupants yelling, although he could not make out what was being said. The truck left abruptly. Cordray followed the truck but was only able to get a partial license plate number. As soon as Cordray returned home, he directed Mary to call the sheriff. Cordray went outside, where he saw a ‘light coming up the gravel road at high speed.’ Cordray stayed at the gate and heard several cars approach his property.
“Cordray testified that he heard someone yell, ‘[W]e’ll get that son of a bitch for you, and goddamn him, that motherfucker, we’ll kill him for you.’ Cordray then took his rifle and walked towards the bottom of the driveway. As soon as Cordray reached the bottom of the driveway, a flashlight illuminated his face. Cordray hid behind a rock.
“Cordray testified that he heard a door open and someone yelled, ‘[T]his is it.’ A gun was fired, and Cordray thought that the shot was being directed at Kristen and Mary. Cordray testified that he stood up and fired one shot in the air. He then fired six more shots ‘in rapid succession,’ claiming that he was aiming at the ground behind the car. He testified that he never intended to hit the car or anyone in the car. Cordray testified that he slipped on a rock at the time he started shooting.
“The car left after the shots were fired. The Cordrays returned to the house, and Maiy called the sheriff. Cordray met with Agent William Halvorsen and provided a history of past experiences with trespassers. He told Agent Halvorsen that he was certain he was shooting behind the car.
“The shooting victims told a different story. Brent Simonis testified that he went to Jeremy Bowman’s home early in the evening. After dinner, the boys went out to cruise in town. Simonis and Bowman got into Scott Brown’s truck, and they drove to the missile silo. Simonis testified that they got out of the truck and were yelling but he could not remember what was said. As they drove back to town, Simonis testified that a vehicle behind them gave chase. Simonis saw a spotlight coming from one of the car’s windows. Simonis acknowledged that he was shining a small flashlight at the driver of the car. The car eventually turned off the road. After reaching the main street, the boys cruised around. Simonis testified that they all felt an ‘[ajdrenaline rush.’ They were excited and enjoyed being chased. After 30 minutes, the boys got in Bowman’s car and headed back towards the silo.
“As they neared Cordray’s home, the boys were honking the horn and yelfing. Bowman positioned his car so that they could leave quickly. Suddenly, Simonis heard a gunshot. Simonis ducked down in the back seat and covered his head with a coat. Simonis saw sparks where bullets were entering the car. The boys left, and during the drive back to town, one of Bowman’s tires went flat. While they were stopped, Simonis removed the coat from over his head. Simonis and Bowman tried to rouse Brown, but they were unsuccessful. Simonis thought there was ‘no way’ that Brown was alive.
“Simonis suffered a small abrasion to his abdomen. Bowman had minor scratches to his forehead and some grass and debris in his hair. Brown received three ‘major’ gunshot wounds: one to the right side of his head at the temple, one to his jaw, and one to his lower neck area. Brown was pronounced dead at the scene.” Cordray, Slip op. at 2-5.
Cordray raises nine issues on appeal. The first four issues deal with the use, méaning, and clarity of the word “reckless” as used in the instructions.
Cordray first cites United States v. Gaudin, 515 U.S. 506, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995), for the proposition that a criminal defendant has a due process right to have the juty properly instructed, on the elements of a crime. Gaudin, however, stands for a much narrower principle. Gaudin was charged with making false statements on Department of Housing and Urban Development (HUD) loan documents. He knowingly inflated the appraised value of the mortgaged property and misrepresented which party was to pay closing costs. Government witnesses explained why the information Gaudin allegedly falsified was important. The trial judge instructed the jury that one of the elements the government was required to prove in order to convict Gaudin was that the alleged false statements were material to the activities and decisions of HUD. “But, the court further instructed, ‘[t]he issue of materiality ... is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements.’ ” 515 U.S. at 508. The Supreme Court held that it was unconstitutional for the trial judge to decide the question of materiality as a matter of law because “[t]he Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge’s refusal to allow the jury to pass on the ‘materiality’ of Gaudin’s false statements infringed that right.” 515 U.S. at 522-23. There is no question in the present case of the trial court’s refusing to let the jury determine an essential element of the charged offense.
Instead, the complaint is that the trial court did not provide the jury with a definition of reckless. No instruction on the definition of reckless was requested. Where the party complaining of the trial court’s failure to give an instruction did not object to the lack of the instruction before the jury retired to consider its verdict, the failure to give an instruction will be reviewed only for clear error. K.S.A. 2002 Supp. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibiliiy that the jury would have rendered a different verdict had the error not occurred. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003).
For the death of Brown, the State charged Cordray with murder in the first degree on alternative theories of premeditated murder and felony murder. The jury was instructed on the lesser offenses of intentional second-degree murder, reckless second-degree murder, voluntary manslaughter, and involuntaiy manslaughter. The jury was instructed that, in order for the State to establish the charge of reckless second-degree murder, it had to prove that Cor-dray killed Brown “unintentionally but recklessly under circumstances showing extreme indifference to the value of human life.”
Cordray contends that a definition of reckless was necessary because when reckless rises to the level of criminal culpability it is more than merely being careless, which is listed as a dictionary synonym of reckless. In other words, he contends that reckless, when used as a criminal element, has a meaning other than its ordinary meaning. Cordray contends that because the legal definition of reckless involves more culpability than its ordinary meaning, permitting the jury to consider the elements instruction for unintentional second-degree murder without a definition of reckless effectively lowered the State’s burden of proof on that offense.
The State points out that challenges to jury instructions require the reviewing court to consider all the instructions together, read as a whole. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002). In this case, in addition to being instructed on the elements of unintentional second-degree murder, killing Brown recklessly under circumstances showing extreme indifference to the value of human life, the jury was instructed on involuntary manslaughter, killing Brown recklessly. The Cordray Court of Appeals stated that if, as in the present case, a jury is instructed on both unintentional second-degree murder and reckless involuntary manslaughter, it “is put on notice that it must determine whether a reckless killing involves an extreme degree of recklessness and is a depraved heart murder or involves a lower degree of recklessness and is involuntary manslaughter.” Slip op. at 8.
In State v. Robinson, 261 Kan. 865, 875-77, 934 P.2d 38 (1997), this court considered whether the phrase “extreme indifference to the value of human life” was “so vague that a jury needs an instruction to explain it.” The court rejected the contention and quoted from the comments to the Model Penal Code depraved heart statute, on which the Kansas reckless second-degree murder státute (now K.S.A. 2002 Supp. 21-3402[b]) is based, to the effect that being more specific in explaining extreme indifference to the value of human life is undesirable. 261 Kan. at 877.
Cordray asserts that the Court of Appeals missed his point, which is that the jury was not properly instructed on either offense due to the trial court’s failure to define reckless. As the Court of Appeals stated, however, different degrees of recklessness are involved in the two offenses. One definition of reckless necessarily would have used the language of the elements instruction for unintentional second-degree murder to distinguish the degrees. Thus, the instructions for the two offenses taken together acceptably conveyed the meanings and degrees of recklessness to the jury. The State’s burden of proof for unintentional second-degree murder is clearly stated in the elements instruction as “recklessly under circumstances showing extreme indifference to the value of human life” and would not have been altered by some further definition of reckless.
Cordray contends that the trial court abused its discretion by telling the jury that no further clarification was needed of the elements instruction for reckless second-degree murder.
During deliberations, the jury asked for “an interpretation or clarification” of the phrase “under circumstances showing extreme indifference to the value of human life.” The trial court responded: “No further clarification of the phrase is necessary. It is for you, the jury, to determine what this phrase means.” Neither the State nor defense counsel objected to the court’s response to the jury’s inquiry. Then defense counsel renewed his objection to the instruction and the applicability of the statute on vagueness grounds.
Under K.S.A. 22-3420(3), a trial court is required to respond to a jury’s request for further information as to any part of the law or evidence. The manner and extent of the trial court’s response, however, rests in the sound discretion of the trial court. State v. Sperry, 267 Kan. 287, 311, 978 P.2d 933 (1999).
Citing State v. Mitchell, 23 Kan. App. 2d 413, 419-20, 932 P.2d 1012 (1997), the Cordray Court of Appeals found no abuse of the trial court’s discretion in its declining to provide an interpretation or clarification of the phrase. Slip op. at 10. In Mitchell, die Court of Appeals determined that “[t]he phrase ‘extreme indifference to the value of human life’ is easily understood,” and rejected a void-for-vagueness challenge to the second-degree murder statute. 23 Kan. App. 2d 413, Syl. ¶ 6. A few months later in Robinson, 261 Kan. 865, this court reached the same conclusion: “A jury is expected to decipher many difficult phrases without receiving specific definitions, such as the term ‘reasonable doubt.’ The phrase ‘extreme indifference to the value of human life’ is not so vague as to be unconstitutionally void.” 261 Kan. at 877.
Cordray argues that Robinson does not control this issue because it involved a constitutional challenge to the statute rather tiran a complaint about the trial court’s failure to provide information in response to the jury’s inquiry. The vagueness issue in Robinson, however, had several aspects, the last of which was whether an instruction was needed to explain the phrase “extreme indifference to the value of human life.” The court rejected the contention that the phrase is so vague that a jury needs an instruction to explain it. 261 Kan. at 877. The court’s reasoning, if not the narrow holding, is applicable to the jury request in the present case. In Robinson, the court concluded that an explanation was not needed for the complained-of phrase; in the present case, the trial court responded to the jury’s’ request for an interpretation or clarification of the phrase by telling it that no further clarification of the phrase was necessary. No convincing ground has been presented to this court for distinguishing Robinson from the present case. Moreover, defense counsel’s acquiescence in the response drafted by the trial judge to the jury’s request weighs heavily against this court finding any abuse of discretion in the response. See State v. Bruce, 255 Kan. 388, 397-98, 874 P.2d 1165 (1994) (defendant’s approving of erroneous language of response to jury request precluded his complaining of it on appeal).
Cordray also contends that K.S.A. 2002 Supp. 21-3402(b) is unconstitutionally vague as applied to the facts of this case.
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and, before a statute may be stricken down, it must clearly appear the statute violates the constitution. State v. Engles, 270 Kan. 530, 531, 17 P.3d 355 (2001).
At trial, Cordray argued that the language of K.S.A. 2002 Supp. 21-3402(b) was unconstitutionally vague. The statute provides that “[mjurder in the second degree is the killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” On appeal, Cordray added that the vagueness of the statute was shown by the jury’s asking for an interpretation or clarification of the meaning of the phrase “extreme indifference to the value of human life.” The Court of Appeals, citing Robinson, 261 Kan. at 877, held that the phrase is not so vague as to be unconstitutionally void. Cordray, Slip op. at 11.
Cordray would distinguish Robinson, as involving the question whether the statutory language was unconstitutionally vague on its face, from the present case where the question is whether the statute was unconstitutionally vague as applied. He states that his defense counsel’s objections at trial were to the applicability of the statute on vagueness grounds. Examination of the record references shows that only after the matter had been submitted to the jury did defense counsel object “to the applicability of the statute on vagueness grounds . . . .’’When Cordray on appeal challenges the statute “as applied,” he refers to trial occurrences rather than to the statute as applied to the circumstances surrounding the shooting death of Brown. Cordray complains that the jury indicated it was not able to understand the statutoiy language and that the jury was not properly instructed on ordinary recklessness or involuntary manslaughter. For penal statutes, the vagueness issue is a due process one concerned with whether, when measured by common understanding and practice, the law gives reasonable notice of what conduct is proscribed or how persons may conform their conduct to tire requirements of law. State v. Adams, 254 Kan. 436, 438-39, 866 P.2d 1017 (1994). In the circumstances of this case, a question of unconstitutional vagueness asks whether the statute gave Cordray reasonable notice that criminal penalties could be imposed for recklessly killing a person in circumstances manifesting extreme indifference to the value of human life. The question is not whether the jury had questions about the scope and meaning of the statute. We can only conclude that what Cordray really con tends is that the statute is unconstitutionally vague on its face and that certain aspects of the jury instructions and questions would support the court’s invalidating the statute as unconstitutionally vague. As the Court of Appeals stated, our court answered this question in the negative in Robinson.
Cordray next complains that the trial court improperly instructed the jury that involuntary manslaughter was a lesser included offense of voluntary manslaughter rather than a lesser included offense of second-degree murder. Thus, the jury was instructed that “[i]n determining whether Robert K. Cordray is guilty of murder in the second degree, you should also consider the lesser offense of voluntary manslaughter.” In a separate instruction, the jury was told: “If you cannot agree that Robert K. Cordray is guilty of voluntary manslaughter, you should then consider the lesser included offense of involuntary manslaughter.” He contends that, as a result, the jury did not have the benefit of comparing the elements of unintentional second-degree murder with the elements of involuntary manslaughter in order to determine the degree of recklessness. Noting that the jury was instructed on all relevant lesser offenses, the Cordray Court of Appeals found no reversible error. Slip op. at 14. The Court of Appeals observed, but did not find it significant, that involuntary manslaughter is not a lesser included offense of voluntary manslaughter. Slip op. at 13.
Cordray repeats his argument that the jury could not understand the meaning of the phrase “extreme indifference to the value of human life.” What is different in this issue is his insistence that it was essential for the jury to compare the language of the involuntary manslaughter elements with those of unintentional second-degree murder in order for it to understand the degree of recklessness expressed in the phrase “extreme indifference to the value of human life.” Defense counsel did not object to the way the trial court instructed on involuntary manslaughter. Hence, the court applies a clearly erroneous standard in its review of the instructions. Davis, 275 Kan. at 115.
Implicit in this court’s decision in Robinson is the rejection of Cordray’s position that the jury could not understand the complained-of phrase without considering the instructions for uninten tional second-degree murder and involuntary manslaughter together. In Robinson, the court concluded that the phrase “extreme indifference to the value of human life” in the elements instruction of unintentional second-degree murder is not so vague that a jury needs an explanation of it. 261 Kan. at 877. Hence, the court determined that the elements instruction of unintentional second-degree murder can stand on its own. An involuntaiy manslaughter instruction was given in Robinson and was the subject of a separate issue — whether the jury would know that involuntary manslaughter and unintentional second-degree murder were separate offenses— but its presence was not a factor considered by the court in concluding that a juiy can understand what extreme indifference to the value of human life is. 261 Kan. at 877.
Cordray also contends that the trial court’s instructing on lesser included offenses, over Cordray’s objection, deprived him of a fair trial by precluding an all-or-nothing defense.
Cordray objected to the trial court’s instructing on any lesser offenses of the first-degree murder charge. Citing K.S.A. 21-3107 and K.S.A. 22-3414, the trial court expressed the opinion that it was obligated to instruct in accord with the evidence rather than with the defendant’s desire.
The Court of Appeals stated that even after any mention of jury instructions for lesser included crimes was removed from K.S.A. 21-3107 in 1998, see L. 1998, ch. 185, sec. 1, “a trial judge still has the affirmative duty to instruct the jury on all lesser included offenses when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of a lesser offense. State v. Bradford, 27 Kan. App. 2d 597, 599, 3 P.3d 104 (2000).” Cordray, Slip op. at 15-16. The Court of Appeals also stated, however, that it is within the discretion of a trial judge not to give lesser included instructions. Slip op. at 16. In his petition for review, Cordray argues that the trial court’s disregard of his objection to lesser offense instructions on account of its mistaken belief that it had no discretion constitutes an abuse of discretion.
We agree that the trial court still has a duty to instruct on lesser included offenses. However, K.S.A. 2002 Supp. 22-3414(3), not Bradford, is authority for that holding. In Bradford, the offense occurred on July 3, 1998, 2 days after the effective date of the amendment to K.S.A. 21-3107(3). Although the current version of the statute applied, the Court of Appeals did not acknowledge that the statute had been amended, and relied on the language of 21-3107(3) as it read prior to the amendment. We do not agree that instructing the jury on the crimes charged or a lesser included crime is discretionaiy.
Until July 1, 1998, when the amendment to K.S.A. 21-3107(3) became effective, a trial court had an affirmative duty to instruct on all lesser offenses for which there was evidence. See State v. Gould, 271 Kan. 394, 402, 23 P.3d 801 (2001). The current versions of the applicable statutes provide:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.” K.S.A. 2002 Supp. 21-3107(2).
“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict . . . .” K.S.A. 2002 Supp. 22-3414(3).
The 1998 amendment to 21-3107 has been said to relieve trial courts of the obligation to sua sponte instruct on lesser included offenses, see Gould, 271 Kan. at 402, but the amendment did not reheve trial courts of the obligation to instruct on lesser offenses. K.S.A. 2002 Supp. 22-3414(3) states that the trial judge shall instruct the jury as to the crime charged and lesser included crimes. What the amendment modified was the standard of review for a failure to so instruct. In the past, a defendant who had not objected to the trial court’s failure to instruct on lesser offenses could have a conviction overturned simply because the trial court failed to so instruct. See, e.g., State v. Weyer, 210 Kan. 721, 504 P.2d 178 (1972). The amendment did not eliminate that possibility, but now a defendant, silent on the subject in the trial court, may have his or her conviction reversed for lack of a lesser offense instruction only if the failure to instruct was clearly erroneous.
Cordray relies on State v. Coffman, 260 Kan. 811, 925 P.2d 419 (1996), in arguing that under the former law a defendant was entitled upon request to present an all-or-nothing defense, i.e., a defendant was entitled to juiy instructions on only the charged offense. In Coffman, defendant requested the trial judge not to instruct on the lesser included offense. The trial judge granted the request, Coffman was convicted of the charged crime, and Coffman unsuccessfully sought relief from his own decision from the reviewing court. The basis of this court’s ruling was not defendant’s right to present ari all-or-nothing defense, but rather the language of 21-3107(3) prior to amendment: “If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.” 260 Kan. at 813. Neither the case law nor statutes relied on by Cordray support a determination that a criminal defendant has a right to an all-or-nothing defense.
Cordray also argues that he was prejudiced by the trial court’s overruling his objection to lesser offense instructions in the particular circumstances of this case. He contends that the jury’s not convicting him of the charged crime demonstrates the real possibility that he would have been acquitted of criminal causation of Brown’s death if the only elements instruction had been for the charged crime. His conjecture as to what the verdict means is nothing more than that. The conviction may as well be seen as demonstrating that the juiy believed Cordray bore criminal responsibility for Brown’s death and would have convicted him of the greater offense if it had been the only option. Also in the realm of pure speculation is Cordray’s contention that the large number of lesser offenses encouraged the juiy to convict him of something.
Cordray next argues that there was insufficient evidence to support the jury’s finding that he recklessly killed Brown in circumstances showing extreme indifference to the value of human life. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
On this issue, the Cordray Court of Appeals stated:
“It was ‘completely dark’ when Cordray fired his gun, and he could only identify headlight and taillight patterns. Cordray testified that he intended to fire warning shots. He fired seven shots in rapid succession while aiming at the ground behind the car.
“During his time in the service as a Marine, Cordray qualified as an expert marksman. Cordray was standing on higher ground than the boys in the car, but he did not know the exact location of the boys.
“Cordray could not see anything but a silhouette. He testified that the car started to leave after the third or fourth shot was fired. Cordray maintained at trial that he slipped on a rock at the time he fired the gun, which caused his aim to go awry.
“It seems that Cordray is sincere when he claims that he did not intend to ldll Brown or injure any of the car’s passengers. However, Cordray fired 7 shots into the dark. Cordray’s actions showed extreme recklessness and total disregard for the value of human life. There was sufficient evidence to support the jury’s decision.” Slip op. at 18.
Cordray simply reiterates his position that the degree of recklessness required for a conviction of unintentional second-degree murder is not present in his actions. He did not dispute the evidence as set out in the Court of Appeals’ opinion.
Here, the evidence, viewed in a light most favorable to the State, showed that Cordray fired into darkness in the direction of a vehicle that he knew was occupied. This evidence was sufficient to enable a rational factfinder to find Cordray guilty of unintentional second-degree murder, and evidence that his shots did not go where he intended does nothing to mitigate the extreme recklessness of his conduct.
Cordray also argues that the trial court improperly excluded evidence bearing on the credibility of the victim witnesses.
The State filed a motion in limine seeking an order prohibiting Cordray from introducing any evidence concerning Bowman and Simonis both being charged with criminal trespass arising out of an after-hours incident which occurred in June 2000 at the Council Grove city swimming pool. For the purpose of the motion, Bowman and Simonis testified outside the presence of the jury. Bow man and Simonis have been friends since fourth grade. During the summer of 2000, Bowman and Simonis spent quite a bit of time together with friends. One night in June of that summer, Bowman and Simonis and two other friends climbed the fence and swam in their boxer shorts at the city pool after it was closed. When police officers arrived, the boys'grabbed their clothes, climbed back over the fence, and ran. Simonis, however, did not make it back over the fence before being stopped by two police officers. When the officers asked Simonis who it was that got away, Simonis said, “I don’t know.” Simonis lied to the officers because he did not want to get his friends in trouble.
The trial court granted the State’s motion, but stated that it would “re-examine the issue if requested, after the witness has testified on direct examination at trial and will consider any memorandum which counsel wish to present.” After Simonis testified, defense counsel asked the trial court to reconsider the admissibility of evidence that Simonis and Bowman trespassed at the city swimming pool. Defense counsel argued that the evidence was relevant to show bias because it would show that Simonis lied to police to help Bowman. The trial court declined to change its ruling.
Cordray argued that under K.S.A. 60-420 he should have been allowed to cross-examine Simonis on his lying to police officers in order to protect his friend Bowman. The statute provides:
“Subject to K.S.A. 60-421 and 60-422, for the puipose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
K.S.A. 60-421 limits evidence of criminal convictions. K.S.A. 6Ó-422(d) provides: “As affecting the credibility of a witness . . . (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.” Cordray contends that K.S.A. 60-422(d) was not applicable to evidence that Simonis lied to police officers to protect Bowman and, furthermore, that bias of a witness may always be shown.
The Court of Appeals’ ruling on this issue seems to have been that exclusion of die evidence was not error because all of what Cordray sought to introduce to undermine Simonis’ credibility had been placed into evidence by other means. The Court of Appeals stated:
“Simonis testified that he was never convicted of criminal trespass. Cordray was able to present evidence to discredit Bowman and Simonis. Simonis testified that he went to the Cordray property two times prior to February 2000. Simonis also spoke of his prior convictions for criminal damage to property. Bowman testified about prior visits to the silo and testified about his long-standing relationship with Simonis.” Cordray, Slip op. at 20.
Although Cordray concedes in his petition for review that other evidence of the relationship and credibility of Bowman and Simonis was admitted, he contends that what was excluded was more probative.
The admission or exclusion of evidence lies within the sound discretion of the trial court. This court’s standard of review of the trial court’s exclusion of evidence that Simonis lied to police officers to protect Bowman is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Cordray, who asserts that the trial court abused its discretion, bears the burden of showing such an abuse of discretion. See State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
With other evidence casting doubt on the credibility of Simonis being presented to the jury, Cordray has a significant burden of showing that the trial court abused its discretion by excluding corroborating evidence. Cordray asserts that the excluded evidence was more probative, but he has not shown why it is not more likely that evidence involving visits to the vicinity of Cordray’s property would bear more directly on Simonis’ credibility in this case than would evidence of an incident at the city swimming pool. Cordray has not shown that the trial court abused its discretion in this regard. In addition, the evidence sufficient to support Cordray’s conviction was set out earlier in this opinion. That evidence was not based on Simonis’ testimony, but rather on Cordray’s testimony, and attacking Simonis’ credibility does not diminish that evidence.
Cordray next argues that the trial court abused its discretion in admitting a photograph taken of the murder victim while he was alive.
The trial court has broad discretion regarding the admission of demonstrative photographs. State v. Kirby, 272 Kan. 1170, 1186, 39 P.3d 1 (2002). In this case, the trial court admitted a photograph of Brown that was offered by the State to identify the victim and show the extent and nature of the wounds he suffered. The Court of Appeals determined that the photograph was relevant. Cordray, Slip op. at 22. The Court of Appeals further stated that Cordray s failure to include the photograph in the record on appeal prevented it from fully assessing the prejudicial nature of the photograph. Slip op. at 22.
In his petition for review, Cordray disputes the photograph’s relevance. He states that the extent of Brown’s wounds was apparent from autopsy photographs that were in evidence and, furthermore, the extent of the wounds was not at issue because the cause of death was stipulated. Cordray, however, provides no record references for the autopsy photographs or stipulation. With regard to his failing to include the complained-of photograph in the record on appeal, Cordray contends that it was unnecessary because the introduction of a photograph of a murder victim taken while alive is inherently prejudicial.
This issue is governed by this court’s opinion in State v. Hebert, 277 Kan. 61, 82 P.3d 470 (2004), where we have determined that there was no abuse of discretion in the admission of a predeath photograph of the murder victim. There was some relevance to the photograph. Hebert was convicted of murdering a law enforcement officer, and the victim’s identity as a law enforcement officer was shown in the photograph of him wearing his uniform. Whether the victim was a law enforcement officer, however, was not a contested issue. In the present case, the photograph’s relevance also may not have been to contested issues, but it served to identify the victim and show the extent of his wounds. The trial court did not abuse its discretion in admitting the predeath photograph of Brown.
Cordray finally argues that he was denied a fair trial by cumulative errors. The Court of Appeals found only one error, instruc tion of the jury on the nonexistent crime of attempted unintentional second-degree murder. The attempted unintentional second-degree murder instruction is not a subject of the petition for review. We find no errors among the issues before this court. Hence, there are no cumulative errors.
Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed in part and reversed in part.
Beier, J., not participating.
Brazil, S.J., assigned. | [
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In a letter dated January 13, 2004, to the Clerk of the Appellate Courts, respondent, Byron J. Moore, of Wichita, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice in Kansas, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281).
■ On March 8, 2002, the respondent was suspended for 2 years by this court. In re Moore, 273 Kan. 154, 41 P.3d 831 (2002). At the time the respondent surrendered his license, three complaints were docketed with the Disciplinary Administrator’s office in which a hearing had been ordered. In those cases there were allegations concerning lack of diligence and unearned retainers.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Byron J. Moore be and is hereby disbarred from the practice of law in 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 Byron J. Moore from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
Dated this 2nd day of February, 2004. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Shirley Lopez was injured in a one-vehicle accident on a Kansas City, Kansas, street, which had become icy after a water main break. In her personal injury action against the Unified Government of Wyandotte County, Kansas, (Unified Government) and the Board of Public Utilities of the Unified Government of Wyandotte County, Kansas, (BPU), the district court granted summary judgment in favor of defendants on the ground that the “snow and ice” exception, K.S.A. 2003 Supp. 75-6104(1), to the general liability provisions of the Kansas Tort Claims Act (KTCA) applied. The Court of Appeals affirmed. Lopez v. Unified Gov’t of Wyandotte County, 31 Kan. App. 2d 923, 75 P.3d 1234 (2003). The court granted Lopez’ petition for review.
In the Court of Appeals, Lopez argued that Kansas courts traditionally have limited application of the snow and ice exception to naturally occurring weather conditions. In Lopez’ view, both the presence of water and the low temperature to freeze it must be produced by nature in order for the statutory exception to apply. Because the water main break was not a natural weather condition, according to Lopez’ argument, the exception is inapplicable. Lopez would have the court read “due exclusively to natural elements” into the phrase “snow or ice conditions” in the statute.
The Court of Appeals rejected Lopez’ argument, concluding that “once a naturally occurring weather condition has a role in developing a roadway hazard, courts must apply the snow and ice exception unless the condition is affirmatively caused by the negligent act of the governmental entity.’ K.S.A. 2002 Supp. 75-6104(1).” 31 Kan. App. 2d at 927. The Court of Appeals stated that its conclusion was compelled by its synthesis of the holdings of Taylor v. Reno County, 242 Kan. 307, 747 P.2d 100 (1987), and Draskowich v. City of Kansas City, 242 Kan. 734, 750 P.2d 411 (1988), cases that directly address the snow and ice exception.
As the Court of Appeals noted, the circumstances of this case fall between the naturally occurring icy conditions in Taylor and the defendants flooding the street in cold weather in Draskowich. Accordingly, the Court of Appeals held that the snow and ice exception applies when a naturally occurring weather condition has some role in creating a roadway hazard unless the condition is affirmatively caused by defendant’s negligent act.
The Court of Appeals agreed with the district court that there was no evidence of such a negligent act in this case. As to the negligent omissions that comprised Lopez’ allegations — failure to warn, barricade, or treat with sand or salt — the Court of Appeals found such failure was not equivalent to affirmative negligent acts.
Lopez also contends that the Court of Appeals failed to recognize a city’s obligation to keep its streets reasonably safe. However, the language of 75-6104(1) undermines Lopez’ reliance on the general obligation to keep public roadways reasonably safe because it addresses specific conditions rather than general circumstances. The plain language of the exception — “snow or ice conditions or other temporary or natural conditions on any public way or other public place due to weather conditions” — tends to support the Court of Appeals’ construction rather than that advocated by Lopez in that natural conditions are stated in the disjunctive to snow or ice conditions. The “or’s” in the exception indicate that any one of the enumerated conditions would support immunity, and the inclusion of “natural conditions” suggests that conditions not entirely due to natural sources may have been contemplated in the legislature’s phrasing. In addition, the meaningful scope of the statute’s proviso, which would impose liability if ice conditions are affirmatively caused by the negligent act of a governmental entity, would be substantially narrowed if the statute were construed also to impose liability on a governmental entity if an icy condition were not from entirely natural sources, including some negligent omission on the entity’s part. Lopez contends that limiting icy conditions to entirely natural ones does not “read” the proviso out of the statute because she can hypothesize occasions when a governmental entity might act affirmatively to exacerbate the danger of a natural accumulation of snow or ice. What we are concerned with, however, is the intent of the legislature. It seems unlikely that the legislature intended for governmental entities to be hable for negligent omissions relating to icy conditions when it expressed its intention to hold governmental entities liable only with regard to icy conditions affirmatively caused by their negligent acts. See K.S.A. 2003 Supp. 75-6104(1).
The KTCA establishes a general rule of liability. Moran v. State, 267 Kan. 583, 593, 985 P.2d 127 (1999). The Act also includes 25 specified exceptions to liability, K.S.A. 2003 Supp. 75-6104(a)-(y), and a catchall phrase: “The enumeration of exceptions to liability in this section shall not be construed to be exclusive.” Lopez cites a case dealing with mortgage redemption statutes, Broadhurst Foundation v. New Hope Baptist Society, 194 Kan. 40, 44, 397 P.2d 360 (1964), for the proposition that doubt should be resolved against an exception. In its opinion, the Court of Appeals stated the related principle that, because immunity is the exception, the burden is on the governmental entity to establish its entitlement to an exception. 31 Kan. App. 2d at 925. In this case, the defendants base their claim of immunity on the statutory snow and ice exception. Lopez urges the court to find reason for doubt in the language and history of the exception, but, as already discussed, a sound construction of the exception does not support her position.
Lopez also cites Holt v. State ex rel. Oklahoma Dep’t. of Transp., 927 P.2d 57 (Okla. App. 1996). In Holt, Okla. Stat. tit. 51, § 155(8) (1996 Supp.) was at issue. Like K.S.A. 2003 Supp. 75-6104(1), it provides that a governmental entity is not liable for damages resulting from “[s]now or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of the state or a political subdivision.” See Holt, 927 P.2d at 59-60. The driver of an oncoming car lost control on an icy patch on the Keystone Dam and struck the Holts’ car head on. It was agreed that the source of the ice on the road was mist formed when water was released through the flood gate of the dam at a time when the temperature was below freezing. The State, which had released the water, was held not to be immune from liability. The Oklahoma Court of Appeals stated: “The purpose of [the snow and ice exception] was to exempt those conditions over which man has no control. In the present case, the moisture necessary for formation of the offending ice was provided by human intervention. That human element removes the present matter from under the umbrella of [the snow and ice exception].” 927 P.2d at 61. Lopez contends that the Oklahoma court held that the exemption applies only to natural weather conditions. In the circumstances of Holt, however, the Oklahoma court was distinguishing simply between ice from strictly natural sources and ice formed in cold temperatures from water released by the State. In other words, it was distinguishing between Taylor-like conditions, which were strictly natural, and Draskowich-Mke conditions, where the BPU turned the water back on and flooded the roadway. It was not considering conditions such as those in the present case where there is no affirmative human act that supplied the water that turned to ice but the source of the water was the artificial water main rather than a natural one. We find the Court of Appeals’ analysis of this third, middle alternative is sound.
We have carefully reviewed the record and briefs of the parties, and we conclude the Court of Appeals was correct. We adopt the opinion of the Court of Appeals and affirm the judgments of the Court of Appeals and the district court.
Beier, J., not participating.
Brazil, S.J., assigned. | [
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Opinion by
Simpson, C.:
Henning commenced this action before a justice of the peace in Nemaha county and obtained a judgment. The railway company appealed to the district court, and Henning again obtained a judgment. The case was tried before the justice and the district court on the following bill of particulars:
“Plaintiff alleges that the Missouri Pacific Railway Company, the defendant, is and was at the time hereinafter set out a corporation created by the laws of the state of Kansas, and that on the 29th day of September, 1888, had the management and control of a line of railroad extending through this county of Nemaha, and running said line from the eastern to the western boundary through said county, and that on the 29th day of September, 1888, the said company, while running one of its trains, carelessly and negligently failed to employ suitable means to prevent the escape of fire from the engine that was running the train, and also permitted dead and dry grass and other combustible materials to remain on the right-of-way of the defendant, near the track of its road, so that by reason of its carelessness and negligence, as aforesaid, fire escaped from the engine of the company and set fire to the dry grass and other material on the right-of-way, and by reason of the continuous body of dry grass and other material, and without any fault of the plaintiff, it was communicated to the premises of the plaintiff, whereon he had hay stacked, and then and there burned and destroyed 24 tons of prairie hay belonging to this plaintiff, of the value of $96.. Plaintiff further says, that he has had to employ and hire an attorney to prosecute said claim, and that $50 is a reasonable attorney’s fee, and that the same is due to the plaintiff from the defendant by reason of the burning of the hay aforesaid. Wherefore, plaintiff prays judgment against the Missouri Pacific Railway Company, a corporation as aforesaid, for the sum of $96 damages, and $50 attorney’s fee; in all, the sum of $146.”
The jury returned a general verdict for Henning for $134, and made the following special findings:
“1. What was the cause of the fire? Ans. By defendant operating one of its trains over its road.
“2. Did the fire escape by accident? A. No.
“3. Did the fire escape by reason of the negligence of the engineer? A. Yes.
“4. Did the fire escape by reason of the engine being out of order? A. No.
“5. If question No. 3 is answered yes, then state fully in what the negligence consisted. A. In allowing fire to escape or be thrown from engine.
“6. If question No. 4 is answered yes, then state.fully in what particular the engine was out of order. A. -.
“ 7. Did the engine that is claimed to have set out the fire complained of have at the time suitable and approved appliances for preventing the escape of fire? A. Yes.
“8. Were such appliances at said time in good repair? A. Yes.
“ 9. If question No. 8 is answered no, then state in what the bad repair consisted? A. -
I. The railway company brings the case here for review, and the first error complained of is the ruling of the trial court against the objection of the company to the introduction of any evidence under the bill of particulars, for the reason that it did not state a cause of action in favor of Henning against the railway company. Counsel for the railway company now argue this question in the light thrown upon it by the evidence and special findings of the jury, while to determine the sufficiency of the allegations in the bill of particulars, and hence test the ruling of the court below, it must be considered wholly and entirely with reference to the specific averments of the bill of particulars, for the ruling of the trial court was made before any evidence was produced. If the bill of particulars did state a cause of action against the railway company, the ruling below was right, and is not affected by the claim that some other act of negligence was proven than the one alleged. If such a defect as that exists in this record as it is now presented, it can be disposed of without reference to this particular question. Confining this assignment of error to its proper limits, we have to say that this court has universally refused to be technical in the construction or consideration of pleadings before a justice of the peace, but to take a liberal view of them and allow some latitude in such matters, because as a rule they are not drafted by professional men, and the beneficial purposes of prompt, speedy and convenient litigation about small matters would be greatly hindered and delayed by their strict construction. We think the bill of particulars states a cause of action against the railway company. It alleges that the company was running one of its trains carelessly and negligently. It alleges that the company failed to employ suitable means to prevent the escape of fire from the engine that was hauling the train; that the company permitted dead and dry grass and other combustible material to remain on the right-of-way and near the track; that by reason of its carelessness and negligence fire escaped from the engine and communicated to the dry grass, etc.
II. ■ The only evidence introduced to prove the amount of attorney’s fees was that of an attorney, who testified that he was acquainted with the value of attorney’s fees in this city, in the prosecution of suits. He then was asked what would be a reasonable attorney’s fee for the preparation of this case and a trial in the justice’s court, afterward an appeal to the district court, and a trial by a jury, where there were three attorneys on the other side. The railway company objected because incompetent, and no proper foundation laid for asking the question. This objection was overruled and excepted to. It is said in support of this objection that the witness was not shown to be an attorney in this case; nor to have known anything about the issues, the amount involved, or the length of time consumed in the trial; nor that he had ever tried a similar case; nor of the extent of the services rendered; and there was nothing to show his qualifications to testify as an expert, except the bare fact that he was an attorney. In view of the fact that this action is one of the most ordinary suits that are brought, and that they are instituted in almost every community in the state, and that every lawyer in practice knows the amount of service that an attorney performs in such a case, and the further fact that the amount allowed as attorney’s fees is very reasonable, we do not think there is much merit or force in these objections. The witness introduced testifies that he is an attorney, and that he was acquainted with the value of attorney’s fees at the place of trial in the prosecution of suits is perhaps enough to qualify him to testify. His last statement is a very general and sweeping one. He was not cross-examined as to his qualifications, or want of them, and under the circumstances we think that there was such an affirmative showing of qualifications as to justify the trial court in overruling the objections.
III. It is next claimed that the general verdict of the jury is against the instructions of the court and the special findings, and instruction No. 10 is confidently relied on to sustain the contention. It is as follows:
“10. The bill of particulars alleges that the defendant negligently failed to employ suitable means to prevent the escape1 of fire from its engine, and also permitted dry grass and combustible material to remain on its right of way, by reason of which acts fire escaped from its engine, and set fire to the property of the plaintiff, causing the damage alleged. All of these facts must be established by a preponderance of the evidence, or plaintiff cannot recover. The mere fact that grass was permitted to remain on the track would not of itself authorize a recovery.”
It will be seen' that this instruction is based upon a strict construction of the bill of particulars, and it may be further stated that the particular act of negligence was not specifically set up in the bill of particulars. The jury do find, however, in answer to special interrogatories, that the fire that did the injury escaped by reason of the negligence of the engineer in allowing it to escape or be thrown from the engine. Now the bill of particulars does charge that the fire was set “ while running one of its trains carelessly and negligently, and failed to employ suitable means to prevent the escape of the fire from the engine.” This means, in the light of the evidence, that.the engineer was careless and negligent; that while the engine was in good order, and had suitable and approved appliances for preventing the escape of the fire, still the negli gence of the engineer permitted it to escape. We construe the instruction to mean that, as to the particular acts of negligence stated therein, they must be proved or no recovery can be had. It is undeniable that the bill of particulars did not charge in specific terms that the fire escaped by the negligence of the engineer, and as a matter of technical construction there may be a variance between the special findings and the averments of the bill, but, as we have said, we will not in this class of pleadings rule strictly, and we find no prejudicial error arising out of the operation of this instruction.
IY. The attorney’s fees are made a part of the judgment by the plain words of the statute, and they are payable to the plaintiff, and not to the attorneys. They can protect themselves if required by a statutory lien.
Y. The claim that the law is unconstitutional, by taking away the defense of contributory negligence, is fully met by the case of Mo. Pac. Rly. Co. v. Merrill, 40 Kas. 404.
We are satisfied that substantial justice has been done, and recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The judgment in this case must be affirmed, upon the authority of Blair v. City of Atchison, 40 Kas. 353. In that case, Blair was the owner of lot 7, in block 16. In this case, Parker is the owner of lots 11, 12, 13, and 14, in block 39. Sixth street, which was paved and curbed, separates block 16 from block 39. Block 16 is on the east side of the street, and block 39 on the west side. After the decision was handed down in the Blair case, the special assessments for paving and curbing Sixth street were reassessed or relevied to the center of blocks 16 and 39, according to the statute as therein construed. It is claimed, however, as the west half of Sixth street, along the whole length of lot 14, in block 39, is occupied with a viaduct approach, and so constructed with stone walls and abutments as to exclude that portion of Sixth street from use, aud renders it incapable of any grading, curbing, or paving, that the assessments or levies on lots 11, 12, 13, and 14, in block 39, which front on Main street, are improper and invalid. The trial court found that the assessments or levies were properly made, and valid. (Blair v. City of Atchison, supra; Olsson v. City of Topeka, 42 Kas. 709.) There is no finding of the trial court that the lots assessed were not benefited. The evidence is not preserved in the record.
It is evident that the assessments under ordinances 976 and 977 were intended as reassessments or relevies for the same improvements for which assessments had been made under ordinances Nos. 931 and 937. The assessments under ordinances Nos. 931 and 937 having been declared null and void by the district court of Atchison county, Parker has no grounds to suppose that the assessments under those ordinances will ever trouble him; therefore it cannot be said that these assessments stand good.
The judgment of the district court will be affirmed. | [
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Opinion by
Strang-, C.:
November 16, 1888, the grand jury of Brown county returned an indictment charging Fran cis Bartley and one Elbert Lawson with the killing of Thomas Moore, on the 4th day of that month. The defendant and Lawson left the country soon after the killing, and neither of them returned until the defendant was brought back on a requisition from Tennessee, where he was arrested in the summer of 1891. Lawson has never been back. Bartley was tried at the November term of the Brown county court in 1891, and convicted of manslaughter in the second degree* A motion for new trial was overruled, and he was sentenced to serve a period of five years in the penitentiary. From this judgment and sentence he appeals to this court.
Counsel for the defendant alleges the following errors on the part of the trial court:
“1. The court erred in requiring the defendant to be arraigned, no copy of the indictment ever having been served on him.
“2. In limiting the defendant to eight peremptory challenges in selecting the jury.
“ 3. In overruling the defendant’s application for a continuance.
“4. In receiving incompetent testimony.
“5. In giving and refusing instructions.”
The circumstances of the case are briefly as follows: In the afternoon of November 4,1888, the defendant, Elbert Lawson and Chafles D. Short drove from Baker to Horton, arriving there about five o’clock, and remaining until toward six o’clock, when they drove across the line into Atchison county, to a place called the “Log Cabin,” a place where liquor was sold. After taking several drinks of beer, they drove back to South Horton, to a house of ill-fame, known as “No. 99.” There were but two persons at this place when they arrived — Kittie Stewart and Hattie Case, inmates of the place. A few minutes after the arrival of the defendant and his companions, ThQtnas Moore and William Dougherty drove up, hitched their team, and entered the place. Both parties were in the house some minutes, when Short was taken sick and went out on the porch. Bartley went out off of the porch, and out in the bushes on an errand personal to himself. Moore and Dougherty left the house, going out through the gate to the vicinity of their team, and Dougherty commenced to untie the team, when Lawson said: “ Which one of you fellows drawed a gun on the party sitting there ? ” This question was asked by Lawson of Moore and Dougherty in relation to drawing a gun on Bartley. Moore said: “ Whoever said we drawed a gun on anybody is a liar.” Lawson replied: “I won’t take that off of any man,” and immediately fired at Moore. So far there is no dispute as to the conversation just previous to the. shooting. The state claims that when Lawson fired he called, “Frank, where is your gun?” and that Bartley arose from where he was sitting and said: “ Here it is, and I will use it,” and thereupon fired at Moore; that Moore turned around and said, “My God, Will., they have killed me!” and fell. The defense claims that Lawson fired both shots; that when he fired the first shot he said, “Frank, where is your gun?” but that Frank made no reply, and Lawson moved a few steps and fired the second shot. When the shooting occurred, Dougherty ran into the timber, and went up to Horton proper. The defendant, Lawson and Short got into their buggy and drove back to Baker, left the wagon at the stable where they got it, and went out into the country, and after hiding around a few days left the community entirely, Bartley going to Washington territory, Oregon, Colorado, Texas, and back to his father’s home in Tennessee. He says he left because he was afraid of a mob; that before he left he sent a party to see counsel, and was advised to go away for the time being.
The first and second assignments of error go to the arraignment of the prisoner without a copy of the indictment first having been served on him, and to the ruling of the court in limiting the defendant to eight peremptory challenges, instead of allowing him 12. Both of these objections are based upon the theory that the indictment in the case charges murder in the first degree. We think counsel is in error in regard to the character of the indictment, and that it only charges murder in the second decree. But whatever its character ma7 be in that respect, the state insisted all the way through the trial that it charged only murder in the second degree, and the court in its charge to the jury said it charged only murder in the second degree, and instructed the jury that they could not find the defendant guilty of murder in the first degree. It follows, therefore, that there is no material error in either of these assignments.
The next assignment relates to the overruling by the court of the defendant’s motion for a continuance. The defendant asked a continuance because of the absence of certain persons who, he alleged, were material witnesses in his behalf. He showed diligence in trying to procure their evidence, and set out in his affidavit what each of the witnesses would testify to if present in court. The state elected to admit such affidavit as the depositions of the absent witnesses. The defendant still insisted upon his right to a continuance, notwithstanding the offer of the state to admit his affidavit as the depositions of the absent witnessess. The court ruled against him and required him to go to trial. Was such ruling error? This question is settled, both by our statute and the decisions of , . . , this court, against the claim of the defendant. That portion of our statute more particularly material in that regard reads as follows:
“ If thereupon the adverse party will consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, . ' . . . no continuance shall be granted on the ground of the absence of such evidence.” (Civil Code, §317.)
Here is a positive statutory declaration that, if the opposite party will consent that the facts alleged in the affidavit shall be read in evidence, no continuance shall be granted. This court has passed upon this question in the following cases, and held that under the statute, when the facts alleged in the affidavit for continuance are admitted as the deposition of the absent witness, the party applying is not entitled to a continuance on account of such absent witnesses: The State v. Thompson, 5 Kas. 159; The State v. Dickson, 6 id. 209; The State v. Adams, 20 id. 311; The State v. Rhea, 25 id. 579; Sanford v. Gates, 38 id. 405; Rice v. Hodge, 26 id. 168; and Brown v. Johnson, 14 id. 377.
The next assignment relates to the admission of evidence of the statements of Charles D. Short, made before the grand jury, to impeach the testimony of said Short in his deposition read in evidence in behalf of the defendant. This is the most serious question raised in the record of the case. While, perhaps, this exact question has never been passed upon by this court, the court has passed upon questions so nearly analogous to this one as to render them controlling in this case. To defeat the application for a continuance, the statute not only provides that the state must consent that the facts alleged in the affidavit in support of the application for a continuance shall be read in evidence, but that they shall be read as the deposition of the absent witness, or witnesses. It is apparent that the law-making power intended that the facts so admitted in evidence as the evidence of the absent witness should have all thé force and effect of a deposition of such witness regularly taken. That being our view of the statute, the question arises, would the statements of Charles D. Short before the grand jury have been admissible to impeach the evidence of said Short in behalf of the defendant, if such evidence consisted of his deposition, regularly taken, and in the absence of any cross-examination of said Short in relation to his said statements before the grand jury? We think not. This question was settled by this court in the case of Greer v. Higgins, 20 Kas. 420. In that case the court says:
“ Where the deposition of a witness has been read in evidence, and the opposing party produces another and conflicting deposition by the same witness in another action between the same parties, of a prior date, and offers to introduce the same to impeach the witness, and the court of its own motion excludes the testimony, held, not error, as the witness sought to be impeached, and the party to be affected thereby, are entitled, of right, to any explanation which the witness can give of the statements imputed to him. The attention of the witness must be first called, on cross-examination, to such prior contradictory statements.”
The questions decided in the following eases are so closely analogous to the one in this case as to be practically controlling here. In Machine Co. v. Clark, 15 Kas. 495, the court says:
“That it is error for the court to allow one party to attempt to impeach the testimony of the witness of the other party by reading to the jury a portion of a deposition formerly taken of the witness, without first having called the attention of the witness to any portion of the deposition, and without giving the witness any opportunity to explain.”
In The State v. Cleary, 40 Kas. 288, the court held, that—
“Before a witness can be impeached by contradictory statements made in his evidence on a former trial, such contradictions must be called to his attention; and it is error to introduce them without having laid any foundation.” (See also The State v. Small, 26 Kas. 209.)
The state insists that it was not error to introduce the statements of Short made before the grand jury without having cross-examined him and laid the foundation therefor, because, as the evidence of Short, introduced in behalf of the defendant, consisted of facts stated in defendant’s application for a continuance which were admitted as the depositions of the witnesses therein named, and the state, therefore, had no opportunity to cross-examine Short and lay a foundation for the admission of his statements made before said grand jury, the rule in relation to laying a foundation for the admission of such evidence should not prevail. It must not be forgotten, however, that the state has admitted the facts stated in the affidavit for continuance as the deposition of Short, and by so doing has, under our statute, forced the defendant to trial without the personal presence of Short as a witness in his behalf, and that, having done so, it would be unjust to the de fendant to thus force him to trial without his witness in court, and then, because he was not there and the state could not on that account cross-examine him and lay the foundation for the admission of impeaching declarations made elsewhere, relax the rule that requires a foundation to be laid for the admission of such statements. Such a course would deprive the defendant of the right under the law to have his witness explain any statements imputed to him outside of his evidence in court.
It was held in New York, in the case of Hubbard v. Briggs, 31 N. Y. 518, and also in Ohio, in the case Bunyan v. Price, 15 Ohio St. 1, that where a deposition of a deceased witness was read in evidence by consent, another and conflicting deposition of the same witness, at a prior trial, could not be read in order to impeach the witness, as the attention of the witness had not been called to the conflict. These cases were cited and approved by this court in Greer v. Higgins, 20 Kas. 425. Eor these reasons we think the court erred in allowing the statements of Charles I). Short made before the grand jury to be given m evidence, to impeach his testimony on the trial of the case in behalf of the defendant-As this case goes back for a new trial, we desire to call attention to the cases of The State v. Hendricks, 32 Kas. 579; The State v. Rhea, 25 id. 576; The State v. Mowry, 37 id. 369; The State v. Mize, 36 id. 187, and The State v. Estep, 44 id. 575, in regard to instructions relating to the degree of the offense charged in the indictment.
It is recommended that the judgment of the district court be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The Badger Lumber Company brought this action to recover $227.50, the value of 70 cedar poles sold by the lumber company to the Marion Water Supply, Electric Light and Power Company, which were used to support electric light wires and lamps, and were connected with the plant and property of the defendant; and the plaintiff asked to have the defendant’s property and its appurtenances charged with a lien for the same. The cause was submitted to the court without a jury, upon the following agreed facts:
“It is agreed that the defendant has erected a system of
water-works and electric light plant and machinery necessary to operate the same on the real estate described in plaintiff’s petition, and has put in the proper machinery for furnishing electric light for the city of Marion, and has a franchise from the city to use the streets of the city for the erecting of poles and stretching electric light wires thereon through the city, and that the defendant erected its poles and stretched its electric wires on the same over different portions of the city; that the. plaintiff furnished poles for stretching the wires for the electric light, and that the defendant used the same in the streets of Marion, and stretched its electric wires upon the same, and hung its lamps thereon, and operated and used the same for the purpose of furnishing electric light for different portions of the city; that none of the material furnished by the plaintiff was actually placed upon the grounds mentioned in plaintiff’s petition, but that the poles so furnished were all used in the streets of the city of Marion, and were connected with the electric light machinery and water-works on defendant’s premises by electric light wires used by the defendant for the transmission of electricity from its premises through the city; that the machinery of the electric light and water-works is all located on the same premises, in the same building, and run by the same engine, but the dynamo for generating electricity, and its machinery, is so constructed and arranged that it can be used separate and apart from the water-works machinery, and that either the water-works or the electric light plant can be operated separately and independently from each other; and have a franchise from the city to lay mains and pipes in the streets of the city, and are operating said system of water-works, and furnishing the inhabitants of said city with water by means of said system of water-works.”
The court awarded plaintiff a personal judgment against the defendant for the amount claimed, but refused to enforce a lien' upon the real estate and appurtenances of the defendant, for the reason —
“That no part of the material for which plaintiff claims a lien was on the real estate of the defendant, or attached thereto-in any manner except by the wires stretched from the poles of the defendant’s electric light machinery situated on said real estate.”
The sole question presented here is, do the poles and wires attached to the building and premises of the defendant constitute an appurtenance of the same within the meaning of the mechanics’ lien law ? The statute, as it existed prior to 1889, when this cause of action arose, provided'that—
“Any mechanic or other person who shall, under contract with the owner of any tract or piece of land, . ... perform labor or furnish material for erecting, altering or repairing any building, or the appurtenance of any building, or any erection or improvement, or shall furnish or perform labor in the putting up of any fixture in or attachment to any such building or improvement, ... or shall build a stone fence, or shall perform labor or furnish material for erecting, altering or repairing any fence on any tract or piece of land, shall have a lien upon the whole piece or tract of land, the building and appurtenances, in the manner herein provided,” etc.
As will be seen, the statute gives a lien for material furnished for a building or its appurtenances, and the same is chargeable upon the land, building, and appurtenances. If the poles and wires can be regarded as an appurtenance of the power house, the plaintiff acquired a lien, and is entitled to enforce it against the property of the defendant. What, then, is an appurtenance? Bouvier’s definition is:
“Things belonging tp another thing as principal, and which pass as incident to the principal thing. . . . Thus, if a house and lot be conveyed, everything passés which is necessary to the full enjoyment thereof, and which is in use as incident or appurtenant thereto.”
“The grant of a thing will include whatever the grantor had power to convey which is reasonably necessary to the enjoyment of the thing granted. Thus, the grant of a house with appurtenances passes a conduit by which water is conducted to it.” (3 Washb. Real Prop., 3 ed., 719; Farmer v. Water Co., 56 Cal. 11; Meek v. Breekenridge, 29 Ohio St. 642; 1 Am. & Eng. Encyc. of Law, 641.)
Here, the principal thing was the power house; and the poles and wires attached thereto were an incident to the power house and machinery. They were necessary to the enjoyment of the principal thing, and indispensable in the transmission of electricity and the lighting of the city. If a conveyance of the property of the company,'with the appurtenances belonging, had been made by the defendants, we do not doubt that the poles and wires would have passed as appurtenant to the premises conveyed. The fact that the poles were planted in the streets of the city, the fee of which is in the public, will not change their character or make them any the less an appurtenant to the premises of the electric light company. The city had granted the company a franchise to plant the poles upon the streets, and hence they were rightfully there, and there can be no question that they were owned by the electric light company. In Redlon v. Barker, 4 Kas. 445, it was held that a hotel sign, attached to a post planted in the street of a city, seven or eight feet from the front of the hotel, and placed there as a permanent sign, was an appurtenant to the hotel; and where the hotel and premises were conveyed, with the appurtenances, without reservation, such conveyance carried the sign and post. It was there urged that, as the owner of the hotel did not have the fee of the street on which the post and sign were standing, they could not be regarded as appurtenances to the premises. But. it was said, as the sign and post were rightfully in the street, and necessary for the uses and purposes of the building to which they were incident, they remained the property of the owner of the hotel, and when he conveyed the hotel premises he parted with his title to the sign and post. In Beatty v. Barker, 141 Mass. 523, the plaintiff undertook to enforce a mechanic’s lien for a drain pipe from the cellar of a house, through the cellar wall, front yard, and out into the street to a connection with the sewer. The house' was built upon a street of the city, and the piping inside of the house and outside of it to the sewer was necessary to the use of the house, and was included in the contract for building it. It extended 27 feet beyond the street line, and the fee of the street was not in the owner of the house. The court ruled that the contractor was entitled to a lien for the piping, and stated that it is im material whether it was inside or outside the walls of the house, or whether it was above ground or under ground, or whether it extended one foot or 30 feet. It is immaterial also whether the fee of the land in the street was, or "was not, in the owner of the lot. It must be assumed that the pipe was rightfully laid to the sewer, even if the fee of the street was ■not in the respondent. The pipe did not become the property of the owner of the fee of the street, but belonged to the owner of the house, and he had an interest in the soil of the street to sustain his pipe, which would pass by a deed of the lot. (See also Philbrick v. Ewing, 97 Mass. 134; Factory v. Batchelder, 3 N. H. 190; Carpenter v. Leonard, 5 Minn. 155; Milling Co. v. Remick, 1 Ore. 169; Pullis v. Hoffman, 28 Mo. App. 666; McDermott v. Palmer, 8 N. Y. 387; Amis v. Louisa, 9 Mo. 629; Phil., Mech. Liens, § 202; Kneel., Mech. Liens, § 83.)
The defendant in error principally relies upon Parmelee v. Hambleton, 19 Ill. 615, to defeat the lien and sustain the judgment that was rendered. íhe court there held that a person who performed labor upon a vault under a sidewalk adjacent to a building was not entitled to a lien. The vault is there held to be an appurtenance to the building, but as the appurtenance was in the street and not upon the lot on which the building stood, the lien was denied. The case is not an authority here, and is based upon an Illinois statute which provided, that both the building and appurtenance shall be upon the lot sought to be subjected to the lien. Our statute does not require that the appurtenance shall be upon the land, but authorizes a lien where the structure or improvement is appurtenant to the land or building. "While the lien rests upon a statute, and the remedy must be confined within the terms of the statute, yet such provisions are to receive a liberal construction, in the interest of justice; and we think the term “appurtenances,” as used in the statute, fairly includes the poles and wire attached to the premises of the defendant, and that the plaintiff is entitled to the lien which it claimed.
The judgment of the district court will be reversed, and the cause remanded, with instructions to enter judgment in favor of the plaintiff.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
While several questions are discussed in the briefs of counsel on both sides as to numerous alleged errors, we think the homestead question is the controlling one, and shall pay no attention to the others. The material facts are, that Flora E. Ayers secured a deed to lot No. 13, in block 29, in Lyndon, Osage county, on the 3d day of July, 1885, with the intention of building a house thereon and making it her homestead, and as a matter of fact held possession under a contract of purchase since April. She built her house and subsequently bought the adjoining lot, No. 14, in the same block, and a cistern or well that supplied the ■family with water was located on lot 14. Her title to lot 14 •dates from the 16th day of June, 1886. Both lots were inclosed together, and were never separated by a fence, but were used by Flora E. Ayers and her family as a homestead from date of purchase until October, 1887. In March and April, 1885, a house was built on lot 13 by Flora E. Ayers, and •about the middle of April, 1885, said house and premises were occupied by Flora E. Ayers and family as a homestead, who ■continued to occupy this lot and lot 14 from the date of its purchase until October, 1887, as such homestead. When lot 14 was purchased, there was a small frame building on it used as a carpenter shop. Some time in the summer of 1886 and before the mortgages, upon which this suit is brought, were made, this building was moved to the back part of the lot and an addition built thereto by the owner, making a building 20 by 50 feet, which was used by George Ayers, a brother of J. H. Ayers, who was the husband of the owner, Flora E. Ayers, and one Samuel Collins, as a carpenter shop, with the consent of Flora E. Ayers. There was no regular lease to them and no rent was paid to the defendant, Flora E. Ayers, for the use of said premises, but some improvements were made, such as digging a cistern, setting out some trees, and making repairs on the family residence on the two lots.
Under the judgment obtained by Victor B. Buck & Co. on the 6th day of August, 1885, and alleged to have been assigned to the defendant D. F. Coon, and the judgment obtained by the defendant D. F. Coon on the same day, an execution was issued and all of said premises were sold by the sheriff of Osage county, and bid in by said defendant D. F. Coon, and the sale confirmed, and a sheriff’s deed executed to said, Coon, these proceedings all occurring after this foreclosure suit was commenced. The court below sustained the judgment lien of said defendant D. F. Coou as to the rear 20 feet of both lots, including the frame building thereon, and held that said D. F. Coon was, by virtue of said sheriff’s deed, the owner in fee of the said rear 20 feet of said lots free and clear from the lien of both mortgages of said plaintiffs in error. In said proceedings all of said property was appraised at $725, and sold for $484. Plaintiffs in error bring the case here for review, claiming that they should have been allowed prior liens on all of said two lots, together with all the improvements thereon.
The property in question consists of two adjoining lots, each 25 feet wide by 150 feet deep, fronting on the street, with an alley in the rear, and both forming one continuous tract, enclosed by the same fence. Both lots were bought with the intention of making a homestead, and were so occupied until more than a year after the mortgages of plaintiffs in error were executed and recorded. No part of it had ever been abandoned, nor was there any intention of abandoning them or any part thereof as a homestead, or any act which would. amount to a constructive abandonment of any portion of them. There was a frame building on the rear of the lots so that it extended across the entire width of both lots and next to the alley, and which entirely prevented access to the alley without passing through said building. This building was occupied temporarily by a brother of the husband of the owner and his partner as a carpenter shop. It appears from the evidence that this shop was only occupied with the consent of Mrs. Ayers, the owner, and was held for no definite time, nor was any fixed rent paid for the use of the building. There was no lease. The only consideration ever given for the use of the building was the keeping of the premises in repair, making some few improvements, such as setting out trees, and building a cistern, which cistern was used by the family of Flora E. Ayers, and supplied with water from the roof of the shop.
This is a contest between the mortgagees and the judgment creditor, but their respective rights are to be determined by the character affixed to the rear 20 feet in width of the lots numbered 13 and 14. On the one hand, it is said that the use of the carpenter shop by persons other than the owner of the lots or her husband was an abandonment of their homestead rights. On the other, it is said that the actual rent of the building for the purposes for which it was used was induced by revenue for support of the family, and not inconsistent with its homestead character, and this latter view is amply supported by the recent decision of this court in the case of Layson v. Grange, ante, p. 440. This case holds that—
“Where a debtor owns a house and three lots, containing less than one acre, within the limits of a city, upon which he resides with his family, and also has a carpenter shop, which he afterward converted into rooms, which he rented to a family, but did not lease any portion of the ground, but simply gave the tenant the right of ingress and egress to and from the premises, and reserved the basement to such building for his own use, as well as the lot upon which the building was situ atecl, held, that the whole property is a homestead, and, as such, exempt from forced sale on execution.”
The reasons given for that decision control this case, and compel us to recommend that this judgment be reversed, with instructions to the trial court that the judgments are not liens on the homestead of Mrs. Ayers.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The findings of fact and the reasoning and conclusions of the district court are convincing, and satisfy us that a correct result was reached. Under our statutes, all property in the state, real and personal, not expressly exempt therefrom, is subject to taxation; and any person claiming immunity from the common burdens of taxation, which should rest equally upon all, must bring himself clearly within the exemption; and hence it is held that a provision creating an exemption should be strictly construed. (Comm’rs of Miami Co. v. Brackenridge, 12 Kas. 114; Washburn College v. Comm’rs of Shawnee Co., 8 id. 344.)
It is not contended here that the land and lots of the Ottawa University are exempt under the constitution and laws of the state; but it is claimed that they are exempt under the terms of the act of congress. It provided “that the section on which the Ottawa University stands, or any part of it which may remain as the site of an institution of learning, shall remain free from taxation until the legislature of Kansas shall otherwise order.” The right to the exemption depends upon the interpretation which should be placed on this provision. It will be observed that the words “section” and “site” are both used in the provision, and it is obvious that they are not synonymous terms. Congress evidently contemplated that the whole section on which the university was located would not always be retained as a site for the university, and therefore provided, not that the whole section should be exempt, but that only such “part of it” as remained a site for the university should be exempt from taxation. If it had been intended that the whole section should be exempt from taxation, no necessity would have existed for the distinctions that were made between the words “section” and “site,” and there would have been no necessity for providing that such part of the section as was set apart and remained as a site should be exempt from taxation. If it had been the purpose to provide for an ex- einption of the whole 640 acres, congress probably would have said so in plain terms, by enacting “ that the section on which the Ottawa University stands . . . shall remain free from taxation until the legislature of Kansas shall otherwise order.” Instead of making a plain declaration of this kind, and for the evident purpose of limiting the exemption, it was provided that only so much of the section as should be used as a site for the university should be so exempt. The trial court has found upon sufficient evidence that no part of the section “remains as the site” of the university, except the campus of 32 acres. This determines the extent of the exemption until such time as “the legislature of Kansas shall otherwise order.”
Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In December, 1886, an action was brought by the city of Atchison against the Chicago & Atchison Bridge Company, Lewis C. Burnes and other stockholders in the bridge company, charging fraud in the contracts and transactions of the bridge company and in the issuance of the capital stock of the same, and asking a recovery of the unpaid balance due upon the stock and the cancellation of that which was fictitious and fraudulent. In the amended petition, which was filed in July, 1887, it was substantially alleged that the Chicago & Atchison Bridge Company of Missouri was organized, with a capital stock of $1,000,000, for the purpose of building a bridge across the Missouri river at the city of Atchison ; that the Chicago & Atchison Bridge Company of Kansas was incorporated for the purpose of building a bridge across the Missouri river at the city of Atchison, with a capital stock of $1,000,000; that, for the purpose of raising money with which to construct the bridge, the Chicago & Atchison Bridge Company of Missouri, on June 1,1872, executed 1,200 bonds of the denomination of $1,000, and each bearing interest at the rate of 7 per cent, per annum, and executed a mortgage deed upon the bridge, approaches, together with the franchises and right-of-way for the bridge, to secure the payment of the bonds; that, as a further security, the Chicago & Atchison Bridge Company of Kansas executed a like mortgage to secure the payment of said bonds; that the payment of the principal and interest of the bonds mentioned was guaranteed by the Hannibal & St. Joseph Railroad Company, the Central Branch Union Pacific Railroad Company, and the Chicago & Southwestern Railway Company; that the consolidation of the two bridge companies was effected on July 18, 1873, with a capital stock of $1,200,000, and the consolidated corporation took the name of the Chicago & Atchison Bridge Company; that the city of Atchison subscribed to the capital stock of the bridge company to the amount of $100,000, and received therefor the stock of the company in the like sum; that the Chicago & Atchison Bridge Company entered into a contract with the American Bridge Company, of Chicago, on April 3,1874, for the construction of a railroad and wagon bridge across the Missouri river at the city of Atchison, wherein it was agreed that the American Bridge Company should furnish the material and construct the bridge, and in payment should receive $1,200,000 of the first-mortgage bonds of the Chicago & Atchison Bridge Company, and $1,200,000 of the full-paid capital stock of the same company, and $100,000 of the bonds of the city of Atchison; that the American Bridge Company thereupon began the construction of the bridge, and completed the same about September, 1875, at a cost not exceeding $450,000, and upon the completion thereof the Chicago & Atchison Bridge Company delivered to the American Bridge Company the bonds and capital stock in accordance with the said agreement ; that when the bonds and stock were so delivered, and during the time of constructing the bridge, a conspiracy existed between the American Bridge Company and the directors of the Chicago & Atchison Bridge Company to swindle and defraud the city of Atchison out of $100,000 of bonds, and that the difference between the sum of $450,000 and the amount of the bonds and stock of the company was divided up between the officers and directors of the two bridge com panies; that none of the stockholders in the Chicago & Atchison Bridge Company, except the city of Atchison, paid anything for the stock subscribed by them, and that the city was ignorant of this fact until within the two years preceding the beginning of this action; that the first-mortgage bonds of the Chicago & Atchison Bridge Company were worth $1,000,-000, and that the capital stock was worth $600,000, in cash, at the time of the delivery of the same to the American Bridge Company, and the bonds of the city of Atchison were worth par at the same time; that the consolidated company issued its bonds to the amount of $200,000 in excess of what it was authorized by law to issue; that the stock was divided out among various persons without consideration or payment, and the city alone, of all the stockholders, has paid into the corporation the amount of its capital stock; that since the completion of the bridge its earnings have amounted to not less than $2,000,000, and that after the payment of expenses, repairs, taxes, and dividends, there remains the sum of $800,000, which should be appropriated as dividends on the legitimate stock of the company; that the city has received as dividends on its stock only the sum of $5,000, while other stockholders have received $55,000; that the president and managers of the company in 1885 took out of the treasury $200,000 and paid off outstanding bonds to that amount; that the company has refunded its bonded indebtedness' at a rate of 6 per cent, per annum, by the issuance of mortgage bonds payable thirty years from January 1, 1885; that on August 13, 1886, the city, by its attorney, made a demand upon the president and directors to compel each stockholder to pay into the treasury of the company the full face value of the stock held, and that in case they failed to do so within 10 days that suit be instituted against each stockholder for the recovery of the face value of his stock; that the bridge company has failed to comply with the demand, and that the defendant stockholders took their stock with full knowledge that it was unpaid, and fraudulently issued to them or to their assignors. The city prays judgment that the stock held by the defendants be declared void and canceled ; that the bridge company be required to render an account of its receipts and expenditures; and that a receiver be appointed to further prosecute the action against the stockholders, to collect from all the amount of stock held by them, and for such other relief as in equity the plaintiff is entitled to.
The sufficiency of the allegations of the petition were challenged by demurrers filed by the defendants, each of which was overruled by the court; after which an answer was filed by the Chicago & Atchison Bridge Company, admitting the allegation with reference to its incorporation, and that the city of Atchison was duly incorporated, but denied that the city ever subscribed to the capital stock of the Chicago & Atchison Bridge Company, and alleged that it acquired $100,000 of the stock from the American Bridge Company. It admitted the contract with the American Bridge Company for the construction of the bridge across the Missouri river, and alleged that the city had actual notice of the existence of the contract, and of all the terms and conditions of the same; that the contract was recognized in several ordinances passed by the city, and that the $100,000 bonds of the city, voted to aid in the building of the bridge, were deposited with a trustee in the city of New York to be delivered to the American Bridge Company under the terms and conditions of the contract- between the Chicago & Atchison Bridge Company and the American Bridge Company. It also alleged that the action was barred by the -statute of limitations; because that, during all the time from 1875 down to the institution of the action, the city had knowledge of the contracts and the conditions of the same; that it became and was a party to the contracts, and that it ratified and confirmed the action of the Chicago & Atchison Bridge Company in entering into contracts with the American Bridge Company; that it knew the amount that was to be paid to the American Bridge Company for the construction of the bridge, and acquiesced therein.
The allegations with reference to the issuance of the bonds and stock of the bridge company are admitted, and it is alleged that the bonds were executed and delivered with the consent and authority of the city - and further, that the city consented to and ratified the action of the bridge company with full knowledge of the fact that the stock of the Chicago & Atchison Bridge Company was to be used as part payment for the construction of the bridge, and with knowledge that it had no other assets whatever than the stocks and bonds with which to construct the bridge. It alleges that the $1,200,000 first-mortgage bonds were not secured by a lien upon any property other than the franchises for building a bridge over the Missouri river, and at that time were not worth to exceed the sum of $10,000. It admits that it has paid off $200,000 of the mortgage bonds, and alleges that the mayor of the city has been designated by the city to act as a member of the board of directors of the bridge company, and as such director has represented the city for the past 10 years in all the proceedings of the board of directors, and the city as a stockholder has been fully informed with reference to the refunding of the mortgage indebtedness and of all the proceedings of each meeting of the company, and has consented and acquiesced therein. It alleges that the matters and things in controversy in this action were adjudicated in a former action between the city and the bridge company in 1885, and that since said adjudication there has been paid to the city as dividends upon its stock the sum of $7,000, and since the institution of this action, and during the pendency thereof, the city has received from the bridge company the sum of $2,000 as dividends from the net earnings'of the bridge. It denies that any demand has ever been made upon the board of directors to prosecute actions upon liabilities due the bridge company, and states that if it is deemed by the court that any liability exists against any of the stockholders, it is ready and willing to institute actions against them, and to obey any orders made by the court herein. It further alleges, that it is advised that the present holders of the stock of the company are bona fide holders thereof for value, and further, that the city has no authority to hold stock in the bridge company, and has no right or standing as a stockholder in the company; that the stock held by it is in violation of its charter; and it asks judgment that the stock of the city be canceled.
William H. Harris filed a separate answer and cross-petition, alleging that he paid the par value for his stock, without any knowledge or information concerning the construction contracts; and further, that the city of Atchison had no power or authority to subscribe to the stock of the bridge company, and was not entitled to dividends thereon; and he asks that the stock may be canceled, and the city be required to pay back the dividends which it has received thereon. Each of the other defendants filed a separate answer, adopting the allegations of the answer of the Chicago & Atchison Bridge Company. On January 5,1888, the city moved the court for the appointment of a receiver, and upon the hearing of the motion it was made to appear that on January 3, 1888, the United States circuit court for the district of Kansas, in an action by the trustee of the holders of the mortgage bonds against the bridge company, appointed a receiver of the property of the bridge company, including the franchises, rights-of-way and all other property connected with the bridge of the company, and directed him to collect all rents and moneys whatsoever, and apply the same under the order and direction of that court. It was then conceded that John C. Tomlinson, who was appointed receiver, had duly qualified and entered upon the discharge of his duties as such receiver. -
At the conclusion of the hearing, the judge of the district court of Atchison county denied the application of the city for a receiver to take the possession and custody of the bridge, property, franchises, rents, issues and profits of the Chicago & Atchison Bridge Company, and to manage and operate the same, but ordered that George W. Howell be appointed receiver for the purpose—
“Only of instituting and prosecuting this and other suits to cancel stock held by various parties claiming to be stockholders in said Chicago & Atchison Bridge Company, and the stock issued by said company or the officers thereof, or to in stitute suits to recover the value of all stock issued by said Chicago & Atchison Bridge Company or the officers thereof, in such forum and jurisdiction as may be deemed advisable.”
The city of Atchison thereupon moved to substitute the receiver as plaintiff, which motion was sustained, and George W. Howell, as receiver, became the plaintiff in the action, and filed his amended petition therein, in which he alleged the order of appointment, his substitution as receiver, and adopted the allegations of the amended petition filed by the city. The defendants opposed the appointment of a receiver, as well as the substitution of the plaintiff, and demurred to the receiver’s amended petition for want of sufficient facts, and because he had no legal capacity to sue. This demurrer, as well as that of a like character filed by the other defendants, was overruled by the court. Separate answers were then filed by the defendants, which, among other allegations, denying the right or authority of the receiver to prosecute the action, and setting forth the prior appointment of a receiver in the federal court. In October, 1888, the cause was tried without a jury, when findings of fact were made by the court, and the court stated as conclusions of law — first, “that as to the defendants C. C. Burnes, J. "W. Parker, Benjamin F. Stringfellow, R. M. Manley, and B. P. Waggener, the action is barred by the statute of limitations;” second, “that as to the remainder of the individual defendants, the capital stock held by these in the Chicago & Atchison Bridge Company is deemed to have been issued without consideration, and will be adjudged and decreed to be canceled and held to be null and void;” third, “said stock is ordered to be brought into court and canceled;” fourth, “the Chicago & Atchison Bridge Company is enjoined from recognizing said stock or paying any dividends thereon.” Judgment was entered by the court in accordance with the conclusions of law. Exceptions were taken to the ruling of the court upon the demurrers to the pleadings, upon the appointment of a receiver and the substitution of the receiver as plaintiff in the action, as well as to many rulings upon the evidence, and the findings of fact and law. Motions for judg ment on the findings of fact and for a new trial, separately filed by the defendants, were overruled and denied, and the defendants separately excepted to .the rulings thereon. A case-made, was settled and signed by the court at the instance of the defendants, and three petitions in error have been filed therewith, which will be considered together.
The findings of the court covered a wide range, and many questions thereon are elaborately discussed by counsel. Although we have given much attention to some of these, we find that they cannot be properly considered or decided on account of an objection with which we are met at the threshold of the inquiry. The action was prosecuted by an unauthorized person, termed a receiver, and the judgment complained of was given in his favor. The defendants below resisted the appointment of Geo. W. Howell as receiver, objected to his substitution as plaintiff and to the pleadings which he filed, challenged his right to conduct the litigation by objections to the testimony and to the findings and judgment. If the appointment of the receiver was unwarranted, and if he had no-authority to prosecute the action, then there was no plaintiff in the proceeding, as the receiver was substituted for the city of Atchison, after which it dropped out of the case as plaintiff, and the action proceeded on the pleadings filed by the receiver and upon the issues formed between him and the defendants. The application of the city was for a receiver to take possession of the bridge property, franchises, rents, issues and profits of the Chicago & Atchison Bridge Company, and to manage and operate the business of the company, and also to prosecute this and other proceedings against the stockholders and officers of the company, to remedy the alleged wrongs that were stated in the pleadings. The court denied the motion of the city for a receiver to take possession of the property or to manage and operate the same, but did appoint the receiver for the sole purpose of instituting and prosecuting “this and other suits,” for the benefit of the city of Atchison. It thus appears that the court limited the functions of the receiver to being a mere representative of the city of Atchison, and pos sibly this may be accounted for on the ground that a receiver of the property of the bridge company bad been appointed by the federal court a few days before the appointment of Howell, who was then in the custody and control of the bridge and all other property of the company. Why the receiver was appointed merely to prosecute this action for the city is not easily seen. The city is not insolvent, nor incapacitated to prosecute any action or proceeding for the enforcement of its rights, or to protect it from the wrong-doing of any officer or stockholder of the bridge company, or of any other person. The statute gives the city authority “to sue and be sued,” and it has no need of a representative or receiver to appear in court in its behalf or to sue for it. According to the allegations and the proof, the Chicago & Atchison Bridge Company is solvent; but if a receiver of its property was necessary or allowable for any reason, it was already provided with one. There is some contention that the receiver of the federal court was appointed and given control of the property of the company merely to thwart the action of the state court, and that he is entitled to no precedence over Geo. W. Howell, appointed as receiver in this proceeding; but that question is wholly immaterial, since the court refused to appoint Howell as a receiver of the property, and only appointed him to bring this proceeding in behalf of the city. He was not authorized to take charge of the assets of the corporation, and neither was he empowered to manage its business or close up its affairs. He is not charged with the protection of any fund or the preservation of any property. Instead of being the representative of all persons interested in the litigation, he is the champion of the plaintiff, and adverse to all the other parties to the controversy.
We are referred to § 254 of the civil code as an authority for the appointment; but the remedy there provided is a provisional one, to be exercised where there is property, funds, or rights of action to be protected, managed, and disposed of, and also where corporations have been dissolved or have forfeited their rights. This section affords no warrant for the appointment of a receiver, such as has been made, nor does defendant in error call our attention to any authority which would authorize the appointment under the general equitable jurisdiction of the court. If a receiver of the property had been appointed for any sufficient reason, he might have been empowered to collect what was due on unpaid stock, or to correct the alleged wrongs of the officers and managers of the corporation, and for these purposes might have been authorized to institute legal proceedings; but the appointment in such a case would have been only an incident to the matter in controversy. The receivership in this case; however, is not an incident to the matter involved, neither does the receiver sustain the relation to the court nor perform the functions ordinarily sustained and performed by a receiver. A receiver is an officer of the court, and should be an indifferent person between the parties to a cause. He is appointed in behalf of all the parties, and not as the agent or representative of either party, and should exercise his functions “in the interest of neither plaintiff nor defendant, but for the common benefit of all the parties in interest.” (High, Rec., §1; Beach, Rec., § 2; 27 Myer’s Fed. Dec. 22.) In this case the receiver was appointed as the mere agent or representative of the plaintiff alone, and the powers conferred on him were to be exercised in direct antagonism to all the defendants. There seems to have been doubt in regard to the position the receiver occupied in the minds of the parties and the trial court. In some cases he is treated as the receiver of the bridge company, and as bringing the action for the benefit of the corporation, and yet he prosecutes and obtains a judgment against the corporation. In other instances he is spoken of as a receiver prosecuting the action for the benefit of the city of Atchison, and the findings and judgment of the court recite that this was the purpose of the appointment, and that his function was to prosecute the suit for the benefit of the city of Atchison and against the Chicago & Atchison Bridge Company.
It is said that the equitable jurisdiction of the court to appoint receivers is not to be doubtingly exercised, and never where there is any other adequate remedy; but, in this case as has been stated, there is neither authority nor necessity for providing the city of Atchison with a representative or receiver. It is a competent party in any _. . , . . , .. _ Proceec*mg protect its rights as a stockholder, and if the officers of the corporation have made fraudulent contracts, or are engaged in transactions which will result to the injury of the corporation or the'city as one of its stockholders, it may maintain an action in its own name to protect its own or the interests of the corporation, or to obtain any equitable remedy to which it is entitled. Ordinarily, an action to enforce rights or protect the interests of a corporation should be brought in the corporate name; but where the officers or managers of the corporation refuse, upon proper request, to bring such action, it may be brought in the name of the stockholders. (4 Am. & Eng. Encyc. of Law, 280, and cases cited.)
It is conceded by both parties that if a cause of action exists in favor of the city in this case it may be prosecuted in the name of the city; and if that is true, what reason is there for the appointment'of a representative of the city, and what authority is there for the substitution of another as plaintiff in its stead? The counsel for the receiver argue at great length, and cite numerous authorities to sustain the right of the city as a stockholder to bring the action, and thereby has furnished an argument against the appointment of a receiver and his substitution in the place of the city. If a cause of action exists in favor of a stockholder, and the corporation refuses, to proceed upon proper request, the city as a stockholder is a real and competent party to bring the action; and there is no necessity or reason in substituting a next friend or receiver to sue for it.
The principal cause of complaint is the contract which was made between the Chicago & Atchison Bridge Company and the American Bridge Company, by which all the stock and bonds of the former were given to the latter for the building of the bridge; but if a cause once existed in favor of the city by reason of the vice in that contract ■ and the fraud of the parties thereto, it may have been validated by acquiescence and ratification on the part of the city. It is a familiar rule of equity that voidable contracts tainted with vice in their origin may become valid by the subsequent acquiescence and adoption of the parties. The contract in question was made in 1874, and the bridge was completed under that contract in 1875, and it seems from the testimony that the city was then acquainted with all the terms and conditions of the contract, and the consideration which was to be paid for the bridge. "With this knowledge, the city has remained silent until recently, has participated in numerous meetings of the stockholders, and has accepted payments of dividends on the stock which it acquired through the contract. It is claimed in behalf of the city that it had no knowledge of what such a bridge 'would cost until within two years prior to the commencement of the action; and further, that it had no" knowledge until then of the over-valuation of the bridge, and of the alleged wrongful absorption of the proceeds of the stock and bonds by the parties concerned in the contract. On the other hand, it is contended that at the time the contract was made the company had no property except the franchise to build the bridge; that its stock and mortgage bonds had no market value; that various efforts to secure the building of the bridge for the stock and bonds were unavailing; and that finally the American Bridge Company was procured to build it for the consideration mentioned. It is claimed that the transaction was made openly and in good faith, and upon the most favorable terms for the Chicago & Atchison Bridge Company that could be secured, and also with the full knowledge and approval of all interested parties, including the city. Whether the city is not chargeable with knowledge of what the bridge would cost, and whether there was any fraud in the trans.actions of those interested in the building of the bridge, and whether the city has not by its knowledge of these transactions and its delay in repudiating the same, as well as by receiving and retaining the fruits of the transactions, waived the vice in the same, are questions which should only be investí gated when the real parties are before the court. If the validity of the contract is to be investigated, it would seem that the American Bridge Company should be made a party. It was an important factor in the transaction; the city received its stock from that company; and all the other stockholders derived their title through the same source.
The other questions in the case which have been so much discussed cannot be investigated in this proceeding, and can only be considered when the issues are framed between the real and the necessary parties to the controversy.
The judgment of the district court will be reversed.
All the Justices concurring. | [
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Opinion by
Green, C.:
The plaintiffs in error in this case ask a reversal of the judgment of the district court of "Washington county, upon seven assignments of error, all of which, as is alleged, occurred during the trial; but the overruling of the motion for a new trial is not assigned as error. This is necessary to have such assignments of error considered in this court. (Landauer v. Hoagland, 41 Kas. 520; Clark v. Schnur, 40 id. 72; Carson v. Funk, 27 id. 524.)
The judgment of the district court should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
The question in this case is one of pleading only. The answer denied that the contract set out in the petition was ever made; alleged that the transaction was a different one; stated what it was; that it was a dealing between Ring & Smith and Crane & Toms, and not between Ring & Smith and Crane alone; gave- the name of each member of Crane & Toms, and was verified. It seems to be conceded that if Ring & Smith had alleged in their petition that the-goods sold and delivered to him, and amounting to $1,185.37,. was a sale to Crane & Toms as partners, and not to Crane-only, then the instruction of the court complained of would not have been erroneous. It is urged that the facts constituting the cause of action were not stated in ordinary and concise-language when the sale was charged to Crane only and not to the firm of Crane & Toms; therefore, it is said that the-petition gave no notice to Crane that he was being sued upon a contract made with Crane & Toms, who were partners. If the answer had been a general denial only, there would be-much force in the argument of counsel for Crane, but the pleadings admitted that there was a partnership consisting of Crane and Toms.
Under the findings of the jury, it is immaterial whether the contract sued on was with Crane alone, or with Crane &■ Toms, because all the pleadings must be construed, and, under our practice, substance is more regarded than mere forms. If the contract sued on was with Crane only, the plaintiffs below was entitled to their judgment. If the contract was with Crane & Toms, the defendant below could not have been surprised, in view of his answer, and therefore we think, considering the pleadings, that the judgment was not erroneous.. It would have been useless to have allowed the case of plaintiffs below to abate, and permit them to file a new petition, alleging a contract with Crane & Toms. We can well understand that in many cases, where the answer simply denies the allegations of a petition, that it would be improper and prejudicial to allege a contract with an individual only and recover on a. contract with partners. But, upon the pleadings, this is not such a case.
The motion for a rehearing will be overruled. | [
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Opinion by
Simpson, C.:
This was an action against the Kansas City & Southwestern Railroad Company, and other parties composing the firm of L. D. Latham & Co., commenced in Cowley county, and sent to Butler county, to recover damages to land lying in both counties, by fire caused by the operation of a railroad by these parties. The defend ant in error was awarded $842.40 damages, $200 attorney’s fees, and his costs. The case is here for review, all proper exceptions being saved. The record shows that all the evidence was incorporated, without reference to the certificate of the trial judge.
I. The first error complained of is the refusal of the trial court to allow L. D. Latham & Co. a separate trial, and § 268 of the code is cited to sustain this demand. That section provides that “a separate trial between the plaintiff and any or all of several defendants may be allowed by the court whenever justice will thereby be promoted.” The only reasons given by counsel for plaintiffs in error why the trial court should have exercised the discretion granted by the statute are, first, that there was no common interest between Latham & Co. and the railroad company; and, second, that the same rule of law does not apply to Latham & Co. as does to the railroad company.
As a matter of fact and as a matter of law, the first is not tenable in any aspect of the case, as viewed from this record, because the finding of the jury is that L. D. Latham, James Hill, James N. Young, Henry E. Asp and Ed. P. Greer and the Kansas City & Southwestern Railroad Company were operating the train. The second is founded on the operation of chapter 155 of the Laws of 1885, now ¶ 1321, General Statutes of 1889, that provides that, in all actions against any railroad company organized or doing business in this state for damages by fire caused by the operating of said railroad, proof that the fire was caused by the operating of said railroad shall be prima facie evidence of negligence on the part of said railroad company. While it is admitted that this applies in this case to the Kansas City & Southwestern Railroad Company,, its application to Latham & Co. is denied, they being neither a railroad company nor a defacto railroad company. The case-of Beeson v. Busenbark, 44 Kas. 669, is cited in behalf of this-contention, and it is urged that, by the ruling of the court denying to Latham and others a separate trial, they were- greatly prejudiced, by having the same burden cast on them as on the railroad company, and they were compelled to disprove negligence when the plaintiff below ought to have been required to affirmatively establish their negligence.
Viewing this question from the stand-point of the evidence, we doubt whether the refusal to allow a separate trial had any prejudicial effect, even if it was error; for we must admit that we have seldom, if ever, read a record that shows so much culpable negligence in the operation of trains, so far as fire is concerned, as this one presents. The right-of-way, and even some of the spaces between the ties, was covered with tall dry grass and weeds and other combustible matter. Repeated instances of engines throwing fire are established. Parties stood very near the cars as the train passed, and one witness testified that he could have stepped off the ties into the fire started by the engine. This same engine started the fire in three places some distance apart. In a word, the evidence establishing the time, place and manner of the fire was strong, consistent, and uncontradicted, the defendants below not contesting this part of the case, except by cross-examination. This evidence was so strong, so positive, and so clearly convincing, that there could be no reasonable doubt as to the cause of the fire and the circumstances of its origin, and hence there was no room for the play of separate rules as to the burden of proof; there was no burden; there was no conflict; the defendants below offered no evidence as to the cause of the fire or the circumstances under which it originated. The section vests a discretionary power with the trial court, and, under any circumstances, the record would have to show that the discretion had been abused before we could reverse.
II. The land of the defendant in error was about one-fourth of a mile away from the railroad track. It consisted of 240 acres, partly in Cowley and partly in Butler county. The fire burned, on the farm of the plaintiff below, 140 acres of grass; one house; one crib; 20 tons of hay; 371 forest trees; a few fence posts; 161 fruit trees, about four years old, consisting of peach, cherry and pear trees; and other things were destroyed; The jury returned the following special findings:
“1. If the jury find that there was negligence on the part of tbe defendants, or any of them, state who the negligent party or parties were, and of what such negligence consisted. A. Kansas City & Southwestern Railroad Company, L. D. Latham, James Hill, James N. Young, Henry E. Asp, Ed. P. Greer; in allowing right-of-way to grow up with grass and weeds and combustible matter; and engines being in bad repair.
“2. If the jury find that plaintiff’s damage was caused from a fire set out by and from railroad train, state how said fire escaped or was communicated. A. From coal dropping from fire-box and sparks from smoke-stack.
“3. If you find that said fire was set out by a railroad train, who was operating said train? A. By Kansas City & Southwestern Railroad Company, and L. D. Latham, James Hill, James N. Young, Henry É. Asp, Ed. P. Greer.
“4. What was the condition of the surface of the land adjacent to plaintiff’s orchard, with reference to the existence of dry grass or other combustible material being thereon, at the time this fire is alleged to have occurred? A. Fire-guards sufficient for any ordinary occasion or precaution.
“ 5. Show what was the condition of the surface of the land adjacent to the house that was burnt, with reference to the existence of dry grass or other combustible material being thereon, at the time the said fire occurred. A- Prairie land much tramped about the house and Some breaking.
“ 6. Show what was the condition of the surface of the land adjacent to the cottonwood grove and timber that is alleged to have been burned, with reference to the existence of dry grass or other combustible material being thereon, at the time the fire is alleged to have occurred. A. Pastured close, and fireguards and some crab-grass.
“7. What was the general condition of the surface of the land, with reference to the existence of dry grass or other combustible material being thereon, between the point where the fire is alleged to have started and plaintiff’s premises, at the time the fire occurred? A. Prairie from the point of the railroad from which fire started to the premises mentioned, and fire-guard and country road between.
“8. What was the condition of plaintiff’s orchard, with reference to the existence of dry grass or other combustible material being thereon, at the time the fire is alleged to have occurred ? A. Some crab-grass thereon.
“ 9. What was the condition of plaintiff’s cottonwood grove and timber at the time said fire is alleged to have occurred, with reference to the existence of dry grass or other combustible material being thereon? A. In as good condition as is usual with farmers.
“10. What precaution, if any, had plaintiff taken to protect his orchard from prairie fires at the time this fire is alleged to have occurred? If he had made any fire-guard, show its character and extent. A. Fire-guards from 8 to 16 feet in width on the north and west, and some plowing.
“11. What precaution had plaintiff taken, if any, to protect his cottonwood grove and timber from prairie fires, at the time this fire is alleged to have occurred? A. All necessary precaution that a careful farmer would take.
“12. What precaution, if any, had plaintiff taken to protect the house that is alleged to have been burned from prairie fires, at the time said fire occurred? A. He took every necessary precaution as any farmer would deem requisite.
“13. How far was it from the point where the fire is alleged to have started to plaintiff’s premises ? A. About 80 rods.
“ 14. If the jury find in favor of the plaintiff, against whom of the defendants do you find ? A. Kansas City & Southwestern Railroad Company and L. D. Latham, James Hill, James N. Young, Henry E. Asp, Ed. P. Greer.'
“ 15. If the jury find for the plaintiff, how much do you find for the apple trees? A. $75. How much for peach trees? A. $194. How much for cherry trees? A. $86. How much for pear trees ? A. $25. How much for cottonwood trees? A. $100. How much for timber ? A. $11.30. How much for the house ? A. $50. How much for all other damages? A. $145. Interest, $158.
“16. Did plaintiff not know that his premises being covered with weeds, dry grass, and other combustible material, that fire was likely to escape from engines on said line of railroad and spread and burn his premises? A. No proof of such being covered with more than grass on prairie part.
“17. Was the plaintiff guilty of negligence in not properly protecting his property from damage by fire ? A. No.”
Complaint is made of the action of the jury in their an swers to special questions Nos. 5, 6, 7, 9,11 and 12, especially, as well as some murmurs as to the others; but while in some instances the answers are somewhat confused, and in two instances not direct, yet they compare favorably with answers generally made. The acute and technical lawyer often expects too much from a jury in this regard. The answers in this case are consistent with one another, supported to some extent by the evidence, and do not evince a disposition to dodge, evade or suppress the truth. The instructions are complained of, and we think justly so in one respect, as the trial court did not distinctly state and make plain to the jury the difference in the degree of evidence necessary for a recovery against the railroad company and the firm of Latham & Co.; but, as we have stated before, all these criticisms avail nothing in the presence of the most material and controlling fact, that the proof of culpable negligence on the part of those operating the railroad was so overwhelming as to exclude any thought of prejudicial error in this branch of the case.
III. The jury found expressly in the seventeenth special finding that the defendant in error was not guilty of negligence in not properly protecting his property from fire. There is, in oiir judgment, abundant evidence in the record to sustain that finding, and we could not, even if we desired to do so, ignore the finding and the facts upon which it is based. The most serious complaint is that made about the character of the evidence that was allowed to go to the jury in regard to the value of the property burned, and especially as to the value of the fruit and other trees. The substantial contention of counsel is, that none but experts can testify to the value of trees, as the question embraces so many considerations, as to size, character, condition, variety, state of cultivation, health, thrift, soil, etc. The same thing can be said about grass, or growing crops, and much of it can be said about a steer or cow, and all and more about land. This court has in all cases adopted the rule, that when disputes arise in all the common and ordinary affairs of life, with which a large class of persons, such as farmers, have daily
concern and continuous experience, they are competent witnesses to testify about the things that are the subject of their labor and care. The planting out and care of an orchard is one of the usual incidents of farm life. The man who labors and cares for his fruit or shade or ornamental trees for years becomes possessed of a practical knowledge about trees that qualifies him to express an opinion as to their value. An expert nurseryman may be better, but the man who has successfully planted, cultivated and cared for an orchard is good enough. These witnesses were well enough qualified under this rule to render their evidence competent. There was some conflict about the value of trees between the farmer who had grown orchards and the nurseryman that sells sticks, but the jury wisely determined the issue in favor of practical knowledge and successful cultivation, and the trial court approved, and we cheerfully acquiesce in the finding.
Other questions discussed by counsel for plaintiffs in error are not believed to be material, in view of the rule that there is some evidence to sustain the findings and judgment. Of course the judgment must be modified so as to make the attorneys’ fees chargeable to the railroad company alone, and not to the other defendants. With this modification, we recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an appeal from an award made in a condemnation proceeding. The Chicago, Kansas & Western Railroad Company caused a right-of-way to be condemned over a highway which ran through a tract of land containing about 42 acres, owned by John E. Woodward, sr. and for the additional burden and servitude there was an award of $599.18.
The principal errors assigned here are upon the admission of testimony. In the examination of Woodward, the following question was asked and answer given:
“Immediately after the condemnation proceedings, suppose the railroad to be there and in full operation, taking into consideration all incidental loss, inconvenience, damages, present and prospective, which may be known or may reasonably be expected to result from the construction and operation of the road in a legal and proper manner, and in doing so you may take into consideration the exact condition in which the road may be at the time when they make the assessment, what do you say now was the value of the land at that time? [Objection as incompetent, irrelevant, and immaterial. Objection-overruled and defendant excepted.] Answer. I think about $30 per acre; I think it decreased the value of the land about $30 an acre. [Motion to strike out the answer as not responsive, and as being incompetent, irrelevant, and immaterial, and not the proper way in which to prove damages. Motion overruled and defendant excepted.] ”
The answer of the witness was in effect a determination of the whole question which the jury was called to try. It was not a statement of the market values before and after condemnation, which a competent witness may properly give, but was the mere opinion of the witness that, including all incidental inconvenience and loss, present and prospective, resulting from the construction and operation of the road, the land was damaged to the extent of $30 per acre. This method of proving damages is not permissible.
After showing that the whole of the highway had been appropriated by the railroad company, the same witness was asked: “What is the value of the increased burden on the fee by reason of the construction of the railroad upon that public road?” Over the objection of the company, the plaintiff was permitted to answer that it was worth $250. This testimony is subject to the same objection, and is clearly an invasion of the province of the jury. Under repeated decisions of this court, it is well settled that damages for the taking of a right-of-way through land cannot be proved in this manner. (Railroad Co. v. Kuhn, 38 Kas. 675; Railroad Co. v. Muller, 45 id. 85; Railroad Co. v. Neiman, 45 id. 533.)
These are the only matters which we need to consider, but the errors of the court in the admission of testimony require a reversal of the judgment- and a new trial of the case.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This whs an action brought in the district court of Douglas county on August 15,1887, by Anna G. M. Menger against the board of county commissioners of said county, to recover for taxes paid at tax sales, and subsequent taxes paid, and consequent costs and expenses, and statutory interest; the contention of the plaintiff being that all such taxes and tax sales were illegal, and that all the consideration for her payments had failed because of such illegality. The defendant answered, setting forth a general denial, and also pleading the two, three and five years’ statutes of limitations. The case was tried before the court without a jury, and the court made the following findings and conclusions of fact and law, to wit:
“findings of fact.
“1. The lands described in the first cause of action in the petition (N. E. Sec. 36, T. 14, R. 18) were assessed for taxation for the year 1876, and at the tax sale of 1877 sold to C. A. Menger for said taxes, then delinquent, and costs and penalties, and a tax-sale certificate issued accordingly. Prior to March 25, 1871, this was public school land, under the provisions of § 1 of the constitution and §3 of the act of admission. On that day said land was sold, as provided by law in such cases, by the county treasurer to John F. Schott, who made the payments due thereon to March 25, 1872, and not thereafter, leaving a large part of the purchase-money unpaid. The same lands were, again sold, as school lands, on October 25, 1879, by the county treasurer to another person, who has not yet made default.
“2. The lands described in the second cause of action (the S. of N. W. J Sec. 36, T. 14, R. 17) were assessed for taxation and taxes levied thereon for the year 1879, and at the tax sales of 1880 sold to C. A. Menger for the taxes of 1879, then delinquent, and penalties and costs, and a tax-sale certificate issued accordingly. Prior to September 11, 1869, this was a part of said public school land, and was on that day sold, as provided by law, by the county treasurer to J. W. McWilliams, and payments made to include February 28, 1872, and not afterward, leaving a large part of the purchase-money unpaid. In June, 1881, the said quarter-section was again sold by the county treasurer as school lands to another person, who has not made default.
“ 3. The lands described in the third cause of action were assessed for taxation and taxes levied thereon for the year 1877, to wit: The S. E. I S. 36, T. 14, R. 18; and at the tax sale of 1878 said lands were sold to C. A. Menger for said taxes, then delinquent, and penalties and costs, and a tax-sale certificate issued accordingly. Prior to March 25, 1871, this was part of said public school lands, and on that day it was sold by the county treasurer, in the manner provided by law, to John E. Schott, who made the payments thereon, to include March 25, 1872, and not afterward, leaving a large part of the purchase-money unpaid. On November 30,1880, said land was again sold as school land by said county treasurer to another person, who has not made default.
“ 4. The holder of said certificates duly paid the subsequent taxes, and made the assignment thereof to Anna G. M. Menger, as alleged in the petition, and tax deeds, copies whereof are attached to the petition, were issued to the plaintiff thereon.
“5. The purchaser of said lands at the several tax-sales knew they had been public school lands, but, from the offer thereof for sale for taxes and the assessment and taxation thereof, supposed they had been sold and were no longer school lands. Soon after the deeds were made the plaintiff learned of the sales by the treasurer as school lands, herein-before stated, and afterward, to wit, July, 1886, she presented a duly-verified itemized account, in writing, of the amounts so paid on said sales and afterward on said certificates and the costs of said deed to the county board, and demanded the allowance and payment thereof, with interest as allowed by law when such refunding is made. This bill was considered by the board, and finally rejected, at the July session, 1887; and thereupon this suit was brought, August 15, 1887.
“ 6. The plaintiff discovered the supposed illegality of said several tax sales, that is, that said lands had again been sold as school lands, soon after said tax deeds were issued, but the precise date of such discovery is not shown or alleged.” c< 8. The said tax purchaser did not pay or offer to pay the installments due the state on said school lands, or in any manner comply nor offer to comply with the terms of the certifi cates of purchase theretofore issued on the sale of the same as such school lands; nor did his assign, the plaintiff, pay or offer to pay the same or to comply with the terms of said certificates.
“ 9. No notice of the default of said first purchasers at said school-land sale was ever given to or served upon the purchaser at said tax sales, who was a resident of the county of Douglas.”
“conclusions on law.
“1. Said lands became taxable from the date of the first sales thereof as school lands; (Gen. Stat. of 1868, ¶ 945, § 14; Laws of 1876, ch. 122, art. 14, § 14; Comp. Laws of 1885, ¶ 851, § 217;) and were therefore subject to the taxes for which they were sold, unless the forfeiture for non-payment, provided in § 16, ch. 122, Laws of 1876, rendered such taxation void. (See 19 Kas. 546.) ' r¡y¡ífí¡
“2. When, after such forfeiture, the lands are regularly taxed and sold for the non-payment of such taxes, and the tax purchaser pays the balance of the purchase-money to the proper authorities, and receives a patent from the state, his title cannot be questioned by any private individual. The state did not assent to the forfeiture until long after the tax purchase had been made, and never refused to receive from the Mengers the installments due on the school-land sale. These installments might have been accepted if offered, and the tax purchaser would have acquired thereby just the rights that he contracted for. (25 Kas. 25.) iMI
“3. The tax purchaser having had a reasonable opportunity to make these payments before the second sales of the property as school land, and not having done or offered to do so, cannot now recover the amounts paid on the tax sale, and judgment must be rendered for the defendant.”
Upon these findings and conclusions the court below rendered judgment in favor of the defendant, and against the plaintiff for costs; and the plaintiff, as plaintiff in error, brings the case to this court for review. It will be seen that the only ground upon which the court below held that the plaintiff could not recover the amount of the taxes paid by her and her assignors was, that the lands upon which such taxes were levied were, at the time of the levy and afterward, subject to taxation and the taxes were valid. Is this view of the law correct? It must be remembered that the lands taxed in this case were originally school lands, and therefore not at that time subject to taxation. They were all sold, however, as school lands, to individuals, prior to the year 1872, and then became.taxable. But the purchasers after the year 1872 failed to pay the installments of the purchase-money coming due upon them, and they thereby forfeited, ipso facto, instantly and absolutely, all their interests in and to the lands. (The State v. Emmert, 19 Kas. 546; Flint v. Comm’rs of Jackson Co., 43 id. 656; same case, 23 Pac. Rep. 1048.) By these defaults the lands at once became school lands again, belonging to the state, and not subject to taxation. In the last case above cited, which was decided on May 10, 1890, it was held as follows:
“School land sold in 1869 to be paid for in 10 annual installments, followed by default in 1873, became at once, ipso facto, forfeited to the state, and a sale thereof for taxes in 1874 was void; and when the illegality of such sale was ascertained, the purchaser at said tax sale had a right to have such purchase-money and taxes paid subsequently, but before ascertaining the invalidity of such sale, refunded, with interest thereon.” (Syllabus.)
This was the law prior to the time when any of these lands were sold as school lands, and at least up to March 2, 1879, when the law was amended. (See Gen. Stat. of 1868, ch. 94, §§ 14, 16*; Laws of 1876, ch. 122, art. 14, §§ 14, 16.) The taxes therefore levied upon these lands after the year 1872 and up to the year 1879, while they were school lands and while they belonged to the state, were absolutely void, and the purchasers at the tax sales in the years 1877, 1878, and 1880, for such taxes, obtained no interest in the lands whatever. All such taxes which the tax-sale purchasers paid at the times of the tax sales and subsequently were absolutely void. The decision by the trial court in this case was rendered before the decision in the case of Flint v. Comm’rs of Jackson Co. was rendered by this court.
Following the last-mentioned decision, the judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The question to be decided in this case is most admirably submitted on the following agreed statement of facts, settled and signed by the trial judge, and attested by the clerk:
“ 1. The plaintiff is, and at all times hereinafter referred to was, the sheriff of Franklin county, Kansas.
“2. On the 9th day of March, 1888, a complaint was filed in the office of J. K. Goodin, justice of the peace of Ottawa city, by the county attorney, charging one H. V. Scott with the crime of forgery. A warrant was duly issued thereon and placed in the hands of the plaintiff for service. H. V. Scott had at that time fled from the state of Kansas, and was at "Walla Walla, W. T. Thereupon the county attorney of Franklin county applied to the governor of Kansas for a requisition upon the governor of Washington territory, for the apprehension of said H. V. Scott, and in said application the said county attorney nominated the plaintiff, J. N. Bell, as a proper person to be appointed and commissioned as the agent of the state of Kansas to receive said Scott when he should be apprehended. Thereupon a requisition was duly issued by the governor of Kansas upon the governor of Washington territory, and the plaintiff was appointed in said requisition to «receive said Scott and return him to Franklin county, Kansas, Ml of which he did in due time, and in so doing necessarily traveled 4,700 miles.
“3. On October 1, 1888, the plaintiff presented his claim in due form to the defendant board for $585.40, being for executing writ, jail fees, railroad fare for prisoner, and board for prisoner, and mileage, in the case of The State of Kansas v. H. "V. Scott, of which claim defendant allowed $370 and disallowed balance, to wit, $215.40, a part of claim for mileage. The amount thus allowed covers railroad fare for prisoner .and board for same, and all expenses of plaintiff. Thereupon plaintiff accepted the $370, but duly appealed to the district court from the order of the defendant board disallowing the $215.40 balance, as claimed, for mileage.
“ 4. Upon the foregoing admitted facts, the court then and there rendered judgment for the plaintiff for $215.40 and costs, to which finding and judgment the defendant then and there excepted.
“ 5. In due time, and on, to wit, the same day, the defendant filed a motion for a new trial, for the reason that the verdict is contrary to law, and is not sustained by the evidence; which motion was by the court overruled, to which ruling the defendant then and there duly excepted, and for good cause shown was given 60 days to make a case for supreme court.
“The only question in this case is, was the plaintiff, acting in the capacity in which he was, entitled to 10 cents per mile each way for miles traveled outside of Kansas? If he was, then the judgment is correct, and should be affirmed; if he was not, then the judgment is erroneous, and should be reversed.”
The judgment must be affirmed. Sections 314 and 315 of the code of criminal procedure are as follows:
“Sec. 314*. Before the governor of this state shall demand any fugitive from justice from the executive of any other state or territory, the county attorney of the county where the crime is alleged to have been committed shall examine into the case, and if satisfied that a crime has been committed, and that the person charged is the guilty person, he shall so certify to the governor upon the affidavit, information or indictment presented, and ask a requisition to be made in accordance therewith ; and the governor may issue his warrant, under the seal of the state, directed to the agent or messenger recommended by the said county attorney, commanding him to receive such fugitive and convey him to the sheriff of the county in which the offense was committed or is by law cognizable.
“Sec. 315. The expenses which may accrue under the preceding section shall be paid by the county where the offense was committed, except in capital cases which, in the opinion of the governor, demand prompt and immediate action; and when a delay in procuring the necessary papers from the county attorney, as heretofore provided, would operate to prevent the apprehension of the criminal, then, and in such cases, the expenses shall be paid by the state.”
Section 4 of the fees-and-salaries act provides, among other fees allowed the sheriff, “10 cents per mile and transportation and board for prisoner, under requisition when made by the governor, as provided by § 314, chapter 82, General Statutes of 1868” (now ¶5376, Gen. Stat. of 1889). These three sections construed together fix the liability of the county. (Moon v. Comm’rs of Butler Co., 30 Kas. 458.) In the latter case Moon was agent; but in this case Bell is the sheriff, and his fees are determined by a clause in ¶ 3006, General Statutes of 1889, or §-4 of the fees-and-salaries act. The law sends him out of the state as sheriff, and gives him fees for the special service for which he is sent out of the state, and because he is not allowed in ordinary cases to perform services outside of the state does not authorize us to disregard the positive terms of the statute in regard to this particular matter.
Counsel for plaintiff in error seem to rest under the impression that some, if not all, of these three sections were repealed by chapter 109, Laws ofT886, but this is a mistake* Before the passage of the act of 1886, the law then in force, being § 5, ch. 44, Gen. Stat. of 1868, made the state liable for all the expenses caused by the arrest of a fugitive from justice from another state in this state, on a requisition issued by the chief executive of another state. By the amendment of 1886, the agent of the executive authority making the demand must pay all the costs of the arrest and confinement of the fugitive in this state before the fugitive shall be delivered up. The object of the law of 1886 was to relieve the state from liability for the costs and expenses of the arrest in this state of fugitives from other states. This act, by express terms, repeals § 5, ch. 44, Gen. Stat. of 1868, an act relating to fugives from justice, and all acts or parts of acts that make the state liable for the costs and expenses of the arrest of fugitives from other states whose return is demanded, and does not repeal, nor attempt to nor intend to repeal, the three sections above enumerated.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action to recover damages for the failure of title to a traction engine alleged to have been purchased by Wm. Geddes Carson from Ed. J. McMullen and John A. Smith, as partners, doing business under the name of Ed. J. McMullen & Co. The facts in relation to the transaction may be briefly stated, as follows: A chattel-mortgage sale of the engine in question was advertised to take place at Oxford, in Sumner county, on the 13th day of December, 1887, under a mortgage held by the Oxford Bank. The plaintiff below arrived at Oxford just after the property had been sold to John A. Smith, for the plaintiffs in error, who held a chattel mortgage given subsequently to that of the Oxford Bank upon the same property. Smith gave J. L. Bow-dish, the representative of the bank, a check for $56.89, being the amount due the bank on its claim. Negotiations were then commenced between Carson, Smith, and Bowdish, looking to the sale of the engine to the first-named party. ■ This was consummated by Carson agreeing to pay the sum of $275 for the engine, that sum being the amount McMullen & Co. had invested in the property. Before the transaction was completed, Smith left Oxford for Winfield, leaving Bowdish to complete the business. Carson paid $200 in cash and gave his note to the order of J. L. Bowdish for $75, and it seems that it was then understood that McMullen & Co. were to assign to Carson their note and chattel mortgage which covered this and other property. Carson demanded a bill of sale of the engine, and being unacquainted with McMullen & Co., asked for one of the bank, which was given, for $56.89. The cash payment and note were transmitted to McMullen & Co. at Winfield, the same day; and soon after they assigned to Carson their chattel mortgage and sent a copy of the same, duly assigned, to Bowdish, at Oxford, who delivered it to Carson. On the 27th day of June, 1888, a prior mortgagee commenced an action in replevin against Carson to recover the engine. As soon as summons was served upon him, he notified Bowdish and the Oxford Bank of the suit, and it seems they promised to defend the same, but did not; and a judgment was recovered by default against Carson, and an order was issued upon such judgment to the sheriff of Cowley county, who made return that he had taken possession of the engine and delivered the same to the plaintiff in the replevin action, and collected the costs from the defendant.
This action was commenced originally against the Oxford Bank, J. L. Bowdish, and the plaintiffs in error. Carson alleged in his petition the purchase of the engine, the failure of title, and the judgment of the prior mortgagee, and asked for a judgment against the defendants for the purchase-money and the amount paid for repairs while the engine was in his possession. McMullen & Co. answered that, they sold to Carson the chattel mortgage and debt thereby secured, and not the engine. The bank answered, admitting the execution of the bill of sale, and alleged that it had paid the costs in the replevin suit; that the consideration received by it was $56.89, and pleaded a tender of the same before the suit was commenced. The case was tried by the court and a jury. McMullen & Co. objected to the introduction of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. They also interposed a demurrer to the evidence. At the conclusion of all the evidence, the court instructed the jury to return a verdict-in favor of the plaintiff and against McMullen & Co. for $275 and interest; and upon his own motion dismissed the action without prejudice as to the other defendants. The plaintiffs in error bring the case to this court for review.
We think the court erred in directing the jury to return a verdict against the plaintiffs in error. The plaintiff alleged in his petition that the defendants sold him an Eclipse trac tion engine. The defendants, McMullen & Co., denied the sale, so far as they were concerned, and alleged that they sold to the plaintiff a certain note and mortgage given by a party named Andrews, in which the engine in question was included, with other personal property. The pleadings fairly raised an issue of fact to be tried by the jury, and there was some evidence to support the allegations of the petition and answer, and the court should have submitted such facts to the jury, under proper instructions.
The rule has been firmly settled by this court, that the trial court cannot direct a verdict from the jury if the evidence fairly tends to establish the plaintiff’s cause of action or the defense of the defendant, but must leave the weight and credit of the testimony with the jury. (See Sullivan v. Phenix Ins. Co., 34 Kas. 170, and authorities there cited.)
It is claimed that the court erred in receiving parol evidence in regard to the sale, because the contract was expressed in writing. This is the correct rule, and has long since been determined by this court, and requires no further elucidation. (Abeles v. Cochran, 22 Kas. 412; Rogers v. Perrault, 41 id. 385.)
In the case of Willard v. Ostrander, 46 Kas. 591, we said that where it was disclosed that a bill of sale had been given, the oral evidence in relation to the terms of the contract should have been excluded, and the defendant should not have been permitted to establish the representations and statements made previous to the execution of such bill of sale, the presumption of law being that the written instrument contained the whole contract, and should govern, unless there was fraud shown.
It is recommended that the judgment of the district court be reversed, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It appeared upon the trial that the Gibbs & Starrett Manufacturing Company was a corporation organized under the laws of the State of Pennsylvania; that on the 1.1th day of December, 1882, Ered. W. Ames was appointed receiver for the corporation by the court of common pleas of Crawford county, in Pennsylvania. Under the appointment, Ames was receiver of the property and assets of the corporation, wheresoever the same were situated, and he had all the rights, powers, and privileges, and was subject to all the duties and liabilities of a receiver, according to law and the rules and practice in courts of equity. The trial court instructed the jury that —
“There has been introduced in evidence a decree or judgment of the court of common pleas of Crawford county, Pennsylvania, appointing a receiver for this company. I say to you, as a matter of law, that this action may still be prosecuted in the name of the corporation in this jurisdiction, the Gibbs & Starrett Manufacturing Company, notwithstanding the appointment of this receiver.”
It is contended that, as the statute of this state gives the receiver, under the control of the court, power to bring and defend actions in his own name, to take and keep possession of the property, to receive rents, collect debts, and vests in him the only power for these purposes, he is the only person who is authorized to sue for and collect debts due the estate; that the corporation he represents has lost all control over the property — lost the right of possession, the right of its management in every respect; that it cannot maintain any action to collect debts due, any more than a stranger can. (Civil Code, § 257.)
It is the established doctrine of the supreme court of the United States, sustained by the weight of authority in various states, that the receiver has no extra-territorial jurisdiction or power of official action, and cannot, as a matter of right, go-into a foreign state or jurisdiction and there institute an action for the recovery of demands or debts due to the person or estate subject to his receivership. (Booth v. Clark, 17 How., U. S., 322; High, Rec., § 239.) While the courts have generally denied the receiver extra-territorial right of action as a question of strict right, it has frequently been recognized as a matter of comity. (High, Rec., § 241.) If Ames, the receiver of the corporation, under direction of the court which appointed him, had commenced this action in Anderson county to recover, as receiver, upon the note sued on, we think he should have been permitted, as a matter of comity, to maintain the same. But the action was not commenced by the receiver; it was brought in the name of the corporation, the original party in whose favor the action accrued. The receiver, having been appointed by a Pennsylvania court, is not controlled by the statute of this state relating to receivers. Under the decisions of the court of Pennsylvania, the receiver can only sue in the name of the original party, not in his own name. (Yeager v. Wallace, 44 Pa. St. 294.) The appointment of a receiver in Pennsylvania did not destroy the corporation, and, in view of the decisions limiting the power of a receiver in bringing actions, the instruction given by the trial court was a correct exposition of the law. This action was properly brought in the name of the corporation in whose favor it accrued.
As it appears from the testimony of Winans that the note was given for the consideration of a span of horses, and as the consideration was not insufficient, or in any way failed, the warranty of machines had no application. Before the note was delivered or accepted by the corporation, the payment was guaranteed by Winans in writing. The consideration to the makers, alone would be sufficient to support the guaranty. (Fuller v. Scott, 8 Kas. 25; Briggs v. Latham, 36 id. 205; Daniel, Neg. Inst., §1759; Brandt, Guar., §7; Tiedeman, Com. Paper, § 417, and cases therein cited.) Even if the guaranty was given in accordance with the contract between Winans and the manufacturing company, there would have been a sufficient consideration to support it. (Standley v. Miles, 36 Miss. [7 George] 434.) The other alleged errors do not need comment.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Stbang, C.:
This was a proceeding by injunction to restrain the collection of certain taxes assessed in Cedrón township, Lincoln county, against 200 head of steers,' owned by the defendant, a resident of Minneapolis, Ottawa county. The case was begun August 12, 1890, and tried by the court without a jury January 17,1891. The court made the following findings of fact:
“1. For 10 years last past, the plaintiff has been the owner and in possession of section 10, situate in Center township, in said county of Ottawa, which he has, during said time, used for the grazing of cattle; said section being situate about three miles from said city of Minneapolis.
“2. During said 10 years, the plaintiff has been in the business of feeding and keeping cattle, as follows: He has purchased during the fall of the year steers ranging from three to four years old, sufficient to stock said section for the following year; such steers, so purchased, have been usually wintered by third parties under contract with plaintiff, upon other lands, until the grass the following spring on said section was sufficient to keep them, when they have been removed to said section and kept by plaintiff until marketed, in the fall.
“3. About the first of November, 1888, the plaintiff purchased in Kansas City the 200 steers in question, and shipped them immediately to said section, where they were kept until the 15th day of November, 1888, when the plaintiff contracted with one Samuel Engle, of Cedrón township, Lincoln county, Kansas, to keep said steers on his farm in said township for plaintiff from that day until the 15th day of April of the following year; and, pursuant to said contract, said steers were taken to said farm on said 15th day of November,_ and were there kept under said contract until the 7th day of April, 1889, when they were delivered by said Engle to the plaintiff, and the latter immediately took them to said section, where they were pastured and fed until about the 15th day of November, 1889, when they were by plaintiff shipped to Kansas City and sold upon the market there.
“4. Said'steers were listed' for taxation in Cedrón township by said Engle without the knowledge or consent of plaintiff, and he did not learn that they had been so listed until about the first day of January, 1890.
“ 5. The contract between plaintiff and said Engle for the wintering of said steers provided that, when said Engle should fail to keep them according to its terms, the plaintiff might take possession of and remove them, and under such provision the plaintiff, being dissatisfied with the manner said steers were being kept, took possession of them and removed them to said section, as .hereinbefore stated.”
Upon the facts as so found the court reached the following conclusions of law.
“1. Said steers were not legally listed, assessed and taxed in said Lincoln county for the year 1889.
“ 2. Said steers were legally assessed and taxed in said Ottawa county for the year 1889.
“3. The plaintiff is entitled to a perpetual injunction against the defendants as prayed for in his petition herein.”
The only question in the case is, were the cattle properly assessed in Lincoln county? Paragraph 6852, General Statutes of 1889, or so much of the same as relates to the question involved herein, reads as follows: “Animals and farm implements shall be listed where usually kept.” The findings of the trial court show that the defendant, the owner of the cattle the assessment of which is complained of in this case, resides in the city of Minneapolis, Ottawa county, Kansas; that said defendant owns a section of land near said city which he keeps as a cattle ranch; that he follows the business of buying, feeding and selling cattle, and in connection therewith uses said land as a home ranch. The cattle assessed in Cedrón township, Lincoln county, were purchased by him in Kansas City and shipped to the home ranch in Ottawa county November 1,1889, where they were kept until the 15th of said month, when they were taken to Lincoln county and kept till the 7th of April following. They were then taken back to the home ranch, in Ottawa county, where they were kept till November 15, 1889, when they were shipped to Kansas City and sold. They were on the home ranch, in Ottawa county, for seven months, while they were in Cedrón township, Lincoln county, less than five months. They were taken to the home ranch when purchased, and from there to Lincoln county to winter,' with the intention of bringing them back to the home farm in the spring.
Erom these facts, we think it is manifest that the cattle were usually kept in Ottawa county. This case differs from ■ the case of Graham v. Comm’rs of Chautauqua Co., 31 Kas. 473. In that case the cattle were held about an equal time in each township; but there was nothing in that case showing that the owner had a home ranch in either township, and nothing to indicate that the cattle were to be taken from Belleville township, where they were assessed, back to Sedan township, where the owner claimed they should have been assessed; while in this case the owner had a home ranch in Ottawa county where he usually kept his cattle, and when these cattle were taken from there to Lincoln county it was with the indention of returning them to the home ranch in the spring.
The following Nevada cases are very strong in support of this conclusion: Barnes v. Woodbury, 17 Nev. 383; Ford v. McGregor, 20 id. 446; and Whitmore v. McGregor, 20 id. 451.
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
Emily C. Harrison sued William Harrison for alimony alone, in the district court of Butler county. She based her claims for relief upon three grounds: (1). Abandonment for more than one year; (2) failure upon the part of the defendant to provide for her; and (3) that the defendant had been guilty of extreme cruelty toward her. The defendant answered that the plaintiff had been paid $1,600, with the agreement that it was to be accepted by her as her full share of the defendant’s property. The defendant also alleged that the plaintiff had abandoned him; that she was guilty of gross neglect of duty and extreme cruelty. He asked to be divorced from the plaintiff. The case was tried in October, 1888. The court allowed the plaintiff $1,500 alimony, and refused the defendant a divorce. A motion for a new trial was filed, and overruled by the court. A record was made and filed in this court. Subsequently the defend ant died, and the case was revived in the name of his administrators, who now ask for a reversal of the judgment of the district court.
It appears from the record that the plaintiff testified in her own behalf and rested. The defendant then offered his evidence; 10 or 11 witnesses, besides the defendant himself, gave their evidence orally, and the depositions of 10 witnesses taken in California were offered and read to the court. At the conclusion of the reading of the depositions, the court announced to the parties that he was ready to decide the case without further evidence being introduced, but would permit the parties to offer any evidence they desired to submit. The defendant’s counsel informed the court that he had other and further evidence he desired to introduce, and the plaintiff also announced that she had more witnesses ready to testify in her behalf, but if the court did not desire to hear them, and was ready to decide the case, she would not occupy the time of the court in introducing further evidence. The court then stated “that it did not think further testimony would affect the decision, but if counsel had anything of a different nature it would gladly be heard, and if desired all other testimony would be heard, and directed counsel to proceed if further testimony was desired to be introduced.” The defendant did not offer any further testimony. The court then rendered judgment without hearing argument of counsel.
It is urged that- the defendant below did not have a full, fair and impartial trial; that his counsel was misled by the statement of the court “that it did not think further testimony would affect the decision.” The evidence was not evenly balanced. Twenty-one witnesses had given evidence favorable to the defendant. The plaintiff had offered no evidence but her own. From the great weight of evidence, the natural inference would have been drawn from the statement of the court that sufficient evidence had been offered to entitle the defendant to a favorable decision, and he did not therefore offer further proofs. We can readily see how a party might be misled, where the preponderance of the evidence was largely in favor of the party who had not yet closed his case, by such a remark from the court as appears in this record. The statement, in our judgement, made as it was before the defendant had rested, was well calculated to mislead the losing party upon the trial. The rule and practice of courts is quite well understood to be, that when the trial judge is satisfied with the correctness of the position of counsel upon a legal proposition, in order to save time he will so inform him, and will then give the opposing counsel an opportunity to answer the position assumed to be correct. So, when the judge is a trier of the facts as well as of the law, and informs counsel that he does not care to hear any further evidence, it would be a very natural inference, especially when the evidence is largely in his favor, that the court is satisfied with the sufficiency of the evidence already adduced. The defendant in this case, we think, had reason to assume from the remarks of the court that no further testimony was necessary to establish his defense.
As to the methods and practice of introducing evidence, we realize that great discretion is necessarily committed to the trial court; but, to preserve the impartial administration of justice, the judge should at all times be guarded, and refrain from making any observations during the progress of the trial which might have a tendency to mislead counsel in presenting his proofs.
From the statements and recitations in the record, we are •of the opinion that the defendant below did not have a fair and impartial trial, that the action and statements of the trial judge were calculated to and doubtless did mislead counsel in the presentation of the evidence, and therefore recommend that the judgment of the district court be reversed, and that .a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In a statute enacted in 1887, it was provided that —
“Any person who shall, without contributing negligence on his part, sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of- such township shall have had like notice of such defect.” (Laws of 1887, ch. 237.)
An earlier provision of statute provides —
“That each road overseer, within his district, shall erect and keep up, at the expense of the township, posts or boards at the fords of every river or creek that in high water becomes impassable, which posts shall be set at, or near, low water-mark, on which shall be inscribed in legible letters, or plain figures, the depth of water at low water, together with a scale of feet showing the scale of feet above low water-mark to the height which said stream is known to have ever risen.” (Gen. Stat. of 1889, ¶ 5514.)
The plaintiff seeks to establish a liability against the township under the first provision, claiming that he sustained damage by reason of a defective highway. The only negligence attributed to the township in his pleading is the failure to put up water-marks at the crossing of the stream where his loss occurred. Is the township liable for the damages claimed by reason of such failure? We think not. No such liability exists unless it is expressly imposed by statute. (Eikenberry v. Township of Bazaar, 22 Kas. 556; Comm’rs of Marion Co. v. Riggs, 24 id. 255.) Under the statute quoted, the township may be required to respond in damages where the injury results from a defective bridge, culvert, or highway; but a water-mark, which is required to be placed at or near a ford, cannot reasonably be said to be a part of a bridge, culvert, or highway; and the neglect of the overseer to place such water-mark at a ford or crossing was not, we think, within the contemplation of the legislature in enacting the law of 1887, imposing a liability upon counties and townships. The duty of placing water-marks at every ford is not imposed on the township trustee or the township board, but on the overseer of the district; and it will be observed that the defects for which the township may be held liable must be brought to the notice of the township trustee, and not to the road overseer. If such a neglect of the overseer rendered the township liable, it is difficult to see how far the liability might be extended. In another provision the duty is imposed on him to erect and keep up posts and guide-boards at the forks of every state and county road, containing directions to such cities as are situated on the road, and naming the distances thereto. (Gen. Stat. of 1889, ¶ 5487.) In still another statute the overseer is required to remove, or cause to be removed, between the 15th day of June and the 15th day of July, from the public highways, all cockle-burs, Rocky Mountain sand-burs, burdocks, sunflowers, Canada thistles, and such other obnoxious weeds as may be injurious to the best interests of the farming community. (Gen. Stat. of 1889, ¶ 5517.) The neglect of the overseer to perform these duties may create a liability against him for injuries resulting from his failure; but we do not think that it was intended to impute such negligence to the township nor impose a liability upon the township for the failure of the road overseer to put up guide-boards and water-marks, nor to cut and remove sunflowers and cockle-burs in the proper season.
The facts stated in the pleading of the plaintiff below do not constitute a cause of action against the township, and the demurrer of the township should have been sustained.
The judgment of the district court will be reversed, and the cause remanded, with directions to sustain the demurrer of the township and give judgment in its favor.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Action brought by Ring & Smith against Erank E. Crane on an account for goods sold and delivered to him, at his request, amounting to $1,282.57, with. 7 per cent, per annum on the sum of $1,185.37 from the 30th of December, 1886, and, on $97.20, interest from October 7, 1887. Crane answered, admitting the correctness of the items making up the $97.20 which accrued in 1887, and alleged a tender of "that amount before the action was commenced, and offered to bring it into court and pay plaintiff. He denied, however, “all and singular, the allegations contained in the petition,” and “the items in the account, save and except those mentioned and admitted in the first paragraph of the answer.” In the fourth paragraph of the answer, he “alleged that about the 27th of December, 1886, plaintiffs delivered to the firm of Crane & Toms, of which the defendant and G. V. Toms were the members, the goods valued at $1,185.37,” and then set forth a special contract between the plaintiffs and the firm of Crane ■& Toms as to those items, and full performance on its part. He asked judgment for costs, “and that he might go hence without day.” Plaintiffs replied by a general denial. Trial before the court with a jury; verdict for plaintiffs for the whole demand; motion for a new trial overruled, and judgment on the verdict. Defendant below excepted, and brings the •case here.
Upon the trial, Ring & Smith offered evidence tending to prove that the goods in the account, amounting to $1,185.37, were sold and delivered on the 30th day of December, 1886, to Erank E. Crane, and not the firm of Crane & Toms. On the part of the defendant below, evidence was offered tending to prove that the firm of Crane & Toms received the goods to sell or trade off, under a special contract alleged in the answer. The court charged the jury, among other things —
“That if there was an actual sale and delivery of the goods set forth in the petition on the 30th of December, 1886, either to Crane or to the firm of Crane & Toms, the plaintiff was entitled to recover, although there was a partnership existing between Crane and Toms at the time of the purchase, and the firm made the purchase.”
It is contended that the answer of defendant below was in the nature of a plea in abatement, and that as Frank E. Crane only was sued, the plaintiff was not entitled to recover, if Crane & Toms were partners, and as such partners purchased the goods in the account sued on. It was said in Williams v. Muthersbaugh, 29 Kas. 730, that “In this state the statutes provide, among other things, that ‘All contracts which by the common law are joint only shall be construed to be joint and several;’ and‘In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or moré of those who are so liable;’” (Comp. Laws of 1879, p. 209, §§ 1-4;) and “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” (Civil Code, §396; see also Alvey v. Wilson, 9 Kas. 405; Pullam v. Abrahams, 29 id. 725; Smith v. Straub, 41 id. 7.)
Under the statute, as all contracts with partners are joint and several, each and every partner is liable to pay the whole claim or debt. In what proportion a copartner should contribute, is a matter merely among the partners themselves. We do not think, under the statutes and practice prevailing in this state, that the allegation in the answer of the purchase by the firm of Crane & Toms was sufficient to defeat the action, either as a plea in abatement or otherwise. The most that can be said in favor of the defendant below is, that there was a variance between the petition and proof, if it be assumed that the purchase of the goods mentioned in the account was made by the firm of Crane & Toms. But § 133 of the civil code provides that no variance between the allegations in a pleading and the proof is material, unless it has actually misled the adverse party to his prejudice. Clearly, the defendant below was not misled. As he is liable upon the account, whether he purchased the goods individually, or as a member of the firm of Crane & Toms, judgment was properly rendered against him. It does not appear that Crane asked or requested, by motion or otherwise, that G. V. Toms, or the firm of Crane & Toms, should be made parties defendant. Under the common-law practice, the rulings of the district court could not be sustained, but the statutes of our state permit a party who is personally liable upon a contract, or as a partner, to be sued individually.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Any error apparent in the final judgment of a district court may be corrected by proceedings in this court, although no exception was taken thereto by the party complaining, and no appearance by him at the trial and judgment, and no motion made to set aside the judgment. This case is properly here for the decision of this court. (Woolley v. Van Volkenburgh, 16 Kas. 20; Zane v. Zane, 5 id. 134; Lender v. Caldwell, 4 id. 339; Koehler v. Ball, 2 id. 160.) Section 59 of the civil code provides:
“That the summons shall be directed to the sheriff of the county, and command him to notify the defendant or defendants named therein that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, or the petition will be taken as true, and judgment rendered accordingly; and where the action is on contract for the recovery of money only, there shall be indorsed on the writ the amount, to be furnished in the prceeipe, for which, with interest, judgment will be taken, if the defendant fail to answer.”
According to ¶ 3354, Gen. Stat. of 1889, where the insurance company of another state or foreign government is sued, the summons must he directed to the superintendent of insuranee, and shall require the defendant to answer by ; ^ 1 J a certain day, not less than 40 days from its date; form 0f the summons, except its direction to the superintendent of insurance, must be the same as that provided for in § 59 of the civil code.
Upon the face of the policy, attached to and made a part of the petition, is an express contract between the Southern Kansas Farm Loan and Investment Company, the mortgagee of W. T. Coverdale, and the Westchester Fire Insurance Company. This contract is certainly legal in all of its terms. It provides that if there is any loss under the terms of the policy issued on the 6th day of August, 1888, such loss is payable to the loan and investment company, the mortgagee, not to anyone else. Under the “mortgage clause” of the policy, if the premises described in the petition have been destroyed by fire, as alleged, the loan and investment company may maintain an -action for the loss in its x n , _ own name. Its interest is distinct from that of Coverdale, the owner of the premises. (Insurance Co. v. Olcott, 97 Ill. 439.)
The loan and investment company is not a party plaintiff or defendant in this action. There were no allegations in the petition that the mortgage referred to has been paid, or that the loan and investment company has transferred or assigned its claim for loss to the plaintiff below. As under the express language of the policy, or the “mortgage clause,” all loss is payable directly to the loan and investment company, Coverdale is not entitled to recover upon the allegations contained in this petition. He is not the payee, and, in order to recover, he must allege the payment of the mortgage held by the loan and investment company, or that the rights of such company have been transferred or assigned to him. Under the “mortgage clause,” the loan and investment company is entitled to receive the full amount of the insurance money, without any regard to Coverdale. If Coverdale were permitted to recover upon the allegations of his petition, construed in connection with the policy of insurance, which is a part thereof, the judgment would be no bar to an action by the loan and investment company for the amount of the loss. Clearly, two actions cannot be maintained upon the same policy by different parties for the recovery of the whole amount insured. (Insurance Co. v. Olcott, supra; Hastings v. Insurance Co., 73 N. Y. 141.) In the latter case it was said: “ In ease the loss is payable to a third person, who has no interest in the property insured, but only claims the insurance as collateral security for liabilities incurred prior to the insurance, the latter only can maintain an action on the policy as an appointee of the owner who is authorized to receive the same.” (Frink v. Insurance Co., 31 How. Pr. 30; 45 Barb. 384; Case v. Insurance Co., 3 N. Y. S. C. [T. & C.] R. 33, 39; Merwin v. Insurance Co., 7 How. 659, affirmed in Court of Appeals; May, Fire Ins., 460; Flanders, Fire Ins., 441, 442.)
The rules laid down in the authorities cited have no application, however, to a case where a provision has been inserted in the policy which places the mortgagee upon another and a different footing from that of a mere assignee or appointee to receive the loss. The mortgage clause was agreed upon for this very purpose, and created an independent and a new con tract, which-removes the mortgagees beyond the control or the effect of any act or neglect of the owner of the property, and renders such mortgagees" parties, who have a distinct interest, separate from the owner, embraced in another and a different contract. The tendency of the recent cases is to recognize these distinctions, and thus protect the rights of the mortgagee, when named in the policy, and the interest of the owner and of the mortgagee are regarded as distinct subjects of insurance. (Insurance Co. v. Insurance Co., 55 N. Y. 343; Insurance Co. v. Allen, 43 id. 392.)
The judgment of the district court will be reversed, and the case remanded for further proceedings, in accordance with the views expressed herein.
All the Justices concurring. | [
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Opinion by
Strang, C.:
January 22, 1889, the plaintiff, who was plaintiff below, filed her petition in replevin alleging absolute ownership in herself of certain personal property, the right to immediate possession, and wrongful detention of the same. The answer admitted the taking of the property by the defendant, Woollen, sheriff of the county, on an attachment issued in the suit of Case, Bishop & Co. against Henry Peterson, husband of the plaintiff, but as, an answer to the plaintiff’s claim to said property, and as matter of estoppel, alleged that when said property was attached as the property of Henry Peterson, the plaintiff joined said Henry Peterson in executing a redelivery bond for the return of said property. To the answer the plaintiff replied that the defendant should not be allowed to avail himself of the matter of estoppel set out in his answer because the officer having such property in his hands as the property of Henry Peterson obtained her signature to said redelivery bond by fraudulent misrepresentations. A demurrer was filed 'to the reply, alleging that the facts therein stated were insufficient to avoid the answer. This demurrer was sustained. The plaintiff refused to plead over and brings the case here for error.
The only question in the case is, was the plaintiff estopped from recovering in her action by reason of having joined her husband in the execution of a redelivery bond when the same property was attached as his property in a proceeding against him in favor of the defendants Case, Bishop & Co.? It is well settled that signing a redelivery bond as surety estops the surety from subsequently claiming the property as against the sheriff or the attachment plaintiff, unless the surety was induced to sign the redelivery bond by a fraudulent misrepresentation of facts. (Sponenbarger v. Lemert, 23 Kas. 55; Haxtun v. Sizer, 23 id. 310; Wolf v. Halm, 28 id. 588.)
In this case the defendants claim that the plaintiff is es-topped from claiming the property described in her petition by having signed the redelivery bond with her husband, when the property was attached in a proceeding against him by Case, Bishop & Co. The plaintiff admits signing the redelivery bond, but says she is not thereby estopped from claiming the property, because she was induced to sign the redelivery bond by fraudulent misrepresentations made by the officer who took the bond. The defendants answer this proposition by saying that there was no misrepresentation of facts by the officer when the plaintiff signed the redelivery bond, and that any statement by the officer as to the effect of her signing the bond was simply the opinion of the officer as to the legal effect of her act, and will not aid her to avoid the estoppel created by signing the redelivery bond. The allegation in the reply is, that the officer told the plaintiff that “if she would sign the bond they would let her keep the property, but that unless she signed the bond they would take the property from her; but if she signed they would stand between her and all harm, and she would save her property ; that the signing of said bond would not affect her rights in such property, nor prevent her from claiming the same.”
Now, were these statements of the sheriff and his deputies to the plaintiff a misrepresentation of facts, or a mere opinion as to the legal effect of her act in signing said bond? We think they amount to no more than an opinion of the legal effect of her signature as a surety on said bond. She was fully apprised of all the facts surrounding the subject. She knew that Case, Bishop & Co. had begun an attachment proceeding against her husband, and that the officer had attached the property in question as his property, and that the officer would remove the property unless a redelivery bond was executed, and that if the bond was executed the property would not be removed by the officer, because he so informed her. She also knew, if true, that the property attached as the property of her husband belonged to her. These were all the facts necessary for her to be in possession of, so far as the transaction was concerned. She was in possession of all these facts without reference to the statement of the officer to her, except perhaps the fact that, unless a bond was executed, the officer would remove the goods. His statement to that effect was not a misrepresentation of a fact, since the law made it his duty to remove the goods unless a redelivery bond was given. What it is likely the plaintiff did not know was, the law in relation to the legal effect of her act in signing the bond, although in law it is presumed that she did know. Not knowing the legal effect of her act in executing with her husband the redelivery bond, she relied on the opinion of the officer, and was misled. But in law she had no right to rely on the opinion of the officer, or of any person whose interest was adverse to her own; hence the fact that she did rely on the opinion of the officer, and was thus misled, will not aid her in avoiding the estoppel created by signing the bond. (Fish v. Cleveland, 33 Ill. 243; Upton v. Tribilcock, 91 U. S. 45—50; Insurance Co. v. Reed, 33 Ohio St. 283; Dillman v. Nodlehoffer, 7 N. E. Rep. 88; Reed v. Sidener, 32 Ind. 373; Jagger v. Winslow, 30 Minn. 263; Catlin v. Fletcher, 9 id. 85; Kenyan v. Wetty, 20 Cal. 659; Corning v. Grabe, 21 N. W. Rep. 662; Glenn v. Stoller, 42 Iowa, 107.)
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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