text
stringlengths 9
720k
| embeddings
sequencelengths 128
128
|
|---|---|
The opinion of the court was delivered by
Herd, J.:
This is a criminal case wherein defendants Carl Wenzel and Gregory Chism appeal their jury convictions of first-degree felony murder, K.S.A. 21-3401, for which they were given life sentences.
Wenzel and Chism were together with their wives Penny Wenzel and Carlene Chism at a nightclub on August 24, 1985. They learned Ron Hawkins and his girlfriend, Teresa Stanhope, were throwing an after-hours party at a hotel and would not be returning home that night. Chism had been in Hawkins’ home in the past and knew he kept cocaine and money hidden in a heating vent in one of the bedrooms. A little before 3:00 a.m., when the club closed, the appellants’ wives rode home with a friend because both men were intoxicated.
Around 4:00 a.m., Anita Thomas, Hawkins’ next door neighbor, heard sounds in Hawkins’ yard as if someone were moving something large out of his house. She heard someone say, “Take it over there. Go over there by the truck.” She then heard a loud bang which awakened her husband, Michael, who believed the sound to be a gunshot. Michael Thomas called the police at that time.
The Thomases looked out their window and saw a window air conditioner laying by a truck. They also saw two men behind some cars struggling to obtain an object which they later learned was a rifle. They saw the taller of the men move the gun in an up-and-down motion as if he was beating something on the ground, while the other kicked and hit at something on the ground. Michael Thomas testified the two men stepped away from the cars several times and conferred between themselves before returning to the area where they continued to beat at something on the ground. The couple heard the taller man yell, “Give me that gun, let go of the gun, lay down, keep him down, stay down, you’re not going to die. I’m going to blow your . . . balls off.” They saw the taller man push the rifle towards the ground and heard another shot, muffled this time. The two men left in what looked like a white or a light-colored Monte Carlo. Both men were stumbling as if drunk. The taller of the men wore glasses. Chism, the taller of the two appellants, wears glasses and owned a white Oldsmobile.
An officer responding to the call saw two white males driving erratically in a light-colored Oldsmobile as he approached the scene. The police found Raymond Messerschmidt, who lived in the top apartment of Hawkins’ house, lying dead on the ground. He had died from a gun blast through his groin. He had cocaine in his system as well as on his person.
Laying in the yard were the air conditioner from Hawkins’ bedroom window and the stock of a semi-automatic Mini-Ruger 14 rifle, later determined to be the deceased’s. Some of the wounds on Messerschmidt, who had been severely beaten, matched the butt of the rifle.
The two appellants asked their wives to provide an alibi for their whereabouts during the critical hours of the morning. They admitted killing Messerschmidt, but said it had been accidental. They said they went to Hawkins’ house to steal money and drugs from the heating vent when they were interrupted by Messerschmidt, who had come downstairs and around the corner of the house with a rifle. They tackled him and tried to get the rifle away from him, but he was tremendously strong and would not give it up. They said they had been unarmed on their arrival at Hawkins’ house and had thrown the remains of Messerschmidt’s rifle in a creek before coming home.
The women first gave the prepared alibi stories to the police that appellants had returned home soon after their own departure from the nightclub. The women told the truth, however, after being told charges could be brought against them for aiding and abetting. Carlene was represented by an attorney when she made her statement to the State; Penny had received the advice of an attorney earlier.
Chism and Wenzel were charged as codefendants with first-degree murder in the alternatives of premeditated murder or felony murder while in the perpetration of the crime of burglary or attempted burglary, K.S.A. 21-3401. The appellants stuck to their original alibi stories to the police and did not testify at trial. They were tried together but filed separate appeals. The two appeals are consolidated in this opinion.
Appellants’ first issue on appeal is whether the trial court erred in ruling as a matter of law, for the purposes of certain instructions, that Chism and Wenzel had committed, or attempted to commit, a felony and were within the res gestae of the crime when the fight began.
Appellants argue the trial court erred in failing to instruct on the lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. Wenzel also protests the court’s failure to give a requested instruction on misdemeanor theft. A trial court generally has the duty to instruct on the full range of lesser included offenses. Where the commission of a felony results in a death, however, the normal rule on lesser included offense instructions does not apply. State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850 (1977). The felonious conduct in such a case is held to supply the elements of premeditation and intent that are otherwise required to establish firstdegree murder. State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988). If the undisputed evidence is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser offenses are not required. State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979).
The State’s evidence showing an attempted burglary was in progress when Messerschmidt was shot and killed consisted of the eyewitness testimony of the Thomases, and the testimony of Teresa Stanhope, Ron Hawkins, and the appellants’ wives. Appellants argue their wives were coerced into giving their first statements against them. They also contend their wives’ testimony was suspect because they were not interrogated until many months after the crime, during which they had heard different theories of the crime from many people. Appellants argue the testimony of Teresa Stanhope and Ron Hawkins was suspect because they were granted immunity by the State. They also argue everyone’s testimony was suspect because a reward was offered for information leading to the arrest and conviction of Messerschmidt’s killer.
There was clear, uncontradicted evidence the appellants were in the process of burglary when the death occurred. Appellant’s attack on the witnesses’ credibility does not, under the circumstances of this case, render the undisputed evidence against the defendants weak or inconclusive. See State v. Armstrong, 240 Kan. 446, 460, 731 P.2d 249 (1987). The evidence would convince a reasonable person a felony had been committed; thus, the court did not err in failing to instruct on lesser included offenses.
The court did not err in refusing to instruct on misdemeanor theft, as appellants were charged only with murder. Theft is not a lesser included offense of murder. The appellants could not have been properly convicted of theft. State v. Giddings, 226 Kan. 110, 113-14, 595 P.2d 1115 (1979).
The court ruled the appellants were either guilty of the underlying felony or, if the jury found the witnesses’ testimony not to be credible, of no crime at all. Appellants argue there was a reasonable doubt they had the specific intent required to commit burglary because the evidence was uncontradicted that they had been drinking heavily. The court gave instructions on intoxication as affecting specific intent and the elements of burglary and attempted burglary which require the specific intent to commit a theft within the house. The jury was thus allowed to consider whether the appellants were not guilty of burglary because they lacked specific intent. Appellants’ argument is therefore without merit.
Appellants also argue the court erred in summarily finding the death occurred within the res gestae of the felony and thus refusing their instructions on time, distance, and the causal relationship between the underlying felony and the killing. They argue the jury could have found they had abandoned their felonious purpose when frightened by Messerschmidt. The facts show this argument has no merit. The attempt statute, K.S.A. 1987 Supp. 21-3301, specifically states an attempt has been committed when a person intentionally makes an overt act “but ... is prevented or intercepted in executing such crime.” The evidence was conclusive the death occurred within the res gestae of attempted burglary. Appellants were on Hawkins’ property at night, contraband was laying close by, and Messerschmidt was killed at this same location. Thus, the court did not err in finding the issue was not one for the jury. See State v. Rider, Edens & Lemons, 229 Kan. 394, 399-400, 625 P.2d 425 (1981), where the evidence was not weak or inconclusive that defendants shot a man who appeared to be armed and who pursued them for some unknown reason 15 minutes into their getaway from a robbery. We held the shooting was within the res gestae of the underlying felony as a matter of law, and the question need not be determined by a jury. The court thus did not err in failing to instruct on self-defense and lesser included offenses. The time, distance, and causal relationship between the underlying felony and the killing are stronger in the case at bar. Messerschmidt’s interception of the appellants was clearly caused by their attempted felony, and his death occurred shortly afterwards in his and Hawkins’ yard.
Appellants also argue the court erred in failing to give the instructions because the jury could have found the appellants had not yet reached the overt act required to be guilty of felony murder. They contend the court erred in instructing the jury that to establish the crime of attempted burglary, the State must prove “[t]hat the defendant(s) performed an act toward the commission of the crime of Burglary, to-wit: enter the backyard of 2410 North [sic] Douglas, Wichita, Kansas . . . with the intent to commit the crime of Burglary.” In its bill of particulars, the State had claimed the appellants had committed the underlying felony of burglary or attempted burglary by removing the air conditioner.
It is necessary to show both intent and an overt act toward the commission of the crime to prove an attempt. K.S.A. 1987 Supp. 21-3301; State v. Gobin, 216 Kan. 278, 531 P.2d 16 (1975). There is no definitive rule as to what constitutes an overt act; each case depends on the inferences a jury may reasonably draw from the facts. It must be shown the defendant took a step beyond mere preparation so that some appreciable fragment of the crime was committed. In some cases, the intent to commit the felony is so clearly shown by other evidence that it is enough that the defendant arrived at the scene at which he planned for the crime to occur. See State v. Garner, 237 Kan. 227, 238-40, 699 P.2d 468 (1985). Under the circumstances of the case at bar, the juiy could have reasonably found the overt act had been committed when the appellants entered the victim’s backyard. The determination of the existence of an overt act is a jury function, however, and the court erred in taking it from them. State v. Sullivan b Sullivan, 224 Kan. 110, 125-26, 578 P.2d 1108 (1978). In light of the evidence, however, the error was harmless as it did not mislead the jury when appellants’ instructions and evidence are considered as a whole. All evidence pointing to the appellants’ trespass also pointed to them removing the air conditioner. There was absolutely no evidence from which it could be inferred the appellants were intercepted before they removed Hawkins’ air conditioner in preparation for entering his house for purposes of theft.
Appellants next argue the jury should have been instructed on foreseeability, contending it was a question of fact whether they could have reasonably foreseen a death would occur, as they were not armed. Whether a felony is inherently dangerous is to be determined in the abstract, rather than by the circumstances in a particular case. State v. Underwood, 228 Kan. 294, Syl. ¶ 5, 615 P.2d 153 (1980). We have previously held burglary is a forcible felony inherently dangerous to human life because it necessarily involves potential confrontation. K.S.A. 21-3110(8); Smith v. State, 8 Kan. App. 2d 684, 688, 666 P.2d 730 (1983). Where the underlying felony is one inherently dangerous to human life, the foreseeability requirement is established as a matter of law. State v. Giddings, 226 Kan. at 112-13. The argument is without merit.
Wenzel separately argues the court erred in refusing his instruction that one who was only an aider and abettor must have been able to reasonably foresee that a death could occur. Wenzel was equally responsible for the conduct of Chism when he intentionally aided Chism in the commission of the attempted burglary. See State v. Sullivan & Sullivan, 224 Kan. at 119. It is irrelevant which appellant actually shot Messerschmidt, as all participants to an underlying felony are principals to felony murder when death occurs. State v. Hoang, 243 Kan. at 42. The rules of felony murder thus apply equally to both appellants. See State v. Giddings, 226 Kan. 110. We find no error.
The appellants argue the court erred in removing the issues of self-defense and accident from the jury’s consideration by refusing both their instruction on self-defense, and numerous instructions pertaining to Messerschmidt’s presumably unlawful acts. A victim’s actions in trying to stop a felony are irrelevant. Self-defense or accident are not defenses to felony murder. It is the purpose of the felony-murder rule to prevent deaths from these causes. State v. Hoang, 243 Kan. at 42; State v. Underwood, 228 Kan. 294.
A separate issue is whether, even if the court was correct in refusing the appellants’ instructions under felony-murder rules, it erred in not giving the instructions because the appellants were charged with premeditated murder as an alternative to felony murder. Appellants argue, because the State refused to elect, the premeditated murder charge should be considered entirely separate from the felony. This procedure was followed by the trial court in State v. Strauch, 239 Kan. 203, 218, 718 P.2d 613 (1986), wherein the court gave lesser included instructions on the alternative charge of premeditated murder (of which the defendant was convicted), but refused to instruct on lesser offenses under the felony-murder charge because evidence of the underlying felony was not weak or inconclusive. We affirmed.
The State is not required to elect between premeditated and felony murder. The statute establishes but one offense, murder in the first-degree, and only provides alternative methods of proving the required elements of premeditation and intent. The first is by direct proof, the second by proving the underlying felony. State v. Wise, 237 Kan. 117, 120-21, 697 P.2d 1295 (1985). We held in Wise the court did not err in failing to instruct on lesser included offenses where the defendant was charged with both premeditated and felony murder. However, in that case, the defendant did not request the instructions and relied on an alibi defense. See State v. Hutton, 232 Kan. 545.
In State v. Sullivan & Sullivan, 224 Kan. 110, the defendants were charged with premeditated and felony murder. The evidence showed one of the defendants was standing some distance from a farmhouse in preparation for burglarizing it, although he denied this purpose. He shot and killed a man who came out of the house, but said it was accidental, that he had meant to shoot a dog in self-defense. We held a determination of whether instructions on lesser included offenses should have been given depended on whether the evidence would have compelled the jury to find the defendant had committed an overt act constituting attempted burglary. The charge of premeditated murder did not change the determination to be made. We held the evidence was not so compelling; thus, the court erred in failing to give lesser included offense instructions. In Sullivan & Sullivan, there was no evidence the defendant had done more than trespass before the shooting occurred. He was still a long distance from the house. In the case at bar, the evidence is uncontroverted that appellants had removed the air conditioner from the room they believed contained a cache of drugs and money before they were intercepted. We hold the evidence of the underlying felony was so compelling that the court did not err in failing to instruct on lesser included offenses.
The third issue is whether the trial court erred in failing to declare a mistrial or admonish the jury because of prosecutorial misconduct during final argument.
The prosecutor commented that Carlene, Chism’s wife, obviously did not want to repeat at trial certain things she had previously told the State; for example, that the appellants “were going after money and drugs.” Defense counsel objected this was outside the evidence. The court replied it did not think it was, but admonished the prosecutor to stay within the evidence. The court then granted defense counsel’s request to approach the bench for argument.
Penny Wenzel’s pretrial statement had been that one of the appellants said they went to Hawkins’ house to steal money and drugs. When the State asked Carlene, before trial, if Chism made this statement, she said she did not remember who made the statement, although she remembered it being made. She then added she did not remember drugs being mentioned.
At trial, Penny gave the same testimony and Carlene testified she could not remember who had made the statement about the appellants trying to steal money and drugs. She did remember that one of the appellants had admitted they were trying to get into the house for some purpose.
Defense counsel thus was technically correct that Carlene had not said the appellants “were going after money and drugs.” The trial judge should not have commented on his memory of the testimony, as it was not necessary for him to do so. See State v. Starbuck, 239 Kan. 132, 134, 715 P.2d 1291 (1986).
In closing argument, the stating of a fact contrary to the evidence is clearly improper. State v. Bradford, 219 Kan. 336, 339-40, 548 P.2d 812 (1976). In deciding whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial. State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976). In view of the overwhelming amount of other evidence that the appellants were in the process of burglarizing the house, the error does not affect the substantial rights of the parties and is harmless. See K.S.A. 60-261.
Appellant Wenzel cites an additional objection to the prosecutor’s closing argument. In countering appellants’ theory that Stanhope testified in hopes of reward money, the prosecutor stated, “It’s a natural reaction to want to help the police. Those types of things shock the conscience of any responsible member of our community.” The court then granted defense counsel’s request to approach the bench. It denied counsel’s request for mistrial, but instructed the jury to disregard the comments. The prosecutor later told the jury at the end of his argument, “You are the conscience of this community.” The court again granted a bench conference and denied appellant’s motion for a mistrial. Instead of striking the statements, however, it merely instructed the jury it was to consider only the evidence, and comments by counsel during closing argument were not evidence.
Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial. Under the facts of the case at bar, the appellants have failed to meet their burden of showing such prejudice.
The fourth issue is whether the conduct and comments of the trial court denied the appellants a fair trial. A trial court has broad discretion in controlling the proceedings at trial. State v. Hamilton, 240 Kan. 539, 541-45, 731 P.2d 863 (1987). Allegations of judicial misconduct must be decided on the particular facts and circumstances of each case. Reversal is required only when the appellant has shown the conduct prejudiced his substantial rights. State v. Kendig, 233 Kan. 890, 896, 666 P.2d 684 (1983). We have carefully reviewed the record and find nothing which constitutes reversible error in the court’s conduct. The trial judge used admirable restraint even though defense counsel gave him every opportunity to err. There were times when it was appropriate for the court to halt the proceedings to clear up matters which had become confused. The court tried to handle such matters outside the hearing of the jury. The judge was, with few exceptions, quite agreeable to all requests to confer at the bench or to excuse the jury. The court clearly instructed the jury it should disregard any comments it might hear the court make to counsel, as the court had no opinion of, and meant to make no indication whatsoever of, the merits of the case for either side. This issue is without merit.
The final, related issue is whether the court erred in instructing the jury that it is proper for the State to grant immunity to prospective witnesses, but it is for the jury to decide the credibility and weight to be given to the testimony. The appellants argue the instruction was an improper comment on the propriety of the State’s action. The instruction was a correct statement of the law. State v. Sullivan & Sullivan, 224 Kan. at 123. Defense counsel challenged the credibility of Stanhope and Hawkins at trial because they had been granted immunity. The court properly allowed this tactic, but informed counsel during a bench conference it was concerned the questioning had gone beyond impeachment of credibility and into the area of asking one witness about her knowledge of the law concerning immunity. Considering the circumstances of defense counsel’s emphasis, the court acted within its discretion and properly and fairly stated the law as it applied to the facts in the case. State v. Ferguson, Washington It Tucker, 228 Kan. 522, 527-28, 618 P.2d 1186 (1980).
The judgment of the trial court is affirmed.
Prager, C.J., and Lockett and Allegrucci, JJ., dissenting. | [
112,
-22,
-39,
-66,
24,
-32,
42,
-68,
42,
-25,
-14,
51,
-51,
-5,
69,
121,
-21,
95,
84,
-31,
-109,
-73,
7,
33,
-14,
51,
58,
-64,
-78,
78,
62,
-41,
45,
100,
-114,
85,
-26,
-104,
-25,
30,
-122,
5,
-79,
96,
-110,
18,
36,
58,
6,
15,
49,
14,
-29,
42,
85,
-113,
73,
40,
67,
-87,
80,
57,
-119,
7,
-117,
18,
-122,
2,
-100,
-91,
-8,
22,
-99,
49,
24,
104,
113,
-92,
-128,
116,
109,
-115,
-124,
38,
98,
0,
-39,
-50,
-23,
-119,
31,
35,
-99,
7,
-71,
113,
1,
100,
-106,
31,
100,
53,
-86,
-28,
107,
85,
73,
100,
-92,
-37,
-108,
-127,
-19,
50,
-36,
-6,
-55,
39,
36,
117,
-53,
-30,
94,
69,
120,
-101,
9,
-44
] |
The opinion of the court was delivered by
Miller, J.:
The City of Arkansas City, Kansas, the City of Hesston, Kansas, and the Southwest National Bank, Wichita, Kansas, fiscal agent for the Cities, plaintiffs in this action, appeal from the judgment of the district court of Johnson County, Kansas, refusing to set aside as fraudulent two conveyances of Johnson County land by the defendants, A. Scott Anderson and E. Sylvia Anderson, to two closely held corporations, defendants K-M Land Co. and Louisburg Grain Co., Inc. A panel of the Court of Appeals, in an unpublished opinion filed March 3, 1988, affirmed the trial court, one judge dissenting. We granted review.
The controlling issue raised on appeal is whether the trial court’s decision is supported by substantial, competent evidence. We hold that it is not.
We shall first state the facts in a somewhat chronological order. Sometime prior to 1980, the City of Arkansas City and the City of Hesston issued industrial revenue bonds to finance the purchase of real estate and the construction of motels. Arkansas City issued bonds in the amount of $2,500,000 and Hesston in the amount of $650,000. The motel erected in Arkansas City was leased to the Main Corporation and that in Hesston to the K-A Corporation. The principals in both corporations were Dr. Herbert L. Ketterman and A. Scott Anderson. The Kettermans and the Andersons personally guaranteed the principal, redemption premiums, and interest on the industrial revenue bonds. About 1980, Dr. Ketterman bought Anderson’s interest in the Main Corporation and gave Anderson an indemnity agreement; this, however, did not release the Andersons from their personal guarantee to the City of Arkansas City.
Both the Main Corporation and K-A Corporation defaulted on their lease payments in 1982. In June 1983, the Cities and the Bank filed suit against the respective corporations, the Kettermans, and the Andersons. Arkansas City filed its suit in the district court of Cowley County; Hesston filed its suit in the district court of Harvey County. Both suits sought judgment against the lessee corporations (the Main Corporation in the Arkansas City suit, the K-A Corporation in the Hesston action) and against the Kettermans and the Andersons for any deficiency in making the bondholders whole. Shortly after these state court lawsuits were filed, both corporations filed petitions in bankruptcy. The bankruptcy court later removed the stay so that the state court actions could proceed against the corporations and the guarantors, the Kettermans and the Andersons.
Ketterman owned substantial property, and Anderson expected Ketterman to pay the Cities’ claims. However, on May 1, 1984, Dr. Herbert L. Ketterman was charged with criminal offenses, wholly unrelated to this case, in Johnson County. Ketterman spent the next nine months putting his affairs in order and liquidating his assets. None of the proceeds were applied to his obligations to the Cities. Ketterman was in the penitentiary at the time this case was tried; apparently he is insolvent.
The Cowley County case was originally set for trial on May 8, 1984. However, by letter dated May 7, 1984, the trial judge, the Honorable Robert Bishop, notified all parties or their attorneys that trial would be held on July 6, 1984. Also on May 7, 1984, the Andersons signed articles of incorporation for K-M Land Co. a Kansas corporation. On May 15, the articles were filed with the Secretary of State, and on May 22, with the Johnson County Register of Deeds. The Andersons were the sole owners and stockholders of K-M Land Co. On June 4, the Andersons signed and executed a warranty deed conveying their undivided % interest in and to certain very valuable tracts of land at 119th and Antioch Streets, near the Switzer Bypass (now U.S. Highway 69), in Overland Park, Kansas, to K-M Land Co. The deed was filed for record in the Register of Deeds’ office on June 15, 1984. That is one of the conveyances in issue here.
On June 18, the Andersons conveyed an undivided 7.5% interest in certain property located at 119th Street and Pflumm Road to David Miller, their certified public accountant. Testimony indicates that the conveyance was in part payment for past services rendered by Miller. On July 3, Dr. Herbert Ketterman and Scott Anderson, as general partners of Land Opportunities Co., conveyed property at 119th Street and U.S. Highway 69 to James A. Goode Construction Co., Inc. Neither of those conveyances is attacked here.
On July 6, 1984, trial was held in Cowley County in the Arkansas City case. Defendants did not contest the plaintiffs’ allegations at trial. Judgment was entered in favor of the plaintiffs, Arkansas City and the Bank, and against the Andersons and others, for the sum of $2,604,029.49 plus interest at 8.421% from and after July 6, 1984. The journal entry of judgment was filed on November 15,1984. In Harvey County, trial was held on October 11, 1984. Judgment was entered in favor of the City of Hesston and the Bank, and against the Andersons, for $585,000 plus interest at 8.4774% from and after September 1, 1983. The journal entry of judgment was filed on November 18, 1984. Attested copies of the journal entries of judgment in both cases were filed in the office of the clerk of the Johnson County District Court on December 21, 1984.
Meanwhile, on December 10,1984, the Andersons conveyed a Va interest in a nineteen-acre tract of land on the east side of U.S. Highway 69 and north of 119th Street, in Overland Park, to Louisburg Grain Co., Inc., another entity wholly owned by the Andersons. The deed was filed for record on December 12. That is the second conveyance in issue here. Plaintiffs seek to set both deeds aside. On August 6, 1984, A. Scott Anderson wrote to Eugene D. Brown with reference to the tract conveyed to K-M Land Co. on June 4, 1984. Anderson indicated that he would be interested in a cash offer of $2 or more per square foot, “provided there is provision for trade in the contract.” He explained that his 25% ownership had been conveyed to K-M Land Co. of which he was the president. On August 17, the Andersons, as directors of K-M Land Co. approved the sale of some of the same land to T. J. Kline, Inc. On August 20, a real estate contract was entered into between K-M Land Co. and other owners, and T. J. Kline as buyer, for a price of $4,000,000.
On January 21, 1985, Louisburg Grain Co., Inc., and other owners entered into a contract to sell 19 acres of land on the east side of U.S. Highway 69 to Chasewood Company for $1.90 per square foot, or in excess of $1,500,000.
In March of 1985, the John Sims Trust was created to acquire and hold Missouri real estate for K-M Land Co. The Andersons and their children were beneficiaries of the trust. On March 14, 1985, K-M Land Co. conveyed to T. J. Kline, Inc., part of the tract previously conveyed by the Andersons to K-M Land Co. K-M Land Co. received $1,053,197 as its share of the proceeds of this sale. On the same day, March 14, 1985, T. J. Kline, Inc., conveyed 200 acres of McDonald County, Missouri, land to the John Sims Trust.
Mr. Anderson testified in substance that K-M Land Co. was created for estate tax purposes. He and Mrs. Anderson conveyed land to K-M Land Co. in return for all of the stock in the corporation. They then gave shares of stock in the corporation to their seven children. They transferred some of their stock in K-M Land Co. to their children in 1984 and some in 1985. There was testimony that a gift tax return was prepared to report these gifts of stock. Anderson had received advice on such estate planning in 1982 and 1983 from several sources, including two accounting firms and a lawyer. The Andersons had previously created Lost Valley Ranch, a Missouri corporation, conveyed their home farm in Missouri to that corporation, received stock in return, and gave stock to their seven children, all in 1983.
On October 23, 1985, the Cities of Arkansas City and Hesston, together with their fiscal agent on the industrial revenue bonds, Southwest National Bank of Wichita, Kansas, filed this suit against the Andersons, K-M Land Co., and Louisburg Grain Co., Inc., in Johnson County District Court, claiming that the deeds conveying the tracts of Johnson County land to K-M Land Co. and Louisburg Grain Co., Inc., were made “with the intent to hinder, delay and defraud their creditors ... in violation of K.S.A. 33-102.” Plaintiffs sought to have the conveyances from the Andersons to the two corporations set aside, annulled, and held utterly void. The trial judge held that the conveyance of December 12, 1984, to the Louisburg Grain Co., Inc., was made because the original deed from the Andersons to the grain company was lost or misfiled. The judge then discussed the evidence in light of the badges of fraud identified in Koch Engineering Co. v. Faulconer, 239 Kan. 101, 105, 716 P.2d 180 (1986), and concluded that the evidence here failed to establish the intent of the Andersons or that either conveyance was fraudulent. Plaintiffs appeal, and we reverse.
K.S.A. 33-102 has been a part of Kansas statutory law since 1868. It provides:
“Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”
Plaintiffs contend that the two conveyances by the Andersons to their wholly owned corporations, made on the eve of or shortly after judgment, are fraudulent and void under that statute. Before going further, it will be helpful to review what we have recently said regarding the law of fraudulent conveyances. In Koch Engineering Co. v. Faulconer, 239 Kan. at 105-08, we said:
“We turn now to the determinative issue on appeal — whether the decision is supported by substantial, competent evidence, and whether the trial court applied the proper burden of proof under the circumstances of this case. Our court recently set out the elements of fraudulent conveyance and enumerated six badges or indicia of fraud in Credit Union of Amer. v. Myers, 234 Kan. 773, 778, 676 P.2d 99 (1984):
“ ‘In general, the elements which comprise a fraudulent conveyance are first, an intent on the part of the grantor to hinder, delay or defraud his creditors and second, the participation of the grantee in such fraudulent scheme or such knowledge on the latter’s part of facts and circumstances as would import knowledge of the fraud to him. This court has recognized six badges or indicia of fraud. The badges or indicia of fraud are: (1) a relationship between the grantor and grantee; (2) the grantee’s knowledge of litigation against the grantor; (3) insolvency of the grantor; (4) a belief on the grantee’s part that the contract was the grantor’s last asset subject to a Kansas execution; (5) inadequacy of consideration; and (6) consummation of the transaction contrary to normal business procedures.’
“The above list, of course, is not intended to be exclusive. As the Supreme Court of Oklahoma said:
“The possible indicia of fraud are so numerous that no court could pretend to anticipate and catalog them.” ’ Toone v. Walker, 115 Okla. 289, 291, 243 Pac. 147 (1926).
Similarly, in 37 Am. Jur. 2d, Fraudulent Conveyances § 10, we find:
“ ‘The facts which are recognized indicia of fraud are numerous, and no court could pretend to anticipate or catalog them all.’
Also, in 37 C.J.S., Fraudulent Conveyances § 79:
“ ‘While some courts, without purporting to set forth an exhaustive list, have enumerated many of the more common badges of fraud, the possible indicia of fraud are so numerous that no court could undertake to anticipate and catalog them all; they are as infinite in number and form as are the resources and versatility of human artifice.’
“The general rule is, of course, that fraud is never presumed and must be established by clear and convincing evidence. The burden of establishing fraud is upon the party asserting it. Direct evidence of fraud is not always available; more frequently fraud must be established by circumstantial evidence.
“As we said in Syl. ¶ 2 of Credit Union of Amer. v Myers, 234 Kan. 773:
“ ‘Honesty and fair dealings are presumed, and one charging fraud must prove the same. Direct proof of fraud can seldom be obtained. Such evidence is not absolutely essential to establish the dishonest purpose of the parties to a pretended transfer of property. The fraudulent purpose may be shown by the conduct and appearance of the parties, the details of the transactions, and the surrounding circumstances.’
“We agree with the trial court that badges of fraud are suspicious circumstances, but more need be said about them. Badges of fraud are circumstances frequently attending conveyances and transfers intending to hinder, delay, or defraud creditors. They are red flags, and when they are unexplained in the evidence, they may warrant an inference of fraud. Some are weak; others are strong. One weak badge of fraud, standing alone, would have little evidentiary value in establishing a fraudulent conveyance. For example, the mere fact that grantor and grantee are related, standing alone, would not support a finding that the conveyance was fraudulent. On the other hand, the concurrence of several badges of fraud are said to make out a strong case. See 37 C.J.S., Fraudulent Conveyances § 79; 37 Am. Jur. 2d, Fraudulent Conveyances § 10; Brennecke v. Riemann, 102 S.W.2d 874, 877 (Mo. 1937); and see Hildebrand v. Harrison, 361 P.2d 498, 505 (Okla. 1961), where it was said:
“ ‘In Apple v. American Nat. Bank of Ardmore, 104 Okl. 69, 231 P. 79, 82, we said in the second paragraph of the syllabus that “If a transfer is made by a debtor in anticipation of a suit against him, or after a suit has begun, and while it is pending against him, this is a badge of fraud, and especially if it leaves the debtor without any estate, or greatly reduces his property.” As heretofore pointed out, the Ravenscraft-Hildebrand conveyance was made after the Huston suit had been filed.
“ ‘We had this to say in the third and fourth paragraphs of the syllabus to Toone v. Walker, et al., 115 Okl. 289, 243 P.147:
‘Badges of fraud’ are suspicious circumstances that overhang a transaction, or appear on the face of the papers. The possible indicia of fraud are so numerous that no court could pretend to anticipate and catalog them. A single one may stamp the transaction as fraudulent, and, when several are found in combination, strong and clear evidence on the part of the upholder of the transaction will be required to repel the conclusion of fraud.” ’
“As we have noted, the party who alleges fraud has the burden of proving it. This does not mean the party must come forward with direct evidence of fraud. When the party produces evidence of several badges of fraud, that evidence, if unrefuted and unexplained, may well be sufficient to fulfill the party’s burden of proof. While the burden does not shift, the opposing party then has the opportunity of going forward with the evidence, for, as we said in Polk v. Polk, 210 Kan. 107, 499 P.2d 1142 (1972):
“ ‘Where the circumstances surrounding the execution of a conveyance are such that an inference of fraud may be drawn therefrom, such inference is subject to being rebutted.’ Syl. ¶ 5.”
The trial court first discussed the December 10, 1984, deed for nineteen acres from the Andersons to the Louisburg Grain Co., Inc. Mr. Anderson testified that they believed that they had transferred this land to the grain company in 1978, but that the deed had somehow been lost in the filing and recording process. Defendants offered Exhibits X and Y in support of this testimony. Exhibit X, read in the light most favorable to the Andersons, indicates that Mr. Anderson, acting as president of Louis-burg Grain Co., Inc., entered into a contract to sell the land in 1979. The contract fell through, and no title was transferred. Exhibit Y is a memo from a title company to Mr. Anderson, dated 1981, stating that the property was then still titled in A. Scott and E. Sylvia Anderson rather than Louisburg Grain Co., Inc. Thus, Anderson was notified in 1981 that title to the land was held by the Andersons personally and not by the corporation. The facts and circumstances surrounding a transfer or conveyance of property between members of a family are properly subjected to stricter scrutiny as to their bona fides than between strangers, where the rights of creditors are, or may be, thwarted thereby. Stephenson v. Wilson, 147 Kan. 261, Syl. ¶ 2, 76 P.2d 810 (1938). This rule is equally applicable to transfers between persons and a corporation wholly owned by them.
No attempt to make any “correction” as to the “misfiled” or “lost” deed was made until more than five months after the $2,500,000 judgment was entered against the Andersons, and eleven days before both judgments became liens in Johnson County. The corporate minute books of the grain company were missing, and no federal or state tax returns had been filed by the company for six or seven years. There was no record, made at the time of the alleged original transfer, supporting it. There was no evidence as to who supposedly prepared the 1978 deed, who recorded it or when it was recorded, to whom the annual tax statements were directed, or who paid the taxes on that land from 1978 through 1984. The annual returns of Louisburg Grain Co., Inc., for the years 1978-1984 do not show that the corporation owned any land. The testimony that the December 10, 1984, deed was to take the place of a “lost” deed is, under all of the circumstances, weak, unsupported, and highly suspect. We conclude that the deed to Louisburg Grain Co., Inc., should be examined under the same light as the June 4, 1984, deed to K-M Land Co.
In order to determine whether a conveyance was made with the intent to hinder, delay, or defraud creditors, we should examine the evidence with reference to the six badges or indicia of fraud enumerated in Koch Engineering. The first badge is relationship between grantor and grantee. Mr. and Mrs. Anderson were the owners and sole stockholders of both Louisburg Grain Co., Inc., and K-M Land Co. at the time of the transfers of land to the respective corporations. Since the Andersons owned the land and the corporations, the transfers were only a matter of bookkeeping — the Andersons were simply transferring the title to the land from one pocket to another. They remained in full control of the real estate for all practical purposes. The relationship badge was established.
The second badge of fraud is the grantee’s knowledge of litigation against the grantors. Anderson was president of both corporations. The law of agency generally imputes the knowledge of an agent to the principal. Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, Syl. ¶ 4, 736 P.2d 888 (1987). A corporation is an artificial person; it may acquire knowledge only through real people — its officers, agents, or employees. Anderson’s knowledge as president of Louisburg Grain Co., Inc., and K-M Land Co. is imputable to those corporations. See Grounds v. Triple J Constr. Co., 4 Kan. App. 2d 325, 333-34, 606 P.2d 484, rev. denied 227 Kan. 927 (1980). The corporations would have identical knowledge as that of the Andersons. The knowledge of litigation badge was established.
The third badge of fraud is the insolvency of the grantors. The trial court found:
“The evidence presented fails to establish that at the time of the conveyance the Andersons were insolvent. There was evidence that they were experiencing cash flow problems, however, the fact that plaintiffs were subsequently able to execute on $500,000 worth of Andersons’ assets would not indicate insolvency. In addition, there is evidence that the Andersons still are in possession of assets having value. The evidence here fails to lead one to conclude that fraud was involved in the conveyance.”
We disagree. While it is true that the plaintiffs were able to levy execution on assets of the Andersons worth some half million dollars, there remain unsatisfied judgments of more than $2,500,000. While the Andersons may yet have property of some value, there is nothing in the record to indicate that the value of their remaining property approaches the amount of the judgments. On April 10, 1985, the Andersons executed affidavits stating that because of their financial condition, they could not satisfy the judgments of the plaintiffs against them. They recite in those affidavits the fear of another suit on a different obligation by the Bank of Hesston; a $180,000 lawsuit pending against them in United States District Court; their interest in two real estate ventures, both of which were then in foreclosure proceedings; and their ownership of two seven-year-old vehicles which are in need of repair, some 20-year-old farm machinery, which is mortgaged, and livestock valued between $65,000 and $70,000.
It is clear from the evidence in this case that the Andersons’ interest in the Johnson County real estate involved in this case was by far the most valuable property owned by them at the time of the transfers. It is also clear that without their interest in that land, the Andersons had no assets which would approach in value the amount of the plaintiffs’ judgments. Insolvency is the condition of a person who is unable to pay his or her debts. The person may have assets of great value, but if the value is less than the obligations, the person is insolvent.
In Security Benefit Ass’n v. Swartz, 141 Kan. 227, 232, 40 P.2d 433 (1935), we quoted the following statement from 27 C.J. 501:
“ ‘With respect to the financial condition of the grantor, within the rule governing fraudulent conveyances, he will be considered insolvent when his property, subject to the payment of his debts, is not sufficient to pay all his debts. Insolvency has also been defined as the inability to pay debts when they become due in the ordinary course of business, or where the value of his remaining property is so near the amount of his debts that the conveyance tends directly to impair the creditor’s power to force collection by judicial process.’ ”
As the Oklahoma Supreme Court said in Hildebrand v. Harrison, 361 P.2d 498, 505 (Okla. 1961), quoted in that portion of our opinion in Koch Engineering Co., 239 Kan. at 107:
“ ‘If a transfer is made by a debtor in anticipation of a suit against him, or after a suit has begun, and while it is pending against him, this is a badge of fraud, and especially if it leaves the debtor without any estate, or greatly reduces his property.’ ” (Emphasis supplied.)
This is precisely what the Andersons did here. They transferred the ownership of their most valuable assets to corporations which they owned and controlled, greatly reducing their holdings and leaving them without sufficient assets to satisfy plaintiffs’ judgments. The transfers left the Andersons insolvent. The insolvency badge was established.
The fourth badge of fraud is a belief on the grantee’s part that the property conveyed was the grantor’s last asset subject to a Kansas execution. The grantee’s knowledge here is, of course, the same as that of the grantors. The trial court, in light of the fact that the plaintiffs were able to levy execution on other property worth some $500,000, found that this badge was not established. Again, we disagree. By “the last asset” we are concerned with the last substantial asset, the last one out of which a creditor may hope to satisfy a judgment. The property conveyed to the two corporations included the most substantial assets of the Andersons, and left them without sufficient property in Kansas to come anywhere near satisfying the judgments. The mere fact that the debtors owned interests in other properties, worth a small fraction of the amount of the judgments, does not defeat the establishment of this badge of fraud. We hold that it was established.
The fifth badge of fraud is inadequacy of consideration. Here, the Andersons conveyed real estate to the K-M Land Co. in exchange for stock in that corporation. We agree with the trial court that that fact, in and of itself, does not establish that the transfer was without consideration. Presumably, the stock in the closely held corporation approximates the value of the corporate assets. This badge was not established with regard to K-M Land Co. As to the transfer to Louisburg Grain, Co., Inc., however, there was no evidence that the December 1984 conveyance was followed by the issuance of stock in that corporation to the grantors, or that such was the fact in the alleged 1978 transfer. We find no evidence that the Andersons received anything of value for the conveyance to Louisburg Grain Co., Inc.
The sixth badge of fraud is the consummation of the transaction contrary to normal business procedures. The trial court found that even though plaintiffs presented expert testimony that the “estate plan” of the Andersons was faulty and fraught with difficulties, it was unable to conclude that the transfer was contrary to accepted business practices. The transfer of property by stockholders to corporations, the issuance of stock in exchange for the property, and the subsequent transfer of stock in that corporation to the children of the transferors is not, absent other circumstances, an unusual business transaction.
However, we must look at the obvious effect of the transfers. Whether the Andersons were acting in accordance with a well-thought-out or a faulty estate plan makes no difference here. The purpose of such an estate plan is to pass property on to one’s children. The Andersons attempted to do just that. They conveyed property — their most valuable assets — to corporations which they owned and controlled. This effectively placed the land beyond the reach of their personal creditors, at least for the time being, and it removed the property from the reach of personal judgment liens. Then, by the simple expediency of stock transfers, the asset value was transferred to their children. An estate plan cannot be used to hinder, thwart, delay, or defraud creditors. The execution of the “estate plan” by the Andersons had just that effect.
Assume that a debtor, acting on legal advice as to an estate plan, conveyed most of the debtor’s property to his or her children, leaving the debtor with insufficient assets to pay debts which were reduced to judgment within a few days of the transfer. No court would hesitate to find the transfers fraudulent. The use of a closely held corporation between the debtor and the debtor’s children should not alter that finding.
The evidence of fraud was overwhelming. Both of the transfers by the Andersons came after suit was filed. One transfer was made when judgment was imminent, the other after judgment. Both were made when it appeared that Ketterman would no longer be in a strong financial position. Plaintiffs presented strong evidence of fraud, and that evidence was not rebutted. The judgment of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed and remanded with directions to enter a judgment for plaintiffs in conformity with this opinion. | [
112,
-24,
-7,
-82,
8,
-32,
58,
-102,
115,
-95,
101,
83,
-23,
-22,
21,
121,
-14,
29,
-12,
104,
-41,
-73,
67,
-21,
-46,
-77,
123,
-51,
-80,
79,
-28,
-42,
76,
16,
-54,
-107,
-90,
-64,
-57,
-100,
-50,
6,
-119,
-36,
-3,
-64,
52,
-85,
48,
3,
-15,
12,
-13,
41,
60,
-61,
109,
44,
91,
-83,
88,
-79,
-54,
-121,
93,
23,
49,
-128,
-104,
7,
88,
46,
-112,
49,
9,
-88,
114,
-90,
-122,
-12,
109,
-103,
12,
46,
98,
35,
-75,
-21,
-20,
-104,
14,
-1,
-115,
-89,
-108,
24,
106,
5,
-74,
-99,
117,
18,
3,
-4,
-17,
21,
31,
108,
13,
-49,
-12,
-79,
3,
61,
16,
11,
-25,
-95,
-80,
117,
-51,
-30,
93,
71,
50,
59,
-114,
-80
] |
The opinion of the court was delivered by
Holmes, J.:
James G. Fike appeals his conviction by a jury of one count of indecent liberties with a child, K.S.A. 1987 Supp. 21-3503(l)(b), a class C felony. His conviction was affirmed by the Court of Appeals in an unpublished opinion dated October 22, 1987. We granted appellant’s petition for review which alleged a conflict between recent opinions of this court and the Court of Appeals on the question of lesser included offenses.
In his appeal to the Court of Appeals, appellant asserted it was error for the trial court not to instruct the jury on the alleged lesser included offense of aggravated sexual battery, K.S.A. 1987 Supp. 21-3518(l)(b), a class D felony. In the recent case of State v. Fulcher, 12 Kan. App. 2d 169, 737 P.2d 61, rev. denied 241 Kan. 840 (1987), the Court of Appeals held that aggravated sexual battery was not a lesser included offense of indecent liberties with a child. In reliance on Fulcher, the Court of Appeals found no merit to appellant’s argument in this case. This court, in the recent case of State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), held that aggravated sexual battery was a lesser included offense of indecent liberties with a child under the charge and the facts of that case. The holding in Fulcher was not mentioned in the Hutchcraft opinion.
At this point the facts need be stated only briefly. During the summer of 1985, Fike was visiting at the home of a friend, J.V., who lived with his four small children, two boys and two girls. The girls were S.V., age seven, and P.V., age six. Mr. and Mrs. V. were separated and Mrs. V. was not living with the rest of the family. S.V. testified that during the night, Fike entered the girls’ bedroom, undressed, climbed in bed with P.V., and fondled her while she lay sleeping. Fike was charged and convicted of one count of indecent liberties with a child.
There are very few areas of the criminal law which have given the appellate courts more difficulty than the problem of lesser offenses under K.S.A. 1987 Supp. 21-3107. See annotations following the statute. A lesser offense is a crime which carries a lesser penalty than the penalty for the crime charged. A class E felony is a lesser crime than felonies designated as class A through class D; a class D felony is a lesser crime than felonies designated class A through C, and so on. When a lesser crime falls within the statutory definitions of an included crime under K.S.A. 1987 Supp. 21-3107(2), it is an included crime of the crime charged. K.S.A. 1987 Supp. 21-3107 provides in part:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving oí the instructions, the deiendant 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.”
Subsection (2)(d) of the statute has proved to be the most troublesome to interpret and apply. While the statute does not use the term “lesser included offense,” it does refer to lesser crimes and included crimes. If a lesser crime is included in the crime charged, it is commonly referred to as a lesser included offense under 21-3107. In State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987), Justice Allegrucci, writing for a unanimous court, made it clear that the test to apply in determining in any particular case whether a lesser included offense exists under the statutory language “a crime necessarily proved if the crime charged were proved” requires a twofold or two-pronged approach. Unfortunately, many of the appellate decisions have failed to recognize the two-step analysis. The writer of this opinion fell into the same trap, in discussing the predecessors to the statutes now before the court, in the dissent in State v. Ramos, 240 Kan. 485, 490, 731 P.2d 837 (1987).
The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward, and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense, because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary.
The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an “included crime” under the definition in 21-3107(2)(d).
Adams is a prime example of the application of the second prong of the test. Adams was charged with involuntary manslaughter (K.S.A. 1987 Supp. 21-3404) based upon allegations in the complaint that he was driving under the influence of alcohol, a misdemeanor. Involuntary manslaughter under the statute provides, inter alia, that “involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony.” In Adams, the unlawful act was driving under the influence. Obviously, the statutory elements of involuntary manslaughter and driving under the influence are different and it is not always necessary to prove the crime of driving under the influence to prove the crime of involuntary manslaughter. Those two crimes do not meet the statutory elements approach. However, in Adams, the misdemeanor violation of driving under the influence that was included in the complaint as the basis for the involuntary manslaughter charge was a lesser included offense under the second approach. In order to prove the crime charged, driving under the influence had to be proved and therefore was “necessarily proved if the crime charged were proved.”
Much of the confusion that has arisen in the application of K.S.A. 1987 Supp. 21-3107(2) may be traced to opinions which have referred to the “identity of the elements test” without recognizing that the statute in some cases may require more than simply an analysis of the statutory elements. The first step in the analysis relies solely on the statutory elements of the crime charged and the statutory elements of the crime which is asserted to be a lesser included crime. If the statutory elements of the two crimes do not meet the statutory elements analysis then the facts as alleged in the charging document and the facts which must be proven at trial must be considered.
We now turn to the present case and the question of whether aggravated sexual battery under K.S.A. 1987 Supp. 21-3518(l)(b) is a lesser included crime of indecent liberties with a child under K.S.A. 1987 Supp. 21-3503(l)(b), which provides:
“(1) Indecent liberties with a child is engaging in any of the following acts with a child who is not married to the offender and who is under 16 years of age:
(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.”
Aggravated sexual battery is defined by K.S.A. 1987 Supp. 21-3518(l)(b):
“(1) Aggravated sexual battery is:
(b) sexual battery, as defined in K.S.A. 1983 Supp. 21-3517 and amendments thereto, against a person under 16 years of age.”
K.S.A. 1987 Supp. 21-3517 provides:
“(1) Sexual battery is the unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.”
The Court of Appeals in Fulcher held that aggravated sexual battery is not a lesser included offense of indecent liberties with a child in that aggravated sexual battery as defined in 21-3518(l)(b) requires proof that the victim did not consent, while indecent liberties with a child is solely dependent upon the child being under age 16; whether the child consents to the sexual activity is not an issue.
In Fulcher, Judge Parks, in the principal opinion, explained the application of the statutory elements approach to the two crimes as follows:
“Defendant’s first contention on appeal is that the trial court erred in failing to instruct on aggravated sexual battery as a lesser included offense of indecent liberties with a child.
“Aggravated sexual battery, K.S.A. 1986 Supp. 21-3518(l)(b), a Class D felony, requires that the State prove: (1) The child is under 16 years of age; (2) the child is not the spouse of the accused; (3) defendant intentionally touched the person of the child; (4) the child did not consent to the touching; and (5) the touching was done with the intent to arouse or satisfy the sexual desires of the defendant or another.
“Defendant was charged with two counts of indecent liberties with a child based on sexual intercourse, a Class C felony, K.S.A. 1986 Supp. 21-3503(l)(a). This statute requires that the State prove: (1) The child is under 16 years of age; (2) the child is not the spouse of the accused; and (3) defendant had sexual intercourse with the child.
“Under K.S.A. 1986 Supp. 21-3107(2)(d), an offense is considered a lesser included offense when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged. Put differently, if the lesser offense requires an element to be proven that is not required of the greater offense, it is not a lesser included offense. State v. Galloway, 238 Kan. 415, 417, 710 P.2d 1320 (1985).
“The offense of aggravated sexual battery requires the State to establish that the child did not consent to the unlawful touching. By contrast, the legislature did not include the element of consent in the indecent liberties statute. Therefore, since the offense of aggravated sexual battery requires proof of the additional element of an absence of consent, we hold that aggravated sexual battery is not a lesser included offense of indecent liberties with a child. Accordingly, the trial court did not err in failing to give an aggravated sexual battery instruction.” 12 Kan. App. 2d at 170.
As an example of the statutory elements approach applied in Fulcher, assume that an 18-year-old person was involved in sexual activity with a fully consenting 15-year-old. If the activity of the two consenting parties met the prohibited conduct of aggravated sexual battery but did not rise to the level of the conduct prohibited by indecent liberties with a child, no crime has been committed under either statute. To be a crime under the aggravated sexual battery statute, the State would have to prove an actual lack of consent by the 15-year-old. On the other hand, if the conduct did rise tó the level prohibited by the indecent liberties statute, that crime has been committed even though the 15-year-old consented thereto and even if that person were the instigator and active party to the activity. Age would be the determining factor and, as actual consent was present, the 18-year-old could not be convicted of the lesser offense of aggravated sexual battery. Judge Brazil, in his concurring opinion in Fulcher, carefully analyzed the distinction between actual consent and what has popularly been referred to as the “age of consent.” Fulcher addressed only the statutory elements of the two crimes and we agree with both the principal and concurring opinions in that case as to the application of the statutory elements prong of the test.
In Hutchcraft, we held, under the facts of that case, that aggravated sexual battery was a lesser included offense of indecent liberties with a child. Unfortunately, some of the language in Hutchcraft, a unanimous opinion of this court, confuses the two approaches to the determination of lesser included offenses.
In Hutchcraft, the court erroneously concluded that the absence of consent element of aggravated sexual battery is automatically established by proof that the victim is under age 16 and is not married to the offender, both of which must be established to obtain a conviction of indecent liberties with a child. The court concluded that aggravated sexual battery is therefore a lesser included offense of indecent liberties with a child stating it was impossible for the State to prove the charge of indecent liberties with a child, as charged in the information, without simultaneously proving the offense of aggravated sexual battery, as defined by 21-3518(l)(b). 242 Kan. at 61. The court reasoned that the “age of consent” is fixed at 16 years of age by 21-3503, the statute that defines the offense of indecent liberties with a child. 242 Kan. at 61. The court confused the lack of actual consent required by one statute with the under 16 years of age language of the other statute. There was no legal basis for jHutchcraft’s equating under age 16 with actual absence of consent. However, the court then went on to point out that,
“under the charge and the evidence in this case, proof of the elements of indecent liberties with a child was proof of the elements of the offense of aggravated sexual battery. ‘Lewd fondling,’ an alternate element required to be proved under the indecent liberties statute, would certainly include ‘unlawful, intentional touching,’ as required under the aggravated sexual battery statute.” 242 Kan. at 61. (Emphasis added.)
Thus, the language of the opinion appears to commingle the two prongs of the test.
Hutchcraft is also overly broad in its holding that “[t]he ‘age of consent’ in Kansas is fixed by statute at sixteen years. A person under that age cannot legally consent to sexual acts.” 242 Kan. 55, Syl. ¶ 2. Our review of the criminal statutes finds no statutory authority for this broad statement. Historically, as pointed out by Judge Brazil in his concurring opinion in Fulcher, 12 Kan. App. 2d at 171, the term “age of consent” applied to the crime of statutory rape and referred to the statutory age below which a female could not give her consent to sexual intercourse. Thus, under the statutory rape statute, sexual intercourse with a female under the proscribed age was rape regardless of the actual consent of the female partner. In addition, the elements of force, fear, compulsion, etc., were not required.
Under the present sexual crimes statutes, most of which are found at K.S.A. 1987 Supp. 21-3501 et seq., we have a variety of statutes defining sexual crimes wherein many set a statutory age below which the crime is committed regardless of the actual consent of the underage party. While it is true that most of the statutes which refer to children set the statutory age at 16, some set a different statutory age. See K.S.A. 1987 Supp. 21-3519 (promoting sexual performance by a minor — age 18); K.S.A. 1987 Supp. 21-3603 (aggravated incest — age 18). Thus, there is no one age which can be referred to as the “age of consent” for all sexual crimes. The statute now before us, aggravated sexual battery, not only requires that the alleged victim be below the age of 16, but also that there must be an actual lack of consent by the victim. If the legislature had not meant to require an actual lack of consent there would have been no reason to include it in the statute. That is not to say that in every case of aggravated sexual battery there must be an actual, knowing lack of consent to the sexual acts involved. Obviously, a child of tender years or mentally inca pacitated, for example, lacks the legal capacity as a matter of law to give actual consent. However, that is not to say that for the purposes of this statute every child under 16 is legally incapable of giving consent. To so hold would make the statutory language “who does not consent thereto” meaningless.
We conclude that under the statutory elements approach, aggravated sexual battery under K.S.A. 1987 Supp. 21-3518(l)(b) is not a lesser included offense of indecent liberties with a child under K.S.A. 1987 Supp. 21-3503(l)(b).
We also conclude the statute does not meet the second prong of the test. In the case at bar, the complaint stated in pertinent part that the defendant did “engage in lewd fondling or touching with a child under the age of sixteen, to-wit: [P.V.], date of birth 7-30-79, who was not married to James G. Fike, with the intent to arouse or satisfy James G. Fike’s sexual desires.” For the crime charged, indecent liberties with a child, age is the controlling factor, not whether the victim did or did not actually consent. The factual allegations of the complaint did not require evidence to be adduced at trial which would necessarily prove the lesser crime and do not meet the second prong of the test for aggravated sexual battery to be a lesser included offense of the crime charged. Even if the complaint specifically alleged that the acts asserted were done without the consent of P.V., the lesser crime would not be a lesser included crime as it would not be necessary to prove the lack of consent to prove the crime charged. This case is different from Adams where the lesser offense had to be “necessarily proved” in order to prove the crime charged. We conclude the court did not err in failing to give an instruction on aggravated sexual battery. We now hold that aggravated sexual battery as defined in K.S.A. 1987 Supp. 21-3518(l)(b) is not a lesser included offense of indecent liberties with a child as defined by K.S.A. 1987 Supp. 21-3503(l)(b).
To the extent that certain portions of the syllabus and opinion in Hutchcraft are inconsistent with this opinion, they are overruled.
The only other issue raised before the Court of Appeals was the sufficiency of the evidence. This issue was not asserted in the petition for review but we have reviewed the record and agree with the Court of Appeals that under the evidence pre sented to the jury a rational factfinder could have found Fike guilty beyond a reasonable doubt.
The decision of the Court of Appeals and the judgment of the district court are affirmed.
Herd, J., concurring and dissenting: I concur with the majority’s test for lesser included offenses but dissent from the portions of the majority opinion referring to K.S.A. 1987 Supp. 21-3517 and -3518 indicating a child below the age of 16 can consent to sexual conduct and eliminate its criminality. I am sure we would not say a child could consent to child abuse and absolve the abuser of criminal conduct. Aggravated sexual battery is child abuse of the worst kind.
We do not allow a child under the age of 16 to decide he is ready to buy liquor or cigarettes, to drive on an unrestricted license, to quit school, to run away from home, to engage in work dangerous to his morals or welfare, or even to donate blood or execute an anatomical gift. We do not allow a child under 16 to be prosecuted as an adult, nor do we allow a child to bring a civil suit except through a guardian. Even then, the guardian may not settle the lawsuit without court approval.
A child is not allowed to make decisions in these things, among many others, because we realize a child lacks the knowledge and understanding to give consent. Consent must be both voluntarily and knowingly given. Thus, a child under the age of 16 is not deemed capable of giving consent to sexual activity. This is made clear by many acts of the legislature. K.S.A. 1987 Supp. 38-1502(a)(3) defines a child who has been sexually abused as a “child in need of care.” “Sexual abuse” is defined as “any act committed with a child which is described in Article 35, chapter 21 of the Kansas Statutes Annotated.” K.S.A. 1987 Supp. 38-1502(c). Although the age given by the legislature in its protective statutes varies from 18 to 16, it is clearly intended that no consent may be deemed to be given when the child is under the age of 16. This is evidenced in part by K.S.A. 1987 Supp. 21-3503(l)(b).
The majority errs in stating no crime would be committed under either K.S.A. 1987 Supp. 21-3503 or K.S.A. 1987 Supp. 21-3518 if a child under 16 “consented” to sexual activity which “met the prohibited conduct of aggravated sexual battery but did not rise to the level of the conduct prohibited by indecent liberties with a child.” K.S.A. 1987 Supp. 21-3518 requires the use of force in touching to gratify sexual desire, whereas K.S.A. 1987 Supp. 21-3503 simply prohibits touching to gratify sexual desire. There is no conduct prohibited by K.S.A. 1987 Supp. 21-3518 which would not also be prohibited by K.S.A. 1987 Supp. 21-3503.
Thus, the lack of consent requirement for conduct prohibited by K.S.A. 1987 Supp. 21-3518(l)(b) is clearly contradictory to K.S.A. 1987 Supp. 21-3503. That the requirement is merely an oversight is evidenced by the intent, shown throughout the statutory code of Kansas, to protect children from their vulnerability. A child below the age of 16 is legally incapable of giving consent to sexual conduct because of lack of knowledge and understanding. | [
-80,
-24,
-3,
-2,
10,
96,
40,
28,
82,
-9,
-90,
83,
43,
93,
5,
121,
91,
45,
68,
97,
-109,
-9,
55,
-32,
-106,
-13,
51,
-36,
-79,
76,
-82,
84,
73,
96,
-62,
21,
66,
-54,
-51,
22,
-116,
1,
16,
-5,
90,
-114,
38,
121,
116,
11,
49,
-98,
-13,
42,
31,
-61,
43,
46,
27,
-68,
21,
-79,
-69,
-105,
95,
84,
-93,
50,
-100,
-123,
80,
38,
-104,
49,
8,
-20,
115,
-90,
2,
-11,
45,
-85,
-116,
102,
102,
49,
45,
-58,
-8,
-56,
47,
126,
-83,
-89,
-70,
72,
96,
-124,
-66,
-97,
100,
22,
15,
120,
-29,
13,
87,
108,
-114,
-121,
-124,
-93,
77,
57,
86,
48,
-5,
-81,
0,
113,
-49,
-10,
92,
84,
25,
-105,
-114,
-42
] |
The opinion of the court was delivered by
McFarland, J.:
In this action plaintiff, J. W. Thompson Company (Thompson), seeks to recover the selling price of certain component parts it supplied which were utilized by defendant Penta Construction Company, Inc., (Penta) in the latter’s completion of a construction contract of a public works project. Liability is predicated upon Penta’s payment bond filed pursuant to K.S.A. 60-1111, and, alternatively, upon a theory of unjust enrichment. The district court held in favor of Thompson, and Penta and Federal Insurance Company (Federal) appeal therefrom.
The primary issue before us is the legal relationship existing between Penta and defendant Welles Products Corporation (Welles), although Welles is not a party to this appeal. Thompson supplied the component parts under an agreement with Welles. If Welles was a subcontractor of Penta, then Thompson is within the classification of a supplier to a subcontractor granted protection by K.S.A. 60-1111, the public works bond statute. If Welles was a supplier to Penta, then Thompson’s claim as a supplier to a supplier is not within a classification afforded protection by the statute, and there is no liability on Penta’s bond (defendant Federal being the surety thereon). The district court held that Welles was a subcontractor of Penta and entered judgment in favor of Thompson for $36,097 plus interest and costs.
The district court adopted, in toto, Thompson’s proposed findings of fact and conclusions of law. The instrument so adopted is a mixture of factual findings, legal conclusions, and plaintiff s arguments in support of its position. Fortunately, the pertinent facts, although complex, are essentially uncontroverted and may be winnowed from the adopted instrument for summarization herein.
The City of Wichita (City) operates its Wastewater Treatment Plant No. 2. In the facility were three large storage containers known as “digesters.” Sewage, after being subjected to a number of treatment processes, is deposited into a digester for further treatment before being discharged into the Arkansas River. The City of Wichita determined that a fourth digester was needed and the plant’s motor control center needed to be relocated and upgraded. On December 29, 1983, the City entered into a contract with Penta to perform the necessary work at a cost of $1,126,000.
On January 31, 1984, Penta filed a statutory payment bond for the public works project with the Clerk of the Sedgwick County District Court in the sum equal to the contract. Following the requirements of K.S.A. 60-llll(a), the bond stated:
67.3 “Now THEREFORE, if the said principal [Penta] or the subcontractor or subcontractors of said principal shall pay all indebtedness incurred for supplies, material or labor furnished, used or consumed in connection with or in or about the construction or making of the above described improvement . . . this obligation shall be void; otherwise, it shall remain in full force and effect.”
The bond identified Federal as surety.
On February 6, 1984, Penta contracted with Welles for the purchase of materials and equipment as follows:
One (1) floating digester cover (100’ in diameter);
Four (4) eductomix gas mixing systems;
Two (2) gas compressors with housing and overhead piping accessories.
The engineering firm in charge of the project for the City was Wilson & Company Engineers and Architects (Wilson). Welles agreed to provide the materials and equipment in accordance with section 11B of the project’s specifications, which included the preparation and submission to Wilson for approval of shop drawings for the piece-by-piece layout of the floating cover and compressor systems. Penta was responsible for the installation of the entire system, which included the Welles components. Welles was to provide a representative to inspect Penta’s installation for the “start-up” of the gas mixing system equipment and to train city personnel in the use of the gas mixing equipment. The purchase price specified in the Penta-Welles purchase order was $290,000 (later adjusted slightly downward).
Some further explanation of the portion of the system purchased from Welles is appropriate. The circular floating cover of the digester was to move up and down dependent on the level of sewage in the digester. The cover would hold in the methane gas produced by the decomposition of the materials. The gas mixing systems and compressors were to be contained essentially in a rectangular housing situated on top of the cover with the purpose of same being to force the methane gas back through the sewage to accelerate the treatment process. These types of equipment are not regularly stocked items and must be specially manufactured to meet the needs of the plant wherein they are to be utilized.
Thompson is a manufacturer’s representative for industrial air and material handling equipment. It also designs, builds, installs, and starts up complex industrial mechanical systems. In August 1984, Welles contracted with Thompson to supply certain of the components needed to fulfill its purchase order with Penta. These consisted essentially of gas compression systems housed on top of the cover but excluding the cover, the two gas compressors, and the control panel. The initial purchase price was $34,230, but subsequent changes agreed to between Welles and Thompson increased the price to $46,097. The gas compressor assembly was shipped to the job site by Thompson on April 23, 1985. Welles had previously paid Thompson $10,000, leaving a balance due of $36,097. Welles has never made any additional payments.
Penta installed the gas compressor assembly on the floating cover supplied by Welles and the two gas compressors. Pursuant to its agreement with Penta, a Welles representative inspected Penta’s installation of the gas compression equipment and assisted Penta’s employee in making some minor adjustments. No effort was made to start up the equipment. In July, a Welles representative returned to the job site for start-up as required by the Penta-Welles agreement. The gas compressor equipment did not function by virtue of some difficulties with certain safety switches. Some of the problems in the switches were due to design error — whether these were attributable to Welles or Wilson is unclear and such determination is unnecessary to the opinion herein. Ultimately, the safety switch problem was resolved and the gas compression equipment performed satisfactorily. No Thompson personnel were ever at the job site.
The construction contract was completed by Penta and accepted by the City of Wichita in December 1985. On January 15, 1986, Thompson brought this action seeking payment of the $36,097 owed plus interest and costs. Welles never appeared in the action, and a default judgment was entered in favor of Thompson on April 8, 1986, for the full amount of the claim. No appeal has been taken therefrom. In 1987, a bench trial was held as to Thompson’s claims against Penta and its surety (Federal). On July 7, 1987, the trial court entered the following judgment:
“Judgment granted in the sum of $36,097.00 plus interest at the statutory rate from and after November 5, 1985, plus court costs. (The Court adopts as its own the Findings of Fact and Conclusions of Law as submitted by Mr. Tretbar [counsel of Thompson]).”
Penta and its surety appeal from the judgment.
The first issue before us is whether the district court erred in concluding that Welles was a subcontractor to Penta rather than a supplier. This legal conclusion was crucial to the subsequent conclusion that Penta and its surety were liable on the bond herein.
The standard of appellate review is clear. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Moore v. R. Z. Sims Chevrolet-Subaru, Inc., 241 Kan. 542, Syl. ¶ 3, 738 P.2d 852 (1987); Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, Syl. ¶ 5, 736 P.2d 888 (1987); Southwest Nat’l Rank of Wichita v. ATG Constr. Mgt., Inc., 241 Kan. 257, Syl. ¶ 1, 736 P.2d 894 (1987).
Were the trial court’s findings of fact sufficient to support its legal conclusion that Welles was a subcontractor of Penta rather than a supplier or materialman? We believe not.
As the amicus brief filed by the Associated General Contractors of Kansas, Inc., (AGC) ably points out, the terms of the purchase order between Penta and Welles are wholly consistent with it being a contract for the purchase of equipment and are significantly lacking in the basic requirements of a subcontract. The instrument speaks of the sale price, contract of sale, return of goods, security interest in goods delivered, delivery dates, etc. There is no reference to work to be performed, performance bonds, maintenance of general liability insurance, workers’ compensation requirements, that proof be supplied of payment of labor and materials used, hold harmless agreements for negligence, etc. Penta and Welles are referred to as buyer and seller, respectively. There is no evidence that either Penta or Welles considered their relationship to be that of contractor-subcontractor rather than what the purchase order clearly showed to be a buyer-seller relationship.
K.S.A. 60-1111 provides, in pertinent part:
“(a) Bond by contractor. Except as provided in subsection (c), whenever any public official, under the laws of the state, enters into contract in any sum exceeding $10,000 with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take, from the party contracted with, a bond to the state of Kansas with good and sufficient sureties in a sum not less than the sum total in the contract, conditioned that such contractor or the subcontractor of such contractor shall pay all indebtedness incurred for labor furnished, materials, equipment or supplies, used or consumed in connection with or in or about the construction of such public building or in making such public improvements.
“(b) Approval, filing and limitations. The bond required under subsection (a) shall be approved by and filed with the clerk of the district court of the county in which such public improvement is to be made. When such bond is filed, no lien shall attach under this article, and if when such bond is filed liens have already been filed, such liens shall be discharged. Any person to whom there is due any sum for labor or material furnished, as stated in the preceding section, or such person’s assigns, may bring an action on such bond for the recovery of such indebtedness but no action shall be brought on such bond after six months from the completion of said public improvements or public buildings.”
The contractor’s public works bond provided for in K.S.A. 60-1111 precludes attachment of liens. As stated in Cedar Vale Co-op Exch., Inc. v. Allen Utilities, Inc., 10 Kan. App. 2d 129, Syl. ¶ 1, 694 P.2d 903 (1985):
“In Kansas, contractors’ bonds furnished on public works projects are substitutes for mechanics’ liens. Contractors’ bonds are for the use of all persons in whose favor liens might accrue.”
See Murphree v. Trinity Universal Ins. Co., 176 Kan. 290, 269 P.2d 1025 (1954).
Indiana Limestone Co. v. Cuthbert, 126 Kan. 262, 267 Pac. 983 (1928), delineated the bounds of coverage under the public works bond statute. There, Scott Brothers Construction Co. (general contractor) contracted to build a new school in Wichita. Scott Brothers purchased stone from Cuthbert, which, in turn, purchased stone from Indiana Limestone. Indiana Limestone fabricated the stone in accordance with plans and specifications furnished to it. Cuthbert took no part in the construction of the building but merely procured and delivered the stone to the worksite. 126 Kan. at 263. When Cuthbert went bankrupt and failed to pay for the stone, plaintiff filed a claim against Scott Brothers’ surety bond. The trial court held Cuthbert was not a subcontractor but a materialman and, thus, outside the scope of the bond. We affirmed, stating:
“Under the authorities one who takes no part in the construction of a building, but merely furnishes material for use in a building, is not a subcontractor, and if the claimant is employed to furnish material only, whether fabricated or made ready for use or not, cannot be regarded as a subcontractor.” 126 Kan. at 266.
We reasoned:
“Upon plaintiffs theory the liability would be extended not only to the plaintiff for the stone sold to the materialman but the contractor might be liable to those operating the stone quarry where the stone was obtained, and still further, to the owner of the land from which the stone was procured. Such an interpretation of this quasi mechanic’s lien law would leave the owner and contractor in a precarious and perilous position indeed, as they could not well know that the claim of some remote person in the material furnished by the materialman, some manufacturer, wholesale dealer or retail dealer, through whose hand the material had passed, had been paid. That view of the act was not, we think, within the purpose of the legislature, but rather that the provision was enacted according to the principles of the mechanic’s lien law and should be viewed in the light of its relation to that law.” 126 Kan. at 267.
In general, it is appropriate to analogize rules applicable to mechanics’ liens to contractors’ bonds. Cedar Vale Co-op Exch., Inc. v. Allen Utilities, Inc., 10 Kan. App. 2d 129.
Another case which should be discussed is Interlake, Inc. v. Kansas Power & Light, 231 Kan. 251, 644 P.2d 385 (1982). KP&L, expanding a natural gas pipeline in southwest Kansas, issued a purchase order for pipe to Continental Pipe & Tube Corp. and contracted with J & B Construction Company to construct the pipeline. Continental acquired the pipe from Interlake, which shipped the pipe to another KP&L contractor to coat the pipe. Because Interlake was not fully paid, it filed an oil and gas mechanic’s lien against KP&L. 231 Kan. at 252.
The trial court held Continental was a contractor, and Inter-lake was a materialman-subcontractor to Continental and thereby entitled to the mechanic’s lien. The Court of Appeals affirmed. We reversed, stating Continental was a materialman because it simply furnished materials under contract with the owner. 231 Kan. at 256. Since Continental was a materialman, Interlake was simply a supplier to a materialman and not entitled to the mechanic’s lien.
We based this decision, in part, on the following excerpts from 53 Am. Jur. 2d, Mechanics’ Liens:
“ ‘§ 71. Materialmen.
“ ‘The right to assert a mechanic’s lien is now generally extended to material-men or those persons who supply materials for the structure and have no other connection with the work. But materialmen, to be entitled to a lien, must be specifically referred to within the statute, for it cannot be extended to that class by construction. Thus, materialmen are not generally within the term “contractor” or “subcontractor.”
“ ‘§ 72. Contractors or subcontractors distinguished.
“ ‘In some jurisdictions there is no distinct class of “materialmen.” The statutes confer the right to a lien on persons furnishing materials but designate them as contractors or subcontractors, depending on whether such persons furnish materials to the owner of a structure or to the contractor constructing it. Generally, however, a distinction is made, at least for some purposes, between contractors or subcontractors on the one hand and materialmen on the other, based upon the nature of the person’s contract obligation, and materialmen are not generally within the term “contractor” or “subcontractor.”
“ ‘Where a distinction is made between a subcontractor and a materialman, a person, to become a subcontractor rather than a materialman must generally do something more than merely furnish materials. It has been declared that he must actually construct with such materials some part of the structure which the contractor has agreed to erect, although this construction, at least in some jurisdictions, need not be at the jobsite. Thus, the rule is laid down that the essential feature which constitutes one a subcontractor rather than a materialman is that in the course of performance of the prime contract he constructs a definite, substantial part of the work of improvement in accord with the plans and specifications of such contract, not that he enters upon the jobsite and does the construction there.
“ ‘Accordingly, it is held that one who merely furnishes materials to the owner or a contractor is a materialman, and not a contractor or subcontractor, within the meaning of the mechanic’s lien laws ....
“ ‘§ 73. Suppliers of a materialman or subcontractor.
“Persons supplying materials to a materialman or a subcontractor must come clearly within the terms of the statute, or they can claim no lien. They are so far removed from the owner that the privilege of a lien is not often extended to them, and the plainest expressions of law must be used to entitle them to this remedy. Thus, where a construction company, engaged in building a church, placed an order for certain materials required in the construction of the church, understanding that such material would be obtained from a certain manufacturer, the manufacturer of the materials was held to have no right to a lien against the church in which the materials were incorporated. Materialmen in the second degree may, however, be provided for by a statute which expresses with sufficient clearness an intent to this effect. Under some statutes it is stated that a supplier of a materialman is not entitled to a lien but that a supplier of a subcontractor is.’ pp. 582-86. (Emphasis supplied.)” 231 Kan. at 255-56.
The discussion in Indiana Limestone Co. v. Cuthbert, 126 Kan. 262, as to reasons for excluding remote suppliers (suppliers to suppliers) is even more compelling in view of our present day society than it was in 1928. Specialized equipment of complexity undreamed of in 1928 is routinely manufactured involving components from dozens of suppliers. Modern conditions frequently demand a high degree of specialization in manufacturers and suppliers.
The facts that Welles had the duties to inspect Penta’s installation of the components purchased from Welles, to be present at the start-up, and to instruct City of Wichita employees on the use of the gas compressor system were key factors in the trial court’s conclusion that Welles was in fact a subcontractor. But it is clear that such activities are common in the construction of sophisticated systems. The company responsible to the owner for installing the whole system may well not have the expertise to handle every facet of coordinating the components purchased from various suppliers and to train personnel on the operation of every phase of the system. Requiring a representative of the sellers of specialized components to be present for test runs and personnel training are legitimate conditions of sale. The Welles representative sent to the site after Penta’s installation of the system for inspection and start-up was aptly described as a “trouble-shooter.”
We conclude that the trial court’s findings of fact do not support its legal conclusion that Welles was a subcontractor of Penta. Welles was a supplier. Therefore, the trial court’s imposition of liability on the contractor’s bond was erroneous and must be reversed.
In view of this determination, another issue must be addressed. Thompson had a second alternative claim for relief based on a theory of unjust enrichment. This claim arose from the fact that Penta had paid Welles $263,354 of the contract price of $288,958, leaving a balance of $25,604. The trial court held that even if Thompson could not recover the $36,097 claimed on the bond, it could recover $25,604 on the theory of unjust enrichment. Procedurally, it is a strange situation occasioned, no doubt, by the trial court having adopted, in toto, Thompson’s proposed findings of fact and conclusions of law which included both Thompson’s primary and “fail-back” positions.
We recently discussed unjust enrichment in Peterson v. Midland Nat’l Bank, 242 Kan. 266, 275, 747 P.2d 159 (1987), where we said:
“Restitution and unjust enrichment are modern designations for the older doctrine of quasi-contracts. Mai v. Youtsey, 231 Kan. 419, 423, 646 P.2d 475 (1982); Wheat v. Finney, 230 Kan. 217, 220, 630 P.2d 1160 (1981). One prerequisite for unjust enrichment is a benefit conferred on the defendant by the plaintiff. Mai v. Youtsey, 231 Kan. at 423; 17 C.J.S., Contracts § 6. The substance of an action for unjust enrichment lies in a promise implied in law that one will restore to the person entitled thereto that which in equity and good conscience belongs to him. 17 C.J.S., Contracts § 6.”
It is a generally recognized rule of law that, apart from unjust enrichment or from any special statutory rights and remedies, a subcontractor or supplier who has furnished labor or materials for an improvement has no right to a personal judgment against one not in privity. 53 Am. Jur. 2d, Mechanics’ Liens § 418, p. 932. See Annot., 62 A.L.R.3d 288, and cases cited therein.
Restatement of Restitution § 110 (1936) states:
“A person who has conferred a benefit upon another as the performance of a contract with a third person is not entitled to restitution from the other merely because of the failure of performance by the third person.”
The basic elements on a claim based on a theory of unjust enrichment are threefold: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value. 12 Williston on Contracts § 1479 (3d ed. 1970). See 66 Am. Jur. 2d, Restitution and Implied Contracts § 4, p. 947.
Under the facts found herein by the trial court, there is no basis for applying the doctrine of unjust enrichment. There simply are no special circumstances to justify its application. Thompson did not change its position to its detriment as a result of any promise implied by law on the part of Penta. There may be other suppliers to Welles in the same situation as Thompson. There could be employees of Welles with valid claims for wages. In fact, Thompson’s brief acknowledges that a garnishment by another Welles judgment creditor has been satisfied by Penta during the pendency of this case.
Thompson has a judgment against Welles. If Penta is holding funds belonging to Welles, Thompson may proceed with appropriate post-judgment proceedings to seek to satisfy his judgment in part from such funds.
By virtue of the result reached herein, the remaining issue raised by Penta need not be determined.
The judgment is reversed and the case is remanded for entry of judgment in accordance with this decision. | [
-44,
121,
-68,
78,
14,
38,
56,
26,
89,
-94,
39,
87,
-51,
-50,
29,
105,
-17,
125,
-44,
104,
-25,
-77,
3,
98,
-42,
-13,
-7,
-43,
-71,
79,
68,
-36,
76,
20,
-62,
-99,
34,
-126,
-43,
-36,
-54,
4,
42,
-23,
-35,
66,
52,
67,
114,
79,
113,
-115,
115,
41,
25,
-61,
77,
46,
-3,
36,
97,
-47,
-22,
15,
95,
22,
-96,
-92,
-100,
71,
-48,
12,
-112,
57,
8,
-24,
114,
-92,
-122,
-28,
99,
-119,
-120,
96,
98,
32,
29,
-21,
108,
-104,
7,
-50,
-115,
-28,
-111,
88,
43,
1,
-67,
93,
112,
22,
-123,
-6,
-2,
5,
31,
109,
3,
-58,
-42,
-95,
15,
98,
31,
-77,
-17,
-125,
34,
117,
-51,
-96,
95,
103,
58,
-97,
15,
-68
] |
The opinion of the court was delivered by
Lockett, J.:
Richard Riley, defendant, appeals from the trial court’s judgment after trial granting foreclosure of a real estate mortgage for the plaintiffs, Frank and Ila Carpenter. The plaintiffs have filed a cross-appeal on the trial court’s failure to grant them judgment on the pleadings.
Riley purchased pasture land located in Miami County from the Carpenters on July 25, 1977. The purchase price was $151,200.00, to be paid in 25 annual installments of $14,164.42 due each August 1, commencing in 1978. A promissory note and a mortgage were executed by the parties. The promissory note provided:
“In the event of default in the payment of interest or installment of principal due hereunder and such default remains uncured for a period of ten (10) days, the holder hereof may, at their option, without notice or demand, declare this note immediately due and payable.
“This note is secured by and subject to the terms and conditions of a certain real estate mortgage executed concurrently herewith by maker hereof covering the following described real estate situated in Miami County, Kansas, to-wit . . . .”
The accompanying mortgage provided:
“But if default be made in such payment, or any part thereof, or interest thereon, or the taxes, or if the insurance is not kept up thereon, then this conveyance shall become absolute, and the whole shall become due and payable, and it shall be lawful for the said part ies of the second part or the survivor of them exeeutersr admini-stmtors «*4 assigns, at any time thereafter, to sell the premises hereby granted or any part thereof, in the manner prescribed by law, appraisement hereby waived or not, at the option of the parties of the second part, or the survivor of them executors,’ administrators or assigns; and out of all the moneys arising from such sale, to retain the amount then due for principal and interest, together with the costs and charges of making such sale, and the overplus, if any there be, shall be paid by the part ies making such sale, on demand, to the said part y of the first part his heirs or assigns.”
Riley paid the first installment on the note and taxes for the year 1978. The annual installments on the note for 1979 and 1980 were paid to the Carpenters by Riley. The 1979 and 1980 real estate taxes on the realty purchased were not paid by Riley. On February 19, 1981, Riley, who now lived in Brazil, wrote a letter to the Miami County Treasurer stating it had been some time since he had received a tax statement on his property. He requested the county treasurer to inform him of the status of the taxes due on the land. Frank Carpenter paid the 1979 and 1980 taxes totaling $844.35 on August 5, 1981.
On August 5, 1981, the Carpenters filed an action against Riley. The Carpenters claimed Riley’s failure to pay the real estate taxes for the years 1979 and 1980 was a default, triggering the acceleration clause of the promissory note, making the entire amount of the note due and payable. If the balance due on the accelerated note was not paid, the Carpenters requested the mortgage be foreclosed. At this point Riley still had until August 10 to make his 1981 payment on the installment and taxes. The Carpenters did not allege in their petition that Riley was in default for nonpayment of the 1981 installment on the note and taxes.
On August 7, 1981, Riley deposited two checks with the Clerk of the Miami County District Court. Both checks were made payable to the Carpenters. One check was payment for the delinquent 1979 and 1980 real estate taxes. The second check was the 1981 note installment. The court returned the checks to Riley stating: “As we are not the payee of this check, we cannot accept the same.” Riley then deposited two checks for the same amounts with the clerk on August 10, 1981. This time the checks were made payable to the clerk. Riley’s attorney mailed a letter to the plaintiffs’ attorney on August 10. This statement appeared in the letter:
“If your client is willing to accept these payments and continue with the contract, we will be willing to continue the payments as provided by the contract and mortgage.”
The Carpenters did not respond to the letter.
The Carpenters moved for judgment on the pleadings pursuant to K.S.A. 60-212(c) on November 6, 1981. On November 19, 1981, Riley moved to have his check for the real estate taxes returned by the clerk. The Carpenters filed an amended petition in the action on January 5, 1982. Count I was almost identical to the claim contained in the original petition. Count II sought reformation of the promissory note and mortgage. Count III claimed that the instruments involved were ambiguous and the court should examine the facts and circumstances surrounding the execution of the instruments, determine the intention of the parties and give effect to that intention.
On January 6, 1982, the court denied the Carpenters’ motion for judgment on the pleadings on the basis of the case of Noble v. Greer, 48 Kan. 41, 28 Pac. 1004 (1892). The court granted Riley’s November 19 motion to have his tax check returned.
Riley filed a motion on January 12, 1982, requesting that his installment check be returned because the Carpenters had refused his proffered tender. On January 22, 1982, the court permitted the Carpenters to amend their petition and permitted the return of Riley’s installment check.
On September 22, 1982, the Carpenters filed a fourth count to their amended petition. In Count IV, the Carpenters alleged Riley had failed to pay the August 1, 1982, installment payment and taxes, thereby defaulting on the promissory note.
A trial on the merits was conducted on September 24, 1982. The trial court issued its findings of fact and conclusions of law on December 8, 1982. The court found the 1981 payment of principal, interest and taxes into the court was not a tender but rather an offer for settlement. The court concluded Riley was in default for failure to pay the 1982 installment and taxes when due. The court determined there was no legal excuse why the 1982 payment of principal, interest and taxes should not have been paid and the Carpenters were entitled to judgment on Count IV of their petition in the amount of $156,043.91 on the note, plus $844.35 for the real estate taxes, and appropriate interest thereon. The court ordered a sheriff s sale was to be held if the judgment was not paid. Riley’s motion to modify was denied. This appeal and cross-appeal followed. Subsequently the Carpenters have purchased the realty at a sheriffs sale, Riley’s six-month redemption period has expired, and the Carpenters have been issued a sheriffs deed for the property.
Riley does not dispute nonpayment of the 1982 installment payment and taxes, but seeks to excuse his failure to pay. He contends that tender of the 1982 installment and payment of the 1982 taxes was not necessary; that the Carpenters’ refusal to accept Riley’s tender of the 1981 installment payment and taxes paid into the court, after the Carpenters filed suit, made further payments under the note and mortgage by Riley unnecessary. We agree.
Tender is an unconditional offer to perform a condition or obligation. The party making tender must have the ability for immediate performance. The tender must be absolute and unconditional to be effectual. Anderson v. Oil Co., 106 Kan. 483, 186 Pac. 198 (1920). Riley’s tender of payment into court was an effort to perform as far as he was able after his default in the payment of the 1979 and 1980 taxes. The purpose of the tender by Riley was to obtain an unconditional acceptance by the Carpenters-of past due payments of the 1979 and 1980 taxes and the 1981 installment payment, and obtain a waiver of the Carpenters’ right to exercise the option of acceleration under the note and mortgage.
Having received Riley’s tender to reimburse for the payments of the 1979 and 1980 taxes and payment of the 1981 installment payment, the Carpenters were entitled to a reasonable time to accept or reject the tender by Riley. The Carpenters rejected the offer of tender by Riley by not accepting within a reasonable time the money tendered into court and dismissing the action to foreclose the note and mortgage.
After the Carpenters’ refusal to accept Riley’s tender in 1981, Riley was no longer required to tender future installment payments into court. The affirmative exercise by the Carpenters of their option to declare the mortgage due on a breach of a condition brought the mortgage to maturity not merely for the purpose of foreclosure, but for all purposes, as effectively as if maturity had resulted. Riley tendered the 1979 and 1980 taxes into court to satisfy the overdue payment. The Carpenters’ refusal to accept tender relieved Riley from payment of any obligation that would accrue under the note and mortgage until the matter was determined by the court. Tender of future payments was waived by the Carpenters’ declaration to refuse tender and repudiate the contract. The Carpenters had declared they would not accept tender by Riley; thereby the Carpenters accelerated the amount due under the note or in the alternative return of the mortgaged property to them. Further tender would serve no purpose as far as the Carpenters were concerned; tender by Riley would be a mere formality. Equity does not insist on purposeless conduct and disregards mere formality. Consequently all that was required was that Riley place himself in favor with the court by the original tender. Niquette v. Green, 81 Kan. 569, 106 Pac. 270 (1910). A tender or demand otherwise indispensable is no longer required when its futility is shown. Gardner v. Spurlock, 184 Kan. 765, 339 P.2d 65 (1959).
Riley claims that the Carpenters’ initial action to foreclose based upon a mortgagor’s failure to pay the real estate taxes when due was barred by Noble v. Greer, 48 Kan. at 43. In Noble v. Greer, the plaintiffs attempted to foreclose a real estate mortgage because of nonpayment of taxes. Relating to default, the mortgage read as follows;
“But if default be made in such payments, or any part thereof, or interest thereon, or the taxes, or if the insurance is not kept up thereon, then this conveyance shall be due and payable.” 48 Kan. at 42.
The identical language concerning default exists in the mortgage focused on in this appeal. The court in Noble v. Greer disallowed foreclosure where the mortgagee’s petition failed to allege a breach of the mortgage. The Noble court stated:
“It is true that the default provision of the mortgage declares that ‘if default be made in such payments, or any part thereof, or the interest thereon, or the taxes, or if the insurance is not kept up thereon, the conveyance shall become due and payable,’ and the mortgagee may sell. What taxes are referred to? Taxes on the land described in the mortgage? Probably. But there is nothing in the mortgage to show what taxes are meant.” 48 Kan. at 43.
The court then went on to state that:
“We are not willing to hold a debt, otherwise not due, to have become due by reason of a provision in a mortgage relating to defaults, when the mortgage contains no provision for payment of taxes by the mortgagor, and the only provision in the mortgage relating to taxes is as indefinite and uncertain as the one involved in this case.” 48 Kan. at 43.
Promissory notes and mortgages are contracts between the parties, and the rules of construction applicable to contracts apply to them. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268 (1982). The primary rule is to obtain the intention of the parties. A mortgage and a note secured by it are to be deemed parts of one transaction and construed together as such; the provisions of both should be given effect, if possible. The intention of the parties is to be determined from an examination of both the mortgage and note, not from one separately, and that intention must prevail. Provisions of the mortgage relating to the indebtedness itself have the same effect as if incorporated into the note, where the note contains a provision making the mortgage a part thereof. Unlike the Noble court, we believe the mortgage upon which the default is based, construed with the note, is not too indefinite or uncertain to authorize default and enable the mortgagee to declare the mortgage absolute, and foreclose the mortgage. We therefore overrule Noble v. Greer, 48 Kan. 41, 28 Pac. 1004 (1892).
Here both parties signed the note and the mortgage when Riley purchased the land from the Carpenters. The note signed by Riley referred to the mortgage executed by Riley and the Carpenters. The note stated it was secured by and subject to the terms and conditions of the real estate mortgage executed con currently. The note and mortgage contained an identical description of the subject real estate and both instruments were executed the same day. Riley made payments of principal and interest in 1978, 1979 and 1980, and paid the taxes due on the real estate in 1978. In February of 1981, Riley sent an inquiry to the Miami County Treasurer stating he had not received a tax statement in some time.
The general rule is that where a mortgage contains an acceleration clause relating to default of a required payment, the mortgagee is entitled because of such default to enforce the acceleration clause at once according to its terms. In Insurance Co. v. Puckett, 97 Kan. 428, 155 Pac. 930 (1916), the mortgage agreement entered into by the parties contained a stipulation that upon mortgagor’s failure to pay principal and interest when due, or if taxes assessed against the mortgaged property was not paid when due, the whole debt became due and the mortgage became subject to foreclosure at the option of the mortgagee. The mortgagee had the right to pay the taxes due and the mortgage stood as security for the taxes so paid. A default in the payment of taxes operated to accelerate the maturity of the mortgage debt and gave the mortgagee the right to maintain foreclosure at once. The mortgagor failed to pay the real estate taxes for one year. The mortgagee paid the taxes and was allowed to foreclose the mortgage because of the mortgagor’s breach of the agreement.
Here the trial court found that the real estate taxes for 1979 and 1980 were not paid by Riley when due. The Carpenters filed the lawsuit requesting foreclosure of the mortgage because of Riley’s failure to pay the 1979 and 1980 taxes on the real estate as required by the note and mortgage. Had the Carpenters accepted the tender of money by Riley, such acceptance of the tender would have barred them from accelerating the amount due on the note and requesting foreclosure. Riley was in default of his contractual obligation. The Carpenters had the contractual right to compliance with the payment schedule agreed to by the parties in the note and mortgage.
Where the trial court has made such findings of fact, how does an appellate court review those findings by the court and interpret the written agreements between the parties? Justice Herd discussed the various standards of appellate review in Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan. App. 2d 131, 137-38, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982):
“Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. [Citation omitted.] In determining whether a trial court’s findings of fact are supported by the evidence, it is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact ....
“[I]nsofar as determination of [the] case requires interpretation of the agreement itself, the standard of review is that regardless of the construction of a written instrument made by the trial court, on appeal the instrument may be construed and its legal effect determined by the appellate court.”
See Johnson v. Johnson, 7 Kan. App. 2d 538, 542, 645 P.2d 911 (1982), and Waggener v. Seever Systems, Inc., 233 Kan. 517, Syl. ¶ 5, 664 P.2d 813 (1983).
The trial court erred when it gave judgment to the Carpenters for Riley’s failure to tender the 1982 installment into court after the Carpenters had refused the tender of the 1981 installment subsequent to the filing of the foreclosure action. The Carpenters were entitled to judgment because Riley failed to pay the real estate taxes for 1979 and 1980 as required by the note and mortgage. The trial court reached the correct result but for the wrong reason. The judgment of the trial court, if correct, is to be upheld, even though the court may have relied upon the wrong ground or assigned an erroneous reason for its decision. Kansas Sand & Concrete, Inc. v. Lewis, 8 Kan. App. 2d 91, 97, 650 P.2d 718 (1982), citing Farmers State Bank v. Cooper, 227 Kan. 547, Syl. ¶ 10, 608 P.2d 929 (1980).
The judgment of the trial court in this case was correct. Judgment is affirmed, overruling Noble v. Greer, 48 Kan. 41, 28 Pac. 1004 (1892). | [
-9,
104,
-11,
108,
10,
96,
42,
-104,
91,
-92,
39,
83,
111,
-61,
5,
105,
-44,
45,
69,
121,
69,
-77,
39,
-63,
-64,
-13,
-15,
-59,
-75,
95,
-28,
87,
12,
48,
-54,
-99,
-58,
-62,
-59,
84,
14,
7,
-103,
84,
-39,
64,
48,
43,
118,
8,
21,
45,
115,
40,
29,
74,
72,
40,
91,
41,
-112,
-8,
-69,
-121,
127,
17,
-79,
37,
-108,
71,
120,
42,
-112,
53,
0,
-24,
115,
-90,
-122,
116,
15,
-117,
9,
38,
115,
33,
84,
-17,
-12,
-103,
14,
-43,
-99,
-90,
-111,
88,
34,
32,
-106,
-99,
124,
7,
71,
124,
-25,
4,
-99,
109,
12,
-54,
-16,
-109,
15,
126,
-102,
8,
-9,
33,
-79,
113,
-115,
-96,
92,
103,
24,
-101,
-100,
-71
] |
The opinion of the court was delivered by
Miller, J.:
This appeal by the State from an order dismissing an information charging the defendant with aggravated kidnapping, rape, aggravated battery and aggravated robbery was heard by this court in January 1983, and a divided court affirmed the dismissal. The Chief Justice’s opinion, accurately stating the facts, the issue, and the decision of the majority, was filed on March 31, 1983. State v. Ransom, 233 Kan. 185, 661 P.2d 392 (1983). In May, we granted a rehearing. The appeal was reargued by counsel, and we now reverse.
The facts are fully set forth in the earlier opinion. The defendant was arraigned in Geary District Court in case No. 81 CR 399 on August 13, 1981, on charges of aggravated kidnapping, rape, aggravated battery and aggravated robbery. On March 4, 1982, the State requested a continuance, citing as grounds its difficulty in obtaining the presence of three witnesses, including two doctors who planned to be out of state on the proposed trial date. On March 5, the trial court denied the requested continu anee, and the State immediately moved to dismiss the case without prejudice. That motion was granted. At that time, 121 days were chargeable to the State. Defendant had been free on bond. Four days later a new case, No. 82 CR 111, was filed. The new case charged the defendant with the same offenses. Defendant was arraigned on March 31, 1982. Trial was set to commence on May 3, 1982. The State again experienced trouble securing the attendance of an out-of-state medical witness, and moved for a continuance. The trial court granted the motion on April 30 and set the case for trial at 8:30 o’clock a.m., on June 9, 1982. On June 7, defendant moved for discharge and the trial court sustained that motion. The court found that under the doctrine adopted by this court in State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979), the time spans chargeable to the State in the two cases must be totalled; that the defendant had been held to answer in both cases for a total of 189 days; and that since the State had failed to bring him to trial within the 180-day period prescribed by K.S.A. 22-3402(2), he was entitled to be discharged. That statute provides as follows:
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
The delay in this case did not happen as a result of the application or fault of the defendant, and no continuance was ordered by the trial court under subsection three.
In addition to Cuezze, two other cases involving our speedy trial statute should be discussed. In State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975), we held that the time limitations of K.S.A. 22-3402 do not commence to run until a defendant is arraigned, and that the time between arrest and arraignment is not to be included in computing the 90-day or 180-day periods within which the accused must be brought to trial. In Fink, the original proceeding was dismissed prior to arraignment, and thus the statute did not come into play. In State v. Hunt, 8 Kan. App. 2d 162, 651 P.2d 967 (1982), the defendant was originally charged with aggravated assault and unlawful use of weapons. Hunt was arraigned on November 10,1980. On March 31,1981, the date on which trial was to take place, the State moved to dismiss the charges without prejudice as one of the State’s witnesses could not be located. The witness was not an “essential” witness, and the State did not make a showing of necessity. On April 3,1981, a new information was filed charging Hunt with aggravated battery, unlawful use of weapons, and making a terroristic threat. That information was amended before Hunt was arraigned, altering the aggravated battery charge to aggravated assault, and dropping the terroristic threat charge. On May 13, 1981, the defendant was arraigned on the amended information. A jury trial was held on July 27, 1981, 75 days after arraignment in the second case, but 259 days after arraignment in the original case. The Court of Appeals reversed Hunt’s conviction on the aggravated assault charge, holding that since the State dismissed the original prosecution without showing necessity, the time between arraignment and dismissal on the original charge had to be added to the time between arraignment and trial in the second case in order to calculate the 180-day period allowable by statute. When this was done, it was readily apparent that the time had expired prior to trial and Hunt was entitled to be discharged. The decision was based upon our holding in Cuezze, which the Court of Appeals held to be controlling. Due to factual differences, neither Fink nor Hunt is helpful here.
We turn now to the Cuezze case. K.S.A. 22-3402 does not deal with the voluntary dismissal of charges by the State and the inclusion of like charges in a new or subsequent complaint or information. We dealt with that problem in Cuezze. There, Cuezze and Houston were charged in the original information with two counts of making a false writing and two counts of conspiracy. Both were arraigned on those charges, Houston on May 20, 1977, and Cuezze on June 13, 1977. In May 1977, the State secured additional information linking Faltico to the illegal conduct. Over three months later, in September 1977, the State filed a new case against Cuezze, Houston and Faltico, and sometime thereafter the State dismissed the original case against Cuezze and Houston. Both defendants were arraigned on the new charges on January 19, 1978. The trial court dismissed the charges against both Cuezze and Houston on May 18, 1978, and we affirmed that dismissal, finding that K.S.A. 22-3402(2) had been violated. We said:
“As we said in Warren [State v. Warren, 224 Kan. 454, 457, 580 P.2d 1336 (1978)], the purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial and the statute establishes certain maximum time limits within which a defendant must be brought to trial. Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute. As pointed out by the trial court, our prior cases relied upon by the State arose out of different factual situations or issues than those now before the court. It should also be noted that no attempt was made by the State to secure additional time in the first case to develop evidence as contemplated by K.S.A. 1978 Supp. 22-3402(3)(c).” (Emphasis supplied.) 225 Kan. at 278.
In Kansas, we recognize both the constitutional right to a speedy trial and the right to a speedy trial enunciated by K.S.A. 22-3402. See State v. Rosine, 233 Kan. 663, 664 P.2d 852 (1983), where both rights are fully discussed and distinguished. Here, there is no claim of a constitutional violation. In this case we are only concerned with the statutory right.
Cuezze establishes the principle that the State cannot dismiss a criminal action and commence a new one containing identical charges — absent a showing of necessity — and avoid the time limitations of K.S.A. 22-3402. We have not decided what constitutes a showing of necessity under Cuezze, nor have we determined what time limitations apply if the State does dismiss and refile upon a showing of necessity.
The literal language of Cuezze implies that the time chargeable to the State in the first action is to be added to that accrued in the second action only if the dismissal is made without a showing of necessity; ergo, if the dismissal is made with a showing of necessity, the computation of the statutory time, whether it be 90 or 180 days, commences anew upon the filing of the second case and arraignment therein. This is logical, and we so hold. See State v. Haislip, 234 Kan. 329, 673 P.2d 1094 (1983). To avoid the statutory time limitations, the State must make a showing of necessity.
We turn now to the facts in the case before us in order to determine whether the State made a showing of necessity at the time it dismissed the original case against Ransom. The State moved for a continuance of the trial date for the reason that one witness had absconded and two of its principal witnesses had serious conflicts with the trial setting. Both of the latter were physicians; one was stationed at Fort Riley, Kansas, at the time the offense was committed, and both were significant and important State witnesses. One had conducted the initial examina tion of the victim and had taken the “rape kit” which was submitted to the Kansas Bureau of Investigation laboratory. The other had taken blood samples, saliva samples, and pubic hairs from the defendant, pursuant to the Court’s order, and these had been submitted to the same laboratory for examination and comparison. The testimony of both witnesses was thus necessary to lay the foundation for the critical expert testimony. Dr. Daniels was not a local resident; he was only temporarily stationed at Fort Riley, and he had left that station and had been separated from the military service before the case could be tried. Dr. Daniels was scheduled to take his Minnesota medical board examinations at the time of trial. This event, as Justice McFarland pointed out in her dissent to the original opinion, 233 Kan. at 194, is a significant event in a physician’s professional career and not a date which he can control or alter. The other physician had a long-standing commitment to attend a professional meeting in New York City. The trial court, upon hearing the State’s motion, made the specific findings set forth verbatim in Justice McFarland’s dissent, 233 Kan. at 195-96. In short, the court found that no prejudice would occur to the defendant if the matter was dismissed without prejudice; that technical problems in securing the appearance of witnesses had arisen; that these problems were neither the fault of the State nor of the defendant; that neither side was operating tactically to try to gain an advantage over the other; and that both parties had acted diligently. The court concluded, however, that in view of the Guidelines adopted by the Supreme Court for the handling of criminal cases, the motion for a continuance must be denied. The State promptly moved to dismiss without prejudice. The journal entry accurately reflects this action:
“WHEREUPON, the Court considers the motion of the State for a continuance. The Court entertains the statements of counsel and ascertains that there is no objection from the defendant to the continuance proposed by the State of Kansas. The Court further considers the file in this case and the reasons proffered by the State for the proposed continuance. The Court specifically notes that this case has been continued three (3) times previously and the Court further notes that the County Attorney has exercised due diligence in attempting to secure the attendance of the witnesses essential to this cause. In considering the Motion, the Court finds, however, that certain guidelines proposed by the Supreme Court must likewise be considered in determining whether or not the motion should be granted. The Court, therefore, finds based on the evidence previously adduced before it, based upon the evidence presented herein, and based upon the guidelines and case law which pertains to the issues raised herein, that the motion for a continuance should not be granted. The Court specifically finds that in denying said motion, however, that the State is not attempting to obtain a tactical advantage in seeking a continuance, that no prejudice has adhered to the defendant thus far, in terms of his right to a speedy trial as the same is statutorily defined.
“The Court finds that neither party has been less than diligent in their efforts to bring this matter to trial.
“WHEREUPON, the State moves to dismiss this matter without prejudice, stating to the Court that the same being a need of necessity since the State is unable to proceed without the testimony of the three (3) witnesses that were mentioned in their affidavit.
“WHEREUPON, the Court, based on its previous rulings and hearing no objection from the defendant’s counsel, finds that the matter should be dismissed without prejudice. The Court further adopts its previous rulings. . . .
“It Is So Ordered.”
While the judge did not specifically find that the State made a showing of necessity, such a finding is implicit in the record and in the findings made. The State had its witnesses under subpoena, but it was wary lest, in the face of the serious conflicting commitments, the witnesses would not appear. If the State proceeded with trial and either one of the witnesses failed to appear, the State’s case would be badly crippled. True, the State could later cite the witness for contempt, but that would not fill the resulting void in the State’s presentation of its criminal case against the defendant. Witnesses do not always appear, even though they are ordered to do so. Some are stricken on the way to the courthouse; others are hospitalized and undergo surgery. Such problems cannot be anticipated. Other conflicts, however, can. Professional examinations, such as bar, medical and dental examinations, are given only at stated times and places; and an aspiring professional might well be tempted to ignore a subpoena which conflicted with such an examination, even in light of the probable contempt citation. The State anticipated this and sought a different trial setting within the remaining 59 days available to it within the statute. Upon the denial of its motion for a continuance, the State dismissed and refiled rather than chance a trial at which one or more vital witnesses would be absent.
Upon this record, we conclude that the State made a showing of necessity. The Cuezze doctrine, therefore, is inapplicable. The dismissal being made upon a showing of necessity, the computation of the statutory time commenced anew. One hun dred eighty days had not expired from the date of arraignment, March 31, 1982, to the date of dismissal.
The judgment is reversed, with instructions to set aside the dismissal. | [
-48,
-32,
-67,
-66,
10,
64,
42,
-104,
115,
-13,
118,
83,
45,
-62,
1,
121,
90,
47,
84,
120,
-48,
-73,
-25,
-31,
-14,
115,
-47,
-43,
-77,
-33,
-82,
-12,
77,
96,
10,
-43,
102,
-54,
-63,
28,
-54,
5,
-87,
-4,
-46,
8,
52,
107,
122,
14,
49,
14,
-93,
106,
26,
-46,
-23,
40,
-38,
61,
-128,
-79,
-37,
23,
79,
86,
-125,
-124,
-104,
5,
80,
54,
-104,
49,
48,
-8,
114,
-90,
-122,
-11,
109,
-69,
44,
102,
98,
1,
-36,
-18,
-92,
-120,
62,
18,
-99,
-25,
-104,
8,
106,
69,
-106,
-103,
117,
20,
7,
-2,
-25,
4,
93,
108,
14,
-34,
-80,
-111,
-115,
113,
-110,
40,
-29,
37,
48,
113,
-51,
-94,
92,
71,
115,
59,
-98,
-40
] |
The opinion of the court was delivered by
Herd, J.:
This is a declaratory judgment action for construction of a contract. The trial court ruled the contract was ambiguous and subject to the admission of extrinsic evidence to determine the intent of the parties. Arkansas Louisiana Gas Company appeals.
The appellant is a division of Arkla, Inc., a foreign corporation authorized to do business in Kansas. As the result of a merger it succeeded to all rights and liabilities of Consolidated Gas Utilities Corporation.
The State of Kansas (appellee) is the owner of the land in Cowley County, Kansas, upon which the Winfield State Hospital is located.
The appellant obtained a pipeline right of way easement from the State of Kansas in 1952. The easement gave appellant the right to lay, maintain, operate and remove a gas pipeline in and upon the Southwest Quarter of Section 14, Township 32S, Range 4E, Cowley County. Shortly thereafter the appellant laid and constructed a gas pipeline across the real estate. The pipeline is known as the “New Salem” transmission line. The line has been used for gas transmission purposes by appellant continuously from the time of its construction to the present.
These same parties executed a meter and regulator lease (the 1957 lease) on November 22, 1957. The lease covered a small tract in the Southwest Quarter of Section 14 and provided a specific location for a regulator station. A few months later, appellees granted appellant another pipeline right of way. The right of way commenced in the Southwest Quarter of Section 14 and extended into the Southeast Quarter of Section 15 on a designated line.
After the execution of the 1957 lease and the 1958 pipeline easement, a meter and regulator station and gas pipelines were constructed on the land.
Neither the 1957 lease nor the 1958 pipeline easement made express reference to the “New Salem” transmission line which had been installed and constructed shortly after the execution of the 1952 pipeline easement. Each provided, however, “The gas company hereby agrees to relocate without cost to the State any gas lines or stations belonging to them on the lands of said center which may in the future be in the way of or interfere with new construction.” This provision gave rise to this suit.
In 1964-65 appellant’s gas line was in the way of a proposed new building. The State notified appellant the proposed new construction would necessitate the relocation of a portion of the “New Salem” pipeline. The company responded stating the line would be moved on an actual cost basis with the company performing the moving and the State standing the cost. The State replied citing the language in the 1957 lease and 1958 right of way requesting the company to comply with its terms. The gas company complied and moved the gas line at its own expense.
In 1980 appellee again requested appellant to relocate its six-inch “New Salem” transmission line at the sole cost to the appellant to make way for additional construction. The appellee relied upon the 1958 right of way instrument as the basis for its demand. The appellant declined to move the line, contending neither the 1957 lease nor the 1958 pipeline easement applied to the 1952 pipeline. Over appellant’s objections, the trial court admitted parol evidence to explain the instruments. The extrinsic evidence, consisting of testimony of Virgil W. Hall, retired Arkla employee; Charles V. Hamm, attorney for SRS; and George W. Jackson, M.D., former director of the hospital, showed the parties negotiated the terms of the 1957 lease and 1958 pipeline easement with the intention of requiring appellant to relocate at its expense any of its gas lines on the land of the Winfield Training' Center when required by new construction as a part of the consideration for the lease and new easement. Thereafter, the trial court ruled the contracts require appellant to move its gas pipeline at its expense. This appeal followed.
Appellant argues the trial court erred in ruling the 1957 lease and the 1958 right of way grant to be ambiguous. This ruling allowed the trial court to consider testimony and evidence clarifying the intent and purpose of the contract. See First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, Syl. ¶ 6, 602 P.2d 1299 (1979). On appeal, this court has the same opportunity as the trial court to decide the question of ambiguity, because the issue is a matter of law to be decided by the court and since the contracts were in writing. See First National Bank of Hutchinson v. Kaiser, 222 Kan. 274, 278, 564 P.2d 493 (1977), and Kauk v. First Nat’l Bank of Hoxie, 5 Kan. App. 2d 83, 87, 613 P.2d 670 (1980).
This court has held a contract to be ambiguous “when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings.” 226 Kan. 619, Syl. ¶ 5. The contract provisions in question are stated exactly the same in both documents, as previously quoted.
The appellant argues the contracts were not ambiguous because there was only one meaning to be ascertained from the language. Appellant maintains “the lands of said center” can pertain only to the land described in each instrument. Arkla places great significance on the use of the word “the” prior to the rest of the phrase, arguing “the word ‘the’ when used immediately before a noun” has a “specifying or particularizing effect as opposed to the indefinite or generalizing force of ‘a’ or ‘an’.”
Appellee argues, however, that both of these contracts meant “any gas line” owned by the gas company on all “the lands” of the Winfield State Hospital, including the land where the controverted gas line is located.
Both parties’ arguments show the language “any gas line” and “on the lands” may be understood to have two different meanings. Were the plain meaning used, it would likely be resolved in appellee’s favor because the words clearly say “the lands” not “land” of appellee. The language of the parties, however, leaves their intention doubtful. Additionally, the term “center,” as used in the instruments, is ambiguous since it is nowhere defined within the documents. The instrument is ambiguous and extrinsic evidence concerning its execution is competent to determine the intention of the parties. See Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 838-39, 508 P.2d 889 (1973).
Appellant further argues the finding of ambiguity violates the rule that “[t]he meaning of a contract should always be ascertained by a consideration of all the pertinent provisions and never be determined by critical analysis of a single or isolated provision.” Weiner v. Wilshire Oil Co., 192 Kan. 490, 496, 389 P.2d 803 (1964). The isolated provisions here are the provisions in controversy. If this language, appellant argues, is examined on its own, it appears to be ambiguous, but if examined with the whole document it refers only to the real estate in the contract. This is not true. The provision is itself a separate paragraph in the 1957 lease and is part of a general provision in the 1958 right of way grant. The language, whether viewed separately or as a whole with the entire contract, fails to clarify which meaning was intended by the parties and is, therefore, ambiguous.
To further fortify the trial court’s position it should be noted we have held: “A court may, in construing an ambiguous or indefinite contract, take into consideration the conduct of the parties as evidence of their interpretation of the document, provided that interpretation is not inconsistent with the language of the contract.” First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, Syl. ¶ 7. In 1965, the gas company moved a portion of the “New Salem” at the State’s request at its own expense when the State asserted the provisions of the 1957 and 1958 instruments. The purpose of the move was to accommodate new construction. Appellant alleges this was done out of courtesy to a good customer. The record shows, however, the company made neither a reservation of rights nor informed the State its action was a public relations gesture. The State believed the company was acting according to the contracts and so communicated that belief to the company in a letter. The State received no response indicating the company believed otherwise. The first time the company informed the State it disagreed with the State’s interpretation of the contract was when this dispute arose. The conduct of the gas company in moving the pipe and paying the expenses in 1965 is persuasive as to the intent of the parties concerning the contract.
The appellant finally argues the appellee’s construction is unreasonable. This court has held:
“In placing a construction on a written instrument reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided.” Weiner v. Wilshire Oil Co., 192 Kan. at 496.
The absurdity of the contract, appellant argues, is that it would require all the gas lines owned by the appellant located on any land anywhere owned by the appellee to be moved at the appellant’s expense. Not so. The contract applies only to the Winfield Training Center property, as it says.
We find ample substantial competent evidence to support the decision of the trial court.
The judgment of the trial court is affirmed. | [
-44,
104,
-16,
76,
-120,
-32,
56,
-103,
113,
-93,
100,
83,
-83,
-56,
-107,
123,
-62,
125,
101,
121,
-45,
-77,
3,
113,
-46,
-13,
-77,
69,
-70,
95,
-26,
-49,
76,
64,
-54,
-43,
-58,
66,
85,
92,
-50,
4,
-119,
120,
-47,
-128,
52,
43,
84,
79,
21,
29,
-13,
40,
24,
-61,
104,
60,
123,
60,
73,
-8,
-6,
-121,
95,
23,
33,
36,
-112,
7,
-24,
62,
-112,
112,
8,
-20,
114,
-90,
6,
116,
11,
-103,
40,
-86,
99,
1,
20,
-17,
-24,
-104,
15,
-33,
-115,
-89,
-128,
24,
-30,
4,
-105,
29,
89,
22,
-121,
126,
-18,
-123,
91,
124,
0,
-117,
-14,
-79,
7,
108,
-48,
13,
-21,
-121,
32,
101,
-53,
-14,
93,
71,
114,
-101,
-98,
-48
] |
The opinion of the court was delivered by
Sciiroeder, C.J.:
This is a criminal action in which Henry D. Pondexter (defendant-appellant) appeals a jury verdict finding him guilty of aggravated assault of a law enforcement officer (K.S.A. 21-3411), unlawful possession of a firearm (K.S.A. 21-4204), burglary (K.S.A. 21-3715) and attempted murder (K.S.A. 21-3301, 21-3401). The appellant, contends the evidence was insufficient to support the verdict) on each count and the trial court erred in consolidating the charges for trial.
On October 22, 1981, two Wichita undercover police officers, Randy Mullikin and Richard Mouser, while patrolling in an unmarked car, observed the appellant and another man riding in a car exchanging what appeared to be a marijuana cigarette. The other car was driven by the appellant. At a stoplight the officers asked the two men if they knew where they could buy some marijuana. The men indicated the officers should follow them to a nearby parking lot. There the passenger in the car, Terry Ross, informed the officers he knew where he could purchase some marijuana for them and told the officers to follow him to another location. At the second location Ross approached the officers’ vehicle and asked for ten dollars with which to purchase the marijuana. The officers suggested the appellant sit in their car until Ross returned. The appellant sat in the front seat of the car with Officer Mullikin, while Officer Mouser sat in the back seat behind the appellant.
Ross went into an apartment across the street from where the vehicles were parked. After several minutes elapsed the appellant suggested they honk the horn. Ross still did not appear. The appellant then suggested one of the officers go to the apartment to find out where Ross was. At this time Mouser signaled to Mullikin that they should arrest the appellant. Mouser asked the appellant to lean forward so he could push the seat forward and get out of the car. The officers both testified Mouser got out of the vehicle, showed the appellant his handcuffs, advised him they were Wichita police officers and that he was under arrest. The appellant was told to place both hands on the dashboard so he could be handcuffed, removed from the vehicle and searched for weapons. The appellant placed his left hand on the dashboard but kept his right hand near his waist. Officer Mouser grabbed the appellant’s right wrist and placed his hand on the dashboard, again advising the appellant they were police officers. Officer Mullikin testified that he also advised the appellant they were police officers. At this time the appellant made a sudden gesture with his right hand toward his waist and lunged his shoulder into Officer Mouser. Mullikin warned Mouser the appellant had pulled a gun. Mouser pulled the appellant from the car and subdued him after a struggle on the ground. At this time Ross came out of the apartment and asked what was going on. The appellant told him, “They’re cops.” Ross went back into the apartment and reemerged carrying the ten dollars. He was then placed under arrest.
The appellant was charged with aggravated assault on a law enforcement officer and unlawful possession of a firearm. These charges were originally filed as misdemeanors in the municipal court but. were later dismissed and refiled as felonies in the district court. The appellant failed to appear when his case was called for trial on March 22, 1982, having apparently fled from the courthouse after a hearing earlier that day on a motion to continue. The trial court ordered forfeiture of the appearance bond and issued a warrant for the appellant’s arrest.
On April 2, 1982, Officer Mullikin returned to his home from work around 1:30 a.m. While reaching to close a door to his garage which he noticed had been left partially open, someone from inside the garage shot at Officer Mullikin’s face, causing powder burns to his face and left eye. Another shot was fired as Mullikin ran from the garage and around to the front of the house. He heard what sounded like someone climbing over his neighbor’s fence and then saw a man running down the street. The man fired at Mullikin three more times when Mullikin ordered him to stop. Mullikin returned three shots from his service revolver. Officer Mullikin described his assailant as a black male, 5'7" to 5'9" in height and weighing 160 to 170 pounds, with an afro-style hair cut. While in pursuit of the man Mullikin heard a car door slam and an engine start up. He then saw a vehicle with two round red tail lights on each side pull away from the curb and turn the corner. The engine was loud and sounded as if the muffler was worn out. Mullikin could not tell what type of vehicle it was. Two people living in the area near Officer Mullikin testified they saw a dark-colored flatbed truck with a loud engine traveling in the area at a high rate of speed shortly after the shots were heard. The next day bullet fragments from .22- and .38-caliber weapons were recovered from the area.
A reward was offered by Crimestoppers in Wichita for information concerning the attempted shooting of Officer Mullikin. A few days later Terry Ross contacted Crimestoppers and gave a statement implicating the appellant. He testified he had several conversations with the appellant about killing Officers Mullikin and Mouser to prevent them from testifying at trial on the pending charges. Ross testified the appellant offered to pay him $2500 for helping to kill the officers. During this time Ross saw the appellant in possession of several guns, including a .22-cali-ber revolver and other handguns.
A week or two prior to the March trial date the appellant picked Ross up in his truck and showed him where Mullikin’s house was. They had guns with them and discussed what strategy to use to kill Mullikin. They tired of waiting for Mullikin to return home, however, and abandoned their mission. A few days later the appellant asked to borrow a ski mask from Ross and said he was going back to Mullikin’s house. Sometime later Ross learned of the attempted shooting of Officer Mullikin through the news media.
It was established that the appellant owned a 1959 flatbed truck which was being kept on his uncle’s property in order to be repaired at the time the attempt was made to shoot Officer Mullikin. The appellant’s uncle testified he had the only key to the truck and to the best of his knowledge the truck was parked at his house the night in question. He further testified the truck was operable but could not be driven far without overheating. This was the truck driven by the appellant the night he and Ross unsuccessfully waited for Officer Mullikin to return home in order to kill him. Ross testified the truck could be driven although there was a small hole in the radiator.
The appellant was subsequently arrested and charged with attempted murder and burglary. This case was consolidated for trial with the action pending against the appellant for the charges arising out of his arrest in October. Ross received a $2500 reward from Crimestoppers for his information and was granted immunity from prosecution for his involvement in the crimes in exchange for his testimony against the appellant.
The appellant first challenges the sufficiency of the evidence to support his conviction of each offense. It is well established in this state that in a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? Also, in considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence, and if the essential elements of the charge are sustained by any competent evidence the conviction must stand. See State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980). See also State v. Williams, 229 Kan. 290, 296, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981).
The appellant contends the evidence was insufficient as a matter of law to support the conviction of aggravated assault on a law enforcement officer because neither of the officers was properly identified as a police officer at the time of the appellant’s arrest on October 22, 1981. K.S.A. 21-3411 defines the offense of aggravated assault on a law enforcement officer as follows:
“Aggravated assault of a law enforcement officer is an aggravated assault, as defined in section 21-3410, committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of his duty.” (Emphasis added.)
It is an established fact that the officers were not uniformed. It is also clear the appellant was not shown an identification card or badge until possibly after he was subdued and handcuffed. The issue is whether the officers, wearing civilian clothing while engaged in undercover work, were “properly identified” law enforcement officers at the time of the assault, as provided by K.S.A. 21-3411.
The meaning of the phrase “properly identified” as it is used in K.S.A. 21-3411 was discussed at length in State v. Bradley, 215 Kan. 642, 527 P.2d 988 (1974). There it was held the statutory element “properly identified” only requires evidence that a law enforcement officer be identified in such a manner that the defendant reasonably should know the person is a law enforcement officer. 215 Kan. at 646. In Bradley, the court found there was sufficient evidence to support a conviction for aggravated assault on a law enforcement officer where a police detective, dressed in civilian clothing, was threatened by the defendant with a gun after a uniformed police officer in a plainly marked police car had informed the defendant of the detective’s identity.
The appellant testified at trial that neither of the two officers identified themselves as police officers at any time and that he did not realize they were police officers until he was handcuffed. He testified that when Mouser got out of the car and ordered him to put his hands on the dashboard he thought the two men were going to rob him so he tried to run away. He denied pulling a gun on the officers and instead testified it fell out of his clothes after he was arrested. In rebuttal a Wichita police detective testified the appellant stated during an interview following his arrest that he drew his gun when the two men informed him they were police officers. The appellant denied making the statements to the detective.
The evidence presented by the State was sufficient, as a matter of law, for the jury to find Officers Mouser and Mullikin were identified in such a way that the appellant reasonably should have known they were law enforcement officers. Officer Mouser testified he showed the appellant his handcuffs, advised him they were police officers and that he was under arrest. When the appellant failed to comply with the officer’s orders both Mouser and Mullikin reaffirmed to him they were police officers. Following his arrest the appellant advised the detective he knew the men were police officers at the time he drew his gun. There is substantial competent evidence in the record from which it can be concluded Officers Mouser and Mullikin were “properly identified” law enforcement officers when they were assaulted by the appellant with a deadly weapon.
The appellant next contends the evidence was insufficient to support the conviction for unlawful possession of a firearm. The appellant testified he took the gun from Terry Ross before going to sit in the officers’ vehicle because he was afraid of what Ross would do to the officers with the gun. He intended to leave the gun in his car but Ross told him he would take the gun himself if the appellant did not take it with him. The appellant contends he did not intend to use the weapon on the officers and that “the innocent handling of the weapon to protect himself is reasonable and not contemplated by statute.”
This court has repeatedly stated that the possession of a firearm prohibited by K.S.A. 21-4204 is not the innocent handling of the weapon, but a willful or knowing possession of a firearm with the intent to control the use and management thereof. See, e.g., State v. Jones, 229 Kan. 618, 620, 629 P.2d 181 (1981); State v. Neal, 215 Kan. 737, 740, 529 P.2d 114 (1974). In Jones this court rejected the defendant’s argument that the use of a firearm in self-defense constituted a defense for an otherwise unlawful possession of a firearm, stating:
“We are convinced that the possession and use of a firearm to defend oneself against an aggressor’s imminent use of unlawful force is not in itself a defense to the charge of unlawful possession of a firearm under K.S.A. 21-4204. It is the possession of the firearm which is prohibited by the statute. It is the nature and degree of the possession which may furnish a defense to the charge. Where the possession of the firearm is brief and without predesign or prior possession such possession is not prohibited by the statute, for in such use the possessor of the firearm lacks the required intent to control, and the possession is not purposeful and intentional. So it is not how the firearm is used (in self-defense) that may furnish a defense, it is the nature and degree of the possession which may do so.” 229 Kan. at 620-21.
This court has held the evidence was sufficient to show the defendant was in possession and control of a firearm within the meaning of the statute where the defendant hid a gun in the pocket of his coat in an attempt to steal it from a store (State v. Knowles, 209 Kan. 676, 678, 498 P.2d 40 [1972]); where the defendant kept a gun in a dresser in a locked bedroom (State v. Porter, 201 Kan. 778, 781, 443 P.2d 360 [1968], cert. denied 393 U.S. 1108 [1960]); and where the defendant took a gun from a bedside table in her bedroom and fired it into the floor to frighten an unwanted guest (State v. Phinis, 199 Kan. 472, 482, 430 P.2d 251 [1967]).
The evidence in the record on appeal was sufficient to establish the appellant’s possession and control of the gun in violation of the statute. When construed in the light most favorable to the prosecution the evidence heretofore set forth shows the appellant concealed the gun in his clothing before he went to sit in the officers’ vehicle, and that he drew the gun on the officers in an attempt to flee when they identified themselves to him. These facts and circumstances were sufficient to permit the jury to find the appellant’s possession was more than a mere “innocent handling” of the weapon; rather, he possessed the gun with the intent to control its use and management. The appellant’s claim that he used the gun to protect himself from being robbed by two unidentified men does not negate or lessen the nature and degree of the possession.
The appellant next contends the evidence was insufficient to sustain the convictions for attempted murder and burglary. Specifically the appellant alleges the uncorroborated testimony of Terry Ross that the appellant had expressed a desire to kill Officer Mullikin was not sufficient to support the verdict of attempted murder, particularly in light of the fact Ross received a $2500 reward for the information and was granted immunity by the State to testify. He also argues there was no evidence presented to show he entered Officer Mullikin’s garage to support the charge of burglary. At trial the appellant’s mother, his brother and a friend of the family testified the appellant was at home watching television from 8:30 p.m. on April 1, 1982, until 2:00 a.m. on April 2.
It is a well-established principle of law that it is the prerogative of the jury to determine the credibility of the witnesses, the weight to be given the evidence, and the reasonable inferences which may be drawn from the evidence. State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980). Furthermore, a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. White & Stewart, 225 Kan. 87, Syl. ¶ 14, 587 P.2d 1259 (1978).
Bearing these principles in mind, the evidence presented by the State, while mostly circumstantial, was sufficient to permit the jury to infer that the appellant was guilty of the crimes charged. The evidence supporting the State’s theory of the case established the appellant wanted to kill Officer Mullikin to prevent him from testifying concerning the charges arising out of his arrest on October 22, 1981; that he offered Terry Ross $2500 to help him kill the two officers; that on a prior occasion he and Ross unsuccessfully waited for Mullikin at his home intending to kill him; that the appellant told Ross he was going to go to Mullikin’s house again; and that Ross saw the appellant in possession of a handgun compatible with the one which was fired at Mullikin. In addition, the appellant owned a flatbed truck similar to that seen by area residents leaving the scene shortly after the exchange of gunfire was heard. This truck was used by the appellant and Ross on their previous attempt to kill Mullikin. The fact Terry Ross received a reward and was granted immunity for his testimony does not affect the sufficiency of his testimony, but rather were factors for the jury to consider in determining his credibility and the weight to be given his testimony. Much of the evidence concerning the truck was discovered after Ross gave information to Crimestoppers, thus corroborating Ross’ testimony. Regarding the burglary charge, the evidence is undisputed that the perpetrator of the shooting was inside Mullikin’s garage when the first shot was fired. Admittedly no one could positively identify the appellant as the person who tided to kill Officer Mullikin. However, there was substantial competent evidence to justify the inference drawn by the jury that the appellant was guilty of the offenses charged.
As his final point on .appeal the appellant contends the trial court erred in consolidating the charges arising out of the two separate incidents for trial. K.S.A. 22-3203 permits consolidation of two or more complaints or informations against a single defendant if the crimes could have been charged in a single complaint or information as provided by K.S.A. 22-3202(1). That statute provides joinder in the same complaint or information is proper if the crimes charged: (1) are of the same or similar character, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. State v. Bagby, 231 Kan. 176, 177-78, 642 P.2d 993 (1982). The decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal absent a clear showing of abuse of that discretion. State v. Bagby, 231 Kan. at 178, and cases cited therein. The appellant contends none of the requirements for consolidation are present in this case because the two sets of charges were dissimilar and completely unrelated to each other.
In State v. Moore, 226 Kan. 747, Syl. ¶ 1, 602 P.2d 1359 (1979), it was held that under K.S.A. 22-3202 and 22-3203, when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are sufficiently “connected together” to allow consolidation for trial. In that case the defendant was charged with corruptly influencing a witness and unlawful deprivation of property when he attempted to persuade his roommate to falsely testify during his trial on charges of aggravated robbery and kidnapping which arose out of an earlier unrelated incident. This court held the charges were properly consolidated for trial, stating:
“The federal cases consistently hold that when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are considered sufficiently ‘connected together’ to allow consolidation for trial. For example, ‘a charge of bail jumping or escape may be deemed sufficiently “connected” with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant’s custody stemmed directly from the substantive charges.’ United States v. Ritch, 583 F.2d 1179, 1181 (1st Cir.), cert. denied 439 U.S. 970 (1978). ... In Williams u. United States, 265 F.2d 214 (9th Cir. 1959), it was held that a charge of obstruction of justice was properly joined for trial with a charge of statutory rape when the obstruction charge was the result of the defendant’s persuasion of the victim in the statutory rape charge to repudiate her earlier statement of intercourse with defendant. Applying the reasoning of the federal cases to the factual circumstances in this case, we hold that the two criminal cases against the defendant Moore were properly consolidated for trial under the Kansas statutes. The crimes of aggravated robbery and kidnapping were ‘connected together’ with the charge of corruptly influencing a witness because the crime charged in 78 CR 629 precipitated the conduct charged in 78 CR 1659. When charges are ‘connected together,’ their joinder for trial rests in the sound discretion of the trial court, and such joinder is not reversible error absent abuse of discretion. State v. McGee, 224 Kan. 173, 175, 578 P.2d 269 (1978).” 226 Kan. at 749-50.
The case at bar is factually similar to the situation in Moore. Here the evidence presented by the State indicates the appellant wanted to kill Mullikin to prevent him from testifying at his trial for unlawful possession of a firearm and aggravated assault on a law enforcement officer. Clearly the crimes charged in the earlier action precipitated the conduct resulting in the attemped murder and burglary charges. The charges arising out of the two incidents were properly consolidated for trial.
The judgment of the lower court is affirmed. | [
-80,
-22,
-23,
30,
14,
96,
42,
60,
80,
-73,
102,
115,
41,
-61,
5,
123,
-37,
61,
84,
105,
-58,
-73,
7,
-96,
82,
115,
91,
-55,
-73,
-50,
-26,
-44,
13,
48,
-126,
85,
102,
-118,
-91,
88,
-122,
5,
-127,
113,
-46,
2,
-76,
43,
-16,
15,
49,
30,
-5,
106,
17,
-61,
-19,
60,
-101,
-83,
-63,
-7,
-119,
-123,
-37,
22,
-77,
-94,
-97,
-121,
-40,
127,
-104,
57,
1,
-24,
115,
-92,
-126,
-12,
79,
-103,
68,
98,
98,
33,
-15,
-84,
-76,
-127,
46,
59,
-113,
-89,
-72,
73,
104,
45,
-106,
-97,
101,
22,
15,
-12,
-13,
-97,
21,
-20,
6,
-50,
-72,
-111,
79,
48,
2,
-38,
-53,
37,
48,
97,
-51,
-26,
92,
85,
114,
-3,
-118,
-44
] |
The opinion of the court was delivered by
McFarland, J.:
Danny H. Williams appeals his first-degree murder (K.S.A. 21-3401) conviction for the brutal stabbing death of Francis Ellifson.
The first issue on appeal is alleged error by the trial court in permitting the prosecution to present evidence of a twelve-year-old Idaho murder conviction for purposes of proving identity.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis supplied.)
In State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), this court observed:
“Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. In other words to show that the same person committed two offenses it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. As pointed out by Mr. Justice Kaul in State v. Johnson, 210 Kan. 288, 502 P.2d 802 [(1972)]:
“The quality of sameness is important when pondering the admission of other crimes to prove identity.” ’ (p. 294.)” 215 Kan. at 177. (Emphasis supplied.)
In State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977), this court commented:
“Where a prior conviction or civil wrong is offered for the purpose of proving identity, evidence should disclose sufficient facts and circumstances of other offenses or civil wrongs to raise a reasonable inference that defendant committed both. (State v. Donnelson, 219 Kan. 772, 549 P.2d 964 [1976].) In other words, similarity must be shown in order to establish relevancy. (State v. Bly, [215 Kan. 168]; State v. Cross, 216 Kan. 511, 532 P.2d 1357 [1975]; and State v. Johnson, 210 Kan. 288, 502 P.2d 802 [1972].) The similarity of offenses is a key factor in relevancy. (State v. Masqua, 210 Kan. 419, 502 P.2d 728 [1972], cert. den. 411 U.S. 951, 36 L.Ed.2d 413, 93 S.Ct. 1939 [1973].)” 221 Kan. at 644.
In State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980), this court restated what it had said many times concerning invocation of K.S.A. 60-455 to show identity:
“The rule is well established in this State that where a similar offense is offered for the purpose of proving identity, the evidence must disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the same person committed both of the offenses. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974).” 227 Kan. at 653.
However, K.S.A. 60-455 does not require the two offenses to be identical. It is sufficient if they were similar. State v. Ritson, 215 Kan. 742, 747, 529 P.2d 90 (1974).
We turn now to the facts of the two crimes relevant to this issue.
Francis Ellifson Murder (Conviction Herein)
On April 4, 1982, defendant spent several hours drinking at a party. Around 10:30 - 10:45 p.m. defendant had an argument with another person at the party, became angry and left the premises alone to go to his home at 2336 North Jackson in Wichita. At about the same time Francis Ellifson was returning to her home at 2346 North Jackson from an evening church service. Mrs. Ellifson was alone in the home when she received a telephone call from a sister shortly before 11:15 p.m. During the conversation Mrs. Ellifson left the phone to answer the door. The sister heard Mrs. Ellifson say, “Get away. Leave me alone. Oh, no.” She then heard scuffling and the phone went dead. The sister’s husband called the police, said call being received at 11:14 p.m. The sister then called Charlie Ross, father of the two women, who lived near the Ellifson home. Mr. Ross arrived at the Ellifson home at the same time as a third sister. Mr. Ross tried to gain admittance to the home, but Mrs. Ellifson, clearly frightened of something in her home, told him to leave. Mr. Ross pretended to leave but returned almost immediately with two police officers who had arrived. Officer Linn started around to the back of the house where he saw a scuffle between two people. Meanwhile Mr. Ross and the other officer were approaching the front of the home and heard Mrs. Ellifson scream “Daddy” from the backyard. The attacker fled. Mrs. Ellifson was lying on the ground, fatally stabbed in the abdomen but still conscious. She said her attacker was a white man. She lapsed into unconsciousness shortly thereafter. Mrs. Ellifson was wearing only a slip and torn hosiery.
The victim’s husband was unable to determine if anything had been taken from the home. The rest of the clothing the victim had been wearing was found in the home, including her bloodstained blouse.
Melba Gray Murder (Prior Idaho Conviction)
On November 12, 1970, defendant had been drinking at a party, had an argument, became angry, left alone and returned home about 11:00 p.m.
The following morning the nude body of Melba Gray was found on a railroad track in Shoshone, Idaho, some two and a half miles from her home. She had been run over by a train at about 2:00 a.m. The autopsy revealed Mrs. Gray was already dead when her body was dismembered by the train. Before death she had been beaten on the head, strangled, and stabbed in the abdomen. The official cause of death was multi-massive traumatic injuries. Defendant was charged with first-degree murder but pled guilty to the reduced charge of second-degree murder and received a life sentence.
Similarities Between the Crimes
Defendant’s activities immediately prior to the crimes were almost identical. Both victims were women several years older than defendant, who lived within 450 feet of defendant’s residence. In each instance the victim had arrived home shortly before the attack occurred. Each victim received long slicing wounds in addition to the massive stabbing abdominal wounds. Sexual molestation was the apparent motive for both attacks. In each crime the victim was removed from her home, after the initial attack, although the attacker was interrupted in the Ellifson case by the arrival of the victim’s father and police officers.
In State v. Churchill, 231 Kan. 408, 646 P.2d 1049 (1982), defendant’s first-degree murder conviction was affirmed where the State had been allowed to use evidence of a prior rape conviction. In both crimes young women had been attacked in their apartments. We stated:
“The evidence presented disclosed a large number of similarities as well as dissimilarities. Both victims were young, white females living in second floor apartments; both crimes were committed in the morning hours; and in both cases a large, wooden-handled knife was wielded by the accused. The young woman in Wichita was threatened with strangulation and with the knife; Mrs. Halling’s body bore bruises in the neck region, and she was actually stabbed. Many other similarities and dissimilarities have been called to our attention by industrious counsel.
“The defendant points out that the prior conviction was for rape, while in the case at hand there was no evidence of rape or attempted rape. Both crimes, however, were crimes of violence committed against young women in their homes.” 231 Kan. at 415.
Admittedly the facts before us present a close question on whether there was sufficient similarity between the crimes for K.S.A. 60-455 identity purposes. After carefully reviewing the record, we conclude the trial court did not err in permitting the State to introduce evidence pursuant to 60-455 of the Idaho murder to prove identity.
For his second issue defendant challenges the propriety of the instruction on the limited admissibility of the evidence of the Idaho murder conviction.
The trial court instructed as follows:
“Evidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant’s identity.”
This instruction is taken from PIK Crim. 2d 52.06. The instruction, as given, adequately and accurately states the relevant law and we find no error on this issue.
The third issue is alleged error by the trial court in permitting the State to present two expert witnesses relative to blood tests performed, in view of the fact the two witnesses were not in complete agreement in their interpretation of the evidence.
Defendant contends:
“The reason the State did this was obvious. They outspent the Defendant to show that all the blood tests were in effect ‘Mickey Mouse’ and that the Jury should not believe any of them. Also, what the Prosecution did was present two inconsistent experts on their case in chief. The State is under a duty to present truthful testimony. To present two witnesses which the State knew prior to calling them would give different opinions, was in violation of presenting truthful testimony. One of the two experts had to be in error and the State should have made an election as to which one to call and should have called that expert.
“The State took what was very relevant evidence to show that Defendant did not commit the crime of murdering Francis Ellifson, and turned all of the expert testing into a joke.”
To these contentions the State responds:
“The experts’ interpretations of test results are apparently also somewhat subjective. The mere fact that the experts did not come to identical conclusions does not, as alleged by appellant, show that any one of them are not truthful. A number of factors go into such expert opinions including the credentials of the expert, his or her experience and training, the methodology used, the quality control procedures to verify and preserve the test results, the condition of the item tested, etc. . . . [TJhere was no error in presenting both experts to the jury to allow them the opportunity to test the weight to give to the opinion of the serology expert who first examined the evidence.”
It should be noted that defendant called an expert serology witness who did not agree with either of the State’s expert witnesses.
Kansas trial courts have wide discretion in allowing the testimony of expert witnesses pursuant to K.S.A. 60-456(fe), and the use of such testimony ordinarily goes to the weight of the evidence and not its admissibility. Schaeffer v. Kansas Dept. of Transportation, 227 Kan. 509, 608 P.2d 1309 (1980); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 578 P.2d 1095 (1978). The basis for admission of expert testimony is the need to assist the jury in understanding the facts of the particular case. Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978). As admission of expert testimony lies within the sound discretion of the trial court its ruling will not be disturbed on appeal in the absence of an abuse of discretion. State v. Reed, 226 Kan. 519, Syl. ¶ 1, 601 P.2d 1125 (1979). A party claiming an abuse of discretion has the burden to establish the claim. Hoover Equipment Co. v. Smith, 198 Kan. 127, 134, 422 P.2d 914 (1967); Skahan v. Powell, 8 Kan. App. 2d 204, 208, 653 P.2d 1192 (1982); Lemons v. St. John's Hospital of Salina, 5 Kan. App. 2d 161, 613 P.2d 957, rev. denied 228 Kan. 807 (1980); State v. Wright, 4 Kan. App. 2d 196, Syl. ¶ 5, 603 P.2d 1034 (1979), rev. denied 227 Kan. 928 (1980).
In the instant case the jury was instructed on the credibility and weight they could attach to witnesses’ testimony as follows:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use that knowledge and experience which you possess in common with men in general in considering the testimony of each witness. You also may take the following factors into consideration when weighing a witness’s testimony:
a) the witness’s ability and opportunity to observe and know the things about which he had testified;
b) the clarity and accuracy of the witness’s memory;
c) the witness’s manner and conduct while testifying;
d) any interest the witness may have in the result of the trial;
e) the reasonableness of the witness’s testimony when considered in light of all the evidence in the case; [and]
f) any bias, interest, prejudice or motive the witness may have.
“If you find that any witness has willfully testified falsely concerning any material matter, you have a right to distrust the testimony of that witness in other matters, and you may reject all or part of the testimony of that witness, or you may give it such weight as you think it deserves. You should not reject any testimony without cause.”
We conclude the trial court did not abuse its discretion in allowing the State to call two expert serology witnesses who were not in total agreement as to their interpretations of the evidence.
Finally, defendant contends the evidence was insufficient to sustain the conviction herein.
It is the function of the jury, not of the appellate court, to weigh evidence and pass upon the credibility of witnesses. Further, where a verdict is based on substantial competent evidence it will not be disturbed on appellate review. State v. Holt, 221 Kan. 696, 700-701, 561 P.2d 435 (1977). When, on appeal, the sufficiency of the evidence in support of the conviction is challenged, the question for the reviewing court is whether the evidence, when viewed in the light most favorable to the prosecution, convinces the appellate court a rational fact finder could have found defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781, reh. denied 444 U.S. 890 (1979); State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981); State v. Robinson, Lloyd & Clark, 229 Kan. 301, 305, 624 P.2d 964 (1981); State v. Mick, 229 Kan. 157, 162, 621 P.2d 1006 (1981); State v. Puckett, 6 Kan. App. 2d 688, 691, 634 P.2d 144 (1981), aff'd 230 Kan. 596, 640 P.2d 1198 (1982); State v. Peoples, 227 Kan. 127, 133, 605 P.2d 135 (1980); and State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979).
The evidence against the defendant was. circumstantial. However, a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Ward, 233 Kan. 144, 145, 660 P.2d 957 (1983). See also State v. Morton, 230 Kan. 525, 530, 638 P.2d 928 (1982); State v. Henderson, 226 Kan. 726, 731, 603 P.2d 613 (1979); State v. White & Stewart, 225 Kan. 87, 99, 587 P.2d 1259 (1978); and State v. Johnson, 223 Kan. 185, 187, 573 P.2d 595 (1977).
In addition to the evidence previously discussed in regard to issue number one, the following should be included in the discussion relative to sufficiency of the evidence. Officer Linn had a glimpse of Mrs. Ellifson’s attacker before the man fled down a dark alley, and described the attacker as a white male wearing blue jeans and a white T-shirt (later the officer testified he just assumed the dark pants were blue jeans). A scanty description of the attacker was immediately broadcast on the police radio. Patrol Officer Spurgeon heard the broadcast at 11:18 p.m. and arrived in the area of the crime scene at 11:25 p.m. At 11:32 p.m. he stopped defendant, who was leaving a nearby Quik Trip store. Although the temperature was in the mid-fifties, defendant was described as hot and clammy to the touch as well as short of breath. Defendant was carrying only a six-pack of Pepsi Cola which he had just purchased in the store (later investigation revealed defendant already had a supply of the beverage in his refrigerator). He was wearing a white T-shirt with stripes around the shoulders. His pants were brown corduroy slacks. The T-shirt and pants had fresh blood splotches on them which were later identified as containing a blood enzyme consistent with victim’s blood, but not defendant’s. Officer Spurgeon returned defendant to the crime scene where Officer Linn stated defendant’s appearance (race, height and build) was consistent with that of the fleeing attacker.
The Quik Trip store manager testified defendant'went into the restroom upon entry to the store. The restroom was equipped with a toilet stool but no wash basin. After defendant had left, the manager noticed a large quantity of water on the floor around the stool which had not been there previously. The manager mopped the area prior to being questioned by officers. It was the State’s theory that the defendant utilized the water in the toilet to wash blood from his person. There was also evidence defendant had owned a buck knife similar to one subsequently found stuck in a tree which was located between the crime scene and the Quik Trip store. There was blood on the knife but the quantity was insufficient for further testing purposes.
We have reviewed the evidence in the light most favorable to the prosecution and are convinced while the same is not overwhelming, a rational fact finder could have found defendant guilty beyond a reasonable doubt.
The judgment is affirmed.
Lockett, J., not participating. | [
-16,
-24,
-19,
31,
59,
96,
43,
56,
67,
-93,
-28,
83,
41,
-38,
13,
123,
-107,
69,
85,
104,
-37,
-73,
55,
65,
-10,
-77,
-45,
-42,
-71,
-19,
-18,
-68,
8,
-80,
2,
85,
66,
-118,
-25,
-46,
-116,
-124,
56,
-45,
82,
2,
38,
46,
114,
6,
-15,
-66,
-69,
57,
30,
-61,
73,
44,
75,
-68,
80,
-47,
-113,
-99,
92,
18,
-77,
38,
-68,
4,
-40,
45,
-40,
-71,
0,
-24,
50,
-106,
-126,
-12,
75,
-87,
-116,
98,
66,
37,
28,
-19,
-20,
-111,
47,
118,
61,
-89,
-104,
89,
73,
44,
-107,
-39,
116,
52,
14,
116,
-9,
86,
31,
108,
3,
-49,
-110,
-111,
-39,
32,
-106,
-5,
-45,
7,
16,
113,
-51,
98,
92,
51,
16,
-45,
-122,
-106
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Sueanne S. Hobson (defendant-appellant) guilty of first-degree murder (K.S.A. 21-3401 and K.S.A. 21-3205) and conspiracy to commit murder (K.S.A. 21-3302). The appellant contends the trial court erred in numerous aspects, including the admission of previous statements made by various witnesses, the exclusion of hearsay statements and psychiatric expert testimony, failing to dismiss the charges because of inquisitions conducted by the State without proper authority, failing to dismiss one of the charges as duplicitous, and ordering the sentences to run consecutively.
The facts will be briefly stated since the appellant does not challenge the sufficiency of the evidence. The victim, thirteen-year-old Christen Hobson (Chris), was reported missing from his home in Overland Park by his father, Ed Hobson, on April 17, 1980. For several days Ed and his wife Sueanne Hobson assisted police in the search for Chris. During this time Chris’s billfold was found at a shopping center in Overland Park. On May 3, 1980, Chris’s body was found in a shallow grave in rural Miami County by two boys fishing nearby. Death was caused by shotgun blasts at close range to the head and chest.
Jimmy Crumm, Sueanne Hobson’s seventeen-year-old son and Chris’s stepbrother, was taken into custody later that day and gave a statement to police officers admitting his participation in the murder and implicating the appellant. Crumm told officers his mother had told him on several occasions that something had to be done about Chris, and asked him if he could help her get rid of him. At the appellant’s insistence he and a friend, Paul Sorrentino, picked Chris up at his home on April 17, 1980, drove him to Miami County in the appellant’s car, dug a grave, shot Chris at close range while he was sitting in the grave and covered his body with dirt. His mother told him later she threw Chris’s billfold away at the shopping center. He further stated his mother had promised to buy him a car and pay for repairs on Sorrentino’s motorcycle as their payment for killing Chris. Crumm was convicted of first-degree murder in Miami County, which was affirmed by this court on appeal in State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982). Sorrentino pled guilty to aiding and abetting first-degree murder. Both men testified to the above facts at trial.
Sueanne Hobson was taken to police headquarters for questioning in the late evening on May 3, 1980. During the questioning she admitted having learned from Jimmy on April 18, 1980, that Chris had been killed, but did not tell anyone because she was frightened and wanted to protect her son. Detectives went to the Hobson home between 5:30 and 6:00 a.m. on May 4 and questioned the appellant’s thirteen-year-old daughter, Su zanne Hobson. Quickly discerning she had information concerning her mother’s involvement in the murder the detectives transported her to police headquarters where they tape recorded an interview with her beginning at 6:38 a.m. and ending at 6:50 a.m. Suzanne told officers during the interview that Christen had been causing problems between Ed and Sueanne, and Sueanne had told Jimmy Crumm that something had to be done about Chris. The day of Chris’s disappearance Suzanne overheard Jimmy tell the appellant he and someone else were going to take Chris out and “get rid of him.” The appellant told Jimmy she would get Ed out of the house that night. Later that day the appellant told Suzanne she was supposed to stay upstairs and take a shower when Jimmy came over to pick up Chris. Her mother told her a few days later that Jimmy took Chris out and “took care of him,” by which Suzanne thought the appellant meant Chris had been killed. She also stated her mother told her she threw Chris’s billfold away at the shopping center.
Following the interview with Suzanne the detectives tape recorded an interview with the appellant. Sueanne told officers that because Chris had been causing problems by threatening Suzanne she had asked Jimmy to talk to Chris and knew that Jimmy and his friend were going to take Chris out that night and try to scare him so he would leave Suzanne alone. When she found out the next day from Jimmy what had happened she was afraid to tell her husband. She admitted taking Chris’s billfold to the shopping center the day after his disappearance. At trial the appellant testified she asked Jimmy to talk to Chris about the problems he was causing at home, hoping this would help “get rid of’ the problems. This tactic had apparently been successful with Chris before. She denied ever talking to Jimmy about killing Chris. The day after Chris’s disappearance Jimmy called and said Sorrentino had killed Chris and had said he would kill all of them if she told anyone. She testified Jimmy took Chris’s billfold to the shopping center the next day, but that she had told police earlier that she had done it to protect Jimmy. She did not tell her husband or police what had happened to Chris for fear of what Sorrentino would do to her family and of what her husband would do to Jimmy and Sorrentino if he found out.
To bolster the appellant’s story several defense witnesses were called who testified Jimmy had stated often that he hated Chris and was angry with him for telling his parents that he used drugs and had stolen some credit cards. The appellant’s mother testified Jimmy had told her in February 1980 that he would “get even” with Chris. She further testified that after Jimmy’s arrest he told her that he and Sorrentino had made up a story about the murder in case they got caught and that his mother had nothing to do with it.
The appellant was convicted of both charges and has duly perfected this appeal. Further facts will be developed when necessary to discuss the issues raised.
The appellant first contends the conspiracy charge is duplicitous of the first-degree murder charge and should have been dismissed. The appellant argues that under the instructions given the jury relied upon the same evidence to convict her of both crimes, violating the constitutional prohibition against double jeopardy.
In Jarrell v. State, 212 Kan. 171, 173, 510 P.2d 127 (1973), it was recognized that two or more separate convictions cannot be carved out of one criminal delinquency and where numerous charges are made, those which make up an integral part of another crime charged, in which the defendant was convicted, must be dismissed as duplicitous. In Jarrell the charges were held to be duplicitous where the defendant was charged with rape, assault with felonious intent, and taking a woman for defilement, all based on one act of violence on one woman. The test for duplicity was stated to be whether each of the offenses charged requires proof of an additional element of the crime which the other does not and if an additional fact is required, the offenses are not duplicitous. 212 Kan. at 175. See also State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981); State v. Mourning, 233 Kan. 678, 679, 664 P.2d 857 (1983).
The appellant was charged with first-degree murder as an aider and abettor under K.S.A. 21-3205, which provides in pertinent part:
“(1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
A person convicted of aiding and abetting under this statute is equally guilty with the person actually committing the crime. See State v. Payton, 229 Kan. 106, 112, 622 P.2d 651 (1981); Comment, PIK Crim. 2d 54.05. To show guilt of one who aids and abets, the law requires that the person knowingly associates with the unlawful venture and participates in a way which indicates that such person is furthering the success of the venture. See State v. Williams, 229 Kan. 646, 661, 630 P.2d 694, denying rehearing of 229 Kan. 290 (1981); State v. McDaniel & Owens, 228 Kan. 172, 178, 612 P.2d 1231 (1980); Comment, PIK Crim. 2d 54.05. To establish the crime of conspiracy under K.S.A. 21-3302 two essential elements must be established: (1) an agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or moi'e of the conspirators of an overt act in furtherance of the object of the conspiracy. State v. Daugherty, 221 Kan. 612, Syl. ¶ 4, 562 P.2d 42 (1977).
It has long been recognized by this court and other authorities that conspiracy is a separate and distinct crime from aiding and abetting. The distinction between the two crimes was aptly discussed in State v. Campbell, 217 Kan. 756, 769, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975):
“Conspiracy is a different crime from aiding and abetting (United States v. Krol, 374 F.2d 776, cert. den. 389 U.S. 835, 19 L. ed. 2d 97, 88 S.Ct. 46). The crucial distinction between the two for present purposes was tersely expressed in People v. Malotte, 46 Cal. 2d 59, 292 P.2d 517.
“ ‘Conspiracy, however, is not synonymous with aiding or abetting or participating. Conspiracy implies an agreement to commit a crime; to aid and abet requires actual participation in the act constituting the offense.’ (pp. 65-66.)
“In 15A CJS, Conspiracy, § 35(1) it is stated:
“ ‘[Conspiracy] is an attempt to commit an offense, since its object need not be attained, as discussed infra § 44; it is an enlargement of, but is to be distinguished from, the offense of aiding and abetting the commission of an unlawful act.’ (pp. 723-724.)
“Our statute includes an agreement ‘to assist to commit a crime’ in its definition of conspiracy. The trial court in its ruling on the matter properly pointed out that ‘When the emphasis is turned from aiding and abetting to the agreement, which is the essence of conspiracy, it is clear that the statute does not prohibit aiding and abetting, but agreement to aid and abet.’ ”
This distinction is also noted in 16 Am. Jur. 2d, Conspiracy § 3:
“Conspiracy is a separate and distinct offense from that of aiding and abetting. It involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common in aiding and abetting.”
Proof of aiding and abetting the commission of a crime does not prove all the elements required to prove conspiracy, namely that a prior agreement to commit the crime existed between the defendant and perpetrator. Conversely, proof of conspiracy does not establish the defendant actually took part in furthering the success of the venture. Therefore, conspiracy and aiding and abetting are two separate and distinct crimes and are not duplicitous.
The appellant recognizes this principle of law but contends under the instructions given the jury was allowed to use evidence of the same conduct to convict her of both crimes. Several instructions were given for each crime charged. The trial court instructed in No. 8 that to establish the murder charge the jury must find James Crumm and Paul Sorrentino killed Chris Hob-son maliciously, willfully, deliberately and with premeditation, and “that either before or during the commission of the crime, and with the intent to promote or assist in the commission of the crime, defendant intentionally aided, hired, advised or counselled another to commit the crime.” Instructions 9, 9A, and 10 respectively read:
“A person is criminally responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he intentionally aids or advises the other to commit the crime.”
“A person who intentionally aids, abets, advises, hires or counsels another to commit a crime is responsible for any other crime committed in pursuance of the intended crime, if the other crime was reasonably foreseeable.
“A person who intentionally aids, abets, advises, counsels or procures another to commit a crime may be prosecuted in any county where any of such acts were committed.”
On the charge of conspiracy the trial court instructed in No. 11, in pertinent part, as follows:
“1. That the defendant agreed with another person to assist in the commission of the crime of murder in the first degree;
“2. That the defendant did so agree with the intent that the crime of murder in the first degree be committed;
“3. That the defendant or any party to the agreement acted in furtherance of the agreement by murdering Christen Hobson.”
Instruction No. 12 further stated:
“A conspiracy is an agreement with another or other persons to commit a crime or to assist in committing a crime, followed by an act in furtherance of the agreement.”
The appellant argues the terms hire, procure, advise and counsel used in the aiding and abetting instructions are virtually synonymous with the element of agreement necessary to establish the conspiracy charge, and under the facts of this case and instructions given, the jury relied upon the appellant’s single act of hiring or procuring Crumm and Sorrentino to kill Chris to establish both the agreement for the conspiracy charge and the participation in the furtherance of the crime for the aiding and abetting charge. However, we have held duplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses; rather, it turns upon whether the necessary elements of proof of the one crime are included in the other. State v. Chiles, 226 Kan. 140, 143, 595 P.2d 1130 (1979); State v. Lora, 213 Kan. 184, Syl. ¶ 4, 515 P.2d 1086 (1973). The facts tending to establish the appellant hired or procured others to kill Chris would not, standing alone, have established the additional element of an overt act required to support the charge of conspiracy. Likewise, that evidence would not have proved the appellant’s participation in the venture in furtherance of its success, as required to establish the aiding and abetting charge. The facts presented at trial established the appellant’s participation in the actual commission of the crime independent of her involvement in the prior conspiracy with Crumm and Sorrentino to find a way to “get rid of’ Chris. The appellant informed Jimmy that April 17 would be a good day to carry out the plan since Ed would be home late that night. She provided her car for Jimmy to use to drive Chris to a suitable place to carry out the crime. She disposed of Chris’s billfold at the shopping center to hinder investigation of the matter by making it look like Chris had run away. She told Jimmy she would make sure Ed was out of the house that night and told Suzanne to be upstairs in the shower when Jimmy came over to get Chris.
The validity of the instructions to the jury is to be gauged by consideration of the whole, each in conjunction with all other instructions in the case. State v. Korbel, 231 Kan. 657, Syl. ¶ 6, 647 P.2d 1301 (1982); State v. Childers, 222 Kan. 32, Syl. ¶ 5, 563 P.2d 999 (1977). Taken as a whole the jury instructions given by the trial court properly set forth the law on the theories asserted by the State to establish the appellant’s guilt. Each of the of fenses charged required evidence of an additional element which the other did not, and under the instructions given the convictions for conspiracy and aiding and abetting were not duplicitous.
The next issue raised by the appellant involves sworn statements taken by the district attorney from four witnesses prior to trial. The witnesses were subpoenaed by the district court upon application by the State pursuant to K.S.A. 22-3101, the inquisition statute. The appellant was not notified that the statements were to be taken and was not present or represented by counsel. The appellant subsequently filed a motion to dismiss, charging the prosecution had violated the statutory requirements for deposing witnesses set forth in K.S.A. 1982 Supp. 22-3211. The district court denied the motion, ruling the State’s inquiry had not prejudiced the appellant. The court ordered that the appellant be provided with copies of the statements and be allowed to conduct the taking of her own depositions of these witnesses with the prosecutor present. None of these witnesses were called to testify at trial by either the State or the appellant.
On appeal the appellant contends the prosecution unlawfully deposed witnesses without a court order and without defense counsel being notified and in attendance, as required by K.S.A. 1982 Supp. 22-3211. She alleges this resulted in extreme prejudice to her and violated her right to equal protection by affording the State an unfair and improper advantage in prosecuting the charges, since the appellant had no comparable statutory right to obtain statements of or depose prosecution witnesses prior to trial. In support of her claim of prejudice she points out that had the State not taken a prior sworn statement of one of the witnesses, Dr. Chester Day, the State would not have been prepared to move in limine to exclude Dr. Day’s testimony and Dr. Day would have been called to testify as planned for the defense.
The State argues it properly compelled inquisition testimony of the witnesses after charges had been filed against the appellant under K.S.A. 22-3101, which provides in part:
“(1) If the attorney general, an assistant attorney general, or the county attorney of any county is informed or has knowledge of any alleged violation of the laws of Kansas, such person may apply to a district judge to conduct an inquisition. An application for an inquisition shall be in writing, verified under oath, setting forth the alleged violation of law. Upon the filing of the application, the judge with whom it is filed shall, on the written praecipe of the attorney general, assistant attorney general or county attorney, issue a subpoena for the witnesses named in such praecipe commanding them to appear and testify concerning the matters under investigation. Such subpoenas shall be served and returned as subpoenas for witnesses in criminal cases in the district court.
“(3) Each witness shall be sworn to make true answers to all questions propounded to him or her touching the matters under investigation. The testimony of each witness shall be reduced to writing and signed by the witness. Any person who disobeys a subpoena issued for such appearance or refuses to be sworn as a witness or answer any proper question propounded during the inquisition, may be adjudged in contempt of court and punished by fine and imprisonment.”
Although the record does not contain the appellant’s motion to dismiss, the court’s ruling on the motion or any other documents relevant to this issue, it appears from the briefs that the State made the required verified application to the district court, the subpoenas were issued by a judge other than the trial judge, and that statements were taken in the judge’s chambers.
Relying on the phrase “matters under investigation” the appellant argues that once an accused is bound over for trial and the prosecution has commenced, the matter is no longer under investigation and the procedure in 22-3101 for obtaining information from witnesses is no longer available to the prosecutor. It is argued that at that point discovery by the State is limited to the taking of depositions as provided by K.S.A. 1982 Supp. 22-3211(3).
The precise issue presented is whether, under K.S.A. 22-3101, a district attorney may properly conduct an inquisition concerning charges pending against an accused after the accused has been bound over for trial following a preliminary hearing. The power of the county prosecutor to conduct inquisitions to investigate criminal matters cannot be doubted. In Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 561, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978), the court stated:
“There can be no doubt that the county prosecutors of this state, along with the attorney general, have a duty to investigate all criminal activity which comes to their attention, and that the inquisition statute is a primary tool entrusted to them by the legislature to assist in that function. [Citations omitted.] If information about criminal activity is in the hands of an individual, it can clearly be acquired by compelling that individual’s testimony.”
In State v. Jones, 202 Kan. 31, 47, 446 P.2d 851 (1968), the court held it was proper for the county attorney to obtain a witness’s testimony concerning the charges against the defendant at a hearing on a contempt citation held some time after the preliminary examination, stating:
“The investigatory powers of the state do not end with the conclusion of a preliminary examination, and the state has the right and duty at any stage of the proceeding to ascertain what a witness may testify to at trial.”
Other cases have recognized that under both K.S.A. 22-3101 and its predecessor, K.S.A. 62-301 (Corrick), the county attorney may properly hold inquisitions after a prosecution has commenced. In State v. Brecheisen, 117 Kan. 542, 543, 232 Pac. 244 (1925), the county attorney held an inquisition and compelled sworn statements from some of the defendant’s witnesses after the prosecution had commenced and the defendant had subpoenaed his witnesses. In holding this did not constitute error the court stated:
“The action may be unusual, as defendant contends, but the statute makes it the duty of the county attorney to hold inquisitions where he is notified or gains knowledge of the violation of the law relating to intoxicating liquors and some other offenses. He is then empowered to subpoena any witness he has reason to believe has knowledge concerning the offenses under inquiry. (R.S. 62-301.) The county attorney may have had information that defendant had committed other offenses than the one charged in the pending prosecution, but whether he did nor not he was only exercising the authority that the statute confers, and we have no right to assume that he was not acting in good faith or that he was abusing legal process.”
In a more recent case involving the State’s use of its inquisition powers, State v. McQueen & Hardyway, 224 Kan. 420, 582 P.2d 251 (1978), an inquisition was held during an evening recess in the trial to determine if a witness was justified in claiming a Fifth Amendment privilege against self-incrimination. The defendants were later informed of the inquisition and the nature and extent of the witness’s testimony. Similar to the arguments advanced by the appellant here, the defendants argued on appeal that this process denied them equal protection and due process of law since it gave the State an improper advantage. The court rejected this argument, holding:
“When a witness called by the state refuses to testify and claims the Fifth Amendment privilege against self-incrimination, the court may hold a hearing in chambers to determine if the claim is justified or on the application of the prosecutor the court may hold inquisition proceedings under K.S.A. 22-3101, et seq., to determine the validity of such claim.” 224 Kan. at 429.
The cases demonstrate that in the past the use of inquisitions has not been judicially limited to preindictment proceedings. The two cases cited by the appellant are from other jurisdictions and do not support her position. The statute itself contains no language expressly limiting the time when the inquisition procedure may be used. The appellant argues, however, that because the article concerning inquisitions appears in the Code of Criminal Procedure prior to the article entitled “Proceedings Before Trial” and following Articles 29 and 30 addressing post-arrest and'grand jury procedures, it was the legislature’s intent to limit the use of inquisitions to preindictment proceedings. This court has previously recognized the placement of a law in a particular location in the general statutes by the compiler is not persuasive as to the intent of the legislature that enacted it. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. ¶ 3, 610 P.2d 1107 (1980). The fact that the legislature has not been prompted to amend the statute to impose time limitations on the use of the inquisition process despite previous case law addressing this subject suggests the process was intended to be used' after prosecution has commenced as well as before.
The appellant further argues that if the prosecuting attorney is entitled to extract testimony from witnesses prior to trial through inquisitions, the deposition statute, 22-3211, is rendered useless. The deposition statute, however, provides a method to preserve testimony in the event a material witness will be unavailable for trial and sets forth strict rules under which such testimony may be admitted as evidence at trial. The inquisition statutes, on the other hand, are designed to permit the district attorney or attorney general to subpoena and question witnesses in order to investigate criminal matters and the extent of an accused’s involvement in such activities. This testimony is not admissible at trial.
There is no support for the appellant’s argument that the inquisition procedure can only be pursued before a defendant is charged and bound over for trial. The statements of the witnesses were made available to the appellant prior to trial and she was offered the opportunity to take her own depositions of the witnesses. None of these witnesses testified at trial and their inquisition testimony was not offered as evidence by the State. The appellant was not in any way prejudiced by the inquisitions conducted by the county attorney and the trial court properly overruled the appellant’s motion to dismiss.
The next two points raised by the appellant involve the State’s examination of Suzanne Hobson, the appellant’s daughter, and the admission of a tape recording of an interview of Suzanne by detectives on May 4, 1980. During the interview Suzanne made several statements incriminating her mother and Jimmy Crumm in Christen’s murder. Specifically she told the detectives she had overheard a conversation between her mother and Jimmy in the parking lot of his apartment building the day of Chris’s disappearance, during which her mother said something had to be done about Chris and Jimmy said he would take Chris out and get rid of him.
When asked by the State on direct examination at trial what she had overheard during the conversation Suzanne testified she was in the car and did not hear anything. The prosecutor then attempted to question Suzanne about the contradictory statements made by her during the interview. Defense counsel objected to the leading nature of the questions. The State argued Suzanne was a turncoat witness and under K.S.A. 60-243 they were entitled to cross-examine her. The court directed the State to allow the witness to refresh her recollection with a transcript of the interview. Suzanne refused to read through the transcript, however, stating she remembered what she said during the interview. Upon further questioning by the prosecution she testified she did not recall any more about the conversation between her mother and Jimmy after having reviewed her prior statements. The court then ruled Suzanne was a hostile witness, stating:
“[T]he court realizes the relationship of this witness to the defendant and the Court realizes when she reviewed the statement and looked it over that she said she didn’t need to. She went over it and didn’t look at it that closely. From her reactions the Court finds that she is a turncoat witness. The Court will allow the State to cross-examine her.”
The State proceeded to cross-examine Suzanne about the statements made by her during the interview with police on May 4, 1980. Suzanne admitted telling the police that Jimmy and another person were going to take Chris out and get rid of him, that on April 17, 1980, she overheard her mother and Jimmy say “[s]omething had to be done about Chris,” that her mother had said she would get Ed out of the house, that her mother told her to be upstairs in the shower when Jimmy came over, and that her mother threw the billfold away. When asked whether her mother and Jimmy were going to kill Chris, Suzanne told police, “[t]hey didn’t really say that word for word, they were just going to get rid of him.” She also told police her mother told her Jimmy went out and “took care of’ Chris. (A portion of the transcript setting forth the witness’s testimony in further detail is reproduced in an appendix to this opinion.)
Suzanne was cross-examined at length.by defense counsel concerning these and other statements made during the interview. During cross-examination she did not suffer any apparent loss of memory concerning her prior statements. On redirect Suzanne stated she had not told the truth during the interview.
John Douglass, one of the detectives present during the interview, was called by the State to testify about the circumstances surrounding the interview. Over defense counsel’s objection the tape recording of the interview was then played for the jury.
The appellant first contends the trial court erred in declaring Suzanne to be a hostile witness and allowing the State to examine her through leading questions. This court has held that while ordinarily a party may not impeach his own witness, nor offer evidence for that purpose, he is not conclusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements, and may, in the discretion of the court, be permitted to show what such contrary statements were. State v. Potts, 205 Kan. 47, 51, 468 P.2d 78 (1970); State v. Collins, 204 Kan. 55, 59, 460 P.2d 573 (1969); State v. Jones, 202 Kan. 31, 48, 446 P.2d 851 (1968). K.S.A. 60-243(h) provides that a party may interrogate any unwilling or hostile witness by leading questions. As a rule the mere fact a witness has failed to testify as expected does not warrant impeachment by proof of prior statements in conformity with what he was expected to testify. The witness’s testimony must be affirmative, contradictory and adverse to the party calling him to allow impeachment of that witness by cross-examination. See State v. Potts, 205 Kan. at 51-52, State v. Lomax & Williams, 227 Kan. 651, 659-60, 608 P.2d 959 (1980).
The appellant contends there is absolutely nothing in Suzanne’s testimony which indicates in any way she was hostile. We, disagree. Suzanne denied overhearing any conversation between her mother and Jimmy, rather than merely claiming she couldn’t remember, as the appellant contends. Evidence of this conversation was necessary to support the charges against the accused. Suzanne’s testimony was affirmative, contradictory and very damaging to the State’s case. Furthermore, the determination of whether a witness is hostile is to be made by the trial judge, in the exercise of a sound judicial discretion and may be based upon such circumstances as the demeanor of the witness, his situation and relationship to and with the parties, his interest in the case and the inducements he may have for withholding the truth. See 81 Am. Jur. 2d, Witnesses § 430. The trial judge heard the testimony of the witness, observed her demeanor and her reluctance to cooperate with the prosecutor by refusing to read her previous statement to refresh her memory, and was advised of the changes in her testimony. The relationship of the witness to the appellant provided strong incentive for her to change her story at trial. Under these circumstances the trial court did not abuse its discretion in declaring Suzanne hostile. The evidence of her prior inconsistent statements was admissible as substantive evidence, as well as for the purpose of impeachment, under K.S.A. 1982 Supp. 60-460(a). See State v. Holt, 228 Kan. 16, 22, 612 P.2d 570 (1980); State v. Fisher, 222 Kan. 76, Syl. ¶ 2, 563 P.2d 1012 (1977); State v. Lott, 207 Kan. 602, 606, 485 P.2d 1314 (1971); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(a), p. 229-30 (1979).
The appellant contends the admission of the tape recording of the interview violated her Sixth Amendment right of confrontation, relying on State v. Lomax & Williams, 221 Kan. 651. In Lomax the State called a witness who had previously testified at the preliminary hearing of a codefendant. When the witness stated on direct examination she could not remember anything that had happened concerning the charges, the court declared her a hostile witness and allowed the prosecutor to cross-examine her about her testimony from the preliminary hearing. Her response at trial continued to be that she could not recall anything concerning the incident in question nor any of her testimony at the preliminary hearing. On cross-examination by de fense counsel the witness again answered she could not remember anything. This court held where the witness simply refused to testify at trial by claiming she could not remember what happened, her prior hearsay statements were not admissible for purposes of impeachment or examination of a hostile witness, because the witness was not available for cross-examination by the defendant within the meaning of K.S.A. 60-460(a) and as required by a defendant’s constitutional right to confront witnesses. 227 Kan. 651, Syl. ¶ 3. By simply refusing to testify, the witness’s testimony was not affirmative, contradictory or adverse to the party calling her as required for prior hearsay statements to be used to impeach the witness under State v. Potts, 205 Kan. at 51-52.
The case at bar does not fall within the rule of State v. Lomax & Williams for two reasons. First, Suzanne did not simply claim she could not remember anything that had happened around the time of Chris’s disappearance or any of the statements she had made during the interview. Rather, she changed her story altogether and stated she did not overhear any part of the conversation between her mother and Jimmy, and then refused to read over a transcript of her prior statements at trial to refresh her recollection. As heretofore stated, these actions were contrary and adverse to the State.
Secondly, and more importantly, prior to the time when the tape recording was admitted Suzanne was thoroughly examined by the State and cross-examined by the defense concerning her prior statements. Suzanne admitted making most of the statements but offered explanations as to what she meant by them and later attempted to discredit the statements by testifying that she had not told the truth during the interview. Under K.S.A. 60-422(b) extrinsic evidence of prior contradictory statements made by the witness is admissible in the discretion of the trial judge where the witness is given an opportunity while testifying to identify, explain or deny the statements. See State v. Murrell, 224 Kan. 689, 692-93, 585 P.2d 1017 (1978); Smith v. Blakey, Administrator, 213 Kan. 91, Syl. ¶ 6, 515 P.2d 1062 (1973); State v. Ford, 210 Kan. 491, 496, 502 P.2d 786 (1972); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-422, p. 118 (1979).
The State complied fully with the provisions of K.S.A. 60-422(h). The witness was available for cross-examination by the defendant within the meaning of 60-460(a). Accordingly, the appellant was not denied her constitutional right to confrontation and the trial court did not err in admitting the tape recording of Suzanne’s prior statements.
The next point raised by the appellant concerns the admission of a prior consistent statement made by Jimmy Crumm. Jimmy testified on direct examination that around 11:45 p.m. on May 3, 1980, he was taken to the Overland Park police station and questioned by officers about his involvement in the murder of Christen Hobson. At that time he admitted he and Paul Sorrentino had shot Chris at his mother’s behest. After waiving his Miranda rights he gave an oral statement which was recorded in handwriting by one of the officers. He then affixed his signature at the bottom of each page and initialed each paragraph. On cross-examination he testified he was drunk at the time of his arrest and when the statement was given. On both direct and cross-examination he was questioned about inconsistencies between his trial testimony and his prior statement. He admitted he had not been truthful about some aspects of the killing, particularly the gauge of shotgun used by him, what he had done with the shotgun after the killing, and whether he or Sorrentino had actually shot Chris. Defense counsel questioned Jimmy at length concerning the extent to which he was under the influence of alcohol and drugs at the time of the killing and when he made the statement to police, whether or not he suffered from any mental disease or defect, his history of stealing and the extent of his personal dislike for Chris.
Following the conclusion of the appellant’s case the court ruled Jimmy’s credibility had been impeached by the testimony of the defense witnesses and allowed the prior statement to be admitted on rebuttal by the State. The appellant contends the court erred in admitting the statement in evidence because Jimmy had not been impeached, the statement did not rehabilitate him and he admitted being drunk when the statement was made.
As a general rule where a witness has been impeached or his credibility as a witness has been attacked, prior statements consistent with his testimony at trial may be shown to rehabilitate or support the witness. See State v. Yurk, 230 Kan. 516, Syl. ¶ 1, 638 P.2d 921 (1982); State v. Scott, 210 Kan. 426, Syl. ¶ 3, 502 P.2d 753 (1972); State v. Parrish, 205 Kan. 178, Syl. ¶ 2, 468 P.2d 143 (1970); State v. Fouts, 169 Kan. 686, Syl. ¶ 4, 221 P.2d 841 (1950); State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, Syl. ¶ 20, 577 P.2d 803, rev. denied 225 Kan. 846 (1978). Whether a witness has been impeached must be determined under the facts of each case. Impeachment occurs when a suggestion is made by direct proof or by the nature of an examination that a witness has testified falsely for hope of reward, promise of immunity, fear or malice. State v. Scott, 210 Kan. at 431.
The record reflects the testimony of Jimmy Crumm at the appellant’s trial was sufficiently impeached to properly admit his prior statement for the purpose of rehabilitation. The testimony of several defense witnesses directly contradicted much of Jimmy’s testimony. The appellant denied ever talking with Jimmy about killing Chris, asking him to find someone to help her get rid of Chris, or agreeing to buy him a car or pay for Sorrentino’s motorcycle repairs in exchange for the killing. Jimmy’s grandmother testified that shortly after his arrest Jimmy called her from jail and told her he and Sorrentino had made up a story in case they got caught, his confession was “a pack of lies” and his mother had nothing to do with the killing. She also testified before the murder Jimmy had threatened to kill Chris to get even with him for telling on him. Jimmy’s roommate and a girl he had dated both testified Jimmy hated Chris.
The gist of this evidence suggested to the jury that Jimmy had fabricated his testimony concerning his mother’s involvement in the crime as an excuse for his actions or out of malice towards his mother. The testimony of the witness was clearly impeached. The contention that the statement did not serve to rehabilitate the witness and should not have been admitted because of the witness’s condition at the time the statement was given is without merit. With the exception of the few inconsistencies brought out on direct and cross-examination at the trial, the prior statement corroborated every detail of Jimmy’s testimony concerning the appellant’s involvement in the murder. It has been recognized that for a prior statement to be admissible it must be relevant and voluntary, and it should appear that there is a real or substantial similarity between the sworn and unsworn statements. 81 Am. Jur. 2d, Witnesses § 654. There is no claim the statement was not voluntarily given. Evidence of the physical and mental condition of the witness at the time of the statement would go to the weight and credibility to be given the statement by the jury, rather than its admissibility. Furthermore, no contemporaneous objection was made at trial by defense counsel to the admissibility of the statement on the basis of the witness’s condition when the statement was made. Under the facts in this case the trial court did not err in admitting the prior consistent statement of the witness.
The appellant next contends the trial court erred in refusing to allow defense counsel to cross-examine Ed Hobson concerning a statement made by him on direct examination. In response to a question by the State concerning the disposition of the furniture in Chris’s room after his disappearance, Mr. Hobson answered:
“I took part of it down to work to a couple of men down there that had families that, you know, could use it and the rest of it we gave to an ex-friend of Sueanne’s, Marjorie Hunt Fugate.”
On cross-examination defense counsel inquired what the witness had meant by describing Ms. Fugate as an “ex-friend.” The State objected that this line of questioning was beyond the scope of direct examination. Defense counsel argued the area had been gone into by the State on direct examination and therefore they were entitled to make further inquiry into the matter on cross-examination. Ms. Fugate had not yet been called to testify at trial. The trial court ruled the characterization of Ms. Fugate as an “ex-friend” by Mr. Hobson was not relevant at that time and sustained the objection.
The law is clear that cross-examination may be permitted into matters which were the subject of the direct examination. Humphries v. State Highway Commission, 201 Kan. 544, 547, 442 P.2d 475 (1968). Where a general subject matter has been opened up on direct, cross-examination may go to any phase of the subject matter and is not restricted to identical details developed or specific facts gone into on the direct examination. State v. Puckett, 6 Kan. App. 2d 688, 694, 634 P.2d 144 (1981), aff'd 230 Kan. 596, 640 P.2d 1198 (1982). Questions asked on cross-examination must be responsive to testimony given on direct examination, or material and relevant thereto; and resolution of such issues resides in the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of abuse of the exercise of the power of discretion. State v. Norwood, 217 Kan. 150, 154, 535 P.2d 996 (1975); State v. Nirschl, 208 Kan. 111, Syl. ¶ 5, 490 P.2d 917 (1971); Humphries v. State Highway Commission, 201 Kan. at 547.
The subject of the question and response at issue here was the disposition of the furniture in Chris’s bedroom after his disappearance. This subject was developed further on direct examination. The relationship between the appellant and Ms. Fugate was not inquired into by the State at any time during direct examination of Mr. Hobson, and was only hinted at by the witness’s reference to Ms. Fugate as an “ex-friend.” This fleeting comment was not elicited by the State and does not constitute a subject matter of the direct examination. Ms. Fugate later testified as a prosecution witness and was fully cross-examined regarding her past and present relationships with the appellant. The attempted cross-examination of Mr. Hobson by defense counsel was not relevant or material to the subject matter addressed on direct examination. We find the trial court did not abuse its power of discretion in sustaining the State’s objection to this line of questioning.
The appellant complains about the admission into evidence of slides showing X-rays of the victim’s wounds and photographs depicting the gravesite and the uncovered body of Christen Hobson in the grave. The appellant contends that because the cause of death and the circumstances surrounding the actual shooting were undisputed, the photographs and slides were “irrelevant, inflammatory, prejudicial and without probative value.”
The rules pertaining to the admission of photographs in a criminal prosecution are well established and often repeated by this court. Recently in State v. Garcia, 233 Kan. 589, 592-93, 664 P.2d 1343 (1983), we summarized the rules as follows:
“In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. See, e.g., State v. Green, 232 Kan. 116, 118, 652 P.2d 697 (1982), and cases cited therein. Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Campbell, 210 Kan. 265, 276, 500 P.2d 21 (1972); State v. Dargatz, 228 Kan. 322, 329, 614 P.2d 430 (1980); State v. Henson, 221 Kan. 635, 647, 562 P.2d 51 (1977). Photographs depicting the extent, nature and number of wounds inflicted are generally relevant in a first-degree murder case. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978). Photographs are erroneously admitted when they are unduly repetitious, gruesome, and add nothing to the State’s case. State v. Dargatz, 228 Kan. at 329, State v. Henson, 221 Kan. at 647; State v. Clark, 218 Kan. 18, 24, 542 P.2d 291 (1975).”
See also State v. Crump, 232 Kan. 265, 271, 654 P.2d 922 (1982).
The photographs and slides admitted in this case are neither gruesome nor repetitive. The four photographs depicting the gravesite and surrounding area corroborated the testimony of Jimmy Crumm and Paul Sorrentino regarding the manner in which the killing was accomplished. The slides showing the X-rays of the victim’s wounds to the chest, face and skull supported and illustrated the pathologist’s testimony concerning the cause of death. These photographs and slides are not similar to those found to be inadmissible in State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975), upon which the appellant relies. None of these photographs or slides were unduly prejudicial to the appellant’s case. We find no error in the admission of these photographs and slides.
The next two points raised by the appellant involve the testimony of Marjorie Hunt Fugate. Over defense counsel’s objections Ms. Fugate was permitted to testify as follows:
“Q. During this period of time, March and April of 1980, did Sueanne on occasion discuss Chris Hobson with you?
“A. Yes, we discussed him a lot also, ever since he first — ever since he first came into the family we would discuss him.
“Q. I want to particularly direct your attention to March and April of 1980.
“A. (Witness nods head up and down.)
“Q. Up to April the 17th, 1980. At that point in time was she making comments to you about Christen Hobson?
“A. Yes, she made comments a lot about him.
“Q. And what did she say?
“A. She said she hated him and she wished that he was gone, she wanted him out.
“Q. During this period of time did you have a conversation with Sueanne Hobson where the name Sorrentino was brought up?
“A. Yes.
“Q. Would you relate that conversation between yourself and Sueanne Hob-son?
“A. She asked me if I knew of anyone in the Mafia, she asked me if I had any idea how much it would cost to have somebody done away with and she asked me if I had ever heard the name Sorrentino connected with the Mafia.”
The appellant contends this testimony constituted inadmissible hearsay under 60-460 and did not fall within any exception to the hearsay rule.
This testimony clearly fell within the hearsay rule as it was evidence of a statement made other than by a witness while testifying at trial offered to prove the truth of the matter asserted. See K.S.A. 1982 Supp. 60-460; Thompson v. Norman, 198 Kan. 436, 441, 424 P.2d 593 (1967). The State argues, however, the testimony was properly admitted under K.S.A. 1982 Supp. 60-460(1) as a statement of the declarant’s then-existing state of mind indicating plan, intent, motive or design. This exception to the hearsay rule provides:
“Statements of physical or mental condition of declarant. Unless the judge finds it was made in bad faith, a statement of the declarant’s (1) then existing state of mind, emotion or physical sensation, including statements of intent, plan, motive, design, mental feeling, pain and bodily health, but not including memory or belief to prove the fact remembered or believed, when such a mental or physical condition is in issue or is relevant to prove or explain acts of conduct of the declarant . . . .”
This provision is concerned with the declarant’s state of mind existing at the time of the utterance. Such declarations necessarily include an element of res gestae, if not true spontaneity. See Thompson v. Norman, 198 Kan. at 444; 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(1) (1979). In People v. Ireland, 70 Cal. 2d 522, 529, 75 Cal Rptr. 188, 450 P.2d 580 (1969), it was held under a similar California statute that this exception is available only when the declarant’s state of mind (1) is itself an issue in the case or (2) is relevant to prove or explain acts or conduct of the declarant. See also 4 Louisell & Mueller, Federal Evidence § 442 (1980); 4 Weinstein’s Evidence § 803(3) [02, 03] (1981).
Case law involving this exception to the hearsay rule is sparse in Kansas. Many commentators have recognized that under the corresponding federal rule, Fed. R. Evid. 803(3), statements showing the declarant’s state of mind may be admitted to show motive, ill will or intent. 4 Weinstein’s Evidence § 803(3) [03]; Louisell & Mueller, Federal Evidence § 442, p. 554 (1980); 2 Jones on Evidence § 10:8 (6th ed. Gard 1972); 29 Am. Jur. 2d, Evidence § 650. Vernon’s Kansas C. Civ. Proc. § 60-460, p. 519-20 (1965), quoting Slough, Spontaneous Statements and State of Mind, 46 Iowa L. Rev. 224, 230-31 (1961), states:
“It is not necessary to show as a condition of admissibility that the declarant is unavailable as his extra-judicial assertions are supposedly more reliable than his subsequent testimony in court which might suffer from defect of memory or deliberate misstatement.
“When a declaration is used to evidence a state of mind directly in issue, one encounters little difficulty in justifying the admission of the declaration. State of mind has to be proved in some way and frequently other evidence is nonexistent or inadequate. . . \
“A declaration asserting an emotion is admissible under the present exception to prove the state of mind of the individual making the declaration. Statements of this type are frequently employed in homicide prosecutions to prove malice or ill will. . . .”
In 2 Wharton’s Criminal Evidence § 307, pp, 100-01 (13th ed. 1972), it is stated:
“In general, every declaration by the defendant, which is relevant to the issues involved in the trial, is admissible in evidence against him, if it shows his intent or motive for the crime charged, explains the character of his conduct, or serves to identify the author of the crime. Thus, in a prosecution for unlawful homicide, a declaration by the appellant that the deceased was ‘one man he was going to have to kill,’ or that the defendant was a straight shot and a game man, was admissible to show malice and a predisposition to engage in criminal conduct. Likewise, a declaration by the defendant indicating that he was in an ugly frame of mind and disposed to commit some crime, though not the particular crime for which he was on trial, was admissible to show his state of mind.”
Courts from other jurisdictions have admitted hearsay statements made by an accused prior to the commission of the crime to show the accused’s state of mind relating to intent, motive or plan under Fed, R. Evid. 803(3) or corresponding state statutes. In United States v. Partyka, 561 F.2d 118, 125 (8th Cir, 1977), cert. denied 434 U.S. 1037 (1978), it was held statements made by a defendant during a conversation with an undercover informant were admissible as manifestations of his present state of mind under Fed. R. Evid. 803(3). In State v. Mincey, 130 Ariz. 389, 406, 636 P.2d 637 (1981), statements made by the defendant prior to the incident in question describing his intention to use firearms to protect himself if confronted by police were admissible during the defendant’s prosecution for second-degree murder as bearing directly on the issues of intent and premeditation, See also United States v. Wilkinson, 513 F.2d 227, 233 (7th Cir. 1975); United States v. Dellinger, 472 F.2d 340, 380 (7th Cir, 1972), cert. denied 410 U.S. 970 (1973); State v. Saiz, 103 Ariz. 567, 569, 447 P.2d 541 (1968).
It is clear under K.S.A. 1982 Supp. 60-460(1) spontaneous statements made by a defendant prior to the commission of a crime are admissible to show intent, plan, motive, design, malice or ill will where the defendant’s state of mind is an issue in the case or is relevant to prove or explain acts or conduct of the defendant. The testimony complained of by the appellant falls within this exception to the hearsay rule. The appellant’s statements that she hated Chris and wished he were gone were evidence of the appellant’s ill feelings toward Chris and therefore probative of intent and motive at the time of his death. The statement concerning the cost of having someone “done away with” by the Mafia, while not directly related to Chris, was relevant to show her state of mind concerning a plan or design. The latter statement was particularly relevant in light of the State’s theory that the appellant actually had hired individuals, namely her son Jimmy and Paul Sorrentino, to “do away with” Chris. The statements were relevant to prove or explain acts or conduct of the declarant and therefore were admissible under K.S.A. 1982 Supp. 60-460(1).
The next point raised by the appellant concerns an instruction on the aiding and abetting charge, which read:
“A person who intentionally aids, abets, advises, hires or counsels another to commit a crime is responsible for any other crime committed in pursuance of the intended crime, if the other crime was reasonably foreseeable.”
The appellant contends it was error for the trial court to give this instruction for two reasons. First, no evidence was introduced by the State that the appellant hired or counseled Crumm and Sorrentino to commit any crime other than to kill Chris, so there was no basis for instructing the appellant was responsible “for any other crime committed in pursuance of the intended crime.”
The record on appeal shows sufficient evidence was presented, however, from which the jury could have found the appellant intended or believed Jimmy would do more than just talk to Chris. During her interrogation by police the appellant stated she knew Jimmy and another boy were going to take Chris out and scare him by threatening to beat him up to get him to leave Suzanne alone at home. Other evidence established the appellant talked to Jimmy the day of Chris’s disappearance and stated something had to be done about Chris and Jimmy told her he would “get rid of’ him. Evidence was also admitted of a statement made by Suzanne Hobson to police to the effect that when her mother told her Jimmy had taken care of Chris she “didn’t know what to think ... if they just beat him up real — just enough to put him in the hospital or not.”
The appellant also argues the jury should have been additionally instructed on the elements necessary to establish the underlying crime or crimes which the appellant intended Crumm and Sorrentino to commit. Under the instruction given if the jury believed the appellant had intentionally aided, hired or counseled Crumm and Sorrentino to commit a crime, she could be found guilty of the crime charged if it was reasonably foreseeable that it would be committed in pursuance of the intended crime. The appellant contends the jury must first determine under proper instructions whether those actions which the appellant intended Crumm and Sorrentino to carry out constituted a crime, before they can determine if it was reasonably foreseeable that the crime charged would be committed in pursuance of the intended crime.
The evidence presented by the State established at the very least that the appellant wanted Crumm and Sorrentino to take Chris somewhere and either threaten him with bodily harm or actually cause him bodily harm in order to scare him. Had this been done the evidence would have been sufficient to establish that one or more crimes had been committed and that the appellant had intentionally aided and abetted in the commission of those crimes. See, e.g., K.S.A. 21-3408 (assault); K.S.A. 21-3412 (battery); K.S.A. 21-3414 (aggravated battery). The trial court found the instruction was proper based on the evidence presented that the appellant intended to have Chris scared or beaten up. We agree. The evidence was sufficient to establish that a crime would have been committed if the intended conduct had been carried out, and therefore it was not necessary for the jury to be instructed on the elements of those crimes. The jury was entitled to draw all reasonable inferences of fact from the evidence and use common knowledge and experience in regard to matters about which a witness has testified, and could have found from the evidence the appellant intended for a crime to be committed other than the crime charged and that she intentionally aided in the commission of the intended crime.
The appellant next contends the trial court erred in excluding hearsay statements offered to prove Jimmy Crumm’s feelings toward the victim. The defense made a proffer of evidence that Detective Steve Moore would testify he interviewed David Reffitt, a cousin of Jimmy Crumm, three weeks after Chris’s body was found, at which time Reffitt stated Jimmy Crumm had told him in February before Chris’s disappearance that he did not like Chris and at one point discussed taking him out and killing him. Jamie Bradley, a girl who had dated Jimmy, was also expected to testify that a girl named Michelle Dartez told her Jimmy had stated at one time he was going to cut Chris to ribbons with his knife. Neither Reffitt nor Dartez could be located by defense counsel to be subpoenaed for trial. The appellant contends Reffitt and Dartez were unavailable to testify and therefore their statements were admissible as a matter of necessity under K.S.A. 1982 Supp. 60-460(d)(3), which states:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally ....
“(3) If the declarant is unavailable as a witness, by the declarant at the time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
Tp admit hearsay statements under this provision the trial court must find (1) the declarant is unavailable as a witness, (2) the matter described was recently perceived by the declarant and the statement made while his memory was fresh, and (3) the statement was made under circumstances so as to show that it was in good faith, before there was an action pending, and with no incentive to falsify or distort. 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d), p. 240 (1979). The trial court is necessarily given considerable discretion in admitting statements under this exception. Vernon’s Kansas C. Civ. Proc. § 60-460(d) (1965); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d) (1979). In Smith v. Estate of Hall, 215 Kan. 262, 268, 524 P.2d 684 (1974), we held that under this provision the presence or absence of an incentive to falsify or distort is a question of fact to be determined by the trial judge in light of all the circumstances. See also State v. Brown, 220 Kan. 684, 688, 556 P.2d 443 (1976).
There is no question that had Michelle Dartez and David Reffitt been available as witnesses, the statements made to them by Jimmy Crumm would have been admissible under K.S.A. 1982 Supp. 60-460(7) as a statement of Crumm’s then-existing state of mind, or K.S.A. 1982 Supp. 60-4600) as a declaration against interest. However, these statements are highly suspect because they are actually double hearsay: out-of-court statements by Michelle Dartez and David Reffitt about statements allegedly made by yet a third person, Jimmy Crumm. This is precisely the type of testimony which the hearsay rule is designed to exclude. See K.S.A. 60-463. The appellant argues there was no evidence of bad faith by the declarants and no incentive for them to falsify or distort the statements allegedly made by Crumm. However, no evidence was presented before the trial court from which this determination could have been made. In answer to the appellant’s argument that Reffitt’s statements were admissible because he was unavailable, the court stated:
“The Court: Well, counsel, that’s not the only question here, it’s reliability and there are quite a few conditions in here with respect to incentive to falsify or distort.
“[Appellant’s counsel]: What incentive could this cousin have if he’s his cousin to distort it?
“The Court: Counsel, I don’t know. The point is, I don’t know, and there are a lot of questions here that the witness, Mr. Reffitt, would need to be present to make those determinations. The Court has some very serious reservations about allowing a statement of someone who is not available.”
The trial court further found cross-examination of the declarants was essential because of the nature of the statements. The trial court apparently felt there was some risk the statements were not made in good faith or the declarants had some incentive to falsify or distort the statements attributed to Jimmy. Under the circumstances of this case it would have been imperative for the State to have the opportunity to cross-examine the declarants to test the reliability and truthfulness of their statements. We find the trial court did not err in refusing to admit these statements as exceptions to the hearsay rule.
The appellant contends the trial court erred in refusing to allow the appellant to present expert psychiatric testimony by Dr. Chester Day that the appellant did not have the mental capacity to contract, hire or procure someone to commit a murder for her. Dr. Day met with and counseled the appellant approximately 81 times beginning May 16, 1980, one week after Chris’s body was found, and continuing through July 1981. The appel lant contends this type of evidence is no different from expert evidence concerning a criminal defendant’s ability to distinguish right from wrong where an insanity defense is asserted at trial. The appellant concedes the proffered evidence would embrace the ultimate issue of guilt or innocence, but argues that is not sufficient to disallow such testimony.
The admission of expert testimony is controlled by K.S.A. 60-456(b), which reads:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
The basis for the admission of expert testimony is the need to assist the jury under the facts of the particular case. State v. Garcia, 233 Kan. 589, 598, 664 P.2d 1343 (1983). We have repeatedly held that opinion testimony is not without limitations and although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence. State v. Garcia, 233 Kan. 598; State v. Moore, 230 Kan. 495, 497, 639 P.2d 458 (1982); Massoni v. State Highway Commission, 214 Kan. 844, Syl. ¶ 3, 522 P.2d 973 (1974). In addition, an expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury. State v. Moore, 230 Kan. at 497; State v. Reed, 226 Kan. 519, 521, 601 P.2d 1125 (1979).
It is well settled that expert opinions are admissible on the issue of sanity or insanity in criminal prosecutions because it is an area where expert opinion is particularly useful and oftentimes necessary to interpret for the jury the manifestations of mental derangement and the significance of symptoms. See State v. Garcia, 233 Kan. 598-99 and authorities cited therein. No case law or other authorities are cited by the appellant which state evidence of a defendant’s mental capacity to commit a specific act is admissible where an insanity defense has not been raised and insanity is not an issue. The appellant did not raise an insanity defense in the instant case.
The ultimate issue of fact to be determined by the jury was whether the appellant did or did not commit the crimes charged. The proffered opinion testimony by Dr. Day, based on his contact with the appellant subsequent to the time when the crime was committed, was that she could not have committed the crime because she lacked the mental capacity to do so. This evidence squarely embraced the issue to be determined by the jury. As stated above expert opinion testimony is permitted only insofar as it “will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.” The facts presented by the evidence were neither technical, complicated nor beyond the average experience and common understanding of the jury. In rendering a verdict the jury was required only to weigh the evidence and pass on the credibility of the witnesses. Either they believed the appellant’s version of the events or the version presented by the prosecution witnesses. The opinion evidence proffered by the appellant encroached directly upon the jury’s exclusive province to determine from the evidence whether or not the appellant actually committed the crime, and therefore was properly excluded by the trial court.
The appellant next contends the trial court erred in overruling her motion for new trial because the court did not read the authorities cited by the appellant in support of the motion. The granting of a new trial is a matter of discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of discretion. A new trial in a criminal case may be granted on motion of a defendant when required in the interest of justice, and such grant in the first instance lies within the sound discretion of the trial court. State v. Chiles, 226 Kan. 140, 148, 595 P.2d 1130 (1979). The same points raised by the appellant in support of her motion for new trial were raised on appeal and have been discussed herein. The trial judge presided over the case with a great deal of care, giving due consideration to all issues and objections raised by the appellant during trial. No new issues were raised by the appellant in the motion for new trial. We find the trial court did not abuse the exercise of its power of discretion in overruling the appellant’s motion for a new trial.
Finally, the appellant asserts the trial court erred in ordering the sentences imposed on the two counts to run consecutively. The appellant was sentenced to life for first-degree murder and five to fifteen years for conspiracy to commit murder. Relying on her argument that the two charges are duplicitous, the appellant contends she was sentenced to two confinements for one act. Since we have determined the two convictions were not duplicitous this point is without merit. A sentence imposed by a trial court will not be disturbed on appeal provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive. State v. Coberly, 233 Kan. 100, Syl. ¶ 5, 661 P.2d 383 (1983). No showing has been asserted by the appellant that the sentence imposed was the result of an abuse of the exercise of the trial court’s power of discretion and it will not be disturbed on appeal.
The judgment of the lower court is affirmed.
APPENDIX
“Q. (By Mr. Moore) Suzanne, I’m handing you what’s been marked for identification purposes as State’s Exhibit 15 and ask if you would take a few minutes and look through that, please.
“A. (The witness complies with the request.)
“Q. First let me just ask, have you ever seen that before?
“A. Yes.
“Q. Do you know when you saw that?
“A. Not when, no.
“Q. Do you know where you were when you saw that?
“A. Probably at the preliminary.
“Q. All right. But you have seen that document before?
“A. Yes, I have.
“Q. Would you look through that, please.
“A. I have. (The witness complies with the request.)
“Q. What is that, Suzanne?
“A. It’s the interview I made with Detective Douglass and Steve Moore the night — the morning that they found Chris’ body.
“Q. That would have been May 4th, 1980, is that correct?
“A. Yes.
“Q. (By Mr. Moore) Suzanne, have you refreshed your recollection by looking through this statement?
“A. Yes, once.
“Q. Once what?
“A. I’ve read through it.
“Q. Well, have you looked through it today and do you remember what you said by looking at this?
“A. I haven’t read it today, no.
“Q. Do you want to do that?
“A. No.
“Q. Well, I’m going to ask you some questions about it. Do you want to do it before I ask you some questions?
“A. No.
“Q. Why not?
“A. Because I’ve already read it.
“Q. So you remember what you said?
“A. Yes.
“Q. All right. Okay. Did you tell — did you tell Detective Douglass on May 4, 1980, that—
“Mr. Scott KreameR: Your Honor, I’m going to object, it’s leading the witness.
“TlIE Court: Sustained.
“Q. (By Mr. Moore) Referring back to the conversation you overheard between your mother and Jim on April 17 in the parking lot at Jim’s apartment—
“A. What about it?
“Q. Do you recall it?
“A. Yeah, I remember being there.
“Q. All right. Now, having looked at this statement do you recall any more about that conversation?
“A. No.
“Q. (By Mr. Moore) Miss Hobson, did you make the statement that date at that time that Jimmy and whoever were going to take him out to wherever and get rid of him?
“A. Yes, I did.
“Q. What were you talking about there?
“A. Pardon? What was I talked about?
“Q. What were you talking about?
“A. Well, I heard that something had to be done about Chris and meaning that Jimmy had to talk to him, but not in the sense of killing him.
“Q. Well, who said anything about killing him?
“A. The cops did.
“Q. Who did you hear talking about something had to be done about Chris?
“A. John Douglass and Steve Moore told me the morning that they came to my — our house.
“Q. You didn’t hear your mom talking to Jim Crumm about that?
“A. No, all I said is, ‘Something had to be done.’
“Q. Who said that?
“A. My mom and Jimmy.
“Q. All right. When was that?
“A. I guess that day, I don’t know.
“Q. Suzanne, did you tell anybody about a conversation on April 17 in the parking lot at Jim’s apartment?
“A. Yes, I did.
“Q. All right. And was that when you heard your mom and Jim talking about, ‘Something had to be done about Chris’?
“A. Yes.
“Q. (By Mr. Moore) Thank you, Suzanne. And did you say that you heard them talking and say that you heard them talking and say, ‘She told Jimmy that something had to be done and he said, “We’ll go out and get rid of him” ’?
“A. I don’t remember that. All I remember saying is that — them saying that something had to be done.
“Q. Would you like to refresh your recollection with State’s Exhibit 15?
“A. Okay.
“Q. (Mr. Moore hands the exhibit to the witness.)
“A. Yeah, it says, ‘He said, “We’ll go out here and get rid of him.” ’ I don’t remember saying that, but I don’t ever remember hearing that.
“Q. Well, did you say that or did you not say that?
“A. I don’t remember.
“Q. (By Mr. Moore) You don’t remember saying that?
“A. No, I don’t.
“Q. Did you say, T don’t know, they left for Burger King or something. She got him out of the house, she said that she’s going to get Ed out of the house’?
“A. Right.
“Q. Where did you get that information?
“A. Huh? Well, I knew they were going to Burger King so Jimmy and Chris could talk.
“Q. Do you know why she wanted to get Ed out of the house?
“A. Yeah, so Jimmy and Chris could talk.
“Q. So Jimmy and Chris could talk. What were they going to talk about, Suzanne?
“A. What Chris had — the problems Chris had been causing.
“Q. And what kind of problems had Chris been causing that Jim was supposed to talk to him about?
“A. The rumors that he’d been spreading — that he did spread around about me.
“Q. Anything else?
“A. No — well, just the problems we had been having, stuff Chris had done.
“Q. Did you say to Detective Douglass on May 4, ‘Oh, she said that Jimmy went out and took care of him, so I wasn’t sure’?
“A. Yes.
“Q. (By Mr. Moore) Thank you Suzanne. Did you say to Detective Douglass on May 4, T didn’t know what to think, I didn’t know if they just beat him up real — just enough to put him in the hospital or not’?
“A. I don’t remember that.
“Q. You don’t remember that? Did you ever tell anybody that you figured what had happened to Chris?
“A. I don’t know, I don t remember.
“Q. Suzanne, I’ll hand you State’s Exhibit 15 and ask you to refresh your recollection again, please.
“A. Obviously 1 said that, but I don’t remember.
“Q. Did you ever say to Detective Douglass on May 4, 1980, T figured that he killed him’?
“A. I don’t remember.
“Q. All right. Did you think or know that something was going to happen that night, Suzanne, April 17th?
“A. I knew that Jimmy was coming over to talk to him.
“Q. Did you hear any conversation between your mother and Jimmy about getting rid of Chris?
“A. Getting rid of Chris, no, I don’t remember.
“Q. No, or you don’t remember?
“A. I don’t remember.
“Q. Did you hear any conversation between your mother and Jimmy about killing Chris?
“A. No.
“Q. No, or you don’t remember?
“A. No.
“Q. Did you say to Detective Douglass on May 4 with regard to killing Chris, ‘They didn’t really say that word for word, they were just going to get rid of him that’s all they said’?
“A. Yes.
“Q. You said that?
“A. Right, but that didn’t — to me they didn’t say ‘kill.’
“Q. But I asked you a minute ago if they were going to get rid of Chris and you said you didn’t remember that?
“A. Right. But you said right then get rid of as in the meaning of killing. “Q. I don’t want you to—
“The Court: Excuse me, counsel, she’s answered the question the way she could. You may proceed to the question.
“Q. (By Mr. Moore) My question to you is, did you hear any conversation between Jimmy and your mother about getting rid of Chris?
“A. No, I don’t remember.
“Q. Then my question is, did you say to Detective Douglass on May 4, ‘They were just going to get rid of him’?
“A. I could have, I don’t remember.
“Q. Did your mother tell you where you were to be on April 17, 1980 when Jim came to see Chris?
“A. Yes.
“Q. What did she tell you?
“A. To be upstairs.
“Q. For what purpose?
“A. To take a shower.
“Q. Why were you to be upstairs?
“A. To soak my knee because I had been on crutches that week.
“Q. Did your mom have any conversation with you about Chris’ billfold? “A. No, I don’t remember anything about the billfold.
“Q. Did you make any statements to anybody about the billfold on May 4, 1980. Specifically John Douglass and Steve Moore?
“A. I could have. Obviously I made the statement, yes, but I don’t remember anything about the billfold. I didn’t know anything about the billfold until they told me where it was.
“Q. Did you tell John Douglass and Steve Moore on May 4 that your mom threw the billfold up at Metcalf South?
“A. Yeah, I did, but—
“Q. That’s enough, thank you.
“Q. (By Mr. Moore) Did you tell Detective Douglass on May 4 that your mother told you, ‘She said that Jimmy went out and took care of him’?
“A. I don’t remember that.
“Q. You’re not saying you didn’t say that?
“A. No.
“Q. Did you hear any conversation between your mother and Jim in the week or two weeks prior to April 17, 1980 about Jim getting a car or some money?
“A. I knew he was going to get a car.
“Q. Did you ever say to Detective Douglass on May 4 in response to his question, ‘No, nobody really ever told me what was — I didn’t even know anything about the money deal with Jimmy’?
“A. Yes, I said that.
“Q. (By Mr. Moore) Did you also say at that time, ‘He just said that with the money he was going to get some kind of car’?
"A. Yes.
“Q. Do you know when your mom threw the billfold — Chris’ billfold up at Metcalf South?
“A. No, I don’t remember.
“Q. Are you saying, Suzanne, that the things you told Detective Douglass and Detective Moore are not true?
“A. I don’t remember, I don’t remember anything — hardly anything about that conversation.” | [
-16,
110,
-7,
-67,
59,
96,
58,
24,
114,
-93,
48,
115,
15,
-53,
1,
123,
59,
63,
68,
105,
-16,
-77,
47,
-87,
-78,
-13,
-78,
-108,
114,
73,
-74,
-42,
78,
112,
-50,
93,
70,
10,
-73,
80,
-120,
-112,
-119,
-16,
82,
66,
36,
122,
60,
6,
-75,
14,
-93,
42,
62,
-57,
-24,
40,
90,
-3,
-112,
-111,
-21,
-121,
-33,
18,
-109,
38,
-98,
-126,
-40,
55,
-39,
57,
0,
-8,
-13,
-123,
-124,
116,
79,
25,
12,
103,
66,
49,
28,
-81,
40,
-119,
15,
126,
-107,
-89,
-104,
73,
75,
37,
-106,
-33,
100,
52,
43,
-2,
-27,
12,
125,
-20,
1,
-58,
-16,
-111,
-113,
48,
-56,
-70,
-45,
45,
32,
113,
-51,
-32,
92,
-59,
120,
-47,
-82,
-110
] |
Per Curiam:
This is an original proceeding in discipline, filed pursuant to Supreme Court Rule 212 (230 Kan. civ), against Gary A. Savaiano, an attorney admitted to practice in the State of Kansas. A panel of the Kansas Board for Discipline of Attorneys, after a full evidentiary hearing, recommended the respondent should receive public censure. Respondent filed exceptions to the report of the disciplinary panel.
The initial complaint against the respondent arose out of his representation of a Mr. Phil Frankenberger. On October 30, 1981, Phil Frankenberger wrote a letter of complaint to Arno Windscheffel, the Disciplinary Administrator of the Kansas Supreme Court, against Mr. Gary Savaiano. Frankenberger alleged Savaiano had agreed to represent Frankenberger at all stages of a legal action commenced against him. (Halpin v. Frankenberger and Topeka Bank and Trust, Shawnee County District Court Case No. CV 0777.) Frankenberger contended that after judgment was entered against him, Savaiano withdrew from representation, contrary to his agreement with Frankenberger.
The office of the disciplinary administrator received the complaint on November 2, 1981, and on that date, pursuant to Rule 209 (230 Kan. ciii), Rules of the Kansas Supreme Court Relating to Discipline of Attorneys, docketed a complaint against Mr. Savaiano. On that date, a form letter acknowledging receipt of the letter of complaint was sent to Frankenberger, and a form letter advising Savaiano of the complaint and requesting his response was sent to Savaiano.
Once docketed, the investigation of the complaint proceeds under Rule 210 (230 Kan. ciii). The administrator has wide latitude in conducting the investigation of a complaint, including referral to local or state bar grievance committees. As a matter of office policy, Mr. Windscheffel will either assign the matter for investigation to such committees or, in instances where the complaint appears to be of a less serious nature, he will simply refer it to the attorney complained of for his or her response. In this instance, the complaint was referred to Mr. Savaiano for his response.
On February 4, 1982, Frankenberger again wrote Mr. Windscheffel wanting to know the status of his complaint. Not having received a reply to his first letter, Mr. Windscheffel, on February 16, 1982, sent Mr. Savaiano a second letter advising of the complainant’s second inquiry, again requesting Mr. Savaiano to reply, and stating his failure to respond would result in the matter proceeding to the review committee without the benefit of his answer. Mr. Savaiano again failed to reply to this second letter.
Frankenberger again wrote Mr. Windscheffel on June 1, 1982, asking why it was taking so long to complete the investigation. Not having received a reply to his second letter, on June 7, 1982, Mr. Windscheffel finally phoned Mr. Savaiano to request he provide some response prior to submitting the complaint to the review committee for disposition pursuant to Rule 210 (c). Savaiano replied he had no intention of answering. Mr. Windscheffel then asked if Mr. Savaiano would at least write a letter advising authorities of his intention not to answer. Savaiano replied he had no intention of answering Mr. Windscheffel either. Mr. Windscheffel then stated, “That is your firm answer, that you do not intend to answer me or my letter.” Mr. Savaiano then replied, “That’s right.” Mr. Windscheffel replied, “You leave me no option but to recommend this to panel.” Mr. Savaiano then stated, “That’s o.k. with me.”
On June 29, 1982, the complaint was submitted to the review committee on the basis of the complainant’s allegatioirs without the respondent’s answer, and on the recommendation of the disciplinary administrator that the matter be referred to panel hearing solely on the basis of the respondent’s intentional refusal to answer. The review committee deferred consideration of the matter, requesting a more detailed account of the complaint. Accordingly, on June 29, 1982, Mr. Windscheffel assigned the matter for investigation to the Ethics and Grievance Committee of the Wichita Bar Association, the situs of the complainant’s residence. The chairman of the committee, Warren Southard, assigned the matter to Mark Anderson, a Wichita attorney, for investigation. Southard also wrote Mr. Savaiano requesting that he cooperate with Mr. Anderson and provide a written response to the complaint at his earliest convenience. Mr. Savaiano did not reply to Mr. Southard’s request. Mr. Anderson completed the investigation without the benefit of input from Mr. Savaiano, and submitted a written report to Mr. Southard, which was forwarded to the disciplinary administrator on August 27, 1982.
On September 1, 1982, the investigative report was forwarded to the members of the review committee. The complaint was again submitted to the review committee, pursuant to Rule 210, on September 30, 1982. This time the review committee determined, on the basis of the letter of complaint and investigation, that the matter be referred for formal charges and a formal evidentiary hearing. Mr. Savaiano was advised of this decision by letter dated October 6, 1982.
Pursuant to Rule 211 (b) (230 Kan. ciii), a formal complaint was prepared and filed alleging the original complaint and alleging that the respondent neglected and refused to answer inquiries by the disciplinary administrator, and refused to cooperate with the investigation of the original complaint.
After the filing of a formal complaint, Mr. Savaiano cooperated, filing answers to all the allegations made against him. The respondent appeared at all hearings, presented evidence in his behalf, and submitted himself for questioning to all parties. At the conclusion of the disciplinary administrator’s evidence, the hearing panel sustained the respondent’s motion for dismissal of the complaint against him on all matters except for the failure of the respondent to cooperate with the disciplinary administrator. The panel found that the disciplinary administrator had not presented clear and convincing evidence that the respondent violated the canons of ethics in his representation of Mr. Frankenberger. However, the panel did find that the respondent failed to cooperate with the disciplinary administrator’s office as required by Supreme Court Rule 207 (230 Kan. ci). It was recommended by the panel that the respondent, having violated Kansas Supreme Court Rule 207, be reprimanded by public censure.
The respondent claims that Rule 207 (a) does not impose a duty on members of the state bar to cooperate with and answer inquiries by the state’s disciplinary authority when they themselves are the subject of a disciplinary investigation. We do not agree.
Every attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the discipline of the Supreme Court and the authority established by the rules of the Supreme Court. The purpose of such broad jurisdiction vested in the Supreme Court is to insure that control is maintained over proceedings conducted before the courts of this state. Rule 201 (230 Kan. xcix).
Some of the Supreme Court rules have been amended subsequent to the commencement of the proceedings against the respondent. Since none of the amendments to the rules affect this proceeding, only pertinent portions of the appropriate current rules will be stated. The relevant portions of rules relating to the procedure for discipline of attorneys are:
“Rule 202
GROUNDS FOR DISCIPLINE
“The license to practice law in this state is a continuing proclamation by the Supreme Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of that privilege to conduct himself at all times, both professionally and personally in conformity with the standards imposed upon members of the bar as conditions for the privilege of practicing law. Acts or omissions by an attorney, individually or in concert with any other person or persons, which violate the Attorney’s Oath of Office as set forth in Rule 702 (i), or the Code of Professional Responsibility as set forth in Rule 225 hereof, or as hereinafter amended, shall constitute misconduct and shall be grounds for discipline, whether or not the acts or omissions occurred in the course of an attorney-client relationship.
“A certificate of a conviction of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against said attorney based upon the conviction.
“Rule 203
TYPES OF DISCIPLINE
“(a) Misconduct shall be ground for:
(1-) Disbarment by the Supreme Court; or
(2) Suspension by the Supreme Court; or
(3) Public "censure by the Supreme Court; or
(4) Informal admonition by the Kansas Board for Discipline of Attorneys or the Disciplinary Administrator; or
(5) Any other form of discipline the Supreme Court deems appropriate.
“Rule 204
KANSAS BOARD FOR DISCIPLINE OF ATTORNEYS
“(a) The Supreme Court shall appoint an eleven-member board to be known as the Kansas Board for Discipline of Attorneys (hereinafter referred to as the Disciplinary Board), which shall consist of:
“[Eleven members of the board.]
“Rule 205
DISCIPLINARY ADMINISTRATOR
“(a) A Disciplinary Administrator shall be appointed by the Supreme Court and shall serve at the pleasure of the Court. . . . The Disciplinary Administrator shall be a member of the bar of the State of Kansas.
“(c) The Disciplinary Administrator shall have the power and duty:
“(2) To investigate or cause to be investigated, all matters involving possible misconduct, whether called to his attention by complaint or otherwise.
“(3) To present all matters involving alleged misconduct to the review committee, except as otherwise provided by Rule 209.
“(6) To prepare for and prosecute all disciplinary proceedings instituted to determine misconduct of attorneys before hearing panels, the Disciplinary Board, and the Supreme Court.
“Rule 207
DUTIES OF THE BAR AND JUDICIARY
“(a) It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he may have affecting such matters.
“(b) It shall be the further duty of each member of the bar of this state to report to the Disciplinary Administrator any action, inaction, or conduct, which in his opinion constitutes misconduct of an attorney under these Rules.
“(c) It shall be the duty of each judge of this state to report to the Disciplinary Administrator any act or omission on the part of an attorney appearing before him, which, in the opinion of the judge, may constitute misconduct under these Rules. Upon receipt of such report, it shall be processed as hereinafter provided for complaints. Nothing herein shall be construed in any manner as limiting the powers of such judge in contempt proceedings.
“Rule 209
COMPLAINTS
“All complaints or reports relating to misconduct of any attorney shall he filed with the Disciplinary Administrator. Any complaints or reports filed with the Disciplinary Board or any member thereof, the Clerk of the Appellate Courts, any state or local bar grievance committee, or any other body shall be immediately delivered to the Disciplinary Administrator. The Disciplinary Administrator shall promptly docket all complaints or reports received, unless the complaint or report appears, on its face, to be frivolous, or without merit, in which case the Disciplinary Administrator may dismiss the complaint or report, without having docketed the same.
“Rule 210
INVESTIGATIONS
“(a) All investigations, whether upon complaint or otherwise, shall be initiated and conducted by the Disciplinary Administrator or under his supervision.
“(b) The Disciplinary Administrator may refer a complaint or report to the state bar association grievance committee, a local bar association grievance committee, or any member of the bar of this state, for investigation and report. The Disciplinary Administrator may at any time withdraw such referral and have the complaint or report otherwise investigated.
“(c) Upon the conclusion of an investigation, the Disciplinary Administrator shall recommend to the review committee dismissal of the complaint, informal admonition of the attorney concerned, or prosecution of formal charges before a hearing panel. Disposition shall thereupon be made by a majority vote of the review committee, unless it directs further investigation. A complaint shall not be referred for panel hearing unless the review committee finds by a majority vote that there is probable cause to believe there has been a violation of the Code of Professional Responsibility or of the Attorney’s Oath which may require formal discipline of the respondent.
“Rule 211
FORMAL HEARINGS
“(a) Hearings shall be conducted by a panel of three attorneys, at least two of whom shall he members of the Disciplinary Board. Hearings may be held at any place in the state. The chairman of the Disciplinary Board shall designate the members of the panel, the presiding officer thereof, and the matters to be heard by the panel. The presiding officer shall be a member of the Disciplinary Board.
“(b) Formal disciplinary proceedings shall be instituted by the Disciplinary Administrator by filing a complaint with the secretary of the Disciplinary Board. The complaint shall be sufficiently clear and specific to inform the respondent of the alleged misconduct. A copy of the complaint shall be served upon the respondent. The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.
“(f) At the conclusion of a hearing held by a panel, a report shall be made to the Disciplinary Board setting forth findings and recommendations, which report shall be signed by a majority of the panel and submitted to the Board. To warrant a finding of misconduct the charges must be established by clear and convincing evidence.
“If the final hearing report or reports do not recommend discipline, or if the complaint is dismissed by the panel or if the panel recommends discipline other than as set forth in Rule 203 (a) (1), (2) or (3), at the discretion of the Disciplinary Administrator an appeal may be taken by the Disciplinary Administrator to the Supreme Court for final disposition. The appellate procedure shall be as provided in Rule 212 (b).
“If the final hearing report recommends discipline of disbarment, suspension, or public censure, as prescribed by Rule 203 (a) (1), (2) or (3), or if the Disciplinary Administrator appeals from other action taken as set forth in the preceding paragraph, the report, findings and recommendations of the panel together with the complaint, answer and transcript, if any, shall be filed with the Clerk of the Appellate Courts and the matter shall proceed as provided by Rule 212.” Rules Relating to Discipline of Attorneys, 230 Kan. xcix-civ. Emphasis supplied.
Rule 207 (a) imposes a duty on all lawyers subject to the jurisdiction of the Kansas Supreme Court to cooperate with and respond to the inquiries by the state disciplinary authorities at all stages of the proceedings, even when they themselves are the subject of a disciplinary investigation. The plain import of this rule is to impose a duty of cooperation regardless of the nature or subject of the complaint.
The language of Rule 207 (a) is simple, straightforward and unambiguous. It imposes the duty of cooperation on every lawyer under this court’s jurisdiction with one exception. The one exception, the right against self-incrimination, is contained in Rule 223 (230 Kan. cx). Rule 223 states: “All participants shall be entitled to all rights, privileges and immunities afforded public officials and other participants in actions filed in the courts of this state.” The respondent’s constitutional and statutory right against self-incrimination included in Rule 223 was not claimed by the respondent.
Some jurisdictions have adopted more specific procedural rules for processing disciplinary complaints imposing a duty of cooperation even on those attorneys who are the subject of a disciplinary investigation. See Rule 2.6 Discipline Rules for Attorneys of the Supreme Court of the State of Washington; Wisconsin Supreme Court Rule 22.07; and Alaska Bar Rule II - 14 (c). The purpose of the rules is to assure the cooperation of attorneys against whom complaints have been filed with the disciplinary administrator while the disciplinary administrator is investigating the substance of the complaint. We find Rule 207 (a) accomplishes that same purpose.
Our procedures insure the public that their grievances, real or imagined, against an attorney, will be investigated and resolved promptly and impartially. No procedure can be designed to protect the attorney from groundless complaints. The ability of the disciplinary administrator to investigate, interview and evaluate without restriction is the best assurance for attorneys that groundless complaints will be terminated as quickly and efficiently as humanly possible.
This is the first instance where an attorney has refused to cooperate with the disciplinary administrator in an investigation of a complaint brought against that attorney. There is no doubt that the respondent felt justified in refusing to cooperate with the disciplinary administrator during the informal investigation of the complaint. He was wrong.
It Is Therefore By The Court Ordered that Gary A. Savaiano is hereby disciplined by this court by public censure and he is hereby ordered to forthwith pay the costs of this proceeding.
It Is Further Ordered that the Order of Public Censure be published in the official Kansas Reports.
By Order of this Court this 21st day of October, 1983. | [
-76,
-24,
-5,
76,
8,
32,
58,
58,
81,
-61,
119,
115,
-23,
-1,
12,
127,
-43,
109,
-112,
106,
-59,
-76,
127,
96,
70,
-14,
-16,
-43,
-70,
79,
-12,
-71,
73,
48,
-118,
-59,
-58,
-118,
-113,
-36,
-122,
4,
9,
-12,
-37,
64,
16,
61,
18,
7,
53,
47,
-29,
46,
53,
73,
-84,
60,
-97,
-83,
-64,
-111,
-102,
-99,
95,
19,
-78,
-76,
24,
7,
88,
63,
8,
61,
1,
-23,
115,
-94,
-126,
116,
15,
-87,
-124,
102,
34,
-95,
101,
-96,
-84,
-104,
15,
125,
29,
6,
-103,
9,
73,
1,
-106,
-97,
116,
22,
39,
-4,
-28,
13,
31,
-20,
11,
-50,
-28,
-79,
-98,
92,
30,
3,
-21,
-58,
36,
81,
-108,
-28,
95,
-41,
48,
27,
-34,
-107
] |
The opinion of the court was delivered by
Miller, J.:
Anastacio Burtos Gomez appeals from his conviction by a jury in Sedgwick County District Court of aggravated robbery, K.S.A. 21-3427. He contends that the trial court erred in ruling that the bill taken from the victim’s wallet was “property” as a matter of law, in refusing to instruct the jury on the statutory definition of property, in refusing to instruct on the lesser included offense of robbery, and in admitting evidence of the actions of his confederate. Finally, he claims that the statutory definitions of robbery and aggravated robbery are unconstitutionally vague and violate due process because the term “bodily harm” is undefined.
On the night of June 15, 1982, James Phillips was asleep in a car outside of the Eaton Tap Room in Wichita, Kansas. He was rudely awakened when the car doors were suddenly opened. He faced two men armed with knives, defendant Gomez entering on the driver’s side and Carlos Morales on the passenger side. They sprayed mace into the car, took a bill from the victim’s wallet and an opened package of Marlboro cigarettes from the dashboard, and left on foot. Phillips dashed into the tavern and sounded the alarm. Both robbers were quickly captured. Gomez had the bill taken from the victim’s wallet, and Morales had what appeared to be the victim’s cigarettes. Later, Gomez’ thumbprint was found on the door handle of the car in which Phillips had been sleeping.
The bill taken from the victim’s wallet was easily identified. It was not U.S. currency, but “funny money” — a $180 bill. Its four quadrants showed denominations of $100, $50, $20 and $10.
Over defendant’s objection, the trial judge ruled that the $180 bill was “property” as a matter of law. The judge refused to give the jury the statutory definition of property contained in K.S.A. 21-3110(16), and he refused to give the jury an instruction proposed by the defendant, requiring the jury to find that items taken in a robbery must have intrinsic value in order to constitute “property.”
The statutes involved read as follows:
“21-3426. Robbery. Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.”
“21-3427. Aggravated robbery. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.”
“21-3110. General definitions. The following definitions shall apply when the words and phrases defined are used in this code, except when a particular context clearly requires a different meaning.
“(16) ‘Property’ means anything of value, tangible or intangible, real or personal.”
The robbery statutes set forth above were enacted by the 1969 Legislature, and were classified under the heading “Crimes Against Persons.” L. 1969, ch. 180.
Theft, as defined by K.S.A. 21-3701, is a crime against property. In theft, unlike robbery, the value of the property determines the seriousness of the offense. Theft of property of the value of $100 or more is a felony, while theft of property of the value of less than $100 is a misdemeanor.
The value of property taken during a robbery, however, is not determinative of the seriousness of the offense. Robbery is primarily an offense against a person, and the gist of the offense is the taking from the person or presence of the victim by threat of bodily harm or by force. Justice Dawson, in State v. Tucker, 115 Kan. 203, 222 Pac. 96 (1924), observed that:
“It was immaterial to the charge of first degree robbery whether the victim was robbed of ten cents or ten thousand dollars’ worth of gold, silver, and diamonds.” 115 Kan. at 204.
This appears to be the general rule. In 77 C.J.S., Robbery § 6, the rule is stated as follows:
“As long as the property taken has some value, the amount of its value is immaterial both at common law and under statutes containing no requirement with respect to the amount of value. Accordingly, the crime of robbery may be committed even though the property taken is of slight value. Further, an actual pecuniary value is not essential as long as it appears that the property had some value to the person robbed.” (Emphasis supplied.)
In 67 Am. Jur. 2d, Robbery § 13, p. 38, it is said:
“Although the property ordinarily must have some worth, proof of a specific pecuniary value is not required. The fact that the property was kept and preserved as of value to the owner and was neither worthless nor unfit for use, although its pecuniary value was nominal, insignificant, or incapable of estimation, is sufficient. And the property need not be taken for its pecuniary value; thus, taking cell keys from a jailer at gunpoint has been held to be robbery . . . .”
We note also that contraband property has generally been held to be the subject of robbery. See 67 Am. Jur. 2d, Robbery § 13, and 77 C.J.S., Robbery § 8.
In Miller, Handbook of Criminal Law § 124, pp. 391-92 (1934), the author states:
“As in the case of larceny, property, to be the subject of robbery, must be personal property. . . . The amount of the value of the property taken is immaterial.”
Further, in § 110, pp. 343-44, Dean Miller says:
“It is frequently said that the property must also be of some value, though it may be the very smallest, less than that of any known coin. Since all property is of some value even if infinitesimal, the rule as stated seems to be a matter of words, merely. A bill, note, or other like instrument is not, at common law, the subject of larceny, because it was regarded, not as property, but as mere evidence of property or of some right thereto. If it were a valid instrument, the paper on which it was written was considered to be absorbed into the chose in action and to lose its existence as a piece of paper. If, however, the instrument were invalid, and of no value as such, it retained its existence as a piece of paper, and was the subject of larceny.”
In Richardson v. State, 168 Miss. 788, 792, 151 So. 910 (1934), the court sets forth the rule as follows:
“In a prosecution for robbery, the property taken need not have any actual pecuniary value if it appears that it had some value to the person robbed. 54 C.J. 1012. The value of the property taken need- be only the minutest, Bishop on Criminal Law (9 Ed.), vol. 2, sec. 1162, and, as said in the case of Jackson & Dean v. State, 69 Ala. 249, if there is evidence showing that the property taken was ‘not worthless — that it was not wholly unfit for use, or that the owner kept and preserved it as of value to him, it was the subject of robbery, though the pecuniary value which could be imputed to it was nominal, insignificant, or incapable of estimation.’ ”
The statement of the Alabama Court of Criminal Appeals in White v. State, 378 So. 2d 239, 244 (Ala. Crim. App. 1979), cert. denied 378 So. 2d 247 (Ala. 1979), appears particularly appropriate:
“That some economists, in these days of inflation in unprecedented distention, are suggesting that pennies have no value, in the eyes of the law they still do and, regardless of their number, what was said in James v. State, 53 Ala. 380, 387 (1875), in quoting from Roscoe, Evidence in Criminal Cases, 1908, still applies: “ ‘ “. . . [T]he value of the property is immaterial. A penny, as well as a pound, forcibly extorted constitutes a robbery, the gist of the offense being the force and terror.”
In The People v. Cassidy, 394 Ill. 245, 246, 68 N.E.2d 302, cert. denied 329 U.S. 769 (1946), the Supreme Court of Illinois said:
“[T]he value of the property taken from another by force or intimidation is immaterial, since the gist of the crime [of robbery] lies in the foi'ce or intimidation.”
Defendant contends that the trial court erred in ruling that the $180 bill was “property” as a matter of law. The only evidence tending to establish the value of the $180 bill was the victim’s testimony that the bill was a gift; that it had personal value to him, but no intrinsic value; and that he had never seen another like it.
The bill is a novelty item, and while it does not have the value of a $100 bill, or any other item of United States currency, it is clear that the item has some small token value. According to the California case of People v. Simmons, 28 Cal. 2d 699, 172 P.2d 18 (1946), judicial notice may be taken of the fact that an item of personal property has some value. In State v. Phillips, 106 Kan. 192, Syl. ¶ 2, 186 Pac. 743 (1920), this court took judicial notice that a slightly used five-passenger touring car was worth more than $20 and thus could form the basis for a grand larceny conviction. In view of the rule that property taken in a robbery need only have minimal or nominal value, we conclude that the trial court did not err in taking judicial notice of the bill’s slight value nor in holding as a matter of law that the $180 bill was property.
In addition, the undisputed evidence shows that a package of cigarettes was taken during the robbery. There was only one robbery, committed by two men; two items were taken; both items were taken at knife-point. The actions of one robber can be used to prove the elements of the crime against the other. See State v. Johnson & Underwood, 230 Kan. 309, 311, 634 P.2d 1095 (1981). The package of cigarettes, taken during the robbery, is in itself sufficient property to support the robbery conviction. People v. Simmons, 28 Cal. 2d 699.
Defendant submitted the following proposed jury instruction:
“In order to find the defendant guilty of either aggravated robbery or robbery, you must find the property taken by the defendant has intrinsic value.”
Many items of personal property may have little intrinsic value, yet they are sufficient to support a robbery conviction. There is no requirement in our statute that the property taken have intrinsic value. Nominal value is sufficient. We find no error.
The Court of Appeals in State v. Robinson, 4 Kan. App. 2d 428, 431, 608 P.2d 1014 (1980), a theft case, uses the following language:
“We hold the rule as to value to be used in determining whether a theft is a felony or a misdemeanor is that same is the fair market value, except where an item or items constituting the res of the theft has no fair market value, or where the value is peculiar to the owner from whom the property was stolen, then its ‘money’ value to the owner is a proper test. We stress ‘money’ value in order to make it clear that mere sentimental considerations cannot be attributed value when that term is used in the field of criminal law.”
The latter statement, when applied in the context of a robbery case, is too broad. If the item of personal property taken has value to the owner, if he has kept and preserved it as of value to him, then even though the item has but trifling value to the rest of the world, it may well constitute property and thus support a robbery charge. The principal feature of robbery, we emphasize, is not the value of the property taken, but the force or threat of bodily harm by which the taking is accomplished.
During the conference on jury instructions, the trial judge ruled as a matter of law that the false bill was property under the evidence in the case. He went on to rule that counsel would not be permitted to argue that the bill was not property because it had no intrinsic value. As we have already held, where an item taken in a robbery has any value, however minuscule, to the owner or anyone else, the item constitutes property. Allowing argument to the jury that the item was not property because it had no intrinsic value would have been error. The trial court quite properly foreclosed that argument.
Next, defendant contends that the trial court erred in refusing to instruct on the lesser included offense of simple robbery. In support of this claim, defendant points to the fact that he had no knife when he was captured. The evidence, however, was undisputed that both defendant and his confederate were armed-with knives and used them at the time of the robbery, and that both were carrying knives as they fled from the scene. Though defendant was unarmed at the time he was captured, and though his knife was not recovered and offered into evidence, there was no evidence that the robbery was committed without the use of knives. It has long been our rule that a trial court need instruct upon a lesser included offense only where there is evidence upon which a defendant might have reasonably been convicted of the lesser charge. See State v. Chears, 231 Kan. 161, 165, 643 P.2d 154 (1982). Because there was no evidence in this case to support the lesser charge, the trial court did not err in refusing to instruct upon it.
Defendant next contends that the trial court erred in admitting testimony concerning the action of Morales and of the knife used by Morales, and in admitting into evidence the pack of Marlboro cigarettes found in Morales’ possession at the time he was captured. Both Gomez and Morales acted together; each threatened the victim with a knife; each took property from him at the same time; and each possessed one item of the stolen property at the time of capture. The evidence was clearly relevant and admissible.
We now turn to the defendant’s final contention that the robbery statutes are unconstitutionally vague and violate due process because the term “bodily harm” is undefined. The rules applicable to the challenge of a statute on vagueness grounds are stated in State ex rel. Murray v. Palmgren, 231 Kan. 524, 532, 646 P.2d 1091 (1982), as follows:
“Let us first consider the rules of construction on the constitutional challenge of a statute. We have stated on innumerable occasions the constitutionality of a statute is presumed; all doubts must be resolved in favor of its validity, and before a statute may be stricken it must clearly appear there is a constitutional violation. We have gone on to say, in determining constitutionality, it is the court’s duty to uphold the statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, it should be done. Statutes are not stricken unless the infringement of the superior law is clear beyond a reasonable doubt. Von Ruden v. Miller, 231 Kan. 1, 642 P.2d 91 (1982); In re Brooks, 228 Kan. 541, 543, 618 P.2d 814 (1980); State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980); Colby Distributing Co. v. Lennen, 227 Kan. 179, 186-87, 606 P.2d 102 (1980); State v. Meinert, 225 Kan. 816, 817, 594 P.2d 232 (1979).
“Against this background let us examine the rules regarding vagueness and overbreadth:
“ ‘The test to determine whether a criminal statute is constitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.’ State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).”
We faced a similar challenge to the phrase “great bodily harm” as used in the aggravated battery statute, K.S.A. 21-3414, in State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978). We said:
“[T]he language of the statute here before us is couched in language which is readily understandable, and there are no omissions of necessary language. Bodily harm — harm or injury to the body — is clear and unequivocal.” (Emphasis in original.)
In Sanders, we decided the issue here raised, and we adhere to that decision and find that it is consistent with the rules set out in Palmgren.
The judgment is affirmed. | [
-48,
-18,
-71,
-65,
43,
96,
43,
-102,
99,
-75,
54,
83,
45,
-64,
5,
123,
-13,
111,
-12,
96,
-33,
-89,
71,
-63,
-14,
123,
-47,
-59,
49,
74,
-18,
70,
77,
112,
-62,
117,
102,
-54,
-31,
-44,
-114,
0,
-88,
-47,
-45,
8,
32,
106,
64,
2,
-79,
-115,
-13,
58,
26,
-30,
73,
40,
75,
-83,
-24,
-7,
-17,
21,
125,
16,
-125,
34,
-100,
7,
-48,
28,
-104,
49,
0,
-72,
115,
-90,
6,
-12,
109,
-117,
12,
102,
98,
48,
125,
-49,
-20,
-87,
46,
-41,
-121,
-89,
-106,
88,
75,
12,
-106,
-99,
108,
7,
14,
124,
-25,
28,
95,
108,
-105,
-33,
-108,
-79,
-115,
60,
-98,
107,
-37,
35,
-76,
97,
-50,
-94,
92,
85,
120,
-105,
-114,
-43
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is a class action suit brought against Phillips Petroleum Company (Phillips) by Irl Shutts, Robert Anderson and Betty Anderson, individually and on behalf of 28,100 royalty owners, including those who are not residents of Kansas, for recovery of interest on “suspense royalties” on gas produced from leases in eleven states. These royalties were withheld by Phillips at various times from July 1974 to February 1978 under three Federal Power Commission (FPC) opinions pertaining to gas rates in nationwide gas rate proceedings, and later paid by Phillips to the royalty owners without interest. The trial court determined (1) the class consisted of all royalty owners and overriding royalty owners who received suspense royalties from Phillips, whether or not they were residents of Kansas, (2) Phillips was liable for interest on all royalties and overriding royalties retained by it under the FPC opinions, and (3) the applicable rate of interest owed on the suspended royalty payments. Phillips challenges these findings on appeal. The plaintiff class has cross-appealed contending the trial court incorrectly determined the applicable rate of interest.
With a few exceptions this case is similar in legal issues and factual situation to that presented in Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978) (hereinafter referred to as “Shutts I”). The following relevant facts were stipulated to by the parties in the pretrial order and later adopted by the trial court as part of its findings of fact in its journal entry of judgment. This action was filed in July 1979, by Irl Shutts, a resident of Kansas, and Robert Anderson and Betty Anderson, residents of Oklahoma. Shutts is the owner of royalty interests under five leases owned by Phillips in Texas and Oklahoma. The Andersons are owners of gas royalty interests under a lease owned by Phillips in Oklahoma.
Notice was given to 33,000 potential class members by first-class mail. Approximately 3,400 class members elected to opt out of the class and notice could not be delivered to approximately 1,500 other potential class members, thereby reducing the size of the class to approximately 28,100 members. No notice by publication was used in this case.
Beginning with FPC Opinion No. 699 the Federal Power Commission began rate making on a nationwide, rather than areawide, basis as had been done previously. Payments of gas royalties were suspended in part by Phillips under FPC Opinion No. 699 from July 1974 through July 1976; under FPC Opinion No. 749 from January 1976 through February 1978; and under FPC Opinion No. 770 from August 1976 through July 1977. Notices of the suspended payments were sent to royalty owners on various dates during the suspension periods. Following final approval of price increases, royalties were paid to the royalty owners in the approximate amounts of $3,700,000 under Opinion No. 699; $2,900,000 under Opinion No. 749; and $4,700,000 under Opinion No. 770.
Increased prices for gas sales were collected by Phillips during the suspension periods subject to a duty to refund to the purchasers in the event the ordered price increases were not approved. Through all or part of the periods of suspension Phillips withheld the royalty payments attributable to the price increases in Opinion Nos. 699, 749 and 770, unless the royalty owners put up an acceptable indemnity to repay the increased portion of the royalty with interest if the price increases were not approved.
On termination of the suspension periods Phillips resumed payments of royalties based on the increased prices to all of its royalty and overriding royalty owners to whom it accounted. Phillips also paid the royalty and overriding royalty owners the increased royalties due them which had been suspended under the three FPC opinions. Phillips neither paid nor offered to pay interest on the royalties which had been suspended under the FPC orders.
The following chart indicates the number of leases located in Kansas and number of Kansas royalty owners, in relation to the total number of leases and royalty owners, affected by the three FPC opinions:
The largest number of leases affected under all three opinions are located in Texas and Oklahoma. Royalty owners who were paid suspense royalties under the FPC opinions are domiciled in the 50 states, the District of Columbia, the Virgin Islands, and several foreign countries. Further facts will be developed as necessary to discuss the issues raised on appeal.
Phillips first contends the trial court erred in certifying a nationwide class because (1) the court’s exercise of jurisdiction over nonresident plaintiffs is not in accord with recent decisions of the United States Supreme Court and is prohibited by the due process clause, and (2) sufficient affiliating circumstances do not exist between the plaintiff class and forum to satisfy the requirement set forth in Shutts I that the forum have a legitimate interest in adjudicating the common claims of the plaintiff class. Following a hearing on the motion to certify the class the trial court determined, in pertinent part:
“2. The claims of plaintiffs are typical of the claims of all the members of the class except that each owner may be entitled to a different amount of interest and the interest to each owner, if allowed, would be too small to enable each to file a separate action.
“3. The only questions of law and fact in this case are common to the entire proposed class, in that the sole issue appears to be whether defendant is liable for interest on the money received by it from purchasers of gas pursuant to opinions No. 699, 749 and 770 of the Federal Power Commission and withheld by defendant for a period from December 30, 1975, to July 1, 1980.
“4. This action should be certified as a class action and the plaintiff class is defined as follows:
‘All royalty owners and overriding royalty owners to whom Phillips Petroleum Company made suspense royalty payments between December 30, 1975, and July 1, 1980, relating to Federal Power Commissions Opinions 699, 749 and 770 (which includes 699H, 749C and 770A).’
“5. Notice of the pendency of this action, its nature and effects of any judgment shall be given to all members of the class. . . . The defendant shall provide to the plaintiffs a list of all members of the class and their mailing addresses as shown by defendant’s records.”
A petition for writ of mandamus to direct the district judge to decertify the class as to all unnamed nonresident plaintiff class members was denied by this court in Phillips Petroleum Co. v. Duckworth, Case No. 54,608, June 28, 1982. A petition for certiorari from the denial of mandamus was denied by the United States Supreme Court, _ U.S. _, 74 L.Ed.2d 951, 103 S.Ct. 725 (1983).
In Shutts I this court extensively discussed the issue of whether a Kansas court may assert jurisdiction in a plaintiff class action over nonresident plaintiff class members who have no “minimum contacts” with the State. The class action filed in Shutts I sought to recover interest on suspense royalties attributable to gas produced from leases in the three-state Hugoton-Anadarko area. The plaintiff, a Kansas resident, was the repre sentative of a class of6,400 gas royalty owners, only 218 of which were residents of Kansas. While the record did not reflect the number in the plaintiff class residing in other states which held gas leases covering land in Kansas, the largest physical portion of the Hugoton-Anadarko area was situated in Kansas. 222 Kan. at 537.
In Shutts I the court rejected Phillips’ contention that the trial court did not have jurisdiction over in personam claims of unnamed nonresident class plaintiffs having no contact with Kansas. In so doing the court first examined the “minimum contacts” requirement established in Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945), and its progeny, for exercising in personam jurisdiction by a state over a nonresident defendant. The court held the “minimum contacts” test is inapplicable to nonresident plaintiffs in a class action, reasoning:
“Whether all nonresident plaintiffs in a class action are required to have ‘minimum contacts’ with the forum is a different matter. Because a class action must necessarily proceed in the absence of almost every class member, we hold the residential makeup of the class membership is not controlling. (Note, Consumer Class Actions with a Multistate Class: A Problem of Jurisdiction, [25 Hastings L. J. 1411] 1432 [1974].) What is important is that the nonresident plaintiffs be given notice and an opportunity to be heard and that their rights be justly protected by adequate representation. These are the essential requirements of due process, and they must be satisfied in any class action by every court, state or federal, regardless of the residence of the absent class members. Therefore, while the essential element necessary to establish jurisdiction over nonresident defendants is some ‘minimum contacts’ between the defendant and the forum state, the element necessary to the exercise of jurisdiction over nonresident plaintiff class members is procedural due process.” (Emphasis in original.) 222 Kan. at 542-43.
The court discussed the restrictions on access to the federal courts in class action suits, 222 Kan. at 544-45, and cited numerous cases and other authorities which support the view that a state court has the power to bind a nonresident plaintiff class member. 222 Kan. at 543,547-49. In addition, the court found the case to be “closely analogous” to cases recognizing a class action may be binding on nonresident plaintiffs when a “common fund” is involved and where due process requirements are met. 222 Kan. at 552. In Shutts I, as here, Phillips commingled the suspense royalties with its other funds which it used to fulfill all its business obligations, rather than maintaining a separate fund.
Phillips first contends the holding in Shutts I, that a state court can exercise jurisdiction over unnamed nonresident class plaintiffs where procedural due process is satisfied, is not in accord with two recent decisions of the United States Supreme Court and should therefore be overruled. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 62 L.Ed.2d 490, 100 S.Ct. 559 (1980); Rush v. Savchuk, 444 U.S. 320, 327, 62 L.Ed.2d 516, 100 S.Ct. 571 (1980). Woodson involved the exercise of in personam jurisdiction by a state court over a nonresident defendant in a products liability action whereas Rush involved the exercise of quasi in rem jurisdiction over a nonresident defendant in a tort action. Both cases merely reiterate the due process considerations and minimum contacts test set forth in Internat. Shoe Co. v. Washington, 326 U.S. at 316, and subsequent cases.
As was the case in Shutts I, these cases deal with nonresident defendants, not nonresident plaintiffs. These cases rely entirely upon discussions of due process contained in Internat. Shoe; Hanson v. Denckla, 357 U.S. 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228 (1958); and Shaffer v. Heitner, 433 U.S. 186, 53 L.Ed.2d 683, 97 S.Ct. 2569 (1977), all of which were fully reviewed in Shutts I. 222 Kan. at 541-42. No new concepts of due process are presented in Woodson or Rush which were not considered in Shutts I and which would warrant a reversal or modification of the opinion in that case.
The decision of this court in Shutts I has been widely cited by other courts in recognizing that where procedural due process guarantees of notice and adequate representation are present state courts are empowered to entertain multistate plaintiff class actions and to issue judgments binding on nonresident class members. See Miner v. Gillette Co., 87 Ill. 2d 7, 12-13, 428 N.E.2d 478 (1981); In re No. Dist. of Cal. “Dalkon Shield” IUD Products, 526 F. Supp. 887, 906, n. 79 (N.D. Calif. 1981), vacated and remanded 693 F.2d 847 (1982); Schlosser v. Allis-Chalmers Corp., 86 Wis. 2d 226, 241-42, 271 N.W.2d 879 (1978); Katz v. NVF Co., 119 Misc. 2d 48, 51, 462 N.Y.S. 2d 975 (1983). See also Geller v. Tabas, 462 A.2d 1078, 1083 (Del. 1983). Most authorities are in apparent agreement that due to the representative character of plaintiff and defendant class actions, procedural due process standards govern the power of state courts to bind absent class members. See Restatement (Second) of Judgments § 41 (1982); 3B Moore’s Federal Practice ¶ 23.11[5], p. 23-2893 (1983); Newberg on Class Actions § 1206 et seq. (1980 Supp.). In Newberg on Class Actions § 1206a, the author comments:
“Under settled principles of due process, state courts have personal jurisdiction over defendants residing within the territorial limits of the state, and also over nonresident defendants but only when the defendant has some minimal connection to the forum. Multistate class actions, however, fall in a different category from those to which these traditional notions of personal jurisdictional limits of state courts over defendants apply. Tests of territorial jurisdictional limits or minimum contacts with the forum are inapplicable and need not be satisfied in order for a state court to issue a judgment, e.g. in a plaintiff s class action, which is binding on nonresident members of the class.”
Phillips argues the decision in Shutts I “ignores the balance between the courts of coequal sovereign states inherent in the federal constitution and recognized by the United States Supreme Court.” The appellant refers to the language in Woodson, 444 U.S. at 292, that the concept of minimum contacts “acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” One commentator agrees that the issue of jurisdiction asserted by state courts in multistate plaintiff class actions must be viewed in the context of our federal system. See Note, Multistate Plaintiff Class Actions: Jurisdiction and Certification, 92 Har. L. Rev. 718, 729, 733 (1979). However, as we noted in Shutts I, recent United States Supreme Court cases restricting access to the federal courts in class action suits have made it necessary for state courts to hear nationwide class actions:
“Recently the United States Supreme Court has required plaintiffs to assume the cost of notice in common-question class actions. (Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L.Ed.2d 732, 94 S.Ct. 2140.) The United States Supreme Court has also refused to aggregate class action claims to meet the $10,000 federal jurisdictional requirements. (Zahn v. International Paper Co., 414 U.S. 291, 38 L.Ed.2d 511, 94 S.Ct. 505; and Snyder v. Harris, 394 U.S. 332, 22 L.Ed.2d 319, 89 S.Ct. 1053, reh. denied 394 U.S. 1025, 23 L.Ed.2d 50, 89 S.Ct. 1622.) While the results are supported by the fear of overloading the federal judicial system and the desire not to judicially expand the constitutionally established jurisdictional limits, these recent United States Supreme Court cases have clearly restricted access to federal courts. This suit, for example, could not be brought in a federal court. Furthermore, the FPC does not have jurisdiction over the matter. If the state courts will not hear the matter, who will grant relief?
“If state courts cannot maintain class action suits with nonresident plaintiffs, can the ‘small man’ find legal redress in our modern society which increasingly exposes people to group injuries for which they are individually unable to get adequate legal redress, either because they do not know enough or because such redress is disproportionately expensive? (See A. Homburger, State Class Actions and the Federal Rule, 71 Colum. L. Rev. 609, 641-643 [1971].)
“The appellant argues this action should be brought in several different state courts. This risks inconsistent adjudications for a class which is otherwise treated alike. Furthermore, the statute of limitations has run in Oklahoma and Texas. The United States Supreme Court has held the commencement of a class action suit tolls the applicable statute of limitations as to all members of the class. (American Pipe & Construction Co. v. Utah, 414 U.S. 538, 38 L.Ed.2d 713, 94 S.Ct. 756, reh. denied 415 U.S. 952, 39 L.Ed.2d 568, 94 S.Ct. 1477; and Eisen v. Carlisle & Jacquelin, supra.) However, if in this action Kansas is without jurisdiction over class plaintiffs in other states, this action would not toll the statute of limitations in those states.” 222 Kan. at 544-45.
See also Newberg on Class Actions § 1206c.
These comments are equally applicable to the instant lawsuit. Phillips argues this action should be brought in several different state courts. This is merely an effort to “divide and conquer” as a strategy to avoid liability to individual royalty owners. If state courts cannot entertain class action suits involving nonresident plaintiffs, the effectiveness of the class action machinery is destroyed. Furthermore, the statute of limitations has run in all other states where leases involved in this lawsuit are located. If the in personam claims of nonresident plaintiff class members are dismissed from this action, those persons would be barred from recovering on their claims elsewhere.
This decision does not usurp the authority of other states where leases involved in this lawsuit are located to regulate transactions within their borders as Phillips argues. To our knowledge, no claims for interest on suspense royalties withheld by Phillips under the FPC rulings involved here have been asserted in any other forums on behalf of either individual royalty owners or as a plaintiff class of royalty owners. In New-berg on Class Actions, § 1206d, the author discusses the use of statewide class actions in several states as an alternative to a nationwide class:
“Several statewide class actions, by definition, create a multiplicity of actions where formerly there was one. The waste of judicial resources in these circumstances is obvious, even assuming the doubtful proposition that plaintiffs and lawyers to represent them will be found who will initiate these state class actions in all affected states before the statute of limitations period has expired, and that all states with these suits have receptive class rules and will certify appropriate classes. The risk of inconsistent adjudications for a class which otherwise is treated alike, swells with each new statewide class commenced. State courts which have certified multistate classes have generally recognized the unsuitability of requiring a class action to be brought in several different state courts.
“Finally, exclusion of non-residents from the class solely on the ground of their non-residency may be an unconstitutional discrimination against non-residents with respect to access to this state’s courts', in violation of the Privileges & Immunities Clause of the United States Constitution. Each state court system, while possessing its own jurisdiction, is nevertheless part of a larger network of courts of the several states.”
See also 3B Moore’s Federal Practice ¶ 23.35.
Phillips argues that jurisdiction over the nonresident plaintiffs cannot be based on their receiving notice of a class action and failure to opt out of the action, because a state cannot compel a nonresident to take affirmative action to avoid its jurisdiction. This same “bootstrap” argument was rejected by the Court in Shutts I:
“Phillips argues our notice statute which allows a party to ‘opt-out’ of a class action suit cannot be used to ‘bootstrap’ jurisdiction of the court. Suffice it to say the federal rules and our rule regarding class actions are the result of a conscious choice to decide between provisions allowing parties to ‘opt-out’ or ‘opt-in.’ A determination was made to follow the ‘opt-out’ procedure to bind the greatest number of people. (See Proposed Rules of Civil Procedure, 39 F.R.D. 69, 105 [1966]; Cohn, The New Federal Rules of Civil Procedure, 54 Geo. L.J. 1204, 1226 [1966]; and Staff Studies Prepared for the National Institute for Consumer Justice on Consumer Class Action, pp. 138, 149 [1972].)
“Phillips argues our class action statute does not give the putative class member an absolute right to ‘opt-out’ as does Federal Rule No. 23(c)(2)(A). K.S.A. 60-223(c)(2) provides in pertinent part:
“ ‘. . . [T]he court shall exclude those members who, by date to be specified, request exclusion, unless the court finds that their inclusion is essential to the fair and efficient adjudication of the controversy and states its reasons therefor. . . .’ (Emphasis added.)
“Phillips argues by removing the choice of the putative class member to ‘opt-out’ of the class, it was the intent of the rule to apply to persons over whom the court already had jurisdiction. We do not think such a convoluted conclusion logically follows. The language simply gives the court the power to deny exclusion to class members, be they residents or nonresidents of Kansas, whose inclusion is essential to the fair and efficient adjudication of the controversy. However, we need not examine this section in great detail. (See Staff Studies Prepared for the National Institute for Consumer Justice on Consumer Class Action, supra at 145-146.).” 222 Kan. at 555.
We must next determine whether the procedural due process guarantees of reasonable notice and adequate representation were met. Phillips maintained records in their computer system of the names and addresses of all royalty owners affected by FPC Opinions Nos. 699, 749 and 770, and the amount of additional royalties paid to each. Pressure-sensitive mailing labels provided by Phillips, listing the known names and addresses of the approximately 33,000 royalty owners, were used by the plaintiffs to send notice of the class action to the potential class members by first class mail. The notices contained a request for exclusion which could be used by the royalty owners to opt out of the class. No notice by publication was used. Those royalty owners who opted out of the clas s and to whom notice could not be delivered were excluded from the class. Therefore, all royalty owners included in the class received notice and chose to remain in the class. Reasonable notice was given which fully complied with K.S.A. 60-223 and Fed. R. Civ. Proc. 23. The notice satisfied jurisdictional and constitutional due process requirements.
In examining whether adequate representation was accorded the absent resident and nonresident plaintiffs by the named representatives, we are mindful of the following discussion in Shutts I:
“Where inadequate representation is established, courts have denied res judicata effect to class action judgments. (See Research Corp. v. Pfister Associated Growers, Inc., 301 F. Supp. 497 [N.D. Ill. 1969]; and Gonzales v. Cassidy, 474 F.2d 67 [5th Cir. 1973].)
“The class action is premised on the theory that members of the class who are not before the court can justly be bound because the self-interest of their representative coincides with the interest of the members of the class and will assure adequate litigation of the common issues. Where the interests of absent class members have not been adequately represented, binding them by the class judgment would seem to offend the requirements of due process. (Hansberry v. Lee, [311 U.S. 32, 85 L.Ed. 22, 61 S.Ct. 115 (1940)].) Notice to absent members of the class in this regard is particularly important, for it is the greatest single safeguard against inadequate representation. (Mullane v. Central Hanover Tr. Co., [339 U.S. 306, 314, 94 L.Ed. 865, 70 S.Ct. 652 (1950)].)” 222 Kan. at 556.
In 7 Wright & Miller, Federal Practice and Procedure: Civil § 1765, p. 618 (1972), the author states:
“In most contexts, notice of the action is the touchstone that satisfies due process; the notice must be sufficient to give the party an opportunity to appear and join in the lawsuit or to challenge the claims of representation .... Thus a number of courts have held that the crucial determinant of due process is not notice but whether the putative class plaintiff or plaintiffs will fairly and adequately protect the interests of those whom they claim to represent.”
What constitutes adequate representation is a question of fact to be determined by the trial court based upon the circumstances of each case. The decision should not be disturbed on appeal absent a showing of an abuse of discretion. 7 Wright & Miller, Federal Practice & Procedure: Civil § 1765; 3B Moore’s Federal Practice ¶ 23.07[1], Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d 532, 535, 571 P.2d 345, rev. denied 222 Kan. 749 (1977). Moreover, the law does not require that a named plaintiff be the perfect class member or even the best available. In determining the adequacy of the representative the trial court should consider: (1) whether there is adequate competent counsel; (2) whether the litigants are involved in a collusive suit; (3) whether the interests of the named parties are conflicting with or are antagonistic in any way to the interests of the other members of the class; (4) whether the named representatives’ interests are coextensive with the interests of the other members of the class; (5) the quality of the named representatives, not the quantity; and (6) the extent of the named representatives’ interests in the suit’s outcome. See 7 Wright & Miller, Federal Practice & Procedure: Civil §§ 1765-1769; 3B Moore’s Federal Practice, ¶¶ 23.07[l]-23.07[4]; Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d at 535; Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562-63 (2d Cir. 1968); Miner v. Gillette Co., 87 Ill. 2d at 14.
Considering these factors it is clear the class members were competently and adequately represented by the named representatives and their attorneys. The same attorney who was recognized in Shutts I as having done a “superior job in bringing this action and in arguing and briefing the law on this appeal” (222 Kan. at 557) represents the named representatives in the instant action. Counsel is said to be qualified to act for the representatives of the class, and therefore the class itself, if he is experienced in the particular type of litigation before the court. 7 Wright & Miller, Federal Practice and Procedure: Civil § 1766, p. 634. There is nothing in the record to suggest the class is not being competently represented by its counsel in this action, nor that the parties are involved in a collusive suit.
The named representatives and class members have identical interests in the lawsuit. Before the named representatives’ status can be defeated the defendant must show a conflict exists between the representatives and class members which goes to the very subject matter of the litigation. Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d at 536, and cases cited therein. Recovery for interest on the suspense royalties, which both the named representatives and the class members seek, is the heart of this action. No conflicting or antagonistic interests exist between the representatives and class members.
The coextensiveness factor requires only that the representatives and class members “share common objectives and legal or factual positions.” 7 Wright & Miller, Federal Practice and Procedure: Civil § 1769, p. 655; Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d at 536. The fact that a defense may be asserted against the named representatives, as well as some other class members, but not the class as a whole, does not destroy the representatives’ status. Here, a coextensiveness of interests exists between the representatives and class members to recover interest which is due them on suspense royalties withheld by Phillips.
The various authorities agree that whether the class members are adequately represented by the named plaintiffs depends on the quality of the representation, rather than the number of representative parties as compared with the total membership of the class. 7 Wright & Miller, Federal Practice & Procedure: Civil § 1766; 3B Moore’s Federal Practice ¶ 23.07[4]; Eisen v. Carlisle & Jacquelin, 391 F.2d at 562-63. The use of a percentage test to determine whether absent parties will be fairly represented often would work to defeat the purpose of the class action device: to enable litigants with small claims to vindicate their rights. 7 Wright & Miller, Federal Practice & Procedure: Civil § 1766; Eisen v. Carlisle & Jacquelin, 391 F.2d at 563. Similarly, the size of the representatives’ personal claims should not be dispositive of the question whether the class is adequately represented, since requiring the class representatives to have a large interest in the dispute would thwart one of the basic purposes of such action. 7 Wright & Miller, Federal Practice & Procedure: Civil § 1767; 3B Moore’s Federal Practice ¶ 23.07[4]. The quality of representation embraces both the competence of the legal counsel of the representatives and the stature and interest of the named parties themselves. Generally the representatives must be of such a character as to assure the vigorous prosecution or defense of the action so that the members’ rights are certain to be protected. 7 Wright & Miller, Federal Practice & Procedure: Civil § 1766.
It is true the individual interests of the three named representatives are small when compared with the claims of the class as a whole. However, the representatives have sufficiently demonstrated a willingness to pursue this action to assure the class members’ rights will be protected. As the named representative in Shutts I, Irl Shutts has more than shown his ability to adequately represent the class as a whole and prosecute the action through the entire judicial process to ensure the class members’ claims are vindicated. There is nothing to indicate this action would not be pursued as vigorously as the action involved in Shutts I.
Based on the foregoing discussions, we find the procedural due process guarantees of reasonable notice and adequate representation were afforded the absent nonresident plaintiff class members.
Phillips contends the instant action should be dismissed because Kansas does not have a “legitimate interest” in entertaining this action. Phillips focuses on the following caveat expressed in Shutts I:
“[T]his opinion should not be read as an invitation to file nationwide class action suits in Kansas and overburden our court system. Concepts of manageability in terms of our Kansas class action statute, the nature of the controversy and the relief sought, the interest of Kansas in having the matter determined, and the class size and complexity will have to be applied.” 222 Kan. at 557.
Applying these factors, the court stated:
“Kansas has a legitimate interest in adjudicating the common issue herein because Kansas comprises the largest physical area included in the FPC designated Hugoton-Anadarko area where Phillips is doing business and producing gas which it sells in interstate commerce. All of the gas royalty owners in the Hugoton-Anadarko area have leases with Phillips and a common interest in the money collected by Phillips as ‘suspense royalties’ from the sale of gas in the designated area. . . . All of the gas royalty owners in the Hugoton-Anadarko area have a right in common with each other, in the equivalent of a common fund, to claim damages for commingling and use of the ‘suspense royalties’ by Phillips, payable as interest, and they have a contact with Kansas by reason of such common interest.” 222 Kan. at 357-58.
Phillips argues that because such a small percentage of the total number of leases involved are located in Kansas, and only a small percentage of the royalty owners affected are residents of Kansas, no “affiliating circumstances” exist which provide Kansas with a legitimate interest in entertaining this action. The factor emphasized in Shutts I, that Kansas comprised the largest portion of the areas affected by the FPC orders, is not present here.
Phillips likens the instant action to Feldman v. Bates Manufacturing Co., 143 N.J. Super. 84, 362 A.2d 1177 (1976), which the court in Shutts I found presented an “excellent example” of a “factual situation in which a trial judge applying our class action statute should deny certification of a class action, where nonresident plaintiff class members are involved.” 222 Kan. at 557. However, the present action, like Shutts I, is readily distinguishable from the situation presented in Feldman. In Feldman a resident of New Jersey brought an action against a Delaware corporation to compel the corporation to convert preferred stock to common stock. Addressing the issue of jurisdiction by the New Jersey court over the class action, the Feldman court indicated that without “affiliating circumstances” between the forum and litigation, such as a “common trust fund,” the judgment in a plaintiff class suit could not bind the nonresident class members. In dismissing the lawsuit for lack of jurisdiction, the court emphasized that the defendant was a Delaware corporation, the defendant was not authorized to do business and had no assets in New Jersey, no “common fund” existed within the state in which the nonresident plaintiff class members had an interest, the nonresident plaintiff class members had no other contacts with the forum, and New Jersey had no special interest in supervising the conduct of the defendant corporation’s business which would justify assuming jurisdiction. The fact that only 31 of the 295 class members were residents of New Jersey was not specified by the Feldman court as being a significant factor in the decision. The court did emphasize that Delaware, the defendant’s domiciliary state, was fully capable of providing a uniform determination of the issues involved. In. the case at bar, Phillips, an Oklahoma corporation, conducts business and holds assets in Kansas. The State of Kansas has an interest in supervising the conduct of Phillips’ business in this state, and therefore affiliating circumstances exist between the forum and the litigation not present in Feldman, which justifies the assertion of jurisdiction by this court over the instant action.
When considering the manageability of class actions filed in our state courts, courts should give equal consideration to all of the factors set forth in Shutts I. The interest of the forum in having the matter determined is of no greater significance than the other considerations. As in the prior Shutts case, the manageability of this class is demonstrated by the absence of basic issues of fact. The material facts have been stipulated by the parties and the names, addresses and suspense royalty amounts for each royalty owner are readily available in Phillips’ records. All royalty owners, regardless of residency, particular lease provisions or royalty agreements, were given the same notices by Phillips and were treated uniformly when suspense royalties and interest were withheld. Although a larger class is involved than in Shutts I, the legal issues presented are substantially the same. While these issues are complex they were thoroughly reviewed in Shutts I, thereby providing the trial court in the present case with substantial guidelines pertaining to the law applicable to these issues. If anything, this case is more manageable than Shutts I because of the legal principles enunciated in that opinion. The nature of the controversy and relief sought are not unfamiliar in this state. Our appellate courts have reviewed numerous cases in recent years involving interest on suspense royalties. See Nix v. Northern Natural Gas Producing Co., 222 Kan. 739, 567 P.2d 1322 (1977), cert. denied 434 U.S. 1067 (1978); Sterling v. The Superior Oil Co., 222 Kan. 737, 567 P.2d 1325 (1977), cert. denied 434 U.S. 1067 (1978); Maddox v. Gulf Oil Corporation, 222 Kan. 733, 567 P.2d 1326 (1977), cert. denied 434 U.S. 1065 (1978); Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 562 P.2d 1, cert. denied 434 U.S. 876 (1977); Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d 532; Gray v. Amoco Production Company, 1 Kan. App. 2d 338, 564 P.2d 579 (1977), modified 223 Kan. 441 (1978).
Finally, although only a few leases involved in the instant litigation are located in Kansas, hundreds of Kansas resident royalty owners were affected under the three FPC opinions. Many of these Kansas class plaintiffs received royalties from leases located in other states. While this may constitute only a small percentage of the total number of class members, this state has a significant interest in protecting the rights of these royalty owners both as individual residents of this state and as members of this particular class of plaintiffs. Oil and gas production is a significant industry in this state. Kansas has an interest in ensuring that out-of-state oil and gas companies which do business within this state do not conduct themselves unlawfully or violate the rights of resident royalty owners to whom the company is responsible. This action involves the equivalent of a “common fund” because of the suspense royalties commingled and used by Phillips during the pendency of the FPC orders. All of the gas royalty owners involved in this action have the common right to claim damages involving this “common fund.” Therefore, all of these royalty owners have a substantial contact with Kansas by reason of their interest in the common fund which is the subject matter of this lawsuit.
Phillips and amicus Sun Oil Company also, argue that the “commonality” requirement to K.S.A. 60-223(a) is not met in this case. Sun Oil Company points to the language in Shutts I that “[w]hen liability is to be determined according to varying and inconsistent state laws, the common question of law or fact prerequisite ofK.S.A. 60-223(c)(2) will not be fulfilled,” 222 Kan. at 557. The amicus brief contends “this action involves eleven states and a maze of different interest laws.”
As we have heretofore noted, common questions of fact and law exist in this case. All of the parties are similarly situated and no basic questions of fact exist, as the material facts have been stipulated by the parties. The subject matter of the litigation is the plaintiff class members’ claim for interest on the suspense royalties. The requirement of 60-223(c)(2) is couched in the disjunctive: common question of fact or law. It does not, therefore, require the presence of both a common question of fact and a common question of law. See Miner v. Gillette Co., 87 Ill. 2d at 17; 3B Moore’s Federal Practice ¶ 23.06-1; 7 Wright & Miller, Federal Practice & Procedure: Civil § 1763. It has further been recognized that where common questions of fact predominate and conflicting laws apply, the plaintiff class members may be divided into subclasses to which the appropriate laws may be applied. Miner v. Gillette Co., 87 Ill. 2d at 17; 3B Moore’s Federal Practice ¶ 23.45[2]; Newberg on Class Actions § 1206h.
Phillips next contends it is not liable for interest on suspense royalties attributable to gas used by Phillips rather than sold to a pipeline company. If the increased rates were disapproved by the FPC, Phillips would not be required to make refunds to purchasers on gas used rather than sold, because no increased rate was actually collected on such gas. Phillips argues, therefore, additional royalties attributable to gas it consumed did not belong to royalty owners until the increased rates were approved by the FPC. Phillips maintains this case is distinguishable from Shutts I for this reason and therefore it does not owe interest on additional royalties for gas it used prior to the time the rate was approved.
Relying on Lightcap v. Mobil Oil Corporation, 221 Kan. 448, Syl. ¶ 12, the court in Shutts I awarded prejudgment interest to royalty owners whose suspense royalties had been retained and used by the defendant, Phillips Petroleum Company, during the pendency of the FPC rate approval process, based upon the principle that the doctrine of unjust enrichment prevents one from profiting or enriching himself at the expense of another contrary to equity. The court held:
“Where a party retains and makes actual use of money belonging to another, equitable principles require that it pay interest on the money so retained and used.”
“In an action by royalty owners against their producer for interest on royalties held in ‘suspense,’ pending determination of lawful rates by the Federal Power Commission upon application of the producer for increased rates, it is held that interest on suspended royalties may be recovered for the period of time such royalties remained in the control of, and were available for use by, the gas producer during the pendency of FPC proceedings and related litigation regarding the determination of applicable lawful rates for gas sales, and litigation regarding the determination of issues involved in this appeal, all as more particularly set forth in the opinion.” 222 Kan. 527, Syl. ¶¶ 20, 21.
As set forth more fully in the opinion, the court reasoned:
“In the case at bar, beginning on June 1, 1961, Phillips withheld the share of the class members of the increased gas prices subject to refund. Thereafter, while the FPC slowly ground out FPC Opinion No. 586, Phillips deposited the increased rate monies in its general accounts and commingled them with other funds without giving further notice to the royalty owners. What is significant is these gas royalty suspense monies never did or could belong to Phillips. If the FPC disapproved the proposed increased rates the pipeline companies (gas purchasers of Phillips) would receive this suspense money and the interest which Phillips had agreed to pay by its corporate undertaking. If the FPC approved the proposed increase rate, the ‘suspense royalties’ would go to the gas royalty owners.
“[W]e do not believe that Phillips may enrich itself in the absence of any contractual sanction or seize upon the procedural complexities of the FPC to avoid responsibility for an appropriate measure of damages, expressed in terms of interest. . . .
“. . . Phillips expressly contracted to pay a percentage of the price received for the sale of gas on which month-by-month payments to the royalty owner wei'e to be based. Although the money received by Phillips for the sale of gas in excess of the established rates pending FPC determination was subject to possible refund, none of the excess was contractually excluded from the price received by Phillips and on which payment to the royalty owner was contractually based. There was no rule or regulation which prohibited Phillips from' including the excess in the amount on which calculation of payment to the royalty owner on a month-to-month basis was made. (Stahl Petroleum Co. v. Phillips Petroleum Co., [550 S.W.2d 360 (Tex. Civ. App. 1977)].) But if Phillips chose to withhold payments of contractually owing ‘suspense royalties’ pending FPC approval, as ■authorized by prior federal case law, that did not relieve Phillips of its contractual obligation to pay the price received with interest for the period of time the suspense money was held and used by Phillips.” (Emphasis in original.) 222 Kan. 559-62.
In its discussion the court pointed out that Phillips made substantial profit from the use of the suspense money during the period in question.
In the present case, as in Shutts I, Phillips filed a corporate agreement and undertaking with the FPC, pursuant to 18 C.F.R. § 154.102(c)(2) (1983), to refund, to Phillips’ purchasers of gas, with interest, the portion of the increased rates not approved by the FPC. The rate of interest applicable under the corporate undertaking in the event of a refund is seven percent (7%) per annum prior to October 10, 1974, nine percent (9%) per annum thereafter until September 30,1979, and thereafter at the average prime rate, compounded quarterly, as provided by 18 C.F.R. 154.67 (1983).
The trial court made the following ruling on this issue:
“Also, Phillips uses, in some instances, substantial portions of the gas produced in its own operations, and therefore, does not sell to a pipeline company.
“Phillips asserts that as a result of this, the pay adjustments do not necessarily belong to somebody else, but either belong to Phillips as a consumer, in the case of disapproval of the anticipated rate raises, or if approved, to the royalty owners.
“The difficulty with Phillips’ position is that they assume, with their contractual or lessee obligations, that by using the gas themselves, they can avoid the obligation imposed under the original Shutts case.
“The court finds no basis to distinguish their obligations when they are their own consumer as a lessee, than when they are, as lessees in good faith, marketing the gas to pipelines or other consumers.”
Phillips argues, in substance, that because it did not actually collect the increased price on the gas which it used rather than sold, it was not unjustly enriched by using money potentially belonging to the royalty owners. Phillips distinguishes this case from Shutts I because in that case the gas royalty suspense monies never did or could belong to Phillips, as they would either be passed along to the royalty owners if the increases were approved or refunded to the purchasers if disapproved. Here, if the increased rates were disapproved, Phillips would have no obligation to refund any amount to any purchaser on gas it used.
This argument is without merit for several reasons. Phillips acknowledges in its brief that its obligation to pay royalties under the various gas royalty agreements and casinghead gas contracts exists without regard to the actual disposition of the gas. The royalty is based on the volume of gas multiplied by the reference price which exists even if only one Mcf of gas is sold in the designated area. Royalties are paid on gas consumed by Phillips on the basis of prices received from the sale of other gas to a pipeline company. Therefore, whether the gas is consumed by Phillips or sold to a pipeline company, the amount of royalties paid to the royalty owners to whom Phillips accounts is based upon the actual price received by Phillips on the sale of gas as established by the FPC.
It is true that if the increased rates were not approved by the FPC Phillips would not be obligated to make any refunds to purchasers on the gas it used, since it had not sold such gas and did not receive an increased rate subject to refund. By consuming a portion of the gas received from its leasing operations, however, Phillips became, in effect, the purchaser of that gas. Where, as here, the increased rate is approved by the FPC, Phillips owed additional royalties to the royalty owners based on the increased rates for the period during which the royalties were suspended, whether the gas was purchased hy a pipeline company or consumed hy Phillips.
The retention of the suspense royalties by Phillips pending FPC determination was lawful. (See cases cited at 222 Kan. at 559.) Phillips, however, was not prohibited from paying royalties during the pendency of the FPC determination based on the increased rate on gas it either used or sold. These increased royalties would be subject to refund from future payment of royalties if ultimately the increase was not approved. Ry choosing to withhold payment Phillips was allowed the use of the suspense monies during the suspension period which rightfully belonged to the royalty owners, and the royalty owners, in turn, were deprived of receiving and using those monies during that time. The trial court expressly found Phillips commingled the suspense monies with the other monies under its control and benefitted from the use of such monies by either investing it or using it as needed for day-to-day business operations. If Phillips had paid the royalty owners the increased rate on a month-to-month basis during the rate approval process, equity dictates it would be entitled to a refund with interest if those rates were disapproved, whether the gas was sold by Phillips to a pipeline company or used by Phillips in its operations. See Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 484 (Tex. 1978). Conversely, Phillips was not entitled to enrich itself “in the absence of any contractual sanction or seize upon the procedural complexities of the FPC to avoid responsibility for an appropriate measure of damages, expressed in terms of interest.” 222 Kan. at 561.
Phillips contends that because it would not be obligated to refund increased prices to purchasers on gas it used where the increased rates were disapproved, this case falls within the rule of Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P.2d 773 (1954), which denied payment of interest on an amount due from a gas purchaser under an interim order of the Kansas Corporation Commission. In Shutts I this case was distinguished as follows:
“This answers Phillips’ contention that Columbian Fuel Corp. v. Panhandle Eastern Pipe Line Co., 176 Kan. 433, 271 P.2d 773, and other cases prevent the payment of interest on unliquidated sums. In Columbian Fuel an interim rate increase was approved by the Kansas Corporation Commission on natural gas sold to the buyer. The buyer was permitted to withhold the increase upon securing a bond. The seller brought suit seeking to collect interest on the amount withheld. This court noted the temporary nature of the Kansas Corporation Commission order and disallowed interest. The court held:
“ ‘In the absence of an agreement therefor interest may not be recovered on a claim as long as the validity of the claim is unadjudicated and the amount on which interest could be computed, if the claim be declared valid, remains wholly uncertain and unliquidated.’ (Syl. 5.)
“Here, of course, an agreement for the payment of interest on the part of Phillips is clearly present. Further, the suspended payments in Columbian Fuel did not necessarily belong to another. Here the ‘suspense royalties’ belong either to the royalty owners or the pipeline companies. Thus we reaffirm our decision in Lightcap, [221 Kan.] at 466, distinguishing Columbian Fuel.” 222 Kan. at 565.
The significant fact distinguishing Columbian Fuel from Shutts I is also present in this case: that an agreement for the payment of interest on the part of Phillips is clearly present. In addition, in Columbian Fuel essential undetermined factors existed, which is not true in the instant case. In that case the main undetermined issues were first, whether the buyer was liable for the cost of gathering and delivering the gas, and second, what was the cost, which involved the question of what factors to consider in determining such cost. Here there was no dispute that if the rate increases were approved by the FPC Phillips was liable to the royalty owners for the additional royalties based on the increased rate, and the amount due each royalty owner in that instance. As such it was not an unliquidated claim and interest could be easily computed.
Whether Phillips sells the gas at the increased price, actually receiving the increased amount, or uses it during the suspension period, it has the benefit of the lower price paid the royalty owners and is enriched by the use of the money until the increase is approved and the increased price is paid out as suspended royalties. Phillips is therefore obligated to pay interest on the additional royalties paid out whether the gas is sold or used.
Phillips next contends it is not liable for interest to some royalty owners under “without interest” and release clauses contained in casinghead gas contracts entered into with producers from which Phillips purchases gas. One provision permits Phillips to withhold, without interest, monies subject to FPC approval. It reads:
“The price per Mcf that Buyer [Phillips] receives under the ‘Sales Contract’ is, or may be, subject to regulation by the Federal Power Commission. The phrase ‘price per Mcf that Buyer receives,’ as used in this contract, shall mean only that portion of the price exclusive of any tax reimbursement then being collected by Buyer under the Sales Contract which is not subject to possible future refund by Buyer. If Buyer is later determined to be entitled to retain all or part of the amount collected subject to refund and is relieved from all further obligation to refund with respect thereto, Buyer shall retroactively recalculate the price payable hereunder and shall pay Seller the difference, without interest, between the amount previously paid Seller hereunder and the amount which would have been payable based on the price which Buyer is so permitted to retain.” (Emphasis added.)
The second clause purports to extinguish prior claims for money due for gas sold under prior contracts.
Under each of these contracts the producers warrant title to the gas purchased by Phillips. Under many of these contracts Phillips has assumed the producer’s responsibility to distribute the royalties from the purchase price of the gas to the royalty owners at the direction of the producer. This provision states:
“For the account and on behalf of Seller, Buyer agrees to disburse such royalties, overriding royalties, bonus payments and production payments, as Seller shall from time to time direct, accruing from the production and sale of gas hereunder. Buyer shall deduct such payments from the amounts due Seller hereunder. Seller agrees to indemnify and hold Buyer harmless from loss and damages resulting from payments made pursuant to Seller’s direction. Notwithstanding, Seller may elect initially to make all payments accruing from the production and sale of gas hereunder to the owners of all royalties, overriding royalties, bonus payments and production payments and to hold Buyer harmless therefrom in which event Buyer shall have no obligation with respect to disbursement of such payments as first above provided.”
The trial court made the following findings of fact and conclusions of law relevant to this issue:
“Gas royalty agreements, casinghead gas purchase contracts, renewal contracts and division orders which purport in any way to relieve Phillips from the payment of interest on suspense royalties are not valid as far as royalty owners are concerned or binding on this court. The purported contracts between gas producers and Phillips should not be binding on the outside royalty owners where Phillips had use of the outside royalty owners’ money and paid them no interest. (Shutts [222 Kan. at 530, Syl. ¶¶ 21, 22].) The outside royalty owners and the inside royalty owners are in the same class and Phillips owed them the same duties.
“As to the ‘without interest’ casinghead gas contracts, here again Phillips attempted by contract with the gas purchaser to eliminate its liability for interest. Such contracts are not binding on the outside gas royalty owners for the reasons above stated.
“Division orders, unitization agreements, gas royalty agreements, casinghead gas contracts, and any other type agreements which contain a ‘no interest clause’, whether as to ‘inside’ or ‘outside’ royalty owner are attempted unilateral agreements. They do not in any way alleviate the duty of Phillips to pay interest as above set forth. (Shutts [222 Kan. 527] and Maddox, [222 Kan. 733].)”
Phillips contends that based upon these contractual provisions no privity of contract exists between Phillips and the royalty owners and Phillips is responsible only for money owed to the producer (seller) of the gas. Therefore where the contracts exclude the payment of interest to the producer or extinguish a producer’s prior claims for money owed under prior contracts, no interest upon additional royalties is owed the royalty owners who are paid by Phillips on behalf of the purchasers.
These casinghead gas contract provisions are similar in many respects to division orders which attempt to unilaterally amend oil and gas leases to deprive the royalty owners of interest held in suspense. In Maddox v. The Gulf Oil Corporation, 222 Kan. 733, 567 P.2d 1326 (1977), cert. denied 434 U.S. 1065 (1978), the court defined a division order as “an instrument required by the purchaser of oil or gas in order that it may have a record showing to whom and in what proportions the purchase price is to be paid. Its execution is procured primarily to protect the purchaser in the matter of payment for the oil or gas, and may be considered a contract between the sellers on the one hand and the purchasers on the other.” 222 Kan. at 735. The court held:
“It was the duty of Gulf under the lease contracts it had with its royalty owners to market the gas at the best prices obtainable at the place where the gas was produced. The insertion in the division orders of matters contrary to the oil and gas leases, or contrary to the law, cannot be unilaterally imposed upon the lessor by the lessee or the purchaser. Here the unilateral attempt by Gulf in the division orders to amend the oil and gas leases, and thereby deprive the royalty owners of interest to which they were otherwise entitled, was without consideration. Therefore, the provisions in the division order regarding waiver of interest are null and void as determined by the trial court.” 222 Kan. at 735.
All of the royalty owners involved in this action are paid royalties directly by Phillips, whether under a regular gas royalty agreement between Phillips and the royalty owners or under a casinghead gas contract between Phillips and a producer where Phillips has agreed to assume the producer’s duty to pay royalties directly to the royalty owner. As pointed out by Phillips in its brief, the usual pricing provision under the casinghead gas contract is based on the weighted average price received by Phillips in a price reference area from the sale of gas to a pipeline company as established by the FPC. This is the same royalty which would be paid to royalty owners under typical gas royalty agreements between Phillips and the royalty owners.
These casinghead gas contracts are not signed by the royalty owners nor is there evidence of any consideration given for the withholding of additional royalties by Phillips without interest. These contracts are entered into between Phillips and producers of gas. Some of these contracts purport to waive any existing claim by the producers against Phillips and allow Phillips to withhold amounts owed the producers without interest. However, these provisions, entered into between Phillips and the producers, cannot unilaterally deprive royalty owners of interest which they would otherwise be entitled to receive under casinghead gas contracts in which the provisions do not appear. There is no evidence the producers or Phillips bargained with the royalty owners or gave any consideration for the relinquishment of the right to receive interest on additional royalties .withheld by Phillips. These royalty owners were treated by Phillips the same as royalty owners to whom they account under regular gas royalty agreements. In the notices of the suspended payments sent by Phillips to all royalty owners, no distinction was made between royalty owners who receive royalties from Phillips under gas royalty agreements and those who receive royalties under casinghead gas contracts. All suspense monies were withheld and paid out to all royalty owners on a uniform basis. All royalty owners were notified of the right to receive the additional royalties during the suspension period if an acceptable indemnity was filed with Phillips. Phillips cannot deprive the royalty owners of their right to interest by entering into contracts with producers of gas purporting to waive the producers right to receive interest. The provisions of the casing-head gas contracts cannot be read to waive the royalty owners’ right to receive interest which they otherwise are entitled to where the contracts are not signed by the royalty owners and there is no consideration.
The appellant next contends this court should look to the law of each state where leases involved in this action are located and determine, based on conflict of law principles, whether interest is recoverable on royalties attributable to those leases and the applicable rate of interest under the laws of the states where each lease is located. In Shutts I the interest laws of Kansas, Oklahoma and Texas were held not to apply because the statutes referred to situations where there was no agreement as to the applicable rates of interest. Phillips expressly contracted and agreed to pay a stated interest to gas purchasers on the refunded portions of the increased price, pursuant to the corporate undertaking filed with the FPC. This agreement was found to establish an appropriate measure of damages to be awarded the royalty owners, expressed in terms of interest, for the commingling and use of suspense monies by Phillips. 222 Kan. at 565.
The trial court held the rate of interest to be applied in the instant case, both prejudgment and postjudgment, was the stated rate under the corporate undertaking filed by Phillips with the FPC. The trial court did not determine whether any difference existed between the laws of Kansas and other states or whether another state’s law should be applied. Phillips contends the failure to examine the substantive law of other states regarding the award of interest and applicable interest rates violates its constitutional rights.
In Shutts I it was held the rate of interest set forth in the corporate undertaking established an appropriate measure of damages to compensate the plaintiffs for the unjust enrichment derived by Phillips from the use of the plaintiffs’ money. In the instant case Phillips has not satisfactorily established why this court should not apply the rule enunciated in Shutts I and instead look to the law of each state where leases are located to determine whether damages should be based upon a rate different from that set forth in the FPC undertaking. The general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred. 16 Am. Jur. 2d, Conflict of Laws § 5. Where a state court determines it has jurisdiction over a nationwide class action and procedural due process guarantees of notice and adequate representation are present, we believe the law of the forum should be applied unless compelling reasons exist for applying a different law. All of the plaintiff class members in this lawsuit were given actual notice that this action was being brought on their behalf in Kansas. The plaintiffs had the opportunity to opt out of the lawsuit, but chose to have their claims litigated in the Kansas courts. We have hereinbefore held the unnamed plaintiff class members were adequately represented in the lawsuit and that the forum has a significant legitimate interest in adjudicating the claims of the class members. The common fund nature of the lawsuit provides an excellent reason to apply a uniform measure of damages to the class as a whole, as each member of the class has been similarly deprived of the rightful use of his or her money. The plaintiff class members have indicated their desire to have this action determined under the laws of Kansas. Compelling reasons do not exist to require this court to look to other state laws to determine the rights of the parties involved in this lawsuit.
Phillips next contends, based upon the “United States Rule” followed in Shutts I, that only unpaid principal is owing the plaintiffs and therefore they have no basis upon which to seek recovery for “interest.” Addressing this issue, the trial court found:
“The position of Phillips that no interest is owed but only principal because the payments made must be first applied to interest under the U.S. Rule announced in Shutts, [222 Kan. 527], and therefore only principal is left owing, is without merit. The rules set forth in Shutts, [222 Kan. 527], allow a. recovery under equitable considerations. Whether the recovery is for interest or principal is merely a strained construction of words. Plaintiffs are entitled to money for Phillips’ use of their money, according to 18 CFR Section 154.67. The pleadings on file herein are conformed, if necessary, to meet the evidence presented.”
This action is one for damages, expressed in terms of interest, to compensate the plaintiffs for the use of their money by Phillips. No attempt was made by Phillips to compensate the royalty owners for the period of time they were deprived of the rightful use of their money while Phillips benefitted from its use. It is irrelevant whether the plaintiffs’ action to recover damages for unjust enrichment was expressed in terms of “damages,” “interest” or “principal.” Phillips was not misled as to the basis of the plaintiffs’ claim by their action framed as one seeking recovery of interest.
Finally, Phillips suggests this court should exercise its supervisory authority and establish guidelines for the award of attorney fees in nationwide class action suits brought in Kansas. Phillips asserts presently the practice in Kansas is for the attorneys representing the class to receive a designated percentage of the amount of the judgment recovered by the class. The amount of attorney fees awarded, however, does not increase the defendant’s liability and is taken from the judgment received by the plaintiff class. The district court ruled the amount of attorney fees would be determined following a hearing after the judgment became final. Regarding attorney fees the district court made the correct ruling.
The amount of attorney fees awarded should be within the sound discretion of the trial court based upon guidelines established by this court. In 3B Moore’s Federal Practice ¶ 23.91, the following criteria are suggested to be considered by the trial court in determining the size of attorney fees to be awarded in a class action:
“(1) the number of hours spent on the case by the various attorneys and the manner in which they were spent;
“(2) the reasonable hourly rate for each attorney;
“(3) the contingent nature of success;
“(4) the extent, if any, to which the quality of an attorney’s work mandates increasing or decreasing [the] amount to which the court has found the attorney reasonable entitled.”
Citing Lindy Bros. Bldrs., Inc. of Phila. v. American R. & S. San. Corp., 487 F.2d 161, 166-69 (3rd Cir. 1973). This list of considerations is not exclusive, however. Other considerations include the amount involved, as it determines the risk of the client and the commensurate responsibility of the attorney, and the result of the case, because that determines the real benefit to the client. Of major importance is the consideration of the benefit the lawsuit has produced. 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, p. 289-90; Oppenlander v. Standard Oil Company (Indiana), 64 F.R.D. 597 (D. Colo. 1974). In State of Illinois v. Harper & Row Publishers, Inc., 55 F.R.D. 221, 224 (N.D. Ill. 1972), the court recognized some attempt must be made by courts to suit the award of fees to the performance of the individual counsel in light of the time spent reaching a settlement, to prevent attorneys from taking advantage of class actions to merely obtain lucrative fees. See also 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, p. 292.
Even where there has been no objection to the amount of attorney fees requested, it is the responsibility of the court to determine the award to assure that the amount awarded is reasonable. The trial court must hold an evidentiary hearing so that it has before it sufficient information to make a fair and adequate fee award. 3B Moore’s Federal Practice ¶ 23.91, p. 23-568. Many recent cases have required attorneys to produce detailed time records indicating the time expended by each lawyer and the nature of work done by each to allow the court to determine, among other things, the necessity for and quality of the work done. See, e.g., In Re Equity Funding Corp. of America Securities, 438 F. Supp. 1303 (C.D. Cal. 1977); Green v. Wolf Corporation, 69 F.R.D. 568 (S.D. N.Y. 1976). This, however, is only to be used as a starting point to determine the appropriate fee. 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, p. 267-69 (1983 Supp.). Wright and Miller suggest, in addition, that the court should consider the contingent nature of succeeding in the action, which would be awarded in addition to the allowance for the quality of counsel’s work. The reasons for the contingency award are (1) the plaintiffs’ lawyer will not receive any compensation until the lawsuit is concluded and then only if he has been successful in securing a judgment for his clients, (2) unless both of these conditions are met the attorney will receive nothing for his efforts and will not be reimbursed for his expenses, and (3) lawyers who actively litigate class action cases largely depend on court-awarded fees for their economic survival. 7A Wright & Miller, Federal Practice and Procedure: Civil § 1803, pp. 274-75 (1983 Supp.).
Finally, where the established guidelines are followed by the district court, appellate review should be limited to abuse of discretion. Lindy Bros. Builders, Inc. v. Am. Radiator, Etc., 540 F.2d 102, 116 (3rd Cir. 1976).
On cross-appeal the appellees contend the postjudgment rate of interest which should be applied is the statutory postjudgment rate as set forth in K.S.A. 1983 Supp. 16-204, rather than the contractual rate pursuant to the FPC undertaking. This statute provides, in pertinent part:
“(c) Any judgment rendered by a court of this state on or after July 1,1982, shall bear interest on and after the day on which the judgment is rendered, at the rate of 15% per annum.”
In Shutts I the court determined that K.S.A. 16-204 (Weeks) required payment of eight percent interest on the judgment until paid. The contractual rate of interest contained in the corporate undertaking was applied only to the prejudgment interest owing from the date of the receipt of the royalties until the date of judgment. Under our holding in Shutts I and K.S.A. 1983 Supp. 16-204, Phillips is required to pay fifteen percent per annum simple interest on the total amount of the judgment from the date of the judgment until paid.
Accordingly, the interest payable to the royalty owners in this case is the rate of interest set forth in Phillips’ corporate undertaking with the FPC from the time Phillips first held royalties in suspense to the date of the judgment entered by the trial court and postjudgment simple interest at fifteen percent on the total amount of the judgment from the date of the judgment until paid.
The judgment of the lower court is affirmed as modified. | [
-80,
-20,
-15,
-68,
44,
96,
26,
-101,
123,
-89,
-89,
87,
45,
-62,
-127,
125,
-17,
61,
-12,
110,
50,
-77,
7,
-14,
87,
-77,
-7,
-59,
-79,
95,
-28,
-41,
72,
32,
-54,
81,
-90,
-30,
-59,
28,
-114,
7,
-111,
-31,
89,
-112,
54,
8,
82,
75,
53,
6,
115,
44,
24,
-22,
72,
61,
-3,
45,
-64,
-7,
-86,
23,
91,
20,
32,
36,
-126,
71,
-56,
14,
-104,
-80,
16,
-7,
59,
-90,
6,
-11,
41,
-7,
12,
46,
98,
83,
84,
-83,
-84,
120,
23,
-37,
-115,
-89,
-46,
88,
35,
1,
-66,
29,
120,
82,
79,
126,
-26,
5,
95,
-7,
7,
-118,
-34,
-93,
31,
-11,
-104,
18,
-29,
-121,
48,
116,
-49,
-78,
92,
7,
63,
23,
6,
-100
] |
The opinion of the court was delivered by
McFarland, J.:
Jeffrey L. Findlay appeals his juvenile offender adjudication under the Kansas Juvenile Offenders Code (K.S.A. 1983 Supp. 38-1601 et seq.).
For his first issue, appellant contends the district court erred in refusing to grant him a jury trial as a matter of constitutional right.
In support of his contentions herein appellant relies heavily on McKeiver v. Pennsylvania, 403 U.S. 528, 29 L.Ed.2d 647, 91 S.Ct. 1976 (1971). In McKeiver the United States Supreme Court held juveniles had no federal constitutional right, pursuant to the Sixth and Fourteenth Amendments, to trial by jury. The court, in so doing, stated:
“The imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the factfinding function, and would, contrarily, provide an attrition of the juvenile court’s assumed ability to function in a unique manner. It would not remedy the defects of the system. Meager as has been the hoped-for advance in the juvenile field, the alternative would be regressive, would lose what has been gained, and would tend once again to place the juvenile squarely in the routine of the criminal process.” 403 U.S. at 547.
Further:
“If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial.” 403 U.S. at 550.
Concluding:
“Finally, the arguments advanced by the juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate the juvenile proceeding — or at least the adjudicative phase of it — with the criminal trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile court judge’s possible awareness of the juvenile’s prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses in the persons of juvenile and probation officers and social workers — all to the effect that this will create the likelihood of pre-judgment — chooses to ignore, it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates.
“If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.” 403 U.S. at 550-51.
Appellant’s argument on this issue rests on the tenuous proposition that district court proceedings involving acts by juveniles that would constitute felonies if committed by adults are essentially criminal trials under Kansas law. This concept is in diametric conflict with the intent of the Kansas Juvenile Offenders Code as specifically expressed in K.S.A. 1983 Supp. 38-1601 which provides:
“K.S.A. 1982 Supp. 38-1601 through 38-1685 shall be known and may be cited as the Kansas juvenile offenders code and shall be liberally construed to the end that each juvenile coming within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the juvenile’s own home, as will best serve the juvenile’s rehabilitation and the protection of society. In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this code, be deemed or held to import a criminal act on the part of any juvenile; but all proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state.” (Emphasis supplied.)
We conclude there is no federal or state constitutional right to a trial by jury in proceedings under the Kansas Juvenile Offend ers Code (see Kan. Const. Bill of Rights, § 5). This result is consistent with earlier decisions of this court decided before the 1982 adoption of the Kansas Juvenile Offenders Code. See Hall v. Brown, 129 Kan. 859, 861-62, 284 Pac. 396 (1930); In re Turner, 94 Kan. 115, 121-22, 145 Pac. 871 (1915).
' For his second issue appellant contends the district court’s denial of his request for a jury trial constituted an abuse of discretion.
At the heart of this issue is K.S.A. 1983 Supp. 38-1656 which provides:
“In all cases involving offenses committed by a juvenile which, if done by an adult, would make the person liable to be arrested and prosecuted for the commission of a felony, the judge may order that the juvenile be afforded a trial by jury. Upon an adjudication, the court shall proceed with disposition.”
Appellant interprets this statute as investing in him the right to request a jury trial. He reasons the granting or denial of the request is, therefore, a matter of judicial discretion. The argument is then made the district court was required to state its reason for denying the request in order for appellate review to be had on whether or not the court abused its discretion. Finally, appellant requests this court to set standards to be applied in determining when a jury trial should be allowed. This entire rationale is specious.
K.S.A. 1983 Supp. 38-1656 does not grant to the respondent in the juvenile offender proceeding a right to request or demand a jury trial. Rather, the statute grants to the district court the option of having a jury serve as the finder of fact rather than the court. In exercising or declining to exercise the option, the district court is not required to make findings of fact or state its reasons therefor.
K.S.A. 1983 Supp. 38-1656 relative to optional jury trials is in sharp contrast to K.S.A. 1983 Supp. 38-1636 relative to authorization to prosecute a juvenile as an adult. The latter statute provides in part:
“(a) At any time after commencement of proceedings under this code against a respondent who was 16 or more years of age at the time of the offense alleged in the complaint and prior to entry of an adjudication or the beginning of an evidentiary hearing at which the court may enter adjudication as provided in K.S.A. 1982 Supp. 38-1655, the county or district attorney may file a' motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute.
“(c) Upon receiving a motion to authorize prosecution as an adult, the court shall set a time and place for hearing on the motion. 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. The motion shall be heard and determined prior to any further proceedings on the complaint.
“(d) If the respondent fails to appear for hearing on a motion to authorize prosecution as an adult after having been properly served with notice of the hearing, the court may hear and determine the motion in the absence of the respondent. If the court is unable to obtain service of process and give notice of the hearing, the court may hear and determine the motion in the absence of the respondent after having given notice of the hearing once a week for two consecutive weeks in a newspaper authorized to publish legal notices in the county where the hearing will be held.
“(e) In determining whether or not prosecution as an adult should be authorized, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution. The sufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue. Subject to the provisions of K.S.A. 1982 Supp. 38-1653, written reports and other materials relating to the respondent’s mental, physical, educational and social history may be considered by the court.
“(f) The court may authorize prosecution as an adult upon completion of the hearing if the court finds that the respondent was 16 or more years of age at the time of the alleged commission of the offense and that there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged. In that case, the court shall direct the respondent be prosecuted under the applicable criminal statute and that the proceedings filed under this code be dismissed.”
K.S.A. 1983 Supp. 38-1681 permits an appeal by the respondent from an order authorizing prosecution as an adult only after conviction unless the order attaches to future acts. K.S.A. 1983 Supp. 38-1682 permits the State to appeal from an order denying authorization to prosecute the respondent as an adult.
We conclude allowance of or failure to allow trial by jury in a juvenile offender proceeding pursuant to K.S.A. 1983 Supp. 38-1656: (1) is entirely at the district court’s option; (2) involves no rights of either the State or the respondent; and (3) is not subject to appellate review.
The final issue on appeal is whether there was sufficient evidence to support the district court’s finding the appellant had uttered a terroristic threat contrary to K.S.A. 21-3419.
K.S.A. 1983 Supp. 38-1654 imposes upon juvenile offender proceedings the same burden of proof as in criminal cases — proof beyond a reasonable doubt.
In State v. Pham, 234 Kan. 649, 675 P.2d 848 (1984), the applicable test on appellate review was stated as follows:
“In a criminal action where defendants contend the evidence at trial was insufficient to support their convictions, the standard of appellate review is: Does the evidence, when viewed in the light most favorable to the prosecution, convince the appellate court a rational factfinder could have found defendants guilty beyond a reasonable doubt? [Citations omitted.] Moreover, appellate courts look only to the evidence in favor of the verdict, they do not weigh the evidence; and if the essential elements of the charge are sustained by any competent evidence, the conviction stands. [Citations omitted.] A conviction of even the gravest offense may be sustained by circumstantial evidence.” 234 Kan. at 667-68. (Emphasis supplied.)
K.S.A. 21-3419 provides:
' “A terroristic threat is any threat to commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in wanton disregard of the risk of causing such terror or evacuation.”
In the instant action the State had to establish:
1. The respondent threatened to commit violence;
2. That such threat was communicated with the intent to terrorize Mr. Clarence Capper; and
3. That this act occurred on or about the fifteenth day of April, 1983, in Johnson County, Kansas.
See PIK Crim. 2d 56.23.
In applying the heretofore stated appropriate standard of review, we conclude the evidence amply supports the district court’s adjudication. Respondent believed a Mr. Clarence Cap-per owed him money. On April 15,1983, respondent telephoned Mr. Capper in Johnson County and demanded payment of the debt. The victim testified in part as follows:
“Q. What did Mr. Findlay say to you?
“A. Well, he said that I owed him some money and then he goes, ‘Well, you’re not paying me’ and he went off and threatened me.
“Q. Excuse me. When you say he ‘went off, what do you mean?
“A. All right. He threatened first to shoot me and then he — you know, after he found out that that would not work he said that he would get this 24-year-old on me and this 24-year-old was described as a biker and he said that he was coming over to kill me. He said ‘I’m going to come over and kill you’.”
For clarification, the individual referred to as the “biker” also talked to the victim in the same telephone call and threatened to kill the victim. This occurred after the respondent had talked to the victim. Respondent admitted a conversation occurred but denied uttering a threat.
The judgment is affirmed. | [
-16,
-22,
-3,
-66,
11,
96,
102,
92,
1,
-29,
38,
83,
47,
-53,
5,
123,
83,
111,
84,
121,
-60,
-78,
55,
-63,
-86,
-5,
-45,
-44,
-78,
-51,
-26,
126,
12,
-16,
-54,
117,
102,
-54,
-59,
-42,
-114,
-116,
56,
69,
-48,
-118,
36,
98,
122,
15,
49,
62,
-93,
41,
22,
-61,
-119,
40,
79,
-65,
-62,
-103,
-118,
-51,
76,
22,
-77,
34,
-102,
-58,
-8,
36,
92,
60,
8,
-24,
115,
-122,
-126,
-12,
105,
-103,
-84,
102,
98,
-127,
57,
-53,
-72,
-95,
62,
95,
-67,
-25,
-102,
88,
67,
32,
-73,
-3,
114,
52,
-114,
110,
-25,
68,
87,
108,
0,
-121,
30,
-125,
-49,
54,
-18,
-56,
-21,
-95,
16,
117,
-54,
-14,
70,
-58,
114,
-43,
-114,
-98
] |
The opinion of the court was delivered by
Miller, J.:
This is an appeal by the defendant, Bobby G. Harper, from his conviction of burglary, K.S.A. 21-3715, by jury trial in Sedgwick District Court. The Court of Appeals held that the evidence was sufficient to establish the first element of the offense, unauthorized entry into the school building, but that the evidence was insufficient to establish the second element: that the person or persons who entered the school did so with the intent to commit a theft. On this basis, the Court of Appeals reversed. State v. Harper, 9 Kan. App. 2d 349, 676 P.2d 774 (1984). We granted the State’s petition for review. K.S.A. 20-3018(h).
The Court of Appeals summarized the facts as follows:
“The State’s evidence showed that the Earhart Elementary School in. Wichita was broken into at 4:56 a.m. on September 9, 1982. Chris Wimberly, a security dispatcher monitoring an audio security system over telephone lines to the school district’s central service office, heard a loud crash at about that time. He called Wichita police and the school district’s security patrol, both of whom arrived at the school shortly after 5:00 a.m. In the meantime Wimberly heard footsteps in the halls and the sound of glass breaking close to the school office. He then heard ‘some shuffling in the office, possibly a desk drawer opening and closing and the exit and glass and the footsteps on the floor.’
“A few minutes later police observed someone running away from the school whom they were unable to apprehend. After hearing police radio transmissions describing the flight Wimberly heard footsteps which he could identify as coming from the school gymnasium, followed by the sound of someone hitting a panic bar on the gym’s exit doors. A few minutes later, at about 5:10 or 5:12, defendant was apprehended lying down near a gate to the schoolyard.
“Defendant at that time told the arresting officer that he hadn’t entered the school, knew who did, but declined to say who it was. At trial he testified that he had been drinking earlier; that a companion was driving his car when they ran out of gas across the street from the school; that he slept while the companion went for gas; that he awoke and had gotten out to find his missing companion when he heard glass breaking at the school; and that when he went to investigate the officers arrived. He hid because he didn’t want to get involved.
“Examination of the school showed that two outside windows had been broken, one to a classroom and one by throwing a rock that ended up in the teacher’s lounge. In addition, an inside window was broken by the door handle to the office. Nothing was missing from the school and nothing showed any sign of having been disturbed except the three broken windows. A screwdriver was found on the floor of the classroom with the broken window, positioned so that the door from the classroom to the hall would not close. The origin of the screwdriver does not appear.” 9 Kan. App. 2d at 349-50.
Other facts disclosed by the evidence, which we believe are important, are as follows. The rooms within the school are kept locked at night. The classroom with the broken window was some 500 to 1,000 feet from the secretary’s office. The broken classroom window was closed but unlocked. There was no evidence of any damage, destruction or vandalism within the school other than the three broken windowpanes. The interior window in the door to the secretary’s office was broken at the closest point to the door handle. The secretary’s office contained valuable personal property including a typewriter, calculator, mime ograph machine, adding machine, weather all-band radio, and another radio.
Chris Wimberly, the security dispatcher who was monitoring the school, testified that the listening devices were very sensitive and he could pickup very light breathing in the office areas. At four minutes before 5:00 o’clock in the morning he heard very loud, sharp, banging noises to the exterior walls or glass windows. He immediately alerted the police department and school security personnel. About a minute later, he heard footsteps inside the building and then he heard very loud breakage of glass very close to the office. He could hear distinct blows to the glass and to the door. He heard someone enter the office and walk on the broken glass. Then he just heard noises in the hallway until the police arrived at five minutes after 5:00 o’clock a.m. Next, he heard one of the officers report that someone was running away but was not “catchable.” And then about a minute later, an officer reported.that he heard noise in the bushes on the south drive and a spotlight revealed someone hiding there. The person who was hiding was the defendant; he was arrested.
At the time of his arrest, Harper told the officers that he and a friend were walking down the street on which the school was located and that his friend decided to break into the school. Harper said that he did not enter the school; he stayed outside and waited for the friend to leave. At trial, as the Court of Appeals noted, Harper testified that he was riding in Rodney Hiles’ car and that Hiles ran out of gas and pulled into a private driveway across from the school. Hiles took a can from the trunk and left to get some gas. Harper stayed and slept in the car. Later, he woke up, stepped outside the car, heard a noise like glass breaking coming from the school, and then walked across the street toward the school. Almost immediately he saw the police arriving, and he hid because he did not want to get involved.
The principal issue for us to determine is whether there was sufficient evidence to support the necessary finding of specific intent to commit a theft. Burglary is a specific intent crime. Our burglary statute, K.S.A. 21-3715, so far as we are here concerned, requires proof that the accused (1) knowingly and without authority entered into a building, (2) with intent to commit a theft therein. The first element of burglary is clearly established. As the Court of Appeals opinion states:
“From the State’s evidence the jury could reasonably have inferred that two persons entered the school, that one got away, and that defendant was the second person to leave. Or, it could have found that defendant was a lookout and thus an aider and abettor. Under either theory defendant would be guilty of the unauthorized entry.” 9 Kan. App. 2d at 350.
Commenting on the evidence — or lack of it — with reference to intent, the Court of Appeals said:
“In this case there was evidence from which the jury could readily have inferred that someone broke into the school, and also that that person was either defendant or an accomplice. The key question is, what evidence justified an inference that the intruder had an intent to steal when he broke in? We find nothing beyond the fact of the unlawful entry itself. . . .
“Burglary is a specific intent crime. State v. Farris, 218 Kan. 136, 140, 542 P.2d 725 (1975); State v. Miles, 213 Kan. 245, 515 P.2d 742 (1973). Standing alone, the mere fact of an unlawful entry into a building does not support an inference that the intruder entered with any particular intent. . . . [T]here must be some additional evidence from which . . . intent may reasonably be inferred. . . . Where nothing is in fact stolen . . . evidence of preparation to steal may be enough to support the desired inference. No such evidence is present here.
“A contrary rule would simply eliminate the specific intent required by the statute as an element of the crime. If unauthorized entry were enough, a defendant could be convicted of burglary for acts constituting no more than criminal trespass under K.S.A. 21-3721. That, as we see it, was the most the State’s evidence proved in this case.” (Emphasis in original.) 9 Kan. App. 2d at 351-52.
Assume that an accused, a lone backpacker in a rural area, ignores a prominently posted “No Trespassing” sign and steps inside the open door of an empty bam in order to gain shelter from a sudden downpour at midday. Such facts, standing alone, could not reasonably give rise to an inference that the trespasser entered with theft in mind. Assume, however, that the accused breaks the lock on a rear door and enters a pharmacy or a jewelry store at midnight, and shortly thereafter is found concealing himself inside the store. Is not an inference of intent to commit a theft logical?
The intent with which an entry is made is rarely susceptible of direct proof; it is usually inferred from the surrounding facts and circumstances. See 12A C.J.S., Burglary §§ 85 and 104; 13 Am. Jur. 2d, Burglary §§ 25 and 52; 3 Underhill’s Criminal Evidence § 717 (5th ed. 1957). The manner of the entry, the time of day, the character and contents of the building, the person’s actions after entry, the totality of the surrounding circumstances, and the intruder’s explanation, if he or she decides to give one, are all important in determining whether an inference arises that the intruder intended to commit a theft.
In 3 Wharton’s Criminal Law § 338 (14th ed. 1980), the author states:
“At common law, a defendant who breaks and enters into a dwelling house'must, at the time he does so, intend to commit a felony therein. It is not necessary that the felony intended be committed. Nor does it matter why the intended felony was not committed, as where the defendant’s presence was discovered, he was stopped by police officers, or he was otherwise unable to commit the felony.
“If no felony be committed, and no satisfactory explanation for the break and entry is apparent, the jury may infer that the defendant intended to commit larceny.” pp. 214-217.
Perhaps the leading Kansas case on intent, in connection with burglary, is State v. Gatewood, 169 Kan. 679, 221 P.2d 392 (1950). Syllabus ¶¶ 2, 3 and 4 read as follows:
“In a prosecution for burglary of a dwelling house of another in the nighttime the 'intent to commit some felony, or any larceny therein’ is a necessary element of burglary in the first degree under G.S. 1935, 21-513.” Syl. ¶ 2.
“Intent is a state of mind existing at the time an offense is committed and may be shown by acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof.” Syl. ¶ 3.
“In the absence of proof of other intent, or an explanation of an unlawful breaking and entry into the dwelling house of another at night, the inference is the intent of the intruder was to commit larceny rather than some other felony.” Syl. ¶ 4.
In the opinion, Justice Wedell, speaking for a unanimous court, said:
“Appellant next argues there was no evidence appellant broke into the dwelling ‘with intent to commit larceny.’ ... It may be conceded there was no direct proof of appellant’s intent. It is also true the statute makes ‘intent to commit some felony, or any larceny therein’ an element of the offense of burglary in the first degree.
“Intent is a state of mind existing at the time a person commits an offense. If intent must have definite and substantive proof it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct and inferences reasonably to be drawn therefrom. Frankness requires it be stated there is not complete unanimity of opinion among the courts relative to whether the intent to commit larceny, in connection with a burglary charge, must be affirmatively shown to exist as distinct from some other offense that might have been intended. In Simpson v. State of Florida, 81 Fla. 292, 87 S. 920, it was held such intent must be affirmatively shown by direct or circumstantial evidence. In State v. Riggs, 74 Minn. 460, 77 N.W. 302, relied on by appellant, a divided court held the evidence insufficient to disclose an intent to commit larceny. That decision is discussed in our own case of State v. Van Gilder, 140 Kan. 66, 33 P.2d 936. There was some positive evidence in the Minnesota case the defendant did not intend to steal but to buy liquor at the place he entered. In the Van Gilder case we held:
Tn a prosecution for burglary, where the breaking and entering was clearly established and not controverted, the intent to steal may be sufficiently established by inference fairly deducible from all the circumstances and need not be established by direct proof.’ (Syl. ¶ 1.)
“For purposes of accuracy it should be conceded there was some rather strong circumstantial evidence of intent to commit larceny in our Van Gilder case. In the opinion we cited State v. Woodruff, 208 Ia. 236, 225 N.W. 254. Numerous cases are cited in a well considered opinion in the Iowa case holding the clear weight of authority to be that an unexplained breaking and entering of a dwelling house in the nighttime is in itself sufficient to sustain a verdict that the breaking and entering was done with the intent to commit larceny rather than some other felony. The Iowa case contains quotations from some of the many cases so holding, which need not be repeated here. The fundamental theory upon which the inference of intent to commit larceny is based, absent evidence of other intent or an explanation for breaking and entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft. We are impressed with the soundness of the rule.
“Moreover in the instant case we cannot say there were no circumstances from which the jury reasonably might infer appellant intended to commit larceny. Appellant sought to make entry through various doors and windows. He used his flashlight on the screen porch. It is reasonable to infer he found nothing there he desired. He then flashed the light all over the adjoining kitchen. It reasonably may be inferred he was endeavoring to ascertain whether the kitchen, or any other portion of the dwelling he could see, contained something he desired. He may have seen something. Finding entrance into the kitchen impossible from the screen porch he made attempts to enter at otherplaces. We think it cannot be said the verdict must be set aside on the ground a prima facie case of intent to commit larceny was not established.” (Emphasis in original.) 169 Kan. at 683-85.
Other courts have inferred intent from the surrounding circumstances, where the entry was unexplained, even though the entry or attempted entry was into commercial buildings. For example, in Lisenko; Stepien v. State, 265 Ind. 488, 355 N.E.2d 841 (1976), the evidence disclosed that at about 4:00 o’clock in the morning a silent alarm was set off in a building occupied by the Indiana Carton Company, South Bend, Indiana. Police officers arrived at the scene six minutes after the alarm sounded. They discovered that a door had been pried open, and upon entering the building with a police dog, an officer found two suspects with their hands up stating that they “gave up.” Two pry bars were discovered on the floor two or three feet inside the door. On the element of intent, the court said:
“The Appellants’ sufficiency arguments assert that the evidence in this case failed to establish the second element, intent. We do not agree. The evidence at trial established that entry to the building in question was effected by prying open a locked steel door at about 4:00 a.m. No employees of the business were present in the building. The Appellants offered no explanation for their presence. In the absence of evidence that this forced entry was made with some lawful intent, we think that the intent to commit a felony may be reasonably inferred from the time, force, and manner in which the entry here was made. In addition, the Appellants’ statement to police that they ‘gave up’ evidenced a consciousness of guilt from which the jury could further infer a felonious purpose. An inference of guilt may be drawn therefrom the same as if the Appellants had fled.
“While the State must sustain its burden of proof on each element of an offense charged, some of these elements may be proven by circumstantial evidence and the logical inferences therefrom. Kondrup v. State, (1968) 250 Ind. 320, 235 N.E.2d 703. Because intent ‘is a mental state of the actor, the trier of fact must resort to reasonable inferences based upon examination of the surrounding circumstances to reasonably infer its existence.’ Farno v. State, (1974) 159 Ind. App. 627, 308 N.E.2d 724 at 725. As statéd in my dissenting opinion in Crawford v. State, (1968) 251 Ind. 437 at 446, 241 N.E.2d 795 at 800, not to permit such an inference under circumstances such as here:
‘. . . penalizes efficient methods of law enforcement, such as alarm systems. Police officers promptly alerted, must wait until the intruder has first seized property or committed a rape or some other felony before the intruder may be convicted of a felony. A home owner who finds an intruder in his home at night will be surprised to learn that such a law-breaker cannot be convicted of a felony until he has first seized property or raped somebody, even though he can make no logical explanation of why he is there and even though he may be hiding or attempting to flee.’
To the extent that Crawford v. State, supra, conflicts with the holding of this case, it is overruled.” 265 Ind. at 490-91.
In People v. Patterson, 1 Ill. App. 3d 724, 274 N.E.2d 218 (1971), the defendant appealed from his conviction of the burglary of a school building. Police officers were dispatched to the building at approximately 11:45 p.m., and observed four men run out the school door. Defendant was one of those leaving the building; he was arrested. Pry marks were found on the school door and a screwdriver was found in the hand of one of the fugitives. There was also evidence that desk drawers had been pulled out and their contents spilled out on the floor. Nothing was taken from the building. Upon appeal defendant challenged the sufficiency of the evidence to establish intent. The court said:
“The defendant also claims that there was insufficient evidence to show intent to commit a felony or theft. Circumstantial evidence may be sufficient to prove the existence of intent. (People v. Taylor, 410 Ill. 469, 102 N.E.2d 529.) Here again the evidence of the forcible entry, the late hour of the occurrence, the flight from the building, and the rifling of the desks within the building, even in view of the testimony that nothing was taken, is more than sufficient for the triers of fact to conclude that the entry was with the intent to commit a theft.” 1 111. App. 3d at 727.
Turning to the facts of the case now before us, a public school was entered at night, when it was closed and unoccupied. Entry was forced by breaking two windows. Except for the presence of the electronic listening devices, the entry would probably have gone undetected until the following day. Once the intruder or intruders were inside the building, a classroom door was propped open to prevent it from locking, thus leaving a clear escape path to the unlocked window. From the classroom where entry was made, the intruders made a “beeline” to the secretary’s office, where valuables were kept. A forcible entry through a locked inner door was effected, exposing the unprotected and readily removable items to the intruders. The door to the secretary’s office was damaged just enough to allow it to be opened. No rooms other than the two exterior rooms and the secretary’s room were disturbed. Police cars arrived with flashing red lights readily visible at night, and the intruder or intruders left abruptly. Under these circumstances, it is not surprising that nothing was taken.
Harper was found hiding in a field outside the school without much of an explanation for being there. On the night of his arrest, he told police a story quite different from the one he told in court; neither story did much to explain his presence or deny guilt. We hold that these facts give rise to an inference that the intruder or intruders entered the building with the intent to steal or commit theft therein. The jury’s verdict was rational and is supported by the evidence. Viewing the evidence, as we must, in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Burton, 235 Kan. 472, 681 P.2d 646 (1984); State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983); State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979).
As the Court of Appeals observed:
“From the State’s evidence the jury could reasonably have inferred that two persons entered the school, that one got away, and that defendant was the second person to leave. Or, it could have found that defendant was a lookout and thus an aider and abettor. Under either theory defendant would be guilty of the unauthorized entry.” 9 Kan. ’App. 2d at 350.
Likewise, the defendant either entered with intent to commit larceny or he aided and abetted one who did.
One other issue is raised in the brief. Defendant contends that the trial court erred in failing to instruct on criminal damage to property, which he contends is an included crime upon which the trial court was required to instruct. The difficulty with this argument is that the element of willfully injuring, damaging, mutilating, defacing, destroying, or substantially impairing the use of property is not an element of burglary. It is entirely possible to establish a burglary without proving damage, and the mere fact that there was damage to the building in this case does not make criminal damage to property a lesser included offense. We conclude that criminal damage to property is not a lesser included offense of burglary, and the trial court did not err in refusing to instruct on that offense.
The judgment of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
Holmes, J., not participating. | [
80,
-24,
-20,
62,
27,
-31,
106,
-66,
113,
-11,
96,
-45,
41,
81,
5,
121,
81,
47,
84,
97,
-38,
-73,
83,
-45,
-74,
-13,
-5,
-59,
-69,
94,
-20,
-2,
10,
112,
-126,
85,
38,
-54,
-27,
80,
-114,
6,
-85,
-46,
87,
64,
44,
42,
-68,
14,
49,
-98,
-13,
104,
-110,
-57,
73,
44,
91,
-83,
64,
-47,
-120,
13,
-5,
22,
-93,
-125,
-2,
69,
80,
44,
-100,
48,
0,
-24,
58,
-94,
-126,
-11,
109,
-117,
-116,
100,
98,
17,
56,
-49,
-92,
-119,
46,
102,
-83,
-89,
-108,
73,
97,
37,
-97,
-99,
113,
18,
6,
124,
-29,
68,
31,
108,
-91,
-33,
-12,
-111,
9,
32,
-112,
-70,
-21,
37,
50,
113,
-124,
-30,
94,
69,
114,
-97,
-114,
-108
] |
The opinion of the court was delivered by
Lockett, J.:
The Sedgwick County Register of Deeds required, as a condition of filing the Notice of lease agreement, payment of the mortgage registration tax. K.S.A. 1983 Supp. 79-3102. Misco Industries, Inc. (Misco) paid the tax under protest and filed an action against the defendants, Board of Sedgwick County Commissioners (Board), for recovery thereof. The district court granted plaintiffs judgment. Defendants appeal upon an agreed statement as provided by Supreme Court Rule 3.05, 232 Kan. cvi.
December 1, 1982, the City of Wichita, Kansas (City), enacted Ordinance # 38-150 providing for the issuance of seven million dollars in industrial revenue bonds. The ordinance provided for the acquisition, purchase, construction and equipping of an office building in the City of Wichita, Kansas. The cost was to be paid from the proceeds of the industrial revenue bonds. The bonds were to be paid solely from the rental and revenue produced by the building. Payment of the bonds was secured by the real and personal property constituting the office building and the net earnings from the building. The ordinance further provided that in the event additional bonds were issued, the additional bonds were to be secured by improvements purchased or constructed from the proceeds of the bonds. The ordinance finally provided that upon full payment of all principal and interest, revenues produced by the building were to be released as security for the bonds and that the pledge of the property automatically terminated.
On December 23, 1982, the City and Misco executed a lease under the authority granted by the ordinance. Misco had previously donated the land on which the leased building was erected to the City. The lease incorporated by reference the City’s ordinance and created a leasehold interest in the building subject to the terms and conditions of the lease. The lease provided Misco could exercise an option to purchase the build ing. If Misco executed the option, the City would sell and convey the building to Misco free and clear of all liens and encumbrances except those resulting from Misco’s failure to perform under the lease.
The ordinance provided that notice of the City’s interest in the lease be recorded in the office of the Sedgwick County Register of Deeds. On December 23, 1982, a document entitled “Notice” was presented for filing with the Sedgwick County Register of Deeds. The Register of Deeds, as a condition for filing, required payment of the mortgage registration tax. Misco paid the tax under protest and this action was filed in the Sedgwick County District Court.
The matter was tried to the district court. The trial court made the following conclusions of law:
“1. Revenue Bond Issues are exempt from all state taxes (except inheritance tax) including mortgage registration tax on all documents which are an integral part of the Bond Issue and which in any way affect real estate and which are entitled to record in the office of the Register of Deeds. Such documents include Notices such as the Notice here in question and Leases and Rentals which are a source of payment of the Bonds and Interest and assignments to Fiscal Agents in connection therewith.
“2. The Notice in question is not a mortgage nor a real estate contract and no mortgage registration tax is due or payable when it is filed in the office of the Register of Deeds.
“3. The Notice in question is exempt from mortgage registration tax because it is given solely for the purpose of providing notice by a purchaser of its interest in the described real estate.
“4. Plaintiff, MISCO, is entitled to be refunded $17,500.00 and interest at the rate of 10% a year from December 23, 1982, to September 6, 1983, and at the rate of 15% after September 6, 1983, to the date on which such refund is paid.”
The Board appealed claiming the Notice filed by Misco was a mortgage, and therefore subject to the payment of the mortgage registration tax. K.S.A. 1983 Supp. 79-3102 provides in part:
“Before any mortgage of real property, or renewal or extension of the same shall be received and filed for record there shall be paid to the register of deeds of the county in which such property or any part thereof is situated, a registration fee of twenty-five cents (25^) for each one hundred dollars ($100) and major fraction thereof, of the principal debt or obligation which is secured by such mortgage, and upon which no prior registration fee has been paid.”
Kansas, as most other states, has a recording act which expressly embraces mortgages as well as other instruments conveying or affecting real estate. K.S.A. 58-2221 provides in part:
“Every instrument in writing that conveys real estate, .any estate or interest created by an oil and gas lease, or whereby any real estate may be affected, proved or acknowledged, and certified in fhe manner hereinbefore prescribed, may be recorded in the office of register of deeds of the county in which such real estate is situated.”
The purpose of fhe act is to provide a system of registration for instruments affecting the title to land. The record is kept to insure the title and its history may be preserved and protected. The statute makes readily available to the public notice of title to property or liens and adverse claims against property.
To insure that the cost of a system for recording mortgages is not borne by the public, but by those who wish the protection of notice, the legislature has required a registration fee. Before any mortgage or extension of a mortgage of rental property can be filed in the county where the property, or any part of the property, is situated a registration fee is required to be paid. There are exceptions to the payment of the registration fee contained in the statute. K.S.A. 1983 Supp. 79-3102 states in part:
“No registration fee whatsoever shall be paid, collected or required for or on any mortgage or other instrument, ... (5) given in the form of an affidavit of equitable interest solely for the purpose of providing notification by the purchaser of real property of his or her interest therein.”
We have held that the mortgage registration fee is a tax. Missouri Pacific Railroad Co. v. Deering, 184 Kan. 283, 286, 336 P.2d 482 (1959). The tax is imposed upon the mortgagee and not upon the mortgagor. Because the mortgage fee is in fact a tax, the exemption found in K.S.A. 1983 Supp. 79-3102 must be strictly construed against the party who claims the exemption and such party must bring himself clearly within the exemption provisions. Meadowlark Hill, Inc. v. Kearns, 211 Kan. 35, 505 P.2d 1127 (1973).
There are two parties to a mortgage agreement, the mortgagor and the mortgagee. The mortgagor is the one who, having all or a portion of title to property, by a written instrument, pledges that property for a particular purpose, usually as security for a debt. The mortgagee is the one that takes or receives the mortgage. If a mortgage exists, the city, as owner of the property, would be the mortgagor. The question here, then, is who is the mortgagee to whom the debt is owed? Under the facts of this case it is the holder of the industrial revenue bonds that is the mortgagee, not Misco.
Misco claims that the “Notice” of lease agreement was not a mortgage subject to the mortgage registration fee, but an affidavit of equitable interest; that the notice was filed at the request of Wichita, to inform the public that Wichita was the owner of the real property leased by Misco. It also claims such notice is exempt from the registration fee requirement under K.S.A. 1983 Supp. 79-3102 (5), which prohibits collection of the mortgage registration fee for the instruments given in the form of an affidavit solely for the purpose of providing notification of the City’s interest in the property leased to Misco.
Is the “Notice” of lease filed by Misco with the Register of Deeds a mortgage of real property as defined in K.S.A. 79-3101? At common law a mortgáge was described as a conditional conveyance, a qualified estate or an estate upon a condition. In Kansas the common law attributes of a mortgage have been completely set aside. A mortgage is a mere security, in the form of a conditional conveyance, creating a lien upon the property, but vesting no title and giving no right of possession whatever, either before or after a breach. A mortgage does not limit the mortgagor’s right to control the real property other than that the security shall not be impaired. The owner of the real property may pass title by sale subject to the lien.. Chick et al. v. Willetts, 2 Kan. 384 (1864). The term “mortgage of real property” is defined in K.S.A. 79-3101, in relevant part, as including:
“every instrument by which a lien is created or imposed upon real property, notwithstanding that the debt secured thereby may also be secured by a lien upon personal property.”
The words “real property” and “real estate” are defined in K.S.A. 79-3101 as including “all property a conveyance or mortgage of which is entitled to record as real property or interest therein under the laws of this state.” A lien is a hold or claim which one has upon the property of another as security for a debt or charge, as a tie that binds the property to a debt or claim for its satisfaction, as a right to possess and retain property until a charge attaching to it is paid or discharged, as a charge imposed upon specific property by which it is made security for the performance of an act, and as being synonymous with a charge .or encumbrance upon a thing. Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 (1955).
Here the Notice filed with the Register of Deeds sets forth a brief summary of the lease, references to the location of the complete document constituting the lease, a legal description of the property affected by the lease and specific provisions that the said property is pledged to the payment of the bonds. The Board contends that while such Notice may not take on the usual and ordinary form of a mortgage, it nevertheless constitutes a mortgage for purposes of the mortgage registration fee statutes. In determining whether an instrument is a mortgage or not, courts are guided to the substance of the transaction, not the form. The fact that an instrument is entitled Notice does not preclude it from being a mortgage. The ultimate determination in a case where it is sought to construe whether an instrument is a mortgage or not is the intention of the parties who executed the instrument.
In Assembly of God v. Sangster, 178 Kan. 678, this court had occasion to consider whether a certain bond resolution created a lien upon real property so as to be subject to the mortgage registration fee. The resolution provided for the issuance of bonds and for the construction and equipping of a church from the proceeds thereof. It also provided that the church could not be encumbered during the time the bonds were outstanding, and it otherwise contained the ordinary and usual provisions relating to insurance, acceleration and default. In holding that the instrument created or imposed a lien upon the real property of the church, this court held that:
“It is quite true that the instrument is not in the ‘form’ of a mortgage, in the usual sense of the word, but, as already stated, the form of an agreement by which security is given is unimportant if the purpose plainly appears, and we think there can be no doubt as to the purpose of this instrument, notwithstanding the fact that on the printed form appears the self-serving typed-in statement (Section XV) that the instrument is not intended as a mortgage on the described real property of the church.” 178 Kan. at 681.
The Notice which Misco filed with the Register of Deeds refers to an additional instrument, a lease dated December 1, 1982, entered into between the City and Misco. Both the lease and the Notice are products of the ordinance enacted by the City for the issuance of the industrial revenue bonds. Although the Board found no statutory or case law supporting its position, it is the Board’s position that K.S.A. 79-3101 et seq. imposes a duty upon each Kansas Register of Deeds to examine each document tendered for recording and determine whether the same is sub ject to the mortgage registration fee. Where such document tendered for recording makes reference to any other document, the Register of Deeds must examine the latter in order to determine whether the mortgage registration fee should be collected. If the law were otherwise, the enactment of K.S.A. 79-3101 et seq. could easily be reduced to a nullity, allowing all mortgagees to file notices of mortgage and claim that the notice itself does not constitute a mortgage.. The mortgagee would under such circumstances retain the benefit of constructive notice and priority as to third persons while being relieved of the burden of paying the statutorily-imposed fee. We agree with the Board’s reasoning. To do otherwise would defeat the legislative purpose of the mortgage registration statute.
Did the City and Misco create a mortgage on the property or enter into a lease agreement for the use of the property? To determine if tire instrument is a mortgage, we must look to the intention of the parties or the object of the conveyance. To constitute a mortgage there must be an intent on the part of the mortgagor to pledge his land for the payment of a sum of money or the performance of some other act.
Misco and the City claim the Notice and lease instruments construed together do not create a mortgage, but a lease agreement, which is exempt from the mortgage registration tax. A lease is both an executory contract and a present conveyance. The lessor is one who grants a lease. The lessee is one to whom a lease is made. A tenant is one who has the temporary use and occupancy of the leased property belonging to another. The duration and other terms of the occupancy are usually defined by the lease agreement, while the parties are placed in the relationship of landlord and tenant.
To determine whether an instrument is a lease, or creates a relation other than that of lessor and lessee, the intention of the parties, as ascertained from the instrument itself, will govern. The fundamental rule in the construction of the agreement is to ascertain the intent of the parties, and in such construction the courts look to the language employed, the subject matter and the surrounding circumstances. Dutton v. Dutton, 122 Kan. 640, 253 Pac. 553 (1927).
The City and Misco entered into an agreement under a written instrument entitled “Lease Agreement.” The agreement entered into between the parties on December 1,1982, required the City to issue taxable revenue bonds to provide funds to pay the cost of purchasing, constructing, and equipping certain industrial facilities located in the City of Wichita. Misco agreed to rent the facilities from the City until March 31, 1992. Under the agreement, Misco had an option to extend the original lease for an additional five years. Misco was given an option to purchase the leased premises from the City during the primary or extended term of the lease by paying the outstanding principal of the bonds, interest due, costs, and expenses, plus $100.00.
Under K.S.A. 79-3101 an executory contract for the sale of real estate, or a bond for a deed, where complete performance is deferred for a period of longer than 90 days from its execution, under which the grantee or vendee is entitled to the possession of such real estate, and by the terms of which the grantor holds the legal title as security for the unpaid purchase money, shall be treated, for the purpose of the mortgage registration fee, as a mortgage of real property to secure the unpaid purchase price. Were the instruments, when considered together, an executory contract for the sale of real estate or a lease agreement between the parties and a notice of the City’s ownership of property?
K.S.A. 79-3101 considers an executory contract for the sale of real property as a mortgage of real property. For there, to be an executory contract under the statute, the grantor must hold legal title to the property as security for the unpaid purchase price. Under an executory contract for the purchase of real estate, when the grantee or vendee completes the payments required under the contract, he obtains title to the real estate.
Under the lease agreement entered into by Misco and the City, Misco had an option to purchase the property. Unless and until Misco notified the City it intended to exercise its option, and performed certain requirements under the written agreement, the City remained the owner of the property subject to any outstanding industrial revenue bonds. An option to purchase is usually described as a contract. It is not such until accepted by the optionee. Until accepted it is only a continuing offer to sell and convey at a price and upon conditions specified. Loose v. Brubacher, 219 Kan. 727, 549 P.2d 991 (1976). The election to exercise an option must be made in the manner specified in the option agreement.
Where the owner of land leases it for a period of years at a stipulated rental, and the contract of lease contains a stipulation that the lessee shall have the right, during or at the expiration of the lease, to purchase the premises, if the lessee so elects, at a fixed price, there is no complete sale. The lessee does not acquire an estate in the land beyond the leasehold interest until he has elected to accept the offer and has paid or tendered the purchase price set out in the contract. Misco’s agreement with the City was not an executory contract for the purchase of real estate, and therefore subject to the mortgage registration fee, but a lease agreement with an option to purchase the real estate. Misco’s lease with the City containing an option to purchase was not subject to the mortgage registration fee. The district court correctly determined that the parties had not executed a mortgage subject to the mortgage registration fee.
The Board of County Commissioners of Johnson County, as amicus curiae, raised the question for the first time on appeal of whether the trial court had jurisdiction of the issue. All parties to the action had stipulated the district court had jurisdiction. The amicus claims that the Board of Tax Appeal (BOTA) was the proper forum for the appeal.
This court has the power to decide the question of jurisdiction, even though the question was not raised until the appeal. Subject matter jurisdiction is the power to decide the question and cannot be waived. In re Miller, 228 Kan. 606, 620 P.2d 800 (1980).
The amicus contends the proper procedure for protesting the issue raised by the parties must be with the BOTA. The authority for this procedure is contained in K.S.A. 1983 Supp. 79-2005. The statute deals with (1) taxes paid prior to December 20, (2) the director of property valuation, and (3) valuation or assessment of property. These are topics that concern ad valorem taxes, not mortgage registration fees.
K.S.A. 60-907(a) provides that an illegal tax, charge or assessment is subject to the granting of injunctive relief. We have stated in the past that the assessment of property, when done in accordance with the law, is an administrative function with which the courts will not interfere nor substitute their judgment for that of the administrative authority. However, where state and local tax officials do not perform their duties in accordance with the law, the issue presented to the court is not the exercise of their administrative judgment, but the legality of their acts. The courts have no difficulty with their power and authority where taxing officials attempt to proceed without statutory authority or to proceed contrary to the statutes; such matters are within the province of the judiciary. Mobil Oil Corporation v. Medcalf, 207 Kan. 100, 483 P.2d 1111 (1971).
As recently as 1983, this court recognized that K.S.A. 79-2005 was not the exclusive means of seeking a refund from the BOTA. We recognized that K.S.A. 79-1702 could serve as a substitute for K.S.A. 79-2005. Wirt v. Esrey, 233 Kan. 300, 315, 662 P.2d 1238 (1983). The claim that the district court lacked jurisdiction to determine the issue is without merit.
Because we determine that the instruments entered into between Misco and the City were not subject to the payments of the mortgage registration fee, other issues raised by the parties need not be decided. -
The judgment of the trial court is affirmed.
Holmes, J., not participating. | [
-44,
-21,
-48,
-50,
24,
-32,
58,
-103,
91,
-75,
54,
83,
-87,
-56,
85,
43,
-41,
125,
80,
124,
65,
-77,
35,
107,
-42,
-5,
-61,
-51,
-70,
77,
-12,
-58,
76,
49,
74,
-107,
-122,
-126,
-59,
24,
-50,
5,
-119,
-32,
-33,
0,
54,
43,
50,
9,
49,
12,
-73,
40,
20,
67,
105,
42,
-21,
41,
-63,
-71,
-7,
-107,
127,
22,
49,
4,
-104,
-57,
-56,
-82,
-102,
49,
12,
-24,
-9,
-90,
-58,
-12,
13,
-117,
45,
42,
98,
3,
29,
-17,
-16,
-104,
14,
-41,
13,
-26,
-105,
24,
98,
11,
-76,
-99,
69,
18,
70,
-10,
-26,
-107,
31,
108,
7,
-50,
-12,
-77,
15,
121,
-126,
3,
-1,
-89,
32,
117,
-49,
-90,
92,
-25,
50,
27,
-114,
-68
] |
The opinion of the court was delivered by
Prager, J.;
This is an action brought by the secretary of Social and Rehabilitation Services (SRS) to recover from a father payments made to support his three minor children under the federal program for Aid and Services to Needy Families with Children (AFDC). The defendant in the action is Anthony J. Castro, husband of Theda Castro and father of three minor children. The evidentiary record in the case is rather sparse. The parties stipulated at the trial as to support payments made by SRS and the marital history of the parties. The defendant, Castro, and his wife, Theda, were mairied on January 30, 1970. Two children were bom and the Castras were divorced on July 23, 1976. They were then remarried on October 27, 1976. A third child was bom as a result of their reunion. SRS made child support payments to Mrs. Castro from July 1975 to June 1976, and then again from January 1980 to September 1982. SRS produced copies of the checks paid to Mrs. Castro and the times and amounts of the payments were undisputed.
The only witness called at the trial by either party was defendant Castro, who testified that he had from time to time provided money for the children for clothing, shoes, and food. This testimony was rather vague and defendant did not attempt to itemize any support provided. It was established that defendant had maintained a health insurance policy for his family through his employer, but he did not provide the court with any figures as to how much he spent on this Item during the course of the separation. Defendant further testified that-he knew his family was receiving aid from SRS during 1981 and 1982. Through a voluntary agreement with his wife, defendant paid her $49 per month child support. SRS credited these payments to the defendant and subtracted them from the children’s share of the approved grant. During the entire period payments were made, defendant was employed except for the period from January 1980 through March 1980, during which time he received unemployment -compensation and did odd jobs. Defendant’s income at the time of the trial exceeded $1100 per month. The defendant offered no testimony as to the exact amount received by him as income.
Castro testified that, when his wife left him in January 1980, she did not tell him where .she was going. There was an attempt for a reconciliation which -apparently did not work out. At the time of the hearing, defendant was living with -and supporting his wife and three children. Mrs. Castro owned a two bedroom house in Pomona which she owned during the entire time support payments were paid by SRS. Defendant kept the pay ments on the house current at all times, and it appears that Mrs. Castro, at least a part of the time, lived in the home. Defendant was not sure of the exact times that his wife occupied the family home. Defendant testified that he attempted several times to have his wife come home with the children, and that at no time did he refuse to let them live in his home.
This action was filed by SRS on November 9,1982, pursuant to K.S.A. 39-718a and K.S.A. 39-755. In the petition, it was alleged that SRS had paid $8,376.21 in assistance since July of 1975, by reason of the fact that the defendant had been continuously absent from home and the custodial parent, Theda L. Castro, had assigned to SRS support rights to which the children are entitled. It was further alleged that the defendant is not obligated under any current order to provide child support; that the defendant is an able-bodied man capable of supporting his minor children; and that a reasonable sum in the amount of $250 per month should be set aside as child support. In its petition, SRS sought to recover the sum of $8,376.21 for past support payments made.
In his answer, defendant admitted that he was the father of the three children named and that he was not obligated under any current court order to provide child support for the children. Defendant admitted that he was capable of supporting his children. He 'raised as an affirmative defense the statute of limitations and reserved the right to assert other affirmative defenses which he might learn through discovery. Defendant never filed an amended answer. The case was set for trial and the parties appeared.
In the trial court, defendant raised three legal issues for determination by the court:
(1) K.S.A. 39-718a, which provides for reimbursement to SRS from an absent parent for AFDC payments made, violates the absent parent’s constitutional rights since it permits the state to recover without affording him a hearing and without taking into account the absent parent’s ability to pay, station in life, health, and support payments made directly to or for his children.
(2) The defendant was not an absent parent within the meaning of the statute (K.S.A. 39-718a) because he provided support in the form of a home, medical insurance, clothing, shoes, and some food for the children.
(3) Defendant was not an absent parent under K.S.A. 39-718a, because his wife moved out of the home taking the children with her, and therefore, defendant was not absent from the home, because he lived in the home and made payments on it.
The parties submitted trial briefs on these issues. The district court, on August 18, 1983, filed a memorandum opinion in which it entered judgment in favor of SRS in the sum of $7,596.96 to reimburse SRS for child support payments paid by SRS during the years from 1980 through 1982. The trial court refused to enter judgment in favor of the plaintiff for child support payments made during 1975 and 1976, because there was already an existing judgment in favor of the children’s mother in the divorce case in the district court of Franklin County. That portion of the trial court’s judgment which denied SRS recoupment for support payments made in 1975 and 1976 has not been appealed, and its validity is not before the court at this time.
The trial court rejected defendant’s contention that K.S.A. 39-718a is unconstitutional as a denial of due process because it does not provide a due process hearing to the absent father. The trial court ruled, in substance, that, although SRS has the power and authority under K.S.A. 39-718a to file an action and collect child support payments made, the absent father, as the defendant, may assert whatever defenses he may have in that proceeding and, therefore, has a full right of hearing before judgment is rendered. The court further held that defendant Castro was an absent father within the meaning of the Kansas statutes and that SRS was entitled to judgment for child support payments made during 1980 through 1982. The defendant brought a timely appeal to this court.
To understand the issues raised on this appeal, it would be helpful at the outset to carefully examine the federal and state statutory provisions authorizing financial assistance to needy families with children. Prior to 1962, the program was generally known as Aid to Dependent Children. Since 1962, it has been denominated Aid and Services to Needy Families with Children. The federal statute which authorized the expenditure of substantial federal funds for aid to dependent children, was originally enacted in 1935 and may be found at 42 U.S.C.A. § 601. The purpose of the federal statute is to encourage the care of dependent children in their own homes or in the homes of relatives. The federal funds are made available to states which have submitted state plans approved by the secretary for aid and services to needy families with children.
42 U.S.C.A. §: 602- sets forth the' minimum requirements, for a state plan. Among other requirements', a state plan must provide, as a condition of eligibility for aid, that each applicant or recipient will assign to- the state any rights to support from any other person which the applicant may have in. his own behalf or in behalf of any other family member for whom the: applicant or recipient is' applying for or receiving aid. Each applicant or recipient under the program must also, agree to- cooperate with the state in establishing the- paternity of a child born out of wedlock and in obtaining support payments. 42 U.S-.C.A. §: 606-defines a “dependent child” to' mean a needy child who- has been deprived of parental support or care by reason of the death,, continued absence from the home, or physical or mental incapacity of a parent and1 who, is, living with- his, father or mother- or other relative ins a place- of residence maintained as his, or their own home.
The federal regulations expand on- the requirements of the1 federal statutes and refer in a number of sections to the “caretaker” or “custodial” parent of the children and also to the “absent parent.” The applicant or recipient of support funds who is living with the children is the “caretaker” or “custodial” relative of the children. 45 C.F.R. §'232.11 (1983) requires that the: state- plan shall require as an eligibility requirement' for assistance that each- applicant or recipient shall assign to the state any rights. to> support from- any other person. Regulation § 232.12 requires the state plan to provide as- a condition of eligibility for assistance that each applicant or recipient of AFDC be required to cooperate with the state in identifying and locating the parent of a child for whom aid is claimed and in obtaining support payments from him or her. An- applicant or recipient is required to pay to- the child support agency any support payments received- from the absent parent after an assignment has been made under § 232.11.
Regulation 45’C.F.R. § 233.90(c)(l)(iii) declares that continued absence of the parent from the- home constitutes the reason for deprivation of parental support oreare when the parent is out of the home and the nature of the absence is such as either to interruptor to> terminate. the parent’s functioning as a provider of maintenance, physical care', or guidance for the child, and the known or indefinite duration of the absence precludes; counting on the parent’s performance of the function of planning for the present support oreare of the child.. If these conditions, exist, the parent may be absent for any reason. In regulation 45 C.F.R. §':233190('c),(l)(B')a “home” is defined as. the family setting maintained or in; process; of being established as evidenced by assumption and continuation of responsibility for day to day care of the child by the relative with whom the child is. living. Thus, it is clear that under the federal regulations the “home” is the home of the children.
The Kansas plan and program, authorized by the federal statute, is contained in K.S.A. Chapter 39. K.S.A. 1983 Supp. 39-702, the definitions section, defines “dependent children” to include needy children under the age of 18 who have been deprived of parental or guardian support or care by reasons of the death, continued absence from the home, or physical or mental incapacity of a parent or guardian and who are living with any blood relative. K.S.A. 1983 Supp. 39-709 covers the eligibility requirements of applicants for and recipients of assistance. K.S.A. 1983 Supp. 39-709(c) provides that applying for or receiving aid under the program constitutes an automatic assignment of support rights to the secretary of SRS. K.S.A. 39-718a provides for repayment by an absent parent to the secretary of SRS for assistance provided in the following language:
“39-718a. Liability of absent parents for assistance to dependent children; powers of secretary; exception. In any case where assistance is given to dependent children by reason of the continued absence from the home of a parent, any such absent parent shall be liable to repay to the secretary of social and rehabilitation services the value of such assistance. The secretary shall have the power and authority to collect such sums by civil action brought in the name of the secretary. This act shall not apply where such absent parent has complied fully with the terms of a child support order entered by a court of competent jurisdiction.”
K.S.A. 1983 Supp. 39-754 provides that, if an assignment of support rights is deemed to have been made pursuant to K.S.A. 1983 Supp. 39-709, repayment shall be made to the Department of Social and Rehabilitation Services. Section (d) of 39-754 provides that, if the secretary of Social and Rehabilitation Services has a notice of assignment of support rights on file with the court ordering support payments, the secretary shall be considered a necessary party in interest concerning any legal action to enforce, modify, settle, satisfy or discharge an assigned support obligation and shall be given notice by the party filing such an action.
K.S.A. 39-755 authorizes the secretary of SRS, in cases where the secretary has an assignment of support rights from an applicant or recipient, to bring a civil action in the name of the State of Kansas to enforce such support rights and, when appropriate or necessary, to establish the paternity of a child.
The SRS administrative regulations follow and make effective the statutory scheme. K.A.R. 30-4-71 provides, in substance, that the caretaker relative shall assign the support rights to SRS. K.A.R. 30-4-72 requires that any ADC child be living with a relative in a home. K.A.R. 30-4-73 defines “continued absence from the home” in the same manner as the federal statutes and regulations discussed above. K.A.R. 30-4-74 requires that the needs of the caretaker relative be considered along with the needs of the ADC child.
Analyzing the various federal and state statutes and regulations discussed above, the following basic legal principles come into sharper focus:
(1) In order for a state to provide federal funds to a needy child under the AFDC program, there must be a “caretaker” or “custodial” relative, i.e. a parent or blood relative who lives with the child and provides a residence which is deemed to be the child’s home.
(2) An “absent parent” is a parent who is not living with the child in the child’s home and who has an obligation to provide support for the child.
(3) Where a state develops a plan and program to participate in the distribution of AFDC federal financial assistance, the federal statutes and regulations require the state to seek repayment or recoupment from an absent parent who has an obligation to support the child but who has not fulfilled that obligation.
(4) In order to make recoupment of public support funds reasonably possible, the custodial parent, who is the applicant for or recipient of the support funds, is required to assign to the state administrative agency, which in Kansas is SRS, any rights which either the custodial parent or the child has to compel the absent parent to provide support.
(5) After an assignment of support rights to SRS becomes effective on the payment of child support payments by SRS, any civil action which is brought by SRS to recover support payments from the absent parent is essentially the same cause of action which the custodial parent or the child had against the absent parent and which cause of action is assigned to the secretary. That being true, it logically follows that any defenses which the defendant father, as absent parent, could have asserted as a defense to an action brought by the mother of the child may also be asserted in the action brought by SRS for the recoupment of support payments made on behalf of the child. With these principles in mind we now turn to the issues raised on the appeal.
The first point raised by defendant is that K.S.A. 39-718a, which provides for reimbursement to SRS from an absent parent for AFDC payments, violates the absent parent’s right to due process of law, because it permits the state to recover from him without affording him a hearing and without taking into account the absent parent’s ability to pay, station in life, health, support payments made directly to and for his children, and any other circumstances in the case. We agree with the trial court that this contention is without merit. As noted above, the trial court ruled, in substance, that in this case the defendant, Castro, as the absent parent, could properly assert, in this action brought by SRS for recovery of support payments, any defense that Castro might have against the cause of action and, therefore, defendant was afforded a full hearing prior to the time any judgment in favor of SRS could be entered against him.
The obligation of a parent in this state to support his children was first recognized in Harris v. Harris, 5 Kan. *46 (1869). Since that time, this court has repeatedly held that parents have a duty to support their children and that the father has a particular duty when he is the money earner or has property in his name. Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628 (1914); Grimes v. Grimes, 179 Kan. 340, 295 P.2d 646 (1956); Strecker v. Wilkinson, 220 Kan. 292, 298, 552 P.2d 979 (1976).
A leading case in this area is Grimes where this court stated that the support of children, like their custody, is a matter of social concern. It is an obligation the father owes to the state as well as to his children. He has no right to permit them to become a public charge. The court quoted as follows from the opinion in Doughty v. Engler, 112 Kan. 583, 584, 211 Pac. 619 (1923):
“ ‘The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation . . . laid on them not only by nature herself, but by their own proper act, in bringing Mem into the world; for they would be in the highest manner injurious to their issue, if they only gave their children Me that they might afterwards see Mem perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, Mat Me life which they have bestowed shall be supported and preserved. And Mus the children will have a perfect right of receiving ,maintenance &om their parents.’ .(1 Blackstone’s 'Commentaries, 447.)” Emphasis original.
In Grimes, the court held that a father cannot relieve himself of his common law ox -statutory 'obligation to support his child by entering into -an ;agreement with a third person to -assume that responsibility.. This (court had held in Doughty v. Engler, that a father of an illegitimate (child too young to care for itself is under a -nonstatutory obligation to support St, which may be enforced in an action brought by it through its next friend.
'The action brought -against a parent for past -child support is deemed to <be equitable in nature «and the court may take into consideration all of the facts and -circumstances in the case. Grimes v. Grimes, 179 Kan. at 344; Rowell v. Rowell, 97 Kan. 16, 20, 154 Pac. 243 (1916); Riggs v. Riggs, 91 Kan. 593. Only sums actually paid and reasonably necessary may be recovered in such an action. In Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529 (1915), it was held in an.aotion by a mother to recover expenditures for the support of a minor child, made necessary because of the father’s neglect of parental duty, none but sums actually paid and reasonably necessary for the purpose can be recovered. The court emphasizes that the action is equitable in character and that the propriety of the expenditures made for support of the child depends upon a variety of considerations.
In Rowell, the defendant father contended that he could not be held liable to the mother for his neglect to provide for the maintenance and care of his children, because he had obtained a divorce from his wife on the grounds of her cruelty and neglect of duty. Since he had been separated from his children by a decree of divorce which was granted to him because of her fault, and since the children chose to reside with her, he was not liable to the children’s mother in any amount. This argument was rejected by this court which held that, where the father neglects to provide for the maintenance and care of the minor children and leaves that burden entirely to the mother, she is entitled to recover from him a reasonable amount for the expenditures she has made in providing for their care and support. Rowell recognized that the more appropriate and complete remedy is by opening the decree of divorce. The opinion in Rowell, however, states that there was no reason why the plaintiff mother could not maintain an independent action against the defendant father for the moneys already expended.
The more recent decisions of the Kansas appellate courts have continued to recognize a cause of action against a noncontributing father for reimbursement for moneys expended in support of his minor children. In Keller v. Guernsey, 227 Kan. 480, 488, 608 P.2d 896 (1980), it is stated that a parent’s duty to support may be enforced in civil proceedings in one or more of three ways. Depending upon the circumstances of the individual case, the proper remedy may be:
(1) proceedings under K.S.A. 60-1610(o);
(2) proceedings under K.S.A. 23-451 et seq., or
(3) an action to enforce the common-law duty of support.
In Stapel v. Stapel, 4 Kan. App. 2d 19, 601 P.2d 1176 (1979), rev. denied 227 Kan. 927 (1980), it was held that where a child has been supported during his minority by a single parent, once that child becomes an adult any right of action for reimbursement from the noncontributing parent belongs to the parent who provided that support and not to the child.
There are also several cases where the secretary of SRS was involved in an action for reimbursement for payments made by the state under the aid to dependent children program. In Harder v. Towns, 1 Kan. App. 2d 667, 670, 573 P.2d 625 (1977), rev. denied 225 Kan. 844 (1978), an action was commenced by SRS under K.S.A. 39-718a for recovery of moneys expended by the state for the care of the defendant’s children. In 1974 in post-trial proceedings in a divorce case, the court approved an agreement between the parties terminating the defendant husband’s obligation to support the children and thereafter, the wife received aid for the children from SRS. SRS sued defendant for the moneys expended and the defendant answered. The trial court found for the defendant father, stating that the defendant did not have a duty to support the children because of the agreement made between himself and his wife and approved by the court. SRS appealed, challenging the validity of the court’s order. In the opinion on page 669, the Court of Appeals stated that K.S.A. 39-718a creates a mechanism which enables SRS to sue either or both parents for reimbursement of funds paid out under the aid for dependent children program. It is noted that the court specifically exempts collection from parents who are acting in compliance with a court order. The court held the validity of the prior order of the court, which terminated the defendant father’s duty to provide support for his children, could not be considered in that action, because it would constitute a collateral attack on the prior judgment in the divorce case which was not permissible. Thus, the defendant was afforded the opportunity of asserting the prior order in the divorce case as a defense in the action brought by SRS.
In Sterling v. Mann, 4 Kan. App. 2d 520, 608 P.2d 1038 (1980), it was held that K.S.A. 1979 Supp. 39-755 provides a procedure for the state to establish the paternity of the child and enforce the child’s nonstatutory right to support. The court stated that it was apparent that the intent of the legislature in enacting K.S.A. 1979 Supp. 39-755 was to provide a procedure, complementary with federal law, which would permit the State to obtain reimbursement for welfare assistance paid to children who have a right to support from some other person. The case is important because it clearly shows that the statutory action provided to SRS is one to enforce the child’s nonstatutory right to support and is not a completely independent right of action afforded to the State. The principle is again recognized in Grassi v. Grassi, 8 Kan. App. 2d 610, 663 P.2d 312 (1983).
From these statutory provisions and the Kansas decisions set forth above, we have concluded and hold that the action brought in this case by SRS pursuant to K.S.A. 39-718a and K.S.A. 39-755 to recover, from the defendant as the absent father, payments made to support his three minor children was brought to enforce the children’s nonstatutory right to support, and that the defendant was not denied due process of law because whatever defenses he might have to the cause of action, either equitable or legal, could have been asserted by him in this action. Thus the defendant’s first contention that he was denied due process of law is without merit.
The defendant’s second point is that he was not an absent parent within the meaning of K.S.A. 39-718a, because his undisputed testimony showed that he provided some support in the form of medical insurance, clothing, shoes, shelter, and money for the children during the period he was living apart from them. We hold that the fact that the defendant did provide some support for the maintenance of his children did not prevent him from being an absent parent within the meaning of K.S.A. 39-718a, in an action brought by SRS for recoupment. The defendant father, who was not living in the same home with his children, could properly introduce evidence of payments made by him to the mother for the support of his children. The trial court could properly consider this evidence in determining the case, along with evidence as to the reasonableness or unreasonableness of the support provided under all the circumstances of the case. A determination of who is an absent parent under the Kansas statutes is discussed under the third point.
The defendant’s third and final point on the appeal is that defendant was not an absent parent within the meaning of K.S.A. 39-718a, because it was the children’s mother who moved out of the family home taking the children with her. Thus defendant claims he was not absent from the home, since he actually lived in the family home and made payments on it during the period of separation. Earlier in the opinion we have discussed the basic concepts under the federal and state statutes and regulations. It is clear that the home referred to in the statute is “the place where the children reside with the. custodial parent.” As noted above, an absent parent is a parent who does not reside with the children and who has some parental obligation to support them. Clearly, the defendant was an absent parent under the statutory scheme. The fact that the defendant provided some support for the children is not the test. It is simply one of the many circumstances to be considered by the trial court in determining a reasonable, fair, and just support in each particular case.
The judgment of the district court is affirmed. | [
16,
108,
117,
76,
26,
-30,
42,
-116,
90,
-117,
-73,
-41,
-7,
99,
16,
109,
120,
45,
64,
105,
-125,
-96,
87,
97,
114,
-77,
-8,
-43,
-71,
77,
103,
-44,
79,
52,
-94,
-44,
102,
-110,
-57,
16,
-110,
-125,
-23,
-19,
89,
6,
52,
111,
-64,
11,
33,
-114,
-65,
76,
28,
-54,
44,
46,
17,
57,
-60,
-24,
-113,
-121,
-17,
115,
-79,
100,
-98,
4,
-40,
46,
-100,
53,
0,
40,
115,
-74,
-102,
116,
83,
-103,
9,
100,
102,
16,
-11,
-75,
-8,
-103,
-49,
-65,
-97,
36,
-109,
88,
1,
79,
-66,
-100,
108,
84,
46,
126,
-52,
92,
45,
-20,
10,
-118,
-106,
-87,
-52,
116,
14,
-86,
-17,
37,
16,
113,
-49,
-80,
92,
103,
122,
-109,
-26,
-78
] |
The opinion of the court was delivered by
Holmes, J.:
This appeal involves an ongoing controversy between a life tenant and two remaindermen, the appellees, and five of the remaindermen, the appellants, under the last will and testament of Harry L. Kreie, deceased. Two orders of the district court have been appealed. The first order authorized payment to one of the appellees for personal services rendered to the life tenant and the other denied a motion of the appellants who sought to prevent the life tenant from invading the corpus of the estate property for support purposes.
On August 26, 1970, Harry L. Kreie and Minnie Kreie, husband and wife, entered into a joint and mutual contractual will, the pertinent provisions of which provide:
“SECOND. All of our property and estate, both real and personal, whether held solely or jointly, and of whatsoever kind and wheresoever situ ated, . . . we each and both give, devise and bequeath to the survivor of us, for and during his natural life, for his sole use and benefit during his natural life, together with full power to use, enjoy and consume the same; and should at any time the income and proceeds from said property be insufficient for his comfortable support, then, in that event, we each and both will and direct that the said survivor may sell any such portion of any property, including real estate, and apply the proceeds to his support, and we each and both hereby authorize the survivor to execute good and sufficient deeds of conveyance to the purchasers of any such real estate.
“THIRD. Upon the demise of the survivor of us, we each and both give, devise and bequeath our property then remaining of whatsoever kind or nature and whether accumulated prior or subsequent to the making of this Joint and Contractual Last Will and Testament, to our children, to-wit: Otto Kreie, Mattie Patterson, Nela Luther, Leroy Kreie, Alma Dinkela, Irene Murphree,- Barbara Beck and Jerry Lee Kreie, to take per stirpes and not per capita.”
Harry L. Kreie died May 4,1971, survived by his widow and the nine children named in the will. Minnie Kreie, Alma Dinkela and Jerry Lee Kreie are the appellees herein and will be referred to as such throughout this opinion. Otto Kreie, Mattie Patterson, Nela Luther, Leroy Kreie and Barbara Beck are the appellants. Another son, Leonard P. Kreie, was separately named in paragraph Fourth of the will and does not appear in these.proceedings. Likewise, Irene Murphree does not appear to have been an active participant in the family battles that have gone on since at least the death of Harry. The record reflects that as early as August, 1971, several of the children met in an attempt to devise a plan to assist their mother “in handling her business matters.” The notes of that meeting reflect a certain lack of harmony and communication within the family and state, “The question that has been brought up is whether the terms under which the property has been passed permit sale or gift of property for purposes other than for support and well being of Mother Kreie.”
The will was not admitted to probate until May 10,1972, when Minnie Kreie was appointed executrix. Four of the appellants filed defenses to the petition for final settlement, challenging the actions of the executrix and questioning her fidelity to the terms of the will. T.he parties’ attempt to resolve their differences delayed final settlement of Harry Kreie’s estate until November 7, 1973.
The court, in the journal entry of final settlement dated November 7, 1973, made the following findings:
“That, however, the findings as to an agreed settlement between the devisees and legatees in this estate based upon the written defenses to the Petition for Final Settlement filed herein by Otto Kreie, Nela Luther, Leroy Kreie and Barbara Beck should be approved as hereinafter set out.
“The Court further finds that under the joint, mutual and contractual will of Harry L. Kreie, deceased, that all of the real estate ánd personal property included in said estate or owned by Minnie Kreie as to undivided interests and joint tenancy property hereinafter described, to-wit: [Property descriptions omitted] are all hereby assigned to Minnie Kreie for life subject to a trust being impressed thereon for the benefit of the remaindermen under the Last Will and Testament of Harry L. Kreie, deceased. That Elmer A. Wetzel of Dodge City, Kansas, should be appointed Trustee and the following described property shall be placed in trust with the said Trustee, to-wit: [Property descriptions omitted.]
“That the Trustee or his successor shall retain all of said property, which shall be a part of the trust estate unless approval for sale or transfer thereof is obtained from this Court after hearing and reasonable notice thereof to all of the remaindermen or their successors in interest and then only upon a showing that the income from said properties is insufficient for the comfortable support of the said Minnie Kreie. That the net income from all of the trust assets shall be paid monthly to Minnie Kreie; except said Trustee shall be entitled to maintain a reserve for the payment of ad valorem and all other taxes, payable and assessed upon said property, bond premium and other expenses including compensation of said Trustee. That Minnie Kreie shall not be accountable either to the Trustee or any of the remaindermen or the Court as to her use of the income distributed to her. That the Trustee shall furnish bond in the amount of $50,000.00.”
The court then entered the following orders:
“IT IS BY THE COURT FURTHER ORDERED AND ADJUDGED that the title to the following described real estate and personal property remaining in this estate is hereby assigned to Minnie Kreie, for and during her natural life, with remainder over to the remaindermen herein set out, subject to the trust provisions also hereinafter set out, to-wit: [Property descriptions omitted.]
“IT IS FURTHER ORDERED AND ADJUDGED that Elmer A. Wetzel be and he is hereby appointed Trustee for the above described property assigned to Minnie Kreie, and that all net income from said trust property shall be assigned to Minnie Kreie monthly and that Minnie Kreie not be required to account either to the Trustee, the remaindermen or to the Court concerning the use and disposition of said income. That the investment of said trust property shall be controlled by the Probate Court in this case. That in the event it is necessary to invade the corpus of said trust, a Court order be obtained after notification to the remaindermen pursuant to the provisions of K.S.A. 59-2209, et seq., as amended, and a showing that the income from said properties is insufficient for the comfortable support of the said Minnie Kreie.” (Emphasis added.)
No appeal was taken from the final orders in the Harry L. Kreie Estate and they are now the law of this case.
Things did not go smoothly for the trustee as problems persisted in the family. Objections were made by some or all of the appellants to the trustee’s execution of a farm lease, to the annual accountings and to the distribution of the bonus money received for the execution of an oil and gas lease. However, it was not until 1982 that the events leading to this appeal occurred. On April 2, 1982, Minnie Kreie suffered an accident and was hospitalized for a severe hip fracture. At the time she was 86 years old, and her release from the hospital seven weeks later was conditioned on her receiving twenty-four hour care. Minnie Kreie’s daughter, Alma Dinkela, had been residing with and caring for her mother, pursuant to a written contract entered into in 1973. Upon Mrs. Kreie’s return home from the hospital, Alma arranged for a licensed practical nurse to care for Minnie Kreie during the day while Alma worked. Alma then attended her mother during the evenings, nights and weekends. On June 7, 1982, Jerry Kreie moved into his mother’s residence to assist Alma in caring for their mother.
Thereafter began the proceedings ultimately resulting in this appeal. On July 23, 1982, Minnie Kreie filed a motion for an order of the court authorizing the trustee to invade the corpus of the trust for funds to pay her medical expenses. Appellants filed a response, requesting strict proof of need and a showing that the income from the trust properties was insufficient for Minnie Kreie’s comfortable support. At the hearing, Alma Dinkela testified on the insufficiency of income derived from the trust to provide necessary care and treatment for the life tenant. After the hearing, which was not transcribed, the trial court ordered invasion of the corpus, based on the following findings of fact:
“3. Among [Minnie Kreie’s] needs are past due medical expenses as well as anticipated future medical expenses, care while in the home and other personal attention.
“4. The said Minnie Kreie has cashed checks constituted as distribution of income. And has on occasion made gifts of that cash to certain of her children who visited her to compensate them for gasoline and other things. The amounts, the donees, the dates and times and places of these gifts were not established due to the lack of recollection by Mrs. Dinkela.
“5. The insufficiency of income as compared to anticipated needs of the said Minnie Kreie leaves a shortage of available funds from income from the Trust corpus to maintain the comfortable support of the said Minnie Kreie to the extent of approximately $25,000 for the year 1982.
“7. The said Alma Dinkela has, several years previously, been granted a power of attorney from the said Minnie Kreie and has, since her injuries, been managing her money affairs, writing checks and depositing funds to the checking account of the said Minnie Kreie. Accordingly, the said Alma Dinkela has agreed to cooperate with the Trustee, receive distributions of corpus and fully and completely account for the use of same monthly during the balance of the year 1982 and provide copies of such monthly accountings to counsel for the parties to these proceedings.”
No appeal was taken from that order.
On October 29, 1982, Minnie Kreie filed a motion requesting authorization to compensate Alma Dinkela and Jerry Kreie for services rendered in providing her with care. The appellants filed written defenses strenuously objecting to this motion, alleging that any services rendered were gratuitous, and that for other reasons the claimants were estopped from seeking compensation. Following discovery, which included the depositions of all three appellees, and a pretrial conference, the matter was heard by the court on March 29, 1983. During discovery accountants employed by the appellants reported that trust income checks issued during the period from December 30, 1978, to January 29,1982, in the amount of $14,500 were endorsed by the life tenant and deposited in the account of Jerry Kreie, while another $40,669.40 was deposited in three accounts in which the life tenant, Minnie Kreie, had no interest.
After the hearing on March 29, 1983, the trial court found that Minnie Kreie and Alma Dinkela were parties to a 1973 contract wherein Alma agreed to move in with and care for her mother and, in the event such care became fulltime, Alma would be compensated on a reasonable basis. Fulltime care had been necessary from the date of Mrs. Kreie’s return from the hospital. The court concluded that based upon the written contract Alma should receive $3.00 per hour for the 2,897 hours of care provided. Jerry Kreie’s claim was treated differently by the court, which recognized that although he had assisted in his mother’s care it was not pursuant to any express agreement, and he had no “reasonable and proper expectation of compensation.” See Hoyer v. Cannedy, 4 Kan. App. 2d 228, 604 P.2d 76 (1979), and cases cited therein. The decision allowing compensation to Alma Dinkela is one of the orders appealed in this action. Jerry did not appeal the order denying him compensation.
Following the trial court’s conclusions and order on the claims for compensation, appellants filed a motion pursuant to K.S.A. 60-260(fo) to set aside the July 29, 1982, order authorizing invasion of the trust corpus. Appellants claimed newly discovered evidence based upon the accountants’ findings during prior discovery, and that the July, 1982, order may have been obtained by fraud, misrepresentation or other misconduct of an adverse party. As relief, appellants sought a restraining order preventing further disbursement of trust corpus proceeds, discovery orders to further ascertain the nature and extent of gifts made, an order directing charges be made against the distributive share of parties receiving these gifts, an order directing an accounting, and a determination of the existence of any breach of fiduciary duty in regard to the gifts made. At the hearing on May 25, 1983, the trial court cut through the numerous requests and side issues and went directly to the question of whether Minnie Kreie, under the terms of the will and the order of final settlement, could give away the income she received or whether she was required to conserve and preserve it for the benefit of all the remaindermen. The trial judge stated:
“I don’t think I can find that she [Minnie Kreie, the life tenant] has to account under the terms of the Trust and under the terms of the Will. . . .
“I am going to find as a matter of law, under the terms of the Trust and under the terms of the Will, Minnie Kreie has no duty to account for anything. I don’t have any trouble with that.”
The journal entry disposing of the issues raised at this hearing reads in pertinent part:
“[T]he Court is finding as a matter of law that the said Minnie Kreie could give Trust Income away to such an extent that she might desire and in disproportionate shares among her children or other donees and that the Court, having so ruled as a matter of law, finds that such Discovery Orders are not necessary and that such ruling disposes of the Motion on its Merits.
“[T]he said Minnie Kreie may, under the terms of the Joint Will of the said Harry L. Kreie and Minnie Kreie, and the Trust imposed pursuant to the Journal Entry of final settlement entered into on November 7, 1973, give Trust Income away to anyone she chooses despite the fact that invasion of Corpus may subsequently be necessary to provide funds for her comfortable support and that therefore because of such finding said Motion should be and the same is hereby overruled.”
Appellants appeal from the orders of the trial court rendered at the May 25, 1983, hearing, and both appeals have been consolidated in this action. This case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
We will first address the issue of the court allowing appellee Alma Dinkela compensation for services rendered to her mother after the April, 1982, accident. Appellees’ first argument is that the trial court erred in allowing into evidence the May, 1973, written contract between Alma and her mother. Throughout the depositions, pretrial conference, and hearing on the issue of their compensation, Alma Dinkela and Jerry Kreie appeared pro se. At neither her deposition nor the pretrial conference did Alma Dinkela disclose the existence of the contract she had entered into with her mother in May, 1973. It was not until she was being cross-examined that the existence of the written contract came to light. Appellants then objected to the admission of the contract in evidence claiming prejudice and surprise. They also sought a continuance for the purpose of responding to the new development. The court denied the motion for a continuance and allowed the contract to be admitted in evidence. A careful review of the record clearly indicates that Alma was never asked prior to cross-examination at the hearing if she had a specific contract for compensation with her mother. The contract was clearly relevant to the issue of compensation and absent an abuse of discretion by the court, there is no error in its admission. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 613, 549 P.2d 1354 (1976); K.S.A. 60-407(f). We find no abuse of discretion. Appellants also contend the trial court erred in denying their request for a continuance. Again, a ruling upon a request for a continuance lies within the sound discretion of the trial court and we find no such abuse here. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, Syl. ¶ 4, 625 P.2d 1117 (1981).
Next appellants contend the terms of the contract do not clearly and convincingly establish Alma’s claim for compensation. The contract provided, inter alia:
“(3) Second Party [Alma Dinkela] agrees to properly look after and care for First Party [Minnie Kreie] during the life of this agreement and during the lifetime of First Party and as long as the parties reside in [Minnie Kreie’s] home. That in the event such care would necessarily become full time that then in that event Second Party shall be compensated on a reasonable basis.”
The trial court’s findings of fact and conclusions of law include the following:
“4. From May 24th up to and including December 31, 1982, with a few exceptions, Alma has been with her mother during the nighttime hours. Had Alma not resided in the home and been available for nighttime calls, it would have been necessary for Minnie Kreie to arrange for other care. . . .
“2. The terms of the written agreement are clear and unequivocal. Alma has ■ either furnished the care herself or arranged for care, in either case, she assured that her mother was never without care. For this, she is entitled to reasonable compensation.”
Accepting as true the evidence and all inferences therefrom which support or tend to support the findings in the trial court, and disregarding conflicting evidence or other inferences which may be drawn therefrom, we believe the trial court’s conclusion this contract established a reasonable expectation of compensation on the part of Alma Dinkela is supported by substantial competent evidence, and is sufficient to support the court’s conclusions of law. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, Syl. ¶ 2, 624 P.2d 420 (1981); City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976).
Finally, with respect to the compensation issue, appellants contend it was error to allow Alma Dinkela to amend the claim for services to extend it from October 26, 1982, until December 31, 1982, asserting no mention of such an amendment was made at the pretrial conference. The original motion to allow Alma compensation was filed October 29, 1982, and covered the period of time from the accident to October 26th. The matter was not heard until March, 1983, at which time appellees sought to amend the claim to extend through December 31, 1982. Over appellants’ objection the court allowed the amendment and evidence of services rendered during the additional period of time. Again, the amendment of pleadings and pretrial orders lies within the broad discretion of the trial court. Bartlett v. Heersche, 204 Kan. 392, 402, 462 P.2d 763 (1969).
We now turn to the major issue before the court. To what extent, if any, do the provisions of the joint and mutual contractual will and the orders of final settlement in the proceedings in the estate of Harry L. Kreie restrict his widow, Minnie, in the disposal of income derived from the trust imposed by the court orders? Appellee, in a memorandum regarding this matter, stated her position as:
“It is the contention of Mrs. Kreie that she could do whatever she wanted with the income from the trust and need not account to anyone.”
In support of her position she asserts that the trust provisions of the journal entry of final settlement are controlling. Appellants, on the other hand, say the will is controlling and seek to apply general principles of law as they relate to contractual wills to the issue at hand.
At this point, it might be helpful to consider some of the general principles of law pertaining to the rights and obligations of life tenants who hold property with a power of disposition:
(1) “A life tenant, with power to sell or dispose of property devised to him for life with remainder to designated persons, is a trustee or quasi trustee and occupies a fiduciary relation to the remaindermen. In the exercise of that power, the life tenant owes to the remaindermen the highest duty to act honorably and in good faith. A quasi trustee has been defined as a person who reaps a benefit from a breach of trust, and so becomes answerable as a trustee. [Citations omitted.]” In re Estate of Miller, 225 Kan. 655, 658-59, 594 P.2d 167 (1979).
(2) “A life tenant, who by will is given the power to invade and consume the corpus, is subject only to the restrictions that he may not give the property away, devise it by will, or sell it for less than adequate consideration.” 225 Kan. at 659.
(3) The contractual limitations on disposition of property by the survivor extend to his or her separate property and to property originally held with the other party in joint tenancy with right of survivorship, as well as to property received under the will of the other party. Seal v. Seal, 212 Kan. 55, 61, 510 P.2d 167 (1973).
While these principles are simple to state, their application in any given case has proved extremely difficult. A comprehensive review of all of the Kansas cases involving disputes between a life tenant and the remaindermen leads to only one clear conclusion. Each case appears to turn upon its own particular facts and no general rules can be formulated which will apply in all factual circumstances. In the instant case we conclude that neither the will nor the journal entry, to the exclusion of the other, is solely controlling of the issues herein. Both documents must be read together in an attempt to carry out the intent of the testators and the provisions of the court’s orders. In considering the 1973 court orders it must be kept in mind that, in part, they resulted from a compromise and settlement of what was apparently bitter family disagreement over the future handling of the Kreie assets.
For their contention the life tenant could not make gifts of her trust income and later request invasion of the corpus on grounds of necessity, appellants rely on the established principle that language in a will effectively granting the life tenant the “full power to the use and enjoyment” and the “power to sell and dispose” of the residue of the estate does not authorize gratuitous transfers of such property by the survivor. Seal v. Seal, 212 Kan. at 61; Klooz, Administrator v. Cox, 209 Kan. 347, 496 P.2d 1350 (1972); In re Estate of Tompkins, 195 Kan. 467, 407 P.2d 545 (1965); In re Estate of Jones, 189 Kan. 34, 366 P.2d 792 (1961); In re Estate of Buckner, 186 Kan. 176, 348 P.2d 818 (1960). In those cases the property involved was property included in the estate of the first decedent. Here, we are faced with an additional step in the process. The life tenant appears to have given away income from the trust estate property which then resulted in the necessity to invade the corpus. We are faced not only with the will but also the provisions of the trust created in the settlement of the Harry L. Kreie Estate. The broad provisions of the will not only give the life tenant “full power to use, enjoy and consume” the property but also provide that if the income is insufficient for her comfortable support, then property may be sold to provide such support. Superimposed upon the contractual provisions of the will are the trust provisions of the court orders of 1973, which give Minnie Kreie the unfettered right to receive all the income from the estate (trust) property and also provide she shall “not be required to account either to the Trustee, the remaindermen or to the court concerning the use and disposition of said income.” We are not faced with a situation where the will gives authority to the life tenant to dispose of property which may result in diminution of the shares to be received by remaindermen. See Theimer v. Crawford, 224 Kan. 586, 582 P.2d 1151 (1978); Beall v. Hardie, 177 Kan. 353, 279 P.2d 276 (1955); Fourth Nat’l Bank v. First Presbyterian Church, 134 Kan. 643, 7 P.2d 81 (1932).
Until the accident and hospitalization of Minnie Kreie in April, 1982, there was clearly more than sufficient income to properly care for Mrs. Kreie. Her disposal of excess income was permitted by the 1973 trust provisions and there is no indication that the gift of excess income was in any way designed to defeat the terms of the will which she and her husband had entered into. She was merely exercising rights given to her by the trust provisions which evidently came about by agreement among the parties. If she had not suffered her unfortunate accident and resultant disability, it is reasonable to assume that invasion of the corpus would never have been necessary. Thus, we conclude that there is no duty for the appellees to account for the income received by Minnie Kreie prior to her injury of April, 1982.
However, once it became apparent following her injury that the income might not be sufficient for her care and comfort, we are of the opinion that the life tenant was under a duty to preserve the income for her own use and not give it away with the result that the corpus of the trust property would be invaded for her care. To the extent that the court’s order authorizes or allows the disposal of income by gift or for less than a full and adequate consideration, subsequent to April 2, 1982, we reverse the trial court. We affirm otherwise.
We have considered all of the arguments and issues raised by the parties and conclude that the foregoing disposes of the issues. We also point out that this decision is based upon the unusual facts of this case and the documents controlling the issues herein. •
The judgment of the trial court is reversed in part and affirmed in part in accordance with the views expressed herein. | [
112,
-20,
-36,
62,
10,
-32,
122,
-101,
114,
-30,
54,
83,
-23,
-37,
84,
45,
99,
127,
81,
107,
-57,
-14,
22,
0,
-46,
-13,
-13,
-35,
-95,
-35,
-74,
95,
76,
32,
2,
-43,
-58,
-126,
-51,
82,
78,
1,
24,
-31,
-39,
82,
48,
39,
82,
74,
113,
-97,
-77,
41,
29,
-29,
76,
44,
-55,
-68,
-32,
-72,
-117,
-121,
91,
23,
-126,
4,
-100,
-89,
88,
74,
-112,
49,
-128,
-24,
115,
-74,
-106,
116,
75,
11,
8,
34,
103,
16,
-63,
-19,
-72,
-104,
6,
-14,
-115,
-89,
-78,
88,
-78,
97,
-76,
-97,
120,
36,
35,
118,
-26,
21,
79,
-20,
6,
-49,
-42,
-111,
4,
-4,
-98,
91,
-9,
73,
97,
113,
-55,
0,
92,
70,
127,
-101,
-114,
-16
] |
Per Curiam:
This is an attempted appeal by the State from the dismissal of criminal charges against the defendants and other orders entered by the district court. Each defendant was charged with one count of burglary (K.S.A. 21-3715), one count of felony theft and two counts of misdemeanor theft (K.S.A. 21-3701).
On May 26, 1983, immediately preceding the scheduled preliminary healing, both defendants made oral motions to suppress ' certain physical evidence recovered at the time of the arrest of the defendants and oral statements made by defendants at the same time. After oral arguments upon the motions, in which the State vigorously objected because they were not in writing (see K.S.A. 22-3215 and 22-3216), the court briefly questioned one of the arresting officers and then sustained the motions and dismissed all charges against both defendants. The State attempted, but unfortunately has failed, to appeal those rulings of the district court.
Following the dismissal on May 26, 1983, the State, on June 3, 1983, filed a motion for rehearing which was, heard and denied on August 11, 1983. The State then filed a notice of appeal from the orders of the district court “suppressing admissions and seized evidence.” This appeal was docketed in the Court of Appeals as an interlocutory appeal pursuant to K.S.A. 22-3603.
No appeal from the order of dismissal was taken to the Supreme Court pursuant to K.S.A. 22-3602(¿>)(l). The Court of Appeals on October 3, 1983, issued an order to the State to show cause why the case should not be dismissed for several reasons including the failure to file a timely appeal and the failure to appeal from the order of dismissal. All parties responded to the show cause orders; however, the case was transferred to this court pursuant to K.S.A. 20-3018(c) before any ruling upon the motion. We think the order of the Court of Appeals had merit and that we lack •jurisdiction of this case.
The State in its brief asserts that the appeal is an interlocutory appeal, pursuant to K.S.A. 22-3603, from the trial court’s judgment suppressing the physical evidence and statements. Yet in its response to the order to show cause it argues that it is also appealing the dismissal of the complaint which would, of course, be governed by K.S.A. 22-3602(&). The problem with the State’s argument is that it has not appealed from the order dismissing the complaint. Regardless of the merits of the State’s position attacking the procedure and orders of the district court, we lack jurisdiction to consider those issues.
The order to show cause why this appeal should not be dismissed is sustained and the appeal is dismissed. | [
-111,
-32,
-3,
-66,
14,
96,
58,
-66,
65,
-93,
116,
83,
-83,
-46,
5,
127,
91,
125,
117,
121,
-37,
-73,
119,
-127,
-10,
-5,
-39,
-35,
-65,
79,
-28,
-76,
76,
-16,
-126,
-107,
6,
-56,
-57,
84,
-114,
7,
-40,
-22,
-47,
11,
40,
107,
118,
15,
49,
-114,
-5,
41,
24,
-62,
-55,
40,
-53,
60,
-13,
-16,
-118,
85,
127,
20,
-93,
-74,
-102,
5,
-48,
111,
-104,
48,
1,
-24,
114,
-92,
-122,
116,
103,
-101,
-92,
-26,
98,
33,
125,
-17,
-84,
-88,
30,
26,
-99,
-90,
-111,
24,
-56,
37,
-106,
-103,
117,
20,
39,
-4,
-17,
-124,
31,
108,
-122,
-49,
-112,
-109,
13,
57,
34,
-117,
-21,
-95,
48,
48,
-115,
-30,
92,
71,
48,
59,
-50,
-76
] |
The opinion of the court was delivered by
Miller, J.;
This is an appeal by an employer, Hesston Corporation, from a judgment of the Harvey County District Court, finding the individual defendants, Hesston employees, eligible for unemployment benefits under the Kansas Employment Security Law, K.S.A. 44-701 et seq. The separate claims of some sixty-four Hesston employees are before us in this consolidated appeal. The issues raised by Hesston are four:
(1) Whether employees who took vacation with pay during a two-week plant shutdown are eligible to receive unemployment benefits for the shutdown time;
(2) whether employees who did not use any vacation time during the two-week shutdown were eligible for unemployment benefits for the shutdown time;
(3) whether employees who did not seek other work during the two-week shutdown time were eligible for unemployment benefits;
(4) whether the Secretary of the Department of Human Resources can waive the work search requirements of K.S.A. 44-705.
The facts are not in dispute and have been stipulated by the parties. On November 6, 1981, Hesston notified all employees that its Hesston, Kansas, plant would close for two weeks following the normal Christmas holiday closing. Hesston gave the following notice to all employees:
“TO ALL HESSTON EMPLOYEES
“Retail sales of farm equipment during the last two months have been much lower than was originally expected and as a result, it has become necessary to adjust production levels, inventories, and overhead expenses to compensate for this reduction in sales. In order to accomplish this reduction, the Hesston location plant and offices will be closed for an additional two (2) weeks following the normal Christmas holiday closing. Production will cease with the close of second shift operations December 23,1981 and will reopen Monday, January 18, 1982 at 12:01 A.M.
“Holiday pay will be paid during the normal Christmas shutdown for those employees who otherwise qualify. It is expected that all employees will utilize their earned but unused vacation time during the following shutdown period. Employees who do not have remaining unused vacation time, but whose anniversary date falls within three (3) months after the shutdown period may count that time as ‘vacation leave’ and receive vacation pay after passing their next anniversary date. Employees who do not have either unused vacation time or an anniversary date that falls within three (3) months after that shutdown period will receive time off without pay. Additionally, for the production areas only, a second production shutdown is tentatively being planned for the first two weeks in August, 1982.
“Although this second shutdown is still tentative and is some distance in the future, we are communicating the information at this time so that those affected can make their plans accordingly.”
The “normal Christmas holiday closing” was from December 23, 1981, to January 3, 1982. The economic shutdown announced in the notice occurred, and the plant was shut down from January 4 through January 15, 1982.
All of the individual defendants in this case are Hesston employees, and all of them were covered by a collective bar gaining agreement which was effective during the shutdown period. That agreement provides in substance that, within certain limits, the employees may choose their vacation time. The agreement provides:
“29. VACATION SCHEDULING. Vacation as provided for herein shall be granted and taken during the twelve (12) months immediately following each employee’s anniversary day of employment; and shall be scheduled, when reasonably possible, at times most desired and requested by the employees. The Company and the Union shall establish a mutually agreeable protected period during which a senior employee cannot replace a junior employee who has already scheduled a vacation. Except for this protected period, vacations will be scheduled based on seniority, provided they do not interfere with the orderly and efficient continuation of production. It is understood that the final right to allot vacation periods and to change such allotments is reserved to the Company in order to insure the orderly operation of the plant.”
There is a further agreement between union and management which implements paragraph No. 29 of the collective bargaining agreement. It reads:
“To implement paragraph #29, Vacation Scheduling, of the collective bargaining agreement, the Company and Union agree to the following general policy and procedure:
“1. By January 1 of each year, the Company shall provide to its supervisors a general outline of the vacation allotments for the coming calendar year within each department.
“2. By February 15, the department supervisors shall contact all employees in their departments who are eligible for vacations during the year, to determine when individual vacations are desired and how they can be scheduled in accordance with both seniority and production efficiency. Employees may request desired vacation times from their supervisors during this period.
“3. When a vacation is requested more than 60 days prior to the day it is to begin, preference shall be given to seniority in making the vacation assignment, subject to production considerations.
“4. Once an employee schedules a vacation and it is approved by the Company, that vacation may not be changed by either the employee or the Company within the sixty (60) day period prior to the start of the vacation except with the mutual consent of the employee and the supervisor.
“5. Vacation requests made by employees within 60 days from the beginning of the requested vacation period, shall be processed on a first come, first served, basis, subject to production requirements.”
A large number of Hesston employees filed claims for unemployment compensation for all or part of the shutdown period. They were told by the Department of Human Resources that they were not required to seek other employment during this two-week shutdown. Upon hearing the claims, the Examiner found against all of the employees who had applied, and denied benefits. Some of the applicants did not appeal. All of the individual defendants in this case did appeal; the Referee reversed the Examiner, and granted benefits. Hesston then appealed to the Board of Review, which upheld the Referee’s decision. Hesston appealed to the district court, which in turn upheld the Board’s decision in favor of the employees.
Hesston’s employees fall into five distinct groups, the first two of which are not parties to this action:
1. Those who had two weeks of vacation time coming, took it during the layoff, received vacation pay, and did not file for unemployment compensation.
2. Those who filed for unemployment compensation, were denied benefits by the examiner, and did not appeal that decision.
3. Those who were entitled to no accrued vacation time with pay, at the time of the shutdown.
4. Those who had varying periods of accrued vacation time coming, but who elected to take it at times other than during the shutdown.
5. Those who had some accrued vacation time coming, and who elected to take it during the first week of the shutdown, and either used it all up at that time or elected to take the rest of their vacation at some later time. These people filed for and were awarded unemployment compensation for the second week of the shutdown only.
The individual defendants include those who fall into groups No. 3, 4 and 5 above. None of the individual defendants are claiming unemployment compensation benefits for periods during which they were actually paid vacation pay by Hesston.
We turn first to the third and fourth issues as stated above. Hesston contends that K.S.A. 44-705 requires an unemployed worker to make an active search for other work, that an employee who does not seek other work is not eligible for unemployment benefits, and that the Secretary of the Department of Human Resources cannot waive the “work search” requirements of K.S.A. 44-705.
That statute reads as follows:
“44-705. ... An unemployed individual shall be eligible to receive ben efits with respect to any week only if the secretary, or a person or persons designated by the secretary, finds that:
“(a) The claimant has registered for work at and thereafter continued to report at an employment office in accordance with rules and regulations adopted by the secretary, except that, subject to the provisions of subsection (a) of K.S.A. 44-704 and amendments thereto, the secretary may adopt rules and regulations which waive or alter either or both of the requirements of this subsection (a).
“(b) The claimant has made a claim for benefits with respect to such week in accordance with rules and regulations adopted by the secretary.
“(c) The claimant is able to perform the duties of his or her customary occupation or the duties of other occupations for which the claimant is reasonably fitted by training or experience, and is available for work, as demonstrated by his or her pursuit of the full course of action most reasonably calculated to result in his or her reemployment . . . .”
We note that this section was amended by the legislature in 1982 (see K.S.A. 1983 Supp. 44-705), but the amendments to the portions quoted above do not change the thrust of the provisions here involved. Hesston argues that the Secretary is specifically authorized to adopt rules which waive or alter either or both of the requirements of subsection (a), but that the Secretary is not authorized to “waive” the provisions of subsection (c), which includes the “work search” requirements.
Several other statutes also need to be considered. K.S.A. 44-702 sets forth a declaration of the public policy of this state: protection against involuntary unemployment. K.S.A. 44-703(m) defines “unemployment”:
“An individual shall be deemed ‘unemployed’ with respect to any week during which such individual performs no services and with respect to which no wages are payable to such individual . . . .”
Two of the Kansas Administrative Regulations relating to unemployment insurance are as follows. K.A.R. 50-1-4 defines various terms. It reads in part:
“(a) Types of unemployed workers. An unemployed individual may be classified, as the terms are used in these regulations, as a totally unemployed worker, a part-totally unemployed worker, a temporarily unemployed worker, or a partially unemployed worker ....
“(3) Temporary unemployment. A totally or part-totally unemployed worker shall be considered to be temporarily unemployed for a period not to exceed four consecutive weeks, if he has been laid off due to lack of work by an employing unit for which he has worked full time and for which he expects to again work full time, provided that his employment with such employing unit, although temporarily suspended, has not been terminated.
K.A.R. 1982 Supp. 50-3-2(e) provides:
“(e) New claims. A new claim for benefits shall be filed on a form entitled unemployment insurance application which shall set forth that the worker has registered for work, the dates and reasons for separation from recent employment, and such other information as prescribed by the division in the form. A new claim for benefits filed by a . . . temporarily unemployed worker shall constitute his or her registration for work. Claims personnel will give each claimant such necessary and appropriate assistance as they reasonably can, including referral to the public employment office most accessible to him or her.
“Those temporarily unemployed . . . may be excused from registration for work.”
The employees in this case were “temporarily unemployed” as defined in K.A.R. 50-1-4(3). They were laid off for a period of two consecutive weeks due to “lack of work by an employing unit,” for which each had worked full time, and for which each employee expected to again work full time. The claim filed by each temporarily unemployed claimant constituted that employee’s registration for work. K.A.R. 1982 Supp. 50-3-2(e). The employees here involved had filed claims and thus had registered for work; yet, Hesston contends that the employees were required to search for a job because of the unwaivable provisions of K.S.A. 44-705(c), which require them to pursue “the full course of action most reasonably calculated to result in . . . reemployment . . . .” In support of its contention, Hesston cites Chadwick v. Employment Security Board of Review, 192 Kan. 769, 390 P.2d 1017 (1964), and Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P.2d 856 (1961). Both cases are distinguishable. Chadwick involved a claimant who had worked for Southwestern Bell Telephone Company at Olathe. She was placed on pregnancy leave in October 1961. Some months later she requested a transfer to the office at Parsons, Kansas, where she had moved with her husband. Southwestern Bell was unable to place her at that location because others with more seniority were on the waiting list for jobs. She made only minimal efforts to secure other employment. In Clark, the claimant, having reached the mandatory retirement age of sixty-five, was retired from his employment with Skelly Oil Company in El Dorado. Thereafter, he drew retirement compensation from Skelly in addition to Social Security benefits. Neither Chadwick nor Clark were temporarily unemployed; neither was laid off for a short period of time due to a temporary closing of the employment facility; neither case has any facts bearing any significant similarities to the case at hand. The employees here, as we previously noted, were registered for work by virtue of their unemployment claims. They were not permanently discharged or laid off, but were assured that they would be returned to their regular work at the close of the two-week shutdown. The shutdown was mandated by the company because of a reduction in retail sales and the necessity of adjusting production levels, inventories, and overhead expenses. We cannot say that the action by the claimants in waiting until the plant reopened, and in registering for work, was not the action “most reasonably calculated to result in [their] reemployment.” A requirement that the employees each make individual search for temporary work during a temporary shutdown does not appear reasonable, and is not required by K.S.A. 44-705(c). Hesston does not argue (under that statute) that the employees were unable to perform the duties of their customary occupations, or that they were not reasonably fitted by training or experience for other occupations; and it does not argue that they were unavailable for work. We conclude that employees who are temporarily unemployed due, as here, to a short and temporary economic shutdown are not required to do more then “register for work.” The action of the employees was reasonably calculated to result in reemployment.
Turning to Hess ton’s argument that the Secretary of the Department of Human Resources cannot waive the work search requirements of K.S.A. 44-705, we find that the regulations are reasonable under the circumstances. The Secretary has not “waived” the requirements of that statute, but instead has simply read the statute rationally with reference to employees who are temporarily unemployed. A worker whose job has been terminated, and who is not merely subject to a temporary work stoppage, is in an entirely different position. We find the Secretary’s interpretation of the act, and the quoted regulation, reasonable and not contrary to the statute.
We turn now to the first two issues raised — whether employees who took vacation with pay during the first week of the two-week plant shutdown are eligible to receive unemployment benefits for the second week of shutdown time, and whether employees who were entitled to vacation time but who did not use it during the two-week shutdown time, and who elected to take it at other times during the year, were eligible for unemployment benefits during the shutdown time. We have already noted above that none of the employees who are defendants herein took a full two weeks of vacation time and drew vacation pay for that period; hence, the first issue is limited to those who drew vacation pay during the first week and claimed unemployment compensation during the second.
First, Hesston contends that the general rule is that a claimant is not eligible for unemployment compensation benefits while he is receiving vacation pay. Again, as we noted earlier, the employees herein are not claiming unemployment compensation benefits for weeks during which they received vacation pay. As a result, the rule cited by Hesston, which was applied in Director of Dept. of Ind. Relations v. Butler, 367 So. 2d 496 (Ala. App. 1979), is not applicable to the fact situation here.
Hesston also contends that employees who drew vacation pay for the first week of the shutdown are ineligible to draw unemployment compensation for the second week because they failed to meet the one-week waiting period provided in K.S.A. 44-705(d), which provides:
“44-705. . . . An unemployed individual shall be eligible to receive benefits with respect to any week only if the secretary, or a person or persons designated by the secretary, finds that:
“(d) The claimant has been unemployed for a waiting period of one week which occurs within the benefit year which includes the week for which the claimant is claiming benefits.”
In support of this contention, Hesston cites Golubski Unempl. Compensation Case, 171 Pa. Super. Ct. 634, 91 A.2d 315 (1952). That case, like this, involved a two-week plant shutdown. The Pennsylvania court held that the first week for which the employees were not paid constituted the waiting period required by Pennsylvania law, and thus the employees were not entitled to unemployment compensation for that week. Here, the district court affirmed the ruling of the Board of Review, without attaching a copy or quoting from the Board’s ruling. No copy of the board’s ruling in “one-week claim” cases has been included in the record on appeal. We do not know, and we will not speculate about, the basis upon which the Board allowed compensation. The employees may have had an earlier layoff within the period of one year; or the Board may have considered the week as the waiting period and allowed compensation at the end thereof; or it may have disallowed compensation but counted that week as a waiting period, making the employees eligible without waiting during the ensuing fifty-one week period in the event of further layoffs. The record does not disclose precisely what action the Board took, or what its reasoning was. It is the duty of an appellant to bring up a complete record of all matters upon which review is sought. Armstrong v. City of Salina, 211 Kan. 333, Syl. ¶ 2, 507 P.2d 323 (1973); Eckdall v. Negley, 5 Kan. App. 2d 724, Syl. ¶ 1, 624 P.2d 473 (1981). Stated another way, the appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper. Jackson v. City of Kansas City, 235 Kan. 278, 307, 680 P.2d 877 (1984); State v. Bright, 299 Kan. 185, 623 P.2d 917 (1981). We conclude that we are unable to determine the waiting period issue on the basis of this record.
We turn now to the final issue: Whether employees who were entitled to vacation time but who did not use it during the two-week shutdown, and who elected to take it at other times during the year, were eligible for unemployment benefits during the shutdown time. This would apply to employees who fall within the fourth and fifth classifications or groups listed earlier in this opinion. Hesston claims that these employees who were entitled to some vacation time and did not take it during the shutdown were not involuntarily unemployed. In discussing this claim, the parties cite Goodyear Tire & Rubber Co. v. Employment Security Board of Review, 205 Kan. 279, 469 P.2d 263 (1970). The holding in that case is summarized by paragraph No. 2 of its syllabus:
“Under a collective bargaining agreement which authorized the employer to shut down all or part of its plant for two weeks for vacation purposes, and those employees eligible to a vacation were required to take their vacations during the shutdown period, unless they elected to defer all or part of their vacation to the following year, or had scheduled their vacation for some other time during the vacation year, in which case they were considered on a ‘leave of absence,’ it is held, that employees who elected to take their vacations at some other time than during the shutdown period were voluntarily unemployed and, thus, were not eligible for unemployment compensation benefits under the law.” (Emphasis in original.)
The collective bargaining agreement involved in this case says nothing about shutdowns. There is a proviso which requires vacations to be taken at times consistent with the orderly and efficient continuation of production; but nothing is said about mandatory use of vacation time during economic or other shutdowns. The agreement, as written and entered into, contemplates sporadic vacationing. We have carefully set forth the provisions of the collective bargaining agreement, and the supplemental agreement between union and management, earlier in this opinion. It is obvious that the employees bargained for and secured the right to take vacations at preselected periods throughout the year, with the consent of their superiors. There is nothing in the agreement which requires the taking of those vacations at the time of any plant shutdown, whether for economic reasons or otherwise. To require all of the employees to take their vacations in early January — immediately following the usual Christmas closing — would thwart the substance and purpose of the collective bargaining agreement.
Under the collective bargaining agreement before us in Goodyear, the employer was authorized to shut down all or part of its plant for two weeks for vacation purposes, and employees eligible for a vacation were required to take vacations during the shutdown period, unless they elected to defer all or part of their vacation to the following year, with certain exceptions. The Hesston agreement, however, contains no such provisions, and the employees were not required to take their vacations during the economic shutdown. The terms of the collective bargaining agreement must control. Under the facts before us, we hold that the individual defendants were not “voluntarily unemployed” during Hesston’s economic shutdown, as were the employees in Goodyear, who were contractually bound to take their vacations during the shutdown period.
We find no error.
The judgment is affirmed. | [
-48,
-24,
-4,
-84,
8,
-23,
18,
-102,
67,
-89,
39,
81,
-21,
-106,
25,
123,
-1,
101,
112,
105,
-13,
-73,
19,
-56,
80,
-13,
-101,
-51,
-5,
107,
-76,
69,
76,
16,
10,
-60,
-26,
-48,
-52,
28,
-84,
7,
-102,
-7,
121,
82,
60,
-85,
-78,
11,
113,
-116,
-5,
46,
24,
-49,
72,
47,
-5,
95,
33,
-15,
-70,
5,
95,
20,
-118,
1,
-100,
-41,
-48,
63,
-112,
56,
-31,
-24,
114,
-92,
-46,
60,
11,
57,
40,
102,
98,
34,
60,
-25,
-20,
-120,
14,
-45,
-97,
-28,
-15,
24,
43,
0,
-100,
-103,
-3,
20,
72,
124,
-14,
-91,
31,
36,
-122,
-58,
-68,
-77,
13,
101,
-106,
-117,
-1,
-123,
-94,
97,
-34,
-90,
89,
7,
48,
31,
-53,
-103
] |
Whereas, on the 16th day of December, 1983, Arno Windscheffel, Disciplinary Administrator, filed a formal complaint against Larry B. Henderson, an attorney admitted to practice law in the State of Kansas; and
Whereas, it is alleged in the complaint that Larry B. Henderson neglected a legal matter entrusted to him in that he represented the plaintiff in a divorce proceeding filed in the District Court of Shawnee County, Kansas, on or about September 3, 1982; that said divorce was heard on November 4, 1982, and a divorce granted to the plaintiff; that Larry B. Henderson was ordered by the Hon. Terry L. Bullock to prepare and file a journal entry; that despite repeated requests by plaintiff, Larry B. Henderson failed or refused to prepare and file the journal entry; and that it was not until October 20, 1983, that the journal entry was filed by another attorney; and
Whereas, on the 6th day of January, 1984, Arno Windscheffel, Disciplinary Administrator, filed a formal complaint against Larry B. Henderson alleging that he had neglected a legal matter entrusted to him in that as conservator for an incapacitated person he failed and neglected to file annual accountings for the period from December, 1972, to December, 1980, and that upon being ordered to do so by the District Court of Wabaunsee County, Kansas, it was determined Larry B. Henderson had misappropriated his ward’s funds in an amount of at least $33,000.00; and
Whereas, on the 8th day of March, 1984, Larry B. Henderson notified the Disciplinary Administrator that he was surrendering his privilege and license to practice law in the State of Kansas; and
Whereas, after due consideration, the Court finds that the privilege and license of Larry B. Henderson to practice law in the State of Kansas should be cancelled, that he be disbarred and that his certificate to practice law be declared cancelled;
Now, Therefore, It is Ordered and Decreed that Larry B. Henderson be and he is hereby disbarred from the practice of law in the State of Kansas, and the Clerk of the Appellate Courts is directed to strike the name of Larry B. Henderson from the roll of attorneys in the State of Kansas.
It is Further Ordered that the certificate of Larry B. Henderson to practice law in the State of Kansas is hereby cancelled and the costs of this action are assessed to Larry B. Henderson.
It is Further Ordered that this order shall be published in the official Kansas Reports and thát the Clerk of the Appellate Courts shall comply with the provisions of Supreme Court Rule 217.
Effective this 8th day of March, 1984. | [
-79,
-24,
-104,
124,
10,
1,
58,
-94,
91,
-85,
101,
83,
-17,
-6,
4,
121,
-61,
13,
80,
121,
-25,
-73,
118,
64,
-58,
-13,
-63,
-43,
-77,
-33,
-28,
-105,
72,
40,
74,
-107,
-122,
-56,
-115,
28,
-58,
2,
-119,
-26,
-40,
5,
52,
109,
82,
15,
81,
63,
-93,
43,
127,
-53,
-88,
52,
-50,
73,
-47,
-111,
-119,
21,
79,
83,
-95,
-122,
-102,
13,
84,
43,
-100,
48,
-127,
-23,
115,
-74,
-98,
118,
15,
41,
32,
102,
98,
33,
-115,
-17,
-96,
-120,
15,
50,
-99,
-90,
-111,
89,
64,
0,
-106,
-100,
117,
-112,
35,
-12,
-23,
5,
29,
108,
-114,
-53,
-108,
-109,
-34,
120,
-116,
11,
-21,
-94,
48,
52,
-117,
-12,
95,
71,
56,
27,
-33,
-12
] |
Whereas, on the 25th day of May, 1983, Robert D. Nelson was indefinitely suspended from the practice of law in the State of Kansas, [see State v. Nelson, 233 Kan. 473, 663 P.2d 303 (1983)], and
Whereas, on or about the 19th day of August, 1983, Arno Windscheffel, Disciplinary Administrator, filed an additional complaint against Robert D. Nelson charging neglect of a legal matter in the criminal appeal of one James L. Chamberlain, and
Whereas, State v. Chamberlain, 234 Kan. 422, 672 P.2d 604 (1983), was decided by this court December 2, 1983, and
Whereas, on the 12th day of December, 1983, the date set for the hearing of the disciplinary complaint, Robert D. Nelson, pursuant to Supreme Court Rule No. 217, 232 Kan. clxx, voluntarily surrendered his license to practice law in the State of Kansas.
Now, Therefore, It is Ordered that Robert D. Nelson be and he is hereby disbarred from the practice of law in the State of Kansas, and the Clerk of the Appellate Courts is directed to strike his name from the rolls of attorneys admitted to practice in Kansas.
It is Further Ordered that this order shall be published in the official Kansas Reports.
Effective this 22nd day of March, 1984. | [
-76,
-53,
-36,
30,
26,
97,
58,
-82,
83,
-45,
55,
83,
-23,
90,
5,
121,
19,
109,
85,
122,
-51,
-74,
119,
73,
70,
-5,
-63,
-43,
-69,
95,
-10,
-11,
72,
-72,
74,
85,
-122,
-53,
-119,
88,
-114,
6,
11,
-12,
-37,
0,
48,
45,
50,
31,
49,
62,
-109,
106,
94,
-51,
-120,
44,
-50,
100,
81,
-111,
-103,
29,
126,
16,
19,
36,
-98,
7,
84,
63,
-104,
57,
5,
-8,
115,
-94,
-126,
118,
103,
-23,
40,
70,
98,
35,
49,
-83,
-92,
-120,
6,
112,
29,
-89,
-103,
89,
99,
9,
-106,
-35,
115,
52,
43,
-4,
-21,
-123,
21,
108,
10,
-53,
-128,
-109,
-49,
117,
-82,
25,
-29,
-122,
16,
21,
-123,
-25,
78,
71,
50,
27,
-122,
-12
] |
The opinion of the court was delivered by
Herd, J.:
The plaintiffs-appellees are Michael Wayland and W-V Enterprises, Inc. The defendant at trial was North Kansas Savings Association, a federally insured, state chartered savings and loan corporation. By virtue of a post-trial order of the Federal Home Loan Bank Board the defendant is in receivership, and the appellant is now the Federal Savings & Loan Insurance Corporation (FSLIC), as receiver for North Kansas Savings Association.
The appellees’ cause of action for compensatory and punitive damages at issue in this appeal arose from the business relationship between the appellees and North Kansas Savings Association from 1972 through 1974. The focal point was a plan for the design, development, and marketing of pre-stressed steel apartment buildings. The appellees were induced by the appellant North Kansas Savings Association, through its officers, to participate in this business enterprise.
North Kansas was affiliated with a number of corporations which had dealings, directly and indirectly, with the appellees. The most important of these affiliates and subsidiaries were North Kansas Service Corporation and Trans-Western, Inc. North Kansas Service Corporation, a Kansas corporation, was a wholly owned subsidiary of North Kansas Savings Association. The service corporation was authorized to engage in business activities and “risk ventures” which the savings and loan association could not undertake on its own behalf.
Although Trans-Western, Inc. was created for the purpose of becoming the holding company of North Kansas Savings Association, that plan never came about. At the time North Kansas Savings Association applied for approval of Trans-Western as its holding company, federal regulations provided only two percent of the total assets of the savings association could be invested in risk ventures of a related service corporation and its subsidiaries. North Kansas Savings Association had greatly exceeded the two percent limitation. The reason given for the denial of Trans-Western’s application for holding company status by the Federal Home Loan Bank Board was that no certified audit could be provided.
Against this background, while North Kansas was creating an interlocking corporate pyramid, Michael Wayland became acquainted with Roger Chester, president of North Kansas Savings Association. Wayland did business as Wayland Construction Company. In 1972 Wayland was constructing a steel building to house a mobile home manufacturing plant in Lincoln, Kansas. Wayland had been in the construction business since early 1956. He had become an authorized Behlen Steel distributor in 1965. In addition, Wayland was a fifty percent owner in Colby Steel Corporation, which was also an authorized Behlen Steel distributorship. Colby Steel engaged in marketing and installing grain handling equipment.
After seeing the Wayland project in Lincoln, Chester became interested in using the Behlen free-standing structural steel concept in the design and construction of apartment complexes. Chester believed spiraling lumber and construction costs made such buildings cost efficient. Chester proposed Wayland build a “pilot project” as a “showcase” to demonstrate design and cost efficiency in selling packages to investors, developers, and contractors.
At that time, Chester was working with Carl VanDalsem on a multimillion dollar gasoline filling station project. At a meeting held at the offices of North Kansas in Beloit, Wayland became reacquainted with VanDalsem, whom he had previously known in school. Both Chester and VanDalsem became interested in the plan for the nationwide marketing of steel apartment buildings. Chester urged Wayland and VanDalsem to incorporate as a vehicle to facilitate that plan. They complied by incorporating W-V Enterprises on January 12, 1973. The incorporators were Michael Wayland, Carl VanDalsem and their spouses.
After a plan to build the pilot structure in Colby fell through, Concordia was selected as the site. An appraisal indicated the project was feasible there. Chester promised Wayland North Kansas would provide interim and long-term financing for the construction. In spite of Chester’s assurances of complete financing, on March 1, 1973, North Kansas issued a commitment for only permanent financing. Thereafter Wayland and VanDalsem made arrangements with Citizens Savings Association for interim construction financing in the amount of $300,000. Citizens Savings agreed to provide the interim construction financing conditioned on the reissuance of the March 1 commitment letter from North Kansas Savings Association to provide the long-term, take-out financing flowing directly to Citizens Savings. This resulted in a second commitment letter, dated March 14, 1973, which provided upon completion.of the project North Kansas Savings Association would provide $300,000 in permanent financing. The commitment was restricted. W-V paid a commitment fee of $3,000 to North Kansas. The real property in Concordia was purchased by W-V for $7,500 on March 6, 1973, and the project began shortly thereafter. Wayland informed North Kansas he estimated the cost of the Concordia project would be $295,000 for materials alone. According to Chester, W-V would receive a six percent development fee and a six percent construction fee when the project was sold.
At the request of Roger Chester, and to accommodate his plan that the Concordia complex be a “showcase” for potential investors, Wayland redesigned it to give it a more attractive mansard roof. This change increased the cost by $10,000 per unit. Chester orally committed North Kansas to provide additional financing in the amount of $30,000.
Wayland and the employees of Wayland Construction Company devoted approximately one and one-half years to the drafting of some twenty-one designs for structural steel apartment complexes in preparation for North Kansas’ nationwide marketing plan.
On June 20, 1983, just three months after issuing its commitment letter, Carl VanDalsem was informed by Don Tompkins, vice-president of North Kansas, that North Kansas might not be in a position financially to provide any financing on the Concordia project. When Wayland confronted Chester, he was informed there was no basis for the letter. Wayland was assured by Chester if the apartments were not sold to one of Chester’s investor contacts by the time they were completed, North Kansas would place the Concordia project in one of its subsidiary or affiliated corporations.
In the meantime Carl VanDalsem had gone bankrupt. In order to keep North Kansas informed of all developments Wayland informed Dennis Vogan, of North Kansas, by letter on September 10,1973, that Carl VanDalsem was no longer financially capable of carrying on his role in W-V. Wayland further stated he was not willing to continue the project unless North Kansas would stand behind its commitment of $330,000 at a maximum rate of nine and one-quarter percent. Additionally, in a memorandum to the file, dated September 26, 1973, Dennis Vogan referred to a telephone conversation with Mike Wayland in which he stated, “Mike indicated that Carl VanDalsem was completely out of the picture .... Conversation ended on good standing saying we would be in touch.” Thereafter, on October 5, 1973, W-V paid an additional fee of $100 to North Kansas Savings as consideration for an extension of the permanent loan commitment.
On December 18, 1973, Vogan informed Wayland the appraisal of the Concordia apartments obtained in November, 1973, reflected a value of only $300,000 and therefore a loan in the amount of $330,000 was not feasible. On December 26, Don Tompkins, vice-president of North Kansas, wrote: “Due to substantial changes in W-V, Inc., after our commitment letter of March 14, 1973, . . . North Kansas Savings Association is no longer in a position to purchase the permanent [financing].” North Kansas’ waffling on its commitment was very unsettling to Wayland.
A meeting to resolve the financing delays was held on December 28, 1973, at Citizens Savings Association, but no resolution was reached. A second meeting was held on January 22, 1974, in the home offices of North Kansas. At that meeting, the parties reached an understanding, which was memorialized in a letter dated January 28, 1974, from W-V’s attorney to North Kansas’ attorney. According to the January 28 letter the property would be appraised by a member of the Appraisal Institute, an MAI appraiser. North Kansas would then loan eighty percent of the appraised value not to exceed $330,000. Wayland interpreted this to be reaffirmation of the previous commitment with the appraisal requirement only necessary red tape. He selected two appraisers who appraised the property at $325,000. Then came the surprise. North Kansas advised Wayland on February 15, 1974, it would lend him only eighty percent of the $325,000 appraised value or $260,000.
Wayland did not accept the offer of $260,000 in permanent financing. Instead, he attempted to extricate himself from the problems by offering to sell the Concordia project. On February 13, 1974, he made a payment of $2,500 to Interstate Business Marketing, Inc., Pueblo, Colorado, to retain its services for the sale of the project. Interstate undertook an extensive nationwide effort to sell the project. Wayland also contacted Green Realtors in Overland Park, Kansas, regarding the rental and sale of the apartments. In addition, officers of Citizens Savings undertook to rent the apartments. In the meantime, Wayland also attempted to obtain financing from numerous other sources and in his efforts to remain solvent he sold some of his own property and obtained a $100,000 loan from the Small Business Administration (SBA). This money was used to pay the out-of-pocket construction costs for the Concordia project and to pay off material and subcontractors’ liens to make it merchantable. The total cost of the project turned out to be $422,000. Only $284,000 had been received from the interim construction lender, Citizens Savings. There is no evidence North Kansas ever attempted to sell the project or obtain a substitute lender.
Wayland’s efforts to sell were unsuccessful. On February 20, 1974, Wayland received notice from Citizens Savings the construction loan, plus interest, was due; by August 7,1974, Citizens Savings laid claim to the rental payments; and on April 5, 1976, Citizens Savings filed a foreclosure action against the project. Other suits relating to the Concordia project were brought against Wayland by Bostwick Steel Lathe Company, the Pascoe Steel Company, and Behlen Manufacturing Company. The SBA foreclosed, resulting in the sale of the mortgaged equipment (all of the equipment of the Wayland Construction Company) at a substantial loss. In addition, Wayland lost his Behlen distributorship, suffered damage to his credit and business reputation, and suffered extreme financial pressures. Wayland became severely depressed, and required several periods of hospitalization, including electroshock therapy treatments. Then, to cap the climax, Wayland’s wife of twenty-five years divorced him.
Wayland brought suit against North Kansas Savings Association on January 21, 1976. A jury returned a verdict in his favor in the amount of $1,245,944 in compensatory damages and awarded punitive damages of $250,000. The FSLIC as receiver for North Kansas appealed.
The appellant first argues the letter of January 28, 1974, by W-V’s attorney to North Kansas’s attorney, memorializing a meeting of the parties on January 22, 1974, was a new and fully integrated final agreement of the parties and the trial court erred in admitting parol evidence to contradict its terms.
The January 22, 1974, meeting was requested by Michael Wayland’s attorney. The purpose of the meeting was to determine why North Kansas was stalling on honoring its written commitment to provide permanent financing for the Concordia apartment project. North Kansas contended the loss of Carl VanDalsem’s interest in W-V had created “substantial changes” in W-V, and thus released North Kansas from its obligation to provide permanent financing. The evidence at trial indicated this was a pretext. That evidence consisted of statements by and communications with officers of North Kansas and Trans-Western, Inc., which disclosed Trans-Western had attempted to become the holding company for North Kansas. Its application was denied by the Federal Home Loan Bank Board because no certified audit could be provided. Also, in June, 1973, one officer informed W-V that North Kansas was experiencing “tight money problems” and it was uncertain whether it could fulfill its commitment to provide permanent financing for W-V. The evidence also showed Mike Wayland had informed North Kansas Carl VanDalsem was no longer associated with W-V due to his impending bankruptcy as early as June 1973, and on October 4, 1973, North Kansas extended its financing commitment; this occurred over a week after North Kansas’ September 26 acknowledgment of the disassociation of VanDalsem from W-V. Thus, changes in W-V were not the cause of North Kansas’ backing out on its commitment.
The letter memorializing the January 22 meeting noted six factors upon which the permanent financing of W-V was contingent. These factors were: (1) W-V would provide North Kansas with a MAI appraisal of the Concordia apartment project by an appraiser approved by North Kansas; (2) the appraisal would be submitted to the North Kansas Board of Directors along with personal financial statements of Mike Wayland and his brother, John, and their tax returns for the preceding three years; (3) subject to the board of directors’ approval North Kansas would loan to W-V a sum equal to eighty percent of the appraised value of the project, such sum not to exceed $330,000 and at an interest rate not to exceed nine and one-quarter percent; (4) the board of directors would render its decision within three days after the appraisal and other information was submitted; (5) the shareholders of W-V would submit an affidavit indicating Carl VanDalsem had no further interest in W-V; (6) the mortgage title insurance would be taken care of by Citizens Savings Association, which had provided the interim financing.
All the conditions were met by W-V until a problem arose over the MAI appraisal. The parties had originally agreed to $300,000 financing on March 14, 1973, plus an additional $30,000 for the mansard roof design change. Thus, W-V was entitled to $330,000. The MAI appraisal of the complex was $325,000. The board of directors of North Kansas calculated eighty percent of the $325,000, pursuant to the letter of January 28, 1974, and offered to provide W-V $260,000 financing, $70,000 short of the previous commitments. The issue then is whether the letter of January 28, 1974, constituted a novation or a modification of the March 14, 1973, agreement.
Appellant contends the January 28 letter is a complete new agreement of the parties. The appellees counter that the construction of the letter was a question of fact and therefore was properly submitted to the jury and decided. Appellees’ argument is erroneous. While an oral agreement, which changes a prior written agreement, is a question of fact to be submitted to a jury, the construction of a written instrument purported to be a novation is a question of law for the court. Davenport v. Dickson, 211 Kan. 306, 311-12, 507 P.2d 301 (1973). See also Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 330, 582 P.2d 1111 (1978); Coonrod & Walz Constr. Co., Inc. v. Motel Enterprises, Inc., et al., 217 Kan. 63, Syl. ¶ 2, 535 P.2d 971 (1975); and Alexander v. Wehkamp, 171 Kan. 285, 290, 232 P.2d 440 (1951). Further, while a question of fact determined by the jury may not be redecided by the court on appeal, the construction of a written instrument, due to its status as a question of law, may be construed and its legal effect determined by the appellate court. Stanfield v. Osborne Industries, Inc., 232 Kan. 197, Syl. ¶ 1, 654 P.2d 917 (1982).
W-V, however, also argues the point in the alternative, contending that if the construction was in fact a question of law for the court, but was erroneously submitted to the jury at trial, North Kansas cannot raise the issue on appeal and request this court to reconstrue it, since the issue was presented to the jury upon North Kansas’ request. This argument is correct. At trial, North Kansas contended the validity of the January 28, 1974, agreement was a question of fact for presentation to the jury. The trial court acceded to its request. Where a party persuades a court to proceed in a particular way and invites a particular ruling, the party is precluded from asserting the issue on appeal. Grimm v. Pullesen, 215 Kan. 660, Syl. ¶ 3, 527 P.2d 978 (1974). Thus, the jury’s determination there was no novation will stand.
North Kansas next contends the January 28, 1974, letter was a modification of its commitment since the intent of the parties to modify the March 14 commitment “may be implied from their conduct.” Byers Transp. Co. v. Fourth Nat. Bank & Trust Co., Wichita, 333 F.2d 822, 825 (10th Cir. 1964). Appellant’s reliance on Byers is misplaced. In Byers the parties agreed to a new and later closing date. The parties acted according to the new date with no one attempting to close as originally agreed. In the instant case, while both North Kansas and W-V complied with the new requirements of the January 28 letter, they did not agree the loan commitment had changed. W-V continued to act ac cording to the original commitment of March 14, 1973. We conclude the letter was not a modification.
Appellant next argues the trial court erred in admitting parol evidence to explain the January 28 letter. At trial the court ruled W-V had introduced sufficient evidence of mutual mistake to admit parol evidence. The mutual mistake of the parties consisted of the meaning of “appraisal” in calculating the loan amount. Appellees understood the appraisal was mere red tape for the purpose of substantiating the amount of the loan for examiners while appellant contends the appraisal controlled the loan amount. This court has stated the rule pertaining to the admission of parol evidence in the case of mutual mistake as follows:
“In order for parties to form a binding contract, there must be a meeting of the minds as to all essential terms. [Citation omitted.] As between the original parties to a contract parol evidence to show mutual mistake may be introduced in an action to show the nonexistence of a binding contract.” Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 79, 630 P.2d 1107 (1981).
North Kansas asserts even though mutual mistake exists parol evidence should not have been admitted since “appraisal” is not an ambiguous term. Appellant’s argument is erroneous. The evidence was admissible on the issue of either mutual mistake or ambiguity. Here both exist. “The law is well settled that where ambiguity exists in a document evidence is admissible as an aid to its interpretation.” Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973). See also Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 457 P.2d 691 (1969), and Culp v. Bloss, 203 Kan. 714, 457 P.2d 154 (1969). Appellant’s brief sets forth a series of confusing definitions, sufficiently illustrating the ambiguity inherent in the term of “appraisal.” The record also indicates the uncertainty of the witnesses as to the exact meaning of the term. Even the MAI appraisers testified the term had a variety of meanings. Parol evidence was appropriate to clarify the ambiguous term “appraisal” and to resolve the issue of mutual mistake.
For its next issue North Kansas argues there was insufficient evidence for the trial court to submit fraud and the tort of outrage to the jury. The proof of fraud consisted of North Kansas’ inducement of Mike Wayland to undertake construction of a “showcase” apartment complex to be used as a pilot project to sell to the appellant’s “investor contacts.” North Kansas prom ised to provide both the interim construction financing and the long-term permanent financing for the ultimate purchasers. North Kansas also promised that if the project could not be sold to one of its “investor contacts” it would sell the project to one of its affiliated companies. North Kansas represented that the Concordia project would be the first “showcase” project in a nationwide marketing scheme. North Kansas encouraged Wayland to incorporate, to purchase land for the Concordia project, to develop plans for some twenty-one other complexes, to obligate himself on a construction loan for the purpose of the project, and to complete construction of the Concordia project at a cost substantially above initial estimates because of the special roof requested by the defendant. Wayland had no intention or desire to own, manage, or operate an apartment complex as a personal or business investment absent North Kansas’ representations it would find a purchaser or take over the operation of the project. In spite of the representations made by North Kansas, and Wayland’s reliance and performance thereon, North Kansas did not honor its numerous promises. It provided neither the interim construction financing nor the permanent financing. It did not sell the Concordia project to its “investor contacts”; it did not have one of its subsidiary or affiliated companies purchase the project; and it did not assist in the development and promotion of a nationwide marketing scheme. The final consequence of the appellees’ business dealings with appellant North Kansas was foreclosure by the interim construction lender and the sale of the assets of Wayland Construction Company.
North Kansas contends its continuous promises to Mike Way-land were mere “puffing” upon which W-V had no legal right to rely. Appellant argues Chester’s statements should have been recognized by Wayland as hopeful opinions regarding the potential for a national marketing scheme for projects such as the Concordia project, and these opinions never rose to the level of misrepresentations of material fact.
The jury in this case determined North Kansas was guilty of fraud. This court has discussed fraud many times and in doing so has declined to specifically define fraud. In Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 64, 643 P.2d 100 (1982), this court quoted 37 C.J.S., Fraud § 1, p. 204:
“While the broad outlines of fraud have been indicated by regarding it as including any cunning, deception, or artifice used, in violation of a legal or equitable duty, to circumvent, cheat, or deceive another, the forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise, and the courts consider it unwise or impossible to formulate an exact, definite, and all inclusive definition thereof. It is synonymous with, or closely allied to, other terms indicating positive and intentional wrongdoing, but is distinguishable from mistake and negligence.”
See also Citizens State Bank v. Gilmore, 226 Kan. 662, 667, 603 P.2d 605 (1979).
The law in Kansas concerning proof of fraud was discussed in Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980):
“We have held fraud is never presumed and must be proven by clear and convincing evidence. [Citations omitted.] The term ‘clear and convincing evidence’ means:
“ ‘[T]he witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts at issue.’ Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979).
“ ‘The existence of fraud is ordinarily a question of fact.’ ”
A verdict for fraud cannot be disturbed on appeal if there is substantial evidence in the record to support it. Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 77, 596 P.2d 816 (1979). We find substantial evidence in the record to support the jury’s verdict for fraud. This case is similar to Augusta Bank & Trust Co., 231 Kan. 52. There Broomfield, a dirt mover, was induced by the bank to put his time and money into a project. The promised financing never came through and Broomfield was ultimately financially ruined. The supreme court stated:
“Viewing all the evidence and inferences therefrom in the light most favorable to Broomfield, we cannot escape the conclusion that there is substantial evidence to support the jury’s awards. The landowners led Broomfield down the ‘primrose path.' ” 231 Kan. at 64.
Mike Wayland was a reputable and honest steel distributor and construction contractor. North Kansas’ promises of financing induced him to invest in and build the Concordia complex. The promised financing never occurred. Wayland was led to change his position by North Kansas’ false representations. There is sufficient evidence of fraud to go to the jury. This issue is without merit.
North Kansas also contends W-V failed to present sufficient evidence to support recovery for the tort of outrage. In Dawson v. Associates Financial Services Co., 215 Kan. 814, Syl. ¶ 1, 529 P.2d 104 (1974), this court recognized the tort of outrage when it held that “[a] creditor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the debtor is subject to liability for such emotional distress, and if bodily harm to the debtor results from it, for such bodily harm.” The court reversed the trial court’s order granting the defendant’s motion for directed verdict and ordered a new trial. Although Kansas recognizes the tort of outrage, Dawson and Gomez v. Hug, 7 Kan. App. 2d 603, 645 P.2d 916, rev. denied 231 Kan. 800 (1982), no Kansas appellate court has since affirmed a jury verdict for a plaintiff on that theory. See Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175 (1981), (insulting remarks made by a doctor to a patient being prepared for surgery); Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979), (threatening the plaintiff s husband with a pitchfork); Vespa v. Safety Fed. Savings & Loan Ass’n, 219 Kan. 578, 549 P.2d 878 (1976), (harassment of a debtor); Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975), (harassment of a debtor); Young v. Hecht, 3 Kan. App. 2d 510, 597 P.2d 682, rev. denied 226 Kan. 510 (1979), (alleged unethical conduct by an attorney); and Bradshaw v. Swagerty, 1 Kan. App. 2d 213, 563 P.2d 511 (1977), (collection attorney calling one of his client’s debtors a “bastard, nigger, and knot-headed boy”).
Liability may be predicated on the tort of outrage “only in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Roberts v. Saylor, 230 Kan. at 293. In light of our previous decisions, we hold North Kansas’ behavior, although fraudulent and deceptive, does not meet the definition of outrageous as stated in Saylor. The lower court, therefore, erred in submitting the issue to the jury. The error, however, is harmless in view of our action on emotional distress later herein and since punitive damages can be awarded on either fraud or outrage.
The appellant next argues the trial court erred in submitting the issue of tortious breach of contract to the jury since the issue of negligence was not properly raised in appellees’ pleadings. In light of our ruling on the issue of fraud we need not discuss this issue since any error is harmless.
North Kansas next argues the damage verdict is not supported by the evidence.' Appellant initially contends W-V breached its legal duty to mitigate its damages. It is true we have held a party “is bound to protect himself if he can do so with reasonable exertion or at trifling expense and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided . . . .” In re Estate of Stannard, 179 Kan. 394, 397, 295 P.2d 610 (1956). Here, North Kansas ultimately offered W-V a loan of $260,000 after having previously made a commitment of $330,000. Appellant argues W-V was obligated under its duty to mitigate to take the $260,000 and seek alternate financing for the $70,000 shortage. W-V refused the lesser amount because it would not pay off the interim loan to Citizens Savings Association and Wayland pledged all of the equipment of Wayland Construction Company as security to obtain loans for construction costs. Thus, had W-V accepted the lesser amount it would have remained delinquent in its loan from Citizens and subject to foreclosure. We have held there is no obligation to mitigate damages if the mitigation involves dealing with the breaching party. See Cain v. Grosshans & Petersen, Inc., 196 Kan. 497, 413 P.2d 98 (1966). We hold under the circumstances of this case W-V had no obligation to accept the lesser loan from North Kansas.
Appellant next contends the damage award attributable to loss of future profits is speculative and not supported by the record. In Butler v. Westgate State Bank, 226 Kan. 581, 582, 602 P.2d 1276 (1979), this court summarized the rules concerning loss of profits and stated:
“ ‘This court follows the general rule that loss of profits resulting from a breach of contract may be recovered as damages when such profits are proved with reasonable certainty, and when they may reasonably be considered to have been within the contemplation of the parties. [Citations omitted.] Recovery for loss of profits caused by a breach of contract depends upon the facts and circumstances of each particular case.’ ” (quoting Vickers v. Wichita State University, 213 Kan. 614, 618, 518 P.2d 512 [1974])
In Butler, which involved a new business, we held the evidence of loss of profits, which consisted of one person’s testimony, to be too speculative. In Vickers, this court held the evidence of loss of profits was not speculative, since there were “techniques available ... by which profits [could] be calculated with reasonable certainty . . . .” 213 Kan. at 620. In the instant case, the loss of future profits was claimed for the loss of the Behlen Steel distributorship, which Mike Wayland had been granted, and the financial demise of Wayland Construction Company. Both were established businesses whose total gross sales in 1970 were $198,787; in 1971 they were $176,759; and in 1972 they were $133,392. Appellant relies upon Wayland Construction Company’s net taxable income alone to show the loss of profits granted by the jury was excessive. Other figures, including the gross sales, were presented to the jury at trial and demonstrate that the $500,000 award for loss of profits is not speculative. Appellee made no claim for loss of profits of W-V. This issue is without merit.
Appellant next argues the record does not support a damage award for nervous exhaustion and emotional breakdown and that the award of $400,000 is excessive. Our examination of the record indicates the jury award for damages in this category is $200,000 rather than $400,000 as stated by appellant.
North Kansas contends there is no evidence indicating it caused the emotional breakdown of Michael Wayland. W-V argues its evidence established Wayland’s emotional problems resulted directly from his dealings with North Kansas. The testimony does show Wayland suffered severe emotional problems at the time of his financial losses from the failure of the Concordia project, but there was also evidence of domestic discord, which could also have been the cause of his emotional distress. The evidence does not point to specific acts of North Kansas which inflicted emotional distress on Wayland. This court has held the law involving emotional distress has
“two threshold requirements which must be met . . . [These are]: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.” Roberts v. Saylor, 230 Kan. 292-30.
The purpose of these stringent requirements is to protect “defendants against fictitious claims and litigation based on trivialities . . . .” 230 Kan. at 293. W-V has not met these requirements. In another Kansas case involving damages for nervous exhaustion and emotional breakdown this court held:
“It cannot be disputed that the appellants suffered a tremendous amount of emotional and physical stress and anxiety .... Despite this the appellants maintain that all of the emotional and physical maladies suffered by them . . . have been caused solely by [the acts of the defendant] .... This claim is not supported by the appellants’ evidence.” Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 277-78, 662 P.2d 1214 (1983).
In Hoard, the parents of a teenage girl were erroneously informed by a hospital official that their daughter had died as a result of massive injuries incurred in an automobile accident. The parents began making funeral arrangements and as they were leaving the hospital, it was discovered their daughter was still alive but in another hospital and the fatality erroneously identified as their daughter was one of her friends. Both girls had been passengers in the same car during the auto accident. While the shock and distress created by the mistaken identity was terrible, we held it was not sufficient to support a damage award for emotional distress.
In the instant case, while Wayland was financially ruined by his activities with North Kansas, there is no evidence in the record of specific acts of North Kansas which inflicted the emotional distress on Wayland. The damages resulting from Way-land’s emotional problems are not recoverable. To find otherwise would permit recovery for every individual who suffered emotional problems after a substantial financial loss. Clearly that was not the intent of this court in Saylor. The trial court, therefore, erred in submitting the issue to the jury and the $200,000 award is without basis and is set aside.
Appellant’s final damage issue is that the trial court erred in awarding punitive damages. Punitive damages may not be recovered for a breach of contract unless an independent tort is also established. See Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739, 625 P.2d 505, aff'd 230 Kan. 277, 634 P.2d 1071 (1981). North Kansas was guilty of fraud. That finding supports the punitive damage award. Whenever fraud, malice or gross negligence are present in a case, punitive damages are proper as a method of punishing the wrongdoer. A jury may consider costs of litigation, financial condition of the tortfeasors and the grossness of the conduct of the party in awarding punitive damages. Under such criteria an award of $250,000 punitive damages does not shock the conscience of this court and is upheld.
There remains the final issue of security for appellees’ judgment. The questions presented are whether the appellant should be required to post a supersedeas bond, the validity of the order of attachment, and the extension of the judgment lien to real estate owned by Rockwood, Inc., a subsidiary of North Kansas. The procedural facts are complicated. W-V asked for North Kansas to be required to post a supersedeas bond pursuant to Kansas to be required to post a supersedeas bond pursuant to K.S.A. 60-262(d) pending its appeal. A stay of execution without bond has been in effect since July 29,1982. The Court of Appeals extended the stay on October 25, 1982. The appeal was transferred to this court on November 9, 1982, with this caveat:
“[T]he previously granted stay of execution of judgment without bond be continued in force and the attachment orders remain in effect until further order of this Court.”
We then remanded the case to the district court for the limited purpose of conducting proceedings pertaining to the validity of the attachment order under K.S.A. 1982 Supp. 60-712. The district court made findings of fact and conclusions of law upholding the attachment order and returned the case to this court.
Let us first consider the supersedeas bond issue. The FSLIC argues it should not be required to post a bond pursuant to federal law which provides no security may be required against a United States instrumentality in any court proceeding. See 28 U.S.C. § 2408. This argument is erroneous. 28 U.S.C. § 2408 does not contemplate the situation presented in this case. This statute applies only in cases where the United States or its agencies institute the action. The wording of the statute discloses its purpose: “Costs taxable . . . shall be paid out of the contingent fund of the department or agency which directed the proceedings to be instituted.” In the present case costs taxable will not be paid out of the funds of the FSLIC but rather out of the insurance fund FSLIC holds for North Kansas and revenue received from liquidating North Kansas.
FSLIC also argues it should not be required to post a bond because it is stepping into the shoes of North Kansas, and North Kansas was not required to post a bond. When the issue first arose in the district court, appellees argued K.S.A. 60-262(d), which requires a supersedeas bond to stay execution upon ap peal, should be imposed. The trial court held this statute was applicable to North Kansas. K.S.A. 60-262(c), however, is the applicable law. It provides when an appeal is taken “by direction of any department of the state and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the [appellant].” K.S.A. 60-262(e) is applicable because the Kansas Commissioner of the Savings and Loan Department directed North Kansas “to pursue this appeal.” The Court of Appeals reversed the trial court on October 25, 1982. Upon the substitution by this court of the FSLIC for North Kansas, it succeeded to all “rights, titles, powers, and privileges” of North Kansas. See 12 C.F.R. § 547.7 (1983). We conclude FSLIC is not required to post a supersedeas bond to stay execution pending an appeal, pursuant to K.S.A. 60-262(e).
FSLIC next argues the attachment order of the district court is invalid. It initially contends the district court was without jurisdiction to issue the order since a notice of appeal had already been filed by North Kansas. This argument is without merit. The order of attachment was filed prior to filing of the docketing statement on October 19, 1982. Thus, the district court had jurisdiction to enter the order of attachment. See Carson v. Eberth, 3 Kan. App. 2d 183, 592 P.2d 113 (1979).
The attachment was ordered pursuant to K.S.A. 60-701(5) and (6). FSLIC contends the trial court erred in imposing K.S.A. 60-701(6), which states:
“[T]he plaintiffs . . . may have, as an incident to the relief sought, one or more attachments against the property of the defendant, or that of any one or more of several defendants, when the defendant whose property is to be attached:
“(6) fraudulently contracted the debt or fraudulently incurred the liability.”
FSLIC argues North Kansas did not fraudulently contract with W-V. That issue has been decided herein adverse to appellant. The purpose of the statute is to prevent disposal of a defendant’s property before a plaintiff may obtain a judgment when the defendant has proven to be dishonest in its past conduct. See 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-701 (1979). This purpose likewise extends to an appeal. The trial court here had a final jury verdict indicating fraud on the part of North Kansas. The purpose of the statute would be defeated if the court were required to wait for disposition of the issue on appeal before ordering attachment.
FSLIC additionally argues it did not engage in fraudulent conduct; thus upon the court’s order substituting it as a party the attachment should have been released. K.S.A. 60-701(6) does not contemplate such a situation. The only authority cited by either party on this point is 12 C.F.R. § 569a.7(a)(2) -(1983), which mandates that the FSLIC must assume the liabilities and just claims against an insolvent association as they exist at the time of declaring the association insolvent. The law requiring FSLIC as receiver to step into the shoes of North Kansas shoulders FSLIC with all the liabilities of its predecessor, including its liabilities for fraudulent conduct.
The FSLIC further claims it is prejudiced by the continuation of the attachment order because the order interferes with its liquidation of North Kansas. The facts show, however, that during the hearing on February 15, 1983, the trial court suggested a release of the orders of attachment if the receiver would place the funds in escrow and continue to recognize the priority lien on the proceeds arising from the payment of the attached indebtedness. Appellees informed the court of appellees’ willingness to consider such an arrangement. However, FSLIC took no steps to comply. In addition, FSLIC made no attempt to seek release of the attachments under K.S.A. 1982 Supp. 60-707, which provides for a discharge of attachment upon the posting of a bond by defendant.
The FSLIC also suggests dissolution of the order of attachment would have no adverse effect on the appellees because of FS LIC’s adherence to its fiduciary obligation to liquidate North Kansas in accordance with federally mandated guidelines. Not so. If the orders of attachment are rescinded, the status of the appellees will be changed from that of secured to unsecured creditors, thereby reducing the collectability of their judgment. In this regard, the trial court held as follows:
“The attachment orders are necessary to protect the plaintiffs as against the receiver, FSLIC. The result of a dissolution of the attachment would be to reduce the plaintiffs’ judgment to the position of an unsecured creditor and a 60% pro-rata payment in satisfaction of the judgment.”
The prejudice to the appellees by dismissing the attachment order is therefore substantial. We hold the attachment order valid.
Appellees next request this court to rule their judgment liens on real property extend to certain real property owned by Rock-wood, Inc., a subsidiary of North Kansas Service Corporation, which, in turn, is a subsidiary of North Kansas Savings Association. This issue was not before the trial court and cannot be raised for the first time on appeal. See State v. Puckett, 230 Kan. 596, 600-601, 640 P.2d 1198 (1982).
The judgment of the trial court is modified by reduction of the compensatory damages award from $1,245,944 to $1,045,944 and affirmed as modified. | [
-80,
110,
-8,
-100,
8,
98,
56,
30,
89,
-86,
37,
83,
-55,
-22,
5,
75,
-9,
57,
-28,
104,
-73,
-77,
23,
-54,
-46,
-78,
-7,
-51,
-79,
93,
116,
-42,
73,
48,
-54,
-105,
-90,
-126,
69,
28,
-82,
12,
10,
-59,
-35,
64,
48,
79,
22,
75,
17,
29,
115,
32,
24,
-62,
41,
62,
107,
109,
64,
-16,
-118,
69,
87,
22,
33,
4,
-72,
71,
-8,
46,
-112,
50,
33,
-24,
98,
-26,
-98,
-12,
33,
-55,
13,
46,
99,
17,
21,
-53,
-20,
-103,
14,
94,
-67,
-121,
-112,
24,
1,
41,
-73,
31,
112,
51,
7,
-4,
-18,
5,
27,
-19,
5,
-54,
-10,
-77,
-113,
116,
25,
-121,
111,
-125,
32,
112,
-57,
-96,
95,
-105,
120,
19,
-114,
-104
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Timothy D. Pearson (defendant-appellant) guilty of second-degree murder (K.S.A. 21-3402). The appellant contends the trial court erred in refusing to suppress blood test evidence and items seized in a search of the appellant’s home, in the admission of gruesome photographs of the victim, and in failing to instruct on the lesser included offense of voluntary manslaughter.
The following brief facts are sufficient to detail the events leading up to the appellant’s conviction. The nude body of the victim, a young married woman, was found in a field on the outskirts ofWichita, Kansas, the afternoon of March 31,1982. She had suffered a fatal stab wound to the front of her neck. The victim was last seen alive at a bar in Wichita in the early morning hours of March 31st, where she had engaged in a conversation with the appellant and the bartender. She told them she was at the bar because she and her husband had been in a fight. The victim and appellant left the bar at about the same time as it was closing.
The next two detectives went to the appellant’s house to inquire whether he had any information about the victim which would aid them in their investigation of the homicide. The appellant was in the driveway working on a car. The detectives observed some “Pearl” brand beer cans in the car and one or two in the drive itself. Beer cans of this brand had been found near the victim’s body. The detectives asked the appellant and his wife if they would come to police headquarters to answer some questions. They consented and were offered a ride by the detectives. A babysitter could not be located to care for the appellant’s two small children so they were taken along to police headquarters.
At police headquarters the appellant agreed to talk to the detectives after being read his Miranda rights. The appellant also agreed to be fingerprinted and signed a form consenting to a search of his home. While the appellant was being questioned the detectives received information from forensics officers that the appellant’s fingerprints matched those taken from the beer cans found near the victim. The appellant was then placed under arrest.
Dried blood found on a pair of the appellant’s blue jeans and one of his boots was analyzed by Mary Córtese, a serologist with the Kansas Bureau of Investigation, for the ABO typing and six enzyme systems, and compared with blood samples from the victim and appellant. The method of analysis used by the serologist is commonly referred to as the Multi-System analysis. The six enzyme systems tested for were EAP, AK, ADA, PGM, EsD and GLO-1. The following chart illustrates the comparison of the appellant’s and victim’s blood to the dried blood found on the blue jeans and boots:
ABO EAP AK ADA PGM EsD GLO-1
Victim 0 BA 1 2-1 2-1 2-1
Defendant B B 1 1. 1 1
Blue Jeans 0 BA 1 2-1 2-1 no results
Left Boot no results BA 1 2-1 no 2-1 results
Ms. Córtese testified that based on studies showing the percentage of the population having each of the factors present in the victim’s blood, she determined only .6 percent of the population would have the victim’s combination of blood factors. Human blood was also present on a knife found in a dresser drawer in a bedroom of the appellant’s house, although not enough was present to conduct any testing.
Tire tracks in the field where the body was found matched the four different kinds of tread on the tires of the car driven by the appellant the night of the murder. Soil taken from the field was identical in composition to mud found on tires of the car. The victim’s purse, blouse and other items of clothing were found in a trash dumpster located approximately three blocks from the appellant’s house.
The appellant testified he met the victim at the bar and gave her a can of beer from his car in the parking lot. He then left the parking lot in his car to go home and did not see her again. He claimed that on the night of the murder he was not wearing the blue jeans or boots on which the. bloodstains were found. He denied killing the victim or driving the car he was using into the field where the body was found.
The first issue raised by the appellant involves the preliminary hearing testimony of Mary Córtese' and subsequent pretrial events. Ms. Córtese testified she removed four bloodstains from the pair of blue jeans by cutting the stained area from the jeans. She conducted the Multi-System analysis on the four stains to determine the ABO typing and six enzyme types. A small amount of blood found on one of the appellant’s boots was tested for the six enzymes, but an insufficient amount of blood was present to determine the ABO type. The following exchange took place on cross-examination by defense counsel:
“A. I chose [to test] the six enzymes] that are done routinely. That gives the best population frequency data, take those six enzymes, and then went back into the AB-0 blood grouping. At that point we had no other sample to work with.
“Q. The type of sample that we did is one of destructive testing, is that correct? In other words, once you do the testing you have no other material to work with?
“A. In this case, that’s correct.
“Q. So if we are to duplicate the same from the same stain work we would be unable to do so?
“A. That’s correct.
“Q. Without getting it out do you recall whether there are other stains on State’s Exhibit 17 [pair of blue jeans] which — in your opinion are blood — other than the ones removed obviously?
“A. I can’t recall specifically, no.
“Q. Did you also use all the blood in the scrapings and cotton swab work off the one boot?
“A. I took what I thought was to be enough for my testing, and I don’t think there is anything left, no.”
Shortly before the case was to go to trial on August 30, 1982, Ms. Córtese was asked by the prosecuting attorney to recheck the fabric cut from the jeans to determine whether any bloodstain material remained on the fibers which could be tested. She discovered a small amount of stain material was indeed left. Defense counsel were informed immediately of this development. A continuance was granted by the court to allow the defense to test the available material.
An expert in forensic serology, Dr. Benjamin Grunbaum, was retained by defense counsel to review the findings of Ms. Córtese and analyze the bloodstain material remaining on the jean fibers. A motion was subsequently filed to suppress the evidence of the blood testing conducted by Ms. Córtese.
At the hearing on the motion to suppress, Ms. Córtese testified she utilized most of the bloodstain material contained in the fabric in performing her testing. She believed that on two of the patches there was enough bloodstain material left to duplicate some of the testing she had conducted. She was not certain, however, if there was enough to duplicate all or even most of the testing. On the third patch no bloodstain material remained, and on the fourth patch there was some remaining material, but not enough to duplicate any of the testing. All the dried blood taken from the boot was used in the testing process. Ms. Córtese further testified she interpreted the question posed to her by defense counsel at the preliminary hearing to mean whether the testing she had done could be completely duplicated from the samples remaining, and she felt it could not.
Ms. Córtese and Dr. Grunbaum both testified at the suppression hearing about the deteriorating nature of the enzymes found in blood and the inability to detect certain enzymes after various lengths of time. The ABO type was detectable for several years. The PGM and AK enzymes were detectable for up to six months, the EAP enzyme for four to six months, ADA for a few months, EsD from four to six weeks, and GLO-1 for two weeks.
Dr. Grunbaum testified there was sufficient bloodstain material remaining on one of the patches to conduct tests for the ABO type and possibly the PGM enzyme. Only enough bloodstain material was present on any of the other three patches to duplicate one test. He had declined to conduct any additional tests on the available material, however, believing the samples to be too aged to analyze correctly, and that if an analysis was attempted the results would not be reliable and would not indicate positively whether the tests performed by the KBI were correct or incorrect. Dr. Grunbaum admitted on cross-examination there was sufficient bloodstain material to test for the ABO type on some of the patches and the typing could be detected for several years.
The trial court found there was some ambiguity in the questions asked by defense counsel at the preliminary hearing. Nevertheless, the testimony of Ms. Córtese and Dr. Grunbaum at the suppression hearing was consistent with the preliminary hearing testimony indicating the tests performed by Ms. Córtese could not be duplicated from the bloodstain material remaining on the jean patches. Furthermore, the court found the evidence indicated the ABO typing and the PGM enzyme could still be tested from the remaining material and the defense expert had not adequately shown a sufficient reason for not testing the material. The trial court denied the appellant’s motion to suppress the blood-test evidence.
The appellant contends in substance that the State’s witness, Ms. Córtese, untruthfully concealed the existence of remaining bloodstain material at the preliminary hearing, depriving him of his due process right to a fair trial. The appellant relies primarily upon the principle enunciated in Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963), that suppression by the State of evidence favorable to an accused, after a request therefor, violates due process, irrespective of the good faith of the prosecution. The appellant maintains the failure of Ms. Córtese to reveal the existence of the remaining material violated the State’s duty to disclose all exculpatory evidence to the defense, and therefore the blood analysis evidence should have been suppressed.
In accordance with the decision in Brady this court has held prosecutors are under a positive duty, independent of any court order, to disclose all exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld must be clearly and unquestionably exculpatory and the withholding of the evidence must clearly be prejudicial to the defendant. State v. Kelly, 216 Kan. 31, Syl. ¶ 1, 531 P.2d 60 (1975); State v. Hill, 211 Kan. 287, Syl. ¶¶2, 3, 507 P.2d 342 (1973). In Kelly the court discussed the United States Supreme Court and federal court decisions developing the prosecution’s duty to supply exculpatory evidence. The court recognized the three classifications of cases categorized in United States v. Keogh, 391 F.2d 138, 146-48 (2nd Cir. 1968), involving suppression of evidence:
“(1) [W]here there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could not have escaped the prosecutor’s attention; (2) where there is a deliberate refusal to honor a request for evidence where the evidence is material to guilt or punishment, irrespective of the prosecutor’s good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that it was so material that the defense could have put the evidence to significant use.” State v. Kelly, 216 Kan. at 34.
In Kelly the prosecutor learned from the investigating officers that the victim had made prior statements inconsistent with his testimony at trial. The witness was unavailable for further questioning, so the prosecutor had the investigating officers testify fully as to the prior statements. The appellant did not contend the prosecutor deliberately and in bad faith withheld the evidence and there had been no request for prior inconsistent statements of the victim. The case therefore fell within the third classification discussed in Keogh, the “oversight” classification. The court held that under the circumstances of the case the prosecution did not withhold or suppress any evidence. The questionable reliability of the victim was fully exposed to the jury by the testimony of the investigating officers. The defendant’s inability to further confront the witness with his prior inconsistent statements did not sufficiently prejudice him to require a new trial. 216 Kan. at 36-37.
The classifications set forth in Keogh were als.o recognized by the court in State v. Hill. The court held in part that the refusal to permit discovery of physical evidence did not constitute error where it could not be said, even with the benefit of hindsight, the evidence was unquestionably or even potentially exculpatory. 211 Kan. at 292-93. See also State v. Shepherd, 232 Kan. 614, 622, 657 P.2d 1112 (1983).
In the instant case the appellant contends the State’s expert witness, Ms. Córtese, had a duty to ascertain whether additional bloodstain material existed for use by the defense. He contends Ms. Cortese’s “false” testimony, whether intentional or unintentional, misled defense counsel and prejudiced his defense. The appellant equates the line of questioning during cross-examination of Ms. Córtese to a request for production and asserts:
“There is little question in this case that the prosecution, through its agent at the KBI, suppressed the evidence after a request, knowingly or unknowingly. There is just no possible way that the import of counsel’s questions to Miss Córtese could be misunderstood.”
Upon careful review of the relevant line of questioning, hereinbefore set forth, it becomes apparent the questions put to Ms. Córtese at the preliminary hearing were capable of different meanings and were answered truthfully by Ms. Córtese accord ing to her interpretation of the questions. Contrary to what the appellant would have us believe, Ms. Córtese was not asked specifically whether any bloodstain material remained on any of the pieces of fabric cut from the jeans upon which any additional testing could be conducted. The questions concerning the ability to “duplicate” the same testing from “the same stain work,” when viewed in conjunction with the preceding questions, indicates defense counsel were inquiring about the possibility of retesting stained material which had already been tested. It is undisputed from the evidence at the preliminary and suppression hearings that a stain is destroyed in the testing process and cannot be used again for testing. In addition, both Ms. Córtese and Dr. Grunbaum agreed only one or two tests could possibly be run on the remaining stain material on one of the four pieces of fabric. Ms. Córtese also testified at the preliminary hearing she could not recall whether there were any bloodstains on the jeans other than those she removed, and that she had used all the blood found on the boot in her testing. No evidence is presented by the appellant that this testimony was false.
The answers given by Ms. Córtese to the questions posed by defense counsel were accurate and truthful. The questions cannot be construed so broadly to be interpreted as a request to be informed of any bloodstain material remaining on the fabric cut from the jeans. Neither the witness nor the prosecutor could have been expected to read defense counsel’s mind and anticipate his defense strategy or “second-guess” the nature of the information sought by the line of questioning. Furthermore, the appellant concedes in his brief no specific request was made for the production of additional stain material, although a general discovery order was on file. This case does not involve a situation in which the prosecution deliberately or in bad faith refused to disclose exculpatory evidence, or a deliberate refusal by the State to honor a request for evidence. There is no suggestion by the appellant the prosecutor had any knowledge of remaining stain material or the appellant’s interest in testing such material until shortly before trial. The prosecutor and defense counsel stipulated at the suppression hearing they had a conversation in the latter part of July when a specific inquiry about remaining bloodstain material was made. It was not until Ms. Córtese returned from vacation in late August, however, that the prose cutor was able to contact her and confirm the existence of some stain material. At that point the material was made available to defense counsel and a continuance granted to allow the material to be tested and analyzed.
The problem in this case results from the ambiguity in the questions asked by defense counsel and their interpretation of the answers to those questions. The expert testimony presented at the suppression hearing was consistent with the substance of the testimony- at the preliminary hearing that insufficient stain material was left to completely duplicate the tests performed by Ms. Córtese. In short, if defense counsel were misled by the testimony of Ms. Córtese at the preliminary hearing it was because of the interpretation they placed upon her answers, not the result of any deliberate or bad faith refusal by the State to disclose exculpatory evidence.
The issue remaining is whether, under the circumstances of this case, the failure of the State to determine, in the absence of a request, whether there was any bloodstain material in its possession of which the defendant was unaware, which perhaps could have been tested and which might have contained exculpatory evidence or be used to impeach the credibility of a key witness, necessitates suppression of the blood-test evidence. Numerous cases decided by this court have recognized the State is not under an obligation to preserve evidence of a destructible nature for use by the defendant in his defense. In State v. Lightle, 210 Kan. 415, 502 P.2d 834 (1972), cert. denied 410 U.S. 941 (1973), the appellant claimed he was denied due process when the State consumed the physical evidence, two small pills, in analyzing the pills to identify whether they were narcotics. The defendant was therefore unable to have the pills independently analyzed. The court held:
“We know of no principle which, in the absence of fraud or bad faith, imposes any duty on the part of the prosecution to invite an accused to participate in its investigatory and trial preparation procedures. Due process of law does not reach this far. Under K.S.A. 1971 Supp. 22-3212, a defendant may make a timely motion for permission to inspect such tangible objects as exist in the possession, custody or control of the prosecution upon showing that the request is ‘reasonable.’ A request is hardly reasonable if the object has ceased to exist by reason of valid conduct bringing about its nonexistence, such as for the making of a necessary chemical analysis. Other examples come to mind such as a blood or breath test to determine intoxication, or analysis of minute particles of any kind.” 210 Kan. at 416.
In State v. Young, 228 Kan. 355, 614 P.2d 441 (1980), we held the failure of the State in a DWI prosecution to automatically furnish the accused with a sample of his own breath for independent testing is. not a denial of due process. In State v. Bright, 229 Kan. 185, 187-88, 623 P.2d 917 (1981), where the defendant was not provided with machine readouts produced by the expert witness in his testing process and destroyed after the testing was completed, the court held the fact the expert did not have the readouts available when he testified went to the weight of his testimony, not its admissibility. It was held in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), a prosecutor is not required under K.S.A. 22-3212 to produce the working notes of a forensic expert who examines a rape kit unless the notes are in the State’s file. The court stated:
“All the prosecutor must do is ‘permit the defendant to inspect and copy or photograph any relevant’ notes taken during the rape kit examination. Here the State provided defense counsel with the actual laboratory report. The working notes were not contained in its file and were not seen by the prosecutor prior to trial. They were, however, available to defense counsel upon request from those who performed the experiments. Additionally, K.S.A. 22-3212 grants to the trial court a certain amount of discretion. State v. McGee, 224 Kan. 173, 177, 578 P.2d 269 (1978). Here the trial court gave defense counsel every opportunity to discover the worksheets. Prior to trial it allowed counsel to call the two criminalists involved and inquire as to what they would testify to. Then at trial when the two witnesses brought their working notes with them the trial court called a recess to allow defense counsel time to copy and examine the notes. In light of all the circumstances no reversible error was shown.” 231 Kan. at 652.
■ The appellant refers the court to cases from other jurisdictions which require the State to employ procedures to collect and preserve evidence for a defendant where it is “reasonably foreseeable” that the evidence might be favorable to the accused. See, e.g., United States v. Bryant, 439 F.2d 642, 651 (D.C. Cir. 1971); People v. Nation, 26 Cal. 3d 169, 161 Cal. Rptr. 299, 604 P.2d 1051 (1980); People v. Garries, 645 P.2d 1306 (Colo. 1982); People v. Gomez, 198 Colo. 105, 596 P.2d 1192 (1979), Garcia v. Dist. Ct., 197 Colo. 38, 589 P.2d 924 (1979). This court questioned the rationale used in these cases in State v. Young, 228 Kan. at 362:
“It appears somewhat strange, however, that the State should be required to anticipate defense strategy, obtain a breath sample, and pay for the part of the expense of a second test for the accused’s use prior to entry of his plea. The basis for this requirement in these cases is not well defined. These courts seem to be aware that other courts do not require an extra sample. They hold in a general way, however, that it is incumbent on the State to employ regular procedures to preserve evidence for the defendant. They require a State agent, in the regular performance of his duties, to reasonably foresee what evidence ‘might be favorable to the accused’ and to obtain and preserve the same for defendant’s use. Baca v. Smith, 124 Ariz. at 355. The difficulty of accepting this logic in the present case is apparent. The item in question here is merely a sample of breath from the accused himself, which he alone can furnish for independent testing by his own physician as authorized by K.S.A. 8-1004. As evidence, the defendant’s breath can hardly be equated with an unchanging physical object which is relevant evidence.”
While the State should act to preserve evidence in its possession for inspection and use by the defendant where possible, this responsibility does not extend so far as to inhibit the State in properly conducting a necessary blood analysis in its investigation or prosecution of a crime. In the absence of fraud or bad faith on the part of the State and its investigative agents, due process does not require the State to invite the accused to participate in or supervise testing procedures performed in the investigation of a crime, even where the amount of evidence to be tested is so small sufficient material will not remain to allow the defendant to conduct an independent analysis of the evidence. The defendant’s due process rights are sufficiently protected by the opportunity to challenge the credibility of the State’s expert and validity of the testing procedures used through cross-examination or expert testimony.
This case necessarily falls within the “oversight” classification discussed in Keogh and State v. Kelly. In Kelly the court stated a defendant should be granted a new trial where a case falls within this classification only if the record establishes (1) that evidence is withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial. 216 Kan. at 36. See also Moore v. Illinois, 408 U.S. 786, 794-95, 33 L.Ed.2d 706, 92 S.Ct. 2562 (1972); People v. Garries, 645 P.2d at 1308. Speaking of this classification the court in Keogh said:
“Failure to appreciate the use to which the defense could place evidence in the prosecution’s hands, or forgetfulness that it exists when a development in the trial has given it a new importance, are quite different. Since this must happen to the most scrupulous prosecutors and the issue of deterrence scarcely arises, the problems of the courts and the wider interests of society unite to require a substantially higher probability that disclosure of the evidence to the defense would have altered the result.” 391 F.2d at 148.
In the present case the circumstances of the alleged withholding were examined by the trial court on the motion to suppress. As stated above, the prosecution cannot be said to have withheld or suppressed the evidence. Assuming, arguendo, the evidence was withheld it cannot be said this evidence was clearly and unquestionably exculpatory. The appellant apparently believes he is relieved of his duty to show the exculpatory nature of the evidence because, due to the deterioration of the blood, some of the enzymes could no longer be detected when the stain material was received. The appellant was given sufficient opportunity to have the blood analyzed by his own expert. Dr. Grunbaum testified the ABO typing and one other enzyme were still detectable from the stain material. However, he chose not to perform the tests for fear of achieving unreliable or incorrect results. The appellant states in his brief the available tests were not performed for “strategic purposes.” The trial court found the stain material had been properly cared for while in the possession of the KBI. After considering Dr. Grunbaum’s testimony and weighing his credibility, the trial court refused to suppress the blood test evidence, finding “no good reason” had been advanced by the defense for not conducting those tests which were still available. We agree with the finding of the trial court. The appellant declined to conduct tests which were still feasible at the time and which might have produced results favorable to him. The appellant is not relieved of his burden to establish the evidence was clearly exculpatory simply because he chose not to run the available tests “for strategic reasons.” The majority of cases have pointed out or implied that the defense in a criminal trial is obligated to exercise due diligence in seeking to uncover exculpatory evidence before trial; that is, it cannot merely sit back and do nothing to uncover evidence that would be helpful to the defendant, and then after trial and conviction, claim, as to evidence that it could have discovered by exercising due diligence, that there was wrongful suppression or withholding by the prosecution. See Annot., 34 A.L.R.3d 16, § 13. Under the facts of this case the trial court did not err in refusing to suppress the blood-test evidence.
The appellant next contends the trial court erred in admitting photographs of the victim taken when the body was found and after the blood had been cleaned off the body. He claims these photographs were gruesome, cumulative and unduly prejudicial. The law is well settled in this state that in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corrobórate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. State v. Garcia, 233 Kan. 589, 592, 664 P.2d 1343 (1983); State v. Green, 232 Kan. 116, 118, 652 P.2d 697 (1982).
The photographs of which complaint is made here depict the victim’s stab wounds, the existence or nonexistence of blood on various parts of the victim’s body and scratch marks on the victim’s back and legs. These photographs were used by the pathologist to illustrate his testimony concerning the nature and extent of the victim’s wounds. They served to corroborate his testimony that the victim was in an upright position while she was bleeding from the neck wound, and that the scratch marks and dirt on the victim’s back could have been caused by dragging the body across branches, brush or stones in the field. This testimony served to support the State’s theory that the victim had been killed at another location, driven to the field and dragged to the spot where she was found. These photographs are not repetitious and do not approach the degree of gruesomeness found objectionable in other cases. There was no error in the admission of these photographs.
The appellant contends the trial court erred in failing to instruct the jury on the lesser offense of voluntary manslaughter. The district court’s duty under K.S.A. 21-3107(3) to instruct on lesser included offenses arises only when there is evidence under which the defendant might reasonably have been convicted of the lesser offense. See State v. Garcia, 233 Kan. at 608, and cases cited therein. Voluntary manslaughter is defined in K.S.A. 21-3403 as the intentional killing of a person, without malice, upon a sudden quarrel or in the heat of passion. The appellant contends the evidence reasonably leads to the inference that the victim and her killer went to the field to engage in sexual activity but had a fight, during which the fatal blow was struck. He argues if this version of the facts was believed by the jury and a proper instruction was given, he would only have been found guilty of voluntary manslaughter.
Although the appellant may be able to speculate, based upon the wounds sustained and the unclothed condition of the victim, that the victim might have been killed during a sudden quarrel or in the heat of passion, no positive testimony was received from him or another witness tending to prove this particular version of the facts. The appellant’s theory of defense during the trial was ■ that he was not the perpetrator of the crime. The majority of the evidence introduced by the State was for the purpose of establishing the appellant’s presence at the scene and his criminal involvement in the victim’s death. The appellant presented evidence attempting to refute the State’s evidence tying him to the crime. No evidence was presented by the appellant, however, indicating the murder occurred in a manner different from that alleged by the State. In prior cases this court has considered the need for instructions on lesser included offenses where an alibi defense is raised. See e.g., State v. Hutton, 232 Kan. at 545, 554, 657 P.2d 567 (1983); State v. Marks, 226 Kan. 704, 711, 602 P.2d 1344 (1979); State v. Reynolds, 230 Kan. 532, 538, 639 P.2d 461 (1982); State v. Cameron & Bentley, 216 Kan. 644, 651, 533 P.2d 1255 (1975). These cases recognize that an alibi defense does not refute the evidence establishing the elements of the crime charged and is insufficient, standing alone, to support a verdict on a lesser charge. An alibi defense does not dispute the evidence that the crime charged was committed in the manner alleged; rather, it merely challenges the identity of the perpetrator. As stated in State v. Marks, 226 Kan. at 714:
“In order for the evidence to be sufficient to require instructions on lesser degrees of the homicide, the testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed.”
Under the evidence presented in this case the appellant was guilty of either first- or second-degree murder, or he was not present at the time of the murder and was not guilty of anything. The test for giving a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the instruction on the lesser charge. State v. Garcia, 233 Kan. at 610. This test was not met in this case. A verdict of guilty of voluntary manslaughter would not have been supported by the evidence.
The appellant next contends the trial court erred in overruling his motion to suppress evidence seized in the search of his home. He contends he was coerced into giving his consent because his wife and children were “being held” at the police station while he was being questioned.
One of the exceptions to the requirement of a search warrant is a search made with consent or waiver voluntarily, intelligently and knowingly given. State v. Nicholson, 225 Kan. 418, 423, 590 P.2d 1069 (1979); State v. Jakeway, 221 Kan. 142, Syl. ¶ 4, 558 P.2d 113 (1976). The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of the attendant circumstances by the trier of fact. It will not be overturned on appeal unless clearly erroneous. The quantum of evidence necessary to prove voluntariness has been held to be by a preponderance. State v. Niblock, 230 Kan. 156, 162, 631 P.2d 661 (1981); State v. Nicholson, 225 Kan. at 423; State v. Buckner, 223 Kan. 138, Syl. ¶¶ 2, 3, 574 P.2d 918 (1977). The burden of proving that the search and seizure was lawful and based upon probable cause rests upon the prosecution. State v. Chiles, 226 Kan. 140, 145, 595 P.2d 1130 (1979); State v. Nicholson, 225 Kan. at 423.
A hearing on the motion to suppress was held by the trial court. The detective who obtained the consent to search from the appellant testified the appellant and his wife both agreed to come to police headquarters to answer questions relating to the homicide investigation. The detectives had information that the appellant had talked to the victim the night of the murder. They also observed the same type of beer cans in the appellant’s driveway as those found near the body. The detectives remained at the appellant’s home for almost an hour while the Pearsons cleaned up and got ready to leave. The detectives suggested to Mrs. Pearson that the children should perhaps be left with a babysitter. A babysitter was not available, however, so it was suggested some toys be brought along to occupy the children. At police headquarters the appellant was placed in a room separate from his wife and family so he could be interviewed. It does not appear from the record whether the appellant’s wife was ever questioned by police, but a consent was obtained from her to search their residence. Although Mrs. Pearson remained at the police station throughout the afternoon during the time the appellant was questioned and arrested, the detective testified she was free to leave at any time and would have been provided a ride home if she had requested one.
The appellant signed the consent to search his home approximately an hour and one-half after arriving at the police station. Prior to this he had signed a waiver of his Miranda rights, had agreed to be fingerprinted and was questioned about his contact with the victim. During this time the appellant was considered a possible suspect, but he was not placed in custody until it was learned his fingerprints matched those on the beer can found near the body, sometime after the consent to search was given.
There is no evidence to support the appellant’s claim that he was coerced into giving his consent to the search. The appellant was not threatened or promised anything by the officers. There is no evidence to suggest he was incapable of understanding his rights. The evidence does not indicate the appellant was unduly concerned about the presence of his wife and children at the police station. There is no reason to believe he was fearful for their safety or believed that unless he signed the consent they would be subjected to a grueling interrogation or would not be permitted to leave. It was proper and understandable for the detectives to want to question the appellant’s wife to ascertain whether she had knowledge of the appellant’s whereabouts and activities the night of the murder. It was apparently agreeable with all the parties that the children be brought to the station when other arrangements could not be made. There is no evidence the appellant or his wife objected to this in any way.
The appellant was fully informed of his rights and voluntarily consented to the search of his house. In addition, the consent given by the appellant’s wife was sufficient to form the basis for a valid search. See, e.g., State v. Jakeway, 221 Kan. at 145-46; State v. Boyd, 206 Kan. 597, Syl. ¶ 2, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927 (1972). The trial court properly overruled the motion to suppress the evidence.
As his final point on appeal the appellant contends the cumulative effect of several alleged errors in the admission of evidence is sufficient to warrant a reversal of the conviction.
The first of these alleged errors relates to Ms. Cortese’s testimony concerning the population frequency of various blood types and enzymes. Ms. Córtese based her testimony on figures derived from a study by Dr. Grunbaum which was published in the Journal of Forensic Science. Ms. Córtese testified these figures were considered reliable within the scientific community. The appellant complains Ms. Córtese did not acknowledge that the Journal of Forensic Science was a reliable and authoritative treatise. No objection was raised to the admissibility of this evidence upon this ground at trial, and therefore this point is not reviewable on appeal. See State v. Garcia, 233 Kan. at 608; K.S.A. 60-404. Nevertheless, the witness identified the source of the figures as a study done by the appellant’s own expert witness and that these figures were considered reliable in the scientific community, of which she is a member. This court held in State v. Washington, 229 Kan. 47, 59, 622 P.2d 986 (1981), that evidence of population percentages concerning the possibility of certain combinations of blood characteristics, based upon established facts, is admissible as relevant to identification, and that this information is reasonably within the expertise of the forensic expert testifying to blood-type analysis. The trial court properly admitted this evidence.
The appellant also claims the court erred in overruling an objection to testimony by Ms. Córtese during redirect examination concerning the reliability of a blood enzyme classification system published by Denault. On cross-examination Ms. Córtese had stated the work was not the sole authority on the subject. On redirect examination Ms. Córtese testified this classification system is accepted and used by most serologists. The appellant contends this testimony was inconsistent with her prior testimony and she should not have been permitted to further testify concerning this work on redirect examination. This testimony, however, did not conflict with her earlier testimony. It merely indicated that while the work is accepted and commonly used, there are other authorities on the subject. Evidence concerning this system was used by the witness on redirect examination to further describe her method of analysis and was not prejudicial to the appellant. Furthermore, on redirect examination a witness may be asked questions to clarify or modify statements made on cross-examination. See State v. Beard, 220 Kan. 580, Syl. ¶ 2, 552 P.2d 900 (1976). This point is without merit.
The appellant contends the State was improperly allowed to impeach its own witness by leading questions. This relates to the testimony of Tom Cole, a friend of the appellant’s, who owned the car driven by the appellant the night of the murder. When Mr. Cole viewed his car at police headquarters he noticed the tires were caked with mud. He testified on direct examination the tires could have been in that condition when he gave the car to the appellant.
While ordinarily a party may not impeach his own witness, nor offer evidence for that purpose, he is not conclusively bound by the statements which the witness may make; and where a party has been entrapped or deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements, and may, in the discretion of the court, be permitted to show what such contrary statements were. State v. Hobson, 234 Kan. 133, 146, 671 P.2d 1365 (1983), and cases cited therein. K.S.A. 60-243 provides a party may interrogate any unwilling or hostile witness by leading questions. Here the witness apparently had second thoughts at the last minute about testifying unfavorably against his friend. His answers on direct examination were contrary to those given earlier to police during the investigation of the homicide. The answers were unexpected by the prosecution and adverse to its case against the appellant. The State was entitled to cross-examine the witness concerning his prior inconsistent statements.
The appellant complains he was prejudiced by the trial court’s refusal to allow him to cross-examine the victim’s husband concerning the history of physical violence between the two during the course of their marriage. This line of questioning was objected to by the State as irrelevant. On both direct and cross-examination the witness testified about an argument he and the victim had before she left their house the night she was murdered. He testified on cross-examination there was no physical violence during this argument. No questions were asked on direct examination concerning marital discord or prior acts of violence between the witness and the victim. The appellant contends he was deprived of the right to fully explore his theory that the victim’s husband or another was responsible for the murder.
Generally, relevancy of testimony elicited by a party from any witness and the scope of both direct and cross-examination of that witness is subject to reasonable control by the trial court. In particular, the proper scope of cross-examination is within the sound discretion of the trial court, and, absent a showing of clear abuse, exercise of that discretion will not constitute prejudicial error. State v. Jones, 233 Kan. 112, Syl. ¶ 2, 660 P.2d 948 (1983); State v. Hutchinson, 222 Kan. 365, Syl. ¶ 2, 564 P.2d 545 (1977). In addition, cross-examination must be responsive to testimony given on direct examination, or material and relevant thereto, and resolution of such issues resides in the sound discretion of the trial court. See State v. Hobson, 234 Kan. at 151-52, and cases cited therein.
There is no showing by the appellant that the trial court abused its discretion in refusing to permit the appellant to examine the victim’s husband about the prior marital discord. While the evidence may have been relevant to the appellant’s theory of defense, it was outside the scope of the direct examination. Furthermore, three defense witnesses were called by the appellant who testified about instances of prior arguments and violence between the victim and her husband. The appellant was not prejudiced by the exclusion of this evidence.
The appellant having failed to show reversible error, the judgment of the lower court is affirmed. | [
-80,
-22,
-35,
-67,
59,
96,
42,
-40,
50,
-109,
-78,
115,
-119,
-53,
1,
122,
10,
29,
85,
105,
-45,
-73,
39,
-55,
-74,
-13,
-14,
-44,
-14,
-54,
62,
-12,
73,
48,
74,
-107,
102,
74,
83,
90,
-114,
-108,
-119,
-16,
82,
2,
36,
123,
-12,
14,
-79,
30,
-77,
106,
30,
-57,
-87,
44,
75,
-81,
68,
-47,
41,
-105,
-35,
18,
-77,
32,
-66,
-123,
-8,
55,
-40,
57,
0,
-24,
51,
-122,
-122,
-12,
95,
-119,
12,
102,
99,
36,
28,
-51,
40,
-119,
47,
127,
-107,
-89,
-71,
72,
65,
45,
-98,
-97,
100,
54,
11,
-4,
-13,
79,
31,
-28,
-122,
-33,
-80,
-111,
-55,
52,
-106,
-70,
-5,
-91,
50,
97,
-35,
96,
78,
101,
90,
-103,
-98,
-106
] |
The opinion of the court was delivered by
Herd, J.;
This is an appeal from a post-trial order in a divorce action. The order grew out of the court’s division of the marital property. The trial court decision was appealed to this court and affirmed as modified in an opinion filed January 14, 1983, entitled Bohl v. Bohl, 232 Kan. 557, 657 P.2d 1106 (1983) (Bohl I). The issue raised by this appeal is whether the trial court erred in ruling Robert Bohl, defendant/appellant, could not assert a homestead right to a part of the marital property assigned to him and thus avoid forced sale thereof to satisfy Nancy Bohl’s, plaintiff/appellee, lien thereon.
The facts of this case are fully set out in Bohl v. Bohl, 232 Kan. 557, and will not be here repeated. Suffice it to say this court affirmed the trial court’s division of property between Nancy Bohl and Robert Bohl. The property division awarded a house on Arrowhead Drive, Topeka, to Robert Bohl. Nancy Bohl was awarded the family home on Burlingame Road, Topeka. In equalizing the division of property between the parties, the trial court awarded Nancy Bohl a money judgment in the amount of $890,217 in lieu of other property.
The trial court order dividing the family property was filed January 21, 1982. The order expressly awarded Nancy Bohl a judicial lien upon the common stock of the M. W. Watson Company, which was given to Robert Bohl. On February 13, 1982, Robert Bohl remarried and with his new wife and her daughter moved into the house on Arrowhead Drive.
A motion for a new trial was denied on March 4, 1982. At that same time the court granted Nancy Bohl’s motion to modify its decree and imposed a judicial lien in favor of Nancy Bohl upon all of the real estate awarded to Robert Bohl. Thereafter, on April 15, 1982, Robert Bohl filed his notice of appeal in Bohl I.
Robert Bohl was unable to obtain a supersedeas bond. He moved the court to waive the bond and grant a stay of execution pending tire determination of the appeal. The stay was denied. Nancy Bohl filed her first praecipe for execution on April 20, 1982, and on September 16, 1982, filed another one. In the second praecipe she directed execution upon the house on Arrowhead Drive as well as on other property of Robert Bohl. On September 17, 1982, Robert Bohl and Janet Bohl, the second wife, designated the house on Arrowhead Drive as their homestead pursuant to K.S.A. 1982 Supp. 60-2302. Upon request of Nancy Bohl for a determination of Robert and Janet Bohl’s homestead rights in the Arrowhead Drive property, the trial court ruled on October 22, 1982, that the homestead rights did not preclude levying execution on the Arrowhead Drive property to satisfy the judgment lien of Nancy Bohl. Robert Bohl appealed the order in December 1982. In the meantime, Nancy Bohl continued her efforts to levy upon the real estate. She proceeded to publish notice of sale to be held January 21, 1983. After the decision in Bohl I was handed down January 14, 1983, the trial court ordered a temporary stay of the judicial sale pending further hearings pursuant to that opinion.
There are two issues presented in this appeal. Robert Bohl first argues the trial court lacked jurisdiction to determine his homestead claim because the property had not been attached, levied upon and the judgment returned unsatisfied.
We first examine the procedure used by Nancy Bohl. She filed two praecipes for execution against the Arrowhead property in September of 1982. In both instances a writ of execution was issued by the court pursuant to K.S.A. 60-2401. At this juncture Robert Bohl intervened by apprising the sheriff he claimed a homestead exemption in the property. K.S.A. 60-2401(a) is applicable and defines a general execution as “a direction to an officer to seize any non-exempt property of a judgment debtor . . . .” The sheriff acted responsibly and refused to levy execution until a determination was made of the validity of the homestead claim. See Brooks v. Marquess, 157 Kan. 244, 248, 139 P.2d 395 (1943), where this court held a sheriff properly refrained from serving a writ of execution after he was given a timely notice by the judgment debtor the property sought to be subjected to execution was his homestead. This made the homestead claim subject to judicial determination at that time. This case is similar. The execution had proceeded as far as it should have until the exempt status of the property was judicially determined. A trial court’s jurisdiction over such matters is not dependent upon a sheriffs return of the writ of execution with no goods found. Until the exemption issue is resolved, the sheriff cannot make a valid return. This issue is without merit.
We next turn to the substantive issue of whether Robert and Janet Bohl’s homestead claim rendered the Arrowhead Drive property exempt from Nancy Bohl’s judgment lien. •
The constitutional right to a homestead exemption finds its statutory implementation in K.S.A. 1982 Supp. 60-2301, where it is provided:
“A homestead to the extent of one hundred and sixty aeres of fanning land, or of one aere within the limits of an incorporated town or city, or a mobile home, occupied as a residence by the owner or by the family of the owner, or by both the owner and family thereof, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife, when that relation exists.”
Robert Bohl properly designated his claim of homestead as provided in K.S.A. 1982 Supp. 60-2302. Exemption statutes are generally held to be subjects of liberal construction in order to accomplish their remedial purpose. The purpose of the homestead and other exemptions is to insure a debtor and his family the means to avoid absolute destitution. See In re Estate of Johnson, 202 Kan. 684, 698-99, 452 P.2d 286 (1969); Nohinek v. Logsdon, 6 Kan. App. 2d 342, Syl. ¶ 3, 628 P.2d 257 (1981).
The homestead exemption, however, is not absolute and it has been held in Kansas that a lien upon a husband’s property designed to secure the payment of court-decreed alimony to his former wife will overcome a homestead claim. In Blankenship v. Blankenship, 19 Kan. 159 (1877), the court faced a situation wherein a divorced husband objected to the trial court’s imposition of a lien on all his property to ensure his former wife’s judgment for alimony. His homestead, which he now shared with another wife, was sold to satisfy the lien. He received the homestead in the original divorce settlement. Answering his claims of error, the court said that the trial court had the power to declare the sum awarded as alimony a lien upon all the property of the husband and “to authorize the sale of such property (even if it is a homestead) to satisfy the lien.” p. 161. This holding was upheld in Johnson v. Johnson, 66 Kan. 546, Syl. ¶ 1, 72 Pac. 267 (1903), and most recently in Mahone v. Mahone, 213 Kan. 346, 351, 517 P.2d 131 (1973), where it is said:
“We have held that a claim of an ex-wife for alimony can be enforced by a court in a divorce decree as a lien against the husband’s homestead in the face of a claim of exemption by the husband. (Blankenship v. Blankenship, 19 Kan. 159; Johnson v. Johnson, 66 Kan. 546, 72 Pac. 267.) Blankenship and Johnson clearly stand for the proposition that the exemption afforded a husband’s homestead will not be applied to prevent a court from enforcing the alimony rights of a wife. In those cases the court took into consideration the purpose of the homestead exemption provision and by judicial construction held it inapplicable to a claim of alimony.”
Robert Rohl claims these cases are distinguishable because they authorize imposition of a lien only to enforce an alimony award but not a division of property. No alimony was awarded in this case. While the term alimony once represented the husband’s common law duty of support and was a distinct concept from property division, modern decisions recognize the distinction has been eliminated over the years. The terminology used to describe the award is no longer significant.
This court has recognized and approved lopsided property divisions where “alimony” has been awarded to equalize the division, and lopsided property divisions in lieu of alimony. See Kendall v. Kendall, 218 Kan. 713, 545 P.2d 346 (1976); Almquist v. Almquist, 214 Kan. 788, 793, 522 P.2d 383 (1974). Thus, while the two concepts are different, it does not appear, in the case at bar, that the distinctions should make a difference regarding the imposition of a lien on a “homestead.” Obviously the property division herein was designed to allocate the marital property equally between the parties. Thus the cases cited concerning imposition of a lien to enforce an alimony award are relevant.
Robert Bohl also maintains that the Blankenship case is factually distinguishable because in that case the court attached a lien to the divorcing couple’s existing homestead which was awarded to the husband. This case, he claims, involves an after-acquired homestead. At the time of the divorce the Arrowhead Drive property was a vacation home and not a “homestead.” Bohl began residing there with his second wife after he received the house in the property settlement. The house was a part of the marital property (see K.S.A. 23-201[£>]) which became subject to the determination of the court when the divorce petition was filed. See K.S.A. 1982 Supp. 60-1610(b). The court awarded the property to the defendant and gave plaintiff a money judgment by a decision which was journalized and filed January 21,1982. The appellant also filed a motion for a new trial which was heard in March. In the intervening months he married Janet and they moved into the property. At the hearing on appellant’s motion for a new trial the appellee sought and the court imposed a lien upon the real estate awarded to him. The motion for a new trial was denied and the appellant took his appeal from the property settlement. This is all very well, but K.S.A. 1982 Supp. 60-2202(a) controls this case. It provides:
“Any judgment rendered ... by a district court of this state ... in an action commenced pursuant to chapter 60 of the Kansas Statutes Annotated shall be a lien on the real estate of the debtor within the county in which judgment is rendered. . . . [T]he lien shall be effective from the time at which the petition stating the claim against the judgment debtor was filed but not to exceed four months prior to the entry of the judgment.”
Thus, the judgment became alien on Robert Bohl’s real estate, at the latest on January 21, 1982, at which time he had no homestead right in it. The homestead rights of Robert and Janet Bohl in the Arrowhead Drive property arise after that date and are therefore subject to the lien of Nancy Bohl. Robert Bohl could not have established a homestead at the Arrowhead Drive house free of the lien.
The judgment of the trial court is affirmed.
Prager and Miller, JJ., not participating. | [
-15,
106,
-79,
30,
10,
66,
42,
-104,
97,
-25,
-73,
83,
-85,
-38,
0,
105,
50,
45,
1,
105,
-39,
-78,
23,
-125,
86,
-77,
-103,
-35,
-77,
-40,
101,
87,
77,
32,
-62,
-43,
-58,
-62,
-59,
84,
-116,
6,
27,
117,
-55,
2,
48,
-69,
114,
11,
1,
-98,
-77,
41,
57,
-48,
104,
106,
91,
49,
80,
-80,
-85,
39,
79,
50,
-111,
0,
-56,
5,
88,
-18,
-104,
48,
2,
-7,
59,
54,
22,
116,
65,
-117,
8,
100,
102,
17,
77,
-17,
-32,
-104,
47,
87,
-99,
39,
-110,
88,
-126,
96,
-74,
-100,
117,
112,
7,
-4,
-17,
-123,
29,
124,
12,
-101,
-74,
-111,
79,
112,
-118,
0,
-21,
-127,
0,
113,
-55,
-126,
94,
71,
59,
-69,
-114,
-60
] |
The opinion of the court was delivered by
Herd, J.:
This is an appeal by Richard E. Clevenger from his conviction of two counts of vehicular homicide, K.S.A. 21-3405, and one count of driving under the influence (DUI) of alcohol, K.S.A. 1983 Supp. 8-1567.
Richard E. Clevenger, appellant, was charged with three counts of vehicular homicide in violation of K.S.A. 21-3405, driving under the influence of alcohol or drugs (DUI) in violation of K.S.A. 1983 Supp. 8-1567, driving without a valid operator’s license in violation of K.S.A. 1983 Supp. 8-262, reckless driving in violation of K.S.A. 8-1566, and following too closely in violation of K.S.A. 8-1523. The charges stem from an accident on January 29,1983. Clevenger was traveling north on U.S. Hwy. 59 and collided head-on with another vehicle just outside Erie, Kansas. As a result of the accident, all three occupants of the car hit by appellant, two women and one boy, were killed. One of the women who died was pregnant and her fetus was also killed. At the time of the accident, Clevenger was legally blind, had no driver’s license, and was under a diversion agreement from a previous DUI arrest. That day he had been drinking at local taverns in Parsons, in violation of his diversion agreement. '
Appellant entered a plea of nolo contendere on May 17, 1983, to two counts of vehicular homicide and one count of DUI and was found guilty by the court. The remaining counts were dismissed. A presentence investigation was conducted including a psychological evaluation and medical report from the appellant’s opthalmologist. The medical report showed appellant was legally blind in both eyes. The investigation also revealed appellant had been barred from driving as early as March 27, 1976. The presentence report recommended imposition of the maximum sentence provided by law and that the sentences run consecutively. The report also noted appellant denied being drunk the night of the accident, even though his blood alcohol content was .15%, and that he continued to drink alcohol after the fatality accident.
On June 28, 1983, he was sentenced. The evidence presented in connection with sentencing showed appellant was previously charged in Labette County, Kansas, on October 20, 1982, with one count of DUI in violation of K.S.A. 1983 Supp. 8-1567, and one count of operating a motor vehicle while in possession of an open container in violation of K.S.A. 41-804.
Appellant chose to enter into a diversion agreement in that case on December 20, 1982. As a result, the case was dismissed without prejudice against Clevenger pursuant to an order of December 21, 1982.
Due to the December 1982 diversion agreement, the appellant was sentenced in the instant case as a second time offender. He received a one-year sentence on each of the vehicular homicide counts and one year on the DUI and was fined $2500 on each of the vehicular homicide counts and $1000 on the DUI count. These sentences were ordered to run consecutively.
Subsequently, appellant failed to complete the diversion program from his original DUI charge. Criminal proceedings in that case were resumed on May 3, 1983.
The sole issue in this case is whether consideration of the diversion agreement as a conviction, for purposes of sentencing under K.S.A. 1983 Supp. 8-1567, constitutes a violation of appellant’s constitutional right to due process since his guilt or innocence was not adjudicated prior to entering into the diversion agreement.
Appellant argues the diversion agreement provision of 8-1567 is unconstitutional. K.S.A. 1983 Supp. 8-1567, which mandates more severe punishment for those “convicted” twice of violating the statute, states the term “conviction” includes “being con victed of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings in a complaint alleging a violation of this section.” K.S.A. 1983 Supp. 8-1567(i). The section of the statute appellant challenges, therefore, defines diversion as a “conviction.” The effect of this definition is that a defendant who has accepted diversion for his first charge is required to receive a harsher sentence if he is charged a second time and convicted of a violation of the statute. Appellant argues this mandates a defendant receive a harsher sentence without due process since the alleged violation which led to diversion was never adjudicated.
Appellant notes other sentence enhancement statutes do not include diversion as a prior “conviction.” See K.S.A. 1983 Supp. 8-262(a), driving with a suspended license; K.S.A. 21-3708, writing worthless checks; and K.S.A. 1983 Supp. 21-4504, the Habitual Criminal Act. He contends the absence of the word “diversion” from these statutes indicates the DUI law is the exception, not the rule. A statute is not unconstitutional merely because it is an exception. Further, it is important to note the history of diversion in Kansas.
Diversion has been offered as a statutory option to institutionalization only since 1978. The various statutes noted by appellant which do not include diversion were enacted prior to 1978.
Black’s Law Dictionary 403 (4th ed. rev. 1968), states conviction: “[i]n ordinary phrase . . . is the finding by the jury of a verdict that the accused is guilty. But, in legal parlance, it often denotes the final judgment of the court.” Diversion could be considered the final judgment of the court since it allows the defendant to follow a program which, if successfully completed, results in dismissal of the charges. There is no plea of guilty or otherwise in a diversion agreement since the law specifically disallows the prosecution from taking one. See K.S.A. 1983 Supp. 22-2910. If, however, the program is not completed, the defendant is prosecuted and the program is then not the final action in the case. Thus, diversion is not a conviction in the traditional sense. This alone, however, is not lack of due process.
Other states do not require a finding of guilt for the first violation of a law in order to support an enhanced sentence for a second violation. In South Carolina, forfeiture of bail alone is automatically considered a conviction when determining whether an individual is a habitual violator. S.C. Code Ann. § 56-1-10(11) (Law.’ Co-op. 1976). Colorado has recognized that “the term ‘conviction’ has different meanings in different statutory contexts.” Walker v. Dist. Ct., 199 Colo. 128, 132, 606 P.2d 70 (1980).
In the context of the Habitual Criminal Act, K.S.A. 1983 Supp. 21-4504, this court has held “it is the nature of the offense not the manner of punishment, which determines the applicability of the habitual criminal act,” and thereby a harsher sentence. State v. Shepley, 203 Kan. 635, 636, 456 P.2d 8 (1969). A similar statement can be made of the DUI laws. The important fact is that an offense of driving while under the influence has occurred twice. The fact the defendant was lucky enough to be allowed diversion in the first case should not preclude the enhancement of the sentence for a second offense. The only real difference between diversion and jail time on a first offense is the incarceration.
The nature of diversion in the context of DUI violations is particularly indicative of the diversion’s conviction-like nature. In order to enter into a diversion agreement, a defendant must stipulate to the facts constituting the offense. If the diversion program is not completed, a trial is had to the court based solely upon the stipulation. Thus, while there is not a guilty plea, there is an admission by the defendant of the commission of the offense.
As part of the diversion, the defendant must pay the minimum statutory fine for a first offense or complete a set number of hours of community service. See K.S.A. 1983 Supp. 22-2909(c)(l). The defendant must also enroll in and successfully complete an alcohol and drug safety program or an appropriate treatment program. The costs of either program must be paid for by the defendant. See K.S.A. 1983 Supp. 22-2909(c)(2). Thus, diversion is equal to the punishment for a first offense, except for the incarceration.
Appellant further claims the use of the diversion as a conviction denies due process since it is entered into prior to an adjudication of guilt. While it is true there is no adjudication, there is a stipulation entered into by the defendant and the prosecutor stating the facts which constitute the offense. Further, the defendant must waive all constitutional rights to a speedy trial and to a trial by jury. See K.S.A. 1983 Supp. 22-2909(a). Finally, and most importantly, the defendant’s decision to enter the diversionary program is completely voluntary. The defendant may choose to go to trial, rather than accept diversion. The trial phase guarantees all constitutional rights. Hence, there can be no claim the waiver of due process rights which accompanies the diversion agreement is not voluntary.
Therefore, the defendant in the instant case who voluntarily accepted diversion, with knowledge that he was waiving his due process rights, and with knowledge that the diversion would be considered a conviction if he was ever convicted and sentenced again, cannot now argue he was deprived of due process in the first instance. Such a claim may be considered invited error. This court has held a litigant may not invite error and then complain of that error on appeal. See State v. Reynolds, 230 Kan. 532, Syl. ¶ 3, 639 P.2d 461 (1982). Also appellant’s argument ignores the fact that all constitutional rights may be freely and voluntarily waived. Diversion is an example of this principle. Should a defendant’s diversion later prove to be faulty for any reason, the defendant may use the new information to support an application for adjustment of sentence.
It is also important to remember that defendant is sentenced pursuant to the first offense, not convicted. Thus, the earlier offense has no bearing on the defendant’s guilt or innocence in the second case. If the defendant is found guilty then the earlier offense is utilized by the court only for sentencing purposes.
The final issue of importance in this case is the public policy behind the statute in question. The intent of allowing diversion for the first DUI offense was the legislature’s recognition that although it had done away with plea bargaining, it deemed it appropriate to offer a less harsh option for a first offense. If, however, a defendant commits a second offense, there are no breaks. The purpose of sentence enhancement is to punish those who violate the law repeatedly. See State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975). A repeated violator of the DUI law should be subject to sentence enhancement on a second offense regardless of whether the individual went to jail or sought diversion for the first offense.
Finally, we have repeatedly held the constitutionality of a statute is presumed, that all doubts are resolved in favor of its validity, and before the statute is stricken down, it must clearly appear the statute violates the constitution. See Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975). The appellant has failed to show this statute clearly violates the constitution. We hold K.S.A. 1983 Supp. 8-1567 constitutional.
The judgment of the trial court is affirmed.
Holmes, J., not participating. | [
-48,
-22,
-48,
15,
56,
64,
43,
30,
72,
-121,
-76,
83,
-53,
-38,
69,
121,
111,
-3,
85,
120,
-3,
-89,
7,
-96,
-110,
-77,
-5,
-58,
-77,
73,
-20,
-12,
10,
96,
74,
21,
38,
73,
-128,
92,
-114,
-122,
-87,
-16,
90,
-102,
56,
106,
21,
6,
49,
31,
-13,
42,
30,
-121,
-83,
12,
91,
-87,
-47,
-79,
-55,
21,
95,
66,
-96,
4,
-68,
5,
-48,
61,
-100,
-15,
32,
-4,
50,
-90,
-122,
-12,
111,
-39,
-116,
38,
98,
33,
21,
-115,
-20,
-120,
46,
126,
-99,
-123,
-102,
24,
97,
-123,
-105,
31,
126,
54,
15,
124,
-17,
-60,
93,
120,
7,
-98,
-80,
-111,
-51,
49,
-58,
-55,
-21,
-123,
50,
113,
-49,
-26,
86,
69,
114,
27,
-102,
-76
] |
The opinion of the court was delivered by
McFarland, J.:
Michael A. Roadenbaugh appeals his jury trial conviction of second-degree murder (K.S.A. 21-3402). The victim was defendant’s mother, Mrs. Vivian Lawson. It is undisputed defendant killed Mrs. Lawson on October 21, 1981, in her Wichita residence. An insanity defense was presented at trial (K.S.A. 22-3219).
The first issue is whether the trial court erred in admitting a statement made by the defendant to the arresting officer.
Some additional facts relative to the slaying need to be stated. On October 19, 1981, defendant moved into the residence of his mother and stepfather (Vivian and Virgil Lawson). Defendant had a history of mental difficulties and alcohol abuse. When Mr. Lawson returned home from work at approximately 4:00 p.m. on October 21, 1981, he discovered the body of his wife. She had been shot twice — once in the chest and once in the back. The defendant was not in the home. An ambulance was summoned by Mr. Lawson and a police officer followed the ambulance to the scene.
Mr. Lawson advised the officer he owned a .22 caliber revolver and the officer observed the same in a bedroom drawer. Two empty .357 caliber cartridges were on a coffee table in the living room. Mr. Lawson advised the officer he did not own a weapon the empty cartridges would fit, but defendant might own such a gun. Mr. Lawson also gave the officer information concerning the defendant which caused the officer to believe defendant was a suspect in the slaying. The police dispatcher broadcast a physical description of defendant, his name, and the fact he might be carrying a brown suitcase. The broadcast further advised defendant might be armed with a .38 or .357 caliber revolver and stated he was a suspect in a homicide.
Later the same day, a police officer who had heard the broadcast saw a man fitting the description, carrying a suitcase, approaching the City Building at 455 North Main in Wichita. The officer asked the man to state his name and the man identified himself as Michael Roadenbaugh. Upon being requested to do so by the officer, defendant put the suitcase on the ground and placed his hands on the west wall of the City Building. The officer started patting defendant down and inquired “where his weapon was.” The officer testified he made the inquiry for his own protection. In response to the question defendant removed his right hand from the wall and pointed toward the suitcase. Additionally, he verbally stated the weapon was in the suitcase. The officer then finished patting down the defendant, handcuffed him, picked up the suitcase, and accompanied defendant to police department offices in the City Building.
The defendant objected to the officer being permitted to testify as to defendant’s gesture and verbal statement relative to the location of the gun. Defendant contends the officer’s question which occasioned these responses was a custodial interrogation without benefit of a Miranda warning and hence was violative of his Fifth Amendment right against self-incrimination.
We do not agree.
In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), 10 A.L.R.3d 974, the U.S. Supreme Court in its landmark decision proclaimed:
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444.
Miranda, however, does not stand for an absolute proposition law enforcement officers may never ask a citizen any question without previously informing the citizen of his constitutional rights, such as the right to remain silent. As the Miranda court observed, “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.” 384 U.S. at 477-78.
A question propounded by a law enforcement officer during investigatory questioning, as contrasted to during custodial interrogation, does not require the previous giving of a Miranda warning. In State v. Bohanan, 220 Kan. 121, 551 P.2d 828 (1976), the Court, through Justice Prager, distinguished between custodial and investigatory interrogation as follows:
“Since Miranda this court has developed a number of general guidelines to be applied in determining whether or not a custodial interrogation has taken place. In State v. Brunner, 211 Kan. 596, 507 P.2d 233, we held that a person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency. We have also declared that a general questioning of citizens in the course of an investigation in the fact finding process does not constitute custodial interrogation. We defined an investigatory interrogation as the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. (State v. Frizzell, 207 Kan. 393, 485 P.2d 160.) In State v. Carson, 216 Kan. 711, 533 P.2d 1342, Syl. 5, we suggested that circumstances bearing on whether a person questioned was subjected to ‘custodial interrogation’ requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the inves tigation at the time of interrogation. In Carson we also stated that the fact a suspect is the focus of an investigation, standing alone, does not trigger the need for a Miranda warning but it may be one of the determinative factors in arriving at a decision whether such a warning is needed.” 220 Kan. at 128-29.
Summarizing a decade of case law on this matter, this court, in State v. Taylor, 231 Kan. 171, 642 P.2d 989 (1982), recently observed:
“The admissibility of appellant’s statements depends upon whether they were the result of a ‘custodial interrogation’ or an ‘investigatory interrogation.’ A custodial interrogation, which requires that Miranda warnings be given, involves ‘significant restraints on [a subject’s] freedom of movement which are imposed by some law enforcement agency.’ State v. Greenberg, 4 Kan. App. 2d 403, 405, 607 P.2d 530, rev. denied 228 Kan. 807 (1980); State v. Brunner, 211 Kan. 596, Syl. ¶ 2,507 P.2d 233 (1973). In State v. Bohanan, 220 Kan. 121, 128, 551 P.2d 828 (1976), it was recognized, ‘that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process does not constitute custodial interrogation requiring a Miranda warning.’ An investigatory interrogation, requiring no warning, is defined as ‘the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way.’ 220 Kan. at 128.” 231 Kan. at 172-73.
However, we do not believe the question of custodial or investigatory interrogation even arises in the circumstances herein. The officer had a clear right, for personal safety purposes, physically to search the defendant for weapons. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). See also K.S.A. 22-2402(2). In so doing it is permissible to spread-eagle a suspect for the pat down or frisk and then feel the suspect’s person for weapons. Surely a verbal question as to the location of a weapon is far less intrusive upon a suspect.
A similar issue was presented in People v. Toler, 45 Mich. App. 156, 206 N.W.2d 253 (1973). In addressing the propriety of the police officer’s question about the location of the firearm, the Michigan Court of Appeals said:
“There is no dispute here concerning the issue of custody or lack of Miranda warnings. The defendant had been shot, handcuffed, and patted down for weapons; he was in custody. No warnings were given. However, there is a serious question as to whether this was the type of interrogation that Miranda was intended to cover.
“Generally, the police cannot ask an arrested suspect any questions without first warning him of his constitutional rights. The case at bar is, however, a limited exception to this general rule. People v. Ramos, 17 Mich. App. 515, 518 [, 170 N.W.2d 189] (1969), spoke to this issue in light of Terry v. Ohio, 392 U.S. 1; 88 S.Ct. 1868; 20 L.Ed.2d 889 (1968):
“ ‘The police were not obligated to advise the defendant of his constitutional rights before making an effort to disarm him to prevent him from injuring the police officers or someone else present. Police officers are not required to take unnecessary risks in the performance of their duties.’
In Ramos defendant’s wife had told the police that defendant had a gun, with which he had threatened her. The police approached defendant in a bar and asked, ‘Where is the gun, John?’ Defendant responded that it was in his belt. Both the conversation and the weapon were properly admitted at this trial for carrying a concealed weapon.
“The facts in the case at bar are somewhat different. Here the police knew defendant had had a gun because they saw it in his hand when he ran into the scout car. Defendant had not stopped when ordered to by the police but instead had tried to escape. Defendant was under arrest when questioned. Defendant was not as dangerous to the police when questioned as Ramos potentially was because defendant had already been wounded, handcuffed, and patted down for weapons before the question was asked. The difference of facts does not, however, necessarily dictate a different result.” 45 Mich. App. at 159-60.
Finally:
“Here there was no series of questions aimed at gathering evidence to be used later against the defendant. There was only a single question probably aimed at protecting the officers. The objected-to matter pertained to the location of the gun, previously seen by the officers — the logical import of this is that the officers were concerned with their safety and not with building a case against defendant.” 45 Mich. App. at 161.
In Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969), defendants, having used a shotgun in their crime, were convicted of assault with intent to kill. Defendants challenged the admission of the shotgun into evidence at trial and on appeal. Defendants’ argument was predicated upon the point law enforcement officers asked them where the shotgun was before they advised them of the Miranda warnings. In rejecting defendants’ argument the Arkansas Supreme Court commented:
“When the officers discovered the appellants they were ordered to stop running and walk toward the officers from a distance of approximately 500 feet, with their hands raised. It was necessary for the appellants to wade a shallow ‘seep ditch’ at a levee. At times the weeds and brush were of such a height that the appellants were partially obscured. When the appellants were approaching the officers one of them stooped down. They were asked the whereabouts of the shotgun. The officers were told that it was nearby in a ‘hollow log.’ It was found there contemporaneous with the arrest. It is argued that this procedure is in violation of Miranda v. Arizona, 384 U.S. 436 (1966), which requires that the accused must be warned of his constitutional rights against self-incrimination before any interrogation is begun. In other words, it is insisted that a Miranda warning should have preceded the inquiry.
“We have recently held that a Miranda warning is not required to be given in every instance the moment a suspect is taken into custody. Edington v. State, 243 Ark. 10, 418 S.W.2d 637 (1967); Haire v. State, 245 Ark. 293, 432 S.W.2d 828 (1968). In those cases we held that a spontaneous statement was admissible. In the case at bar, we think the statement that the shotgun was in a ‘hollow log’ was in the nature of a spontaneous admission. We do not agree that Miranda can be construed or is intended as being applicable in these circumstances.
“Further, in the case at bar the officers, based upon probable cause, were effecting the legal arrest of the appellants who were fleeing from the scene of an alleged crime which had recently been committed by the use of a shotgun. In the circumstances it must be said that officers had a right to inquire of the presence or whereabouts of the weapon for their own safety as well as to prevent escape and the destruction of evidence as being incidental to a lawful arrest.” 246 Ark. at 1195-96. (Emphasis supplied.)
In People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958, cert. denied 449 U.S. 1018 (1980), the same question was presented and the New York court reasoned:
“Street encounters between private citizens and law enforcement officers are inherently troublesome. This is so because two competing, yet equally compelling, considerations inevitably clash, to wit: the indisputable right of persons to be free from arbitrary interference by law enforcement officers and the nondelegable duty placed squarely on the shoulders of law enforcement officers to make the streets reasonably safe for us all. While in an ideal society the two might never clash, a quick glance through our newspapers reveals that our society is far from perfect. Thus, the judiciary is put to the task of balancing these competing considerations, so that they can reasonably coexist.” 51 N.Y.2d at 19.
Continuing:
“[T]he single question posed by Dieterich — ‘Where is the gun?’ — was certainly justified in order to protect the officers’ welfare. Courts simply must not, in this difficult area of street encounters between private citizens and law enforcement officers, attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented.” 51 N.Y.2d at 22-23. (Emphasis supplied.)
Concluding:
“We are of the opinion that this single question did not constitute custodial interrogation, and, thus, the response given by defendant — ‘It’s right here’ — need not be suppressed even though defendant was not informed of his constitutional rights before answering. (See People v. Huffman, 41 N.Y.2d 29, [390 N.Y.S.2d 843, 359 N.E.2d 353 (1976)].)” 51 N.Y.2d at 23, n. 8.
See also United States v. Castellana, 500 F.2d 325 (5th Cir. 1974), and State v. Lane, 77 Wash. 2d 860, 467 P.2d 304 (1970).
We conclude the officer’s question, for his personal safety reasons, relative to the location of the gun before giving the Miranda warnings was not violative of defendant’s constitutional rights and the trial court did not err in refusing to suppress defendant’s response thereto.
For his second issue defendant contends the prosecution’s examination of a police officer constituted prosecutorial misconduct so gross as to mandate the granting of a new trial. We have reviewed the record and conclude the trial court did not err in refusing to grant a mistrial or new trial on the grounds of prosecutorial misconduct.
For his third issue defendant challenges the sufficiency of the evidence in two respects: (a) whether the State adequately proved defendant’s sanity; and (b) whether the State adequately established the chain of. custody of a murder bullet.
We shall first consider the issue as it relates to sanity. Preliminarily it should be noted neither side presented expert testimony relative to defendant’s sanity.
Defendant contends the trial court erred in not granting his motion for acquittal after the close of State’s case as there appeared evidence within the State’s presentation which drew defendant’s sanity into question and the State failed to provide sufficient evidence to establish defendant was sane. Specifically, the defense contends defendant’s sanity was brought into doubt during the State’s presentation by the testimony of a police officer who related to the court Mr. Roadenbaugh had been in and out of hospitals for psychiatric problems, was alcoholic, was having problems holding jobs, and was receiving some type of social security benefits or disability payments. In light of this testimony the defense argues:
“Since the government introduced no direct evidence of defendant’s sanity at the time of the crime, a reasonable doubt existed as to defendant’s sanity. Consequently, the Court should have sustained defendant’s motion for acquittal.”
In State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978), Mr. Nemechek similarly argued he was entitled to acquittal at the conclusion of the State’s evidence as there was an inference of insanity and the State had not presented any psychiatric testimony in its case in chief to establish defendant was sane at the time of the murders. 223 Kan. at 767. In rejecting defendant’s appeal this Court observed:
“There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. (State v. Coltharp, 199 Kan. 598, 433 P.2d 418 [1967].) The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant’s sanity at the time the offense was committed. (See State v. Penry, 189 Kan. 243, 368 P.2d 60 [1962]; Wilson v. United States, 288 F.2d 121 [D.C. Cir. 1960]; State v. Clokey, 83 Idaho 322, 364 P.2d 159 [1961]; People v. Smothers, 2 Ill. App. 3d 513, 276 N.E.2d 427 [1971], aff'd 55 Ill. 2d 172, 302 N.E.2d 324 [1973].)” 223 Kan. at 767.
We conclude the police officer’s brief reference to defendant’s background did not raise a reasonable doubt as to defendant’s sanity at the time the offense was committed so as to require the State to introduce evidence of sanity in its case in chief. Accordingly, denial of the motion for acquittal at the close of the State’s evidence was not error. Additionally, after denial of the motion, the defendant then presented his evidence. In such circumstances a defendant waives any error in the denial of the motion. State v. Blue, 225 Kan. 576, 578, 592 P.2d 897 (1979).
Although it is unclear from his brief, it appears the defendant may also be challenging the sufficiency of the evidence of his sanity for submission to the jury and to support the verdict. Defendant did not renew his motion for acquittal at the close of all evidence. The matter did not arise again until prior to sentencing when a motion was filed for acquittal or in the alternative for a new trial. We examined the record and have no hesitancy in concluding denial of this motion was not error.
We should now consider this issue as it relates to sufficiency of the chain of custody of a bullet.
The bullet was removed by a physician during the autopsy. The physician testified he placed his initials on the bullet and the initials were still visible. The firearms examiner testified only his own initials appeared on the bullet.
Defendant contends this raises a question as to the authenticity of the bullet and that it should not have been admitted. Further, he argues “[wjithout exhibit 16 [the bullet], the state’s evidence would have been insufficient since it was established that that was the fatal bullet.” We do not agree. The chain of custody was sufficiently established to allow admission of the exhibit. Additionally, as noted by the State:
“Even assuming the bullet slug should be disregarded as evidence, it was not needed for a conviction. When a defendant moves for judgment of acquittal at the close of all evidence, then the court may consider not only the prosecution evidence, but also the defense evidence indicating guilt. The defendant in his testimony admitted killing the victim, that he knew it was wrong for people to kill one another (although he thought it was okay for him to kill his mother), that after killing her he reloaded the gun in case he had trouble with police, and that he knew that he’d get in trouble with the police for the killing .... The defendant’s testimony alone establishes every element of the offense and of the defendant’s legal sanity at the time of the offense. The evidence of defendant’s killing of the victim was undisputed; only his sanity was questioned. The defendant presented lay opinion testimony of the defendant’s insanity (in general), but the defendant’s own admissions refute any belief of legal insanity by criminal law standards despite the opinions of some of his friends or relatives.”
We find this issue, in its entirety, to be without merit.
Finally, defendant raises a multifaceted challenge to the instructions.
First he attacks the insanity instruction which is a hybrid of PIK Crim. 2d 54.10 and the instruction approved by this court in State v. Andrews, 187 Kan. 458, 465, 357 P.2d 739 (1960), cert. denied 368 U.S. 868 (1961). The instruction ended with PIK Crim. 2d 54.10-A. Defendant argues only PIK Crim. 2d 54.10 should have been given. We have reviewed the instruction as given and find it sufficiently states the law of this state. See generally Note, Criminal Responsibility: Changes in the Insanity Defense and “Guilty But Mentally III” Response, 21 Wash-burn L.J. 515 (1982).
Defendant next contends the trial court erred in not instructing on voluntary manslaughter as a lesser included offense. Voluntary manslaughter (K.S.A. 21-3403) requires an element the killing was done in the heat of passion or upon a sudden quarrel. There was no evidence of either in this case. In fact, defendant’s own testimony as to the pertinent events negates any theory the killing was done in the heat of passion or upon a sudden quarrel. We find no error in the trial court’s refusal to instruct on voluntary manslaughter as a lesser included offense.
Next defendant argues the trial court erred in including the general Allen instruction to the jury in the set of instructions given before the jury retired.
In State v. Oswald, 197 Kan. 251, 417 P.2d 261 (1966), after Allen v. United States, 164 U.S. 492, 41 L.Ed. 528, 17 S.Ct. 154 (1896), this court approved such an instruction, 197 Kan. at 260, though we indicated it was better for the instruction to be given before the jury retires which is exactly what occurred herein. In State v. Boyd, 206 Kan. 597, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927 (1972), this court reiterated if such an instruction was to be given, trial courts were well advised to submit the same before the jury retired, not afterwards. 206 Kan. at 601. See also State v. Scruggs, 206 Kan. 423, 425-26, 479 P.2d 886 (1971); and PIK Crim. 2d 68.12.
The trial court did not err in giving the jury an Allen-type instruction before it retired.
Finally, defendant contends the general intent instruction was erroneous, basing his complaint on State v. Rupe, 226 Kan. 474, Syl. ¶ 3, 601 P.2d 675 (1979). We find no merit on this point.
The judgment is affirmed. | [
-80,
-24,
-7,
-66,
43,
96,
42,
-72,
114,
-77,
98,
115,
-85,
-53,
5,
121,
30,
95,
84,
105,
-10,
-73,
103,
-23,
-46,
115,
-79,
-59,
-74,
-37,
-90,
-41,
13,
96,
-54,
85,
34,
-54,
-27,
92,
-114,
5,
-119,
-48,
-26,
66,
-92,
59,
-74,
15,
49,
-116,
-13,
42,
30,
-54,
9,
40,
11,
61,
16,
-40,
15,
-107,
-49,
18,
-77,
-92,
-72,
-123,
120,
53,
-35,
49,
8,
-4,
114,
-122,
-110,
116,
79,
-119,
12,
102,
67,
37,
93,
-54,
-88,
-117,
47,
124,
-73,
-89,
25,
73,
97,
5,
-105,
-67,
117,
-76,
14,
124,
-25,
86,
89,
100,
8,
-33,
-76,
-111,
-53,
58,
18,
-70,
-21,
5,
48,
113,
-51,
-94,
84,
21,
88,
-71,
-114,
-108
] |
The opinion of the court was delivered by
McFarland, J.:
Plaintiff-garnisher Christopher Bell appeals dismissal of his garnishment action against garnishee Great Plains Mutual Insurance Co., Inc.
The background facts as found by the trial court are summarized as follows:
Great Plains Mutual Insurance Company issued its homeowners policy No. H-l-331-2 to Rodney and Katherine Tilton which generally provided liability limits of $25,000.00 for bodily injuries or property damage caused by a covered occurrence. Defendant, Russell Wayne Tilton (Rusty), is the son of Rodney and Katherine Tilton, and was an insured under the terms of the insurance policy. Coverage under the policy was limited by Exclusion (l)(f) which provided as follows: “This policy does not apply . . . f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” (Emphasis supplied.)
On January 26, 1979, Chris Bell and Dion Gengler spent the night with Rusty Tilton at his rural home in celebration of his birthday. Each of the boys was eleven years old. The following morning after breakfast and some normal scuffling around, the boys took Rusty’s BB gun and went bird hunting. The BB gun, though a toy, was powerful enough to kill birds. Rusty had been taught by his father how to handle guns, including the dangers inherent in gun handling, and he had successfully completed the basic hunter safety course which taught the art of safe gun handling. After lunch, the three boys and Rusty’s sister, Leslie, went to the barn to play. Rusty took his BB gun along. The bam is a two-story rock structure. The second story or hayloft was reached by a stairway inside the barn leading to a trap door in the loft floor. There is a hay door about four feet by six feet in the front of the barn through which to load hay into the loft. The children all went into the hayloft and there was shooting of the BB gun. The evidence is conflicting as to whether Rusty was actually shooting the gun directly at the other two boys, but there was at least some play acting to that effect.
After a while, Rusty left the hayloft to go to the house and he apparently got some more BBs. When he left, Chris and Dion closed the trap door to the loft and piled various objects onto it so that Rusty could not get it open again from below. Rusty shot some BBs at the trap door when he could not get it open and also fired a few at a crack in the loft floor. He then went outside and shot some BBs into the open hay door. At one point he tried to place a ladder to the hay door to enter the loft, but the other boys prohibited his entry. He then put the ladder down and resumed shooting through the hay door from just below the door. Rusty then stationed himself at a shed which was across the driveway from the bam and was approximately thirty feet from the hay door. He resumed shooting BBs through the open hay door. A “game” developed whereby Chris and Dion would run across the open hay door inside the loft and [Rusty] fired the BB gun into the door and apparently at the running boys. This routine went on for a period of time but with no “hits” taking place on the boys. Ultimately, Chris peeked around the side of the hay door opening. Rusty saw Chris, took aim and fired the BB gun at him. The BB pellet hit Chris in the right eye, causing severe injury. About three months earlier, Rusty had fired the BB gun at Chris and a pellet struck Chris’ cheek. Although it hurt, Chris was not injured.
This action was filed on April 22, 1981, and a jury trial began on January 11, 1982. The trial was conducted upon a theory of negligence, the issue of intentional fault having been abandoned by the plaintiff. At the conclusion of their deliberations, the jury returned their verdict finding Russell Tilton to be 56% at fault and Chris Bell to be 44% at fault for Chris’ injuries. (The judgment against Russell Tilton was $30,800.00.) No fault was assessed to Rusty’s parents, Rodney and Katherine Tilton. Plaintiff filed this garnishment proceeding against Great Plains Mutual Insurance Company claiming under the Tilton’s homeowners policy.
The trial court then concluded the circumstances of plaintiff s injury came within the “expected or intended” exclusion of the Tilton policy, and, accordingly, garnishee insurance company had no liability thereon. The garnishment was dismissed and, based upon lack of policy liability, the claim for attorney fees was denied.
The first issue is whether the trial court erred in failing to find garnishee insurance company was estopped to assert its policy exclusion.
Before proceeding, some additional facts need to be stated. After plaintiff Bell filed his personal injury action against defendants Tilton, demand was made upon the insurance company herein to defend the action. The Tiltons also retained their own counsel. The insurance company provided an attorney (Robert S. Jones) for the Tiltons’ defense of the action but, by letter to the Tiltons’ privately retained attorney (Thomas H. Conroy), stated:
“I want to make it clear we will, on behalf of the Company and Mr. and Mrs. Tilton, defend this entire lawsuit, including the claims against Rusty, individually, so long as ijou clearly understand that by doing so, the Company does not waive any rights it has set forth in this letter to disclaim and deny the obligations to pay judgment rendered for those claims I have discussed which are against Rusty personally for his alleged willful, negligent and reckless act in shooting Chris Bell in the eye with a BB.” (Emphasis supplied.)
Mr. Conroy, on behalf of the Tiltons, replied:
“We understand you do not waive any rights set forth in said letter to disclaim and deny the obligation to pay judgments rendered for the claims you described which are against Rusty personally for his alleged willful, negligent and reckless acts in shooting Chris Bell in the eye with the BB.”
Plaintiff s original action against the Tiltons predicated liability on both negligence and intentional tort theories. Subsequently, plaintiff dropped his intentional contention and relied solely on negligence. Before trial Mr. Jones, on behalf of the Tiltons, filed a motion in limine seeking to preclude the plaintiff from making any mention at trial of Rusty Tilton’s intent at the time of the shooting. At the hearing on the motion in limine on January 7, 1982, plaintiff s attorney, Mr. Nelson, expressed concern in light of some answers by defendants to interrogatories, whether the plaintiff should amend his petition and reinsert an allegation of intentional and willful conduct. After a heated exchange between counsel, the court assured Mr. Nelson the Tiltons would not claim Rusty’s actions were intentional, rather than negligent. In other words, the matter of intent was not in the lawsuit. The trial went ahead on plaintiff s negligence theory and the jury returned an award of $55,000.00 for plaintiff but found him 44% at fault for an effective judgment of $30,800.00.
When Great Plains was subsequently garnished by plaintiff, the insurance company hired Mr. Jones to represent it on the garnishment. In its answer, Great Plains asserted it was not indebted to Rusty Tilton under its insurance policy as his injury to plaintiff had been intentional and in defending the Tiltons in the Bell lawsuit the garnishee had timely reserved its right to disclaim liability.
Plaintiff argued Great Plains was estopped to assert the policy exclusion defense as Mr. Jones, in the Bell litigation, had waived it at the January 7, 1982, pretrial hearing. On October 16, 1982, Judge Richard W. Wahl, who had also been the trial judge in the initial litigation, found the garnishee was not estopped to assert its policy exclusion defense. In his memorandum decision Judge Wahl wrote:
“The garnishee now before the Court was not a party to the trial of the issues. The theory of the case was determined by the plaintiff to be negligence. The issue of intentional conduct by Russell Wayne Tilton to inflict injury upon Christopher Bell by shooting him in the eye with the BB gun has never been before the Court.”
Continuing:
“The issue of coverage was not adjudicated at the prior proceeding and the garnishee is now free to assert its non-coverage defenses. There is not an identity of parties between the trial on a negligence theory and the present garnishment. The issue of coverage not having been before the Court, both res judicata and collateral estoppel are precluded. Earl v. Thompson, et al., 128 Ill. App. 2d 32, 262 N.E.2d 320 (1970).”
Concluding:
“Nor does the active participation of insurance counsel in the defense of the negligence action change the result. The theory of the action was chosen by the plaintiff, not defendant, to be negligence. It is not disputed that the garnishee did notify its insured, Tilton, that it was reserving its policy defenses. Tilton retained private counsel. This cannot be held to estop the garnishee from pursuing its policy defenses. Earl v. Thompson, et al., supra; Hensley v. Hartford Accident & Indemnity Company, 451 S.W.2d 415 (Ky. 1970); Cowan v. Insurance Company of North America, 22 Ill. App. 3d 883, 318 N.E.2d 315 (1974).”
We agree with the trial court’s conclusions and rationale.
In Fisher v. Firemen’s Fund Indemnity Company, 244 F.2d 194 (10th Cir. 1957), a case applying Kansas law, defendant insurance company had written a liability policy for a partnership. The policy provided coverage for employee use of a partnership motor vehicle if the partnership had given the employee permission to use the vehicle. One of the partnership employees, Mr. Rumpf, was allowed to take a truck to Udall, Kansas. Without permission, Mr. Rumpf drove the truck into Oklahoma, a substantial detour, and was involved in an accident with plaintiff. Defendant insurance company contended it was not liable to plaintiff and brought a declaratory judgment action to establish nonliability. Defendant argued it was not liable as its policy did not cover nonpeimissive use of partnership motor vehicles and at the time of the accident Mr. Rumpf was in Oklahoma, far off his permitted route. In Fisher plaintiff asserted defendant insurance company could not deny liability as its attorneys had appeared and defended Mr. Rumpf in the initial litigation. In rejecting this theory, the Tenth Circuit Court of Appeals commented:
“Appellants make one further contention requiring our disposition. Attorneys for the insurance company have appeared and defended on behalf of Rumpf several actions arising from the Oklahoma collision in which appellants appear as parties. Before making any such appearance the insurance company agreed in writing with Rumpf that all policy rights and defenses were expressly reserved by the insurance company. Appellants assert that under the law of Kansas such a reservation of rights agreement is not effective for its stated purpose unless the existence of such agreement is revealed at the trial and to all parties. Appellants cite Snedker v. Derby Oil Co., Inc., 164 Kan. 640, 192 P.2d 135, and Bean v. Gibbens, 175 Kan. 639, 265 P.2d 1023, as support for their assertion. We do not read these cases as so holding. Rather we believe Kansas [is] in accord with the general rule that an insurance company before undertaking the defense of a person claiming to be an insured under the policy may, by proper notice to such person and without notice to claimants asserting a cause of action against such person, reserve the right to question coverage and assert policy defenses. Such disclaimer of liability under the policy effectively bars a claim of waiver or estoppel based upon the company’s defense of the cause of action. Iowa Hardware Mutual Insurance Co. v. Burgen, 178 Kan. 557, 290 P.2d 1034; Myers v. Ocean Accident & Guarantee Corp., 4 Cir., 99 F.2d 485.” 244 F.2d at 196. (Emphasis supplied.)
The mere fact an insurance company retains an attorney to represent an insured against a lawsuit does not mean the attorney is also the insurance company’s attorney capable of binding the insurance company. In Hensley v. Hartford Accident & Indemnity Company, 451 S.W.2d 415 (Ky. 1970), plaintiff con tended because a company lawyer had participated in the insured’s defense at the initial trial the insurance company had waived its right to disclaim liability under the policy. In rejecting this contention, the Kentucky Court of Appeals (then Kentucky’s highest court) observed:
“The plaintiff cites a number of authorities which consider the question of waiver and estoppel asserted by the insured against his insurance company. That problem is not involved here.
“The insured had no claim and has made no claim against the company. He was timely notified of the probable lack of coverage and the company reserved all of its rights to disclaim liability for any judgment against him. We know of no theory on which the plaintiff could have acquired any rights against the company. Surely an insurance company lawyer can appear in the courtroom defending an accident claim against an insured without committing the company to pay the judgment. The representation of the insured by the company lawyer in the present case may have given the plaintiff cause for hope that there was insurance coverage. Such hope does not create a cause of action.
“There was no waiver or estoppel.” 451 S.W.2d at 416. (Emphasis supplied.)
See also Annot, 38 A.L.R.2d 1148.
Stronger than Hensley is Earl v. Thompson, 128 Ill. App. 2d 32, 262 N.E.2d 320 (1970), also relied on by the court below. In Earl plaintiff obtained a $25,000.00 judgment against Mr. Thompson for an assault — an intentional tort. Plaintiff then, like here, brought a garnishment action against defendant’s insurer, La Salle Casualty Company. The garnishee answered it was not liable as its insurance policy carried an assault and battery endorsement. Plaintiff moved to strike the garnishee’s answer, drawing to the trial court’s attention answers to interrogatories it had propounded to defendant in the initial litigation where Mr. Morton Meyer, an attorney retained by La Salle to represent defendant in the lawsuit, had said defendant was covered by the insurance policy. 128 Ill. App. 2d at 34. Plaintiff alleged the insurance company was now “estopped from denying the validity and truth” of its answers to the interrogatories. In response, garnishee alleged before trial of the assault suit it had sent a letter to plaintiffs attorney informing him the insurance company afforded no liability coverage for the incident because of the exclusion contained in the policy for assaults and batteries. 128 Ill. App. 2d at 35. Further, the garnishee had assumed defense of the assault suit pursuant to a reservation of its rights under the policy. 128 Ill. App. 2d at 35. The trial court entered judgment for the plaintiff against the garnishee and the latter appealed. In reversing, the Illinois Court of Appeals commented:
“We are of the opinion that garnishee is free to assert its noncoverage defenses, since the issue of coverage was not adjudicated in .the prior proceeding.
“In addition, the principle of res judicata is inapplicable because there is not an identity of parties in the two causes. While it may be true that the attorney who represented defendants in the injury action had been retained by La Salle Casualty, it is a non sequitur to conclude, as plaintiff does, that La Salle Casualty was thus the ‘real party in interest’ in both suits. See Sobina v. Busby, 62 Ill. App. 2d 1, 210 N.E.2d 769. The doctrine of res judicata is applicable only where the former suit was between the same parties or their privies, and then only as to questions which were, or might properly have been litigated. City of Peoria v. Peoria City Lines, Inc., 24 Ill. 2d 457, 461, 182 N.E.2d 164. Here, the difference in parties renders the doctrine inapplicable to the instant action. So also does the difference in issues. The prior ruling relied on by plaintiff was preliminary or ancillary to the pending trial in the injury suit. The issue of coverage was not before the court, thereby precluding not only res judicata but estoppel by verdict as well. In fact, any attempt to offer evidence on that issue would have been clearly inadmissible. See Welborn v. Illinois Nat. Cas. Co., 347 Ill. App. 65, 69, 106 N.E.2d 142; and Gould v. Country Mut. Cas. Co., 37 Ill. App. 2d 265, 283, 185 N.E.2d 603.” 128 Ill. App. 2d at 36-37. (Emphasis supplied.)
See also Gray v. Zurich Insurance Co., 65 Cal. 2d 263, 279, 54 Cal. Rptr. 104, 419 P.2d 168 (1966).
Although plaintiff argues vigorously to the contrary, the mere fact the insurance company hired the same attorney (Mr. Jones) to represent the Tiltons in the personal injury action and to represent itself in the subsequent garnishment is not significant in determining this issue.
We conclude the trial court did not err in determining the insurance company was not estopped to assert the policy exclusion as a defense to the garnishment.
The second issue on appeal is the propriety of the trial court’s determination plaintiff s injury came within the policy’s “expected or intended” exclusion. The parties agree the burden was on the insurance company to prove the applicability of the exclusion.
Our initial determination is the appropriate scope of appellate review. Plaintiff contends Stith v. Williams, 227 Kan. 32, 605 P.2d 86 (1980), permits this court de novo review of the trial court’s findings of fact. In Stith we declared:
“When a case is submitted to the trial court on an agreed stipulation of facts and documentary evidence, this court is afforded the same opportunity to consider the evidence as the trial court. Crestoiew Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 592 P.2d 74 (1979).” Syl. ¶ 1.
“Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.'” 227 Kan. 32, Syl. ¶ 2.
However, as In re Estate of Broadie, 208 Kan. 621, 493 P.2d 289 (1972), observed, de novo review is only allowed when “no oral testimony- [has] been heard” by the district court. 208 Kan. at 624. In the instant garnishment proceeding, oral testimony was heard, consequently Stith is inapplicable.
Having determined de novo review is not available herein, what is the proper scope of review? Where a trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. In re Estate of Phillips, 4 Kan. App. 2d 256, 261, 604 P.2d 747, rev. denied 227 Kan. 927 (1980); and City of Council Grove v. Ossmann, 219 Kan. 120, 546 P.2d 1399 (1976). It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses, English Village Properties, Inc. v. Boettcher & Lieurance Constr. Co., 7 Kan. App. 2d 307, Syl. ¶ 2, 640 P.2d 1282, rev. denied 231 Kan. 799 (1982), or redetermine questions of fact. Where a trial judge, sitting as a trier of facts, makes a specific finding of fact on apparently conflicting or actually conflicting evidence, an appellate court is concerned only with evidence that supports the trial court’s findings and not with evidence that might have supported contrary findings. Steele v. Harrison, 220 Kan. 422, Syl. ¶ 1, 552 P.2d 957 (1976); Arnette v. Arnette, 162 Kan. 677, 681, 178 P.2d 1019 (1947); and In re Estate of Phillips, 4 Kan. App. 2d at 261-62. In other words, an appellate court searches the record for the purpose of determining whether there is any substantial competent evidence to support the findings and verdict. If so, the appellate court will not weigh the evidence. Findings of fact determined on conflicting evidence are conclusive. Winn v. Sampson Construction Co., 194 Kan. 136, 142, 398 P.2d 272 (1965). See also Klinzmann v. Beale, 9 Kan. App. 2d 20, Syl. ¶ 10, 670 P.2d 67 (1983).
Substantial competent evidence has been defined as evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues can reasonably be resolved. Rush v. King Oil Co., 220 Kan. 616, 618, 556 P.2d 431 (1976). Even if findings of the trial judge appear to be inconsistent, the decision of the trial court may be sustained on the basis of those findings which allow the conclusion reached by the court below, if they are supported by the evidence. Landrum, v. Taylor, 217 Kan. 113, 117, 535 P.2d 406 (1975); and In re Estate of Phillips, 4 Kan. App. 2d at 262.
In holding the exclusion was applicable to the circumstances herein, the trial court stated:
“There is conflicting testimony from the boys as to what was intended in the ‘game’ they were playing. Certainly no one suggests that Rusty intended to shoot Chris’ eye out. There is considerable testimony that he had been shooting at the other boys [Chris and Dion] and that he intended to hit one of the boys to sting them. But wholly aside from his direct intent to have a BB strike Chris’ body, Rusty must be held to have known that his BB gun could inflict severe injury and that to shoot indiscriminately into the loft as Chris and Dion ran past the opening, presented a very real probability that he would eventually hit one of them. He knew that when he shot at Chris’ face as Chris peered around the side of the loft opening that a hit to Chris’ face would hurt him. He intended to discharge the BB toward Chris’ face and therefore it must be inferred that Rusty intended the natural and probable consequences of that act. That the pellet hit Chris’ eye was a result and an injury which were well within the natural flow of events after the intentional shot. Rusty should have expected an injury to result from his conduct.
“It avails Chris nothing whether Rusty is held to intend the natural and probable consequences of his intentional acts, or, having fired the BB with the intent merely to sting Chris, Rusty be held to have intended the injury of greater degree which Chris sustained. The evidence and the law support either approach, and each relieves the insurance company of coverage under its policy.”
In essence, plaintiff argues because Rusty Tilton testified in his deposition he did not have the specific intent to injure plaintiffs eye when he fired the BB gun at plaintiffs face, then the injury is not as a matter of law “intentional” within the meaning of the policy exclusion. We do not agree.
Factually, the closest Kansas case to the instant litigation is Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982). In Casualty Mr. Thomas had an insurance policy which excluded bodily injury which was either expected or intended from the standpoint of the insured. During an altercation in Mr. Thomas’ driveway, Mr. Thomas shot a Mr. James Warden. Casualty sought and obtained a declaratory judgment it was not liable under its policy with Mr. Thomas to Mr. Warden as Mr. Thomas’ act had been intentional. In affirming the granting of declaratory judgment the Court of Appeals observed there is no duty on the part of an insurer to indemnify under a policy if the policy does not provide coverage for the occurrence. 7 Kan. App. 2d at 720. The court summarized Kansas law on the issue before us as follows:
“The [trial] court concluded, based on Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir. 1968), that appellant’s injuries were intentionally caused by Thomas and thus there was no coverage under the policy. The essence of the appellant’s argument here is that there was no evidence that Thomas intended to injure the appellant by his actions, citing Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681 [, 512 P.2d 403 (1973)], for the proposition that an unintended injury resulting from an intentional act would be covered. In Spruill, the defendants were towing away plaintiff s pickup truck. Plaintiff attempted to stop them and alleged that in the process defendants drove over his foot. There the court indirectly recognized that an intentional act may result in an unintentional injury by saying that the intentional act of taking possession of the truck did not cause the injury, rather the cause was the manner in which the truck was being moved.
“The facts there are distinguishable from this case, where here one person aimed a gun at another and fired it. Under these facts, to say that the act of aiming and firing the gun was intentional, but the injury was not, draws too fine a distinction. The better rule is found in Rankin, where it was held that where an intentional act results in injuries which are a natural and probable result of the act, the injuries are intentional.
“This result follows from the well-established presumption in both tort and criminal law that persons are presumed to intend the natural and probable consequences of their actions. See Prosser, Law of Torts § 8 (4th ed. 1971); Restatement (Second) of Torts § 8A, comment (b); 86 C.J.S., Torts § 20; and PIK Crim. 54.01.” 7 Kan. App. 2d at 720-21. (Emphasis supplied.)
Concluding:
“We believe that a liability policy provision excluding coverage for injuries expected or intended from the standpoint of the insured would exclude from coverage an injury in which it was shown that the insured injured another by aiming and firing a pistol at the injured person at close range, where there is no evidence offered in explanation that the insured had not intended or expected the injuries.” 7 Kan. App. 2d at 721.
The facts distinguishing Casualty from the instant action are the age of the parties and that in one a pistol was used while in the other a BB rifle was employed. While admittedly a BB rifle is not regarded as a firearm, Capps v. Carpenter, 129 Kan. 462, 463, 283 Pac. 655 (1930), as the instant litigation reveals, the BB rifle is capable of hurtling a projectile with sufficient force to penetrate an eye and cause severe injury.
Numerous cases have addressed the matter of intent with regard to insurance policies which exclude coverage for intentional torts. Two are included herein. In Clark v. Allstate Insurance Company, 22 Ariz. App. 601, 529 P.2d 1195 (1975), relied on by the district court in the instant garnishment action, Elbert H. Clark, Jr., was covered by an insurance policy of his parents. The policy contained an exclusion for bodily injury or injury to or destruction of property caused feloniously or intentionally by or at the direction of an insured. 22 Ariz. App. at 602. One day at high school Elbert tapped another student, Jeffrey E. Niemi, on the back. As Jeffrey turned, Clark struck him in the face. Clark, like Rusty Tilton here, stated he did not intend to hurt Jeffrey with his blow, though he did intend to hit him in the face with a short jab. 22 Ariz. App. at 602. Jeffrey Niemi sued the Clarks. Allstate then brought a declaratory judgment action seeking to be held not liable as an insurer as the injury inflicted upon Jeffrey Niemi was the result of an intentional tort. The trial court granted Allstate’s declaratory judgment and the Arizona Court of Appeals affirmed. In so doing the Arizona appellate court commended:
“We find it unnecessary to proceed any further as to appellants’ remaining arguments. The contention of young Clark that he did not intend to injure Niemi does not make the question of intention an issue of material fact which must go to the trier of fact. Perhaps if Clark maintained that striking Niemi was an accident, and that the blow itself was unintentional, summary judgment would be improper due to the dispute over a material fact. However, the act of striking another in the face is one which we recognize as an act so certain to cause a particular kind of harm that we can say a person who performed the act intended the resulting harm, and his statement to the contrary does nothing to refute that rule of law." 22 Ariz. App. at 602. (Emphasis supplied.)
In the instant action, instead of striking plaintiff in the face with a fist, Rusty hit him with a BB pellet which was more readily capable of penetration than a fist. As in Clark, the act of shooting another in the face with a BB pellet is one which is recognized as an act so certain to cause a particular kind of harm it can be said an actor who performed the act intended the resulting harm, and his statement to the contrary does nothing to refute that rule of law.
State Farm Fire & Cas. Co. v. Muth, 190 Neb. 248, 207 N.W.2d 364, modified 190 Neb. 272 (1973), not only involved a minor firing a BB rifle but involved interpretation of an insurance policy exclusion clause the same as here — ’’This policy does not apply ... to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” 190 Neb. at 249. (Emphasis supplied). While affirming the trial court judgment against the insurance company, the Nebraska Supreme Court held:
“[U]nder the language of the exclusion in question, an injury is either expected or intended if the insured acted with the specific intent to cause harm to a third party. It seems to us to be immaterial whether the injury which results was specifically intended, i.e., the exclusion would apply even though the injury is different from that intended or anticipated.” 190 Neb. at 252.
Under the “expected or intended from the standpoint of the insured” policy exclusion language, it was not necessary for the garnishee insurance company to show Rusty Tilton specifically intended to strike Christopher Bell in the eye with a BB pellet in order to deny liability. Rather, if from the acts, circumstances, and inferences of the case, it appeared Rusty Tilton had the desire to cause the consequences of his acts or he believed the consequences were substantially certain to result, his conduct was intentional and the policy exclusion was operative.
There was substantial, competent evidence before the trial court to support its finding that the act of Rusty Tilton in shooting Christopher Bell was intentional. Consequently, the trial court did not err in entering judgment for the garnishee and in dismissing the garnishment action.
For his third issue plaintiff contends the trial court erred in not awarding attorney fees to him based on K.S.A. 40-256. Said statute provides in all actions commenced in which judgment is rendered against any insurance company, if it appears from the evidence that such company has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as attorney fees for services in such action to be recovered and collected as part of the costs. Our previous conclusion the trial court did not err in entering judgment in favor of the insurance company disposes of this issue as well. Obtaining a judgment against an insurance company is a condition precedent to any consideration of award of attorney fees under authority of K.S.A. 40-256.
For his final issue plaintiff contends the garnishee insurance company is guilty of bad faith in not settling within the policy limit and is liable for the portion of the judgment which is in excess of the $25,000.00 policy limit. This issue also is disposed of by the prior determination the trial court did not err in finding no coverage was provided for the incident in question. Additionally, only the insured may challenge its carrier for an alleged refusal to settle. See Bollinger v. Nuss, 202 Kan. 326, 449 P.2d 502 (1969), and Rector v. Husted, 214 Kan. 230, 519 P.2d 634 (1974).
The judgment is affirmed. | [
-16,
122,
-4,
-99,
9,
96,
40,
58,
119,
-32,
-89,
87,
-35,
-26,
5,
107,
-10,
13,
65,
96,
-9,
-77,
23,
-126,
-38,
59,
-77,
-59,
51,
75,
-20,
30,
8,
80,
-54,
85,
-90,
-126,
-63,
20,
-122,
6,
-70,
-12,
-3,
70,
-96,
107,
52,
67,
52,
-113,
-29,
43,
28,
-21,
40,
42,
75,
-87,
-48,
-7,
-53,
7,
-1,
18,
-77,
70,
-100,
7,
122,
8,
-112,
-75,
8,
-8,
115,
38,
-112,
84,
45,
-99,
-116,
102,
102,
49,
57,
-51,
-19,
41,
47,
79,
-105,
-25,
-74,
72,
3,
15,
-105,
-99,
98,
21,
22,
-4,
-27,
29,
15,
-24,
3,
-113,
-44,
-93,
-87,
-96,
24,
-86,
-17,
39,
54,
113,
-49,
-90,
92,
69,
116,
-97,
30,
-113
] |
The opinion of the court was delivered by
Lockett, J.:
This action arises out of an attempted foreclosure by plaintiff-appellant, The Trane Company, of a subcontractors mechanic’s lien (lien), filed pursuant to K.S.A. 1980 Supp. 60-1103. Defendants-appellees filed a motion to dismiss the action, contending that the plaintiff-appellant’s lien statement was not properly verified, therefore defective. The trial court found in favor of the defendants. The Court of Appeals affirmed the trial court in a rule opinion. Plaintiffs Petition for Review was accepted by this court.
The facts are undisputed. The Trane Company (Trane) supplied air conditioning equipment and materials to Joseph Lee Miller, Inc. (Miller). Miller, a general contractor, installed the equipment supplied by Trane in a building under construction in Overland Park, Kansas.
Trane, a Wisconsin corporation, sought to file a lien statement. Trane retained the services of Charles R. Wilson, Attorney at Law, to act on behalf of Trane. Trane executed a power of attorney authorizing Mr. Wilson to execute and file all documents to assert the lien on Trane’s behalf. Mr. Wilson prepared and filed a lien statement on March 13, 1981.
Trane did not receive payment for the equipment supplied Miller. On March 12, 1982, Trane filed an action seeking in Count I a personal judgment against Miller for $7,500.00, and in Count II a foreclosure of the lien. Other individuals and companies having various interest in the Overland Park property were joined as defendants in Count II of Trane’s petition. (For clarity the various interests and names of the other defendants are not set forth in this opinion.)
Miller and the other defendants filed a motion to dismiss Trane’s petition. The trial court, relying on Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 400 P.2d 707 (1965), held that the lien statement was defective in that it lacked a proper verification as required by K.S.A. 60-1102.
Our mechanic’s lien statute, K.S.A. 60-1102, provides in part:
“(a) Filing. Any person claiming a lien on real property, under the provisions of K.S.A. 60-1101, shall file with the clerk of the district court of the county in which property is located, within four (4) months after the date material, equipment or supplies, used or consumed was last furnished or last labor performed under the contract a verified statement showing:
“(1) The name of the owner,
“(2) the name of the claimant,
“(3) a description of the real property,
“(4) a reasonably itemized statement and the amount of the claim, but if the amount of the claim is evidenced by a written instrument, or if a promissory note has been given for the same, a copy thereof may be attached to the claim in lieu of the itemized statement.”
K.S.A. 1980 Supp. 60-1103 allows any subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to a lien, under an agreement with the contractor or a subcontractor of a contractor, to obtain a lien in the same manner as the original contractor with certain exceptions.
The parties admit that Trane’s lien statement was filed within the statutory time; the description of the property upon which the lien was claimed was properly set out in the lien statement, the account was properly attached, and the articles purchased were delivered upon the premises and used in the construction of the building. Trane’s lien statement was signed:
“s/ Charles R. Wilson
Charles R. Wilson Attorney at Law and Attorney in fact for Claimant.”
The verification, however, was signed:
“Charles R. Wilson being first duly sworn, on his oath states that the above and foregoing statement is true and correct and that the amount therein claimed is justly due the Claimant.
s/ Charles R. Wilson”
The sole issue on appeal is the sufficiency of the affidavit verifying the lien statement.
Trane was a subcontractor in the construction of the Overland Park building. A subcontractor may obtain a mechanic’s lien upon property pursuant to K.S.A. 1980 Supp. 60-1103 and K.S.A. 60-1102. See Sutherland Lumber Co. v. Due, 212 Kan. 658, 659, 512 P.2d 525 (1973). K.S.A. 60-1102 requires that the lien statement be verified. A verification in a mechanic’s lien context has been defined as “an affidavit attached to a lien statement that facts essential to the existence of a lien set forth in the statement are true.” D. J. Fair Lumber Co. v. Karlin, 199 Kan. 366, Syl. ¶ 4, 430 P.2d 222 (1967). The filing of a verification is a necessary step in obtaining a mechanic’s lien. Ekstrom, 194 Kan. at 636.
The trial court relied on Ekstrom, 194 Kan. 634, in dismissing Trane’s claim against the defendants based on the improper verification of its lien. In Ekstrom, the plaintiff s mechanic’s lien statement filed with the clerk was signed:
“ ‘Ekstrom United Supply Company
‘By s/ W. L. Johnston
Claimant’ ”
194 Kan. at 635.
The verification attached to the lien statement read:
“ ‘State of Kansas, Allen County, ss:
“ ‘I do solemnly swear that I am the claimant above named and that the foregoing statement is true in every particular.
s/ W. L. Johnston
“ ‘Subscribed and sworn to before me this 31st day of July, 1962.
s/ Berenice Dobie
“ ‘Notary Public
“ ‘Com. Exp: 5-3-65’ ”
194 Kan. at 635.
The court in Ekstrom held:
“In the instant case the lien statement was executed and signed by plaintiff Ekstrom United Supply Co. as claimant by W. L. Johnston. So much would appear to be regular and unimpeachable. The verifying affidavit, however, signed by W. L. Johnston in which he swears he is the claimant, says nothing about his being an agent and making it in behalf of the plaintiff or anyone else. The lien statement filed and signed by the plaintiff alleging that it furnished the material to the defendant was not verified by plaintiff or W. L. Johnston as its agent. Failure of the plaintiff to verify its lien statement in accordance with the mandatory provisions of the statute is fatal to its right to recover in the instant action, and the judgment of the trial court must be affirmed.” 194 Kan. at 636.
The deficiency lay in the fact that Johnston had verified the lien statement as an individual, seeming to be the individual claimant, whereas the real claimant was Ekstrom United Supply Company. Had Johnston shown in his affidavit that he was verifying the statement on behalf of the corporate claimant, the lien statement would presumably have been upheld.
K.S.A. 60-1102 prescribes the contents of a mechanic’s lien statement but does not prescribe by whom a mechanic’s lien statement should be verified. The claimant Trane was a corporation. A corporate lien claimant such as Trane cannot as a corporation either sign a lien statement or verify one. Both statement and verification must be signed and executed by some individual acting for and on behalf of the corporation. An agent of the claimant may verify a lien statement.
This case is distinguishable from Ekstrom. Here the lien statement itself was signed by Charles R. Wilson, who is an attorney and has the capacity to sign for Trane since he is the attorney in fact for the claimant, Trane. Following the lien statement is the verification in which Wilson, after being first duly sworn, states the above and foregoing statements are true and correct and that the amount claimed is justly due the claimant Trane. The verification is then signed Charles R. Wilson.
The purpose of a verification is to verify the truth of the matter set forth in the document being verified. “A verification is an affidavit attached to a statement as to the truth of the matters therein set forth.” Halsey v. Pat Reichenberger Lumber, Inc., 5 Kan. App. 2d 622, Syl. ¶ 1, 621 P.2d 1021 (1981). When Charles R. Wilson verified the mechanic’s lien statement presently in issue, the effect of his verification was to swear to the truth of the matter contained in the body of the lien statement, including his representative capacity..
“[Vjerification ... is ... a sworn statement of the truth of the facts stated in the instrument verified. An affidavit thus referring to an attached instrument is as full and complete as if the matters stated in such instrument were set out in the affidavit itself.” 3 Am. Jur. 2d, Affidavits § 20, p. 397. Emphasis supplied.
Where the effect of the verification is to incorporate by express reference each of the allegations referred to in the attached statement, and to swear to the accuracy of those allegations, it is redundant to require the affiant to restate his representative capacity in the affidavit where it already appears in the statement being verified.
The lien statement, both the body and verification together, must be considered in its entirety. The lien statement’s validity must be ascertained from its four corners. When the instrument is so construed, it is obvious that Wilson is not the corporate claimant, but acts simply as its agent, and that his verification is simply an oath stating that the information contained within the statement is true. The object of the verification is to assure the truth of the lien statement. The statutory requirements of K.S.A. 60-1102 and K.S.A. 1980 Supp. 60-1103 were satisfied in Trane’s lien statement. It was error not to enforce it.
The trial court and the Court of Appeals are reversed and the case is remanded to the trial court for further proceedings. | [
-48,
104,
-8,
45,
-120,
-32,
58,
-102,
121,
-92,
39,
83,
79,
-52,
68,
109,
-49,
13,
101,
105,
103,
-77,
3,
67,
-42,
-77,
-47,
-43,
-71,
95,
-12,
-98,
73,
48,
-54,
-107,
-90,
-128,
-43,
92,
78,
5,
25,
-30,
-39,
64,
52,
-21,
52,
74,
81,
36,
115,
42,
29,
-53,
76,
42,
-7,
-84,
96,
-15,
-102,
-107,
127,
20,
49,
6,
-108,
69,
-40,
46,
-112,
-80,
17,
-24,
115,
54,
-124,
-12,
73,
27,
41,
102,
98,
35,
29,
-21,
-20,
-104,
14,
-41,
-99,
-89,
-77,
24,
43,
43,
-74,
-99,
116,
18,
71,
-10,
-18,
21,
31,
124,
10,
-114,
-44,
-111,
15,
112,
-102,
-117,
-17,
-127,
32,
112,
-113,
-80,
94,
39,
58,
31,
78,
-72
] |
The opinion of the court was delivered by
Holmes, J.:
The City of Fredonia appealed an order of the District Court of Wilson County which permanently enjoined the City from levying special assessments against the property of plaintiffs within a sewer benefit district. The district court found the City’s actions to be arbitrary and capricious. That finding was reversed by the Court of Appeals in a published opinion (Whitehead v. City of Fredonia, 9 Kan. App. 2d 90, 673 P.2d 125 [1983]), and we granted the plaintiffs’ petition for review.
The opinion of the Court of Appeals adequately sets forth the facts and controlling law in this case. As pointed out by the Court of Appeals this Court, in Mullins v. City of El Dorado, 200 Kan. 336, 436 P.2d 837 (1968), held:
“The power of the courts under K.S.A. 60-907(a) to grant relief in matters of taxes and assessments imposed by the governing body of a municipality is confined to those situations where the action taken by the governing body is without authority, or permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud.” Syl. ¶ 1.
In Schulenberg v. City of Reading, 196 Kan. 43, 52, 410 P.2d 324 (1966), we said:
“[T]he power to create sewer districts and make property liable for special assessments is to be found in the statute. (State Highway Commission v. City of Topeka, 193 Kan. 335, 393 P.2d 1008.) The power of the city governing body is legislative, and discretionary in the legal sense. Courts have no supervisory power over the policy of municipal legislation and are not permitted to substitute their judgment for that of the governing body of the city. This is a fundamental principle of municipal law, and particularly in matters with respect to the law of taxation. Courts can only interfere to curb action which is ultra vires because of some constitutional impediment, or lack of valid legislative authority, or unlawful acts under a valid statute, or because action under a valid statute is so arbitrary, capricious, unreasonable and subversive of private rights as to indicate a clear abuse rather than a bona fide exercise of power.”
After a careful review of the record and the rather minimal evidence presented by the plaintiffs, and even though the City failed to put on any evidence, we concur in the Court of Appeals determination that the landowners failed to carry their heavy burden of proof. Davies v. City of Lawrence, 218 Kan. 551, 558, 545 P.2d 1115 (1976).
The judgment of the Court of Appeals reversing the judgment of the district court is affirmed and the judgment of the district court is reversed.
McFarland, J., dissenting. | [
-12,
-18,
-75,
-84,
90,
-64,
26,
-128,
73,
-79,
-91,
123,
-81,
-22,
20,
121,
-6,
125,
116,
107,
-43,
-74,
35,
-61,
-66,
-45,
-5,
-41,
-77,
93,
-10,
78,
76,
49,
-118,
-107,
70,
67,
85,
-48,
-114,
39,
-120,
-60,
-55,
66,
52,
106,
50,
71,
-47,
75,
-13,
42,
24,
-29,
-24,
44,
-37,
-91,
81,
-13,
94,
-97,
94,
16,
-77,
-28,
-100,
-121,
82,
-86,
-112,
57,
1,
-24,
115,
-90,
-122,
85,
109,
-101,
13,
102,
99,
-109,
44,
-17,
-24,
-119,
14,
-33,
-113,
-89,
-98,
25,
-21,
-127,
-74,
-99,
116,
86,
7,
-4,
-26,
-123,
-33,
108,
7,
-114,
-124,
-67,
-81,
52,
-110,
67,
-49,
3,
48,
117,
-122,
-110,
93,
39,
18,
90,
30,
-100
] |
The opinion of the court was delivered by
Herd, J.:
This is an action on a note. The Turón State Bank appeals from a decision of the Reno County District Court which estopped it from denying receiving payment on a note. The note was made by Rex Fowler and signed by William R. Bozarth, appellee, as an accommodation party. The Court of Appeals reversed and remanded, directing Bozarth to pay the bank.
Rex Fowler, a Reno County farmer, obtained his bank financing from the Turón State Bank. Over a period of time, he had accumulated a total debt to the bank of $106,474.76. The debt was secured by all of Fowler’s cattle, crops and machinery. In the spring of 1980, Mr. Fowler sought an additional $18,000 from the bank for the purpose of sowing his spring crops. He was advised by the bank that his request to increase his loan was denied because his assets would not secure the additional amount needed. The bank suggested Fowler produce other security. On May 15, 1980, Fowler obtained the signature of William Bozarth, his son-in-law, as an accommodation party on his note for the $18,000. Bozarth filed a financial statement in support of his signature. The bank accepted Bozarth’s signature as sufficient security for the new loan. There were no special instructions or agreements between the bank and Fowler and Bozarth pertaining to the loan. The loan proceeds were paid to Fowler on June 13, 1980.
The 1980 crops were sold and the proceeds applied to the note they secured. In March, 1981, Fowler sold $15,962.61 worth of cattle and deposited that amount in his checking account in the bank on March 16. A few days later, Fowler spoke with Arden Vernon, bank officer, and requested permission to use approximately $2,000 from the sale to pay a feed bill and asked that the balance be applied on the $18,000 note. Vernon made no response to the request but subsequently debited Fowler’s account in the amount of $13,962.15. This amount was then applied on the note for which it was collateral rather than the note secured by Bozarth’s signature as Fowler had requested. Money was left in Fowler’s account to pay the feed bill. Unaware of the bank’s action, Fowler notified Bozarth the $13,962.15 had been applied to the note he had signed.
In the summer of 1981, Fowler filed a petition in bankruptcy. On September 2, 1981, the bank sued William Bozarth on the $18,000 note. Bozarth answered challenging the court’s jurisdiction over him and alleging payment of approximately $16,000 on the note by Fowler. Estoppel was not pled. After a trial to the court, it found the note unsecured, and that
“when the $13,962.15 was tendered with the request that it be applied to the Bozarth note and the Turón State Bank’s representative kept silent, and when the Bank subsequently refused to apply the tender to the note in question, the Bank was estopped to deny that the money should have been applied to the co-signed note. For that reason, the defendant should be given credit in the amount of $13,962.15 on the debt outstanding.”
The Court of Appeals reversed, holding that although the elements of equitable estoppel had been established against the bank, Bozarth could not rely on estoppel because there was no detrimental reliance on his part due to a lack of privity. We granted review.
The bank first asserts the trial court erred in basing its decision on estoppel when that defense was not pled.
Kansas statutes provide affirmative defenses must be set forth in a responsive pleading or be deemed waived. See K.S.A. 60-208(c), which provides:
“In pleading to a preceding pleading a party shall set forth affirmatively . . . estoppel . . . and any other matter constituting an avoidance or affirmative defense.”
Additionally, Kansas courts have consistently held equitable estoppel must be specifically pled and may not be proved under a general denial. See McClintock v. McCall, 214 Kan. 764, Syl. ¶ 2, 522 P.2d 343 (1974); Geis Irrigation Co. v. Satanta Feed Yards, Inc., 214 Kan. 373, 521 P.2d 272 (1974); North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 352 P.2d 1060 (1960); Painter v. Fletcher, 81 Kan. 195, 105 Pac. 500 (1909).
It is not necessary, however, that a party thoroughly explain its legal theory for relief. See Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 563 P.2d 467 (1977). All that is required is “a short and plain statement of a claim that will give the [opposing party] fair notice of what the [other party’s] claim is and the ground upon which it rests.” Rinsley v. Frydman, 221 Kan. 297, 302, 559 P.2d 334 (1977). These rules apply to a defendant’s pleading of an affirmative defense, such as in this case, as well as plaintiffs petition. See 61A Am. Jur. 2d, Pleading § 154, p. 154.
The purpose of requiring a defendant to affirmatively plead estoppel is fairness. See 61A Am. Jur. 2d, Pleading § 152, p. 152. Thus, as long as defendant has pled the facts constituting the defense of estoppel, the failure to use the word “estoppel” in his answer is not conclusive. See Yeoman v. Morris, 135 Kan. 566, 570, 11 P.2d 683 (1932).
In the instant case, the word “estoppel” is not set out in any of the pretrial motions. The only facts pointing towards estoppel are first in Bozarth’s answer where he stated: “[A] payment was made to the Turón State Bank by the maker, Rex Fowler, in the approximate amount of $16,000.00, and payment and credit was not shown by Plaintiff.” Second, appellant’s pretrial questionnaire to Bozarth listed as a question of fact: “Did defendant’s co-signer give proceeds of certain collateral under other notes to the Bank and directed those proceeds be applied to this note?” Third, Bozarth’s affidavit dated July 30, 1982, states he “had received news from Fowler that the Bank continued to claim an obligation due on the subject Note and that they had failed to comply with his specific instructions to apply the recent payment to our Note.” We hold the facts as alleged by Bozarth could be grounds for estoppel. This constitutes notice of the defense to the bank thus nullifying any possible unfairness. This issue is without merit.
The next issue is whether there is evidence to support the trial court’s decision that the bank was estopped to deny application of the funds to the Bozarth note.
The Court of Appeals recently summarized the doctrine of equitable estoppel in Levi Strauss & Co. v. Sheaffer, 8 Kan. App. 2d 117, 122, 650 P.2d 738 (1982), quoting Bowen v. Westerhaus, 224 Kan. 42, 45-46, 578 P.2d 1102 (1978), and United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 (1977):
“Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.”
See also, Iola State Bank v. Biggs, 233 Kan. 450, 458, 662 P.2d 563 (1983).
Appellee argues the bank is estopped to deny payment on the loan because the appellee’s agent did not speak when Fowler requested he apply the money to the loan co-signed by Bozarth. The question, then, is whether there was a duty on the part of appellant’s agent to speak. Kansas has recognized “silence itself may give rise to an estoppel where, under existing circumstances, there should have been a disclosure. Where a duty to speak exists, silence is tantamount to dissimulation.” Bruce v. Smith, 204 Kan. 473, 477, 464 P.2d 224 (1970). See also Bowen, Administrator v. Lewis, 198 Kan. 706, 426 P.2d 244 (1967).
The general rule regarding silence and duty to speak is expressed in 28 Am. Jur. 2d, Estoppel and Waiver § 53, pp. 669-70:
“In general, a person is required to speak only when common honesty and fair dealing demand that he do so, and in order that a party may be estopped by silence, there must be on his part an intent to mislead, or at least a willingness that others should be deceived, together with knowledge or reason to suppose that someone is relying on such silence or inaction and in consequence thereof is acting or is about to act as he would not act otherwise.”
The record discloses the bank and Fowler had banked together since 1973. Due to adverse agricultural conditions Fowler began to fall behind in his finances in the late 1970’s. The bank was lenient with him and continued to renew his notes, many times merely adding the interest to the principal and making a new note of the total sum. As security for Fowler’s notes, which eventually totalled $106,474.76, the bank had a security interest in all of Fowler’s cattle, equipment and crops. The bank also had a third mortgage on his real estate. When Fowler requested funds for planting crops in May 1980, the bank advised him it could not lend him any more money unless he could find a co-signer since his present loan exceeded the value of his collateral. Fowler then obtained the signature of Mr. Bozarth on the note for $18,000. This was an unsecured note. The bank then advanced the money.
Fowler planted his corn and milo. When the crops were harvested, the proceeds were deposited in the bank and the bank then debited Fowler’s account and applied the proceeds on the note for which the crops were security. Throughout their years of doing business together, Fowler would discuss with Arden Vernon, the Turón State Bank officer, the application of funds from the sale of Fowler’s cattle or crops. They would agree as to which would be applied on the notes and what would be retained for operating expenses. It was the practice of the parties for the bank to make the final determination.
In March 1981, when Fowler received $15,962.61 from the sale of cattle, he deposited the entire amount in his account at the bank as he was required to do. A few days later Fowler talked to Vernon about the application of those funds. Vernon autho rized the payment of the feed bill. As to the application of the remaining funds, Fowler requested they be applied to Bozarth’s unsecured note. Vernon did not respond to Fowler’s request. Shortly thereafter Vernon applied the $13,962.15 to the loans for which the cattle were collateral and left approximately $2,000 in Fowler’s account to pay the feed bill.
Appellee argues Vernon had a duty to speak and that his silence was consent to Fowler’s request to apply the $13,962.15 on Bozarth’s unsecured note. The trial court agreed with this argument. We cannot agree. Fowler gave the bank a security interest in all of his cattle, as well as his other property, for the loans totaling over $106,000. The bank advised Fowler it could lend him no more money because his collateral was insufficient. Fowler then produced Bozarth, an accommodation party, with a financial statement. This induced the bank to lend an additional $18,000. The $18,000 is secured by the Bozarth signature; Fowler’s property is security for the other note.
A bank’s security interest continues after a sale of secured property in the proceeds of the sale. In the absence of a specific agreement otherwise, the proceeds from the sale of secured property must be applied on the note the property secures. There is no agreement in this case which would preclude the application of the proceeds from the sale of the cattle to the note for which the cattle were security. Additionally, it had been the practice of the parties to allow the bank to determine the application of proceeds. The bank refused to relinquish its security in the proceeds from the sale of the cattle. To have released the cattle would have the effect of changing the parties’ original agreement where it was agreed Fowler’s property was not sufficient collateral for an additional loan. If the cattle proceeds were transferred from the secured note and applied on Bozarth’s unsecured note, it would reduce the bank’s security by that much on the secured note which was already short of collateral.
The bank did not mislead Fowler. It was entitled to apply the proceeds as it did. We hold the bank had no duty to speak. Fowler was proposing his agreement with the bank be changed to allow him to specify how the proceeds from the sale of the bank’s security would be applied. The bank did not accept Fowler’s offer.
For a debtor to be able to direct a creditor as to how the proceeds of the sale of security shall be applied, the right must have been established in the original contract. See State Bank of Downs v. Moss, 203 Kan. 447, 454 P.2d 554 (1969). Here there was no special agreement at the time the collateral was pledged allowing Fowler to direct the application of proceeds. Thus, it is to be applied to the note for which it was security.
There is no basis for the defense of equitable estoppel. There is no showing the bank by its acts, representations, admissions, or silence induced Fowler or Bozarth to believe certain facts existed upon which they detrimentally relied and acted. Levi Strauss & Co. v. Sheaffer, 8 Kan. App. 2d 117.
The judgment of the Court of Appeals reversing the trial court is affirmed. The judgment of the trial court is reversed.
Holmes, J., not participating. | [
114,
104,
48,
-116,
10,
98,
58,
26,
95,
-87,
37,
-45,
-23,
66,
20,
105,
101,
13,
101,
121,
87,
-78,
5,
89,
-13,
-69,
-24,
-59,
-71,
91,
-92,
87,
9,
16,
-118,
85,
-26,
-128,
-59,
-44,
14,
7,
-119,
101,
-39,
64,
48,
35,
118,
11,
37,
7,
115,
38,
61,
66,
105,
40,
123,
57,
64,
-15,
-70,
13,
79,
23,
-111,
98,
-126,
4,
-38,
46,
-104,
51,
1,
-7,
122,
-90,
-122,
20,
75,
25,
8,
46,
102,
1,
116,
-49,
8,
-120,
38,
-33,
-99,
-121,
-48,
88,
2,
39,
-66,
-97,
63,
19,
70,
-4,
-1,
-123,
61,
108,
4,
-50,
-42,
-77,
-113,
124,
30,
11,
-13,
-125,
48,
117,
-51,
-46,
93,
71,
122,
27,
-122,
81
] |
The opinion of the court was delivered by
Miller, J.:
Plaintiff, Carol Lynn Wooderson, brought this action in the District Court of Sedgwick County for damages for personal injuries which she claims resulted from her ingestion, over a period of years, of the oral contraceptive Ortho-Novum 1/80, manufactured by the defendant, Ortho Pharmaceutical Corporation (Ortho). At the conclusion of a six-week trial, the jury returned a verdict and the court entered judgment for plaintiff and against Ortho for actual damages of $2,000,000 and punitive damages of $2,750,000. Ortho appeals. The primary issues are whether there was sufficient competent evidence to support the verdict, and whether the trial court properly submitted the matter of punitive damages to the jury. Other issues will be stated in the opinion.
Carol Lynn Wooderson consulted Dr. Richard L. Hermes of Lawrence, Kansas, a physician specializing in obstetrics and gynecology, in the fall of 1972. She was planning to be married and wanted some method of contraception. Dr. Hermes prescribed an oral contraceptive (o.c.), Ortho-Novum' 1/80, manufactured by the defendant. This is an “ethical” drug, one obtainable only upon prescription, as distinguished from a “proprietary” or “patent” drug, one sold over the counter. Plaintiff was in good health at that time; her blood pressure was 100/56, and she had never had any problems with her kidneys or with high blood pressure. She took Ortho-Novum 1/80, as prescribed by her physician, continuously from the fall of 1972 until June 1976, with the exception of about thirty days in early 1974 when she had a rash on her hand and a physician suggested that she stop taking the pill until the rash went away. She saw Dr. Hermes in December 1974; his notes reveal nothing remarkable about her health at that time except that her blood pressure was 130/80. The prescription for Ortho-Novum 1/80 was extended for another year. Mrs. Wooderson next saw the doctor in January 1976. His notes reveal nothing remarkable except that her blood pressure was 120/90. She had a cold, and Tuss-Ornade was prescribed for that. The Ortho-Novum 1/80 prescription was also extended for one year. On May 4, 1976, she called Dr. Hermes; she still had a cold, and he called in a prescription for Tuss-Ornade. On June 25, 1976, she again called him. She reported stomach pains and vomiting. Medication to stop the vomiting was prescribed, as was bed rest. Dr. Hermes advised her to go to the emergency room at the hospital if she had no relief by that night. Next, on June 28,1976, Mrs. Wooderson went to the office. Dr. Hermes was not in, and she was examined by one of his associates, Dr. Howard Wilcox. Her blood pressure was 160/88. She complained of abdominal pain, nausea, dizziness, headaches and weakness. She felt like she was coming down with the flu. Dr. Wilcox took her off of the oral contraceptives and prescribed Equagesic. On the following day, she called Dr. Wilcox. She still had headaches, felt weak, was. short of breath, and had a sore throat and cough. He directed her to continue with the Tuss-Ornade and the Equagesic. On June 30, she called the office and talked with Dr. Buck, another associate. He authorized a refill of the Tuss-Ornade prescription. Two days later, on July 2, she saw Dr. Wilcox in his office. She was still vomiting; she complained of exhaustion upon slight exertion; her legs ached; and she had a sore throat but no fever. Her blood pressure had reached 186/104. Dr. Wilcox ordered some tests and later that same day referred her to Dr. Reid, an internist, who examined her and saw all of the laboratory reports. He directed her to the Lawrence Memorial Hospital, which she entered on July 2. Her blood pressure was 202/102. She was diagnosed as having chronic renal disease. Two days later, on Sunday, July 4, 1976, she was transferred by ambulance to the K. U. Medical Center in Kansas City, Kansas.
Upon her arrival at the medical center, she was described as being in poor condition, and she was initially diagnosed as suffering from “renal failure.” Peritoneal dialysis was commenced immediately. A few days later, surgery was performed so that she could be connected to the hemodialysis machine. Her kidneys had utterly failed, and she was completely dependent upon hemodialysis. She was released from the K. U. Medical Center on July 28,1976. The hospital records upon her discharge contain the following case summary:
“FINAL DIAGNOSIS: Renal failure secondary to hemolytic uremic syndrome, oral contraceptive induced.
Hypertension, volume dependent.
Congestive heart failure secondary to volume overload.
Anemia secondary to #1.
“OPERATIONS AND PROCEDURES:
Peritoneal dialysis.
Renal biopsy, open.
External leg shunt.
Internal fistula placement in the left arm.
“DISPOSITION: The patient is discharged on the following medications - Inderal, 20 mg. p.o. q.i.d.; Atarax, 25 mg. p.o. p.r.n. itching
Dalmane, 15 mg. p.o. p.r.n. sleep; Coumadin, 2.5 mg. p.o. daily; Colace, 1 tablet p.o. t.i.d; Alu-Caps, 2 tablets p.o. t.i.d.;
Renal Vitamin, 1 p.o. daily. The patient will be returning to the Outpatient Dialysis Clinic for thrice weekly in-center dialysis.
The patient and husband will undergo, home dialysis training in the late summer or early fall.
“PROGNOSIS: Fair.”
After plaintiff was discharged, she had to return to the hospital three times weekly from her home in Lawrence for dialysis treatments. In October 1976, she and her husband travelled to the medical center daily for four weeks and took training for home dialysis. In November, plaintiff got a home dialysis machine, and thereafter her husband gave her the treatments at home. At first, the dialysis took six hours; later it was reduced to five hours, then to four hours. Mrs. Wooderson continued to have blood pressure problems until both of her kidneys were removed surgically on February 1,1977. She had eye problems, for which she was hospitalized and treated regularly. On March 22, 1977, she had a kidney transplant from her brother. This was unsuccessful; she rejected the donated kidney. It was removed on April 12, 1977.
On May 3, 1981, following dialysis, the plaintiff had very low blood pressure and stomach cramps. The latter grew progressively worse. She was taken to the Lawrence Memorial Hospital and then transferred by ambulance to the University of Kansas Medical Center on the following morning. Upon arrival, she was described as having severe abdominal pain and having the classic symptoms of peritonitis. Exploratory abdominal surgery was performed immediately. Roughly one-third of her large intestine, the right colon, was found to be gangrenous, and was removed. Racteria that normally live inside the intestine were found outside, in the peritoneal cavity, and this was the cause of the peritonitis or generalized infection in the abdomen. The surgeon who performed this operation, Dr. George Emory Pierce, M.D., concluded that the plaintiffs difficulty with the bowel was due to inadequate blood supply to the intestine. This, in turn, was caused by the low blood pressure following dialysis. Mrs. Wooderson recovered well from this abdominal surgery, and was discharged from the hospital on May 22, 1981.
A second kidney transplant performed in November 1981 has proven successful. Since receiving that kidney, plaintiff has had only one minor rejection, and she has not had to go back on the dialysis machine. At the time of trial, she had gotten along well with the new kidney for some thirteen months. Her blood pressure has not been a problem. She still has blind spots in the right eye, and she is taking Imuran and Prednisone, which are steroids or immunosuppressant drugs, as well as a renal vitamin and Colace, a stool softener. She will have to take the steroids so long as she retains the donated kidney. Because of the risk involved, she will not have children.
Plaintiff s actual out-of-pocket medical expenses up to the time of trial, plus loss of wages and mileage from her home to and from the hospital, exceeded $215,000. Damages sustained and not covered within that monetary figure include future drug expenses (estimated at $28,800), loss of both kidneys, cataracts in both eyes, increased risk of cancer because of the continued ingestion of steroids, inability to have children, loss of blood flow to part of the large intestine necessitating major abdominal surgery and removal of part of the intestine, risk of further intestinal surgery, and mental anguish, pain and suffering caused by the extended hospitalization, repeated operations, hemodialysis for five and one-half years, loss of her brother’s donated kidney, and some fifty-five blood transfusions. Ortho does not argue that the $2,000,000 awarded as compensatory damages is excessive, or that the amount of the award is not supported by the evidence. Instead, Ortho agrues that there is no substantial evidence that the oral contraceptives caused plaintiffs kidney failure; that Ortho had no duty to warn of the risk of hemolytic uremic syndrome (HUS); and that even if it did have the duty to warn, its failure to warn born no causal relationship to Dr. Hermes’ decision to prescribe Ortho-Novum 1/80 for the plaintiff. Thus, Ortho’s position is not that plaintiff did not sustain the injuries and damages claimed, but that Ortho did not cause them to occur and is therefore not responsible. It challenges causation and responsibility, not injury.
SUFFICIENCY OF THE EVIDENCE
The rules under which we review the evidence, when challenged as to sufficiency to support a verdict, are familiar. In Cantrell v. R. D. Werner Co., 226 Kan. 681, 684, 602 P.2d 1326 (1979), we said:
“It has long been the rule that when a verdict is attacked for insufficiency of the evidence, ‘the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances', the reviewing court must review the evidence in the light most favorable to the party prevailing below.’ Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977).”
See also Hand Realty Co. v. Meyers, 234 Kan. 304, 306, 672 P.2d 583 (1983).
Similarly, in Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 (1979), the rule is concisely stated in Syllabus ¶ 1:
“When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene.”
“Substantial evidence” is defined as evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, 806, 676 P.2d 107 (1984); Haddock v. U.S.D. No. 462, 233 Kan. 66, 661 P.2d 368 (1983); Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 648 P.2d 225 (1982). Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 630 P.2d 1131 (1981). In conformity with these rules, we now consider the evidence in the light most favorable to the successful party.
THE PILL AS CAUSATION
Was there substantial, competent evidence that the oral contraceptive Ortho-Novum 1/80 caused plaintiffs hemolytic ure mic syndrome (HUS) and the consequent loss of her kidneys? That is the first issue. Plaintiff, in support of her claim that the drug caused her HUS, presented three specialists, Dr. Dennis Diederich and Dr. Frank Cuppage, both physicians and members of the teaching staff at the K. U. Medical Center, and Dr. John Gabourel, Ph.D., a professor of pharmacology at the Oregon Health Sciences University, formerly the University of Oregon School of Medicine. Through these witnesses she presented many articles published in medical and scientific journals, both here and abroad.
First, a word about hemolytic uremic syndrome, or HUS. A syndrome is not a disease; it is a set or constellation of symptoms which occur together, and which help the physician recognize the condition and set it apart from less serious conditions or diseases indicated when only one — or at least less than all — of the symptoms are present. “Hemolytic” means causing hemolysis, the destruction of the red blood cells. “Uremic” means caused by or pertaining to uremia, the presence of urine in the blood and the toxic condition thereby produced. Hemolytic uremic syndrome usually first manifests itself with flu-like symptoms — headache, nausea, fatigue, sometimes fever — and with constantly increasing blood pressure. The onset is rapid. HUS is recognizable through three main symptoms or features. These are: (1) acute kidney failure; (2) thrombocytopenia, a marked decrease in the number of blood platelets, small colorless cells in the blood which assist in the coagulation or clotting of the blood; and (3) hemolytic anemia, a condition in which the blood is markedly deficient in the number of red blood cells. These three symptoms, kidney failure (resulting in uremia or the presence of urinary constituents in the blood), thrombocytopenia, and hemolytic anemia, can be detected through examination of the blood. The syndrome is also reflected in abnormality in the lining or intima of the small blood vessels in the kidney; this causes hemolysis or destruction of the red blood cells moving across the injured lining. Abnormality of the blood vessels of the kidney may be detected pathologically. HUS is extremely serious. Its course is described as being relentlessly downhill, with irreversible kidney failure the usual result.
Dr. Diederich is a professor of medicine in the department of internal medicine at K. U. Medical Center. He is board-certified in internal medicine and also in nephrology. His practice, and the area in which he teaches, consists of diagnosing various problems with the kidney, trying to determine the cause of the kidney ailment, and treating the condition. He has been in the nephrology section of the department of internal medicine at the K. U. Medical Center since 1969. He was alerted by a telephone call from plaintiff s physician in Lawrence, and was present when she arrived at the medical center on July 4, 1976. She was taken directly to the intensive care unit. There, Dr. Diederich observed that her blood pressure was very high. She showed evidence of circulatory overload. Her heart was beating hard, her pulse was pounding and her veins were distended. Her hands and feet were swollen. The breath sounds reflected moisture in the lungs. She was making very, very small amounts of urine, and a catheter in her bladder demonstrated that there was no flow of new urine being made by her kidneys. The blood vessels in her eyes evidenced increased tension. Peritoneal dialysis was employed to relieve the pressure and correct the blood by filtration. Blood tests disclosed that she had less than half of the expected normal amount of red blood cells in a sample of her blood, and a low white blood cell count — 2,500 rather than the 4,000 to 6,000 which would normally be found. Twelve to fifteen pounds of fluid was removed by peritoneal dialysis. Later in the week, a small specimen was taken surgically from plaintiff s kidney, and this was microscopically examined.
Dr. Diederich was furnished with a history of the patient and of the patient’s family. He carefully checked on and ruled out infection or any of the other possible causes for plaintiffs condition. He testified that oral contraceptives cause changes in the blood vessels in the kidney. He expressed the opinion that the oral contraceptive taken by the plaintiff was responsible for the destruction of her kidneys and the generation of her malignant hypertension. When Carol Wooderson first entered the hospital, Dr. Diederich thought that she was suffering from HUS, brought on by the oral contraceptives which she had been taking. He still thought so when she was released from the hospital on July 28, 1976. Thereafter, he read many additional published articles on the subject in various medical journals, dozens of which were received in evidence in this case. When he testified at the trial, Dr. Diederich still believed that the oral contraceptives taken by Carol Wooderson caused her HUS and the resulting loss of her kidneys, the eye problems, and the loss of a section of her intestine.
The testimony of Dr. Francis Edward Cuppage, M.D., was presented by video-tape deposition. Dr. Cuppage is a pathologist, and his area of special interest is in kidney or renal disease. He has been on the teaching staff at the University of Kansas Medical School since 1967, and he has been a full professor since 1973. He practices medicine, teaches, and does research in acute renal failure. He is a board-certified pathologist, and he has published some fifty-four articles in medical journals, most of them related to the kidney. Some are also related to blood supply. He had no direct contact with the plaintiff and had not seen her before his deposition was taken. He is the pathologist in charge of renal biopsies at the K. U. Medical Center. As such, and at the request of Dr. Diederich, Dr. Cuppage examined a portion of the plaintiff s kidney on July 8,1976. This portion had been removed by Dr. Arlo Hermrick, a surgeon, by a procedure known as kidney wedge biopsy. One sample was examined in the usual method by microscope, and the other was examined by electron microscopy. When Dr. Cuppage first microscopically examined this tissue, he had not read plaintiff s clinical history and laboratory findings. He had read these materials when later studies were conducted on plaintiff s kidneys, after their removal in early 1977.
Dr. Cuppage explained the microscope slides prepared from the biopsy of Carol Wooderson’s kidneys, and he pointed out the major areas of damage, both in the blood vessels and in the glomeruli, the filters of the kidney. He explained why the slides rule out most of the things which might cause kidney damage. Then Dr. Cuppage expressed the opinion that the contraceptive pill, Ortho-Novum 1/80, can produce an alteration in the blood vessels. He thought that the most probable cause of plaintiffs HUS and her resulting health problems was blood vessel lesions produced by oral contraceptives. The lesions in the small blood vessels in the kidneys came first; hypertension and damage to the glomeruli followed as a result of the vascular lesions. He stated that he was more firmly convinced at the time he was giving his testimony that his original diagnosis was correct than he had been when he made it. All of the pathological and clinical information which he received later solidified his opinion.
John Gabourel, Ph.D., a professor of pharmacology from the Oregon Health Sciences University, testified at length. He received his Ph.D. degree in pharmacology at the University of Rochester in 1957. He has conducted research on many subjects and has had national level research support for many years. He teaches medical students and nurses at the university, and also participates in continuing education courses for the practicing physicians of his state. Included in the areas he teaches is systematic pharmacology or organ system pharmacology, which deals with the specific effect of drugs on different tissues and organs of the body. He has authored some thirty-one major publications, plus a lesser number of short articles. In preparing to testify in this case, he read abstracted portions of the medical records of the plaintiff and many original articles that had been obtained previously by Dr. Diederich. He ran a Med.-Line computer search of his own, discovered and read additional articles, consulted Harrison’s Textbook of Medicine, and in general read everything that he could find that had been published relating to HUS and particularly to its occurrence in women who have been taking oral contraceptives. He testified that he had spent almost all of the three weeks before he testified reading and thinking about HUS, running more computer searches in different areas, and talking to other people in specialized areas, including officials of the Food and Drug Administration. He expressed the opinion that Ortho-Novum 1/80, in some women, causes malignant hypertension, vessel wall damage, HUS, and permanent failure of and loss of the kidneys. It was his professional opinion that Ortho-Novum 1/80 caused Carol Wooderson’s HUS and the loss of her kidneys.
Among the reasons why this witness concluded that Ortho-Novum 1/80 caused plaintiffs HUS were: (1) Plaintiff took the oral contraceptives long enough for development of lesions of the type identified by Dr. Nelson Irey as being caused by oral contraceptives; (2) no other agency with known association to HUS was present; (3) the known effects of estrogen (a component of Ortho-Novum 1/80) are compatible with (a) the alteration in blood vessel structure and (b) the enhancement of platelet adhesion and aggregation; (4) there were twenty-one reported cases of women on oral contraceptives having HUS before plaintiff, and at the time of trial there were thirty-nine patient cases reported wherein oral contraceptives were associated with HUS; (5) in two of the reports, there was a “re-challenge”— women who were on oral contraceptives and showed symptoms of HUS were taken off the oral contraceptives and apparently recovered, were put back on oral contraceptives and suffered severe recurrence of HUS; (6) the pathological examination and report done in February 1977, after plaintiff s bilateral nephrectomy, was consistent with HUS. Dr. Gabourel ruled out as causative agents all of the other drugs which plaintiff had taken prior to the onset of her HUS. It was his opinion that Ortho-Novum 1/80 caused inflammation and occlusion of the inner wall of the tiny arteries in her kidneys. This was followed by kidney failure and then malignant hypertension. He suggested that her January 1976 blood pressure of 120/90 is highly significant, a 30mm rise over her pre-oral contraceptive measurement. Thus it was his opinion that this catastrophy could have been avoided if her physicians had been properly warned. Warnings would have alerted her physicians to monitor her blood pressure more closely and to conduct various urine and renal function tests earlier in 1976. Early detection could have prevented the irreversible kidney failure.
The testimony of■ Dr. Diederich and Dr. Gabourel extends through ten volumes of trial transcript. Dr. Cuppage’s deposition is also a lengthy document. Other physicians also testified. The brief summaries above reflect but a very small portion of the plaintiffs evidence in this case. Ortho contends that plaintiffs proof of medical causation is “conjectured” and “based on a diagnosis of exclusion.” Upon reviewing this entire record, however, it appears to us that the proof of medical causation is detailed, logical, and based upon scientific studies, commencing with those of pathologist Nelson Irey. One of the requisites for arriving at a conclusion as to cause is to consider all possible causes. Plaintiffs expert witnesses did this, and each gave in detail the reasons why Ortho-Novum 1/80 was the cause, and why each other possible cause of plaintiff s HUS had to be eliminated in this case. We conclude that there is an abundance of substantial competent evidence to support the jury’s finding that Ortho-Novum 1/80 caused the plaintiffs HUS, her acute kidney failure, and her resulting injuries and damages.
DUTY TO WARN
Ortho contends that it had no duty to add to the prescribing instructions for Ortho-Novum 1/80 a statement that there might be an association between the use of that product and HUS, malignant hypertension, or acute renal failure. In support of this contention, it cites Restatement (Second) of Torts § 402A (1965), including the comments thereto, and Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 319, 607 P.2d 1339 (1980). Lindquist was a products liability and medical malpractice case brought against Ayerst Laboratories, Inc., the manufacturer of an anesthetic which had been administered to the decedent, and the two physicians who had administered the anesthetic. Verdict had been entered for the defendants and plaintiff appealed. In the course of the opinion, we said:
“[T]he jury was properly instructed regarding the doctrine of strict liability expressed in Restatement (Second) of Torts § 402A (1965). The jury was instructed to find Ayerst liable provided they found the drug was in a defective condition and unreasonably dangerous to persons who might be expected to use it, where that defect caused or contributed to the death of Lindquist. The defective condition is the failure of Ayerst to properly warn and instruct the medical profession with respect to the use and possible consequences of the use of Fluothane.” 227 Kan. at 319.
Section 402A of the Restatement, together with the applicable portions of Comment J thereunder, read as follows:
Ҥ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
j. Directions or warning. . . . Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.” (Emphasis supplied.)
Defendant seizes upon that portion of the comment reading “if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge . . . Ortho contends, in essence, that an ethical (prescription) drug manufacturer is not bound to provide warnings until the occurrence of side effects is so frequent and the evidence of causation so clear-cut that the drug maker is itself convinced that the drug causes or contributes to such problems. This, we conclude, is not the law. A drug manufacturer’s duty to warn is discussed and the rules are stated in numerous cases. A leading case in this field is McEwen v. Ortho Pharmaceutical, 270 Or. 375, 528 P.2d 522 (1974). Plaintiff McEwen brought suit against Ortho and Syntex for their alleged failure to give appropriate warning to the medical profession of dangers which the manufacturers knew or had reason to know were inherent in the use of their products. Plaintiff recovered judgment and defendants appealed. In affirming the judgment, the court said:
“I. DEFENDANTS’ DUTY TO WARN PLAINTIFF’S DOCTORS
“There is no question here of any defect in the manufacture of defendants’ oral contraceptives, nor of their efficacy when taken as prescribed. It is well settled, however, that the manufacturer of ethical drugs bears the additional duty of making timely and adequate warnings to the medical profession of any dangerous side effects produced by its drugs of which it knows, or has reason to know. E.g., Sterling Drug, Inc. v. Cornish, 370 F2d 82 (8th Cir 1966); Parke-Davis & Co. v. Stromsodt, 411 F2d 1390 (8th Cir 1969); Stevens v. Parke, Davis & Co., 9 Cal 3d 51, 107 Cal Rptr 45, 507 P.2d 653 (1973); Love v. Wolf, 226 Cal App 2d 378, 38 Cal Rptr 183 (1964); Krug v. Sterling Drug, Inc., 416 SW2d 143 (Mo Sup Ct 1967); see 2 Restatement (Second) of Torts 300, § 388 (1965).
“The duty of the ethical drug manufacturer to warn is limited to those dangers which the manufacturer knows, or has reason to know, are inherent in the use of its drug. However, the drug manufacturer is treated as an expert in its particular field, and is under a ‘continuous duty *** to keep abreast of scientific developments touching upon the manufacturer’s product and to notify the medical profession of any additional side effects discovered from its use.’ Schenebeck v. Sterling Drug, Inc., 423 F2d 919, 922 (8th Cir 1970);. accord O’Hare v. Merck & Co., 381 F2d 286, 291 (8th Cir 1967). The drug manufacturer’s duty to warn is, therefore, commensurate not only with its actual knowledge gained from research and adverse reaction reports but also with its constructive knowledge as measured by scientific literature and other available means of communication.
“Although the duty of the ethical drug manufacturer is to warn the doctor, rather than the patient, the manufacturer is directly liable to the patient for a breach of such duty. See Schenebeck v. Sterling Drug, Inc., supra; Love v. Wolf, supra. The manufacturer’s compliance with this duty enables the prescribing physician to balance the risk of possible harm against the benefits to be gained by the patient’s use of that drug. Moreover, as observed by the court in Sterling Drug, Inc. v. Cornish, supra 370 F2d at 85:
“ ‘*** [T]he purchaser’s doctor is a learned intermediary between the purchaser and the manufacturer. If the doctor is properly warned of the possibility of a side effect in some patients, and is advised of the symptoms normally accompanying the side effect, there is an excellent chance that injury to the patient can be avoided. This is particularly true if the injury takes place slowly***.’
“Although the ethical drug manufacturer’s duty to warn has been discussed most often with reference to the prescribing physician, the above reasoning applies with equal force to the treating physician. It is especially important that the treating doctor receive the manufacturer’s, warnings where it is impossible to predict in advance whether a particular patient is apt to suffer adverse effects from a drug, since the treating doctor may be more likely to observe the actual symptoms of the drug’s untoward consequences. If the prescribing physician is entitled to make an informed choice in deciding whether the patient should begin taking a prescription drug, it follows that a treating physician should have the same information in making his decision as to whether the patient should stop taking that drug.
“The duty of the ethical drug manufacturer to warn extends, then, to all members of the medical profession who come into contact with the patient in a decision-making capacity. To satisfy this duty, the manufacturer must utilize methods of warning which will be reasonably effective, taking into account both the seriousness of the drug’s adverse effects and the difficulties inherent in bringing such information to the attention of a group as large and diverse as the medical profession. See Sterling Drug, Inc. v. Yarrow, 408 F2d 978 (8th Cir 1969). The warning should be sufficient to apprise the general practitioner as well as the ‘unusually sophisticated medical man’ of the dangerous propensities of the drug. Parke-Davis & Co. v. Stromsodt, 411 F2d 1390, 1400 (8th Cir 1969). In short, ‘it is incumbent upon the manufacturer to bring the warning home to the doctor.’ Rheingold, Products Liability—The Ethical Drug Manufacturer’s Liability, 18 Rutgers U L Rev 947, 993 (1964).
“It has been suggested, however, that the manufacturer of a prescription drug should be under no duty to warn the medical profession that its product is dangerous when used by certain allergic or hypersensitive users. It is unreasonable, so the argument runs, to impose upon the manufacturer a duty to warn doctors of dangers threatening a statistically insignificant number of users. We find this argument unpersuasive.
“In the field of negligence the duty to warn is limited to those dangerous propensities of the drug of which the manufacturer knows, or has reason to know. If allergic reactions are harder to anticipate, this should be taken into account in evaluating the manufacturer’s knowledge. It must be remembered that the negligence liability of the ethical drug manufacturer is restricted to those dangers which are foreseeable.
“Furthermore, to simply conclude that it is unreasonable to impose liability where the known danger threatens only a statistically small percentage of the drug’s users is to beg the very question of negligence. The size of the class of endangered persons is one — albeit only one — of the factors to be considered in deciding whether the manufacturer’s warnings were, in fact, reasonable.
“The ethical drug manufacturer is, then, subject to a duty to warn the medical profession of untoward effects which the manufacturer knows, or has reason to know, are inherent in the use of its drug. Sterling Drug, Inc. v. Cornish, supra 370 F2d 82; Parke-Davis & Co. v. Stromsodt, supra 411 F2d 1390; Basko v. Sterling Drug, Inc., 416 F2d 417 (2d Cir 1969); Love v. Wolf, supra 226 Cal App 2d 378; Krug v. Sterling Drug, Inc., supra 416 SW2d 143; cf. Davis v. Wyeth Laboratories, Inc., 399 F2d 121 (9th Cir 1968). See also Wright v. Carter Products, Inc., 244 F2d 53 (2d Cir 1957); Hungerholt v. Land O’Lakes Creameries, Inc., 209 F Supp 177 (D Minn 1962), aff'd 319 F2d 352 (8th Cir 1963); Gerkin v. Brown & Sehler Co., 177 Mich 45, 143 NW 48 (1913). But see Winthrop Laboratories Division of Sterling Drug, Inc. v. Crocker, 502 SW 2d 850 (Tex Civ App 1973).” 270 Or. at 385-390.
In determining whether there was a breach of defendant’s duty, the Oregon court said:
“Because the ethical drug manufacturer has only the duty to warn the medical profession of those adverse effects of which it knows, or has reason to know, the adequacy of the warnings given by each defendant depends upon the actual and constructive knowledge of that defendant before and during the period in which Mrs. McEwen used its drug. For Syntex, the relevant interval began on December 3, 1966, when plaintiff first took Norinyl, and ended on December 20, 1967, when she changed to Ortho-Novum oral contraceptives. From that date, plaintiff used Ortho-Novum until approximately December 22, 1968, and this is the relevant time span with reference to Ortho’s knowledge.
“Numerous studies, reports and other documents were admitted into evidence and discussed by the expert witnesses. Some of these materials support Mrs. McEwen’s contention that defendants knew, or should have known, of the dangerous propensities of their oral contraceptives during the time plaintiff was using them.” 270 Or. at 390-91.
Thereafter, the court discussed testimony of experts, a cooperative two-year oral drug safety study conducted by Ortho and Syntex, a 1965 article published in Archives of Ophthalmology, and various package inserts. The court then stated:
“Viewing all the testimonial and documentary evidence in its entirety, there was substantial evidence that each defendant knew, or should have known, that its oral contraceptive had a dangerous propensity to cause the kind of harm suffered by plaintiff. This is not to say that defendants did not produce substantial evidence tending to prove that they did not have such knowledge during the relevant times. Our sole function, however, has been completed by our determination that reasonable men might differ upon the point. It was for the trier of fact to resolve the conflict.” 270 Or. at 395-96.
In Ortho Pharmaceutical v. Chapman, 180 Ind. App. 33, 388 N.E.2d 541 (1979), the Court of Appeals of Indiana, Fourth District, said:
“We are persuaded that the duty to warn under Comment k does not arise until the manufacturer knows or should know of the risk. [Citations omitted.] In the case of drug manufacturers, the standard of constructive knowledge is that of an expert in that particular field. Reyes v. Wyeth Laboratories, Inc. (5th Cir. 1974), 498 F.2d 1264 [citations omitted]. . . . [D]ates are ‘vitally important’ with respect to the duty to warn. Because a manufacturer cannot be required to warn of a risk unknown to science, the knowledge chargeable to him must be limited to that of the period during which the plaintiff was using the product in question. [Citations omitted.]
“A second important limitation on liability . . . applies to manufacturers of ethical [prescription] drugs. Since such drugs are available only by prescription, a manufacturer’s duty to warn extends only to the medical profession, and not the ultimate users. [Citations omitted.] Terhune v. A. H. Robins Co. (1978), 90 Wash.2d 9, 577 P.2d 975. The rationale for this exception to the Restatement’s general rule is that
‘Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative.’
Reyes v. Wyeth Laboratories, Inc., supra. The court in Terhune v. A. H. Robins Co., supra, elaborates further:
‘The reasons for this rule should be obvious. Where a product is available only on prescription or through the services of a physician, the physician acts as a ‘learned intermediary’ between the manufacturer or seller and the patient. It is his duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise an independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon’that judgment. The physician decides what facts should be told to the patient. Thus, if the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient. It has also been suggested that the rule is made necessary by the fact that it is ordinarily difficult for the manufacturer to communicate directly with the consumer. (Footnote omitted.)’
“In summary, a proper warning under Comment k in the context of the facts at bar, communicates a risk attendant on the use of the product which is known to experts in the field during the period in which the product is used. It need only be directed to doctors, not patients who are the ultimate users.
“To summarize, a product which is faultlessly designed and manufactured may be nevertheless unreasonably dangerous within the meaning of § 402A if not accompanied by proper warnings. A manufacturer can only be required to warn of risks known during the time in which the plaintiff was using the product in question, however he is charged with the knowledge of an expert in that field. In the case of ethical drugs, the manufacturer’s duty is discharged if adequate warning is given to doctors, who act as ‘learned intermediaries’ between the manufacturer and the ultimate user. To be adequate, a warning must be reasonable under the circumstances. As a practical matter, this is determined by application of negligence theory.
“As proof of the inadequacy of Ortho’s warnings, Chapman offered into evidence the full text of the written warnings in question and expert testimony as to the state of knowledge in the medical profession at the time. Ortho argues that the plaintiffs expert was not qualified to give an expert opinion as to the adequacy of the warnings since he had no special training or experience in reading and writing warnings. This is not the test:
‘The true rule appears to be fairly stated in the case of Isenhour v. State, 1901, 157 Ind. 517, 528, 62 N.E. 40, 44, 87 Am. St. Rep. 228, in which this court said: “Courts have never undertaken to set up a standard of scientific knowledge by which the competency of a witness may be determined, and have not gone to the extent of holding that a scientific witness can only testify from facts learned by him from personal demonstration. The general rule in such cases, in this state, at least, seems to be that, where a witness exhibits such a degree of knowledge, gained from experiments, observation, standard books, or other reliable source, as to make it appear that his opinion is of some value, he is entitled to testify leaving to the trial court, in the exercise of a sound discretion, the right to say when such knowledge is shown, and to the jury the right to say what the opinion is worth; and, as in all other cases of discretion, this court will review the action of the trial court only when that discretion clearly appears to have been abused.” ’
Illinois Steel Co. v. Fuller (1939), 216 Ind. 180, 23 N.E.2d 259, 263. Our review of this expert’s qualifications convinces us that clearly there was no abuse of discretion in permitting his testimony. Regarding the state of knowledge in the medical profession at the time, the expert testified that ‘statistics were being published to show the direct relationship of the oral contraceptive pill to an increased disposition in women to develop blood clotting. . . .’ The expert then summarized several reports of studies. He was asked, ‘Was there information in the year 1968 available to the defendant here from these studies, you take the Wright Committee, the British Studies, the Heilman Reports, that did establish a relationship between the use of the pill and thrombophlebitis?’ The expert responded ‘yes.’ The expert was then requested to read aloud the following portion of Ortho’s 1968 Physicians Desk Reference entry for Ortho-Novum: ‘No comparable studies are yet available in the United States. The British data, especially as they indicate the magnitude of the increased risks to the individual patient, cannot be directly applied to women in other countries in which the incidences of spontaneously occurring thromboembolic disease may be different.’ (Emphasis added). The expert was asked to state his opinion of the adequacy of the warning. After objections, preliminary questions, a recess, and more objections, he stated that in his opinion the warnings were ‘insufficient, incomplete and misleading.’ ” 180 Ind. App. at 42-44, 50-52.
Again, with reference to the manufacturer’s duty to warn, the Second Circuit in Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87 (2d Cir. 1980), said:
“The manufacturer’s duty is to warn of all potential dangers which it knew, or in the exercise of reasonable care should have known, to exist. Baker v. St. Agnes Hospital, supra, 70 App. Div. 2d at 405, 421 N.Y.S.2d 81; Tinnerholm v. Parke Davis & Co., 285 F. Supp. 432, 451 (S.D.N.Y. 1968), aff'd on other grounds, 411 F.2d 48 (2d Cir. 1969). The duty is a continuous one, requiring the manufacturer to keep abreast of the current state of knowledge of its products as gained through research, adverse reaction reports, scientific literature, and other available methods. Baker v. St. Agnes Hospital, supra, 70 App. Div. 2d at 406, 421 N.Y.S.2d 81. Except where FDA regulations otherwise provide, the manufacturer’s duty is to warn the doctor, not the patient. The doctor acts as an ‘informed intermediary’ between the manufacturer and the patient, evaluating the patient’s needs, assessing the risks and benefits of available drugs, prescribing one, and supervising its use. Wolfgruber v. Upjohn Co., supra, 72 App. Div. 2d at 61, 423 N.Y.S.2d 95.” 637 F.2d at 91.
Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981), is another case in which the adequacy of warnings was involved. That court said:
“An adequate warning is one reasonable under the circumstances. Sterling Drug, Inc. v. Yarrow, 408 F.2d 978, 992, 993 (9th Cir. 1969); Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d at 553. A warning may be inadequate in factual content, in expression of the facts, or in the method by which it is conveyed. Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d at 552.
“The adequacy of the warning must be judged in the light of what Ortho knew at the time Mrs. Brochu was actually taking Ortho-Novum 2 mg. The key document in this determination is a study conducted by Inman, Vessey, Westerholm, and Engelund and published in the British Medical Journal in April 1970. Their research found a ‘positive correlation . : . between the dose of oestrogen [estrogen] and the risk of . . . cerebral thrombosis.’It also noted that estrogen dosage might not be the only factor related to the risk of thromboembolism. Ortho has not claimed that it was unaware of this study, but the report was not cited in the package insert for the 2 mg. oral contraceptive or in the package insert for any other Ortho oral contraceptive; in fact, the insert for each of these products was identical.
“The absence of any reference to the 1970 British study, which, unlike the four' studies actually referred to in the package insert, would have provided numerical data to the physician on the dose-effect relationship between thromboembolic disease and oral contraceptives, was ground for a jury finding that the warnings were factually inadequate. To this is to be added the fact that the inserts for each of Ortho’s oral contraceptives were identical, despite this evidence that higher-estrogen-dose pills might present greater risks to users. From this, the jury might have concluded that the warnings for the 2 mg. pills were inadequate. The jury might also have considered on the question of warning the fact that the salesperson who regularly called on Dr. Campbell did not orally inform him that the 2 mg. drug appeared to present a higher risk of thromboembolism. See Sterling Drug, Inc. v. Yarrow, 408 F.2d at 992, 993 (trial court may find it unreasonable to fail to instruct sales personnel to warn physicians on whom they call regularly of drug dangers; not clearly erroneous to find such sales personnel present most effective method of warning doctors).
“In view of the expert testimony that the April 1970 study did establish the existence of a positive correlation between the dose of estrogen and the risk of cerebral thrombosis, and the admitted fact that the labeling did not refer to this study, Ortho’s claim that the Brochus did not provide expert testimony on the inadequacy of the label is untenable.” 642 F.2d at 657-59.
One other case is illuminating. In Seley v. G. D. Searle & Co., 67 Ohio St. 2d 192, 423 N.E.2d 831 (1981), the Supreme Court of Ohio discussed the adequacy of warnings. It said:
“A jury may find that a warning is inadequate and unreasonable even where the .existence of a ‘risk,’ i.e., a causal relationship between use of the product and resulting injury, has not been definitely established. McCue v. Norwich Pharmacal Co. (C.A. 1, 1972), 453 F.2d 1033; Hamilton v. Hardy, [37 Colo. App. 375, 549 P.2d 1099 (1976)]. Thus, where scientific or medical evidence exists tending to show that a certain danger is associated with use of the drug, the manufacturer may not ignore or discount that information in drafting its warning solely because it finds it to be unconvincing. Mohr v. G. D. Searle & Co. [72 Ill. App. 3d 540, 390 N.E.2d 1214 (1979)], at page 564.” (Emphasis supplied.) 67 Ohio St. 2d at 198.
An enlightening discussion of recent cases involving the duty of an ethical drug manufacturer to warn is found in Scott, Products Liability, 1982 N.Y.U. Ann. Surv. Am. L. 709, 720-24:
“DUTY TO WARN OF THE DANGERS INHERENT IN DRUGS
“Drug manufacturers have a duty to warn medical practitioners about products which, though useful, are unavoidably unsafe. An unusual result was reached in Lukaszewicz v. Ortho Pharmaceutical Corp. [, 510 F. Supp. 961 (E.D. Wis. 1981)], where the District Court for the Eastern District of Wisconsin held that the manufacturer of an oral contraceptive had the duty to warn not only the doctor, but also the patient, of the potential risks involved in taking the drug. The court imposed this duty to warn even though the drug was available only by prescription.
“In Lukaszewicz, the plaintiff alleged that use of the contraceptive caused her to suffer severe migraine headaches which ultimately resulted in a cerebrovascular injury. She claimed that Ortho had a duty to warn patients directly of the possible side effects of the drug.
“The court based its decision on an FDA regulation which, when read together with Wisconsin law, spelled out a case for negligence per se. The FDA regulation sets out detailed instructions regarding the required warnings to be directed to users of oral contraceptives in a package insert. While other federal courts have been aware of FDA regulations about drug labeling, the court noted that none has held that a drug manufacturer’s duty extends beyond warning the doctor. The law in Wisconsin, however, provides that violation of state and federal legislative and administrative enactments designed to protect a particular class of persons, which results in the proscribed harm, constitutes negligence per se. The court, therefore, held that the defendant drug company breached its duty to the plaintiff, because the purpose behind the FDA regulation was to enable patients taking oral contraceptives to recognize harmful side effects and seek medical assistance, and because violation of the regulation by the manufacturer allegedly led to the harm which the plaintiff suffered. The plaintiffs claim that she received no warning, as well as the issue of causation, became questions of fact for jury resolution.
“In light of the explicit requirements set out by the FDA regarding oral contraceptive labeling, the court’s decision is clearly correct. Since there is no reason to promulgate regulations if they will not be enforced, one can only wonder why other courts have not arrived at the conclusion reached in Lukaszewicz.
“In another case involving oral contraceptives, Brochu v. Ortho Pharmaceutical Corp. [, 642 F.2d 652 (1st Cir. 1981)], the Court of Appeals for the First Circuit, interpreting New Hampshire law, applied the strict liability standard to a prescription drug. The plaintiff s doctor had prescribed the defendant’s two-milligram, high estrogen content oral contraceptive which the plaintiff took for over three years until, allegedly as a result of taking the drug, she suffered a stroke. The First Circuit upheld the plaintiff s claim that Ortho should have warned doctors that the estrogen content pill posed a high risk of cerebral damage and that failure to so warn rendered Ortho liable for manufacturing a defective and unreasonably dangerous product.
“The court noted that certain drugs, though very useful, often cannot be made absolutely safe. Where such is the case, a manufacturer can avoid liability if it adequately warns of the dangers presented by the drug. An adequate warning is to be judged in light of what the manufacturer knew at the time the plaintiff took the drug. The court placed heavy emphasis on a British study that established a positive correlation between a drug’s estrogen content and the risk of stroke. The study had been published over a year before the plaintiff suffered her accident and yet Ortho did not mention the study in either the written or oral information it supplied to prescribing physicians. Additionally, in finding the warning accompanying the two-milligram contraceptive inadequate, the court noted that Ortho’s labeling for all its oral contraceptives was identical, despite evidence that the higher estrogen pills posed greater risks.
“The court next addressed the issue of causation and found that the defendant’s failure to warn was the proximate cause of the plaintiffs injury. The plaintiff s doctor testified that if he had been alerted to the increased risk of the two-milligram pill he would not have prescribed it. The court held that, even if the doctor was careless in not prescribing the equally effective lower dosage pill, Ortho would not be relieved from liability because its failure to warn may have contributed to the doctor’s carelessness.
“In contrast, the decision by the Court of Appeals for the Fourth Circuit in Stanback o. Parke-Davis & Co. [, 657 F.2d 642 (4th Cir. 1981)], insulated a drug manufacturer from liability for failure to warn of the risks associated with its flu vaccine; the court affirmed the summary judgment granted to the defendant. The plaintiff in this case contracted Guillain-Barre Syndrome after being innoculated with the defendant’s vaccine. She argued that the manufacturer’s failure to provide physicians with information about the risk of Guillain-Barre Syndrome constituted a breach of duty to warn of the potential dangers of the vaccine.
“The court, however, held that since the plaintiff was not able to show that the failure to warn was the cause of her injury, she could not recover from the manufacturer. Whether or not Parke-Davis breached its duty was considered irrelevant because there was clear evidence that the plaintiff s doctor was aware of the risk inherent in the vaccine but administered it anyway. The doctor also stated that he did not customarily pass on manufacturers’ warnings to his patients. Therefore, reasoned the court, the doctor was an intervening cause, relieving the manufacturer of liability for its failure to warn.
“The three aforementioned cases can be reconciled by assessing what each court thought may have been the potential effect of an adequate warning. In Lukaszewicz, a direct warning to the patient by means of a package insert may have alerted the plaintiff to the cause of her migraines and prompted her to seek ■medical attention in time to prevent any serious problem. Similarly, in Brochu, a warning to the patient’s physician regarding the potential side effects of the two-milligram pill may have prompted him to prescribe a lower dosage, thus substantially reducing the patient’s risk of injury. In Stanback, however,- any warning the manufacturer might have given apparently would have had no effect in light of the doctor’s firm testimony that he would have administered the vaccine anyway. Here the manufacturer’s breach of duty was not a cause of the plaintiff s injury. The Stanback court noted that had the testimony of the doctor indicated that he might have heeded a warning, a different result would have been reached. That result would have been identical to that reached in Brochu.”
During the times relevant to this lawsuit, the label which accompanied Ortho-Novum 1/80, when purchased by the patient, instructed the patient not to take the drugs without her doctor’s continued supervision. It warned that the drug could cause side effects, but it did not elaborate upon those side effects except to say the most serious known side effect was abnormal blood clotting. The “package insert” which is sent to the physician and which contains the information included in the Physicians’ Desk Reference (PDR), an annual volume provided for use by physicians, presented detailed instructions, contraindications, warnings, and precautions. It is undisputed, however, that none of these warned of any possible association between the use of the product and HUS, malignant hypertension, or acute renal failure. Dr. Hermes, plaintiff s gynecologist, testified in substance that he probably would have lowered the dosage had he been informed by Ortho of these potential dangers. Ortho had access to literature that should have prompted it to inform Dr. Hermes of what he needed to know. The expert testimony and the exhibits in this case disclose that there was an abundance of published information in the medical journals, prior to and during the years when plaintiff was taking Ortho-Novum 1/80, which linked the use of oral contraceptives with HUS, malignant hypertension, and acute renal failure. We agree with the McEwen and Seley courts. The available scientific literature clearly tended to show that there was danger of HUS, malignant hypertension and acute kidney failure attendant to the use of the drug. Ortho, as an expert in the field, knew or should have known of the risk. We conclude that, on the basis of the evidence, Ortho had a duty to warn the prescribing physician, and the trial court properly submitted to the jury the issue of the adequacy of Ortho’s published warning.
We hold that the manufacturer or an ethical drug has a duty to warn the medical profession of dangerous side effects of its products of which it knows, has reason to know, or should know, based upon its position as an expert in the field, upon its research, upon cases reported to it, and upon scientific development, research, and publications in the field. This duty is continuing. We do not need to determine, in this case, what duty, if any, such a manufacturer has to warn the ultimate consumer, the patient. Here, neither was warned by Ortho, but Ortho’s failure to warn the physician is sufficient to sustain the finding of negligence or breach of duty against it in this case.
Ortho also argues that the FDA has determined that contraceptive-induced HUS does not merit warnings, and that the courts of Kansas must defer to the FDA’s determination. This argument centers around a letter from the FDA to Searle Laboratories. Searle had proposed fifteen or more package insert changes, covering many and varied subjects. Only one of those mentioned the inclusion of HUS as a possible side effect. The FDA responded that it did not concur with the additional changes included in that proposal. This letter cannot be construed as a clear determination by the FDA that contraceptive-induced HUS does not merit warnings, and thus this argument has no merit.
FAILURE TO WARN AS CAUSATION
Ortho next contends that its failure to warn of the association between the use of its product and HUS, malignant hypertension, and acute renal failure was not a cause in fact of plaintiff s injury. To the contrary, we think the evidence was substantial that it was. There was abundant evidence that the early diagnosis of HUS, of malignant hypertension, and of kidney failure is extremely important. In addition, Dr. Hermes testified that he has two of his daughters on a lower dosage of Ortho-Novum 1/50 because of what he has learned as a result of this case. There was evidence indicating that a lower dosage might have prevented HUS, and even if the higher dosage of estrogen contained in Ortho-Novum 1/80 were given, Mrs. Wooderson’s attending physicians — if warned of the possibility of HUS — might have made an earlier diagnosis which, according to the expert testimony, might have averted the tragedy. Dr. Hermes testified that he is now alerted to the danger and would look for symptoms. The duty to warn, of course, extends throughout the time that the plaintiff was taking Ortho-Novum 1/80. No warnings were given by Ortho during that period of time, and thus the physicians were not informed to be on the alert for symptoms of HUS, kidney failure, or malignant hypertension. The question of whether this failure to warn was a cause of plaintiff s injury was properly submitted to the jury. With respect to warnings, the Chapman court said:
“. . . Comment j [to § 402A] provides a presumption that an adequate warning would be heeded. This operates to the benefit of a manufacturer where adequate warnings in fact are given. Where warnings are inadequate, however, the presumption is in essence a presumption of causation.” 180 Ind. App. at 55.
Similarly, the Seley court said:
“ ‘What the doctor might or might not have done had he been adequately warned is not an element plaintiff must prove as a part of her case.’ Hamilton v. Hardy [37 Colo. App. 375, 549 P.2d 1099 (1976)], at page 387. The evidence provided by Dr. Froelich as to his independently acquired knowledge is insufficient to rebut the presumption established by Comment j.” 67 Ohio St. 2d at 201-202.
In this case, the warning was inadequate. On the evidence before it, the jury was entitled to find that this inadequate warning caused Mrs. Wooderson’s injuries.
Ortho also contends that plaintiffs other theories — failure to test and a “design defect” claim — are not supported by the evidence. The case was submitted to the jury on the theory of failure to warn. Failure to test was mentioned in the instructions, but was not made a specific basis for recovery of compensatory damages. We will discuss it later in connection with the punitive damages issue. We note, however, that there was evidence on which the jury could have found that Ortho had not fully tested its product in that it had not examined certain renal blood vessels during its animal studies, after renal blood vessel lesions attributable to oral contraceptives had been reported. The design defect claim is based upon the fact that the dangers of HUS, malignant hypertension and acute kidney failure are considerably reduced when a lower dosage is administered, such as that contained in Ortho-Novum 1/50. There was some evidence in the case to support this claim; however, the matter was not submitted to the jury and was not made a basis for recovery of compensatory damages. We find no error.
COMPARATIVE NEGLIGENCE
Ortho next argues that the trial court erred in refusing to submit the issue of comparative fault of the plaintiff and of the plaintiff s physicians, Dr. Hermes and Dr. Wilcox, to the jury. This argument is made in light of K.S.A. 60-258a, which reads in part as follows:
“60-258a. Contributory negligence as bar to recovery in civil actions abolished, when; award of damages based on comparative negligence; imputation of negligence, when; special verdicts and findings; joinder of parties; proportioned liability, (a) The contributoiy negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent’s wrongful death, the negligence of the decedent, if any, shall be imputed to such party.
“(b) Where the comparative negligence of the parties in any such action is an issue, the jury shall return special verdicts, or in the absence of a jury, the court shall make special findings, determining the percentage of negligence attributable to each of the parties, and determining the total amount of damages sustained by each of the claimants, and the entry of judgment shall be made by the court. No general verdict shall be returned by the jury.
“(d) Where the comparative negligence of the parties in any action is an issue and recovery is allowed against more than one party, each such party shall be liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of his or her causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed.”
We have held that the intent and purpose of the legislature in adopting the statute is to impose individual liability for damages based on the proportionate fault of all of the parties to an occurrence which give rise to the injuries and damages, whether or not those persons are joined formally as parties to the action. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). We have also held that a defendant who seeks to reduce his percentage of fault by comparing the fault of another party has the burden of proving the other party’s fault by a preponderance of the evidence. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 667 P.2d 289 (1983). This follows the general rule that the burden of proof is upon the party asserting the affirmative of an issue. See Jensen v. Jensen, 205 Kan. 465, 467, 470 P.2d 829 (1970); Wycoff v. Board of County Commissioners, 191 Kan. 658, 665, 383 P.2d 520 (1963); 31A C J.S., Evidence § 104; 29 Am. Jur. 2d, Evidence § 130.
Ortho, in its answer, alleged that if the plaintiff sustained injury, she was guilty of negligence which contributed directly and proximately as a cause of her injuries, and that she failed to use the product in the manner intended. The answer also alleged that plaintiff s injuries, if any, were caused by the negligence of other parties for whom Ortho is not responsible. Dr. Hermes and Dr. Wilcox, who were plaintiff s gynecologists, were originally joined by the plaintiff as defendants in this action. They remained in the action at the time of the pretrial conference. At that time, the plaintiff enumerated various claims against Ortho, and she enumerated her claims of negligence as to Dr. Hermes and Dr. Wilcox. Ortho’s position was fully set out in the resulting pretrial order, which included Ortho’s claim that:
“Plaintiff’s injuries, if any, were caused by plaintiff’s own causal negligence, or by the causal negligence of other defendants for whom this defendant is not responsible, and said negligence either individually or combined was equal to or greater than any causal negligence of this defendant . . .
Also included in the pretrial order was a specific designation of all of the witnesses, expert and lay, which each of the parties intended to call during the trial of this action, and all of the exhibits each intended to offer. During the pretrial conference, Ortho’s position regarding the actions of Doctors Hermes and Wilcox was clarified as shown by the following excerpt of the transcript of that hearing:
“MR. MICHAUD: .Do you contend, Mr, Wall, any departure from standard approved medical practice on the part of the defendant doctors?
“MR. WALL: No.
“MR. MICHAUD: So, so far as you are concerned, they did nothing wrong in the use of Ortho-Novum in the plaintiff?
“MR. WALL: No.
“MR. MICHAUD: All right, you are not contending in this case that the doctors did anything wrong?
“MR. WALL: No, Gerry.
“MR. MICHAUD: Your Honor, I would ask the Court to require Mr. Wall to state whether or not it is one of their defenses in this case that the doctors did anything wrong insofar as causing plaintiffs injury.
“MR. WALL: Gerry, I don’t plan to bring any experts on that subject and have no reports. Now, if I was going to bring that kind of evidence, I would agree you are entitled to it.
“Now, I don’t agree, though, however, that, if at the completion of Gerry’s lawsuit, all of the evidence points to the doctor and is marginal as to me, that I am precluded from saying under the evidence that it would appear to me that the evidence against the defendant Ortho-Novum is slight or minimal, at least, and it appears that Mr. Michaud has produced a great case against the doctors, and I think based on the evidence you will find for the defendant Ortho-Novum. I am not precluded from that. I don’t think Bud [Mr. H. W. Fanning, who then represented Dr. Hermes and Dr. Wilcox] can be precluded at the completion of saying the same thing.
“THE COURT: I understand what you are saying is you don’t intend to offer any evidence that the doctors did anything wrong.
“MR. WALL: That’s exactly right.”
After the pretrial conference, and shortly prior to trial, plaintiff settled with Dr. Hermes and Dr. Wilcox, with the result that there remained no claims against the two treating physicians at the time of trial. After settlement, both doctors made motions for summary judgment which were sustained by the trial court. We do not deem it important to this discussion to deal with the mechanics by which the physicians were removed from the case; a simple dismissal of plaintiff s claims, with prejudice, would have accomplished the same result. Ortho objected to the dismissal of the physicians, and at trial sought to have their negligence compared. The trial court said:
“My conclusion is simply that as far as what’s happened, the machinery was there and any time Ortho wanted to put the negligence of the doctors in issue as between Ortho and the doctors, they could have done that. . . . Mr. Michaud’s questions at the Pretrial Conference were nothing less than an invitation to do that. The invitation was declined. . . . All negligence of the doctors has been removed by Mr. Michaud from this action. It’s not in issue. It will not be compared. We are directly at issue with the questions raised by the plaintiff against the defendant Ortho.”
As discussed at length earlier in this opinion, plaintiff s principal claim against Ortho was that it failed to give an adequate warning to her physicians of the possibility that Ortho-Novum 1/80 could cause HUS, malignant hypertension or acute renal failure. It was undisputed that no such warning was specifically given in the literature provided by Ortho to the physicians. Ortho was hardly in a position to come forth with a vigorous assertion that the physicians were negligent in their treatment of the plaintiff since Ortho had not warned the physicians of the risks and had not alerted them. Plaintiff s counsel, at pretrial, was concerned with Ortho’s position, as reflected in the discussion quoted above. If no settlement was effected, plaintiff needed to be prepared to meet any evidence produced by Ortho of the negligence of the treating physicians. Ortho’s position was clearly stated: It made no claim that the physicians departed from approved medical practice, and it intended to offer no evidence that the physicians did anything wrong. If the plaintiff s evidence were to disclose fault on the part of the physicians, Ortho reserved the right to argue that. When the matter went to trial, plaintiff offered no evidence of causal negligence on the part of the physicians, and thus it was not necessary for the trial court to submit that issue to the jury. There was no evidence, expert or otherwise, of actionable, causal negligence on the part of Drs. Hermes and Wilcox. Under the circumstances disclosed by the record and the evidence in this case, we conclude that the trial court did not err in refusing to submit the issue of the comparative negligence of the physicians to the jury.
As to the claimed negligence on the part of the plaintiff, Ortho points only to the evidence that plaintiff did not go to the hospital emergency room on June 25 after she was told by her physician to do so if she did not get better by 6:00 o’clock that evening. Whether she felt better by evening, we do not know. There is no testimony, medical or otherwise, which suggests that this failure to go to the hospital on June 25 caused or contributed to her injuries or that her condition was reversible on June 25. She saw Dr. Wilcox on June 28, and he did not send her to the hospital at that time. There is, however, testimony that diagnosis and treatment several months earlier might have averted the disaster. We find no evidence to support the submission of Mrs. Wooderson’s causal negligence to the jury.
THE PUNITIVE DAMAGE CLAIM
Ortho next claims that the punitive damage claim should not have been submitted to the jury. It contends that the failure to warn of all potential dangers which an inherently dangerous product such as a prescription drug might cause cannot support a punitive damage award. It contends that there was no evidence of a willful or wanton failure to warn of a known or established defect or danger. It contends that in 1976 there was at most a suggestion that oral contraceptives caused HUS and that the existence of this “suggestion” has neither been confirmed nor refuted; therefore, without proof that there is in fact an increased risk, there is no proof that Ortho willfully failed to warn of the risk. Plaintiff contends that punitive damages were proper because Ortho failed to warn of HUS, malignant hypertension, vessel wall damage and acute kidney failure after it knew or should have known of the risks, and — in effect — that Ortho put its own financial interests ahead of its duty to the patients taking its pharmaceuticals. We note that it was not until January, 1977, after plaintiff s kidneys failed, that Ortho first included in its package insert a warning under “adverse reactions reported in users of oral contraceptives,” an association neither confirmed nor refuted, of “impaired renal function.” Even that and later package inserts do not warn of acute renal failure, malignant hypertension, or HUS.
It will be helpful here to review briefly some of the applicable rules governing punitive damages. In Cantrell v. R. D. Werner Co., 226 Kan. 681, 602 P.2d 1326 (1979), we said:
“The Court of Appeals has recently given an expansive discussion of the rules relating to punitive damages in the case of Sanders v. Park Towne, Ltd., 2 Kan. App. 2d 313, 318-19, 578 P.2d 1131, rev. denied 225 Kan. 845 (1978):
‘[P]unitive damages “are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. (Malone v. Murphy, 2 Kan. 250; Albert Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448.) Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. (Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; see, also, Townsend v. Seefeld, 102 Kan. 302, 169 Pac. 1157; 15 Am. Jur., Damages, § 266, p. 700.)” Watkins v. Layton, 182 Kan. 702, 705, 324 P.2d 130 (1956).’ See also Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978); Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 402, 507 P.2d 189 (1973).
“In Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979), this court stated: ‘The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).’ p. 694.” 226 Kan. at 686.
In Restatement (Second) of Torts § 908 (1977), we find the following:
“(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
“(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.”
And see also Binyon v. Nesseth, 231 Kan. 381, 386, 646 P.2d 1043 (1982), affirming the Court of Appeals opinion in the same case, 7 Kan. App. 2d 110, 638 P.2d 946 (1981); Kearney v. Kansas Public Service Co., 233 Kan. 492, 503, 665 P.2d 757 (1983); Ettus v. Orkin Exterminating Co., 233 Kan. 555, 567-68, 665 P.2d 730 (1983); Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 989, 666 P.2d 711 (1983); Newton v. Hornblower, Inc., 224 Kan. 506, 524-25, 582 P.2d 1136 (1978).
The issue before us on this point is whether, viewed in the light most favorable to the plaintiff, there is evidence from which a jury could have found the defendant to be grossly negligent or recklessly indifferent to the rights of others.
Ortho is the manufacturer of a dangerous prescription drug, Ortho-Novum 1/80. Therefore, Ortho is under a duty to make known to the medical profession, or at least those physicians who are prescribing that drug, any of the dangerous side effects of which it knows or has reason to know. As the Oregon court observed in McEwen v. Ortho Pharmaceutical, 270 Or. 375, 528 P.2d 522 (1974):
“[T]he drug manufacturer is treated as an expert in its particular field, and is under a ‘continuous duty *** to keep abreast of scientific developments touching upon the manufacturer’s product and to notify the medical profession of any additional side effects discovered from its use.’ [Citations omitted.] The drug manufacturer’s duty to warn is, therefore, commensurate not only with its actual knowledge gained from research and adverse reaction reports but also with its constructive knowledge as measured by scientific literature and other available means of communication.” 270 Or. at 386.
The scientific evidence presented by the plaintiff disclosed that there were twenty-one reported cases of women on oral contraceptives having HUS before the plaintiff presented that syndrome. At the time of trial there were some thirty-nine patient cases reported wherein oral contraceptives were associated with HUS. Nevertheless, there had never been a warning of any possible association between the use of Ortho-Novum 1/80 and HUS, malignant hypertension, vessel wall damage or acute renal failure contained within defendant’s package inserts or within its PDR insertion. Even before plaintiff s renal failure, there were many articles in scientific journals linking oral contraceptives with these extremely serious conditions. As the Ohio Supreme Court noted in Seley v. G. D. Searle & Co., 67 Ohio St. 2d 192, 423 N.E.2d 831 (1981):
“[W]here scientific or medical evidence exists tending to show that a certain danger is associated with use of the drug, the manufacturer may not ignore or discount that information in drafting its warning solely because it finds it to be unconvincing.” 67 Ohio St. 2d at 198. (Emphasis supplied.)
We agree, and we also think that the duty of the manufacturer must be commensurate with the seriousness of the danger. The greater the danger, the greater the duty.
One of the many documents in evidence is a “Dear Doctor” letter, sent nationally to all physicians by the acting commissioner of the Food and Drug Administration on January 12, 1970. The letter reads in part:
“I am enclosing revised labeling for oral contraceptives to reflect the latest findings on safety and efficacy as reported by the Obstetrics and Gynecology Advisory Committee in August 1969. An American study confirms previously reported studies in Great Britain which show a relationship between the use of oral contraceptives and the occurrence of certain thromboembolic diseases. These carefully designed retrospective studies show that users of oral contraceptives are more likely to have thrombophlebitis and pulmonary embolism than non-users. Studies in Great Britain also show increased risk of cerebral thrombosis and embolism in users of oral contraceptives. A British study found a hospitalization rate (an index or morbidity) in women age 20-44 to be 47 per 100,000 in users compared to five per 100,000 in non-users.
“The American study, although not designed to evaluate differences between products, also suggests there may be an increased risk of thromboembolic disease in users of sequential products. This difference in risk cannot be quantitated, and further studies are needed to confirm the observation.
“The British Committee on Safety of Drugs recently advised practitioners in that country that only products containing 0.05 mg. or less of estrogen should normally be prescribed because reports of suspected adverse reactions indicated there is a higher incidence of thromboembolic disorders with products containing 0.075 mg. or more of estrogen than with products containing the smaller dose. This finding has not been confirmed by other studies.
“I also request your assistance in continuing our assessment of the safety of oral contraceptives. Your reports of adverse reactions will help us to do this.” (Emphasis supplied.)
Ortho-Novum 1/80 contains 80 micrograms (gammas) of estrogen, while Ortho-Novum 1/50 contains 50 micrograms of estrogen. On April 10, 1970, Ortho sent a Sales Bulletin on the subject of Ortho-Novum labeling changes to its “detail men,” sales representatives of the manufacturer who call directly upon physicians. That bulletin quoted extensively from the first paragraph of the acting commissioner’s letter, but made no mention of the third paragraph concerning the British Committee’s advice to physicians in England. On May 15, 1970, Ortho sent out another Sales Bulletin, this one on the subject of The Report of the British Committee on the Safety of Drugs. This bulletin did not quote the third paragraph of the acting commissioner’s letter, but was obviously written in response thereto. It indicated that Ortho’s own analysis of the British data indicates that there is no statistically significant difference between 50, 75/80 and 100 micrograms of mestranol. It stated that products containing 75/80 gammas of mestranol show a risk as low if not lower than 50 gamma products. It urged the continued sale of its 80 gamma product, and cautioned its sales people not to be “stampeded” with the number 50. A July 6, 1970, Sales Bulletin continued to urge sale of Ortho-Novum 1/80, and urged concentration on Ortho-Novum 1/50 only if the physician “is very concerned with using lowest estrogen activity.” For physicians who asked about switching patients to lower estrogen level products, the bulletin suggested the detail men respond:
“Doctor, nothing in this British data offers enough sound evidence to cause you to switch patients who are on 100 gamma of mestranol. We have been saying for years and continue to say that it makes sense to use the least activity of any drug that will effectively accomplish its purpose; therefore, you may wish to move patients to low activity products such as ORTHO-NOVUM 1/80 or ORTHO-NOVUM 1/50.”
In short, this evidence indicated that Ortho played down the British report and continued to urge sale of its higher estrogen product until Ortho itself could be entirely satisified that the product was causing damage. Apparently its competitive position in the market was better served by continuing the manufacture and sale of its 1/80 product, since other manufacturers were also producing the 1/50 dosage.
Another area which plaintiff emphasizes is that of the “Ireytype” lesions. Dr. Nelson S. Irey, of the Armed Forces Institute of Pathology, issued a report in 1969, and published it in a pathology journal in 1970. The blood vessels of some forty women had been examined posthumously. Lesions were found in the inner wall or intima of the blood vessels of every one of the bodies of those women who were known to have been taking oral contraceptives; no such changes were found in the bodies of those who had not been taking oral contraceptives. In spite of this report linking oral contraceptives to vessel wall damage, Ortho did no further animal research to prove or disprove the. proposition put forth by Irey: that oral contraceptives cause vessel wall damage. The pathologist who examined plaintiff s kidney tissue found lesions to the intima or inner lining of the blood vessels in her kidneys remarkably similar to those lesions reported by Dr. Irey in his 1969 study.
We conclude that there was scientific and medical. evidence tending to show that vessel wall damage, acute renal failure, malignant hypertension and HUS were extremely serious dangers which were associated with Ortho’s product; that Ortho chose to ignore the accumulating medical and scientific evidence; that Ortho did not pursue the additional research which the data suggested; and that Ortho continued to urge the use of its higher estrogen preparations, played down the danger of those products, and gave physicians no warning of the dangers involved. From this evidence, the jury could have found that Ortho was grossly negligent and recklessly indifferent to the rights of others, including this plaintiff. The trial court did not err in submitting the issue of punitive damages to the jury.
Ortho argues that the mere submission of the punitive damage claim was so inflammatory and prejudicial that it requires that a new trial be granted on liability for compensatory damages. We have reviewed the court’s instructions, the arguments of counsel and the court’s ruling thereon, and find no error.
Ortho claims that the punitive damage award was so large as to shock the conscience. An award of $2,750,000 is, of course, enormous. The verdict of $2,000,000 for actual damages was also enormous. As we noted earlier in this opinion, Ortho does not challenge the award of actual damages; it does not argue that the $2,000,000 awarded as compensatory damages is excessive, or that the amount of that award is not supported hy the evidence. The actual out-of-pocket medical expenses of the plaintiff were enormous; her injuries were enormous; and her injuries are continuing and permanent. The punitive damage award must be viewed in light of the actual damages sustained, the actual damage award, the circumstances of the case, the evidence presented, the relative positions of the plaintiff and the defendant, and the defendant’s financial worth. Upon a review of this record, we cannot find that an award of less than one and one-half times the actual damages as punitive damages is excessive.
Ortho also contends that the admission of evidence of its size and profits was error. We need not discuss this at length, however, for it is the rule in this state that the defendant’s financial circumstances are relevant to the issue of punitive damages. See Ettus v. Orkin Exterminating Co., 233 Kan. 555, Syl. ¶ 7. The trial court did not err in admitting this evidence.
MITIGATING CIRCUMSTANCES and SUBSEQUENT REMEDIAL CONDUCT
Ortho argues that the trial court erred in refusing to permit Ortho to present evidence of “mitigating circumstances,” and that the trial court erred in admitting evidence of “subsequent remedial conduct.” We have reviewed the evidence targeted in these arguments and find no error. Ortho wished to introduce evidence of the benefits of oral contraceptives with regard to safety and effectiveness. There was much evidence in the record of the almost universal use of oral contraceptives, and no modern jury could be unaware of the widespread use and effectiveness and of the usual safety of oral contraceptives. The particular evidence Ortho wished to introduce, however, was not evidence of “mitigating circumstances.” That the product is widely used, ordinarily safe, and ordinarily effective, does not excuse the manufacturer’s failure to warn of dangerous side effects of which the manufacturer knows or has reason to know. Evidence of widespread and beneficial use, and of usual safety and effectiveness, is not evidence of “mitigating circumstances,” and the trial court did not err in excluding it.
The evidence of “subsequent remedial conduct” was not such as to come within that description. It was evidence of contacts between Ortho’s Director of Medical Services and Dr. Diederich, following plaintiff s bout with HUS. Much of the discussions about which Ortho complains took place out of the hearing of the jury. The evidence admitted was offered only to show Ortho’s continuing course of conduct — receipt of information linking high estrogen oral contraceptives with HUS, vessel wall damage, loss of kidneys, acute hypertension — and a continuing failure of Ortho to include warnings of these dangers to prescribing physicians or users of the products. We find no error in the admission of this evidence.
Finally, Ortho argues error in the admission or rejection of certain documentary evidence. This was a lengthy trial, carefully tried by able and experienced counsel. We have carefully examined the record and find no prejudicial or reversible error. The judgment is affirmed. | [
-15,
-19,
-80,
-83,
8,
-32,
56,
50,
114,
-89,
-75,
115,
-83,
-5,
-124,
121,
23,
109,
-60,
-23,
-47,
-77,
23,
-56,
-42,
119,
-13,
-45,
-77,
95,
-28,
-44,
76,
48,
-126,
21,
-62,
-118,
-63,
92,
-50,
22,
-119,
-7,
88,
-62,
48,
58,
-48,
71,
49,
-114,
-45,
-84,
-106,
-49,
41,
40,
75,
-67,
-120,
-80,
-117,
21,
109,
22,
-79,
-122,
-100,
-19,
-40,
6,
-104,
-79,
0,
-4,
59,
-74,
-62,
52,
106,
-71,
4,
100,
98,
33,
29,
-19,
56,
-116,
15,
95,
13,
-123,
-70,
8,
96,
15,
-65,
-75,
116,
94,
-125,
88,
123,
-51,
15,
60,
3,
-54,
-44,
-79,
-121,
-30,
24,
4,
-17,
3,
17,
85,
-57,
-74,
84,
85,
58,
59,
90,
-74
] |
The opinion of the court was delivered by
Pracer, J.:
This is a criminal action in which the defendants, Timothy Ray Howard and Rosemarie Howard, were charged with possession of cocaine (K.S.A. 65-4127a) and conspiracy to sell marijuana (K.S.A. 21-3302 and K.S.A. 1982 Supp. 65-4127b). The State has taken an interlocutory appeal, pursuant to K.S.A. 22-3603, from an order of the district court suppressing certain taped conversations and other evidence obtained by the police authorities following a search of the defendants’ house in Hutchinson. The district court held that the interception of defendants’ cordless telephone conversations and the tape recording thereof were in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 which may be found at 18 U.S.C.A. § 2510 et seq.
For purposes of this appeal, the facts are undisputed and were found by the trial court to be as follows: A neighbor of defendants, referred to in the record as a confidential informant, was operating his AM/FM radio and, in the process of turning the tuning dial, suddenly began to hear conversations over the radio. He determined that the voices were those of the defendants who were conversing with others through use of a cordless telephone. The radio receiver in question was a standard make and model and had not been modified in any manner to monitor or intercept defendants’ conversations. The radio was located at all times within the physical confines of the informant’s residence without the knowledge of and without direction from law enforcement officers. The informant tape recorded one or more of these conversations. He then provided information about the conversations to law enforcement officers who directed the information to Floyd Bradley, a Kansas Bureau of Investigation (KBI) agent. The conversations were of interest to the KBI, because they involved narcotic drugs. Bradley provided the informant with a tape recorder and a number of blank tapes, requesting the informant to record any further conversations heard over the radio and to record the time of the conversations. Law enforcement officers then obtained court authorization to install a pen register on defendants’ telephone. A pen register is a mechanical device which records only the numbers dialed on a telephone by monitoring the electrical impulses caused by use of the telephone’s dial or push buttons, but which does not overhear oral communications or indicate whether calls are actually completed. The records maintained by the informant as to the times of recorded conversations corresponded with the records maintained by the pen register. All calls recorded by the informant originated in the home of the defendants. The parties stipulated that the recordings made by the confidential informant were not obtained with the consent of either defendant or the consent of other parties to the conversations. The law enforcement authorities did not obtain an order from a court authorizing them to monitor or record the conversations originating from defendants’ residence.
The informant recorded conversations of defendants from July 13, 1982, until August 21, 1982. Based primarily upon the information received from the tape recordings, a search warrant was obtained to search defendants’ residence for the cordless telephone in question as well as items of contraband. This search warrant was also based in part upon recordings of the pen register mentioned above and personal observations of the movements of the defendants. Agent Bradley testified that he would not have attempted to obtain a search warrant based solely upon the first tape recordings prepared by the confidential informant which were obtained without the police officers’ knowledge or involvement. The search warrant was executed, and the search disclosed a cordless telephone and certain narcotic drugs which were seized by law enforcement personnel within the defendants’ residence.
At the hearing on the motion to suppress, James Hutchison, an employee of Carden’s Radio Shack in Hutchinson, testified as to the nature and operational dynamics of the cordless telephone. The cordless telephone was manufactured by the Radio Shack Corporation. It works much like a CB radio. It consists of a base unit and a mobile unit. The base unit is physically attached to two separate wires, one of which is the land based telephone line and the second of which is an AC power source. The mobile unit is a self-contained unit with its own batteries which are recharged when the mobile unit is physically rested upon the base unit. No cord or line or physical connection of any kind exists between the mobile unit and the base unit. The mobile unit is much like a conventional telephone and one can both hear from and speak into the mobile unit. Communication between the base unit and the mobile unit takes place through the reception and transmission of FM radio signals by both the base and mobile units.
At the hearing, defendants introduced into evidence the owner’s manual for the cordless telephone. Hutchison testified that an average customer would be able to determine from the manual that the device in question was a radio transmitter and receiver. He based this conclusion upon the information contained in the manual. The manual sets forth the transmitted frequencies and the received frequencies of both the base unit and the portable handset. The manual differentiates between the telephone and radio aspects of the cordless telephone by separating the telephone specifications from the radio transmission and reception specifications. Reference is made to the “antenna” of the mobile unit. The mobile and base unit communicate with each other by means of FM radio signals. The FM signal utilized by both the mobile and base units is the same as any other FM signal and is not specialized in any way. The FM signal utilized is of the same or similar frequency utilized by commercial FM radio stations. A standard FM radio would be able to pick up the radio transmissions from both the mobile and base units of the cordless telephone.
The FM signal transmitted from either the base or mobile unit is nondirectional and will reach out in all directions simultaneously. The FM signal transmitted will penetrate and pass through almost any material, including a normal concrete or wooden wall. The effective rated range of communication between a mobile and base unit is approximately 50 feet, but this range varies with the physical surroundings in which the particular cordless telephone is situated. The range varies with the physical surroundings, weather conditions, the sensitivity of the receiver, and the power output of the transmitter. The manual states that, although the cordless telephone is designed for a normal range of 50 feet, the range can vary from anywhere between 30 feet to 100 feet depending upon the particular surroundings.
The manual states that “walkie-talkies” can share the same frequencies of the cordless telephone which can produce some interference. If two cordless telephones were hooked to separate lines and were physically close enough, calling one telephone would cause the second telephone to ring and both telephones would be privy to the same conversation. The only way to correct this situation would be to return the cordless telephone to its place of manufacture for frequency modifications. The cordless telephone in question is required to pass Federal Communications Commission regulations which are limited to compliance with production specifications and not transmission capabilities. One is not required to have a license to operate either the base or the mobile unit because the power of each unit is less than one watt. Hutchison testified that the hand-held mobile unit contains a “confidential” button. When that button is depressed, a person holding the telephone could talk to others in the immediate vicinity without having his voice broadcast over the hand-held unit. This would also allow the operator of the hand-held unit to hear incoming transmissions but not to broadcast from the unit.
The trial court adopted the above facts with additional findings that the conversations taped initially by the neighbor, which were delivered to agent Bradley, would not have been sufficient for the issuance of a search warrant in the case, and that all recorded conversations of the defendants took place while the defendants were in their private residence and talking on the cordless telephone installed in that residence. The trial court, in suppressing the evidence, held that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 controlled the result in this case and that the provisions of the act were violated so as to require suppression of the evidence. The parties to the appeal are in agreement that Title III is controlling and that its provisions must be applied in this case.
At the outset, it would be helpful to briefly summarize the provisions of Title III which may be found at 18 U.S.C.A. § 2510 et seq. The Kansas statutes, K.S.A. 22-2514 et seq., covering eavesdropping and wiretapping, have incorporated specifically and comply with the provisions of Title III. 18 U.S.C.A. § 2510 is the definition section and defines the key terms. It provides in part as follows:
Ҥ 2510. Definitions
“As used in this chapter —
“(1) ‘wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications;
“(2) ‘oral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation;
“(4) ‘intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.
“(5) ‘electronic, mechanical, or other device’ means any device or apparatus which can. be used to intercept a wire or oral communication other than —
“(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (ii) being used by. a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;
“(b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal;
“(11) ‘aggrieved person’ means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.”
Section 2511 prohibits the unlawful interception or disclosure of wire or oral communications and provides a penalty of fine or imprisonment for violation of the section. Section 2512 prohibits the manufacture, distribution, possession, and advertising of wire or oral communication intercepting devices. Section 2513 provides for the confiscation of wire or oral communication intercepting devices. Section 2515 prohibits the use of evidence of intercepted wire or oral communications in the following language;
“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”
Sections 2516 through 2519 provide a procedure for the obtaining of judicial authority for the interception of wire or oral communications, for the disclosure and use of such communications, and for the making of reports concerning such communications. Section 2520 provides that any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action and may recover damages against any person who violates the provisions of the act. It should also be noted that specific exceptions are set forth throughout the definitional section, 18 U.S.C.A. § 2510, and throughout the balance of Title III which provide that certain types of interceptions will not be deemed unlawful. In cases where the issue of the application of Title III is involved, the standard procedure is for the court to first proceed to examine the facts in light of the definitions found at 18 U.S.C.A. § 2510. Once this examination has been made, the court then determines whether or not an improper form of interception has taken place.
There are a number of cases which discuss the purpose of Title III and the ends which Congress sought to achieve thereby. In United States v. Carroll, 332 F. Supp. 1299 (D.C. Cir. 1971), it is stated that Title III was intended to deal with increasing threats to privacy resulting from the growing use of sophisticated electronic devices and the inadequacy of the limited prohibitions contained in the early communications act, 47 U.S.C. § 605. In United States v. Cianfrani, 573 F.2d 835, 855 (3rd Cir. 1978), it is stated that Title III has a twofold purpose: (1) to protect the privacy of oral and wire communications, and (2) to provide on a uniform basis the circumstances and conditions for the interception of such communications. It has been said that the statute is deemed to be the legislative enactment of the Fourth Amendment exclusionary rule and its purpose is to deter the invasion of an individual’s privacy through the misconduct of officials by denying the fruits of their transgressions. In Re Proceedings to Enforce Grand Jury Subpoenas, 430 F. Supp. 1071 (E.D. Pa. 1977).
The provisions of Title III have been applied in cases involving a wide variety of factual circumstances. The problem presented in the case now before us is to apply Title III to a case involving a cordless telephone. The courts which have dealt with this specific problem have not been in agreement and have arrived at contrary conclusions. In United States v. Hoffa, 436 F.2d 1243 (7th Cir. 1970), cert. denied 400 U.S. 1000 (1971), FBI agents overheard calls made by defendant Hoffa placed from mobile telephone units located in automobiles owned by the union. They were monitored at the Detroit FBI office by means of ordinary commercial-type FM radio receivers. The court held that defendant had no expectation of privacy protected by the Fourth Amendment as to calls which originated from the mobile telephone in the automobile where the calls were exposed to everyone in that area who possessed an FM radio receiver or another automobile telephone tuned in to the same channel. The court cited Alderman v. United States, 394 U.S. 165, 22 L.Ed.2d 176, 89 S.Ct. 961 (1969); and Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967).
The issue arose again and was determined in a contrary manner in United States v. Hall, 488 F.2d 193 (9th Cir. 1973). There defendant Hall and others were charged with possession of marijuana with intent to distribute. Hall had radio-telephones installed in two automobiles. In early April 1971, a Tucson housewife, who listened to her radio while doing housework, intercepted the appellants’ conversations on her radio, which was not unique. After eavesdropping for less than a month, she reported what she considered to be suspicious conversations to the Arizona Department of Public Safety. She continued to monitor the conversations and made reports to the department until May 21, 1971, when the department began its surveillance. For five weeks thereafter, the Arizona Department of Public Safety conducted warrantless electronic surveillance of the appellants’ conversations which led to their arrests. The Court of Appeals held that Title III was the controlling statute in the case. It stated that if the interception in question fell within the parameters of Title III, the warrantless surveillance must be suppressed. The court stated that the threshold question was whether these radio-telephone conversations constituted an “oral communication” or a “wiré communication.” The answer was critical because the definition of oral communication includes the expectation of privacy language derived from Katz v. United States. In order for an oral communication to be protected by the Act, the speaker must have “an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 U.S.C.A. § 2510(2).
The court noted that a “wire communication” has no such restriction in its definition. It is defined in 18 U.S.C.A. § 2510(1) as “any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.” The reason for the differentiation between a wire communication and an oral communication was stated in the following language:
“Obviously, there is a reason for the more restrictive definition of oral communications. When a person talks by telephone, he can reasonably assume privacy. That assumption may often be invalid for non-wire communications. Therefore, it is incumbent upon the participants in an oral communication to make a reasonable estimate of the privacy afforded them by their particular circumstances.
“The definition of wire communication is not free from ambiguity. ‘[C]ommunication made in whole or in part . . . through the use of facilities ... by the aid of wire . . . between the point of origin and the point of reception . . . .’ could be interpreted in several ways. For example it could be argued that if any wire is used to aid the communication, it must be deemed a wire communication. If these were followed to its conclusion, the use of a radio would be included in the definition because some wires are contained in the radio transmitter and receiver — thus communication would be aided ‘in part’ by the use of wire. However, such an interpretation would be inconsistent with the language of the immediately succeeding section which permits an agent of the FCC, in certain circumstances, ‘to intercept a wire communication, or oral communication transmitted by radio . . . .’18 U.S.C. § 2511(2)(b).
“Broadcasting communications into the air by radio waves is more analogous to carrying on an oral communication in a loud voice or with a megaphone than it is to the privacy afforded by a wire. As with any broadcast into the air, the invitation to listen is afforded to all those who can hear. In the instant case, the eavesdroppers merely tuned their radio receivers to the proper station. It is obvious that conversations initiated from a radio-telephone more logically fall within the category of ‘oral communication.’
“By reading the sections together, we can only conclude that the Congress did not mean that every conversation aided in any part by any wire would be a wire communication. As a radio broadcast must be deemed an oral conversation, we believe it would strain the legislative intent to hold that conversations emanating from a radio telephone would not be treated similarly.” pp. 196-97.
The court in Hall thus reasoned that conversations emanating from a radio-telephone should logically be treated in the same way as an oral communication.
The court then noted some of the conversations were between two radio-telephones while others were between a radio-telephone and a regular land-line telephone. It stated that while the former are within the definition of oral communications, the use of a land-line telephone at one end of the conversation raises a serious question as to the defined category in which such a communication belongs. The court stated that while logic may dictate the same rule should apply when a conversation crosses the airways but initiates or terminates on a land line, it was not free to reach that result if the legislative intent is to the contrary. In view of the definition of “wire communication” in 18 U.S.C.A. § 2510(1), which was an indication of Congressional intent, it was forced to conclude that, “when part of a communication is carried to or from a land-line telephone, the entire conversation is a wire communication and a search warrant is required.” p. 197.
The court then proceeded to criticize its final conclusion, stating that it realized that its classification of a conversation between a mobile and land-line telephone as a wire communication produced what is considered to be an absurd result. It noted that these conversations were intercepted by an ordinary radio receiver and not by a phone tap. Logically, they should be afforded no more protection than those occurring between two radio transceivers. They should be oral communications. However, Congress’s definition of a wire communication necessitated the conclusion that the communications were wire communications. The court also observed that there was nothing in the legislative history of Title III to indicate how Congress intended to treat a radio-telephone conversation. It concluded that, in the absence of such an indication, if a conversation involves a land-line telephone, it is a wire communication. It suggested that if any changes were to be made in the law, it was up to Congress. The court held, however, that conversations not involving a land-line telephone, were oral communications, not “wire communications.” Because such oral conversations lacked the requisite expectation of privacy, prior authority to intercept was not required by the statute as to those conversations.
Several years after the decision in United States v. Hall, the Supreme Court of Florida had before it a case involving a telephone beeper communication. In Dorsey v. State, 402 So. 2d 1178 (Fla. 1981), the defendant’s arrest stemmed from an investigation by the St. Petersburg police department into the operation of a narcotics ring headed by one John Bailey. The investigation began with the use of a paid informant, whose information prompted the police to monitor, by means of a radio scanner, messages received by Bailey and others on a “pocket pager” or “beeper” rented by Bailey. The beeper was a type of pocket pager which a person carries on his person and through which he may receive messages. This is accomplished when another person dials the telephone number of the company that distributes the beepers. The calling party hears a tone and thereafter has ten seconds in which to announce his message. This message is then converted into radio waves and transmitted to the party with the beeper and to any member of the public who has a radio tuned to this frequency. The receiving party can only listen to the message, since the beeper is a receiver and not a transmitter. A “bearcat scanner,” capable of receiving any programmed frequency, was used by the police to intercept these beeper messages. The defendants contended that a court order was necessary to legally intercept these communications under the Florida statutes which corresponded in relevant parts with those set forth in Title III. Since a court order was not obtained, the defendants contended that there was a wiretap and that all evidence acquired therefrom was also illegal and must be suppressed.
The Florida court recognized, but rejected, the decision in United States v. Hall. The court followed a well-settled rule in Florida that statutes must be construed so as to avoid absurd results. It then construed the Florida statute to avoid reaching a result that would require police officials to obtain a warrant or a court order to listen to the open and available airways. The court stated that the definition of “wire communications” must be interpreted in a common sense and reasonable manner. It held that the prohibition of interception of wire communications “made in whole or in part through the use of facilities for the transmission or communications by the aid of wire” applied only to so much of the communication as is actually transmitted by wire and not broadcast in a manner available to the public. It noted that, just as it would be absurd to include within the definition of “wire communication” a message broadcast over a public address system for everyone to hear, even though the communication is aided by certain wires, it would be equally absurd and asinine to include within that definition television or radio signals broadcast with no reasonable expectation of privacy and openly available for anyone with the proper receiving equipment to hear. The court emphasized the broadcast nature of such messages, and that one who sends beeper messages should know that such communications are open to any members of the public who wish to take the simple step of listening to them. Such signals thus lack any expectation of privacy. They are, by the very nature of being broadcast, communications unprotected by any constitutional right or by the Florida wiretap statute and are thus admissible into evidence.
When we turn to the factual circumstances in the present case as set forth above, it is clear that there was an interception of a communication. The crucial issue we must decide is whether the communications intercepted were “wire communications” or “oral communication” as defined in 18 U.S.C.A. § 2510. If the intercepted conversations were “wire communications,” then the district court was correct in suppressing the evidence, because no prior court authorization was obtained. If the conversations intercepted were “oral communications,” then we must determine whether the defendants had a reasonable expectation of privacy under the circumstances.
From our study of the cases and the legislative history of Title III, we have concluded that the conversations in this case which were intercepted between the mobile unit and the base unit of the cordless telephone were not “wire communications” but fall into the category of “oral communications.” In our judgment, United States v. Hall not only arrived at an absurd result but misconstrued the Congressional intent. In construing a statute, the fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. Farm & City Ins. Co. v. American Standard Ins. Co., 220 Kan. 325, Syl. ¶ 3, 552 P.2d 1363 (1976). In determining legislative intent, courts are not limited to a mere consideration of the language used, but 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. Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 (1978). In order to ascertain the legislative intent, courts are not permitted to consider only an isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. Another principle of statutory construction well recognized is that a statute should never be given a construction that leads to uncertainty, injustice, or confusion, if it is possible to construe it otherwise. Coe v. Security National Ins. Co., 228 Kan. 624, 620 P.2d 1108 (1980). Furthermore, courts are not bound to an examination of the statutory language alone, but may properly inquire into the causes which impelled the statute’s adoption, the objectives sought to be attained, the statute’s historical background, and the effect the statute may have under the various constructions suggested. State, ex rel., v. Kalb, 218 Kan. 459, 464, 543 P.2d 872 (1975).
The Supreme Court of the United States has held that a statute should not be given a literal construction, if such construction is contrary to the legislative intent and leads to absurd conclusions. United States v. Bryan, 339 U.S. 323, 94 L.Ed. 884, 70 S.Ct. 724 (1950). The United States Supreme Court, like the courts of Kansas, also follows the rule that penal statutes are to be construed strictly. F.C.C. v. American Broadcasting Co., 347 U.S. 284, 296, 98 L.Ed. 699, 74 S.Ct. 593 (1954). It cannot be denied that 18 U.S.C.A. § 2511, which makes it a crime to intercept or disclose communications in a manner prohibited by the act, is a penal statute. In United States v. Hall, the court recognized this, noting that its holding was ironic, since Title III involves strin.gent civil and criminal penalties for those who violate its provisions. In other words, the court observed, any citizen who listens to a mobile-telephone band does so at his own risk, and scores of mariners who listen to the ship-to-shore frequency, commonly used to call to a land-line telephone, commit criminal acts.
It seems logical to us that cordless telephone conversations, which may be heard by anyone listening on an ordinary radio receiver, should not be included within the definition of a “wire communication” under Title III. The Congressional purpose in enacting Title III has been discussed above. It was intended to incorporate the Fourth Amendment safeguards in the interception to human communications. United States v. Mainello, 345 F. Supp. 863 (E.D. N.Y. 1972). Title III was designed for a dual purpose — to protect the individual’s right of privacy and to provide a uniform and systematic basis for the interception of human communications by the police authorities.
The American Bar Association Standards Relating to Electronic Surveillance § 1.1 declares:
“The objectives of standards relating to the use of electronic surveillance techniques should be the maintenance of privacy and the promotion of justice.”
In the general commentary of the Advisory Committee at pages 21-22 of the Standards, it is stated that privacy and justice must be balanced in this area. The following language is used:
“Mr. Justice Frankfurter once observed of journeys in the law that often 'where one comes out on a case depends on where one goes in.’ so it is in any examination of the many troublesome questions associated with the use of electronic surveillance techniques in the administration of justice and various proposals for reform. All too often discussions of these questions, however, have tended to degenerate into arid debates between contending ideologies. At one extreme, some seem to believe that the social order depends almost exclusively on the penal law, and requires the capture, conviction and punishment of as many culprits as possible. Society’s laws must be vindicated by appropriate expiation or measured deterrence and, if possible, the offender reformed. Privacy may be important, but justice is always paramount. At the other extreme, some seem to think that all criminal law is formalized vengeance, that incarceration is a pointless cruelty without meaning as expiation, deterring or reforming no one, embittering its victims more than it protects society, and inflicting less pain on the guilty than on innocent dependents. Justice is of little importance, while privacy is always paramount. Between these untenable extremes, there is, of course, a middle way. ‘The adjustment between the rights of the individual and the rights of the community must depend upon the needs and conditions which exist at any given moment . . . .’ A system of penal law must maintain, the Advisory Committee believes, both privacy and justice. Neither value can be dogmatically accorded priority. The problem is as the late Judge Learned Hand put it: there is ‘no escape in each situation from balancing the conflicting interests at stake with as detached a temper as we can achieve.”
After approaching the problem in as detached a temper as we can achieve, we have concluded that the term “wire communication,” as defined in 18 U.S.C.A. § 2510(1), should be construed to apply only to that portion of a radio-telephone communication which is actually transmitted by the wire and not broadcast in a manner available to the public. We hold that those portions of the cordless telephone conversations intercepted by an ordinary FM radio in this case did not fall into the category of a “wire communication,” but were in fact oral communications and that the rules pertaining to the interception of oral communications prescribed in Title III are applicable.
In the case before us, it is undisputed that there was an interception of an oral communication transmitted by radio. We hold that these defendants, who as owners of the cordless telephone had been fully advised by the owner’s manual as to the nature of the equipment, had no reasonable expectation of privacy under the circumstances. We wish to emphasize, however, that this case does not involve the rights of a person on the other end of the telephone land-line who was speaking over a standard telephone and who was without knowledge that the defendants were the owners and users of a cordless telephone. In reaching this conclusion, we have followed what we believe to be the Congressional intent in the enactment of Title III — to protect the individual’s rights of privacy and also to provide a uniform and systematic method for the interception of human communications by police officials to protect the public from criminal activities. On the basis of this rationale, we hold that the trial court erred in suppressing the intercepted cordless telephone conversations and the evidence obtained pursuant to the search warrant.
The State in this appeal also presents to the court a question as to the admissibility of the recordings of the pen register which was installed by law enforcement personnel after obtaining court authorization for the installation. This issue was raised but not ruled on by the district court. At the hearing, the only evidence presented on this issue was.that the pen register was installed by .court authority. Under the circumstances, there was no factual basis to challenge the admissibility of the recordings of the pen register. Furthermore, the law is clear that the utilization of a pen register does not violate the provisions of Title III. See United States v. New York Telephone Co., 434 U.S. 159, 54 L.Ed.2d 376, 98 S.Ct. 364 (1977), where it was held that Title III does not govern the authorization by a federal district court for the installation and use of a pen register by federal law enforcement officers.
For the reasons set forth above, the case is reversed and remanded to the district court for trial or further proceedings. | [
-47,
-18,
-19,
-98,
10,
-32,
46,
-76,
65,
-25,
118,
83,
109,
98,
5,
123,
27,
21,
80,
105,
-63,
-74,
71,
-62,
-122,
-13,
120,
-41,
-65,
91,
-68,
-42,
73,
48,
-54,
117,
102,
72,
-91,
92,
-114,
7,
-119,
-48,
83,
2,
36,
43,
30,
15,
49,
15,
-9,
104,
20,
-54,
9,
28,
-117,
-20,
-7,
-47,
-69,
-107,
-39,
18,
-93,
36,
-72,
5,
-8,
63,
-104,
49,
0,
40,
-13,
-90,
-126,
116,
79,
-119,
4,
102,
98,
32,
-27,
-21,
-84,
-120,
46,
-78,
-99,
39,
-104,
73,
96,
-115,
-98,
-99,
36,
16,
11,
-12,
107,
6,
23,
124,
-127,
-49,
-108,
-109,
13,
114,
-98,
91,
-21,
39,
80,
113,
-63,
-30,
92,
82,
50,
27,
-50,
-12
] |
Whereas, on the 8th day of February, 1984, Charles A. Chartier was indefinitely suspended from the practice of law in the State of Kansas [see State v. Chartier, 234 Kan. 830, 676 P.2d 738 (1984), and State v. Chartier, 234 Kan. 834, 676 P.2d 740 (1984)], and
Whereas, additional disciplinary proceedings are pending before this Court and before the Board for Discipline of Attorneys, and
Whereas, on the 22nd day of March, 1984, Charles A. Chartier, pursuant to Supreme Court Rule 217, 232 Kan. clxx, voluntarily surrendered his license and privilege to practice law in the State of Kansas;
Now, Therefore, It is Ordered that Charles A. Chartier be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike his name from the roll of attorneys admitted to practice law in Kansas.
It is Further Ordered that Charles A. Chartier shall forthwith deliver to the Clerk of the Appellate Courts his certificate of admission to practice law issued by this Court.
It is Further Ordered that this order shall be published in the official Kansas Reports.
Effective this 26th day of March, 1984. | [
-80,
-21,
-100,
92,
11,
64,
50,
-98,
89,
-29,
37,
81,
-19,
-38,
5,
105,
65,
13,
81,
123,
-123,
-73,
118,
-55,
-122,
-13,
-47,
-35,
-70,
79,
-26,
-3,
90,
-80,
74,
-107,
-122,
-55,
-55,
92,
-106,
0,
-117,
-44,
-38,
-127,
48,
73,
18,
11,
117,
31,
-45,
106,
90,
-49,
-120,
68,
-38,
69,
81,
-111,
-103,
29,
111,
81,
-79,
4,
-100,
5,
88,
47,
-104,
57,
1,
-8,
51,
-94,
6,
114,
7,
-55,
4,
70,
98,
35,
9,
-92,
32,
-24,
46,
-6,
-99,
38,
-111,
92,
97,
-120,
-106,
-41,
125,
22,
35,
124,
97,
5,
21,
44,
10,
-53,
-48,
-93,
75,
127,
-114,
-103,
-5,
-26,
48,
85,
-107,
-12,
122,
-41,
114,
19,
-114,
-27
] |
The opinion of the court was delivered by
Miller, J.:
This is an appeal by plaintiff, Ray E. Powers, from a judgment entered in District Court of Wyandotte County following a month-long jury trial and from the order overruling his motion for a new trial. Plaintiffs extensive personal injury claims arose on July 29, 1975, when a crane on which he was working came into contact with a high voltage power line. He brought this action against Kansas Power & Light company, owner of the power line; Bucyrus-Erie Company, manufacturer of the crane; and Contractors Supply Company, the owner and lessor of the crane. His claims against Kansas Power & Light (KP&L) were based upon negligence, and against Bucyrus-Erie Company (B-E) and Contractors Supply Company (CSC) on both negligence and strict liability in tort. Plaintiffs employer and the lessee of the crane, United Structural Erectors, Inc., (USE) was joined as an additional party defendant, pursuant to K.S.A. 60-258a(d), on motion of the defendants for the purpose of having the percentage of its causal negligence determined. The jury returned a verdict finding the plaintiff to be ten percent and United Structural Erectors ninety percent at fault, and absolved the other defendants of contributing to or causing the injuries and damages. Plaintiff raises a number of issues, which we will separately state and determine later in this opinion.
The accident occurred during the construction of a new high school at Atchison, Kansas. Plaintiff was employed as an oiler for United Structural Erectors, a subcontractor on the job. USE was using a thirty-five ton lattice boom Bucyrus-Erie mobile crane which it was leasing from Contractors Supply Company. At the time of the accident, the crane was equipped with a 100-foot boom to which was attached a 20-foot jib. On the day of the occurrence, plaintiff drove the mobile crane and moved it from one side of the building to another. It was then necessary to level and stabilize the crane in its new location. During this operation, plaintiff stood on the ground and reached up on the crane to operate the controls of the outriggers. The crane operator, Joe Deatherage, moved the boom so that its position was away from the school and unfortunately, in the direction of KP&L’s high voltage power lines. An iron worker, Clyde Farlow, was up on the bed of the crane, checking its position with a carpenter’s level. Plaintiff did not think that his job included looking out for power lines; others testified that this was one of the oiler’s duties. The power lines were approximately 110 feet away and they were in compliance with all of the applicable electrical codes. Plaintiff, Deatherage and Farlow had all seen the power lines, but none of them were looking at or worrying about the high voltage lines.
As the plaintiff and the other two men went about the leveling process, the boom began to descend, coming down over the power lines. A foreman, standing nearby, yelled a warning and the operator attempted to raise the boom, but it was too late. The boom touched or nearly touched the electric line, Plaintiff, standing on the ground and touching the crane, was badly burned when the crane was electrified; neither Deatherage nor Farlow, both of whom were standing atop the crane, was injured. There was nothing mechanically wrong with the crane. It was examined carefully after the accident and no defects were found. USE continued to use the same crane on the same job site for months after the accident occurred,with no mechanical problem. If the crane had been put in neutral by its operator, the boom should not have descended.
There was much testimony about proximity warning devices and insulated links. Proximity warning devices are simply electrical mechanisms which sound an alarm or flash warning lights, or both, when the boom is approaching high voltage lines. An insulated link is designed to isolate the forward part of the hoist line or cable and cut off the flow of electricity should the suspended portion of the line come into contact with electric current. The crane in use at the time of injury was not equipped with either device. Thei'e was conflicting testimony about the effectiveness and desirability of equipping a crane with these safety devices. Additionally, plaintiff claims there were “no printed warning signs of contact with electrical lines” on the crane. This claim is disputed, and defendant presented evidence that there was an electrical warning sign on the cab of the crane.
Other evidence will be discussed as required in connection with the claims of error.
I. Tiie Jury Instructions
Plaintiff first claims that the trial court erred in its instructions to the jury and particularly in regard to instructions Nos. 3, 8 and 9. Before we go into the specific claims of error, we should first note some of the principles which guide us in reviewing claims of instructional error.
K.S.A. 60-251(b) provides:
“(b) When waited. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.”
Where no objection is made to an instruction it becomes the law of the case unless it is clearly erroneous. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 472, 657 P.2d 517 (1983); Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 649, 567 P.2d 856 (1977). An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977).
Error cannot be predicated on the trial court’s refusal to give an instruction when its substance is adequately covered in other instructions. Black v. Don Schmid Motor, Inc., 232 Kan. at 474; Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 614, 549 P.2d 1354 (1976).
Instructions are to be considered together and read as a whole, without isolating any one instruction. If jury instructions properly and fairly state the law as applied to the facts in the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Timsah v. General Motors Corp., 225 Kan. 305, 315, 591 P.2d 154 (1979); Black v. Don Schmid Motor, Inc., 232 Kan. at 474-75.
Instruction No. 3, as given by the trial court, is the “issues” instruction. It follows the familiar format of PIK Civ. 2d 6.01, setting forth the plaintiffs claims, the defendants’ various defenses, and the burden of proof. Plaintiff challenges this instruction and contends that it was wrong in many ways, and that it constitutes prejudicial error.
Plaintiff first contends that Instruction No. 3 did not specifically inform the jury that plaintiff was entitled to recover against Bucyrus-Erie and Contractors Supply under either of two separate and distinct theories, negligence or strict liability. He now claims that the trial court should have included the sentence proposed in the notes to PIK Civ. 2d 6.01:
“ ‘The plaintiff in this case bases his recovery on two different theories, one upon negligence, and the other based upon implied warranty. If you find in the plaintiffs favor on either theory, he may recover in this case.’ ”
Alternatively, plaintiff suggests that the trial court should have included the following statement from PIK Civ. 2d 13.26 (1981 Supp.):
“It is not necessary for the plaintiff to sustain the burden of proof upon each theory of liability upon which he brings his action. If the plaintiff sustains his burden of proof on any one or more of the theories relied upon by him against [the] [a] defendant, that is sufficient to allow you to proceed to the question of comparative fault . . . .”
There are several difficulties with plaintiffs argument. The 1981 PIK supplement from which the last quotation comes was not issued until the month following the date on which the jury returned its verdict in this case and thus Section 13.26 was not available to counsel or the trial court at the time of trial. Further, neither of the now-proposed instructions was requested by the plaintiff, nor was the trial court’s attention called to the notes on use published with PIK Civ. 2d 6.01. In fact, among the plaintiffs requested instructions is proposed instruction No. 13, which the court followed; the trial court instruction No. 3 is taken verbatim from plaintiffs proposed and requested instruction No. 13. Like the instruction given, plaintiffs proposed instruction contains no language explicitly stating that plaintiff need only succeed on one of the two theories relied upon.
As given, instruction No. 3 first lays out the ways that the plaintiff claims Kansas Power & Light was negligent. It then lays out the ways plaintiff claims Bucyrus-Erie was negligent, stating the claims of negligence in the alternative. Next, by separate paragraph, the instruction states that plaintiff also claims that “Bucyrus-Erie Co., manufactured a crane in a defective condition unreasonably dangerous to plaintiff which caused him physical harm.” Thus, the negligence claims against the manufacturer are followed in a separate paragraph by a statement of the strict liability claim. The same format is then followed as to plaintiffs claims against Contractors Supply. Instruction No. 3 is followed by various separate instructions defining negligence as applied to utility companies, manufacturers, distributors, and lessors. These are followed by several separate instructions detailing the duties of manufacturers and of lessors, and fully explaining plaintiff s claims of strict liability in tort. The theory of products liability was clearly distinguished from the negligence theory, and the application of each theory was covered not only in the instructions but by the parties in oral argument. Considered as a whole, the instructions were not misleading; the grounds of negligence were given in alternative form followed by a statement of the claims of strict liability, which appear to be alternatives open to the jury. We conclude that instruction No. 3 was not clearly erroneous upon the ground urged, and that the verdict would not have been different had the court included one or both of the statements now urged.
Plaintiff next complains that instruction No. 3 commingled defenses of strict liability and negligence. There was no specific objection to instruction No. 3 upon this ground; further, with reference to the statement of the defenses, the trial court followed the instruction proposed by the plaintiff. The defenses of negligence on the plaintiffs part were set forth within instruction No. 3 and then, in instruction No. 15, the trial court set forth the separate defenses of Bucyrus-Erie and Contractors Supply to the strict liability claims against them. We find no commingling of inapplicable defenses.
Instruction No. 3 also included a listing of the ways in which KP&L, Bucyrus-Erie and Contractors Supply contend that plaintiffs employer and its crane operator were at fault. The plaintiff claims that no pleadings specifically allege the fault of his employer. This issue was tried by consent without objection. In addition, plaintiff claims that there was no evidence to support allegations of various acts of negligence by his employer, United Structural Erectors, which are listed in instruction No. 3. We have examined the instruction carefully and find that there was evidence to support inclusion of the various items enumerated. For example, plaintiff complains that there was no evidence of any failure to obey the company work rules. The company had printed work rules, but plaintiff was never given a copy and was never given any training. There was evidence of failure to enforce the work rules and failure of the employees to obey them. Again, despite plaintiffs claim to the contrary, there was evidence that the crane operator failed to comply with the crane users’ manual, and there was evidence that he failed to check the crane’s controls to insure that they were in a correct position when he left the operator’s cab shortly before the accident. The various subparts of the instruction listing the claims of negligence as against USE were detailed, but each appears to address a different act of negligence. We do not find them overly repetitious as plaintiff claims. Finally, plaintiff contends that the trial court erred in failing to request proposed instructions from USE. We fail to see how this could have been prejudicial to the plaintiff, and note that this argument was not raised in the trial court. USE certainly had the opportunity to present proposed instructions if it desired to do so.
Next, plaintiff claims that instruction No. 9 is erroneous as a matter of law because the court spelled out three factors to be considered in determining whether the manufacturer exercised proper care in design, including a state of the art defense, and in not restricting this defense to the negligence claims. In substance, plaintiff is contending that the trial court confuses the two theories of strict liability and negligence and defenses thereto in this instruction. We do not so read it. The plaintiff asserted both claims of negligence and products liability against the manufacturer, Bucyrus-Erie. Instruction No. 9 is a negligence instruction. It starts with a statement that negligence is a lack of ordinary care under existing circumstances and ends with a statement that conformity to the practices of other manufacturers in the field is not conclusive of ordinary care. We find no confusion of theories whatever in this instruction. The state of the art language in the instruction deals only with negligence and is clear and unequivocal. Instruction No. 11 deals with the theory of products liability on the part of the manufacturer and discusses it fully; other following instructions set forth the de fenses thereto. The cases cited by plaintiff involve instances in which the plaintiffs claims were based solely upon strict liability in tort, and those cases were not helpful here where both negligence and strict liability were relied upon.
As his final claim of error in the instructions, plaintiff contends that instruction No. 8 was a misstatement of the law concerning the duty of care applicable to Kansas Power & Light. This instruction presents precisely the rules set forth in Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P.2d 702 (1959), as recently restated in Wilson v. Kansas Power & Light Co., 232 Kan. 506, 514-15, 657 P.2d 546 (1983):
“For convenience the applicable rules of law as stated in Henderson v. Kansas Power & Light Co., 184 Kan. 691, are repeated:
‘[A]s a general rule electric companies which erect and maintain such lines are under a duty to exercise the highest degree of care to protect the public from danger.
“ ‘[T]he degree of care required of distributors of electricity is the degree which would be used by prudent men engaged in the industry, under like conditions and commensurate with the dangers involved and the practical operation of the plant, to guard against contingencies which can be reasonably foreseen and anticipated, but such distributors are not liable for occurrences which cannot be reasonably anticipated and are not insurers against accidents and injuries.’ 184 Kan. at 695-96.”
We find no merit in plaintiffs claims of error in the instructions.
II. Excusing United Structural Erectors from Appearance at Trial
On motion of KP&L, United Structural Erectors, plaintiffs employer, was joined in this lawsuit as an additional defendant in order to allow comparison of its fault. Ten days before trial, USE filed a motion asking that it be excused from attendance at trial. We find no objection or response to this motion from plaintiff. When the parties first appeared for trial, counsel for USE appeared and asked to be excused. Plaintiff, who was present, did not object. Under the Workmen’s Compensation Act, USE had no liability to the plaintiff outside of that act, K.S.A. 44-501, and had no interest in the litigation other than its subrogation interest created by K.S.A. 44-504. The trial court sustained the motion and USE did not participate in the trial. A point not raised before or presented to the trial court may not be raised for the first time on appeal. Anderson v. Overland Park Credit Union, 231 Kan. 97, Syl. ¶ 6, 643 P.2d 120 (1982). Additionally, we held in Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), that the fault of an immune party or one who is not or cannot be joined as a party may be considered in determining the relative causal fault under K.S.A. 60-258a. Thus, regardless of whether USE was joined as a party or whether it took an active part in the proceedings, a determination of its causal fault was proper. There is no claim that it did not cooperate. Indeed, we note that a number of its employees were called and appeared as witnesses during trial.
Plaintiff also claims that USE should have been aligned as a plaintiff because of its subrogation interest and because its interest was adverse to those of the defendants. This matter was not raised in the trial court and we find no prejudice or error in the trial court’s adding the employer as an additional party defendant. In support of this claim of error the plaintiff relies upon Baird v. Phillips Petroleum Co., 535 F. Supp. 1371 (D. Kan. 1982). That opinion, however, merely concludes that an injured workman may avoid the automatic assignment provisions of K.S.A. 44-504(c) by pleading his cause of action as one for himself, his employer, and his workmen’s compensation insurer as their interests may appear. The plaintiff here, however, did not bring this action on behalf of himself, his employer, and his workmen’s compensation carrier. Rather, he was content to'bring the action in his individual capacity. The employer was joined as an additional party defendant on motion of KP&L. We find no merit in plaintiffs argument on this issue.
III. Ruling on tiie Motions in Limine
Defendants KP&L and Rucyrus-Erie filed motions in limine asking that all testimony and evidence concerning prior electrical contacts between cranes and electrical lines, and prior claims against the defendants involving such contacts, be excluded from mention and introduction at trial. Plaintiff claims that the trial court made a final ruling on the motions. Contrary to the plaintiffs assertion here, the trial court sustained the motion in limine only as to voir dire and opening statements, reserving his judgment on the use of such evidence at trial until the question arose. During the trial, plaintiff was permitted to and did introduce much evidence that cranes have frequently hit power lines in the past causing death and personal injury, and that such accidents are common, thus establishing foreseeability, knowledge and appreciation of the danger. The trial court refused to let plaintiff introduce evidence as to earlier specific claims and lawsuits against the defendants arising from prior crane-power line accidents. Evidence of prior similar accidents is admissible to prove foreseeability. Pape v. Kansas Power &c Light Co., 231 Kan. 441, 445, 647 P.2d 320 (1982). Evidence of such occurrences, however, must involve substantially the same circumstances as the case at issue. Rexrode v. American Laundry Press Co., 674 F.2d 826 (10th Cir. 1982). We find no showing here that the other instances plaintiff sought to introduce in evidence were factually similar to the case at bar. Furthermore, plaintiff was not prevented from showing the foreseeability of contacts, as well as the defendants’ knowledge and appreciation of the danger. Upon the record before us there could be no question but that KP&L, Bucyrus-Erie and Contractors Supply, as well as the general construction and electrical supply industries, are aware of the dangers of crane-power line contacts; that such contacts are frequent and foreseeable; and that such contacts present a danger to persons involved. The trial court did not err in excluding the proffered evidence.
IV. Limitation on Expert Testimony
Before the commencement of trial, the trial court placed limitations upon the number of experts which each party could call. Plaintiff was limited to six expert witnesses, three against KP&L and three against B-E and CSC. Each of the three defendants was limited to three expert witnesses. At trial, plaintiff called six expert witnesses, three electrical experts and three crane experts. KP&L called only one expert and B-E and CSC called a total of two experts.
Limiting the number of expert witnesses is clearly a matter within the discretion of the trial court. K.S.A. 60-216 reads in part:
“In any action, the court shall on the request of either party, or may in its discretion without such request, direct the attorneys for the parties to appear before it for a conference to consider:
“(5) The limitation of the number of expert witnesses.”
Likewise, Supreme Court Rule No. 140 (230 Kan. Ixxxiv) provides that at the pretrial conference, limitations upon the number of expert and cumulative witnesses for each side will be considered and ruled upon.
Plaintiff acknowledges that the trial judge had discretion to limit the number of expert witnesses, but claims that the court could not limit the scope of their testimony. He contends that the three expert witnesses whom he called against KP&L were not allowed to testify against the other defendants and one of his crane experts was not allowed to testify against KP&L. In effect plaintiff contends that he should have been permitted to use all six witnesses against each defendant.
In State v. Bright, 229 Kan. 185, 191, 623 P.2d 917 (1981), we said:
“As Justice Rousseau Burch observed in State v. Elftman, 116 Kan. 214, 230, 226 Pac. 795 (1924), the authority of a trial court to limit the number of witnesses upon a single issue is undoubted.”
Also, in State v. Churchill, 231 Kan. 408, 413, 646 P.2d 1049 (1982), we said:
“It is well established that the qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court; its rulings upon such testimony will not be disturbed on appeal, unless the appellate court finds an abuse of discretion.”
Also, in Friesen v. Chicago, Rock Island & Pacific Rld., 215 Kan. 316, 524 P.2d 1141 (1974), Syl. ¶ 6 reads as follows:
“Error may not be predicated upon the exclusion of evidence which is merely cumulative and does not add materially to the weight or clarity of that already received.”
There can be no question but that the trial court has wide discretion in limiting the number of expert witnesses. Even with the court’s limitation, plaintiff presented twice the number of experts called by the opposing parties. Plaintiff does not indicate that the additional testimony of his experts would have been other than cumulative. The trial judge wisely chose to prevent the admission of excessive cumulative evidence by limiting the number of experts that could be called as to the liability of the electrical company, and as to the liability of the crane manufacturer and the lessor. We find no abuse of discretion.
Additionally, plaintiff complains that counsel for Bucyrus-Erie impermissibly commented upon plaintiffs failure to put an electrical engineer on the stand to testify that the crane was unreasonably dangerous. We find this point without merit for two reasons. First, plaintiff chose not to call an electrical engineer as against Bucyrus-Erie, but instead called three crane experts. The statement of counsel was true. Second, there was no contemporaneous objection to the argument, nor was this matter presented to the trial court during the motion for new trial, and thus the trial court was without an opportunity to rule upon it. Ordinarily, an issue not raised in the lower courts cannot be raised for the first time on appeal. Boswell, Inc. d/b/a Reno County Adult Care Home v. Harkins, 230 Kan. 610, Syl. ¶ 3, 640 P.2d 1202 (1982).
V. Evidentiary Rulings as to Tests
The trial court permitted the experts on both sides to state the basis of their opinions, including brief descriptions of tests that they had conducted and tests that were conducted by others. He would not permit the experts, however, to give overly detailed accounts of each and every test that the expert witnesses had conducted or knew about.
Plaintiff complains that the trial court refused to permit one of his experts, Ralph E. Armington, to testify about certain tests he had conducted. Plaintiff refers us to page 860 of the trial transcript, and on that page the trial court sustained an objection to the Armington testimony. The objection, however, was based upon lack of foundation for the proposed testimony. An additional objection was lodged because Armington was supposed to testify only against KP&L, and the proposed testimony would have constituted expert testimony against the crane manufacturer and the lessor. The trial court did not specify which objection it sustained. The referenced portion of the transcript discloses no error. Further, from examination of other portions of the transcript, it is apparent that the trial court applied the same rule to all parties. He permitted the expert to establish the basis for the expert’s opinion, but he did not permit the experts to go into specific details of all of the tests which formed the basis for the expert opinion. We find no error.
VI. Limitation on the Deatiierage Testimony
Mr. Deatherage, the crane operator, had been operating a different Bucyrus-Erie crane in 1973 or 1974, when that crane’s boom suddenly went down. He started to testify about that incident. Defense counsel objected and the trial court sustained the objection. Plaintiff then made a proffer, and read from Deatherage’s deposition. The proffered testimony indicated that the air cylinder on that crane was faulty, and that a previous operator had hooked a screen door spring onto it. The spring broke while Deatherage was operating the crane, allowing the boom to come down. There was no evidence in the case at bar that the air cylinder on the crane here involved was faulty, or that it had any mechanical defect. Likewise, no screen door spring had been used as a replacement part on this crane. Under K.S.A. 60-445 a trial judge may exclude evidence when the chance of prejudicing the jury outweighs the probative value of the evidence. The judge is given wide discretion under that statute. See Schaeffer v. Kansas Dept. of Transportation, 227 Kan. 509, 518, 608 P.2d 1309 (1980). Under the circumstances, the trial court’s ruling was reasonable, and there was no abuse of discretion. Plaintiff also complains that Deatherage was not allowed to give an “expert” opinion on why the crane’s boom came down. Although an objection was sustained when the witness was asked his opinion, he was later asked if it was normal in his experience in the operation of a crane for the boom to go down when the controls are placed in neutral. He responded that it was not, if the “dog” engages. He was then asked if he knew anything else other than the dog not engaging which would cause the boom to go down, and he responded that he knew of no other reason. Thus, his opinion, that the only reason that the crane boom could have gone down was a failure of the dog, or pawl, to engage the teeth of the ratchet wheel, was clearly stated in evidence. We conclude that there was no improper limitation placed upon Deatherage’s testimony.
VII. Excluding tiie Videotaped Demonstration
One of plaintiffs witnesses, a mechanical engineer, made a videotape of a proximity warning device in use on a crane. The trial court sustained a motion to exclude the videotape, ruling that the tape depicted a staged demonstration in which the conditions were not sufficiently similar to those at issue to warrant admission, and holding further that the videotape would not add to the jury’s understanding of proximity warning devices. The crane used in making the videotape was much smaller than that involved in the case at bar; it was an Ohio crane, not a Bucyrus-Erie; it had a shorter boom; it was mounted on a railroad car; and it was equipped with a different type of warning device than that which had been introduced into evidence. Furthermore, plaintiff produced in court a proximity warning device, and the jury was permitted to see how the device worked, to hear the noise it makes, and to see the warning lights. The substance of the material included within the videotape was fully presented to the jury at trial. As we noted earlier in this opinion, error may not be predicated upon the exclusion of cumulative evidence.
VIII. Excluding News Reports
At trial, out of the hearing of the jury, counsel for one of the defendants stated that he would object to the mention by plaintiffs witnesses of newspaper accounts of prior unrelated contacts between cranes and power lines. The judge responded that the articles would be improper as they were hearsay. Plaintiff now contends that this was error.
The record contains no offer of proof as to the content of the newspaper articles, and we do not find the articles in the record on appeal. Plaintiff claims that the newspaper articles are admissible under K.S.A. 60-460(cc), the learned treatise exception to the hearsay rule. Plaintiff cites no authority that newspapers are learned treatises on the subject of crane-power line accidents, and we hold that they are not. Plaintiff further claims that the news articles were admissible to show notice, knowledge, and state of mind — in short, to show that the defendants knew of prior contacts between cranes and power lines. As such, the news articles would have been merely cumulative evidence, since there was much evidence in the record showing that the defendants were aware of such accidents, and of the resulting dangers. We find no error.
IX. Judicial Prejudice
Finally, the defendant contends that the trial judge exhibited such a strong preference for the defense that reversible error was committed. In support of this contention, he raises many of the matters we have already ruled upon- — the limitation on expert witnesses, the exclusion of plaintiffs videotape exhibit, and other points. In addition, plaintiff contends that the trial court helped CSC’s lawyer introduce an exhibit by coaching him. The record, however, indicates that the trial court made similar suggestions to both plaintiffs counsel and to defendants’ counsel at various times in order to insure the proper receipt of documentary evidence and to expedite the trial. Further, plaintiff claims he was denied the right of rebuttal, but the record shows that the trial court merely limited the plaintiff’s proffered evidence to the rebutting of defense evidence. The mere fact that the court did not permit the plaintiff to offer on rebuttal cumulative evidence or additional evidence which could have been introduced in the case in chief does not indicate prejudice. As Justice Fromme said in Country Club Home, Inc. v. Harder, 228 Kan. 756, 762, 620 P.2d 1140 (1980):
“Obviously the charges of bias, prejudice and manifest injustice come more as a result of the adverse decision than from any improper action on the part of the judge.”
Plaintiff s claim of prejudice on the part of the trial judge is not sustained by the record.
This case was ably and fully tried by competent counsel before an able trial judge. We find no reversible error.
The judgment is affirmed. | [
-16,
104,
-48,
12,
24,
-29,
58,
27,
121,
-92,
116,
87,
-115,
-53,
77,
127,
-29,
45,
-60,
105,
49,
-93,
3,
-126,
-109,
115,
-7,
-60,
-71,
79,
-12,
-42,
76,
80,
74,
-107,
-58,
-64,
77,
28,
-114,
4,
10,
-56,
93,
64,
-66,
-6,
-108,
106,
49,
12,
123,
40,
28,
-61,
-116,
44,
107,
109,
67,
-47,
-62,
5,
95,
18,
-95,
4,
-98,
67,
88,
62,
-40,
61,
32,
-84,
114,
-78,
-122,
-12,
97,
-119,
13,
-25,
98,
33,
29,
-89,
-24,
-72,
15,
-34,
-99,
-91,
-126,
40,
51,
7,
-98,
-97,
123,
22,
23,
126,
-25,
20,
95,
108,
-121,
-126,
-10,
-15,
79,
0,
-110,
-58,
-21,
1,
48,
97,
-34,
-78,
91,
3,
114,
31,
87,
-70
] |
The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the State on a question reserved pursuant to K.S.A. 22-3602(b)(3). The question on which determination is sought is whether the trial court improperly prohibited the State from cross-examining defendant Clemens C. Nott relative to his invocation of the Fifth Amendment to the United States Constitution in the earlier trial of two codefendants.
The relevant facts are as follows. On December 13, 1981, the Wetmore High School was burglarized and school property valued in excess of $100 was stolen. Five individuals were charged with said burglary and theft. They were Gerald L. Cavin, Allen Cavin, Steven L. Whitaker, Rodney L. Kirk and the defendant herein, Clemens C. Nott. Defendant Nott was advised of his Miranda rights at the time of his arrest on April 27, 1982, and made no statement to the arresting officers. Although each defendant was separately charged, a joint preliminary hearing was held on May 13, 1982, wherein each defendant was bound over for trial. On May 18, 1982, as a result of plea negotiations, the Cavin defendants plead guilty to burglary. The three remaining defendants, Whitaker, Kirk and Nott, then sought separate trials. Over the objection of the State, the district court ordered Whitaker and Kirk to be tried together, with Nott to be tried separately.
The Whitaker-Kirk trial commenced on October 25, 1982. The following day, counsel for defendants Whitaker and Kirk called Nott as a defense witness. When called to the stand to testify, Nott invoked the Fifth Amendment and refused to answer any of the questions propounded to him by defense counsel relative to the burglary and disposition of the stolen goods. The precise questions addressed to Nott will be set forth later in the opinion. The State did not inquire of the witness. Whitaker and Kirk were found not guilty on both counts.
Nott’s trial commenced at the conclusion of the Whitaker-Kirk trial. On October 29, 1982, Nott took the stand and presented an alibi defense — he testified he was in Topeka at the time of the commission of the crimes. No notice of alibi defense had been filed pursuant to K.S.A. 22-3218, but the same was unnecessary as only the defendant himself gave alibi testimony. Prior to its cross-examination of defendant Nott, the State requested a recess out of hearing of the jury. The State advised the court and defense counsel it intended to cross-examine Nott as to his taking the Fifth Amendment in the Whitaker-Kirk trial two days previously. The trial court treated the matter as a motion in limine and prohibited the State from any inquiry relative to defendant’s testimony in the prior trial. Defendant Nott was acquitted on both charges. The State has appealed on a question reserved and seeks determination of the propriety of the trial court’s order restricting the State’s cross-examination of the defendant.
The question before us may be stated as follows: Where a defendant is called as a witness by codefendants in their separate trial and declines to answer questions relative to his participation in the charged crimes on the basis of the Fifth Amendment privilege against self-incrimination, but testifies to an alibi defense in his own subsequent trial, may the State attack defendant’s credibility by inquiring on cross-examination as to defendant’s assertion of the Fifth Amendment in the codefendants’ trial on the basis the prior testimony is an inconsistent statement?
The issue is one of first impression in Kansas. In view of the vast number of reported cases concerning the Fifth Amendment right against self-incrimination, it seems incredible this precise issue is not the subject of well-settled law, but such is the case.
A preliminary matter in the proper determination of this issue is the question of Nott’s legal status in each of the trials.
In a criminal trial, a defendant has the absolute right not to be called as a witness. Fifth Amendment to the United States Constitution; Kan. Const. Bill of Rights, § 10. In Kansas this right had been made statutory law as well by the enactment of K.S.A. 60-423(a) which provides:
“Every person has in any criminal action in which he or she is an accused a privilege not to be called as a witness and not to testify.” (Emphasis supplied.)
If a defendant desires to testify in his or her own trial, he or she may do so. In so doing defendant waives the right not to be called as a witness in his or her trial. Where two codefendants are jointly tried, each defendant has a separate absolute right not to be called as a witness. In such circumstances one codefendant (or the State) cannot call the other codefendant as a witness absent a waiver by said defendant of his or her right not to be called as a witness. Such a waiver, if made, is complete subject only to the procedural rules relative to the scope of cross-examination, redirect examination, etc., and such other limitations as may be imposed by a trial court in appropriate circumstances. Obviously the waiver by a defendant of his or her right not to be called as a witness can have serious consequences and is a significant defense decision.
What then can one codefendant do when he or she desires to call the other codefendant as a witness, but the other codefendant will not take the serious step of waiving the right not to be called as a witness? The only thing he or she can do is to seek severance of the trials of the two defendants. If successful on this motion, such defendant may then call the former codefendant as a witness. The former codefendant is not a defendant in the trial in progress and hence has no right not to be called as a witness, and can only assert a witness’s privilege against self-incrimination as grounds for refusing to answer specific questions. This situation has arisen many times. In United States v. Shuford, 454 F.2d 772 (4th Cir. 1971), Shuford, Long and Jordan were jointly indicted on conspiracy charges. Long was known to be the government’s chief witness and was never brought to trial. The court summarized the pertinent facts as follows:
“Before the trial began and again after the prosecution submitted its evidence, Shuford moved that Jordan’s case be severed from his own so that he might have the benefit of Jordan’s testimony. Jordan likewise moved to have his case severed and joined in Shuford’s motion. Although Shuford testified in his own behalf, Jordan ultimately decided not to take the stand. According to Jordan’s statement to the court in support of Shuford’s second motion for severance, two considerations prompted his decision not to testify: First, he wanted to avoid cross-examination that would bring to light certain prior convictions of his, and second, he planned to stand on the insufficiency of the Government’s evidence and feared that if he took the stand in his own trial, he might strengthen the case against him by placing his credibility and demeanor before the jury. Shuford’s attorney, arguing the motion for severance, further asserted, apparently without dissent by Jordan, that Jordan was not averse to testifying in Shuford’s behalf at a separate trial, since his own defense would not thereby be jeopardized.
“Before ruling on the motions for severance, the trial judge, in an endeavor to meet Jordan’s objections to taking the stand in the joint trial, offered to forbid the Government from raising Jordan’s prior criminal record on cross-examination. Jordan, however, still remained unwilling to testify, preferring to challenge the sufficiency of the Government’s case without exposing himself as a witness in his own behalf. The trial judge denied the severance motions.” 454 F.2d at 775.
Jordan was not going to testify in his own behalf in his trial. Therefore, any testimony given by him in Shuford’s trial could not have been used against him in his own trial, if the trials were severed. The trials were not severed and Shuford was convicted. On appeal he alleged trial error in refusing the severance. The appellate court agreed stating:
“No other witness testified regarding Shuford’s instructions to Long. Indeed the only other potential witness with direct knowledge of this phase of the case was Jordan who, in the absence of a severance, declined to take the stand. And the Fifth Amendment gave Jordan the right not even to be called to the stand so long as he was a defendant. United States v. Keenan, 267 F.2d 118, 126 (7th Cir. 1959), cert denied, 361 U.S. 836, 80 S.Ct. 121, 4 L.Ed.2d 104 (1959); Poretto v. United States, 196 F.2d 392, 394 (5th Cir. 1952). This right extends so far as to forbid not only the Government, but even Shuford from calling Jordan to the stand. DeLuna v. United States, 308 F.2d 140 (5th Cir. 1952); United States v. Housing Foundation, 176 F.2d 665, 666 (3d Cir. 1949). However, if Jordan’s case were severed, while he would retain the privilege against self-incrimination, as a witness, he would no longer have the right not to be called to tire stand. Landy v. United States, 283 F.2d 303 (5th Cir. 1960). Thus, absent Jordan’s willingness to waive his Fifth Amendment rights while joined as a defendant with Shuford, severance was the only way of affording Shuford any possibility of persuading Jordan to testify.
“In a situation where the elusive quality of credibility is of such importance, the jury should have the benefit of all relevant testimony likely to shed light on the situation. We think that the denial of the severance, resulting in withholding this witness’ testimony on such a critical point, so tipped the scales against Shuford that he failed to receive a fair trial. A verdict based so heavily on less than the full available testimony, where the missing testimony could, with relative ease, have been procured, should not stand.” 454 F.2d at 777. (Emphasis in original.)
See also United States v. Kozell, 468 F. Supp. 746 (E.D. Pa. 1979), where severance was sought in order to enable one defendant to be able to call his codefendant as a witness. In denying the motion the trial court stated;
“As a general rule, defendants jointly indicted should be jointly tried. United States v. Frumento, 409 F. Supp. 143, 144 (E.D. Pa. 1976). Severance may be denied in the absence of a clear showing that a defendant will be so severely prejudiced by a joint trial that it will in effect deny him a fair trial. United States v. Barber, 296 F. Supp. 795, 797 (D. Del. 1969), aff'd in part, rev’d in part on other grounds, 442 F.2d 517 (3d Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971). Kozell’s argument in support of his motion for severance is that Keller [codefendant] will invoke his Fifth Amendment privilege if they are tried jointly, thus depriving him of Keller as a defense witness. It is true that a defendant may not be required to take the stand at his own trial. United States o. Housing Foundation of America, 176 F.2d 665, 666 (3d Cir. 1949). However, a codefendant may be called as a witness at a separate trial for another person accused with him. United States v. Arcuri, 405 F.2d 691, 695 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969). The fundamental flaw in Kozell’s argument is that he cannot compel Keller to testify even if a severance is granted. United States o. Barber, supra, 442 F.2d at 529 n. 22.
“In United States v. Boscia, 573 F.2d 827 (3d Cir. 1978), the Third Circuit articulated several factors to be considered in determining whether the Court should grant a severance on the ground that a joint trial would deprive the movant of the ability to call a codefendant as a defense witness:
“ ‘In determining the necessity of severance under these circumstances, courts have placed emphasis on the following four factors: (1) the likelihood of co-defendant’s testifying; (2) the degree to which such testimony would be exculpatory; (3) the degree to which the testifying co-defendants could be impeached; (4) judicial economy.’ Id., at 832. See also United States v. Rosa, 560 F.2d 149, 155 (3d Cir. 1977) (en banc); United States v. Finklestein, 526 F.2d 517, 523-524 (2d Cir. 1975); Byrd v. Wainwright, 428 F.2d 1017, 1019-1020 (5th Cir. 1970). Upon consideration of each of these factors, we find that their resolution militates against Kozell’s position.” 468 F. Supp. at 748.
The law relative to this aspect of prejudicial joinder is summarized in 1 Wright, Federal Practice and Procedure: Criminal 2d § 225 (1982), at pp. 831-39, as follows:
“A second problem arises if one defendant wishes to use the testimony of a codefendant in his own behalf. One defendant may not require another to take the stand at a trial in which both are charged, since this would be inconsistent with the privilege of a criminal defendant not to be called to the stand at all. If a defendant does take the stand and testify he waives his privilege not to answer questions about the crime charged. Thus at a joint trial a defendant who does not wish to testify on his own behalf is hardly likely to take the stand on behalf of a codefendant.
“A test that has been developed in the Fifth Circuit includes the considerations that most courts have applied in passing on a motion for severance in order to obtain the testimony of a codefendant.
“ ‘In order to be entitled to a severance on the ground urged, the movant must demonstrate: (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant will in fact testify if the cases are severed. * * * Given such a showing, the court should (1) examine the significance of the testimony in relation to the defendant’s theory of defense; (2) assess the extent of prejudice caused by the absence of the testimony; (3) pay close attention to judicial administration and economy; (4) give weight to the timeliness of the motion.’
“Most motions for severance on this ground fail the test. The courts show a healthy, and quite justified, skepticism whether the defendant would call his codefendant if he could, and whether the codefendant would not claim his constitutional privilege even in a separate trial. The courts have demanded more than conclusory statements about the nature of the expected testimony, and they have been reluctant to grant the motion if the codefendant’s willingness to testify is conditioned on his trial taking place before the trial of the defendant who wishes his testimony. Despite all of these barriers, there are cases in which it is held that the required showing has been made and that there should be a severance.”
We believe the Fifth Circuit test as above cited is sound and the same is approved.
It is clear Nott was not a defendant in the severed trial of Whitaker and Kirk. His status was that of a witness asserting a privilege against self-incrimination rather than a defendant exercising his right not to be called as a witness in his own trial. Generally, it is proper to attack the credibility of a witness by showing a prior inconsistent statement of the witness. Before turning to the issue of whether Nott’s exercise of the Fifth Amendment privilege against self-incrimination in the Whitaker-Kirk trial could properly be used to impeach the credibility of his alibi testimony at his own trial on the basis it is a prior inconsistent statement, some comment should be made on K.S.A. 60-439. The statute provides:
“If a privilege is exercised not to testify or to prevent another from testifying either in the action or with respect to particular matters, or to refuse to disclose or to prevent another from disclosing any matter, the judge and counsel may not comment thereon, no presumption shall arise with respect to the exercise of the privilege, and the trier of fact may not draw any adverse inference therefrom. In those jury cases wherein the right to exercise a privilege, as herein provided, may be misunderstood and unfavorable inferences drawn by the trier of the fact, or may be impaired in the particular case, the court, at the request of the party exercising the privilege, may instruct the jury in support of such privilege.”
Under this statute where a criminal defendant does not waive his right not to be called as a witness in his own trial, or if a witness exercises a self-incrimination privilege (K.S.A. 60-425), or if any party in a civil or criminal action exercises a privilege to preclude the testimony of a witness in whole or in part (see: lawyer-client privilege [K.S.A. 60-426]; physician-patient privilege [K.S.A. 60-427]; marital privilege [K.S.A. 60-428]; and penitential communication privilege [K.S.A. 60-429]), then neither trial judge nor counsel in the case may comment upon such witness’ or party’s exercise of such right or privilege. This statute has no application to the facts before us. Nott’s assertion of his privilege against self-incrimination was made while a witness in the Whitaker-Kirk trial. K.S.A. 60-439 would have precluded comment thereon by trial court or counsel only in the Whitaker-Kirk trial. The statute speaks only to commenting on a privilege already exercised in the trial in which the privilege was asserted.
We turn now to the issue before us.
May Nott’s exercise of the privilege against self-incrimination (Fifth Amendment to the United States Constitution; Kan. Const. Bill of Rights, § 10; K.S.A. 60-425) be used to impeach the credibility of his alibi testimony at his own trial on the basis it is a prior inconsistent statement? In order to answer this question, it is necessary to review a number of United States decisions relative to whether evidence of a prior statement or silence of a defendant may be used against him at trial for impeachment purposes.
The Fifth Amendment to the United States Constitution provides in pertinent part:
“No person shall ... be compelled in any Criminal Case to be a witness against himself . . . .”
A comparable provision is found in Section Ten of the Kansas Constitution Bill of Rights.
The general rule is a prosecutor may not use a defendant’s post-arrest silence to impeach the credibility of his trial testimony. The landmark case in this area is Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976). In Doyle defendants were advised of their Miranda rights at the time of their arrest and chose to remain silent. At trial defendants related exculpatory accounts of the incident, specifically that they had been framed by narcotics agents. Over objections of defense counsel, the prosecution was permitted to ask defendants on cross-examination why they had not given the arresting officers the same exculpatory explanations. In reversing defendants’ convictions, the United States Supreme Court stated:
“Silence in the wake of these [Miranda] warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, [422 U.S. 171] at 177 [45 L.Ed.2d 99, 95 S.Ct. 2133 (1975)]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person s silence to be used to impeach an explanation subsequently offered at trial.” 426 U.S. at 617-18. (Emphasis supplied.)
In State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976), the Kansas Supreme Court in following Doyle v. Ohio commented:
“Prior to Doyle there was a conflict of decisions of the United States Courts of Appeals on the question whether a prosecutor may properly cross-examine the defendant on the fact that he remained silent and did not tell the police an exculpatory explanation at the time he was arrested as he did at the time he testified at the trial. We had the question before this court in State v. Bly, 215 Kan. 168, 523 P.2d 397 [(1974)]. In Bly we held that when a defendant testifies he may be impeached like any other witness and that the use of pretrial silence for impeachment depends on whether, in the circumstances presented, there is such inconsistency between silence and testimony as to reasonably permit tire use of silence to impeach the defendant’s credibility. In Bly the court relied primarily upon State v. Jackson, 201 Kan. 795, 443 P.2d 279 [(1968)], cert. den. 394 U.S. 908, 22 L.Ed.2d 219, 89 S.Ct. 1019 [(1969)].
“We interpret the decision of the United States Supreme Court in Doyle to settle the question so as to make it constitutionally impermissible for a state prosecutor to impeach a defendant’s exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 [(1966)], 10 A.L.R.3d 974. We specifically overrule syllabus eight and corresponding portions of the opinion in State v. Bly, supra, insofar as they are in conflict with Doyle v. Ohio, supra. Also to the extent they conflict with Doyle and our decision in this case we overrule State v. Jackson, supra; State v. Schroeder, 201 Kan. 811, 443 P.2d 284 [(1968)]; State v. Wade, 206 Kan. 347, 479 P.2d 811 [(1971)]; and State v. Crowe, 207 Kan. 473, 486 P.2d 503 [(1971)].” 220 Kan. at 730.
See also State v. Heath, 222 Kan. 50, 52, 563 P.2d 418 (1977), State v. Jordan, 223 Kan. 197, 574 P.2d 194 (1977), and State v. Smith, 223 Kan. 294, 574 P.2d 161 (1978).
In State v. Clark, 223 Kan. 83, 574 P.2d 174 (1977), defendant spoke briefly to police after his arrest, but remained silent about his exculpatory story until he testified at trial. In Clark the court held:
“Following his arrest and the Miranda warnings, a defendant is under no duty to volunteer his exculpatory story.” Syl. ¶ 1.
“It is constitutionally impermissible for a state prosecutor to impeach a defendant’s alibi defense, which is told for the first time at trial, when the defendant carried on limited discussion with police after his arrest, but was silent as to exculpatory matters subsequently asserted at trial.” Syl. V 2.
The linchpin of Doyle v. Ohio is the defendant’s silence has in some way been induced by government action, such as by the giving of a Miranda warning, and hence the silence is not inconsistent with the exculpatory testimony at trial. Recently, in Fletcher v. Weir, 455 U.S. 603, 71 L.Ed.2d 490, 102 S.Ct. 1309 (1982), the United States Supreme Court held where there has been no governmental action to induce silence by the defendant, then post-arrest silence may be used at trial to impeach the credibility of a testifying defendant.
We believe the United States Supreme Court’s rationale in Fletcher, including its analysis of prior cases, is significant to the issue herein and should be set forth in some detail:
“In the course of a fight in a nightclub parking lot, Ronnie Buchanan pinned respondent Weir to the ground. Buchanan then jumped to his feet and shouted that he had been stabbed; he ultimately died from his stab wounds. Respondent immediately left the scene, and did not report the incident to the police.
“At his trial for intentional murder, respondent took the stand in his own defense. He admitted stabbing Buchanan, but claimed that he acted in self-defense and that the stabbing was accidental. This in-court statement was the first occasion on which respondent offered an exculpatory version of the stabbing. The prosecutor cross-examined him as to why he had, when arrested, failed either to advance his exculpatory explanation to the arresting officers or to disclose the location of the knife he had used to stab Buchanan. Respondent was ultimately found guilty by a jury of first degree manslaughter. The conviction was affirmed on appeal to the Supreme Court of Kentucky.
“The United States District Court for the Western District of Kentucky then granted respondent a writ of habeas corpus, and the Court of Appeals for the Sixth Circuit affirmed. 658 F.2d 1126 (1981). The Court of Appeals concluded that respondent was denied due process of law guaranteed by the Fourteenth Amendment when the prosecutor used his postarrest silence for impeachment purposes. Although it did not appear from the record that the arresting officers had immediately read respondent his Miranda warnings, the court concluded that a defendant cannot be impeached by use of his postarrest silence even if no Miranda warnings had been given. The court held that ‘it is inherently unfair to allow cross-examination concerning postarrest silence,’ 658 F.2d, at 1130, and rejected the contention that our decision in Doyle v. Ohio, 426 U.S. 610 (1976), applied only where the police had read Miranda warnings to a defendant. Because we think that the Court of Appeals gave an overly broad reading to our decision in Doyle v. Ohio, supra, we reverse its judgment.
“One year prior to our decision in Doyle, we held in the exercise of our supervisory power over the federal courts that silence following the giving of Miranda warnings was ordinarily so ambiguous as to have little probative value. United States v. Hale, 422 U.S. 171 [, 45 L.Ed.2d 99,95 S.Ct. 2133] (1975). There we said:
‘In light of the many alternative explanations for his pretrial silence, we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant admission of evidence thereof.’ Id., at 180.
“The principles which evolved on the basis of decisional law dealing with appeals within the federal court system are not, of course, necessarily based on any constitutional principle. Where they are not, the States are free to follow or to disregard them so long as the state procedure as a whole remains consistent with due process of law. See Cupp v. Naughten, 414 U.S. 141, 146 [, 38 L.Ed.2d 368, 94 S.Ct. 396] (1973). The year after our decision in Hale, we were called upon to decide an issue similar to that presented in Hale in the context of a state criminal proceeding. While recognizing the importance of cross-examination and of exposing fabricated defenses, we held in Doyle v. Ohio, supra, that because of the nature of Miranda warnings it would be a violation of due process to allow comment on the silence which the warnings may well have encouraged:
‘[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ Id., at 618 (footnote omitted).
“The significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest. The majority of the Court of Appeals recognized the difference, but sought to extend Doyle to cover Weir’s situation by stating that ‘[w]e think an arrest, by itself, is governmental action which implicitly induces a defendant to remain silent.’ 658 F.2d, at 1131. We think that this broadening of Doyle is unsupported by the reasoning of that case and contrary to our post-Doyle decisions.
“In Jenkins v. Anderson, 447 U.S. 231, 239 [, 65 L.Ed.2d 86, 100 S.Ct. 2124] (1980), a case dealing with pre-arrest silence, we said:
‘Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev. 1970). Each jurisdiction may formulate its own rales of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.’
“In Jenkins, as in other post-Doyle cases, we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him. In Roberts v. United States, 445 U.S. 552, 561 [, 63 L.Ed.2d 622, 100 S.Ct. 1358] (1980), we observed that the post-conviction, presentencing silence of the defendant did not resemble ‘postarrest silence that may be induced by the assurances contained in Miranda warnings.’ In Jenkins, we noted that the failure to speak involved in that case occurred before tire defendant was taken into custody and was given his Miranda warnings, commenting that no governmental action induced the defendant to remain silent before his arrest. 447 U.S., at 239-240. Finally, in Anderson v. Charles, 447 U.S. 404, 407-408 [, 65 L.Ed.2d 222, 100 S.Ct. 2180] (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because ‘Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.’
“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rales of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant’s own testimony.” 455 U.S. at 603-07.
Heretofore, we have been discussing impeaching a testifying defendant by cross-examination of him as to his failure to tell arresting officers the exculpatory version of events. In such instances the silence may be considered governmentally induced by the giving of the Miranda warning and hence said silence is not clearly inconsistent with the defendant’s trial testimony.
Another line of cases involves the propriety of impeaching a defendant’s exculpatory trial testimony by showing defendant’s silence in a prior judicial proceeding. The progenitor of this line is Raffel v. United States, 271 U.S. 494, 70 L.Ed. 1054, 46 S.Ct. 566 (1926). See also 21 Ill. L. Rev. 396 (1926).
In Raffel defendant was accused of operating an illegal liquor establishment during Prohibition. At his first trial, where a government witness testified defendant admitted operating the establishment, defendant did not testify. Defendant’s first trial ended in a hung jury. At his second trial the government witness repeated his testimony relative to defendant’s admission. Unlike his first trial, defendant then took the stand and denied making the admission. To attack the credibility of defendant’s denial of the admission, the trial court permitted the government to inquire of defendant why he had remained silent at the first trial in face of testimony concerning the admission. The United States Supreme Court, on a certified question, held the prosecutor’s examination at the second trial was permissible.
“The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. [Citations omitted.] When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue. [Citations omitted.] He may be examined for the purpose of impeaching his credibility. [Citations omitted.] His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge, may be the basis of adverse inference, and the jury may be so instructed. [Citation omitted.] His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.
“If, therefore, the questions asked of the defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions, unless there is some reason of policy in the law of evidence which requires their exclusion.” 271 U.S. at 496-97.
Continuing:
“It is elementary that a witness who upon direct examination denies making statements relevant to the issue, may be cross-examined with respect to conduct on his part inconsistent with this denial. The value of such testimony, as is always the case with cross-examination, must depend upon the nature of the answers elicited; and their weight is for the jury. But we cannot say that such questions are improper cross-examination, although the trial judge might appropriately instruct the jury that the failure of the defendant to take the stand in his own behalf is not in itself to be taken as an admission of the truth of the testimony which he did not deny.
“There can be no basis, then, for excluding the testimony objected to, unless it be on the theory that under the peculiar circumstances of the case, the defendant’s immunity should be held to survive his appearance as a witness on the second trial, to the extent at least, that he may be permitted to preserve silence as to his conduct on the first.” 271 U.S. at 498.
Concluding:
“There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial or to any tribunal other than that in which the defendant preserves it by refusing to testify.” 271 U.S. at 499. (Emphasis supplied.)
In Stewart v. United States, 366 U.S. 1, 6 L.Ed.2d 84, 81 S.Ct. 941 (1961), the Court noted the mere fact a defendant was silent at a prior judicial proceeding does not mean when he subsequently testifies at his own trial there is per se an inconsistency between his prior silence and subsequent testimony.
“[I]n no case has this Court intimated that there is such a basic inconsistency between silence at one trial and taking the stand at a subsequent trial that the fact of prior silence can be used to impeach any testimony which a defendant elects to give at a later trial. The Raffel case, relied upon by the majority below, involved a situation in which Raffel had sat silent at his first trial in the face of testimony by a government agent that Raffel had previously made admissions pointing to his guilt. On a second trial, Raffel took the stand and denied the truth of this same testimony offered by the same witness. Under these circumstances, this Court held that Raffel’s silence at the first trial could be shown in order to discredit his testimony at the second trial on the theory that the silence itself constituted an admission as to the truth of the agent’s testimony.” 366 U.S. at 5-6.
In the Doyle-Fletcher line of cases, the issue was impeachment of a testifying defendant as to his failure to tell his exculpatory statement to the arresting officers. Where a Miranda warning has been given such silence is considered to have been induced by the government and will not be considered truly inconsistent with the later testimony.
In the Raffel-Stewart line of cases, defendant remained silent at his own first trial but elected to testify at the second trial. In both these lines of cases the prior silence is essentially passive in nature and various reasons for such silence may be speculated upon, as it was not legally necessary for the defendant to ascribe any reason before electing to remain silent. The question of whether such silence then is truly inconsistent with the later testimony is inherent under such circumstances.
Although distinguishable, the federal case closest factually to the question before us is Grunewald v. United States, 353 U.S. 391, 1 L.Ed.2d 931, 77 S.Ct. 963 (1957), 62 A.L.R.2d 1344. In Grünewald, defendant Halperin invoked the Fifth Amendment when called as a witness before a grand jury, but at his trial answered the same questions he had previously declined to answer. The trial court permitted cross-examination for impeachment purposes. Such silence was not passive but rather an active assertion he would not testify before the grand jury on the Fifth Amendment grounds his testimony might incriminate him. In holding such cross-examination was improper the court stated:
“It is, of course, an elementary rule of evidence that prior statements may be used to impeach the credibility of a criminal defendant or an ordinary witness. But this can be done only if the judge is satisfied that the prior statements are in fact inconsistent. 3 Wigmore, Evidence, § 1040. And so the threshold question here is simply whether, in the circumstances of this case, the trial court erred in holding that Halperin’s plea of the Fifth Amendment privilege before the grand jury involved such inconsistency with any of his trial testimony as to permit its use against him for impeachment purposes. We do not think that Raffel is properly to be read either as dispensing with the need for such preliminary scrutiny by the judge, or as establishing as a matter of law that such a prior claim of privilege with reference to a question later answered at the trial is always to be deemed to be a prior inconsistent statement, irrespective of the circumstances under which the claim of privilege was made. The issue decided in Raffel came to the Court as a certified question in quite an abstract form, and was really centered on the question whether a defendant who takes the stand on a second trial can continue to take advantage of the privilege asserted at the first trial. This Court held, in effect, that when a criminal defendant takes the stand, he waives his privilege completely and becomes subject to cross-examination impeaching his credibility just like any other witness: ‘His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.’ The Court, in Raffel, did not focus on the question whether the cross-examination there involved was in fact probative in impeaching the defendant’s credibility. In other words, we may assume that under Raffel Halperin in this case was subject to cross-examination impeaching his credibility just like any other witness, and that his Fifth Amendment plea before the grand jury could not carry over any form of immunity when he voluntarily took the stand at the trial. This does not, however, solve the question whether in the particular circumstances of this case the cross-examination should have been excluded because its probative value on the issue of Halperin’s credibility was so negligible as to be far outweighed by its possible impermissible impact on the jury. As we consider that in the circumstances of the present case, the trial court, in the exercise of a sound discretion, should have refused to permit this line of cross-examination, we are not faced with the necessity of deciding whether Raffel has been stripped of vitality by the later Johnson [v. United States, 318 U.S. 189, 87 L.Ed. 704, 63 S.Ct. 549 (1943)] case, or of otherwise re-examining Raffel.
“We need not tarry long to reiterate our view that, as the two courts below held, no implication of guilt could be drawn from Halperin’s invocation of his Fifth Amendment privilege before the grand jury. Recent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men. Griswold, The Fifth Amendment Today, 9-30, 53-82. ‘Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoice it are either guilty of crime or commit peijury in claiming the privilege.’ Ullmann v. United States, 350 U.S. 422, 426 [(1956)]. See also Slochower v. Board of Higher Education, 350 U.S. 551 [, 100 L.Ed. 692, 76 S.Ct. 637 (1956)], when at the same Term, this Court said at pp. 557-558: ‘The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.’
“When we pass to the issue of credibility, we deem it evident that Halperin’s claim of the Fifth Amendment privilege before the Brooklyn grand jury in response to questions which he answered at the trial was wholly consistent with innocence. Had he answered, the questions put to him before the grand jury in the same way he subsequently answered them at trial, this nevertheless would have provided the Government with incriminating evidence from his own mouth. For example, had he stated to the grand jury that he knew Grünewald, the admission would have constituted a link between him and a criminal conspiracy, and this would be true even though he was entirely innocent and even though his friendship with Grünewald was above reproach. There was, therefore, as we see it, no inconsistency between Halperin’s statement to the grand jury that answering the question whether he knew Grünewald would tend to furnish incriminating evidence against him, and his subsequent testimony at trial that his acquaintance with Grünewald was free of criminal elements. And the same thing is also true, as we see it, as to his claim of privilege with respect to the other questions asked him before the grand jury and his answers to those same questions when they were put to him at the trial.” 353 U.S. at 418-22. (Emphasis supplied.)
In Grünewald the prior proceeding in which the Fifth Amendment was invoked was a grand jury proceeding which is essentially investigative in nature. This is distinguishable from taking the Fifth Amendment when called as a witness by codefendants in the codefendants’ trial. However, the rationale relative to inconsistency may be applied to the case before us.
Before concluding our discussion of United States Supreme Court cases, reference needs to be made to the recent decision in Jenkins v. Anderson, 447 U.S. 231, 65 L.Ed.2d 86, 100 S.Ct. 2124 (1980). The Jenkins opinion not only establishes Raffel is alive and well, but aids in placing the various United States Supreme Court cases heretofore discussed into proper perspective and into relationship with each other. Jenkins involved prearrest silence. In Jenkins defendant testified at trial the killing for which he was charged was in self-defense. In cross-examination the prosecution established by its questions defendant had not come forward with this story to police officers in the two-week interlude between the killing and defendant’s arrest. In holding this line of questioning did not violate defendant’s Fifth Amendment rights, the court stated:
“At trial the prosecutor attempted to impeach the petitioner’s credibility by suggesting that the petitioner would have spoken out if he had killed in self-defense. The petitioner contends that the prosecutor’s actions violated the Fifth Amendment as applied to the States through the Fourteenth Amendment. The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial, and prevents the prosecution from commenting on the silence of a defendant who asserts the right. Griffin v. California, 380 U.S. 609, 614 [, 14 L.Ed.2d 106, 85 S.Ct. 1229] (1965). In this case, of course, the petitioner did not remain silent throughout the criminal proceedings. Instead, he voluntarily took the witness stand in his own defense.
“This Court’s decision in Raffel v. United States, 271 U.S. 494 [, 70 L.Ed. 1054, 46 S.Ct. 566] (1926), recognized that the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence. The defendant in Raffel was tried twice. At the first trial, a Government agent testified that Raffel earlier had made an inculpatory statement. The defendant did not testify. After the first trial ended in deadlock the agent repeated his testimony at the second trial, and Raffel took the stand to deny making such a statement. Cross-examination revealed that Raffel had not testified at the first trial. Id., at 495, n. The Court held that inquiry into prior silence was proper because ‘[t]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness. . . . When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined. . . .’ Id., at 496-497. Thus, the Raffel Court concluded that the defendant was ‘subject to cross-examination impeaching his credibility just like any other witness.’ Grunewald v. United States, 353 U.S. 391, 420 [, 1 L.Ed.2d 931, 77 S.Ct. 963] (1957).” 447 U.S. at 235-36.
“In Raffel, the defendant’s decision not to testify at his first trial was an invocation of his right to remain silent protected by the Fifth Amendment. In this case, the petitioner remained silent before arrest, but chose to testify at his trial. Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of Raffel clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent.” 447 U.S. at 236, n. 2.
“It can be argued that a person facing arrest will not remain silent if his failure to speak later can be used to impeach him. But the Constitution does not forbid ‘every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.’ Chaffin v. Stynchcombe, 412 U.S. 17, 30 [, 36 L.Ed.2d 714, 93 S.Ct. 1977] (1973). See Corbitt v. New Jersey, 439 U.S. 212, 218, and n. 8 [, 58 L.Ed.2d 466, 99 S.Ct. 492] (1978). The ‘ “threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.” ’ Chaffin v. Stynchcombe, supra, at 32, quoting Crampton v. Ohio, decided with McGautha v. California, 402 U.S. 183, 213 [, 28 L.Ed.2d 711, 91 S.Ct. 1454] (1971). The Raffel Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights, ‘We are unable to see that the rule that [an accused who] testifies , . . must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.’ 271 U.S., at 499.” 447 U.S. at 236-37.
“Both Mr. Justice Stevens, post, at 241-242, n. 2, and Mr. Justice Marshall, post, at 252, suggest that the constitutional rule of Raffel was limited, by later decisions of the Court. In fact, no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence.” 447 U.S. at 237, n. 4.
“This Court similarly defined the scope of the Fifth Amendment protection in Harris v. New York, 401 U.S. 222 [, 28 L.Ed,2d 1, 91 S.Ct. 643] (1971). There the Court held that a statement taken in violation of Miranda v. Arizona, 384 U.S. 436 [, 16 L.Ed.2d 694, 86 S.Ct. 1602] (1966), may be used to impeach a defendant’s credibility. Rejecting the contention that such impeachment violates the Fifth Amendment, the Court said:
“ ‘Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.’ 401 U.S., at 225. (Emphasis supplied.) See also Oregon v. Hass, 420 U.S. 714, 721-723 [, 43 L.Ed.2d 570, 95 S.Ct. 1215] (1975); Walder v. United States, 347 U.S. 62, 65 [, 98 L.Ed. 503, 74 S.Ct. 354] (1954).
“In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice. See Chaffin v. Stynchcombe, supra, at 32, and n. 20. Attempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, ‘[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’ Brown v. United States, 356 U.S. 148, 156 [, 2 L.Ed.2d 589, 78 S.Ct. 622] (1958).
“Thus, impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.
“Ill
“The petitioner also contends that use of prearrest silence to impeach his credibility denied him the fundamental fairness guaranteed by the Fourteenth Amendment. We do not agree. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev. 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. For example, this Court has exercised its supervisory powers over federal courts to hold that prior silence cannot be used for impeachment where silence is not probative of a defendant’s credibility and where prejudice to the defendant might result. See United States v. Hale, 422 U.S. 171, 180-181 [, 45 L.Ed.2d 99, 95 S.Ct. 2133] (1975); Stewart v. United States, 366 U.S. 1, 5 [, 6 L.Ed.2d 84, 81 S.Ct. 941] (1961); Grunewald v. United States, 353 U.S., at 424.
“Only in Doyle v. Ohio, 426 U.S. 610 [, 49 L.Ed.2d 91, 96 S.Ct. 2240] (1976), did we find that impeachment by silence violated the Constitution. In that case, a defendant received the warnings required by Miranda v. Arizona, supra, at 467-473, when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant’s credibility on cross-examination by revealing that the defendant remained silent after his arrest. The State argued that the prosecutor’s actions were permissible, but we concluded that ‘the Miranda decision compels rejection of the State’s position.’ 426 U.S., at 617. Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, ‘it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.’ Id. at 619, quoting United States v. Hale, supra, at 182-183 (White, J., concurring in judgment).
“In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.” 447 U.S. at 237-40. (Emphasis supplied.)
Two cases from state courts, although of little significance, perhaps should be mentioned. In Messier v. State, 428 P.2d 338 (Okla. Crim. App. 1967), the facts are rather unclearly stated but apparently defendant Messier was called as a witness by the State in a codefendant’s preliminary hearing where she invoked the Fifth Amendment. At her own trial defendant Messier testified and the State asked her if she had previously refused to testify “against Clyde Green.” In holding this line of questioning to be error the Oklahoma court summarily rejected the rationale of Raffel, stating Raffel had been “impliedly overruled.” This conclusion is completely contrary to the recent United States Supreme Court decision in Jenkins v. Anderson, 447 U.S. 231, previously discussed herein. After cavalierly dispatching Raffel the Oklahoma court reversed the conviction on something of a malum in se rationale. No reference was made as to whether or not there was true inconsistency between taking the Fifth Amendment in the former proceeding and the defendant’s testimony at trial. (See Grunewald v. United States, 353 U.S. 391, previously discussed.)
The Matter of Silverberg, 459 Pa. 107, 327 A.2d 106 (1974), involved a disciplinary proceeding against three attorneys. In a preliminary proceeding to determine if sufficient cause existed to file a formal complaint, described by the court as an “ex parte” proceeding, two attorneys took the Fifth Amendment when called as witnesses. Later at the formal disciplinary hearing, the attorneys testified to their complete innocence of unethical conduct. The special attorney for the investigation asked the attorneys on cross-examination as to their prior assertion of the Fifth Amendment. The Pennsylvania Supreme Court held this was error, relying on the concurring opinion in Grunewald v. United States, 353 U.S. 391. The Grünewald concurring opinion agreed with the reversal of the case but disagreed with the majority’s “true inconsistency” test and advocated a total ban on such cross-examination.
We believe the rationale of the majority opinion in Grünewald is sound. Accordingly, before permitting a defendant at his own trial to be asked about his prior invocation of the Fifth Amendment to remain silent, the trial judge should determine whether there is true inconsistency between the prior silence and subsequent testimony. Such a determination lies within the sound judicial discretion of the judge. 353 U.S. at 423. If the judge determines there is true inconsistency then he may permit questions on defendant’s prior silence as it affects the credibility of his subsequent testimony.
We turn now to the case before us. The trial court did not consider whether Nott’s prior testimony in the Whitaker-Kirk trial was truly inconsistent with his testimony in his own trial, and it was error not to do so. As this issue is before this court on a reserved question, we shall proceed to make that determination. At the Whitaker-Kirk trial defendant answered questions concerning his name and address and then, with his counsel present, declined to answer the following three questions:
“Mr. Nott, is it not a fact that Mr. Kirk and Mr. Whitaker were not present when you and Jerry and Allen Cavin broke in the Wetmore school?”
“Mr. Nott, are you the one that placed Mr. Whitaker’s drivers license in the school?”
“What did you and the Cavin boys do with the stuff that you stole from the Wetmore School?”
It should be noted these were not general questions relating to whether he knew the other defendants, etc., as were involved in Grünewald. Instead these were questions going to the heart of the actual commission of the crimes and disposal of the stolen property. Defendant Nott testified at trial in the case before us he had nothing to do with the crimes, was wholly innocent, and was not even present in Wetmore when the crimes were committed.
Defendant Nott’s assertion of the Fifth Amendment was not induced by the court. Nott was called to the witness stand by counsel for the codefendants in the codefendants’ trial. This was an improper procedure as the Whitaker-Kirk defense counsel knew Nott would assert the Fifth Amendment and decline to testify. See State v. Crumm, 232 Kan. 254, 654 P.2d 417 (1982); and State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983). This fact, however, does not alter the issue before us. Immediately after Nott was sworn as a witness, the district court asked counsel for the State, Whitaker, and Kirk to approach the bench where a conference was had while Nott waited on the witness stand. The court inquired at the bench conference, “[A]re we going to have any Fifth Amendment problem?” Defense counsel answered affirmatively. The court then concluded it should admonish Nott of his Fifth Amendment rights. Trial then resumed and Nott was asked by defense counsel to state his name. Nott responded to the question by giving his name followed by an immediate invocation of the Fifth Amendment. After this invocation of the Fifth Amendment by Nott the court asked Nott if he had counsel and if he wanted his counsel present. Defendant answered affirmatively to both questions and after some further discussion relative to the Nott attorney, the court recessed the trial until that afternoon when Nott’s attorney could be present. Clearly Nott invoked the Fifth Amendment prior to any discussion between himself and the court and such invocation was not the result of court admonition. The governmental-induced silence which was the concern of Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), is absent under the facts of this case.
We conclude defendant Nott’s assertion of a Fifth Amendment privilege against self-incrimination in the Whitaker-Kirk trial to the specific questions asked herein was truly inconsistent with his trial testimony. Under such circumstances the trial court erred in prohibiting the State from cross-examining defendant for impeachment purposes on his prior inconsistent statements in the Whitaker-Kirk trial.
The appeal is sustained. | [
-80,
-24,
-7,
-66,
27,
-32,
56,
58,
33,
-29,
52,
83,
41,
75,
5,
121,
-45,
13,
85,
121,
-49,
-74,
115,
-63,
-110,
-5,
89,
68,
-77,
-37,
-92,
-73,
72,
-16,
-118,
85,
2,
-54,
71,
28,
-114,
4,
-72,
-62,
-46,
0,
48,
41,
58,
15,
49,
-98,
-13,
42,
28,
-57,
73,
40,
75,
61,
65,
-39,
-104,
87,
-19,
4,
-93,
35,
-104,
1,
-48,
37,
-104,
-79,
1,
-24,
51,
-92,
82,
-11,
39,
-119,
-116,
38,
98,
49,
56,
-18,
-68,
-119,
47,
63,
-83,
-25,
-110,
72,
105,
12,
-74,
-99,
117,
84,
35,
-8,
-29,
21,
94,
108,
14,
-49,
-44,
-109,
77,
48,
-118,
-61,
-21,
33,
48,
48,
-115,
-28,
85,
87,
112,
-9,
14,
-75
] |
The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff, Missouri Medical Insurance Company (MoMedico), for a declaratory judgment seeking cancellation and construction of a medical malpractice insurance policy issued to the defendant, Dr. David Wong. Plaintiff joined as additional defendants, Lynn Eugene Cleveland and Jack Jacobson, former patients of Dr. Wong, who had filed medical malpractice actions against Wong, and Fletcher Rell, Commissioner of Insurance, as administrator of the Health Care Stabilization Fund. MoMedico alleged in its petition that it had cancelled Wong’s policy of professional liability insurance as of the date of issuance for material misrepresentations made in his application, and further alleged that the policy, as issued, covered only acts of negligence which occurred during the term of the policy rather than for claims made during the policy period. Defendant Wong filed a counterclaim seeking a determination that MoMedico was precluded from cancelling his medical professional liability insurance ab initio, and that the provisions of the Kansas Health Care Provider Insurance Availability Act (K.S.A. 40-3401 et seq.) require the policy to be construed as a claims made policy rather than an occurrence policy. Defendant Wong also claimed he was entitled to recover actual and punitive damages from MoMedico arising out of its attempted cancellation of the policy, and that he was also entitled to recover attorney fees from MoMedico incurred in the defense of the declaratory judgment action. The other named defendants also filed counterclaims which will be discussed later in the opinion.
The matter came regularly on for trial on November 1, 1982. Counsel for MoMedico made his opening statement. Counsel for defendant Wong then moved for a directed verdict and for judgment as a matter of law. The trial court interpreted the motion as a motion for summary judgment, and entered summary judgment in favor of Dr. Wong. A hearing was then held on November 2, 1982, on the issues raised in the defendants’ counterclaims. MoMedico has appealed from the judgments entered in favor of the various defendants. Defendant Wong filed a cross-appeal claiming that the district court erred in disallowing certain elements of damage claimed by Wong in his counterclaim.
The basic facts in this case were either stipulated or undisputed and are as follows: Defendant David Wong, M.D., began practicing medicine in the state of Kansas on or about July 1, 1975. At all times, he maintained professional medical liability insurance coverage as required by the Kansas Health Care Provider Insurance Availability Act (K.S.A. 40-3401 et seq.). St. Paul Fire & Marine Insurance Company advised Wong that it would not renew his professional liability insurance policy when it expired on June 30, 1980. On July 28, 1980, Wong purchased a policy of professional liability insurance from MoMedico which took effect on that date. The policy was purchased by Wong in person at MoMedico’s office in St. Louis, Missouri. On his application for insurance, Dr. Wong listed both a Wichita address and a Cameron, Missouri, address. Thus on July 28, 1980, when it issued the policy, MoMedico’s agents knew that Wong had both a Kansas and Missouri address. The insurance binder was mailed to Wong at his Wichita address. The policy was mailed to Dr. Wong at his Cameron, Missouri, address. The policy purchased by Dr. Wong provided professional liability insurance coverage and limits of $1,000,000 for each claim with a $1,000,000 annual aggregate. The policy was an occurrence form policy rather than a claims made policy. MoMedico knew at the time the policy was issued that Dr. Wong would render some professional care to persons in Kansas. For the basic coverage in Missouri, Dr. Wong paid a quarterly premium of $721, and for Kansas coverage he paid a quarterly premium of $72.10. Thereafter, Dr. Wong continued to render some medical services in Kansas until September 5, 1980. As of July 28, 1980, Dr. Wong had not received any written notice of any claim being made against him by anyone. Defendant Jack Jacobson filed a medical malpractice suit against Wong on September 11, 1980. Defendant Lynn Eugene Cleveland filed a medical malpractice suit against Wong on September 28, 1980. The alleged acts of negligence claimed in both of these suits occurred prior to July 28, 1980, the effective date of the MoMedico policy.
On October 8, 1980, after it became aware of the two claims, MoMedico attempted cancellation of the policy ab initio and tendered Wong the return of his premiums and surcharge payments. MoMedico refused to provide Dr. Wong insurance coverage or a defense to the Jacobson and Cleveland claims. Mo-Medico, in May 1978, had filed a “Non-Admitted Carrier Declaration of Compliance” form with the Kansas commissioner of insurance. This form states, in substance, that MoMedico declares that its professional liability policies, wherever issued, shall be deemed to provide the insurance coverage required by K.S.A. 40-3402(a)(l), when the nonresident health care provider renders professional service as a health care provider in Kansas. It was stipulated by the parties that MoMedico never notified the Kansas insurance commissioner of either the issuance or cancellation of Dr. Wong’s insurance policy.
Because MoMedico refused to provide Dr. Wong insurance coverage and a defense to the Jacobson and Cleveland claims, defendant Fletcher Bell, Commissioner of Insurance, as administrator of the Health Care Stabilization Fund, provided a defense to Dr. Wong in those cases under a reservation of rights. Defendant Bell, in his counterclaim against MoMedico, sought reimbursement for attorney fees and expenses and for the sum of $12,000 paid to Jacobson in settlement of his malpractice claim against Dr. Wong. At the time the judgment in this case was entered in district court, the Cleveland action against Dr. Wong was still pending.
As a basis for the cancellation of Dr. Wong’s policy, MoMedico claimed that Dr. Wong misrepresented his place of residence, continued to practice medicine in Kansas after indicating that he would be concluding his Kansas practice, failed to inform plaintiff that claims were being made against him, and neglected to inform MoMedico that Wong had been insured by Western Casualty & Surety Company. Prior to cancellation of Dr. Wong’s policy, MoMedico’s manager conducted an investigation of Dr. Wong. That investigation did not disclose any acts of wrongdoing whatsoever on the part of Dr. Wong nor disclose any facts justifying cancellation of the policy. Following this investigation, MoMedico decided to cancel Dr. Wong’s policy from the date of issuance and, thereafter, instituted this declaratory judgment action. When the case came on for trial, the district court granted judgment in favor of all defendants on plaintiff s claims following MoMedico counsel’s opening statement. This judgment was granted upon the motion of Dr. Wong’s counsel for a “directed verdict or for judgment as a matter of law.” The judge indicated that he had considered the stipulation of facts and exhibits referred to in those stipulations in reaching his decision.
Following the court’s ruling that MoMedico was obligated to defend and indemnify Dr. Wong under the insurance policy issued on July 28, 1980, the court held an evidentiary hearing on the issues raised by the various defendants in their counterclaims. Following the hearing, the trial court made 32 findings of fact and conclusions of law. It would unduly prolong this opinion to set forth verbatim those 32 findings of the trial court. We will refer to specific findings of the trial court as we consider each point that is raised on the appeal. The trial court entered judgment in favor of defendants, and MoMedico appealed.
MoMedico’s first point on the appeal is that the trial court erred in granting the defendant Wong’s motion for a directed verdict following the opening statement by MoMedico’s counsel and without affording MoMedico an opportunity to present evidence. We find this contention to be without merit. The motion made by Wong’s counsel was not only a motion for a directed verdict but also a motion for judgment as a matter of law. The trial court properly interpreted the motion as a motion for summary judgment. We note that there was no objection as to the form of the motion made by plaintiff s counsel at the trial. Under all the circumstances, we hold that the trial court properly treated the motion as a motion for summary judgment.
We will now consider whether the trial court erred in sustaining the motion on that basis. The granting of a motion for summary judgment is provided for in Section (c) of K.S.A. 60-256 which provides in part as follows:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
This court has held that a trial court has inherent power to summarily dispose of litigation on its own motion where there remains no genuine issue as to any material fact, and, giving the benefit of all reasonable inferences that may be drawn from the evidence, judgment must be for one of the parties as a matter of law. Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019 (1966). The trial court sustained the motion for summary judgment as a matter of law on November 1, 1982. At that time MoMedico’s action for declaratory judgment had been on file since January 6, 1981. Discovery had been completed, a thorough pretrial conference had been held, and all of the basic facts had been developed. Under the circumstances, we cannot say that the trial court erred in sustaining Dr. Wong’s motion for judgment as a matter of law.
MoMedico’s second point on the appeal is that the trial court erred in granting the motion of all defendants for a finding that MoMedico was estopped to deny defendant Wong was a resident of the State of Missouri without first hearing the evidence which plaintiff desired to present at the hearing. We find no error in the ruling of the court. As noted above, the evidence was undisputed as to the information MoMedico agents had at the time the policy was issued. On this application form, Dr. Wong listed both a Kansas and Missouri address. At the time the policy was issued, MoMedico knew that Dr. Wong would render some professional care to persons in Kansas. The insurance policy included a ten percent (10%) surcharge to cover specifically Dr. Wong’s practice in Kansas. MoMedico issued the policy knowing that Dr. Wong had two addresses, one in Kansas and one in Missouri. It knew that Dr. Wong was going to treat certain patients in Kansas and that defendant Wong’s family still lived in Kansas. It was not until MoMedico learned of the medical malpractice claims of Cleveland and Jacobson that it decided to cancel the policy ab initio. There was simply no basis for a claim of misrepresentation on Dr. Wong’s part after MoMedico issued its policy. Dr. Wong, in reliance on the MoMedico policy, continued his medical practice without attempting to obtain any other insurance coverage.
We hold that the trial court properly held that MoMedico was equitably estopped on the issue of Dr. Wong’s residence. The substance of MoMedico’s position was that Dr. Wong had misrepresented his residence, and a policy would never have been issued to him had MoMedico known he lived in Kansas. It does not really matter where defendant Wong lived since Mo-Medico was aware that Dr. Wong actually practiced in both Missouri and Kansas. His actual legal place of residence does not change that fact. It is undisputed that Dr. Wong listed both Kansas and Missouri addresses on his application, and informed MoMedico that he would be finishing up with some patients in Kansas, which he did. Plaintiff charged Dr. Wong an additional premium to provide insurance coverage for his medical practice in Kansas. In view of these undisputed facts, there was no basis whatsoever for a claim of misrepresentation justifying the cancellation of the policy. The trial court did not err in so ruling on the motion for summary judgment.
In view of our holding that MoMedico had no reasonable basis for cancelling Dr. Wong’s medical malpractice insurance, we do not deem it necessary to consider the point that the professional liability policy could not be cancelled, in any event, without giving the thirty-day notice required for cancellation of the policy provided for in K.S.A. 40-3402(a)(2).
MoMedico’s fourth and fifth points will be considered together because they are related. Under these two points, Mo-Medico raised two issues for our consideration:
(1) The trial court erred in rewriting and changing Dr. Wong’s policy from an occurrence policy to a combined occurrence/claims made policy; and
(2) If the’ policy is to be construed to provide claims made coverage, only the minimum stautory requirement of $100,000 per occurrence and the $300,000 annual aggregate should be read into the policy, rather than to provide insurance coverage in the amount of $1,000,000.
These issues require us to construe the provisions of K.S.A. 40-3402 which provides in part as follows:
“(a) A policy of professional liability insurance approved by the commissioner and issued by an insurer duly authorized to transact business in this state in which the limit of the insurer’s liability is not less than one hundred thousand dollars ($100,000) per occurrence, subject to not less than a three hundred thousand dollar ($300,000) annual aggregate for all claims made during the policy period, shall be maintained in effect by each resident health care provider as a condition to rendering professional service as a health care provider in this state, unless such health care provider is a self-insurer. Such policy shall provide as a minimum coverage for claims made during the term of the policy which were incurred during the term of such policy or during the prior term of a similar policy.
“(3) Any professional liability insurance policy issued, delivered or in effect in this state on and after the effective date of this act shall contain or be endorsed to provide basic coverage as required by subsection (a) of this section. Notwithstanding any omitted or inconsistent language, any contract of professional liability insurance shall be construed to obligate the insurer to meet all the mandatory requirements and obligations of this act.
“(b) Unless a nonresident health care provider is a self-insurer, such provider shall not render professional service as a health care provider in this state unless such provider maintains coverage in effect as prescribed by subsection (a) of this section, except such coverage may be provided by a non-admitted insurer who has filed the form required in paragraph (1) of subsection (b) of this section.
“(1) Every insurance company authorized to transact business in this state, that is authorized to issue professional liability insurance in any jurisdiction, shall file with the commissioner, as a condition of its continued transaction of business within this state, a form prescribed by the commissioner declaring that its professional liability insurance policies, wherever issued, shall be deemed to provide at least the insurance required by this subsection when the insured is rendering professional services as a nonresident health care provider in this state. Any non-admitted insurer may file such a form.”
In support of its position, MoMedico makes the following contentions. It maintains that the sale of MoMedico’s medical malpractice policy and binder to Dr. Wong was made in plaintiff s St. Louis office. It is stipulated that the insurance contract as written is an “occurrence” insurance policy. An “occurrence” is defined in the policy as an accident which results, during the policy period, in personal injury. Plaintiff points out that all alleged acts of negligence committed by Dr. Wong involving defendants Cleveland and Jacobson occurred before July 28, 1980, the effective date of the insurance policy. The policy as written thus provided no coverage for these two malpractice claims, because the occurrences did not take place during the term of the policy. Claims made coverage, on the other hand, provides coverage for claims made during the period of the policy, no matter when the act of medical malpractice occurred. MoMedico argues that, in entering judgment for the defendants, the district court rewrote the insurance policy to provide “claims made” coverage as well as “occurrence” coverage. MoMedico contends, in substance, that the contract of insurance was exe cuted in Missouri and was valid as issued under the laws of that state. The Kansas Health Care Provider Insurance Availability Act does not give a carte blanche authority to a Kansas court to rewrite a Missouri contract. MoMedico argues that, since Dr. Wong was in fact a Kansas resident, the declaration of compliance filed by MoMedico with the Kansas insurance department does not apply, and, therefore, the health care provider act has no application and cannot change the policy as written.
Dr. Wong, in response, maintains that the district court correctly interpreted the Kansas Health Care Provider Insurance Availability Act. He points out that on May 11, 1978, MoMedico filed its “Non-Admitted Carrier Declaration of Compliance” form with the Kansas commissioner of insurance which provided:
“Pursuant to the provisions of K.S.A. 1976 Supp. 40-3402(b)(l), the Missouri Medical Insurance Company of 100 North Broadway, St. Louis, Missouri, 63102, hereby declares that its professional liability policies wherever issued shall be deemed to provide the insurance required by K.S.A. 1976 Supp. 40-3402(a)(l), when such non-resident health care provider renders professional service as a health care provider in the state of Kansas.
“The company understands that this declaration is filed voluntarily to provide its policyholders rendering health care services within the state of Kansas with coverage required by Kansas law.”
Dr. Wong contends that, pursuant to this declaration and the provisions of K.S.A. 40-3402(fe)(l), MoMedico was a non-admitted carrier which agreed that it would provide the coverage required by Kansas law whenever a health care provider which they insured rendered care in Kansas. Under this provision, the trial court was correct in ruling that the health carrier must comply with the act. Since K.S.A. 40-3402(a) provides that coverage must be provided on a “claims made” basis, MoMedico’s policy issued to Dr. Wong must be construed so as to provide “claims made” coverage for Dr. Wong for any services rendered by Dr. Wong in the state of Kansas. Dr. Wong relies upon Canal Insurance Co. v. Sinclair, 208 Kan. 753, 494 P.2d 1197 (1972), which holds that where a policy of insurance is issued to an insured in compliance with the requirement of a statute, the pertinent provisions of the statute must be read into the policy, and no provisions of the policy in contravention of the statute can be given effect. The other defendants, in their briefs, agree with the position taken by Dr. Wong in his brief. In determining the issue, the trial court made the following findings of fact and conclusions of law:
“I. Missouri Medical Insurance Company filed with the Kansas Insurance Department a non-admitted carrier declaration of compliance form pursuant to K.S.A. 40-3402(b)(l), which was on file and in effect all relevant times hereto.
“3. By virtue of filing the declaration of compliance form with the Kansas Insurance Department, Missouri Medical Insurance Company had declared that the policy issued to Dr. Wong would provide the medical malpractice coverage required to be maintained by health care providers in the State of Kansas pursuant to K.S.A. 40-3402(a), when Dr. Wong was practicing in the State of Kansas as a non-resident health care provider.
“4. That K.S.A. 40-3402 requires Missouri Medical’s coverage to operate on at least a claims made basis and provide coverage for claims made during the term of the policy which were incurred during the term of that policy or during the term of a prior professional liability policy issued pursuant to the Act, as to Dr. Wong’s Kansas practice both prior to and subsequent to issuance of the policy.
“5. The engafting of the provisions of the Act upon the policy does not affect the extension of occurrence based coverage to Dr. Wong from July 28 to termination of the policy; therefore the policy also provides Dr. Wong with coverage for any act of professional negligence which occurred in either the State of Missouri or the State of Kansas from on or after July 28, 1980, to the date of termination of the policy.
“6. The coverage to be provided as set forth in Paragraphs 4 and 5 above was to be provided in exchange for the payment, by Dr. Wong, of the premium amount set forth in the declarations of the policy.
“7. The maintenance of professional liability insurance by a health care provider rendering professional services in the State of Kansas is compulsory and must be maintained by each such provider as a condition of rendering services in the State of Kansas.
“8. Because such insurance is compulsory, the terms of the Kansas Health Care Provider Insurance Availability Act (K.S.A. 40-3401, et seq.) became a part of any contract of professional liability insurance which insures a health care provider practicing in the State of Kansas, and to the extent that the provisions of the policy contradict the terms of the Act, the terms of the Act are controlling with respect to the Kansas practice.
“9. Therefore, the policy sold to Dr. Wong by Missouri Medical Insurance Company on July 28, 1980, operates on both an occurrence and a claims made basis as to Dr. Wong’s Kansas practice and on an occurrence basis as to his Missouri practice.
“10. The claims of Lynn Eugene Cleveland and Jack Jacobson were claims made during the term of the Missouri Medical Insurance Company policy which were incurred during the terms of a prior professional liability insurance policy.”
We agree with the trial court and its findings of fact and conclusions of law as set forth above. Under all the circumstances, Dr. Wong’s policy must be construed to include the statutory mandated coverage as provided by K.S.A. 40-3402(c). This result is required by our decision in Canal Insurance Co. v. Sinclair. Under the undisputed factual circumstances and the law as set forth above, we hold that Dr. Wong’s MoMedico policy must be construed to provide coverage for claims made against Dr. Wong during the policy period even though the alleged act of medical malpractice occurred during a prior term of a similar policy.
We now consider the question as to the amount of “claims made” coverage which Dr. Wong is entitled to have included in the policy because of the statutory requirements. It is the position of MoMedico that only the minimum statutory requirement of $100,000 per occurrence and the $300,000 aggregate, as provided in K.S.A. 40-3402(a), is to be read into the policy to make it conform with the requirements of the Kansas statute. The district court rejected this contention and made findings and conclusions of law as follows:
“11. The stated limits of the Missouri Medical Insurance policy are $1,000,000.00 per occurrence subject to an aggregate of $1,000,000.00.
“12. The stated policy limits apply to the claims of Cleveland and Jacobson on a claims made basis inasmuch as the stated limits, while in excess of the minimum limits required by the law, are not in contravention of any provision of the Act.
“15. The coverage provided by the policy issued by Missouri Medical, as supplemented by the Health Care Provider Insurance Availability Act, is primary to the coverage provided to Dr. Wong by the Health Care Stabilization Fund, and such coverage is primary to the extent of the stated limits of the policy as to any claims made or incurred during the policy period.”
Thus the court, having ruled that Dr. Wong’s MoMedico policy is to be construed as a claims made policy, found that the policy limits of $1,000,000 applied to cover both the Cleveland and Jacobson claims. We agree with the defendants that this ruling is correct. K.S.A. 40-3402(a) states only that the liability limits must be not less than $100,000/$300,000. Limits in excess of the minimum are clearly contemplated by K.S.A. 40-3408. K.S.A. 40-3408 provides, in substance, that if any liability insurance in excess of such amounts ($100,000/$300,000) is applicable to any claim or would be applicable i the absence of this act, any payments from the Health Care Stabilization Fund shall be excess over such amounts paid, payable, or that would have been payable in the absence of this act. Here, there is no question that the MoMedico policy is applicable and must be read to provide claims made coverage. There is no question that the policy provides limits of $1,000,000. MoMedico sold the policy with the intent of providing $1,000,000 worth of coverage for Kansas claims and charged Dr. Wong a premium for $1,000,000 worth of coverage. In K.S.A. 40-3408, the legislature clearly set forth the relationship between the Fund and primary coverage with limits in excess of the minimum required by law. The statute contemplates that the liability of the Fund shall be in excess of the coverage provided in the primary policy. We hold that the trial court did not err in concluding that the policy limits of $1,000,000 must be applied on a claims made basis to each of the claims made by Cleveland and Jacobson.
The next point raised by MoMedico on the appeal is that the trial court erred in awarding Dr. Wong attorney fees incurred by him in defending against MoMedico’s declaratory judgment action. In this regard, the court made the following findings of fact and conclusions of law:
“24. The provisions of K.S.A. 40-256 are applicable to declaratory judgment actions such as this.
“25. At the time it issued its policy of professional liability insurance to defendant Wong, plaintiff knew that defendant Wong would be practicing medicine in the State of Kansas; that defendant Wong had cancelled the professional liability insurance which he had previously carried for his Kansas practice; and that Kansas law required that Dr. Wong carry professional liability insurance as a condition to his practice of medicine in Kansas.
“26. At the time plaintiff issued its policy of professional liability insurance to defendant Wong, plaintiff knew or is deemed to have known that its policy provided at a minimum coverage for the claims made during the term of the policy which were incurred during the term of the policy or during the term of a prior professional liability policy issued pursuant to the Kansas Health Care Provider’s Insurance Availability Act (K.S.A. 40-3401, et seq.).
“27. Plaintiff admits, through the testimony of Mrs. Pierce, that it would have provided coverage for medical malpractice claims resulting from any occurrences that happened between July 28, 1980 and August 8, 1980.
“28. Plaintiff, without just cause or excuse, wrongfully attempted cancellation of the policy of professional liability insurance issued by it to defendant Wong, wrongfully refused to acknowledge coverage for the claims of defendants Cleveland and Jacobson and has wrongfully refused to provide defendant Wong with a defense to such claims. The filing of this declaratory judgment action by plaintiff was likewise without just cause or excuse.
“29. Additionally, plaintiff had a contractual duty to provide a defense to its insured, defendant Wong, under the terms of its policy, and that includes this declaratory judgment action, aside from any right defendant Wong has to an allowance of fees pursuant to K.S.A. 40-256.
“30. As a result of plaintiff s unjustified refusal to acknowledge coverage and provide a defense to the claims of defendants Cleveland and Jacobson, Wong was compelled to employ independent counsel and has incurred attorney fees and expenses in establishing coverage and plaintiff s duty to defend. Defendant Wong has also incurred attorney fees, expenses and costs in connection with his participation in this action. Defendant Wong is entitled to judgment against plaintiff for all such attorney fees, expenses and costs.”
We agree with the trial court in its determination of this issue. K.S.A. 40-256 provides in part as follows:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company . . . if it appears from the evidence that such company, . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action . . . .”
The award of attorney fees in this case is controlled by our decision in Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 151, 519 P.2d 737 (1974). That case involved a declaratory judgment action brought by Upland Mutual to determine whether or not it had coverage and a duty to defend under a homeowner’s insurance policy. In Syllabus ¶ 2 the rule is stated that where an insurance company denies coverage and the duty to defend under a homeowner’s liability insurance policy and brings a declaratory judgment action against the insured to determine that issue, the insured is entitled to recover attorney fees and expenses incurred in defense of the declaratory judgment action if it is determined that there is coverage and a duty to defend. Although the court recognized a decided split of authority on the subject, it adopted the rule set forth above. In the case now before us, MoMedico contracted to provide Dr. Wong insurance coverage and a defense to any malpractice claims. As determined under prior points, MoMedico had no reasonable basis to deny coverage to Dr. Wong, because, under its declaration of compliance form, it agreed to provide the medical malpractice insurance required by K.S.A. 40-3402(a)(l). The trial court found that MoMedico, without just cause or excuse, wrongfully attempted cancellation, wrongfully refused to acknowledge insurance coverage, and wrongfully refused to furnish Wong with a defense to the Cleveland and Jacobson claims. This finding of fact by the trial court is supported in the record by substantial, competent evidence and we have no right to disturb that finding on appeal unless an abuse of discretion is shown. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598-99, 528 P.2d 134 (1974). We find no error in the district court’s award to Dr. Wong of attorney fees incurred in defense of MoMedico’s declaratory judgment action.
MoMedico also raises a point that the trial court erred in awarding certain elements of damage to Dr. Wong on his counterclaim for damages resulting from MoMedico’s wrongful attempt to cancel his insurance policy. In this regard the trial court made the following findings and conclusions:
“25. At the time it issued its policy of professional liability insurance to defendant Wong, plaintiff knew that defendant Wong would be practicing medicine in the State of Kansas; that defendant Wong had cancelled the professional liability insurance which he had previously carried for his Kansas practice; and that Kansas law required that Dr. Wong carry professional liability insurance as a condition to his practice of medicine in Kansas.
“29. Additionally, plaintiff had a contractual duty to provide a defense to its insured, defendant Wong, under the terms of its policy, and that includes this declaratory judgment action, aside from any right defendant Wong has to an allowance of fees pursuant to K.S.A. 40-256.
“32. As a result of plaintiffs breach of its contract of insurance, defendant Wong has suffered additional consequential damages in the sum of $6,800.00, representing lost income for medical services, resulting from plaintiff s wrongful cancellation of its policy, and in the sum of $1,510.00, representing the difference between the premium cost agreed upon with the plaintiff and the premium cost for coverage with another carrier after plaintiffs wrongful cancellation.”
MoMedico objected to the award to Dr. Wong of the $6,800 representing lost income because he was not able to perform certain scheduled surgery because of MoMedico’s wrongful cancellation of his insurance policy, and the sum of $1,510 representing the. increase in the premium because Dr. Wong had to purchase another insurance policy. The sole basis of MoMedico’s objection is that these two elements of damage were established by hearsay testimony. We do not agree. There was testimony in the record that Dr. Wong’s privilege to provide certain medical services was suspended as a result of MoMedico’s wrongful cancellation of Dr. Wong’s insurance policy and that, as a result, Dr. Wong declined to perform scheduled surgery until he could obtain another insurance policy at a higher price. The evidence was sufficient to prove these elements of damages.
As its next point, MoMedico contends that the trial court erred in awarding attorney fees to the non-insured defendants Cleveland and Fletcher Bell, commissioner of insurance and administrator of the Health Care Stabilization Fund. As to defendant Cleveland, the trial court awarded him attorney fees and costs incurred in defense of the declaratory judgment action apparently on the basis ofK.S.A. 40-256. MoMedico complains that K.S.A. 40-256 is not applicable in this case, because Cleveland was not a named insured. We have concluded that the trial court erred in awarding attorney fees to defendant Cleveland on the basis of K.S.A. 40-256. Clearly, MoMedico had no contractual relationship with defendant Cleveland. We have held on a number of occasions that, in order to recover attorney fees against the losing party, there must be a clear and specific statute so providing. Walker v. Davis Van & Storage Co., 198 Kan. 452, 454, 424 P.2d 473 (1967). Since there was no statutory basis for defendant Cleveland, a tort claimant against the insured, to recover attorney fees against MoMedico, we hold that the award of the district court awarding Cleveland attorney fees was in error.
As to the rights of Fletcher Bell, Commissioner of Insurance and administrator of the Health Care Stabilization Fund, to recover attorney fees and the settlement monies paid to Jacobson, the trial court made the following findings of fact and conclusions of law:
“16. Missouri Medical Insurance Company had a primary duty to defend the malpractice claims of Lynn Eugene Cleveland and Jack Jacobson against Dr. Wong, and to provide coverage for such claims.
“17. The Health Care Stabilization Fund, pursuant to K.S.A. 40-3409, had no primary obligation to defend these claims against Dr. Wong.
“18. To protect its interest arising from a possible excess exposure, the Health Care Stabilization Fund was forced to defend these claims because of the refusal of Missouri Medical Insurance Company to honor its primary obligation; therefore, the Health Care Stabilization Fund is entitled to 100% reimbursement of all attorney fees paid to defend the malpractice claim of Jack Jacobson, and to reimbursement of 100% of all attorney fees paid to defend the malpractice claim of Lynn Eugene Cleveland against Dr. Wong.
“19. The Health Care Stabilization Fund also paid $12,000.00 in settlement of the malpractice claim of Jack Jacobson, after making demand upon Missouri Medical Insurance Company to settle said claim and receiving Missouri Medical’s refusal to do so.
“20. Therefore, the Health Care Stabilization Fund is entitled to 100% reimbursement of the amount paid to settle the claim of Jack Jacobson, which was a fair, just and reasonable settlement, approved by the District Court of Sedgwick County, Kansas, in the amount of $12,000.00.
“21. The attorney fees incurred by the Fund in providing a defense of the claim of Lynn Eugene Cleveland against Dr. Wong are in the amount of $17,739.36. The attorney fees and expenses incurred by the Fund in defending the claim of Jack Jacobson against Dr. Wong are in the amount of $11,264.77. The plaintiff having so stipulated, the Court finds these attorney fees to be reasonable and due and owing to the Health Care Stabilization Fund. The Court further finds that Missouri Medical Insurance Company is responsible for all such fees hereafter incurred in the defense of the Cleveland claim.”
We hold that the trial court did not err in awarding attorney fees incurred by the Fund in defending the Cleveland and Jacobson cases and for the amount paid in settlement of the Jacobson case. In this case, MoMedico had the primary duty to defend the Cleveland and Jacobson claims. The Fund, being secondarily liable following the refusal of MoMedico to provide a defense of the two cases and to pay a reasonable settlement, was forced to pay $12,000 to Jacobson to protect its interest. Under the statute, the Fund has no duty to defend a health care provider where primary insurance coverage is in effect. K.S.A. 40-3409(¿) states, in substance, that a medical malpractice action shall be defended by the insurer or self-insurer. While this section grants to the insurance commissioner the authority to employ independent counsel to represent the interests of the Fund, there is no statutory provision that requires the Fund to provide a defense to the health care provider where there is primary insurance coverage.
American Fidelity Ins. Co. v. Employers Mut. Cas. Co., 3 Kan. App. 2d 245, 593 P.2d 14 (1979), discusses in some depth the duty to defend an insured as between a primary and secondary insurer. The opinion places the primary duty to defend the case on the insurer which has the primary insurance coverage. It also recognizes the subrogation rights of a secondary insurer which has fulfilled an obligation to defend owed by the primary insurer. In this regard, we note Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P.2d 931 (1967), which holds that under both equitable principles and subrogation rights as contained in the policy, a secondary insurer who is compelled to pay a loss because of a refusal or failure, after demand, of the primary insurer to pay such loss, has the right to recover the amount paid from the insurer primarily liable to the extent of the latter’s policy limits. That case holds, however, that where a secondary insurer has a contractual duty with its insured to defend a lawsuit instituted by an injured party, the insurer has no right to recover from the primary insurer its attorney fees and expenses in making such a defense. In our judgment, the factual circumstances in Maryland Cas. Co. are distinguishable from the factual circumstances in the case now before us. Here the Fund had no contractual relationship with the insured, Dr. Wong. The obligation to defend a claim is not placed upon the Fund in cases where the Fund’s liability is secondary or excess only. Under the circumstances, we hold that the trial court did not err in entering judgment requiring MoMedico to reimburse the Fund for its attorney fees incurred in defending the Cleveland and Jacobson cases and for the amount of $12,000 expended in settlement of Jacobson’s claim.
Defendant Dr. Wong filed a cross-appeal contending that the trial court erred in disallowing Dr. Wong’s claim for punitive damages and in disallowing a portion of defendant Wong’s claimed attorney fees. We have concluded from the record that the trial court correctly ruled in denying these elements of damage. The trial court found correctly that there was no independent tort involved in the case which could justify an award of punitive damages to Dr. Wong. We also hold, from our review of the record, that the trial court did not err in denying a portion of defendant Wong’s claim for attorney fees, since the nature of the legal services performed was not adequately shown by Dr. Wong at the hearing.
For the reasons set forth in the opinion, the judgment of the district court is affirmed in part and reversed in part. | [
-80,
-20,
-11,
15,
24,
96,
32,
10,
87,
67,
-73,
83,
-83,
-93,
-123,
127,
34,
45,
64,
115,
-105,
51,
71,
42,
-42,
-105,
-5,
-35,
-69,
127,
-27,
-34,
77,
40,
10,
-43,
-58,
66,
-63,
80,
-62,
14,
-119,
-19,
81,
75,
48,
123,
88,
67,
53,
-97,
-59,
40,
27,
-53,
45,
12,
106,
-79,
-119,
-80,
-119,
7,
125,
16,
-127,
36,
-104,
103,
-48,
62,
-48,
-79,
16,
-88,
82,
-74,
-58,
116,
103,
-119,
12,
98,
99,
-95,
16,
-27,
-8,
-104,
63,
93,
31,
-123,
-125,
89,
104,
7,
-105,
-67,
116,
28,
-121,
-2,
-4,
20,
31,
44,
21,
-102,
-48,
-79,
-34,
112,
-36,
-21,
-25,
-105,
1,
84,
-123,
40,
92,
-57,
59,
59,
-6,
-74
] |
The opinion of the court was delivered by
Prager, J.:
This is an action brought by Waunetta W. Ingram, on behalf of herself and the surviving children of Robert E. Ingram, to recover damages for his wrongful death and also to recover damages suffered by the decedent’s estate which occurred prior to death. The facts in the case are not greatly in dispute and are essentially as follows: Robert E. Ingram died on February 20, 1979, as a result of fatal injuries suffered in an accident which occurred on the Kansas turnpike in the city of Topeka. The decedent was driving a tractor and trailer truck across bridge No. 231, which was supposed to be maintained by the Kansas Turnpike Authority (KTA). After entering onto bridge No. 231, die truck struck a 4’ by 5’6” hole on the bridge caused by deck deterioration in its final stages. This caused the truck to swerve, hit the guardrail, and plunge 25-30 feet to the ground. Ingram’s truck burst into flames. Various witnesses on the scene observed the crash and attempted to remove Ingram from the cab of the truck. Their attempts were unsuccessful. The cab of the truck was in flames and the cries of Ingram for help could be heard. An explosion then occurred in the cab of the truck which consumed the life of Robert E. Ingram. The autopsy report states that the cause of death was “severe carbonization of the soft structures of the face and carbonization of the scalp.” The report further states that the remainder of the deceased’s body was badly burned, showing third-degree burns on its entire surface.
The Kansas turnpike was opened for travel in 1956. KTA hired the defendant-appellant, the firm of Howard-Needles-Tammen & Bergendoff (Howard-Needles), to serve as its consulting engineers. As one of their duties, the Howard-Needles engineers performed an annual inspection of all the bridges and other facilities of which the turnpike is comprised. Prior to the construction of the turnpike, the KTA entered into a trust agreement with Guaranty Trust Company of New York and Fourth National Bank of Wichita, as cotrustees. The trust agreement is dated October 1,1954. The trust agreement required KTA to employ an engineering firm “having a nation-wide and favorable repute for skill and experience” to perform the duties required by the trust agreement. Howard-Needles performed its first annual inspection in August of 1957, and each year thereafter performed a similar inspection. After each inspection, Howard-Needles filed a report of its findings with KTA in a published report. The 1978 inspection was performed by Lowell Renner and Stephen Pellegrino on behalf of Howard-Needles. The report of their findings was made to KTA on October 25, 1978. In addition to employing a consulting engineering firm, KTA retained and employed a chief engineer and staff who were responsible for the maintenance and repair of the turnpike on a day-to-day basis. Howard-Needles had no responsibility in the daily operations, maintenance, and repair of the turnpike.
Following the death of Robert E. Ingram, the plaintiff filed her petition in Shawnee County District Court on November 15, 1979. The only named defendant was KTA. In her petition, she asserted not only a wrongful death action but also a survival action on behalf of the estate of Robert E. Ingram. On September 5, 1980, following discovery, the trial court granted plaintiff leave to include as an additional party defendant, Howard-Needles, the consulting engineering firm, which had offices in Kansas City, Missouri, and at other locations throughout the United States. After various pretrial conferences and motions, the matter was set for trial to a jury on April 12, 1982. On the morning of the trial, plaintiff and defendant KTA notified the court that all claims of plaintiff against KTA had been settled and compromised. The case then proceeded to trial by jury against the remaining defendant Howard-Needles. KTA remained as a party only for the purpose of consideration of its comparative negligence.
On April 16, 1982, the jury returned a verdict determining the comparative fault of the parties, finding the accident and the resulting death of Robert E. Ingram to be 75% the fault of Howard-Needles and 25% the fault of KTA. The jury assessed damages in favor of the estate of Robert E. Ingram for damages accruing prior to death in the amount of $350,000. The jury assessed the damages suffered by the heirs of Robert E. Ingram to be $25,000 for limited nonpecuniary damages and $335,000 by way of pecuniary damages.
On April 20, 1982, defendant Howard-Needles filed motions for a new trial, for judgment notwithstanding the verdict, and for an order of remittitur. The district court denied these motions, upholding the verdicts of the jury in all respects. The trial court entered final judgments in accordance with the jury’s verdicts. Defendant Howard-Needles appealed. The questions on appeal involve the usual liability issues which arise in negligence cases and also an attack on the amount of damages awarded by the jury.
In the area of liability, defendant Howard-Needles, in its post-trial motions before the trial court and again on this appeal, raises the following basic questions for determination:
What legal duty, if any, was owed by the consulting engi neers, Howard-Needles, to Ingram as a traveler on the Kansas turnpike, in making annual inspections of turnpike bridges?
What was the standard of care required of the defendant to be used in determining whether the defendant breached its legal duty?
Is there substantial evidence in the record to show that the defendant breached its legal duty by failing to perform in compliance with the standard of due care?
Is there substantial evidence in the record to show that defendant’s breach of duty was a contributing cause to the decedent’s injuries and death, and resulting damages suffered by the estate and heirs?
Defendant Howard-Needles also maintains that the amount of damages awarded by the jury was so excessive as to show passion and prejudice by the jury as a matter of law, and thus, a new trial should be granted defendant or a remittitur of damages ordered. Defendant also claims that the trial judge and opposing counsel were guilty of misconduct which denied Howard-Needles a fair trial. We will consider each of these issues separately.
The Duty of the Inspecting Engineers to a Member of the Traveling Public
In regard to the question of a legal duty owed by Howard-Needles to the decedent Ingram, as a member of the traveling public, Howard-Needles maintains that it fulfilled all of its implied obligations and duties under the employment contract and under the trust agreement, and thus, as a matter of law, had no legal obligation or duty to the decedent or his heirs in making the annual inspections of turnpike bridges.
Simply stated, it is the position of Howard-Needles that it was employed to perform a visual inspection of the turnpike bridges on behalf of the bondholders, and that, under the trust agreement, it was required to perform no more than visual inspection of the bridges which its engineers proceeded to do. It argues that it is not a guarantor or insurer of its work or of the public safety. It maintains that, as a consulting engineer, it had no duty and hence no liability to the plaintiff as a matter of law, since there was no privity existing between it and the traveling public. The district court rejected this contention and we agree.
We have concluded that Howard-Needles had a legal duty to exercise reasonable care in conducting an annual safety inspection which it owed to the decedent, Ingram, and to other mem bers of the traveling public. It has been held that the Kansas Turnpike Authority is an arm or agency of the State, created by the legislature to perform an essential governmental function. Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979). The Kansas statutes which created KTA, K.S.A. 68-2001 et seq., clearly recognize that KTA has a duty to exercise its powers for the benefit of the people of this State and to maintain the turnpike in a condition of safety for the traveling public. In this regard, we note that K.S.A. 68-2013 declares that the exercise of the powers granted by the act will be in all respects for the benefit of the people of the State. K.S.A. 68-2015 and 68-2043 declare that each turnpike project when constructed and opened to traffic shall be maintained and kept in good condition and repair by the authority. We also note that K.S.A. 68-2004, dealing with the general grant of powers to KTA, declares in section (1) that KTA will employ consulting engineers and other employees as may be necessary in its judgment. Thus, consulting engineers employed to make safety inspections are employed pursuant to authority granted by statute and independently of any trust agreement involving the bondholders.
The trust agreement, in section 504 which deals with the duties of the consulting engineers, specifically requires the consulting engineers to make an inspection of the turnpike at least once in each year on or before the first of October, to submit to the authority a report setting forth their findings whether the turnpike has been maintained in good repair, working order, and condition, and to make recommendations as to conditions, maintenance, and repair of the turnpike during the ensuing year. In each of its annual inspection reports for the years 1973 through 1978, which are included in the record on appeal, Howard-Needles states in the introduction to each report that the entire turnpike has been given a close and complete inspection by its consulting engineers and architects and that particular attention was given “to items which might impose a hazard to public safety or result in increased future maintenance if not promptly corrected.” Furthermore in a published report dated March 1977, to KTA, which report is entitled “Reconstruction & Renewal Program 1977 through 1987,” the importance of bridge maintenance is emphasized in the following language:
“Maintenance of bridges carrying Turnpike traffic is of the utmost importance to the operation of the Turnpike. There can be a failure of the roadway pavement without serious danger to the patrons, and a suitable detour could be provided quickly. However, a failure of a bridge could cause loss of life. The safety of the bridges is not necessarily apparent to the Turnpike patron. The safety of the structures is apparent, however, to the structural engineers who regularly perform the annual inspections.”
In that report, Howard-Needles states that several inspection methods have been used in the evaluation of deck deterioration. Among the methods mentioned is use of a machine which scans the bridge deck in search of laminations or separations within the concrete deck. Another method utilizes an electrical-resistant corrosion detection device. The third method requires the prior removal of the asphalt wearing surface and a visual-audio technique of inspection. This report is important because it clearly shows that Howard-Needles recognized the importance of its safety inspections for the protection of the traveling public and that more than a simple visual inspection is contemplated.
At the trial, several professional engineers and inspectors were called to the witness stand. They testified that in making bridge inspections they have in mind not only their obligation to the bondholders but also the safety of the public. There is also in the record a letter dated November 5, 1956, in which Howard-Needles submitted its proposal for engineering services to the KTA. The language of this letter states generally that Howard-Needles shall make an annual inspection of the turnpike as to the physical condition thereof with a report summarizing findings and making recommendations for proper maintenance and repair. At no place in the letter does Howard-Needles limit its inspections to visual inspections, nor does it indicate that its inspections are to be made solely for the protection of the bondholders and not for the traveling public.
It is clear, from the statutory provisions set forth above, that the Kansas Turnpike Authority has a statutory duty to keep the bridges on the Kansas turnpike in good repair and to take whatever steps are reasonably necessary, including the proper inspection of bridges, to achieve that result. The question is then presented as to the existence and nature of any legal duty owed by Howard-Needles, as consulting engineers who have contracted to make the annual inspections of the turnpike bridges, to third parties including members of the traveling public. That legal duty has clearly been established by the decision of this court in Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), where this court judicially adopted, as the law of Kansas, Restatement (Second) of Torts § 324A (1965), which provides as follows:
Ҥ 324A. Liability to Third Person for Negligent Performance of Undertaking
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
In Schmeck, the Kansas City Power and Light Company, which had contracted to maintain the traffic control system for the city of Shawnee, argued that it owed no duty to the members of the traveling public for three reasons:
(1) Its only obligation was contractual, and, having contracted with the city, no duty was created for the benefit of the plaintiff;
(2) A contractor owes no duty to the general public for legal nonfeasance or failure to act; and
(3) The plaintiffs recovery must be based on some sort of negligent breach of contract by KCPL.
The court rejected each of these contentions, holding that Restatement (Second) of Torts § 324A applied. The opinion cited prior Kansas cases which recognize that public policy considerations impose a duty upon parties to private contracts, running to third persons, where negligence in performance creates a danger to the general public.
Clearly, in the case now before us, Howard-Needles, as consulting engineers, contracted to render services to KTA by making annual safety inspections which the consulting engineers should have recognized were necessary for the safety of the traveling public. Under the principles of law adopted in Schmeck, Howard-Needles owed a duty to the members of the traveling public, including Robert E. Ingram, to exercise reasonable care in providing safety inspection services. In this regard, we also note the annotation at 6 A.L.R.2d 284 which cites cases holding there is liability to third persons for breach of an assumed duty to inspect property where danger to the public may be involved. We hold that defendant Howard-Needles, as consulting engineers, had a legal duty to members of the traveling public, including Robert E. Ingram, to exercise reasonable care in providing safety inspections for the turnpike bridges.
The Standard of Care Required in Making Inspections of Bridges
The second issue presented is this: What was the standard of care required of Howard-Needles in order to fulfill its duty to the traveling public to exercise reasonable care in making annual bridge inspections P Howard-Needles contends that only a visual inspection was required and that it was not required to conduct follow-up tests. The plaintiff contends that professional engineering standards have been established which require more than a mere visual inspection of a bridge. At the trial, the duty to protect the safety of the public by following proper engineering standards for the inspecting of bridges was recognized without contradiction by the professional witnesses. There was substantial evidence presented to prove the standard of care required of professional engineers for inspection of bridges with concrete decks. There was introduced into evidence, as an exhibit, the “Manual for Maintenance Inspection of Bridges 1978” prepared by the Highway Subcommittee on Bridges and Structures of the American Association of State Highway and Transportation Officials.
Section 2.4.2 governs inspection procedures and states in part as follows:
“2.4.2 Inspection Procedures. The inspection should include but not necessarily be limited to the following observations:
“(10) Deck.
“Concrete decks must be checked for cracking, leaching, scaling, pot-holing, spalling, and other evidence of deterioration. Each item must be evaluated to determine its effect on the structure and the work required to restore the loss of structural integrity and maintain a smooth riding surface. Evidence of deterioration in the reinforcing steel must be examined closely to determine its extent. Decks which are treated with deicing salts or are located in a salt air environment are especially apt to be affected.
“Asphaltic or other type wearing surface on a deck may hide defects in the deck until they are well advanced. The surfacing must be examined very carefully for evidence of deterioration in the deck. Such defects may show as cracking or breaking up of the surfacing or in excessive deflection. Areas where deck deterioration is suspected may require removal of small sections of the surfacing for a more thorough investigation. The underside of the deck slab should always be examined for indications of deterioration or distress. Note any evidence of water passing through cracks in the slab. When permanent forms have been used in construction of the deck, panels should be removed as determined by the Engineer.” (Emphasis supplied.)
The standard of care was also shown by the testimony of various professional witnesses called both by the plaintiff and by the appellant. Defendant’s expert, Thorn, the architect-engineer who designed the particular bridge deck in question, testified that the standard followed in inspection of bridges with concrete decks similar to this bridge was the “Manual for Maintenance Inspection of Bridges” mentioned above. He noted that the standards require the removal of small pieces of the slab for a more thorough inspection where areas of deterioration are suspected. In this regard, he testified that it would be appropriate to remove a section of asphalt to make a more thorough inspection of the concrete underneath. Mr. Shedd, who was the Howard-Needles employee in charge of inspections, testified as to various tests used in the inspection of bridge decks including a number of audio and electrical procedures. He testified that, if a visual inspection suggests bridge deterioration, then the inspector could go to the next inspection step. He stated, without equivocation, that the manual introduced into evidence is the authoritative source of standards followed by his profession in the inspection of bridges.
Other expert witnesses were called who testified, without exception, that the standard for bridge inspection is first a “careful visual inspection.” However, they agreed that a careful visual inspection may reveal certain deficiencies in the bridge or may lead to a suspicion of deficiencies to the extent that the inspector should go beyond the “careful visual inspection” and perform other tests to satisfy himself as to the condition of the bridge deck. Clearly under the evidence, the jury would have been justified in concluding that the standard for bridge inspections in the engineering profession begins with a “careful visual inspection” with follow-up tests or other forms of inspection which would be more likely to reveal the true condition of the bridge deck. The testimony of the expert witnesses further indicated that, in performing inspections, other factors should be taken into consideration. Such factors would include the history of the bridge, the traffic flow across the bridge, its prior reported condition, and other areas of suspicion concerning deck deterioration. Stated simply, there was substantial evidence from which the jury could have concluded that the standard of care required of a professional engineer in inspecting a bridge required more than a simple visual inspection.
Evidence that Defendant Breached Its Legal Duty by Failing to Conform to the Required Standard of Care
The defendant next contends that its post-trial motions should have been sustained, because there was no substantial evidence in the record to prove that the defendant breached its duty by failing to make more than a visual inspection or by failing to make an adequate report of inspections. A review of the record shows that the defendant’s bridge inspectors, Lowell Renner and Stephen Pellegrino, admitted that they had made only a visual inspection with no follow-up test because they were specifically told by their supervisor to make only a visual inspection. The testimony showed that there were approximately 345 bridges in the Kansas turnpike system. The jury was informed that the inspection made by Renner and Pellegrino of those 345 bridges and all of the facilities of the Kansas turnpike system was accomplished in a period of approximately five days. Suffice it to say,'the jury had before it substantial evidence from which it could have concluded that the inspection of bridge No. 231 was done in a negligent manner. The various reports of Howard-Needles reflect that the deck of bridge No. 231 showed severe deterioration from 1964 through 1974 in the specific area that failed at the time of Robert E. Ingram’s death. Ten years prior to the accident, a Howard-Needles report contained a recommendation that tests be made for the purpose of considering whether deck replacement was advisable. Further reports, while reflecting that some minor repairs to the bridge deck were accomplished, did not reflect that further inspections or repairs were ever performed. The reports for the years 1977-78 did not indicate any conditions of deterioration, nor did they recommend repairs to the bridge deck. The evidence was thus sufficient to show that defendant Howard-Needles, acting through its employees, failed to exercise reasonable care in inspecting bridge No. 231, where the fatal accident occurred.
The defendant’s next point on the appeal is that its post-trial motions should have been sustained, because there was no substantial evidence in the record to show that the defendant’s breach of duty was a contributing cause to the decedent’s injuries and death and to the resulting damages. We find this point to be without merit. Ordinarily, the question of whether a negligent act is the proximate or efficient cause of an injury is one for the jury. Steele v. Rapp, 183 Kan. 371, 383, 327 P.2d 1053 (1958). Here the testimony of expert witnesses established that the deck was severely deteriorated and that it was predictable that spalls and holes would appear therein. The evidence was sufficient to establish that the dangerous condition in the bridge deck due to deterioration could have reasonably occurred, as it did, prior to another visual inspection by Howard-Needles. In summary, the question as to whether defendant’s negligence was a contributory cause of the accident was a determination to be made by the jury. The jury was justified in finding that it was a foreseeable consequence of defendant’s negligence in failing to properly inspect the deck of bridge No. 231 and in failing to advise KTA of the deteriorated condition thereof, that injury would result therefrom to a traveler on the turnpike, and, therefore, that the defendant’s negligence was the proximate cause of the injuries and death of the plaintiff s decedent.
The defendant next maintains that the jury’s award of damages was so excessive as to show passion and prejudice of the jury as a matter of law, and that the defendant should be granted a new trial or a remittitur. This issue was considered by the trial court in determining defendant’s post-trial motions and was rejected. In its memorandum opinion on the issue, the trial court pointed out that it is elementary law in damage actions that the assessment of unliquidated damages must rest in the sound discretion of the jury and the amount to be awarded is ordinarily a question for the jury. In Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 736, 522 P.2d 176 (1974), the Kansas rule relating to excessive verdicts is set forth in syllabus ¶ 1 as follows:
“Where the charge of excessive verdict is based on the passion or prejudice of the jury and depends for support solely on the size of the verdict, the trial court will not be reversed for refusing a new trial, nor will a remittitur be ordered, unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court.”
In the opinion, Justice Fontron points out that the rule, like many others in the field of law, is more difficult to apply than to state. The difficulty, of course, when it comes to applying the rule, is simply this: What is unconscionable is not subject to precise and unequivocal definition. What is shocking to the conscience depends upon the amount of the verdict as related to the facts and circumstances of a given case. He notes that each case must stand on its own facts. The explanation for the lack of dollars and cents uniformity in Kansas cases is discussed in Domann v. Pence, 183 Kan. 135, 325 P.2d 321 (1958), as follows:
“Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of the jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.” p. 141.
The trial judge, while noting that the verdict of the jury in this case was substantial, did not find it to be “outrageous or shocking to the conscience of the court.” The court indicated that the jury verdict was reflective of the horrible manner in which Mr. Ingram met his untimely death. The evidence disclosed that Ingram survived the fall of his truck to the ground below and that, without doubt, he suffered greatly before he was ultimately consumed by the flames. The coroner’s report showed that Mr. Ingram’s death was caused by the carbonization of the soft structures of his face and scalp and deep burns of the entire body. The majority of this court agree with the trial court, and the jury’s substantial award of $350,000, for conscious pain and suffering, did not indicate as a matter of law any passion or prejudice on the part of the jury. We hold that, under all of the circumstance, the award of $350,000 to the estate of Robert E. Ingram was “in harmony with the evidence.”
As to the compensatory damages awarded by the jury to decedent’s heirs in the amount of $360,000, the jury had before it evidence of the income of Robert Ingram, his age, his customary living expenses, and his expected earning capacity during the remainder of his life expectancy. We cannot say that the amount of $360,000 was so excessive as to indicate any passion and prejudice on the part of the jury or to shock the conscience of the court.
The defendant’s final point is that a new trial should be granted because of misconduct of trial counsel and of the trial court. We have carefully considered the record in this regard and find this point to be without merit.
The judgment of the district court is affirmed. | [
-16,
104,
-16,
-1,
8,
-30,
26,
26,
91,
-61,
-91,
83,
-17,
-53,
5,
99,
126,
61,
81,
107,
-13,
-73,
83,
-102,
-46,
115,
-7,
-60,
-69,
88,
108,
-41,
76,
32,
10,
-99,
-90,
74,
69,
92,
-52,
14,
-117,
-11,
92,
-112,
50,
106,
-42,
79,
49,
-99,
115,
56,
25,
-57,
45,
60,
43,
-86,
-61,
-79,
-119,
21,
126,
21,
-96,
4,
-68,
9,
-24,
27,
-40,
-79,
40,
-84,
48,
-74,
-62,
-28,
97,
-55,
12,
-26,
98,
32,
5,
-113,
-20,
-104,
14,
-14,
-83,
-121,
-102,
88,
-15,
-119,
-65,
29,
120,
22,
4,
124,
-2,
70,
89,
40,
-127,
-117,
-76,
-79,
-49,
112,
-100,
11,
-21,
13,
50,
113,
-49,
-80,
79,
71,
115,
27,
19,
-74
] |
ORDER OF PUBLIC CENSURE
On May 23, 1983, a duly constituted panel of the Board for Discipline of Attorneys filed its report with the Clerk of the Appellate Courts in which it found the respondent, Charles I. Platt, guilty of certain violations of the Code of Professional Responsibility Rule 225. 230 Kan. cxi. The respondent filed no exceptions to the report of the disciplinary panel.
The evidence disclosed that respondent was retained to represent the Estate of Emma Schmidt, which was probated in Dickinson County, Kansas. What started out to be a routine probate proceeding soon developed into a bitter family fight and will contest. It would serve no useful purpose to detail the long and acrimonious proceeding which ensued. Suffice it to say the panel found that respondent had unnecessarily delayed the closing of the estate which constituted neglect of a legal matter entrusted to him in violation of DR 6-101(A)(3). 230 Kan. cxxii. The panel also found that the respondent appeared to have violated DR 7-106(A). 230 Kan. cxxiii.
Based upon the evidence received, the disciplinary panel recommended that respondent be disciplined by public censure pursuant to Rule 203(a)(3). 230 Kan. xcix.
On September 16, 1983, respondent and his counsel appeared before this court to present argument as to the nature of the discipline to be imposed, if any. Counsel pointed out that the disciplinary panel had found certain mitigating circumstances and that “many of the problems and the objections raised in the Schmidt-Estate could have been resolved if a more cooperative attitude had existed among the heirs.”
The court, having carefully reviewed the record, finds that the report of the disciplinary panel should be approved and adopted.
It Is Therefore By The Court Ordered And Adjudged that the report of the panel of the Board for Discipline of Attorneys be accepted and approved.
It Is Further By The Court Ordered that the respondent be and he is hereby disciplined by Public Censure, the costs herein are assessed to the respondent and the Reporter of the Appellate Courts is directed to publish this order in the official Kansas Reports.
Effective this 21st day of October, 1983. | [
-76,
-24,
-35,
-98,
42,
96,
-70,
-88,
65,
-63,
-13,
83,
109,
-54,
-123,
107,
82,
57,
84,
107,
-59,
-74,
115,
-30,
70,
-13,
-7,
-35,
-77,
127,
-27,
-75,
73,
98,
66,
-107,
6,
-64,
-45,
80,
-122,
6,
73,
-11,
-37,
64,
48,
111,
-105,
31,
85,
46,
-77,
42,
29,
67,
108,
56,
-5,
45,
65,
-79,
-97,
-107,
126,
18,
-127,
-91,
-102,
7,
-48,
127,
-104,
49,
-128,
-24,
51,
-90,
22,
118,
111,
-39,
13,
103,
34,
37,
69,
-27,
32,
-120,
15,
52,
-116,
35,
-103,
80,
35,
9,
-66,
-47,
101,
16,
35,
-4,
-26,
5,
25,
108,
-119,
-117,
-60,
-111,
95,
119,
-102,
26,
-21,
-124,
18,
17,
-120,
-78,
95,
-122,
51,
27,
-114,
48
] |
The opinion of the court was delivered by
Miller, J.:
The defendant, Nathan Henry Crispin, was con victed of second-degree murder by jury trial in the district court of Montgomery County, Kansas. He appeals, raising some eight issues which we will state and discuss later in this opinion.
The body of Emmit Gary Shipp was discovered on January 25, 1981. It was partially concealed by brush and was found close to some railroad tracks a short distance from Caney, in Montgomery County, Kansas. The body was identified by means of a driver’s license in a billfold found in the deceased’s clothing. The victim had been badly beaten, particularly about the head and face, and he had been shot six times with a .38 caliber handgun. His ankles were bound together with rope. He was wearing only one shoe. A shoelace was found near the body.
On the following day, police officers in Alva, Oklahoma, about 200 miles west of the spot where the body was found, discovered an abandoned pickup truck behind a restaurant. The truck was bearing Colorado license plates. Upon running a routine check, they discovered that the truck was registered to Emmit Gary Shipp, and that the truck was sought in a homicide case in Kansas. Montgomery County officers were notified, and they proceeded to Alva, Oklahoma. Upon inspection of the truck, the officers observed false teeth and blood in the truck’s bed. Also found in the pickup were five spent .38 caliber shells, a loaded shotgun, an unloaded Colt .45 caliber revolver, some loose .22 caliber shells, a tire iron, a piece of bloody rope, and a shoe with no lace. The bloody rope from the truck matched that found around Shipp’s ankles. The shoe found in the truck appeared to be the mate of the one found on the body. The shoelace found with the body appeared to have come from the shoe found in the truck. The teeth found in the truck constituted a partial plate, which fit perfectly into the mouth of the deceased. The rope found in the pickup and the rope found tying the deceased’s legs together were similar in construction, appearance and material.
An autopsy was performed, and the coroner testified at the trial that any of three gunshot wounds could have caused death. The coroner found powder burns on the body from four of the wounds and powder burns on the victim’s clothing at the location of two other entry wounds. He estimated that these bullet wounds were inflicted at relatively close range. The victim’s nose was broken and there were numerous contusions and abrasions about the head, back, right knee, and right lower leg.
On January 22, 1981, three days before the body was discovered, the defendant and a man named Louie Smith were seen at several places with Shipp, driving Shipp’s truck, in Montgomery County. The three men had driven together from Colorado to Kansas, apparently on some sort of. mission involving tracking down some people who had stolen money or drugs from Shipp. At a Phillips 66 station in Chetopa, an attendant saw defendant throw Shipp to the ground. Shipp temporarily took shelter in the women’s restroom. After the three men left the service station, Chetopa police officers saw them in town. Later, they were again seen in Coffeyville by a waitress in a Sambo’s restaurant. She saw the defendant elbow Shipp. Shipp was the only one of the three who appeared intoxicated. The waitress was the last State’s witness who saw Shipp alive. Early on the morning of January 23, defendant and Smith were seen crossing the street toward the bus station in Alva, Oklahoma, where the truck was found. Two bloody duffle bags, containing Shipp’s personal effects, were found in a trash dumpster about a mile from where the truck was discovered.
Louie Smith was never brought to trial; we are informed that he died in New York. Defendant Crispin was arrested in Idaho. Two convicts, Jim Leytham and John Hancock, who were confined in the same jail with defendant in Idaho, testified that the defendant admitted to each of them that he — Crispin—fired the shot which killed Emmit Gary Shipp. The defendant took the stand in his own defense. He admitted that he had a disagreement with Shipp, that he knocked him out, and that he loaded him into the bed of the pickup truck. He testified that he was driving, and that Louie Smith climbed through the window into the back of the pickup truck, struck Shipp several times with a heavy pipe wrench, eventually climbed back into the truck, and took out a .38 caliber revolver from the glove compartment. Defendant was driving; Smith was sitting in the passenger seat. According to defendant, Smith turned and fired several times toward Shipp, who was in the bed of the pickup. Smith then said, “Nathan, we are in this together. You got to shoot him too.” Defendant testified that he then took the gun and fired one shot out of the rear window, without aiming at the body. Later, on cross-examination, he said, “I shot him one time after he was dead.”
We now turn to defendant’s claims of error. He first contends that the trial court erred in denying his pretrial motion for change of venue. It has long been our rule that one moving for a change of venue has the burden of establishing prejudice, and that specific facts and circumstances must be established which show that it will be practically impossible to obtain an impartial jury to try the case in the original county. State v. Rainey, 233 Kan. 13, 14, 660 P.2d 544 (1983); State v. Salem, 230 Kan. 341, 343, 634 P.2d 1109 (1981). Defendant’s motion for change of venue was based primarily, if not altogether, upon the effect of pretrial publicity in the form of radio broadcasts and newspaper articles. On the whole, these appear to be simply objective reports of the facts. Defendant does not claim that the reports contain highly inflammatory statements. Defendant offered no testimony in support of his motion, and the only affidavit offered was that of a radio station news director, authenticating the transcripts of the broadcasts. No specific facts of the type necessary to sustain the motion were presented. Furthermore, the record of the voir dire demonstrates the absence of prejudice in the community. Only two jurors were challenged and excused for cause, and the entire voir dire took a little over four hours. Additionally, we note that none of the three principals involved — the defendant, the deceased, and Smith — were residents of the State of Kansas; none were well known in the area where the offense occurred and where the case was tried. Clearly, the trial judge did not err in denying defendant’s motion for change of venue.
Defendant challenges the propriety of the trial court’s action in admitting some fifteen photographs into evidence. The first six are views of the body concealed in the brush where it was found. They show that the legs were bound, that a shoe was missing, and that the body was partially hidden. Two of these photographs are close-ups of the victim’s face, taken at the scene, and these clearly show that the victim had been severely beaten. The rest of the photographs were taken after the victim was removed from the scene. These are external views of the body and the head, taken from various angles, and showing the numerous wounds suffered. The record discloses that the coroner used these photographs extensively in illustrating his testimony. Defendant relies primarily upon State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975). In that case, the autopsy photographs were not external views, but views of the body after it was split open, exposing the various internal organs. The state of the victim’s body in this case, however, had not been changed significantly when the photographs were taken.
As we noted in State v. Crump, 232 Kan. 265, 271, 654 P.2d 922 (1982):
“We have faced this issue many times and have often said that so long as the photographs are relevant and help the jury to better understand the testimony and other evidence in the case, they are not inadmissible simply because they portray the macabre result of a violent and heinous crime. State v. Johnson, 231 Kan. 151, 643 P.2d 146 (1982). The photographs were utilized by the pathologist to explain his testimony and were also relevant to show, by the extent of the damage, the wilful and purposeful nature of the defendant’s acts and the violent nature of the victims’ deaths. The admission of such evidence is discretionary with the trial court and no abuse of that discretion has been shown.”
Defendant suggests that the photographs were repetitious; however, there were numerous injuries, the photographs showed different views of the deceased, and the pathologist referred extensively to the photographs during his testimony. Under the circumstances, the trial court did not abuse its discretion in admitting the photographic exhibits.
Defendant contends that the trial court erred in permitting the prosecutor, during cross-examination, to question the defendant about his failure to take a polygraph test. The general rule, of course, is that in the absence of a stipulation between the parties, the results of a polygraph test are inadmissible. State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981). No results were offered, however, since the defendant did not take a polygraph test. He introduced the subject of polygraph examinations during his direct testimony, stating in substance that at various times he told Deputy Glen Sutton and Deputy Jack Daniels that he would take a polygraph test. Once the subject was raised by defendant during his direct examination, it was legitimately an area for cross-examination. State v. Ramsey, 228 Kan. 127, 129, 612 P.2d 603 (1980). As we said in State v. Dargatz, 228 Kan. 322, 331, 614 P.2d 430 (1980),
“[()]nce an issue is raised on direct, the ‘door is open,’ and ‘the cross-examination may go into any phase thereof and may extend to the entile subject matter; it is not restricted to the identical details developed on direct examination or the specific facts testified to in chief.’ ”
And see State v. Bagby, 231 Kan. 176, 642 P.2d 993 (1982).
We further note that no contemporaneous objection to the cross-examination was lodged at trial, as is required by K.S.A. 60-404. We find no error in the challenged cross-examination.
Defendant contends that the trial court erred in failing to instruct the jury on involuntary manslaughter. Defendant was charged with murder in the first degree, and the trial court instructed the jury on murder in the first and second degrees and voluntary manslaughter. Although requested to do so by the defendant, the trial court did not instruct the jury on involuntary manslaughter.
K.S.A. 21-3107(3), since amended, imposes a duty upon the trial court to instruct the jury as to all lesser crimes of which the accused might be found guilty under the charges contained in the information and upon the evidence adduced. This duty, we have frequently noted, arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. See State v. Chears, 231 Kan. 161, 165, 643 P.2d 154 (1982), and cases there cited. Further, when considering the refusal of a trial court to give instructions requested by the defendant, an appellate court must consider the evidence supporting those instructions in the light most favorable to the defendant. State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983); State v. Farmer, 212 Kan. 163, 510 P.2d 180 (1973).
The issue then is whether the evidence supports a conviction of involuntary manslaughter. The offense is defined by K.S.A. 1982 Supp. 21-3404:
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.
“. . . As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state, which statute or ordinance is enacted for the protection of human life or safety.”
As we noted in State v. Staab, 230 Kan. 329, 340, 635 P.2d 257 (1981):
“This court has held that even though the shooting is intentional, only the killing must be unintentional to fall within the definition of involuntary manslaughter. State v. Gregory, 218 Kan. [180] at 184 [542 P.2d 1051 (1975)]; State v. Childers, 217 Kan. 410, 416, 536 P.2d 1349 (1975). But even if the killing is unintentional there must be evidence it was done either 1) in a wanton manner during the commission of a misdemeanor, or 2) during the commission of a lawful act in an unlawful or wanton manner.”
Defendant testified that his part in the killing of Shipp was unintentional. He admitted knocking him out and putting him in the back of the pickup truck, and then later firing a shot through the sliding rear window without taking particular aim. Thus, from the defendant’s testimony, there was evidence that he did not intend to kill Shipp when he fired the shot. There is no evidence, however, that the shot was fired in a wanton manner during the commission of a misdemeanor, or in the alternative, that it was fired during the commission of a lawful act in an unlawful or wanton manner.
In State v. Seelke, 221 Kan. 672, 561 P.2d 869 (1977), we discussed the necessity for giving an instruction on involuntary manslaughter in cases in which a higher degree of homicide is charged. Though the defendant in Seelke did not claim to be intoxicated at the time the offense was committed, we discussed evidence of intoxication in homicide cases and said:
“[W]hen a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind. In State v. Rumble, 81 Kan. 16, 105 Pac. 1, this court held that drunkenness may reduce a homicide' from murder to manslaughter if it is so extreme as to prevent the existence of an intention to kill.” 221 Kan. at 678.
In the case at hand, while the-defendant made a general claim of intoxication, he did not claim that he was so intoxicated that he did not know what he was doing. He testified in detail as to his acts and those of the victim and Smith immediately before, during and after the commission of the homicide. The defendant’s own evidence negates any claim that his intoxication was so extreme that he could not form an intent to kill. In fact, the defendant testified that a short time before the shooting, he struck the defendant, knocked him out, loaded him into the bed of the pickup truck, and drove off. He remembered his intentions at that time clearly enough to testify that he did not intend to kill the deceased. Under all of the circumstances of this case, we conclude that the trial court was correct in refusing to instruct the jury on involuntary manslaughter.
Defendant also contends that the trial court committed error in failing to instruct the jury on compulsion as a defense. K.S.A. 21-3209 provides in applicable part that:
“A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which lie performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him ... if he does not perform such conduct.”
This defense was not available to the defendant for two reasons. First, by the explicit terms of the statute, the defense of compulsion is not available on charges of murder or voluntary manslaughter. These were the only charges which were submitted to the jury. Second, the compulsion must be present, imminent, and impending; it must be continuous; and there must be no reasonable opportunity to escape from the compulsion without committing the crime. State v. Myers, 233 Kan. 611. Here, the evidence disclosed no implicit or implied threat of imminent bodily harm. When Smith handed the defendant the loaded gun, defendant could have captured Smith, thrown the gun out the window, or refused to fire the weapon at Shipp. The trial court did not err in refusing the requested instruction.
Defendant contends that the trial court erred in sentencing him under the habitual criminal act for three reasons: (1) his prior felony conviction in California was for driving while intoxicated, a felony under California law but not under Kansas law; (2) there was insufficient documentation of the California conviction, and (3) the trial court abused its discretion in imposing the sentence of thirty years to life.
K.S.A. 21-4504, the Kansas Habitual Criminal Act, provides in substance that the act may be applied once the trial court finds from competent evidence the fact of former convictions for felony committed in or out of this state. There is nothing in the act which requires that the foreign conviction be for an offense which is a felony under the laws of this state. In State v. Crowe, 207 Kan. 473, 477, 486 P.2d 503 (1971), we considered the same point involving a Texas conviction and we held that it was sufficient that the offense was a felony as defined by the laws of the other state or jurisdiction. Defendant’s conviction in California was under a section of the California code making it a felony for any person, while under the influence of intoxicating liquor, or intoxicating liquor and any drug, to drive a vehicle and while so driving to do any act or neglect any duty imposed by law, which act or neglect proximately causes death or bodily injuries to any other person. While we have no similar Kansas statute, the offense is clearly a felony under California law and a conviction thereunder is sufficient to support the invocation of the Kansas Habitual Criminal Act.
We turn next to the records upon which the trial court based its finding that defendant had a former felony conviction in California. The first is a certified and authenticated copy of an order of the Superior Court of Placer County, California, suspending the imposition of sentence for a period of three years and placing the defendant on probation for that period of time. The order recites that the defendant, on October 25,1973, entered a plea of nolo contendere to a violation of California Vehicle Code Section 23101, “driving under influence of intoxicating liquor causing bodily injury, a felony, as charged in the Information filed herein . . . .” The defendant, in writing, acknowledged a copy of the court’s order. Also furnished to the trial court was a rap sheet provided by the California Bureau of Identification, disclosing the California felony conviction. A photograph of the defendant and his fingerprint card and a certified and authenticated copy of the arrest disposition record maintained by the Sheriff of Placer County, California, reflected disposition of the felony charge of driving under the influence of intoxicating liquor causing bodily injury. The statute merely requires “competent evidence.” The certified and authenticated copies of these records constituted competent evidence of the former conviction. State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979).
We turn now to defendant’s contention that the trial court erred in imposing the maximum term allowed by law. Defendant points to a number of facts which he contends mandate a lighter sentence. These include evidence that the defendant has had drug problems and had been drinking at the time Shipp was murdered; that when defendant was six years old, his father shot his mother and committed suicide in defendant’s presence; that defendant has potential to contribute to society; and that Shipp may have brought this on himself. The facts disclose an exceptionally brutal homicide in which the victim was beaten with fists and a large wrench or other implement, bound hand and foot, and shot six times at close range. There was no evidence of significant provocation and no evidence that the victim induced or facilitated his own death. While the trial judge did not explicitly state on the record that he considered each of the factors enumerated in K.S.A. 21-4606, he did indicate that he was considering many of those factors, and others are wholly unsupported or are inapplicable. The better practice is for a trial judge to make a detailed record of the facts and factors considered in imposing sentence. State v. Coberly, 233 Kan. 100, 111, 661 P.2d 383 (1983). Also in Coberly at page 110, we said:
“It is a long standing rule in Kansas that this court will not disturb a sentence imposed by a trial court on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive. State v. Words, 226 Kan. 59, 67, 596 P.2d 129 (1979); State v. Buckner, 223 Kan. 138, 150, 574 P.2d 918 (1977). It is necessary the complaining party show vindictive or retaliatory motives, or that judicial discretion was abused, to successfully attack the penalty imposed. State v. Words, 226 Kan. at 67; State v. Eaton, 213 Kan. 86, 89, 515 P.2d 807 (1973).”
The sentence is within the limits prescribed by statute, and there is nothing in the record to indicate partiality, prejudice, oppression, corrupt motive, vindictiveness, or abuse of judicial discretion. We find no error.
Defendant contends that the trial court erred in allowing into evidence parts of the testimony of John Hancock. As we stated earlier, John Hancock was a convict with whom the defendant conversed while being held in Boise, Idaho, for Kansas authorities. At trial, Hancock acknowledged that he had spent thirty-six years behind bars. He had been transferred to the Idaho facility because he was scheduled to testify against other convicts who staged a prison riot. The bulk of his objectionable testimony related to his abhorrence of violent crimes, his attempts to stop prison riots and his great dislike for unnecessary violence. This objectionable testimony included some details of the Idaho State Correctional Institution riot that Hancock said he tried to stop. Hancock stated that the riot was not justified, and that he was going to testify against those who started it. He stated that his time in prison goes back to the time of the Loeb and Leopold case, which he described briefly. He said that that case now would not even make the newspapers because of today’s widespread violence. According to Hancock, in the old days a robber did everything he could to prevent anybody from getting hurt when he went out on a stickup. The violent young offenders continue their violence when they get into the penitentiaries, which is a disservice to the eighty to ninety percent of the inmates who are trying to get along and do their time. In addition, he gave the details of his conversations with the defendant. At first the defendant told Hancock that he was blaming most of this on the other fellow (Smith). Later, he was taking credit for beating the victim with an iron bar and shooting him.
The Idaho prison riots, the Loeb and Leopold case, the violence of certain prisoners, and the witness’s ranting about the way prison life has degenerated, are certainly collateral to the issue in this case. The statements were not relevant to the issue of whether or not the defendant murdered Shipp; their only significance was to establish Planeock’s motive for testifying in the case, and the statements went well beyond a simple statement of that motive. We hold that the trial court abused its discretion in allowing the witness to pursue this tirade.
Having determined that this was error, was it harmless error? For trial error to be harmless, an appellate court must be able to declare beyond a reasonable doubt that the error did not change the outcome of the trial. State v. Norman, 232 Kan. 102, 108, 652 P.2d 683 (1982). In addition to Hancock’s testimony about defendant’s statements to him, another inmate, Jim Leytham, testified fully about defendant’s admission of the killing while defendant was awaiting extradition in Idaho. Hancock’s statements must be placed in the context of a lengthy jury trial in which much strong evidence was introduced tending to convict the defendant. The State’s case was overwhelming. We therefore conclude that the admission of the irrelevant portions of Hancock’s testimony was harmless error.
Finally, defendant contends that the trial court erred in denying defendant’s motion for new trial. All of the issues raised in this appeal, with the exception of that concerning the polygraph test, were relied upon in defendant’s motion. Since we have determined each of those issues adversely to him, we hold that the trial court properly overruled his motion for a new trial.
The judgment is affirmed.
Schroeder, C.J., concurs in the result. | [
-16,
110,
-31,
-99,
59,
98,
42,
56,
113,
-16,
101,
83,
13,
-53,
5,
121,
42,
31,
117,
105,
-75,
-73,
67,
-64,
-110,
51,
-69,
-106,
-78,
73,
36,
-43,
94,
96,
74,
-43,
-90,
10,
-63,
94,
-50,
4,
-71,
-16,
86,
64,
-80,
46,
102,
15,
53,
47,
-125,
42,
26,
-57,
41,
42,
74,
-81,
0,
-79,
-23,
-107,
-68,
22,
-125,
6,
-98,
13,
-40,
59,
-47,
49,
0,
-24,
91,
-90,
-126,
-12,
45,
-115,
12,
102,
3,
35,
-99,
-19,
44,
-119,
47,
122,
-113,
-89,
-104,
24,
97,
15,
-106,
-99,
103,
80,
10,
-8,
-16,
77,
-33,
108,
-121,
-50,
-80,
-111,
15,
48,
-110,
-70,
-5,
5,
34,
113,
-52,
-14,
92,
100,
124,
-37,
-113,
-80
] |
The opinion of the court was delivered by
Holmes, J.:
Robert C. Rogers appealed his convictions by a jury of two counts of attempted felony theft. K.S.A. 21-3301 and K.S.A. 21-3701. The Court of Appeals reversed the convictions in an unpublished opinion. (State v. Rogers, No. 54,940, opinion filed July 28, 1983.) We granted review on a petition filed by the State of Kansas. The appellant asserts error in the failure of the trial court to give his requested instruction on entrapment as found in P1K Crim. 2d 54.14. The facts will be set forth in detail.
In January, 1982, the Kansas Rureau of Investigation organized the Special Crime Attack Team (SCAT) to investigate and prevent property crimes in the Topeka area. SCAT employed an undercover operative, Charles Anderson, a confessed thief, to assist in detecting criminal activity.
On January 25, 1982, police purchased a color television set from a local furniture store and delivered it to Anderson. That afternoon Anderson placed a telephone call to defendant Rogers to inquire if he was interested in purchasing the set. Anderson had given permission for the police to monitor and record this conversation. After the call, Anderson went to defendant’s liquor store in east Topeka. While under police surveillance, Anderson delivered the television set to Rogers and received $100.00 from him. Again, with Anderson’s permission, police videotaped this transaction and recorded the conversation. At no time did Anderson state to the defendant, or even convey the impression, that the television set was stolen. Anderson turned the money over to a police detective, who marked it for evidence.
Following this sale, a “critique” was held between the police and Anderson, during which they reviewed the inadequacy of the first sale, pointing out that the television set had not been represented to Rogers as stolen goods. Anderson was told several times that the merchandise would have to be represented as stolen for the investigation to have any effect and for it to support criminal charges. Anderson was then given a small 12” Zenith black and white television set which the police had likewise purchased from a local furniture store and he was sent forth to try again.
On January 28, 1982, another sale was arranged between Anderson and Rogers. This time, during the telephone conversation prior to the meeting, Anderson specifically stated that the set he had for sale had been stolen from a warehouse in Lawrence. Although Rogers did not deny the statement may have been made, he testified he did not recall this statement since he was busy serving customers at the time and several of his friends were in the store playing cards, resulting in considerable noise and distraction. After the call Anderson proceeded to defendant’s store and sold the television set to defendant for $20.00. This telephone call and sale were also monitored and recorded with Anderson’s consent.
Rogers was arrested on March 11, 1982, and during a consensual search of his home, the 12” Zenith black and white television set was recovered. Other television sets were found but none were identified as stolen. The color television was never located and defendant could not specifically recall purchasing it from Anderson, although he did not deny that possibility.
At trial defendant requested a jury instruction on the defense of entrapment based upon K.S.A. 21-3210. This request was denied by the trial judge on the grounds entrapment is an affirmative defense, unavailable to an accused who admits no wrongdoing. More specifically, the court relied on our decision in State v. Gasser, 223 Kan. 24, 574 P.2d 146 (1977), stating:
‘Entrapment is a defense used to negate a defendant’s criminal intent to commit the crime for which he is charged by showing that the real criminal intent was conceived by law enforcement officials.’ [223 Kan. 24, Syl. ¶ 2.] Well, it just seems, to me, that here the defendant denies any criminal intent, denies that he knew or had any reason to believe that the property was in fact stolen, and it seems that the entrapment defense would then not be available to him in that it just would not go to negate — it can’t go to negate a non-existent intent, I guess is what I am saying. . . .”
It should be noted, however, that in Gasser the factual issue of whether there was an entrapment was submitted to the jury.
The jury, in the instant case, returned a verdict of guilty on both counts of attempted felony theft. Defendant Rogers thereáfter appealed, arguing that on the facts and evidence before the trial court it erred in refusing to give the requested instruction on entrapment. The Court of Appeals agreed.
K.S.A. 21-3210 provides:
“Entrapment. A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer or his agent for the purposes of obtaining evidence to prosecute such person, unless:
(a) The public officer or his agent merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or a co-conspirator; or
(b) The crime was of a type which is likely to occur and recur in the course of such person’s business, and the public officer or his agent in doing the inducing or soliciting did not mislead such person into believing his conduct to be lawful.”
Defendant entered a plea of not guilty and maintained throughout the trial that he had no knowledge the television sets might have been stolen, would not have bought them if he thought they were stolen, and therefore could not have had any criminal intent in purchasing them. His other defense of legal impossibility, because the television sets were not in fact stolen merchandise, was determined adversely to defendant’s position in State v. Logan & Cromwell, 232 Kan. 646, 656 P.2d 777 (1983), and is not an issue on appeal. It is the contention of the State that defendant’s plea of not guilty is inconsistent with his defense of entrapment and that as defendant has not admitted all the elements of the crimes charged, he cannot rely on the entrapment defense. It is argued that the defendant cannot assert on one hand that he had no intent to commit the crime and on the other hand say that if he did, the intent was placed in his mind by the police. It must be conceded that our past decisions are unclear as to when the defense of entrapment is available.
Prior to 1970, the defense of entrapment was not statutory although its existence appears to have been first judicially recognized in Kansas in 1879 by Justice Brewer in State v. Jansen, 22 Kan. 498 (1879). In State v. Reichenberger, 209 Kan. 210, 495 P.2d 919 (1972), Justice Kaul traced the history of the entrapment defense from its inception in Jansen through the passage of K.S.A. 21-3210 by the legislature in 1969. Historically, entrapment is an affirmative defense in the nature of confession and avoidance; that is, the defendant must admit the acts constituting commission of the crime charged, but, in avoidance, seek relief from guilt on the ground the criminal intent was not his, but that of law enforcement officers who implanted the idea in his otherwise innocent mind by suggestion or solicitation. State v. Fitzgibbon, 211 Kan. 553, 557, 507 P.2d 313 (1973). We have said the issue of entrapment depends on a defendant’s intent and predisposition to commit the crime charged. Fitzgibbon, 211 Kan. at 554-55. In State v. Bagemehl, 213 Kan. 210, 515 P.2d 1104 (1973), we held:
“The defense of entrapment presents to the trier of fact the question of defendant’s intent and predisposition to commit the crime charged.” Syl. ¶ 1.
“The extent of government activity in soliciting the crime charged is weighed by the jury against defendant’s willingness to comply, and other evidence of predisposition to determine whether defendant originated the criminal purpose or was entrapped.” Syl. ¶ 4.
“An accused can rely on the defense of entrapment when he is induced to commit a crime which he has no previous disposition to commit; however, he cannot rely on the defense when he originated a criminal purpose and was merely afforded an opportunity by law enforcement officers to consummate the crime.” Syl. ¶ 5.
The trial court is bound to give an entrapment instruction when evidence is submitted which supports entrapment as a defense. State v. Smith, 229 Kan. 533, 534, 625 P.2d 1139 (1981). As is the case with any instruction on a particular defense, defendant has the burden of introducing evidence supporting his theory. State v. Carter, 214 Kan. 533, 534-35, 521 P.2d 294 (1974).
Following the passage of K.S.A. 21-3210, we affirmed our holdings in Reichenberger in the case of State v. Fitzgibbon, 211 Kan. 553. In State v. Farmer, 212 Kan. 163, 510 P.2d 180 (1973), the defendant was charged and convicted of the delivery of a non-narcotic drug. Farmer admitted all elements of the offense except the sale itself, and sought an instruction on entrapment because of a police detective’s role as the buyer. After recognizing the Fitzgibbon rule that entrapment is generally unavailable to a defendant who denies commission of the offense charged, we reviewed the evidence in Farmer and held defendant entitled to an instruction on entrapment because “defendant’s testimony cannot be interpreted so as to constitute a denial of any involvement in the offense charged.” 212 Kan. at 168. Defendant Rogers claims the Farmer decision supports the Court of Appeals’ holding here, because in both cases defendants admitted substantial involvement in the crime, and yet both denied predisposition and actual culpability. In Farmer we stated:
“If the defendant offers some evidence in support of the defense of entrapment it becomes an issue to be determined by the trier of facts.” 212 Kan. at 165.
See also State v. Amodei, 222 Kan. 140, 563 P.2d 440 (1977).
The Court of Appeals, in its holding that the defendant in this case should have been granted an instruction on the defense of entrapment, stated:
“Defendant’s evidence consisted of his own testimony concerning his prior dealings with Anderson. Defendant testified that he had told Anderson on several occasions that he didn’t ‘want to have anything to do with any hot material, any stolen material or objects.’ Further, defendant testified that he did not hear Anderson state that a particular black and white television set was stolen. Although the State offered tape recordings of the conversation to prove the statement was made, defendant testified he did not hear the statement because friends and customers in his store distracted him at the time. When defendant’s evidence is considered in the light most favorable to him, it presents a question of fact for the jury to consider. As such, we find an instruction on entrapment should have been given.
“The State contends the entrapment defense is not available to one who does not admit to committing the crime. It argues a not guilty plea and a defense of entrapment are mutually exclusive. In State v. Amodei, 222 Kan. 140, 142, 563 P.2d 440 (1977), the court stated the general rule:
‘In order for defendant to be entitled to an instruction on any particular defense there must be some evidence to support that defense and justify the instruction. Entrapment may arise when defendant’s criminal conduct was induced or solicited by a public officer for the purpose of obtaining evidence to prosecute such person. Such a defense presupposes that defendant engaged in the criminal conduct.’
The court has carved out an exception to this general rule. In State v. Einhorn, 213 Kan. at 273 [213 Kan. 271, 515 P.2d 1036 (1973)], the court stated:
‘A defendant who refuses to admit any involvement in an incident out of which a criminal charge arises cannot use entrapment as a defense. A defendant who admits the acts charged by the state, but claims the acts fail to support a criminal charge, may raise entrapment as an additional defense. In situations where the defendant admits some involvement, but fails to admit all the facts alleged by the state, he may or may not be entitled to claim entrapment, depending on the degree of involvement he admits. Admission of substantial involvement would tend to permit the defense, while slight and limited admission would tend to deny the defense.’
The State seeks to narrow the entrapment defense to those instances in which defendant admits guilt. We find this would place a defendant in the untenable position of affirming wrongdoing, which would aid the State’s case, and relying solely on the jury’s judgment as to intent or predisposition.
“In the present case defendant concedes he purchased the television sets. The actual purchase of the sets is by no means ‘slight and limited,’ but is in fact ‘substantial involvement,’ which under Einhorn would tend to permit the defense. We therefore hold that the trial court erred in refusing to give a jury instruction oil entrapment.”
In State v. Einhorn, 213 Kan. 271, 515 P.2d 1036 (1973), we also held:
“When events culminating in a criminal offense commence with a police or police agent solicitation, the defense of entrapment normally presents a question of fact for the jury.” Syl. ¶ 2.
We agree with the Court of Appeals that defendant was entitled to an instruction on the defense of entrapment. His participation in every physical act charged by the State, denying only criminal intent, was properly found to be substantial involvement. A defendant always has the right to enter a plea of not guilty and insist that the State prove all of the elements of the crime charged.
The State contends that the rule adopted in Einhorn is difficult in its application and asks that we overrule Einhorn and adopt the rule that a defendant must admit all elements of the crime before raising a defense of entrapment. This we decline to do even though it appears that a majority of jurisdictions do adhere to that position. See Annot., 5 A.L.R. 4th 1128. The Einhorn rule was first enunciated by this court in 1973 and does not appear to have generated any great confusion in the trial courts or undue hardship in the prosecution of criminal cases.
The key to the defense of entrapment as developed in Einhorn is the admission of substantial involvement consistent with the defenses put forth by an accused. Inconsistent defenses which may not be asserted along with entrapment are those which deny such substantial involvement. For example, an alibi defense that defendant was not in Topeka on the dates in question is impermissibly inconsistent with entrapment because through the alibi, defendant has denied any substantial involvement in the acts charged. Such a defense would foreclose reliance on entrapment.
A not guilty plea is not, per se, inconsistent with the defense of entrapment when a defendant may consistently admit substantial involvement in the acts constituting the crime. We have recognized in a number of cases that, depending upon the facts of the case, the denial by a defendant of an act or element of the crime charged did not preclude the assertion of an entrapment defense where substantial involvement was admitted. (State v. Einhorn, 213 Kan. 271; State v. Farmer, 212 Kan. 163; State v. Fitzgibbon, 211 Kan. 553.) The State’s argument that a plea of not guilty and the defense of entrapment are mutually exclusive would hold true in a case where the nature of any other defense asserted is such as to deny substantial involvement. A criminal defendant must pick his position and consistently maintain it throughout his defenses — either he was substantially involved in the acts, or he was not. Only in the latter case are his defenses inconsistent with entrapment.
Defendant Rogers’ plea of not guilty in this case is consistent with the defense of entrapment because in any event he admits substantial involvement in the acts constituting the alleged crime. Given this consistent admission, his not guilty plea and theory of entrapment were permissible alternatives in that the trier of fact could find defendant had no criminal intent because he did not know the televisions were stolen, or in the alternative that whatever intent was present was not defendant’s but was planted by police operatives.
The decision of the Court of Appeals is affirmed, the judgment of the trial court is reversed and the case remanded for a new trial.
McFarland, J., dissents. | [
16,
-20,
-7,
62,
56,
-32,
42,
-72,
3,
-91,
-73,
83,
-83,
66,
5,
107,
-38,
37,
84,
97,
-34,
-73,
71,
115,
-42,
-13,
-37,
-43,
-65,
79,
-92,
-44,
73,
32,
-62,
85,
6,
-64,
-123,
-36,
-118,
1,
-102,
115,
-9,
64,
32,
40,
-80,
11,
113,
31,
-89,
42,
20,
-63,
-23,
40,
43,
-100,
80,
-15,
-70,
93,
-1,
22,
-93,
36,
-67,
5,
-40,
46,
-100,
57,
16,
-24,
123,
-90,
-122,
116,
73,
-119,
-116,
98,
98,
32,
92,
-83,
44,
-104,
38,
91,
-65,
-89,
-100,
72,
105,
37,
-105,
-99,
101,
-110,
11,
-28,
-13,
84,
95,
108,
11,
-58,
-124,
-109,
77,
112,
2,
90,
-1,
-95,
16,
112,
-51,
-30,
95,
87,
82,
27,
-114,
-43
] |
Per Curiam:
Two separate complaints were filed pursuant to Supreme Court Rule 212 (230 Kan. civ), against Charles A. Chartier, an attorney admitted to practice law in the State of Kansas. The other case is State v. Chartier, No. 55,819, this day decided. Docket No. W 2704 filed with the Roard for Discipline of Attorneys was a complaint alleging that respondent had failed to account and properly pay over funds due his client, caused garnishments to be issued for amounts not due and persistently refused to communicate with his client.
Respondent was retained by Debra J. Rowell, formerly Debra J. Painter, in divorce proceedings in the District Court of Geary County, Kansas, Case No. 80 D 195. Ms. Rowell paid respondent a retainer fee of $150.00 at the time that he commenced employment. Ms. Rowell understood that the total attorney fees would be $550.00, which fees would be collected from her husband. At such time as attorney fees were collected from her husband, Ms. Rowell understood that the retainer fee which she had paid in the amount of $150.00 would be refunded to her. No statements for services were ever sent by respondent to Ms. Rowell. The retainer fee advanced by Ms. Rowell has never been refunded to her.
Chartier filed the petition for divorce for his client. The temporary order filed with the petition required Mr. Painter to pay child support in the amount of $150.00 per month and temporary attorney fees for the wife in the sum of $400.00. November 20, 1980, the parties were divorced. Mr. Painter was ordered to pay child support in the amount of $300.00 per month, and the temporary order for the payment of attorney fees in the sum of $400.00 for Chartier was made a permanent and final judgment. The journal entry and decree of divorce were not filed until February 25, 1981, due to a disagreement between coúnsel for the parties.
In December, 1980, Ms. Rowell requested that Chartier assist in collection of the December, 1980, child support payment which had not been paid. No other request for assistance in collecting child support payments or for garnishments was made by Ms. Rowell of Chartier until July, 1981. The request for assistance in July, 1981, was withdrawn by the client prior to the issuance of garnishment by Chartier.
The docket maintained by the Clerk of the District Court of Geary County, Kansas (Clerk) shows that no child support payments were made during the month of December, 1980. During the year 1981, child support payments were made by or on behalf of Mr. Painter. Notwithstanding the records of the Clerk which showed child support payments, Chartier, without authorization from his client, continued to cause garnishments to be issued against the United States of America for wages due Mr. Painter. Those garnishments were issued on affidavits signed by Chartier and filed with the Clerk. Pursuant to those garnishments, funds were paid to Chartier. The two ledger sheets kept by the Clerk’s office indicate child support payments by Mr. Painter and garnishments by Mr. Chartier, as follows:
Date Amount Received Payment for
Ledger sheet
page 1:
January 2, 1981 $300.00 child support
January 30, 1981 300.00 child support
February 27, 1981 300.00 child support
April 6, 1981 300.00 child support
May 1, 1981 300.00 child support
May 18, 1981 359.52 garnishment to Chartier
June 17, 1981 300.00 child support
Ledger sheet
page 2:
July 29, 1981 359.52 garnishment to Chartier
August 5, 1981 300.00 child support
August 10, 1981 300.00 child support
September 8, 1981 300.00 child support .
September 17, 1981 426.32 garnishment to Chartier
October 7, 1981 300.00 child support
November 13, 1981 439.00 garnishment to Chartier
November 16, 1981 300.00 child support
December 7, 1981 300.00 child support •
December 14, 1981 446.19 garnishment to Chartier
Total child support - $3,600.00
Total garnishment paid to Chartier - $2,030.55
The funds paid to Chartier through the Clerk, as a result of garnishments which he caused to- be issued, exceeded the amounts due from Mr. Painter for child support and attorney fees. Chartier knew, or should have known through the exercise of reasonable diligence in examining the two ledger sheets of the Clerk, that the affidavits which he caused to be filed were inaccurate. As a result of Chartier’s garnishment, funds in excess of amounts due for child support and attorney fees were obtained from Mr. Painter by garnishment.
Funds obtained by respondent through garnishment were deposited in respondent’s general account where those funds were commingled with other funds belonging to Chartier. Ms. Rowell was not informed by Chartier that he had issued additional garnishments against Mr. Painter. None of the funds procured by Chartier through garnishment were paid to Ms. Rowell, except the sum of $275.84, which was paid her September 29, 1981. Ms. Rowell became aware of the garnishment by Chartier when her ex-husband stopped paying child support payments due to the overpayment of child support caused by Chartier’s unauthorized garnishments.
Chartier claims that most of the funds collected were applied to his fees due from Ms. Rowell for work performed during and subsequent to the divorce. Chartier originally obtained a retainer fee in the amount of $150.00 from Ms. Rowell when he undertook to represent her. Ms. Rowell understood that the total fee would be $450.00. Later, Chartier’s secretary told Ms. Rowell that the fee was increased to $550.00 because the divorce was a contested matter. In any event, Ms. Rowell was informed by Chartier all attorney fees would be collected from Mr. Painter, including the $150.00 retainer from Ms. Rowell, which would be refunded to her. Chartier claims he informed Ms. Rowell that when the matter became a contested divorce, he would charge her an hourly fee. There is no record of any discussion of an additional fee by Chartier.
No statements for fees and expenses were ever sent to Ms. Rowell by Chartier. No accounting of funds garnished by Char-tier was made to Ms. Rowell. While there is a dispute as to the exact amount owed Ms. Rowell, there was no dispute that the client was due the sum of $446.19 obtained by Chartier through garnishment on December 14, 1981. That amount has never been received by Ms. Rowell, and Chartier has no evidence of having paid such amount to her. Ms. Rowell filed suit to recover funds obtained by Chartier through the garnishments.
On July 2, 1981, prior to Ms. Rowell being awarded final custody of the children, the paternal grandparents of the parties’ minor children filed a motion for custody. A consent order was entered on that motion October 5, 1981, without the knowledge or consent of Ms. Rowell. Since custody was ultimately granted to Ms. Rowell, no harm was done. Ms. Rowell was not consulted with respect to such order and she was not notified of its entry by Chartier.
Other problems were encountered by Ms. Rowell with Char-tier’s representation. In April of 1982, Chartier informed Ms. Rowell a hearing had been set for custody of the children. Ms. Rowell appeared in court for the hearing. Chartier did not appear. When Ms. Rowell went to his office, Chartier reported the hearing had been cancelled because the matter was uncontested. Chartier informed Ms. Rowell of several subsequent hearings being set and cancelled for various reasons. The court records indicate a motion for change of custody was not filed until August, 1982. Ultimately, on September 2, 1982, custody of the minor children was granted to Ms. Rowell.
During the time Chartier represented Ms. Rowell, numerous telephone calls were made by Ms. Rowell to Chartier. Most of the telephone calls were not returned by Chartier. To confer with Chartier, Ms. Rowell would normally be required to go to Chartier’s office and wait for him to appear.
Formal complaints in both cases were filed February 16, 1983. The hearing on this complaint was held April 29, 1983, and the panel report recommending indefinite suspension was dated May 30, 1983. The respondent filed exceptions to the hearing panel’s report.
The panel concluded as follows:
1. Funds belonging to Ms. Rowell paid to respondent by the clerk of the district court from garnishments which respondent caused to be issued were deposited in his general account. DR 9-102(A) (230 Kan. cxxvii) requires that funds of a client shall be deposited in one or more identifiable bank accounts and that no funds belonging to the lawyer shall be deposited therein. Funds belonging to respondent were deposited therein, also. Respondent’s conduct constitutes a violation of DR 9-102(A).
2. Respondent failed to notify Ms. Rowell of the receipt of garnishment proceeds in violation of Canon 9. A lawyer is required by DR 9-102(B)(l) (230 Kan. cxxvii) to promptly notify a client of the receipt of funds..
3. Respondent has failed to render Ms. Rowell an appropriate accounting of funds coming into his possession through garnishments issued by him. DR 9-102(B)(3) (230 Kan. cxxvii) requires that a lawyer maintain complete records of all funds coming into his possession and render appropriate accounts to his client regarding them.
4. Respondent has failed to promptly pay or deliver garnishment proceeds paid to him to Ms. Rowell. DR 9-102(B)(4) (230 Kan. cxxviii) requires a lawyer to promptly pay or deliver to his client, as requested by the client, funds in the possession of the lawyer which the client is entitled to receive. While there is apparently some dispute as to the exact amount owing Ms. Rowell, partially due to respondent’s failure to keep proper records, it is undisputed that garnishment proceeds in the amount of $446.19 paid to respondent on December 14, 1981, have not been paid to Ms. Rowell. Such conduct constitutes a clear violation of DR 9-102(B)(4).
5. Notwithstanding persistent efforts on the part of Ms. Rowell to obtain a hearing on a motion for custody of her children, it required from November, 1981, to September, 1982, to obtain such a hearing. During that period of time, there were at least five continuances, respondent refused to respond to telephone calls from Ms. Rowell, and Ms. Rowell was required to go to respondent’s office-to make contact with him. The panel believes that such conduct constitutes a violation of DR 6-101(A)(3) (230 Kan. cxxii).
6. Affidavits signed by the respondent and filed with the Clerk misrepresented the amounts due from Mr. Painter. A simple examination of ledgers in the office of the Clerk would have shown that respondent sought to garnish amounts in excess of Mr. Painter’s obligations. DR 1-102(A)(4), (5) and (6) (230 Kan. cxi) generally prohibit conduct involving misrepresentation, conduct prejudicial to the administration of justice and any other conduct adversely reflecting on a lawyer’s fitness to practice law. Those funds garnished were not in turn paid to respondent’s client, Ms. Rowell, so that she was without the benefit of child support payments which the court ordered be paid for her children. Additionally, Mr. Painter suffered the inconvenience and embarrassment of improper garnishment. The panel concludes that such conduct constitutes misconduct as set forth in DR 1-102(A)(4), (5) and (6).
The panel was persuaded by clear and convincing evidence that respondent had violated the provisions of the Code of Professional Responsibility set out above. The panel believed that respondent’s pattern of conduct, particularly in failing to account and promptly pay over funds due his client, causing garnishments to be issued for amounts not due and persistently refusing to communicate with his client, required a serious discipline.
Accordingly, it was the unanimous recommendation of the panel that respondent be suspended from the practice of law by the Supreme Court pursuant to Rule 203(a)(2) (230 Kan. xcix).
The disciplinary hearing panel in this case recommended indefinite suspension. Recommendations of the Board of Discipline for Attorneys are advisory only and are not binding on this court. Supreme Court Rule 212(f) (230 Kan. cv). Misconduct by the respondent has been clearly and convincingly established, and it is the opinion of the court that the recommendation of indefinite suspension should be accepted.
IT IS THEREFORE ORDERED AND ADJUDGED that Charles A. Chartier be and he is hereby indefinitely suspended from the practice of law in the State of Kansas. The costs herein are assessed to the respondent.
IT IS FURTHER ORDERED AND ADJUDGED that the respondent shall forthwith comply with Supreme Court Rule 218 (230 Kan. cvii).
This suspension becomes effective when this opinion is filed with the Clerk of the Supreme Court. | [
-80,
-24,
-23,
93,
8,
32,
58,
10,
121,
-29,
37,
83,
-19,
-57,
0,
105,
-46,
41,
49,
113,
-59,
-73,
126,
-63,
-34,
-13,
-79,
-43,
-67,
79,
-27,
-12,
72,
48,
-86,
-107,
70,
-61,
-123,
92,
-74,
0,
9,
-16,
91,
-121,
48,
121,
18,
11,
53,
30,
-13,
43,
56,
-21,
108,
12,
-33,
-23,
-48,
-31,
-105,
21,
110,
86,
-79,
4,
-100,
7,
88,
63,
-120,
57,
0,
-23,
115,
-90,
6,
116,
7,
-99,
1,
108,
98,
34,
33,
-19,
-76,
-116,
46,
-39,
-97,
39,
-101,
88,
11,
-115,
-74,
-106,
117,
4,
-93,
-2,
97,
4,
63,
-28,
10,
-114,
-44,
-93,
15,
95,
-52,
26,
-17,
-90,
16,
81,
-49,
-94,
94,
-57,
59,
-101,
-98,
-66
] |
The opinion of the court was delivered by
Lockett, J.:
Case No. 55,087 is an appeal from an administrative order issued by the secretary of the Kansas Department of Health and Environment. On July 17, 1981, the secretary issued ex parte findings and conclusions regarding alleged violations by Pork Motel, Corp. of certain conditions made a part of a water pollution (sewage discharge) permit previously issued by the Kansas Department of Health and Environment (KDHE). This ex parte order was appealed to the secretary and a full hearing was held. Thereafter, the secretary issued an order and this was then appealed to the Saline County District Court. Pork Motel, Corp. appealed from the district court’s affirmation of the secretary’s previous order.
Case No. 55,352 is an appeal from a Memorandum Decision of the Saline County District Court finding Pork Motel, Corp. to be in contempt of its order in 55,087, and fining Pork Motel, Corp. and ordering it to do certain acts and reduce the head count at appellant’s swine facility. The appeals in 55,087 and 55,352 have been consolidated.
Pork Motel is a swine finishing facility located in the Saline river valley approximately ten miles northwest of Salina, Kansas. When constructed there were approximately 40 families living within a five-mile radius of Pork Motel. Several dwellings are within the one-quarter to one-half mile range of the feed lot. The facility has the capacity of feeding 4,400 swine.
Plans for the construction of the facility were initiated in September, 1974. An engineering firm was engaged, and plans and specifications were submitted to the KDHE. After the facility began operation, odor complaints were received by KDHE from residents located in close proximity to Pork Motel.
On May 6, 1977, Dwight Metzler, Secretary of KDHE, issued an order setting out steps to be taken to abate the odor nuisance. Secretary Metzler modified his order on July 28, 1977, following a public hearing.
The modified order was appealed to the district court in Saline County, Kansas. Judge Richard Wahl approved the modified order and ordered that Pork Motel comply with it. No further appeal was taken at that time.
On March 28, 1978, Pork Motel, pursuant to the secretary’s order of July 28, 1977, submitted for approval a plan of operation for its facility. That plan of operation was approved by KDHE.
The Water Pollution Control Permit for Pork Motel came up for renewal in April of 1979. Following another public hearing, a permit for a nondischarging facility was issued May 26, 1979, to be effective June 1, 1979, for a period of five years. The permit contained conditions concerning pumping of retention lagoons, keeping sufficient space in lagoons for rainfall and on-site testing for dissolved oxygen after rain.
The June 1, 1979, permit also contained special permit limitations and conditions relating to the waste treatment facilities at Pork Motel. The special conditions required the resumption of the feeding operation would be by incremental phases, begin ning with 1,100 units, moving to 2,200 units and so forth until full capacity of4,400 units was reached. Each incremental phase was to be proposed by Pork Motel and approved by KDHE. The special conditions and limitations were imposed to assure that significant nuisance odors were controlled. The permit stated if the plan of operation set forth by Pork Motel and compliance with permit limitations and conditions failed to prevent and control significant nuisance odors, the Pork Motel would have to discontinue receiving new animals until alternative measures could be proposed and approved.
Due to economic conditions existing, Pork Motel did not actually undertake to resume feeding operations until September, 1980. In December, 1980, approval was granted by KDHE allowing Pork Motel to proceed with the second phase expanding to 2,200 animals. Certain modifications in the waste treatment facility had been proposed by Pork Motel. Specifically, concrete sedimentation pits were being constructed to trap manure and prevent it from entering the waste treatment lagoon system.
On March 24, 1981, a new Water Pollution Permit was issued to Pork Motel. The new permit took into account the addition of the concrete sedimentation pits in the facility’s waste treatment operational plan. Again, specific limitations and special conditions were set out in the permit. In general, those required Pork Motel to:
1. Pump the concrete sedimentation manure pits following every significant rainfall and .have the contents hauled to cropland by slurry wagon.
2. Provide adequate storage facilities for rainfall occurrences.
3. Provide for dewatering and disposal activities for the waste retention structures.
4. Provide for an incremental resumption of the feeding operation, with the notation that phases one and two were completed under the previous permit and that phase three would be more than 3,300 units, with the fourth phase of 4,400 units. Again, it was set out that each phase must be completed to the full satisfaction of KDHE.
5. Require that on-site testing for dissolved oxygen content in lagoon cell number one be made by the use of a dissolved oxygen probe for three days following rainfall events, or as otherwise specified by KDHE. The permittee was also required to keep information, such as rainfall records and temperatures, with all data being recorded and available for submission to the department upon request.
The new permit, issued March 24, 1981, also set out that the permittee would be required to discontinue receiving new animals in the event that the operational plan and compliance with the permit failed, to control significant nuisance odors. Pork Motel was given permission and authority to increase the maximum capacity to 2,750 units (animals).
Finally, after receiving further numerous odor complaints from area residents, Joseph Harkins, secretary of the department, issued an order on July 17, 1981, requiring Pork Motel to:
1. Stop receiving animals at the facility until the units were reduced to 2,200 and to maintain 2,200 units as the maximum allowable level.
2. Obtain and maintain the necessary equipment to monitor dissolved oxygen levels within ten days from the receipt of the order.
3. Record daily the liquid level in each manure pit, the dissolved oxygen profile of each lagoon and report the same to the director of the Division of Environment by no later than the end of the following week in which the recordings were made.
4. Submit a plan for dewatering the manure pit to the director of the Division of Environment within 15 days following the receipt of the order.
The ex parte order was appealed to the secretary and a full hearing was held. After the hearing the secretary issued an order which Pork Motel appealed to the Saline County District Court. The district court affirmed the secretary’s order and Pork Motel appealed.
Administrative agencies are creatures of statute and their power is dependent upon authorizing statutes, therefore any exercise of authority claimed by the agency must come from within the statutes. There is no general or common law power that can be exercised by an administrative agency.
Rules or regulations of an administrative agency, to be valid, must be within the statutory authority conferred upon the agency. Those rules or regulations that go beyond the authority authorized, which violate the statute, or are inconsistent with the statutory power of the agency have been found void. Administrative rules and regulations to be valid must be appropriate, reasonable and not inconsistent with the law.
The legislature has by statute charged the secretary of KDHE with specific duties to protect the health and environment of the citizens of this state. Two areas in which the legislature has stated the public policy of the state and granted authority to the secretary of KDHE to carry out that policy are: (1) protecting our water supply and controlling discharge of sewage into the water supply (K.S.A. 65-161 et seq.), and (2) achieving and maintaining levels of air quality which protect human health and safety (K.S.A. 65-3001 et seq.). To carry out the legislative policy, the secretary of KDHE has been granted the authority to issue permits regarding water supply and the discharging of sewage into the water supply, and allowed to set conditions to protect and maintain certain levels of air quality.
The secretary has authority to issue a water and sewage permit when, in the secretary’s opinion, the general interest of the public health would be subserved thereby or the discharge of such sewage would not detract from the quality of the water of this state for the beneficial use for domestic or public water supply, agriculture needs, industrial needs, or other beneficial use. The secretary shall issue a permit, stipulate in the permit the conditions upon which such discharge shall be permitted and require such treatment of sewage as he determines necessary to protect beneficial uses of the waters of the state. K.S.A. 65-165.
As to air pollution, the public policy of the state is to achieve and maintain levels of air quality which protect human health and safety to the greatest degree practicable. In addition, the public policy is to foster the comfort and convenience of the state’s inhabitants, promote economic and social development, and facilitate the enjoyment of the natural attractions of the state. K.S.A. 65-3001. To carry out the responsibility for air quality and pollution control, the secretary has power to adopt, amend and repeal rules and regulations implementing and consistent with the act, issue such orders as may be necessary to effectuate the purpose of the act, enforce such orders by appropriate administrative and judicial proceedings and establish ambient air quality standards. K.S.A. 65-3005. Air pollution includes the presence in the outdoor atmosphere of odorous substances in such quantities and duration as is, or tends significantly to be, injurious to human health or welfare, or property, or would unreasonably interfere with the enjoyment of life or property. K.S.A. 65-3002(a) and (c).
Pork Motel’s first contention is that the secretary of KDHE did not have authority to incorporate air pollution conditions within a water pollution permit. We do not agree.
Given the legislature’s grant of power to KDHE under K.S.A. 1982 Supp. 65-101, General Powers and Functions; K.S.A. 65-161 et seq., Water Supply and Sewage; K.S.A. 65-3001 et seq., Air Quality Control; and K.S.A. 65-3401 et seq., Solid and Hazardous Waste, it is clear the legislature intended to place the responsibility for the regulation of solid waste and air pollution arising from the operation of feed lots affecting both water supply and air quality under the control of the secretary of KDHE.
To carry out the public policy to protect the air quality, the secretary may impose certain conditions upon the methods of operation of Pork Motel. The Air Quality Control Act contains no statutory provision for the secretary to issue permits restricting or allowing Pork Motel to operate under the Act. Under the Air Quality Control Act, the secretary of KDHE has limited authority to issue permits for the installation or alteration of any machine, equipment, device or other article which may cause or contribute to air pollution. Such permits may be issued by the secretary after balancing public policy to protect the air quality against the promotion of economic and social development of the state.
Enforcement of remedies allowed under the Air Quality Control Act is after the fact. Whenever the secretary has reason to believe there has been a violation of the Act, he may cause written notice to be served upon the alleged offending party. The notice shall specify the provision of the Act, rule or regulation alleged to have been violated and the facts constituting such alleged violation and may include an order that necessary corrective action be taken within a reasonable time. The right to a hearing regarding the alleged violations and corrective action required by the secretary is contained within the Act. K.S.A. 65-3011.
As indication of overall policy, a departmental note preceding Part 1 of K.A.R. agency 28, art. 19 (1978) entitled Ambient Air Quality Standards and Air Pollution Control Regulations (revoked 1981) stated:
“Note: In order to restrict the necessity of multiple permits or licenses for a single facility or installation, the review of facilities or installations within the environmental responsibilities of the state department of health will, where appropriate, be considered from the standpoint of the total environment. The primary function of the facility or installation will be determined by department staff and where possible a single permit or license will be issued for the total facility or installation which may include considerations in the air quality, water quality, solid waste, and radiation protection program areas.”
Pork Motel contends that the secretary must ignore air pollution while considering water pollution permits. Here the secretary has determined that water pollution is the source of the air pollution. Logic demands and the law implies when a water pollution permit is granted, it will contain the proper limitations and conditions so that operation under the permit will not cause pollution to another portion of our environment under the secretary’s jurisdiction.
Pork Motel claims the secretary of KDHE acted arbitrarily, capriciously and unreasonably by including air pollution conditions within a water pollution permit and issuing the July 17, 1981, order.
The court’s scope of review in determining whether or not the secretary of KDHE acted fraudulently, arbitrarily or capriciously is limited. State Corporation Com’n of Kansas v. United States, 184 F. Supp. 691 (D. Kan. 1959). The arbitrary and capricious test relates to whether a particular action should have been taken or is justified, such as the reasonableness of an agency’s exercise of discretion in reaching a determination or whether the agency’s action is without foundation in fact.
According to an engineer testifying as an expert witness, the purpose of the secretary’s operational plan was to insure that the lagoons were aerobic, not anaerobic:
“The differences in the aerobic and anaerobic lagoons are in the types of organisms that are used to break down the organic material. In the aerobic lagoon, there is oxygen present all of the time. The organisms generally will break down the [organic material] without the production of offensive odors or offensive gasses. In the anaerobic system, there is no free oxygen present in the lagoon. The organisms obtain most of their energy directly from the breakdown of the organic material.”
Gasses and very offensive odors are produced when a lagoon is anaerobic.
The secretary required an operational plan to insure sufficient oxygen was available for the treatment of the waste. The plan included: (1) a cleaning schedule, (2) a certain number of operating aerators to provide sufficient oxygen for mixing with the liquid waste, (3) testing to determine the oxygen content of the waste material, and (4) manure pits to insure waste solids settled for easier cleaning. The plan was developed because inspections had revealed there was no significant odor from the feeding floors which had been regularly cleaned. The offensive odors were anaerobic in nature, generated by the manure pits and lagoons.
The conditions placed within the water pollution permit were designed to prevent and control odors emanating from the facilities. The trial court found that the secretary’s order was supported by substantial evidence and thus not arbitrary. A district court and this court cannot substitute their judgment for that of an administrative board. On appeal, the court is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by the evidence, and (3) the tribunal’s action was within the scope of its authority. Hemry v. State Board of Pharmacy, 232 Kan. 83, 652 P.2d 670 (1982). The order has a presumption of validity on review and the review is limited to determining the lawfulness and reasonableness of the order.
Clearly the evidence established in this case that the odor has a significant effect on the health and the enjoyment of life or property of Pork Motel’s neighbors. The secretary of KDHE has statutory authority to control both water and air pollution. It would not be logical for the secretary to issue a water pollution control permit without incorporating the necessary permit limitations and conditions to prevent air pollution.
Pork Motel further contends that the procedures followed by the secretary of KDHE denied it procedural and substantive due process. Pork Motel particularly objects to the fact that the hearing officer at the administrative hearing was an employee of KDHE.
Pork Motel claims the appeal to the district court arose from an order made by the secretary of KDHE based on certain conclusions from an investigative report submitted by the staff of the department. The hearing officer made certain findings of fact and conclusions for the secretary, who had originally ordered the hearing. The secretary then made a decision on the merits of a hearing officer’s decision authorized by the secretary’s original order.
There is no doubt that the hearing conducted by the hearing officer employed by KDHE was quasi-judicial in nature. Quasi-judicial is a term applied to an officer who is empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of a general nature. Schulze v. Board of Education, 221 Kan. 351, Syl. ¶ 4, 559 P.2d 367 (1977). Pork Motel claims denial of its fundamental requisite of due process — notice and opportunity for a full and complete hearing. It claims the fact that the hearing officer was an employee of the KDHE violated appellant’s due process right to a hearing before an impartial examiner. Wong Yang Sung v. McGrath, 339 U.S. 33, 94 L.Ed. 616, 70 S.Ct. 445 (1950), which appellant cites to support its contention that appointing Patrick McCool, an engineer with the Division of Environment, as hearing officer in the instant case violated due process, was a decision based on substantially different facts than are present in this case. The crucial distinction is that in that case the hearing officer who made the decision was the actual investigator and prosecutor in the case as well. The thrust of the Wong Yang Sung decision was that the functions of investigating and judging and/or prosecuting and judging should not be visited in the same person, not that the different functions could not be performed within the same administrative agency. Wong Yang Sung v. McGrath, 339 U.S. 33. In that case the Supreme Court applied the standards of the Administrative Procedure Act, which appellant also relies on to support his position. The APA does provide for the separation of judicial functions from prosecuting/investigative functions. The APA says specifically: “An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision.” 5 U.S.C. § 554 (d) (1982), emphasis supplied. The APA separation of functions doctrine requires only that the prosecutor and the adjudicator each be responsible to the agency head by a separate chain of authority. Columbia Research Corporation v. Schaffer, 256 F.2d 677 (2nd Cir. 1958).
The KDHE initiated proceedings and investigated complaints about Pork Motel, and made the final administrative adjudication of whether Pork Motel was violating Kansas’ environmental pollution laws. The legislature gave KDHE the power to do so. K.S.A. 65-161 et seq., and K.S.A. 65-3001 et seq. The United States Supreme Court has recently held that the combination of investigating and judging functions in an agency does not violate due process, Withrow v. Larkin, 421 U.S. 35, 43 L.Ed.2d 712, 95 S.Ct. 1456 (1975), and there is no question of the power of the legislature to delegate such a dual role to an agency. In re Larsen, 17 N.J. Super. 564, 86 A.2d 430 (1952). Thus, the only due process issue left is whether Patrick McCool’s role as a hearing officer was somejhow too closely connected with another role as a prosecutor or investigator.
The facts show quite the opposite. Mr. McCool was not in any way connected with the department’s investigation of Pork Motel. He had absolutely nothing to do with the department’s decision to institute administrative proceedings against Pork Motel. At the hearing, he did not make any evidentiary rulings. His actual function was much more that of a technical advisor to the other hearing officer, to assist in the explanation of exhibits and expert testimony. KDHE met the requirements of fundamental fairness set forth by this court in Coats v. U.S.D. No. 353, 233 Kan. 394, 662 P.2d 1279 (1983), by appointing a lawyer outside of KDHE to hear the case and by appointing a KDHE engineer, who had no connection with the Pork Motel investigation, to be his technical advisor.
There is a strong presumption of regularity in administrative proceedings. Sutherland v. Ferguson, 194 Kan. 35, 39, 397 P.2d 335 (1964). Pork Motel has not established in the administrative record that KDHE denied it due process of law.
Pork Motel claims it was denied equal protection of the law by unique and unequal application of the law by KDHE; that KDHE singularly imposes on Pork Motel its rules and regulations in a malicious and confiscatory manner, thereby violating Pork Motel’s constitutional rights.
An individual may suffer and be deprived of his equal protection by the exercise of regulatory authority by administrative agencies. Some examples are: (1) an improper delegation of legislative power to an administrative agency (State, ex rel., v. Hines, 163 Kan. 300, 182 P.2d 865 [1947]); (2) failure of the legislature to fix reasonable and definite standards which govern the exercise of such authority by the administrative agency (State, ex rel., v. Hines, 163 Kan. 300); and (3) selective enforcement in an unconstitutional manner of laws intended to be discriminatorily enforced (see generally McGowan v. Maryland, 366 U.S. 420, 6 L.Ed.2d 393, 81 S.Ct. 1101 [1961]).
The record indicates that KDHE investigated similar complaints at other locations, that other facilities were regularly inspected, and that KDHE required monitoring of oxygen levels at other facilities and pumping of other waste disposal lagoons and pits on a regular basis. Complaints about Pork Motel were handled no differently than complaints about other feedlots.
However, even if KDHE, as Pork Motel contends, “singled out” Pork Motel for selective enforcement while other agricultural facilities within the state were not all required to perform the same functions with respect to odor control, undergo weekly inspections, or conform to special conditions contained in their permits, it would not necessarily be a denial of equal protection to Pork Motel. The Supreme Court of the United States has said that failure to proceed against all alleged violators of a law does not preclude an administrative agency from enforcing the law against one violator. Moog Industries, Inc. v. F.T.C., 355 U.S. 411, 2 L.Ed.2d 370, 78 S.Ct. 377 (1958). The issue in that case was whether to postpone the operation of a valid cease and desist order of the Federal Trade Commission against a single firm until similar orders were issued against the firm’s competitors, who were also violating the law. The Supreme Court refused to vacate the order, saying that the decision to prosecute one, not all, violators of the statute was purely within the expertise of the commission. “Furthermore, the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically.” Moog Industries, Inc., v. F.T.C., 355 U.S. at 413.
A recent Kansas case illustrates that selective enforcement of an environmental pollution law does not necessarily violate the equal protection clause. United States v. Hercules, Inc., Sun flower Army Am. Pl., 335 F. Supp. 102 (D. Kan. 1971). In Hercules, an action was brought against a corporation for depositing refuse in navigable waters. The defendant corporation brought a motion to dismiss, alleging that the prosecution was an attempt to selectively and discriminatorily enforce the law. The defendant also asked for a hearing to show that there were hundreds of industries in the area discharging large quantities of waste into the water. The court said that mere laxity in the prior enforcement of the law was not a denial of equal protection, and it is no defense to say that others have not been prosecuted. The court also said that even an unequal enforcement of a valid state law is not a denial of equal protection unless the unequal enforcement is the result of “arbitrary and invidious discrimination.”
Other state courts have specifically held that enforcing environmental laws against one environmental polluter, without proceeding against every polluter, does not constitute a denial of equal protection. Medusa Corp. v. D. E. R., 51 Pa. Commw. 520, 415 A.2d 105 (1980); Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 319 A.2d 871 (1974). In the Medusa case the owner of a cement manufacturing plant appealed to the district court for review of an-order of the Environmental Hearing Board. The order imposed penalties for violation of air pollution standards and mandated Medusa to develop a comprehensive plan to reduce its air pollution. Medusa charged that the Pennsylvania Department of Natural Resources had singled out its operation for discriminatory enforcement of air pollution control laws, thereby denying it equal protection under the law. In support of its allegation of discriminatory enforcement, Medusa pointed out that the Department of Natural Resources had concentrated on observation and testing of Medusa’s plant, with little or no testing of the other fifteen plants in the state, and that the department had failed to file complaints against other cement companies despite evidence (photographs) that they were also polluting the air. The court found that such evidence, even if substantiated, did not suggest a “discriminatory design” on which to base a finding of unequal protection. The court stated: “[A]n enforcement program must begin somewhere, and Medusa has not met its burden to show that it was wrongly singled out.” Medusa, 51 Pa. Commw. at 526.
The court in Medusa was applying two very important concepts of equal protection law. One is that merely because a state applies a statute to one person and not to another does not in itself constitute a denial of equal protection. Second, it must be shown as well that there was an element of intentional or purposeful discrimination. A discriminatory purpose is not presumed; there must be some evidence showing clear and purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8, 88 L.Ed. 497, 64 S.Ct. 397 (1943); Deerfield Hutterian Ass’n v. Ipswich Bd. of Ed., 468 F. Supp. 1219 (D.S.D. 1979); United States v. Maplewood Poultry Company, 320 F. Supp. 1395 (D. Maine 1970). In the Maplewood case, the defendants were two corporations indicted for discharging refuse into a bay. The defendants asserted that they were denied due process and equal protection because they were the only two firms selected for prosecution. They had established at a hearing that there were numerous other sources of industrial pollution in the bay. The court said that the failure to prosecute other violators was not enough to establish a denial of equal protection. To do that the defendants would have to show that their prosecution was deliberately based on an arbitrary, illegal or otherwise unjustifiable standard.
Pork Motel’s claim that it was denied equal protection of the law by unique and unequal application of the law is without merit.
Pork Motel claims it has reasonably complied with the conditions imposed by KDHE; that KDHE failed to conduct proper inspections when determining whether Pork Motel had complied with conditions of operation imposed by KDHE. We do not agree.
In reviewing a district court’s judgment, an appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative tribunal’s action as does the district court. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 630 P.2d 1131 (1981). The district court and this court are restricted to determining whether the administrative order is supported by substantial evidence. Here there is substantial evidence that Pork Motel failed to comply with the conditions of operations imposed by KDHE in the permit.
The trial court on September 15, 1982, affirmed the secretary’s January 8, 1982, order. The trial court ordered compliance with the secretary’s schedule to reduce odor to commence upon the date of filing the court’s Memorandum Decision. October 14, 1982, Pork Motel appealed the trial court’s September 15, 1982, order.
October 12, 1982, KDHE officials inspected Pork Motel’s facilities. The officials determined Pork Motel was not complying with the trial court’s order to implement the secretary’s schedule. On November 16, 1982, the attorney general acting for KDHE filed with the trial court a motion to appear and show cause alleging Pork Motel to be guilty of indirect contempt of the district court’s September 15,1982, order. December 3,1982, the district court issued an Order to Appear and Show Cause to Pork Motel. The order was mailed to Pork Motel and not served by the sheriff or a court-appointed individual.
January 4, 1983, a hearing in Case No. 55,352 was held in Lincoln, Kansas, on the Order to Appear and Show Cause. At the conclusion of the hearing, the district court found Pork Motel to be in contempt of the previous order of the court. On January 13, 1983, the court issued its memorandum decision finding Pork Motel in contempt. The court set a $500.00 per day fine that was to be imposed each day Pork Motel was not in compliance with the court’s original order. In addition, the court ordered the Pork Motel to reduce the hog population to not more than 2,200 animals by March 1, 1983. The court further directed should Pork Motel fail to reduce the hog population as ordered by March 1, 1983, then an additional fine of $1,000.00 per day be imposed each day thereafter until Pork Motel complied with the hog population reduction order. If Pork Motel was not in full compliance with all orders of the court, then on April 5, 1983, a hearing would be held to determine whether or not the court should order Pork Motel to cease all operations. Pork Motel appealed.
Pork Motel contends the manner in which the order to appear and show cause was served upon it was fatally flawed. The order was served by mail. K.S.A. 20-1204a(a) and (b) provides:
“When an order in a civil action has been entered, the court that rendered the same may order a person alleged to be guilty ofindirect contempt of such order to appear and show cause why such person should not be held in contempt if there is filed a motion requesting an order to appear and show cause which is accompanied by an affidavit specifically setting forth the facts constituting the alleged violation.
“Except as provided in subsection (e), the order to appear and show cause shall be served upon the party allegedly in contempt by the sheriff or some other person appointed by the court for such purpose. Such order shall state the time and place where the person is to appear and shall be accompanied by a copy of the affidavit provided for in subsection (a). The court shall hear the matter at the time specified in the order, and upon proper showing, may extend the time so as to give the accused a reasonable opportunity to purge himself or herself of the contempt. If the court determines that a person is guilty of contempt such person shall be punished as the court shall direct.”
Pork Motel admitted the motion and order mailed to Pork Motel were received by Frank Norton; that Frank Norton was a party and had acted as counsel for Pork Motel prior to receiving the motion and order to show cause. Prior to the hearing of the Order to Show Cause on January 4, 1983, Pork Motel objected to the sufficiency of the service, and reserved the question of jurisdiction for the court to proceed with the contempt hearing. The following conversation between the court and defendant’s counsel occurred:
“THE COURT: Do you deny receiving it?
“MR. KELLY: No, Your Honor.
“THE COURT: So it’s really a moot question.
“MR. KELLY: We just want to raise it. Yes.
“THE COURT: But being here you also waive it.
“MR. KELLY: Well, really I just said we waived it.
“THE COURT: Yes. Proceed.” (Emphasis supplied.)
This sentence was corrected on March 10, 1983, to read: “Mr. Kelly: Well, really I just said we raised it. ” (Emphasis supplied.)
KDHE relies on the service method of K.S.A. 60-205(b) which provides in part:
“Whenever under this article service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court.”
The methods of service under K.S.A. 60-205 are alternative to, and do not restrict, different methods of service provided by law. The Rules of Civil Procedure are to be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding. K.S.A. 60-102. In any method of serving process set forth in Article 3 of Chapter 60, substantial compli anee therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected. K.S.A. 60-204.
Use of K.S.A. 60-205, service and filing of pleading and other papers, has not been limited to Chapter 60 actions. Although K.S.A. 60-205(e) is contained in the Code of Civil Procedure, it has been extended to criminal proceedings to allow filing of pleadings and other papers with the court where there is no provision in the Criminal Code of Procedure to the contrary. State ex rel. Owens v. Hodge, 230 Kan. 804, 808, 641 P.2d 399 (1982).
Article 12 of Chapter 20 contains the provision for service upon a party alleged to be guilty of contempt. Except in divorce cases, the order to appear and show cause shall be served upon the party allegedly in contempt by the sheriff or some other person appointed by the court for such purpose. K.S.A. 20-1204a(h). Chapter 60’s requirement that the civil procedure be liberally construed is not contained within Chapter 20. In addition, Chapter 20 does not provide, as does Chapter 60, that substantial compliance of service procedure will effect valid service if the party is made aware that an action or proceeding was pending in a specific court in which that party’s status or property is subject to being affected.
The power to punish for contempt of court does not arise from statutory legislative action, but is inherent in the court itself. In re Millington, 24 Kan. 214 (1880). The statutory direction for finding one in contempt in this case is found in K.S.A. 20-1201 et seq. The procedure followed to obtain valid service must conform with that procedure prescribed in Chapter 20. Process to bring the accused before the court must be served by the sheriff or some other person appointed by the court for that purpose. Where the accused has not waived the service requirement of K.S.A. 20-1204a(h), the court is without jurisdiction to proceed.
Since the court was without jurisdiction to find Pork Motel in contempt, other questions raised in the appeal are moot.
The judgment of the trial court is affirmed in No. 55,087 and reversed in No. 55,352. | [
-48,
-22,
-36,
108,
44,
-64,
24,
-103,
66,
-71,
-26,
83,
-59,
-62,
4,
123,
75,
125,
64,
121,
-29,
-74,
33,
98,
-57,
-5,
-1,
-44,
-5,
75,
-27,
-10,
74,
64,
-118,
-99,
-126,
-64,
-57,
92,
-50,
7,
-118,
-47,
85,
-62,
56,
107,
-110,
75,
49,
29,
-29,
44,
-101,
67,
-23,
44,
-55,
44,
89,
-15,
122,
-107,
30,
38,
-78,
34,
-112,
7,
82,
111,
-112,
49,
-96,
-8,
115,
54,
-124,
116,
6,
-69,
32,
39,
99,
35,
52,
-23,
108,
8,
14,
94,
-19,
-92,
-104,
25,
65,
-126,
-106,
-99,
112,
22,
7,
122,
-25,
33,
95,
108,
-126,
-50,
-80,
-77,
71,
61,
-102,
-79,
-15,
-27,
33,
53,
-51,
-10,
92,
71,
112,
27,
-58,
-80
] |
The opinion of the court was delivered by
Miller, J.;
This is an appeal by the defendant, Herbert Douglas, Jr., from his conviction by a jury in Wyandotte District Court of aggravated battery, K.S.A. 21-3414. The appeal was initially heard by the Court of Appeals, which, in a published opinion, reversed the conviction. State v. Douglas, 8 Kan. App. 2d 754, 667 P.2d 898 (1983). We granted the State’s petition for review.
The facts are stated at length in the Court of Appeals opinion, and we will not fully state them here, but may add some additional facts disclosed by the record. The crime allegedly occurred at about 12:45 o’clock a.m., on December 3, 1981. At the pretrial conference conducted on December 30, 1981, defendant gave notice that he would rely upon the defense of alibi, and he supplied the names of three alibi witnesses: Reuben Thurman, Debra Green and George Suttington. The pretrial order shows that the prosecution’s file was open for inspection by defendant’s counsel, and that the defendant’s counsel agreed to give the names of his witnesses to the State seven days before trial. No' further names of defense witnesses were given to the State before trial commenced on February 22, 1982. Trial proceeded during that day and started again on the 23rd, but was recessed at mid-morning until the following day since the victim did not appear. On February 24, trial continued; the victim appeared and testified, and about 11:00 o’clock that morning the State rested. At that time defense counsel asked leave to endorse the name of an additional alibi witness, Melvin Anderson, stating that the defendant had only recently learned his correct name, having previously known him only by the street name of “Sonny.” Only one of the alibi witnesses, Reuben Thurman, appeared; Debra Green and George Suttington, although subpoenaed, failed to appear. Defense counsel stated that he had talked to all three of the alibi witnesses on the Sunday night before trial. Presumably, then, the defense had known of the existence of Melvin Anderson — at least by his street name— since the day before trial commenced. Still, the State was not informed of Anderson’s existence until it had rested. At that time, the trial court denied the motion but offered to issue bench warrants for the two subpoenaed alibi witnesses who failed to appear. The defense did not pursue that avenue. Trial was recessed early on February 24 to allow defense counsel additional time to attempt to secure the attendance of Debra Green and George Suttington. On the following morning they failed to appear, and the defendant again sought leave to endorse the name of Melvin Anderson. We note that Melvin Anderson had been in the courtroom during the testimony of one or more of the defense witnesses, although the trial court had enforced its sequestration order, and counsel had been careful to keep other prospective witnesses out of the courtroom during the trial. The trial court again overruled the motion to endorse the additional witness; the defendant rested; the case was argued and submitted to the jury; and the defendant was convicted.
The State argues that the Court of Appeals relied solely upon the language of this court in State v. Bright, 229 Kan. 185, 194, 623 P.2d 917 (1981), and that the Court of Appeals has abandoned and in effect nullified the provisions of the alibi statute, K.S.A. 22-3218, which requires the defendant to give notice of alibi, including the names of proposed alibi witnesses, to the prosecution at least seven days before trial. We do not believe that the Court of Appeals has misapplied Bright or the alibi statute. We disagree only with the Court of Appeals’ application of those to the facts.
State v. Bright did not involve the alibi statute, but was a case in which the defendant bound himself by pretrial agreement to give the State the names of defense witnesses ten days before trial. In that case, defendant did not disclose the names of any witnesses before trial; by the time the State rested, defendant had disclosed the name of only one witness he intended to call, but he indicated that he wished to call a number of other witnesses. The State objected to any defense witnesses, since the defendant had not complied with the pretrial order. The trial court limited the defendant to three witnesses. We held that the trial court’s action did not constitute reversible error, but we did lay down rules for the future guidance of trial courts in cases where defendant has agreed to disclose witnesses, has not done so, and then seeks to call them at trial. We said:
“If a defendant has been required by pretrial or discovery order to disclose defense witnesses prior to trial and fails to do so, and attempts to call a witness or witnesses not disclosed, then in ruling on prosecution objections the trial court should:
(1) Inquire why the witness or witnesses were not disclosed;
(2) determine when the witness first became known to defense counsel, and whether the nondisclosure was willful or inadvertent;
(3) determine whether the proposed testimony is trivial or substantial, whether it goes to an important or minor issue;
(4) determine the extent of prejudice to the State, and the importance of the witness to the defense;
(5) determine any other relevant facts;
(6) grant the State a recess if prejudice can be avoided or reduced by such action; and
(7) avoid imposing the severe sanction of prohibiting the calling of the witness if at all possible. This should be viewed as a last resort.” 229 Kan. at 194.
The State takes the position that disclosure of alibi witnesses seven days before trial is mandatory under K.S.A. 22-3218. It apparently overlooks the second paragraph of that statute, which reads in part:
“(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information.”
The alibi statute requires a trial judge deciding whether to allow late endorsement of an alibi witness to exercise the same discretion he must exercise when deciding whether to allow late endorsement of a prosecution witness on the information. This is the same discretion that the trial court must exercise when the defense has agreed but has failed to disclose defense witnesses prior to trial and then seeks to endorse additional witnesses. As a result, the rationale of Bright applies when the endorsement of additional alibi witnesses is sought.
A review of the whole record in this case shows that the defendant gave the State notice that he intended to rely upon the defense of alibi some fifty days prior to trial, and that the names of three witnesses were then disclosed. It is also clear that long before the State rested, the defendant was aware of the additional witness, Melvin Anderson, and for some reason did not notify the State of his existence until the State had rested upon the third day of trial. The trial court offered to issue bench warrants for the two alibi witnesses who failed to appear, but the defendant declined that assistance. The trial court recessed early one afternoon in order to give defendant a chance to contact the other two alibi witnesses and secure their appearances. Under all of the circumstances, we cannot say that the trial court abused its discretion in denying the defendant’s motion to endorse the additional alibi witness.
Defendant -next contends that the trial court heard testimony from the victim outside of the defendant’s presence. The record discloses that the victim was cited for contempt and, in response to that citation, he testified before the court in chambers with the prosecutor and defense counsel present. His testimony, given before the court out of defendant’s presence, was not evidence in the trial of this case, but was the witness’s defense to the accusation filed against him. This defendant had no constitutional right to be present at the witness’s contempt hearing. This issue is without merit.
Defendant next contends that the trial court failed “to give counsel an opportunity to argue position the due process argument.” [sic] This claim is not made clear in the brief, defense counsel did not appear to argue the matter and further enlighten this court, and no facts are set forth in the brief, nor are we able to find any in the record, to support this claim of error.
Next, defendant claims error in “court admonition to counsel that defendant not know of a witnesses testimony.” [sic] Again, the issue is not clear, and we find no facts disclosed in the briefs upon which this claim of error is based. Counsel may be discussing the testimony of the victim upon the accusation in contempt filed against him; but as we have previously noted, that proceeding does not constitute a part of the trial of this defendant. We find no error.
Next, defendant complains of the trial court’s failure to grant a continuance, but fails to cite any portion of the record in which such failure allegedly occurred. We note that the trial court granted one or more continuances to defendant, and apparently accommodated counsel by taking appropriate recesses so that he could interview witnesses before they testified. We are unable to find anything in the record to support this claim of error.
Finally, defendant contends that he has a constitutional and statutory right to appear and defend, but he fails to cite any portion of the record in which he was excluded from the courtroom, with the exception of the hearing on the charge of contempt leveled at the victim. We have already disposed of that claim of error.
We find no reversible error. The opinion of the Court of Appeals reversing the conviction is reversed, and the order of the trial court is affirmed. | [
112,
-23,
-3,
-97,
26,
98,
42,
60,
112,
-13,
-78,
115,
41,
78,
5,
125,
-97,
61,
117,
105,
-56,
-105,
7,
-61,
-14,
115,
120,
-43,
-77,
75,
44,
-99,
72,
112,
66,
81,
102,
24,
-25,
16,
-116,
1,
-87,
-30,
-46,
64,
48,
59,
36,
14,
-15,
14,
-13,
106,
24,
-53,
105,
46,
75,
-113,
-48,
-79,
-117,
-121,
-35,
20,
-93,
-74,
56,
5,
120,
62,
-100,
49,
0,
104,
48,
-124,
-126,
117,
105,
-103,
12,
110,
66,
1,
124,
-81,
-32,
-118,
62,
54,
-99,
-89,
-38,
65,
75,
101,
-98,
-99,
119,
84,
3,
108,
-16,
95,
29,
108,
6,
-49,
-112,
-111,
77,
48,
-110,
-38,
-29,
4,
0,
49,
-51,
34,
92,
86,
122,
123,
-54,
-76
] |
The opinion of the court was delivered by
Miller, J.:
We are presented in this case with interlocutory appeals by the plaintiff, Douglas E. Cansler, and by the defendant State of Kansas, in this personal injury action filed pursuant to the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq. Named defendants are the State of Kansas and the Kansas State Penitentiary, to whom we shall refer collectively as the State; and the Sheriff of Leavenworth County, the Leavenworth County Sheriff s Department and the Board of County Commissioners of Leavenworth County, to whom we shall refer as the County. The primary issues are whether the State and the County owed a duty to the plaintiff under the facts of this case and, if so, whether the acts or omissions of the defendants fall within the exceptions contained in K.S.A. 1981 Supp. 75-6104(c), (■d) or (m).
A brief procedural history is necessary to an understanding of the present posture of the case. The State was originally the only named defendant. Its answer alleged that the Sheriff of Leavenworth County, the Leavenworth County Sheriff s Department and the Board of County Commissioners of Leavenworth County should be joined as parties, pursuant to K.S.A. 60-258a(c), since their negligence contributed to plaintiff s injuries. The trial court sustained the motion and added the additional parties defendant. Plaintiff amended his petition to state a claim against the County. The County and the State then filed motions to dismiss for failure to state a claim upon which relief could be granted, citing K.S.A. 1981 Supp. 75-6104(c), (d) and (m). The trial court sustained both motions and dismissed the case. Plaintiff next filed a motion for rehearing and for leave to file a second amended petition. After a hearing, the trial court sustained the motion for leave to file the amended petition as to the State, but denied it as to the County. The second amended petition was filed, with leave of court. Upon application the trial court found that the case involves controlling questions of law, as to which there is substantial ground for difference of opinion, and authorized interlocutory appeals. The plaintiff appeals from the order dismissing his claims as to Leavenworth County, and the State appeals from the trial court’s refusal to dismiss plaintiffs claims against it.
This case has not gone to trial and only two depositions are included within the record on appeal. The facts which we recite are either taken from the depositions or are a statement of facts claimed by the plaintiff.
Sometime around the first of September 1981, a complete guard’s uniform was missing from the laundry at the Kansas State Penitentiary. Prison officials were aware of this, but the fact that a guard’s uniform was in the hands of the inmates was not made known to the prison guards. On Sunday, September 6, 1981, an inmate who had access to the interprison telephone line called Guard Vanderslice, who was on duty in tower No. 12, and told him that he was to be relieved of duty in the tower. Thereafter, an inmate wearing the stolen uniform approached and was admitted into the tower by Vanderslice. Upon gaining entry, the inmate overpowered Vanderslice and let six other prisoners into the tower. They took control of the weaponry in the tower, including two riot guns, one .38-caliber revolver and one .30-.30 rifle. The inmates, all seven of whom were serving life terms for murder, escaped over the prison wall. The escape was effected around 8:30 o’clock a.m.
Other guards who observed the escape were unable to sound an immediate alarm because the general alarm system in the prison, which consisted of a loud horn or siren which would alert everyone within a mile or so of the prison, had not been functional for some years and the available telephones in the prison were “busy.” The prison authorities were finally informed of the escape at about 8:40 o’clock a.m. About 9:00 o’clock that morning, the Leavenworth County Sheriffs office received a telephone message from “the captain’s office” at the penitentiary that seven inmates had assaulted a guard and taken over a tower, and that the inmates had access to weapons which were in the tower. The caller asked for help from the sheriff s office and told the dispatcher that the Kansas Highway Patrol had been notified. Within five to ten minutes, the dispatcher on duty at the sheriff s office received a report that a pregnant woman had been held at gunpoint by three men and her car stolen. Within two or three minutes thereafter, the dispatcher received a second call from a local man advising that he had been held at gunpoint and his 1975 Maverick had been taken by three men who were in jail clothing. The victim believed them to be from the penitentiary. The dispatcher alerted various Leavenworth County sheriffs officers and the Leavenworth city police. Though the penitentiary at Lansing is perhaps less than three miles from the Wyandotte County line, the dispatcher did not notify the Wyandotte County sheriff s office. He did prepare a teletype message and entered it into the computer, but the computer was down and therefore the message was never transmitted. Had the computer been in operation, the message would have gone to all other Kansas law enforcement terminals.
Cansler, the plaintiff, was a sergeant on the police force at Bonner Springs, Kansas, about ten miles south of the penitentiary. He was the only police officer on duty that Sunday morning and, at about 9:30 o’clock a.m., he was on routine patrol. He saw a green Maverick automobile pass another vehicle in an unlawful manner, and he turned and gave chase. He could see that the occupants of the Maverick were not wearing shirts, but it was a warm day and this fact did not excite his curiosity. Soon he came upon the Maverick, wrecked and in a ditch, and he saw the occupants fleeing on foot toward a nearby home. Cansler did not see them carrying anything. His only radio contact was with the Wyandotte County sheriffs office. He called the Wyandotte County dispatcher and asked for a backup unit, since the men were fleeing and he surmised that the car might be stolen. He parked, grabbed his shotgun, and carefully went around to the back of the house in which the suspects had apparently taken shelter. He saw that the back door was ajar. He called the dispatcher over his walkie-talkie and advised that the suspects had entered the house and the door had been forced open. Cansler backed away from the doorway, and when he was some fifteen feet away he was struck three times by shots fired from the high-powered rifle taken by the inmates from the guard tower. Plaintiff sustained severe personal injuries which required hospitalization and lengthy treatment. He has recovered sufficiently to enable him to return to his employment, and he is the present chief of the Bonner Springs police department.
I. THE STATE’S DUTY
The first issue is whether the State owed the plaintiff a duty to protect him from the escaped convicts, and whether that duty was breached.
Because the defendants in this case are “governmental entities,” as defined in K.S.A. 1981 Supp. 75-6102, the provisions of the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., are applicable. K.S.A. 1981 Supp. 75-6103(a) reads as follows:
“75-6103. . . . (a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
Before we turn to other provisions of the Tort Claims Act, we must first determine whether the State, “if a private person, would be liable under the laws of this state.” We will first review the common law negligence principles applicable to the conduct of private persons. As we recently noted in Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, Syl. ¶ 5, 662 P.2d 243 (1983):
“For negligence to exist there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists there can be no negligence. Following Madison v. Key Work Clothes, 182 Kan. 186, 318 P.2d 991 (1957).”
In Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), we said:
“Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. . . . Whether a duty exists is a question of law .... Whether the duty has been breached is a question of fact.” p. 488.
In Prosser, Law of Torts § 56, pp. 348-50 (4th ed. 1971), we find the following discussion:
“Controlling Conduct of Others
“The general duty which arises in many relations to take reasonable precau tions for the safety of others may include the obligation to exercise control over the conduct of third persons. Thus the duty of a carrier toward its passengers may require it to maintain order in its trains and stations, and to use reasonable care to prevent not only conduct which is merely negligent, but also personal attacks or thefts of property on the part of other passengers or strangers. A similar obligation rests upon innkeepers toward their guests, upon employers toward their employees, a jailor toward his prisoner, a hospital toward its patients, a school toward its pupils, and in a large number of cases it has been extended to owners of premises who hold them open to business visitors. The list appears to include all those who are under an affirmative duty to render aid, and may possibly include other relations.
“But even in the absence of such a special relation toward the person injured, the defendant may stand in such a relation toward the third person himself as to give him a definite control over his actions, and carry with it a duty to exercise that control to protect the plaintiff. Thus the owner of an automobile is in such a position to control the conduct of one who is driving it in his presence that he is required to act reasonably to prevent negligent driving. An employer must prevent his employees from throwing objects from his factory windows, and this has been extended quite generally to include an obligation on the part of any occupier of premises to exercise reasonable care to control the conduct of any one upon them, for the protection of those outside. The physician in charge of an operation may be liable for failure to prevent the negligence of his assistants. In a New York case, a hospital was held liable for permitting a quack doctor to treat a patient on its premises. The same rule has been applied to those who have taken charge of dangerous lunatics, and logically should apply, in cases where there is recognizable great danger, to those who have charge of criminals. In all such cases, the duty is not an absolute one to insure safety, but requires only reasonable care, and there is no liability when such care has been used, or where the defendant neither knows nor has any reason to know that it is called for.”
In finding that the State owed the plaintiff a duty and therefore reinstating the plaintiff s claim against the State, the trial court relied in part upon Restatement (Second) of Torts §§ 315 and 319 (1965). These sections read as follows:
Ҥ 315. General Principle
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Ҥ 319. Duty of Those in Charge of Person Having Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
Illustration 2 under section 319 reads:
“2. A operates a private sanitarium for the insane. Through the negligence of the guards employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is subject to liability to C.”
Under section 315(a), a special relation must exist between the actor — the State, in this instance — and the third person — the inmates, in this instance — which imposes a duty upon the State to control the third person’s conduct. Under section 319, the State, having charge of the inmates, was under a duty to exercise reasonable care to control the inmates to prevent them from doing bodily harm to others, since the State obviously knew or should have known them to be likely to cause such harm.
We find no cases in this jurisdiction on these precise points, but we find many cases from other jurisdictions which are helpful. The trial court relied in part upon the case of Christensen v. Epley, 36 Or. App. 535, 585 P.2d 416 (1978). An inmate of an Oregon youth detention center escaped. A police officer who approached a vehicle stopped on the highway which was occupied by the escapee and her accomplice was stabbed to death by the escapee’s accomplice. The Oregon Court of Appeals found that a special relationship existed between the matron of the detention center and the inmate who escaped, thus bringing the case within section 315(a). The court also found that a special relation existed between the matron and the deceased police officer, thus bringing the case under section 315(b). The court said:
“By undertaking to oversee incarcerated individuals whose escape would pose a danger to others, the defendant assumes a responsibility which places her in a special relationship with those persons who may be harmed by negligent performance of her duties. Whether that class includes the entire general public, we need not decide; it would include police officers who suffer a special danger in relation to escapees.” 36 Or. App. at 541.
The cause of action was allowed against the jail matron and, through respondeat superior, the county. The case then went to the Oregon Supreme Court, Christensen v. Epley, 287 Or. 539, 601 P.2d 1216 (1979). There, the judgment of the Oregon Court of Appeals was affirmed in part and reversed in part by an equally divided Supreme Court, with one justice abstaining. The disagreement centered primarily on legal issues arising from the one fact that most distinguishes Christensen from the instant case: Officer Christensen was stabbed by the escapee’s accomplice, who was not an inmate. There had been no custodial relationship between the killer — the accomplice — and the detention center or the matron therein. Because the court was equally divided, the decision of the Court of Appeals finding that a cause of action was stated was affirmed, and the matter was remanded to the trial court for further proceedings.
The trial court again granted summary judgment, the second time on the ground that Oregon had adopted the “fireman’s rule,” which bars recovery by firemen and police officers, who are injured in the course of their duties, from one whose negligence caused the injury, unless the danger that caused the injury was an unusual, serious, hidden danger of a totally unexpected kind. The trial court’s grant of summary judgment was affirmed by the Oregon Court of Appeals sub nom., Christensen v. Murphy, 57 Or. App. 330, 644 P.2d 627 (1982). We are advised that the matter is again on appeal to the Oregon Supreme Court, but we find no record of its final disposition. At any rate, since Kansas does not recognize the “fireman’s rule,” we need not pursue the ultimate determination of that issue.
In Maroon v. State, Dept. of Mental Health,_Ind. App. _, 411 N.E.2d 404 (1980), the parents and legal guardian of an Illinois minor who was kidnapped and killed in Illinois by an escapee from the maximum security division of an Indiana hospital — where he had been serving a twenty-one-year term— brought a negligence action against the State of Indiana and its Department of Mental Health and Department of Corrections. The trial court entered an interlocutory order of dismissal. The Indiana Court of Appeals reversed, holding that the State of Indiana owed the deceased the duty to exercise reasonable care in its custody and control of a “criminal sexual deviant.”
Pertinent portions of the opinion of the Indiana Court of Appeals, discussing the existence of a duty under Illinois substantive law, are as follows:
“ ‘A duty to protect one against the criminal attacks of third persons exists only where the actor, whose negligent conduct creates the risk, is under a special responsibility toward the one who causes the harm, or where a special relationship exists between the negligent actor and the person suffering the harm. ([Citations omitted.] Section 315, Restatement [Second] of Torts.) The special relationships between the actor and the person causing the harm giving rise to such a duty include that of a parent-child, a master-servant, a possessor of land-licensee, and a person taking charge of persons having dangerous propensities. (Sections 316-319, Restatement (Second) of Torts.)’ [Quoting from Cross v. Chicago Housing Authority, 74 Ill. App. 3d 921, 30 Ill. Dec. 544, 393 N.E.2d 580 (1979).] (Emphasis added.)
“Especially relevant to the duty issue in this case are two of the sections of the Restatement (Second) of Torts (1965) cited by the Cross court: [Sections 315 and 319 are here omitted.]
“That Illinois would recognize this claim in tort against the State of Indiana is further indicated by the fact that Illinois recognizes such claims against itself. Except as provided by its legislature, Illinois ended its sovereign immunity by constitutional amendment in 1972, Illinois Constitution, Article 13, Section 4, and established the Illinois Court of Claims with exclusive jurisdiction over, inter alia, all claims against the State for damages in cases sounding in tort. S.H.A. ch. 37, § 439.8 (Supp. 1980).
“Numerous cases dealing with escapees from Illinois state institutions who caused personal injuries and property damage to claimants are reported in the Illinois Court of Claims Reporter, establishing the following Illinois law: The State is under a duty to exercise reasonable care in restraining and controlling dangerous persons committed to its custody so that they will not have the opportunity to inflict foreseeable injury upon others. Callbeck v. State of Illinois, (1958) 22 C.C.R. 722. This is the same duty as would apply to a private person or private institution caring for a mentally ill person. Dever v. State of Illinois, (1974) 29 C.C.R. 374. The doctrine of res ipsa loquitur applies so that it is incumbent upon the State to come forward with evidence to show it was not negligent; without such showing, negligence is presumed, based on inferences to be drawn from the fact of escape. Castoro v. State of Illinois, (1969) 26 C.C.R. 468. The hospital staff is charged with constructive knowledge of a patient’s behavioral history. Dever, supra. A finding of negligence does not require a finding that the specific act committed could have been foreseen. Goldring v. State of Illinois, (1971) 27 C.C.R. 165. See also Stevenson Auto and Electrical School v. State of Illinois, (1969) 27 C.C.R. 20, and Smith v. State of Illinois, (1974) 30 C.C.R. 167 (two additional cases dealing with escapees from state mental hospitals).” 411 N.E.2d at 414-15.
The case of Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982), involved a suit against the State, the director of its Department of Corrections and the director of its youth center, brought by the victim of an armed robbery. The plaintiff was shot at point-blank range with a sawed-off shotgun by a seventeen-year-old escapee from an Arizona youth detention center. The Arizona Supreme Court, in overruling one of its earlier cases, Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969), and in reversing the trial court, abandoned its prior ruling requiring a determination of whether the tortfeasor has a general or specific duty. The court said:
“We shall no longer engage in the speculative exercise of determining whether the tort-feasor has a general duty to the injured party, which spells no recovery, or if he had a specific individual duty which means recovery. See Oleszczuk v. State, 124 Ariz. 373, 604 P.2d 637 (1979); State v. Superior Court of Maricopa County, 123 Ariz. 324, 599 P.2d 777 (1979); Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Cady v. State, 129 Ariz. 258, 630 P.2d 554 (App. 1981); McGeorge v. City of Phoenix, 117 Ariz. 272, 572 P.2d 100 (App. 1977). Thus, the parameters of duty owed by the state will ordinarily be coextensive with those owed by others. In this case, for instance, it appears that the existence of duty is dependent upon the application of the provisions of Restatement of Torts § 319.” 134 Ariz. at 310.
The thrust of this statement is consistent with the prefatory language of the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6103, quoted earlier in this opinion.
Another case in point, and factually somewhat similar to the case at hand, is Webb v. State of Louisiana, 91 So. 2d 156 (La. App. 1956). A prisoner, Escobar, escaped from Louisiana State Penitentiary at Angola and fled unseen into the nearby timber. The next morning, while still in the process of attempting to make good his escape, Escobar entered the Webb home and fired two shots from a revolver stolen from an Angola state prison employee. One of the shots struck the plaintiff in the stomach. She brought a negligence action against the State for damages sustained. The trial court found that the prison authorities were negligent in supervising and checking Escobar, and in leaving guns, alcoholic beverages and drugs where they were available to the prisoners. Escobar had a number of prior convictions for violent crimes and was a dangerous prisoner. The trial court held that injuries of the type sustained by Mrs. Webb were foreseeable. Accordingly, the trial court entered judgment for the plaintiff. The Court of Appeal of Louisiana affirmed, saying in part;
“A reading of the record reveals that the factual findings of the trial judge are amply substantiated. Furthermore, we think that under the circumstances the officials and employees were undoubtedly negligent in many respects and that their negligence was a direct and proximate cause of the injuries complained of. . . .
“. . . In the case at bar . . . we do believe, as did the trial judge, that the inflicting of wounds on others in the course of escape by a convict through the use of a pistol made available by the negligence of State employees to be a most probable and reasonable foreseeable consequence of the original act or acts of negligence.” 91 So. 2d at 163.
It is interesting to note that on the same day Webb was decided, the same panel of the Louisiana Court of Appeal decided Green v. State, 91 So. 2d 153 (La. App. 1956), writ denied 1957. In the latter case, Renaldson, following his escape from a Louisiana state industrial home, stole an automobile which he negligently drove into the plaintiffs, causing injuries. The court held that the negligent acts or omissions permitting the escape were not the direct, efficient and proximate cause of plaintiffs’ injuries, and that the theft and negligent driving were remote and intervening causes. Whether in Kansas the theft of an automobile, followed by high speed and negligent driving, by a serious offender in making his escape is reasonably to be anticipated, we leave for determination in an appropriate case.
See also Annot., Liability of Public Officer or Body for Harm Done by Prisoner Permitted to Escape, 44 A.L.R.3d 899. A review of the cases collected there shows that, when not barred by specific immunity statutes, recovery has generally been allowed in cases where there was a custodial relationship between the escaped prisoner and the State and the harm suffered by the victim was foreseeable.
Cases in which recovery has been sought for injury caused by escaped mental patients are also relevant here. These cases include Rum River Lumber Co. v. State, 282 N.W.2d 882 (Minn. 1979) (lumber yard fire set by violent escaped mental patient with known violent tendencies; recovery allowed); Hilscher v. State of N.Y., 64 Misc. 2d 368, 314 N.Y.S.2d 904 (1970) (State held liable for second fire set by inmate who had “eloped” from a state school for mental defectives, but State absolved of responsibility for earlier fire set by same inmate because at that time school authorities had no knowledge of inmate’s dangerous proclivity); and Excelsior Ins. Co. of N.Y. v. State of New York, 296 N.Y. 40, 69 N.E.2d 553 (1946) (State not held responsible for fire accidentally caused by inmate who had “eloped” from state school for mental defectives where State had no prior knowledge that inmate was dangerous; State is to be held responsible only as to risks reasonably to be perceived.)
We adopt the rule set forth in Restatement (Second) of Torts § 319 (1965) as the law of this state governing the duty of those in charge of persons having dangerous propensities. In the case before us, it can hardly be argued that the State did not have a duty to confine, and confine securely, the seven escapees, all of whom are alleged to have been serving life terms after conviction for murder in various degrees. Their dangerous propensities, especially when they were heavily armed, are obvious.
The duty of the State to exercise reasonable care is, of course, commensurate with the risk. The risk of harm created by a convicted forger serving a two-year term who walks away from a work camp is minimal compared with the risk of harm created by convicted murderers serving life terms who escape from the confines of a maximum security prison. Add to that picture that the latter are heavily armed with weapons taken from the penitentiary, and the prospects for immediate harm, personal injury, or death to nearby residents or peace officers increase spectacularly.
The State also had a duty, in this day of modern communication, to notify area residents by some prearranged signal — siren, bell, whistle, prompt news release to local media, or some other method — as soon as a major escape such as this was known to prison officials. It further had a duty to notify area law enforcement officials promptly through the usual police communication channels. These would include telephone, radio, teletype or computer communications to surrounding law enforcement agencies. Radio dispatchers for those various agencies could then notify the officers on duty immediately. We conclude that Cansler has adequately alleged a duty on the part of the State, a breach thereof, and a causal connection between the breach of that duty and the injuries and damages sustained.
II. THE COUNTY'S DUTY
The second issue is whether Leavenworth County, through the county sheriff and the sheriff s department, owed the plaintiff a duty to warn him of the escape, and whether that duty was breached. Since the seven escapees did not escape from the Leavenworth County jail or from its officers, the county would have no duty under the rationale set forth above. Plaintiff, however, alleges that:
“[B]y reason of certain agreements between all of the defendants and between the defendants and other law enforcement agencies and by virtue of the defendants’ previous course of conduct, there existed a ‘special relationship’ between . . . Leavenworth County . . . and the plaintiff, which imposed upon the [defendant county] ... a duty to warn the plaintiff of the hazard posed by the seven armed escaped convicts . . . .”
In support of this contention, plaintiff cites the K.B.I. report of the escape, which states that the Leavenworth County sheriff s office was notified by the penitentiary of the escape at 8:55 a.m. and concludes:
“Apparently it is KSP’s policy to only notify LVSO of an escape . . . and through planned policy or agreement LVSO then makes the necessary radio broadcast and/or notification of other law enforcement agencies.” (Emphasis supplied.)
The plaintiff also claims that the Leavenworth County sheriff s department was a member of the “Operation Roadblock Signal 500” plan and that the sheriffs office failed to institute or activate that plan upon being notified of the escape. The portions of the roadblock plan included within the record provide the machinery for the setting up of roadblocks in the case of escapes. One part of the plan states that:
“The dispatcher of the radio system covering the crime scene shall be the dispatcher responsible for relaying the information to the other agencies.”
Roadblock points are designated throughout Leavenworth and Wyandotte Counties, and several other areas not here involved. The agencies for the roadblocks include, among others, the Leavenworth and Wyandotte County sheriff s offices and the Bonner Springs police department.
In short, plaintiff has claimed that the County’s duty to warn him arose from voluntary assumption of a duty. Prosser, Law of Torts § 56, p. 344 (4th ed. 1971), observes:
“This idea of voluntary assumption of a duty by affirmative conduct runs through a variety of cases.”
Thus, if plaintiff can establish that the Leavenworth County sheriff s office has repeatedly, over a period of time, notified surrounding law enforcement agencies when an escape takes place at the Kansas State Penitentiary, or if plaintiff can establish that the sheriff s office has agreed to do so, a duty or obligation on the part of the County may be established.
Restatement (Second) of Torts § 324A (1965) reads as follows:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
We adopted that section in Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982). In Syllabus ¶ 4 of that opinion we said:
“One who undertakes to render services to another which he should recognize as necessary for the protection of a third person is liable to the third person for harm resulting from his failure to exercise reasonable care. Restatement (Second) of Torts § 324A (1965).”
See also Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 672 P.2d 1083 (1983). Section 324A sets forth a sound rale. If the Leavenworth County sheriff s office has agreed with the penitentiary, or with other agencies through the Operation Roadblock plan, that it will warn other law enforcement agencies of escapes, or if it has repeatedly done so, then Leavenworth County may be liable to third persons such as the plaintiff for harm resulting from the failure of its officers to exercise reasonable care in disseminating the information promptly.
We do not know, and the record does not disclose, the full nature of any agreement between the penitentiary and the Leavenworth County sheriffs office, nor does the evidence disclose past practice in regard to dissemination of escape information. Further, the complete copy of the Operation Roadblock Signal 500 plan, its signatories, the commitments it contains, and whether such an agreement was in full force and effect at the time of the incident herein, are matters not fully disclosed by the record. We conclude, however, that plaintiff has sufficiently alleged a claim against the county for breach of a duty of care arising from a contract and resulting in injury to state a claim under the theories discussed above. We therefore conclude that the trial court erred in dismissing plaintiffs claim as against Leavenworth County.
III. THE ENFORCEMENT OF A LAW EXCEPTION
The State claims that it is exempt from liability by virtue of the enforcement or nonenforcement of a law exception to the Tort Claims Act, K.S.A. 1981 Supp. 75-6104(c), which reads:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(c) enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution . . . .”
The State cites several statutes which require it to retain custody of inmates at the State’s several penal institutions. These include K.S.A. 75-5201 et seq., creating the Department of Corrections; K.S.A. 21-4603, defining the authorized dispositions a court may make after a criminal conviction, including committing the defendant to the custody of the secretary of corrections; K.S.A. 21-4620, which authorizes the sentencing of defendants to the custody of the secretary of corrections; and K.S.A. 21-4621, which provides for a commitment order, committing the defendant to the custody of the secretary of corrections. The State then argues that when the escape occurred, it was enforcing or attempting to enforce those laws.
True, the statutes not only authorize the State, through the secretary of corrections, to assume and maintain custody of inmates in the State’s penal institutions, including the Kansas State Penitentiary at Lansing, Kansas, but they also impose a duty upon the secretary to retain custody. But state agencies all are created by law; their powers and their duties are established by law; and, in one sense or another, they carry out or enforce the law when they proceed with their day-to-day operations. If 75-6104(c) is given the broadest possible construction, then it becomes almost impossible to conceive of an action by a governmental agency which does not constitute enforcing or carrying out a law.
We construe K.S.A. 1981 Supp. 75-6104(c) to provide an exemption from claimed liability only where claimant’s sole asserted claim of causal negligence is the public entity’s enforcement or failure to enforce a law. That section does not provide an exemption where the agency, in enforcing or failing to enforce a law, commits some additional tortious act or omission which would be negligence at common law, and which act or omission causes damage.
The primary case in which we have considered the applicability of this subsection is Lantz v. City of Lawrence, 232 Kan. 492, 657 P.2d 539 (1983), a case involving the acts of city employees purportedly acting under a city weed ordinance. In Syllabus ¶ 2, we said:
“The exception in the Kansas Tort Claims Act contained in K.S.A. 1981 Supp. 75-6104(c), exempting governmental entities from liability where damage results from the enforcement of a law, is inapplicable where it is determined by a trier of fact that the actions of city employees giving rise to the lawsuit were outside the purview of the municipal ordinance which allegedly granted authority for such action.”
In Lantz, city employees went to the plaintiffs’ land to cut weeds. Allegedly, they used not only mowers, sickles, scythes or other implements customarily used in cutting grass or weeds, but they also used chain saws; and plaintiffs claimed that the city employees cut down sixty-three hackberry, elm, walnut, ash and oak trees of varying sizes. We held that, when all reasonable inferences were drawn from the plaintiffs’ statement of facts, a material issue of fact emerged concerning whether the city employees’ actions were within the purview of the city’s weed abatement ordinance authorizing the removal of “weeds.” If the actions were without the ordinance, then liability could follow.
■ Here, the claim is not based upon the State’s simple acts of retaining or failing to retain custody of the inmates; the claim is based upon the State’s failing in its common law duty to retain custody of known dangerous persons, in giving them access to highpowered firearms, in permitting them to escape confinement while well armed, and in failing to warn the public and nearby on-duty law enforcement personnel, including the plaintiff, of the escape. The duty to warn, for example, is not imposed by statute. We conclude that K.S.A. 1981 Supp. 75-6104(c) does not exempt the State from liability under the alleged facts of this case. The claim against the County is based upon breach of duty arising under contract or arising from a long-standing course of conduct, and the statute likewise affords no protection to the County from that claim.
IV. THE DISCRETIONARY FUNCTION EXCEPTION
The fourth point to be considered is whether K.S.A. 1981 Supp. 75-6104(d), the discretionary function exception, is applicable to the claims against either defendant. That portion of the statute reads:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused . . . .”
We have previously discussed this exemption in Carpenter v. Johnson, 231 Kan. 783, 788-89, 649 P.2d 400 (1982), and Robertson v. City of Topeka, 231 Kan. 358, 362, 644 P.2d 458 (1982). See also Note, Governmental Liability: The Kansas Tort Claims Act [or The King Can Do Wrong], 19 Washburn L.J. 260 (1980), and Palmer, A Practitioner’s Guide to the Kansas Tort Claims Act, 48 J.K.B.A. 299 (1979). An extended discussion is not warranted here, however, since plaintiff s claim is not based upon abuse of discretion, but upon breach of a nondiscretionary duty.
The State has a duty to exercise reasonable care to keep prisoners in custody according to the terms of their respective sentences. Inherent in the duty to confine is a duty to establish adequate procedures and safeguards to prevent escapes and to discover and report escapes promptly when they do occur, to employ competent guards and staff and give them proper instruction, and to have and to maintain proper equipment. The State, as the custodian of dangerous persons, has a duty to warn when dangerous inmates escape. Plaintiff claims the State breached its duty to confine and its duty to warn, and that such breach caused plaintiffs injuries and damages. The duty to confine and the duty to warn are imposed by law and are ministerial, not discretionary. Plaintiff does not claim, for example, that the State abused its discretion in allowing too many inmates to be in the exercise yard at one time, or in not assigning sufficient guards to tower duty, or in using a bell to warn of the escape instead of a siren or horn. His claim is not based upon how the State decided to confine or warn, but upon the State’s alleged complete failure to do so. Whether the State exercised reasonable care is an issue of fact.
As to the County, plaintiff claims that the County entered into an agreement to notify nearby law enforcement agencies in the event of escapes from the penitentiary, or by a course of conduct voluntarily assumed that function. If plaintiff can prove either agreement or course of conduct, then the County’s resulting duty was not discretionary; the County was under an obligation to give reasonable notice to other law enforcement agencies, and those agencies and their employees had a right to depend upon such notification.
The discretionary function exemption provides no barrier to plaintiffs claims against either defendant, both of whose acts or omissions were not discretionary, under the alleged facts now before us. The alleged acts or omissions complained of were ministerial, not discretionary. See Cook v. City of Topeka, 232 Kan. 334, 654 P.2d 953 (1982).
V. THE POLICE PROTECTION EXEMPTION
Both the State and the County contend that they are exempt from liability by virtue of the police protection exemption of the Tort Claims Act, K.S.A. 1981 Supp. 75-6104(m), which provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
(■ro) failure to provide, or the method of providing, police or fire protection . . . .”
The State claims that it is providing “police protection” when it operates a prison. It cites K.S.A. 1981 Supp. 75-5247a, which provides in part:
“75-5247a. . . . The director of any correctional institution within the Kansas Department of Corrections, all deputy directors, all persons on the staff of the department of corrections who are in the chain of command from the secretary of corrections to the correctional officer and every correctional officer, regardless of rank, while acting within the scope of their duties as employees of the department of corrections, shall possess such powers and duties of a law enforcement officer as are necessary for the performance of such duties and may exercise such powers and duties anywhere within the state of Kansas.”
It also cites K.S.A. 22-2202(11), which provides:
“ ‘Law enforcement officer’ means any person who by virtue of office or public employment is vested by law with a duty to maintain public order or to make arrests . . . and includes . . . wardens, superintendents, directors, security personnel, and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of crime, while acting within the scope of their authority.”
There is no question that penal officials and employees have the powers of law enforcement officers when such powers are necessary for the performance of their duties. When moving prisoners from one penal institution to another, or to and from court, penal officers would have and exercise the same powers as would, for example, a deputy sheriff. The operation of a penal institution is carried on pursuant to the police power of the state, and the institution itself provides police protection for all Kansas residents by keeping apart from the rest of the population those convicted felony offenders whose actions have been and perhaps promise to be dangerous and inimical to society. Both public and private mental hospitals may also serve the same function of protecting society from dangerous people. All such institutions, as we have seen, have a common law duty to issue a timely warning when extremely dangerous people escape from custody.
The duty to warn, under the facts of this case, is not solely a law enforcement or police protection function; it is a common law duty imposed upon all who take charge of persons extremely dangerous to others, as more fully discussed above and as more explicitly stated in Restatement (Second) of Torts § 319 (1965). While the seven inmates were within the walls of the penitentiary, the State’s duty could be classified as custodial and as providing police protection for the benefit of all Kansans. Once the inmates had escaped, however, then in addition to the duty to recapture the escapees, the State had a duty to warn. This duty to disseminate information did not constitute a duty to provide police protection. It could be performed by anyone in the State’s employ who could use a telephone, send a message, or push a button to sound an alarm. We do not think the legislature intended “police protection” to be so broadly construed as is urged by defendants.
We therefore hold that failing to warn does not constitute failing to provide “police protection,” and that the State is not exempt, under K.S.A. 1981 Supp. 75-6104(m), from the plaintiff s claim, under the facts here asserted.
As to the County, plaintiffs claim is based upon breach of a duty imposed by contract, or breach of a duty established by a repeated course of conduct. It is not based upon the County’s breach of any statutory duty, or its duty to provide “police protection.” Once the County assumed the duty to warn, it became obligated to exercise reasonable care in doing so. Whether the County assumed the duty to warn either by contract or by a course of conduct, and whether its actions in feeding a message into a broken computer and in notifying only police officers in the immediate locale (together with whatever action it took which may later be disclosed by the evidence) constitute the exercise of reasonable care, are fact issues which we do not now decide. What we do hold is that the County is not exempt from liability by virtue of K.S.A. 1981 Supp. 75-6104(m) under the alleged facts of this case.
VI. OTHER ISSUES
In its motion to dismiss, the County claimed that it was not liable to the plaintiff because he was covered by workers’ com pensation. Cansler, of course, was employed by the City of Bonner Springs, Kansas. Leavenworth County was not his employer and did not provide workers’ compensation coverage for him. The fact that the City provided such protection for its employee is of no concern to the County and is not a defense available to it. The act provides an exclusive remedy for an employee against the employer, but it does not bar an action by the employee against third parties. See K.S.A. 44-501 and cases cited thereunder.
Finally, in its motion to dismiss, the County contends that venue is improper. The trial court did not rule on this issue, and we therefore do not reach the merits of this claim. Suffice it to say that if improper venue were found, such finding would not result in dismissal of the action, but merely transfer. See K.S.A. 60-611.
The order of the trial court reinstating plaintiff s claim against the State of Kansas and the Kansas State Penitentiary is affirmed, and the order of the trial court dismissing plaintiff s claim against the Sheriff of Leavenworth County, the Leavenworth County Sheriff s Department, and the Board of County Commissioners of Leavenworth County, Kansas, is reversed. The case is remanded for further proceedings consistent with this opinion.
Schroeder, C.J., concurs in the result. | [
-48,
-24,
-79,
-100,
11,
96,
42,
8,
105,
-77,
36,
83,
-23,
-54,
5,
121,
111,
53,
85,
105,
94,
-73,
87,
-63,
-42,
-77,
-39,
-35,
-77,
74,
-28,
-10,
77,
112,
10,
85,
-122,
-62,
-57,
84,
-50,
6,
-119,
-48,
89,
2,
-80,
-21,
118,
75,
49,
30,
-5,
42,
30,
-29,
-23,
40,
-37,
-83,
25,
-71,
-53,
5,
126,
2,
-127,
-124,
-98,
71,
88,
62,
-104,
57,
0,
-20,
82,
-94,
-122,
-75,
115,
-103,
12,
102,
67,
35,
29,
-49,
108,
-103,
14,
63,
-99,
103,
-104,
88,
115,
9,
-106,
-99,
117,
54,
3,
-2,
-18,
4,
21,
-20,
7,
-53,
-110,
-109,
-49,
53,
6,
-25,
-21,
-127,
-80,
97,
-43,
-14,
90,
-57,
120,
27,
-102,
-108
] |
The opinion of the court was delivered by
McFarland, J.:
This is a medical malpractice action in which plaintiff Mary Ann McCullough appeals from summary judgments entered in favor of defendants Bethany Medical Center, Jimmy Kelso and Charles T. Stubblefield, M.D.
We shall first consider the propriety of the summary judgment entered in favor of Dr. Stubblefield. The general rules relative to summary judgment were summarized in Olson v. State Highway Commission, 235 Kan. 20, 679 P.2d 167 (1984) as follows:
“Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, this court will read the record in the light most favorable to the party who defended against the motion for summary judgment.” Syl. ¶ 1.
At this point a statement of the relevant facts in the light most favorable to the plaintiff is appropriate. Unfortunately, what should be a relatively simple task is rendered difficult by virtue of defendant Stubblefield’s noncompliance with Supreme Court Rule 141 (232 Kan. cxlviii), which provides:
“No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and
“(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra).
“The motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such cases the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party. In determining a motion for summary judgment the judge shall state the controlling facts and the legal principles controlling the decision in accordance with Rule No. 165. (Emphasis supplied.)
The failure of Stubblefield to comply with section (a) thereof rendered it impossible for plaintiff to comply with section (b) of the rule. Therefore the “facts” come to us for appellate review in a rather amorphous mass. More will be said later in this opinion relative to the legal effect of failure to comply with Supreme Court Rule 141. However, we will state the general background from which the cause of action arose and how plaintiff s claim against Stubblefield reached its present legal posture.
In 1980 plaintiff and her husband Bruce McCullough were expecting their first child. Plaintiff selected Dr. Stubblefield as her obstetrician as he was involved in the Bradley method of unmedicated childbirth. Plaintiff and her husband participated in Bradley method classes during the pregnancy. On August 23, 1980, plaintiff went into labor and entered the Bethany Medical Center during the early evening hours. The pregnancy had been normal and uneventful. The following morning plaintiff was examined by Dr. Stubblefield who advised her she had not dilated sufficiently for a natural childbirth and a Caesarian section would be necessary. Plaintiff became emotionally upset upon learning of this. She stated she wanted to be awake during the procedure. Dr. Stubblefield did not discuss the risks of a Caesarian section or, specifically, the risk of spinal or epidural anesthesia for this type of operation.
As plaintiff was being wheeled to the operating room she met defendant Jimmy Kelso, a nurse anesthetist employed by defendant Bethany Medical Center. Dr. Stubblefield was not present. Mr. Kelso had been advised by someone, possibly a nurse, that he was to use an epidural anesthetic on plaintiff. Mr. Kelso asked plaintiff questions relative to her medical history and explained how the lumbar epidural anesthetic would be administered. He did not explain the risk of this type of anesthetic presents, either in general or in particular, to a full-term pregnant patient. Anesthetization was attempted several times by inserting a needle with a syringe containing Nesacaine-CE 3%. Ultimately the anesthetic was injected by utilizing the single shot method. Plaintiff immediately went into convulsions and stopped breathing. Her breathing was supported. Dr. Stubble-field arrived and the Caesarian section was performed resulting in the delivery of a living child.
Plaintiff suffers from adhesive arachnoiditis and is now confined to a wheelchair. This neurological condition results from scar tissue growing around the spinal cord. The condition can be caused by negligent insertion of the anesthetic into the spinal space rather than the proper epidural space of the spinal column. There is also some indication an excessive amount of the anesthetic may have been used. There is no allegation plaintiff suffered from this condition before the administration of the anesthetic.
Plaintiff brought this action on behalf of herself, her husband and her child for her personal injuries resulting from the negligent administration of anesthetic and the failure of all involved to advise her of the risks of such anesthetization in order that she could make an informed decision. The original defendants were Dr. Stubblefield, Mr. Kelso, Bethany Medical Center and Pennwalt Corporation, of Philadelphia, Pennsylvania, manufacturer of the anesthetic. Plaintiff subsequently settled with Pennwalt, and this aspect of the case will be discussed in detail in the next issue.
The district court entered summary judgment in favor of Dr. Stubblefield after making the following findings of fact and conclusions of law:
“1. The Court finds that the pretrial conference has been held and trial is scheduled for September 26, 1983.
“2. The Court finds that there are no genuine issues of fact and this matter may be ruled upon as a matter of law.
“3. The Court finds that the Plaintiff has no expert testimony to establish either that Dr. Stubblefield had any duty to do any of the following or alternatively that he failed to meet any such duty with respect to the following:
“(a) Assessment of the Plaintiffs pre-operative condition;
“(b) Informing the Plaintiff or her husband of anesthesia risks;
“(c) Properly and adequately caring for the Plaintiff post-operatively.
“4. The Defendant’s motion for summary judgment substantively complies with Supreme Court Rule 141.
“5. Dr. Stubblefield had no duty to supervise the administration of anesthesia by a certified registered nurse anesthetist.
“6. That as the Plaintiff has no expert testimony to establish a duty of care or a deviation from that duty concerning Dr. Stubblefield, then the Plaintiff does not make a submissible case with respect to Defendant Stubblefield and he may be granted judgment as a matter of law.
“7. Dr. Stubblefield will not be listed for comparative purposes on the jury verdict sheet.”
Plaintiff challenges the Stubblefield .summary judgment on two grounds. The first is that said defendant’s failure to comply with Supreme Court Rule 141 precluded the court from entering summary judgment. The second ground is that there were material facts which were in dispute. We shall first consider the issue in relation to Rule 141.
Instead of complying with Rule 141(a) defendant filed a memorandum which discussed each claim of negligence but did not even attempt to set “forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories . . . .).” Plaintiff responded to the motion by noting the summary judgment could not be heard until Rule 141 had been complied with, citing the first sentence in the rule which provides:
“No motion for summary judgment shall he heard or deemed finally submitted for decision until . . . .” (Emphasis supplied.)
By virtue of defendant Stubblefield’s failure to comply with Rule 141(a), plaintiff could not comply with Rule 141(b) relative to what facts were controverted and what were not and the evidentiary basis therefor. At the hearing Stubblefield’s counsel stated the case was complex and he thought the way he prepared his memorandum was better, under the circumstances, than following the mandates of Rule 141. The district court agreed and found defendant had “substantially complied” with the rule. We do not agree. The bottom line is the summary judgment was granted with no way to determine then or now what facts are or are not controverted or on what evidence the parties rely. Rule 141 is not just fluff — it means what it says and serves a necessary purpose. Contrary to the opinion of Stubblefield’s counsel, a moving party’s compliance with Rule 141(a) is even more crucial in complex cases than in simple ones. In accordance with the express language of the rule, the district court could not even hear the motion until the moving party was in compliance with the requirements of the rule. On this basis alone, the summary judgment for Stubblefield must be reversed.
We, therefore, do not reach the second claim of error. However, some comments thereon are appropriate. One of the crucial issues in this case as it pertains to defendant Stubblefield, is the legal relationship between the physician and the nurse-anesthetist. Dr. Stubblefield contends he had no control over Mr. Kelso and hence has no legal liability for any alleged negligence of Mr. Kelso. This is not the first time the legal relationship between a physician and an anesthetist has been before this court.
Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961), was an action against a general surgeon with staff privileges at the University of Kansas Medical Center; an anesthetist-resident; and the department head of anesthesiology for negligent administration of general anesthetic during surgery. The anesthetic had been administered by the anesthetist-resident and the plaintiff sought to connect the resident’s negligence to the general surgeon and the department head on a respondeat superior theory. See generally 8 Am. Jur. Proof of Facts 2d, Surgeon’s Failure to Exercise Supervision and Control Over Anesthetist, p. 579; Annot., Hospital’s Liability for Injury or Death to Patient Resulting From Or Connected with Administration of Anesthetic, 31 A.L.R.3d 1114; Annot., Liability of One Physician or Surgeon For Malpractice of Another, 85 A.L.R.2d 889, § 12[b]. The general surgeon, Dr. Rridwell, alleged as his duties did not encompass the administration of anesthetic he could not be held liable for any injury which occurred to Mr. Voss because of the negligence of the anesthetist-resident. 188 Kan. at 653. The trial court granted the anesthesia department head’s demurrer to the plaintiff s petition but denied the surgeon’s and resident’s demurrers. In the ensuing appeal this court noted the duty of a physician to his patient was not affected by the fact the service rendered was gratuitous, or by the fact the physician had employed a third person so no contractual relation existed between the physician and the patient. 188 Kan. at 652. The Voss court then discussed the crucial distinction between right to control and right to supervise the actions of another health care provider. For the latter a surgeon would not be liable, for the former, a surgeon could be accountable.
“In rejecting the contentions of Bridwell we simply hold, upon all the confronting facts and circumstances here presented, a cause of action is stated in Count I against Bridwell. In other words, where a person undertakes to administer anesthesia to a patient and fails to use due care in so doing, he is not the only one who under all circumstances may be held liable for the resulting injury.
“It is an established rule that a physician or surgeon must exercise due care in selecting his assistants, and on the simplest principles of law, agency, or of master and servant, a physician or surgeon may be liable for the neglect or fault of his apprentice, agent or employee, such as an assistant who is working under his direction, for injury resulting therefrom to a patient. The fact that a physician’s assistant is a member of the same or a similar profession does not make the rule of respondeat superior inapplicable. (Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093; 41 Am. Jur., Physicians and Surgeons, § 112, p. 223; and 70 C.J.S., Physicians and Surgeons, § 54e, p. 978.)
“In determining whether a person is the servant of another it is necessary that he not only be subject to the latter’s control or right of control with regard to the work to be done and the manner of performing it, but that this work is to be performed on the business of the master or for his benefit. Actual control, of course, is not essential. It is the right to control which is determinative. On the other hand, the right to supervise, even as to the work and the manner of performance, is not sufficient; otherwise a supervisory employee would be liable for the negligent act of another employee though he would not be the supervisor or master of that employee in the sense the law means it. (Restatement, Agency 2d, § 220[1], [1958]; and Yorston v. Pennell, Appellant [1959], 397 Pa. 28, 39, 153 A.2d 255.)” 188 Kan. at 655-56. (Emphasis supplied.)
The court in Voss also held the district court had erred in granting the department head’s demurrer to the petition for it alleged sufficient facts to show the department head could be responsible for the negligent acts of the anesthetist-resident. 188 Kan. at 657.
The result of Voss that a physician could be liáble for the negligence of an anesthetist is consistent with the general view the obligation to provide anesthesia is not necessarily limited to one person. Two doctors, writing on obstetric anesthesia have commented succinctly:
“It is impossible to charge the neglect of obstetric anesthesia to any particular persons or groups involved in the care of the patients. The responsibility to provide adequate obstetric anesthesia belongs to many. The influence of even a single person, however, could affect considerable change for the better. The maternity patient can be offered good anesthesia care only through the mutual and concerted efforts of obstetricians, anesthetists, and hospital administrative personnel.” Phillips & Ott, Obstetric Anesthesia, 1966 Ann. Med. Trial Tech. Q. 149, 163 (1966). (Emphasis supplied.)
While Voss involved an anesthetist-resident, as compared to the instant action of a nurse-anesthetist, we note though a surgeon is generally not liable for the negligence of an anesthesiologist, a surgeon usually is liable for the negligence of an anesthetist-resident or nurse-anesthetist under the doctrine of “captain of the ship” which still pertains in most states. 8 Am. Jur. Proof of Facts 2d, Anesthetist Supervision And Control § 1, p. 587.
Conceivably, a factual situation could exist where summary judgment would be proper on the issue of responsibility of the operating surgeon for the negligence of a nurse-anesthetist. However, such a situation would be a rare bird. Ordinarily, determination of the right of control is a matter for the trier of facts. See 8 Am. Jur. Proof of Facts 2d, Anesthetist Supervision and Control § 6, pp. 598, 600-01. Also see generally Voss v. Bridwell, 188 Kan. 643; 12 Am. Jur. Proof of Facts, Anesthesia § 1, p. 453.
The summary judgment entered in favor of Dr. Stubblefield is reversed and plaintiff s claim against the physician is remanded for further proceedings.
The second issue before us is whether the district court erred in entering summary judgment in favor of defendants Bethany Medical Center and Jimmy Kelso.
The Pennwalt Corporation of Philadelphia, Pennsylvania, was an original named defendant in the action predicated upon product liability and negligence in connection with the Pennwalt anesthetic, Nesacaine-CE 3% used by Mr. Kelso. Counsel for Pennwalt and the plaintiff entered into settlement negotiations which culminated in a release being executed on June 29, 1983, and modified the following day. Defendants Bethany and Kelso filed a motion for summary judgment contending this release was a general release of all claims arising from the August 24, 1980, anesthetization of plaintiff. The district court sustained the motion.
In ruling on the motion the district court held:
“The document itself contains the agreement of the parties, and the intent of the parties and the effect of their agreement is to be gleaned from the face of the document and no parol evidence is to be heard.”
This was error. As this court said in Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 510 P.2d 145 (1973):
“In such case, since the defendant was not a party to the written release, parol evidence may be introduced to determine the intention of the parties. (See Couillard v. Charles T. Miller Hospital, Inc., [253 Minn. 418, 92 N.W.2d 96]; Dickow v. Cookinham, 123 Cal. App. 2d 81, 266 P.2d 63, 40 A.L.R.2d 1066; Fitzgerald v. Union Stock Yards Co., 89 Neb. 393, 131 N.W. 612.)” 212 Kan. at 42. (Emphasis supplied.)
The Fieser rule is consistent with Restatement (Second) of Torts § 885, Comment d, p. 335 (1979):
“The agreement as to the effect of the release may be proved by external evidence; and the objection of the parol evidence rule is met by the fact that the second tortfeasor who raises the question is not a party to the instrument.”
Further,’ there is no indication in the record whether or not the district court placed the burden of proof upon defendants Bethany and Kelso to establish they came within the release. As this court stated in Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35:
“When a general release discloses on its face that it has been given to named releasees who denied liability but made payment by way of compromise and settlement, then and in that event other alleged wrongdoers who were not parties to the release and made no payment toward satisfaction can fairly be called upon to show that either the release which they rely on was intended to discharge them or that the releasor has received full compensation. If they are unsuccessful in their proof then they should not be insulated from liability for their tortious acts.” 212 Kan. at 41-42.
Succinctly:
“The execution of a release pleaded by a defendant in his answer is an 'allegation of an affirmative defense concerning which the defendant must sustain the burden of proof. (Tabor v. Lederer, 205 Kan. 746, 472 P.2d 209).” 212 Kan. at 42.
See also Shinkle v. Union City Body Co., 94 F.R.D. 631, 633 (D. Kan. 1982.)
In the absence of any evidence produced by either party on the question of intent, and when the document is silent upon the matter, the Kansas rule is that other parties are “presumed” not released. Shinkle v. Union City Body Co., 94 F.R.D. 631; Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740 (D. Kan. 1978).
In Geier v. Wikel, 4 Kan. App. 2d 188, 603 P.2d 1028 (1979), the Kansas Court of Appeals stated:
“An injured party whose claim for damages is exclusively subject to the Kansas comparative negligence statute may now settle with any person or entity whose fault may have contributed to the injuries without the settlement in any way affecting his or her right to recover from any other party liable under the act. The injured party is entitled to keep the advantage of his or her bargaining, just as he or she must live with an inadequate settlement should the jury determine larger damages or a larger proportion of fault than the injured party anticipated when the settlement was reached. It follows that the type of release given will have no effect on any party not specifically named in the instrument.” 4 Kan. App. 2d at 190. (Emphasis supplied.)
In Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), we stated:
“In our present case the city settled the entire liability for Kennedys' damages. Contrary to the holding of the Court of Appeals the settlement and release given covers all parties who may have contributed in any way to the damages. The plain and unambiguous wording of the release given by the plaintiffs did:
“ ‘[R]elease and forever discharge the said defendants and all other persons, firms, and corporations, both known and unknown, of and from any and all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by anyone prior to and including the date hereof on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 17th day of July, 1975, near Sawyer, Kansas.’ Emphasis supplied.
“When one considers not only the plain wording of this release and the fact the pending action brought by the Kennedys was dismissed with prejudice there can be little doubt that all third-party defendants were relieved of possible future liability to the Kennedys, along with the city and Mr. Aubley. The holding of the Court of Appeals in Geier v. Wikel, 4 Kan. App. 2d 188, 603 P.2d 1028 (1979), upon which the Court of Appeals relied, was based upon a very different type of release. Geier was riding in the Wikel car which struck a freight train. Geier received a settlement from the railway company and executed a release which provided:
‘ “The release . . . further receited that the accident occurred under circumstances which [Randy Geier and Norman Geier] claim render said Company liable in damages, although such liability is denied by said Company, and [Randy Geier and Norman Geier are] desirous to compromise, adjust and settle the entire matter.” ’ 4 Kan. App. 2d 188.
It was held the release did not inure to the benefit of Wikel since under the plain wording of the release it did not appear there was an intention to release more than the proportionate liability of the railway company. In such case the release did not relate to other possible tortfeasors either by name or by general description, and the intent shown by the wording in the release was to limit the discharge of liability to the railroad.” 228 Kan. at 453-54. (Emphasis supplied.)
With the rules and discussions contained in the aforecited cases in mind, we turn to the specific release before us.
The release executed on June 29, 1983, was captioned “General Release of all Claims.” The document indicated the agreement was only between the McCulloughs (including their son, B.J.) and “the pennwalt corporation, Philadelphia Pennsylvania, including its Pharmaceutical Division, Rochester, New York, and its manufacturing agent, Taylor Pharmacal Co., Decatur, Illinois, hereinafter collectively referred to as ‘Pennwalt.’ ” Nowhere in the document was there any explicit mention of the remaining defendants. However, the document did state the McCulloughs:
“[d]o hereby for and on behalf of themselves, their heirs, administrators, executors, successors and assigns, for and in consideration of the payments agreed to be made by Pennwalt herein, fully and forever release, acquit and forever discharge Pennwalt, its successors and assigns, together with its respective subsidiaries, agents, insurers, reinsurers, servants, employees, officers and representatives, and any other person, corporation, or entity involved in any way on Pennwalt’s behalf with the manufacture, distribution or dispensing of the drug Nesacaine of and from any and all liability, loss, claims, actions, causes of action, demands, rights, damages, costs, loss of services, expenses and compensation whatsoever, which Mary Ann McCullough, Bruce McCullough or B.J. McCullough now have or which may hereafter accrue, on account of or arising from any known or unknown, foreseen or unforeseen, bodily or mental injury, death, including any claims for punitive damages or increased damages for aggravating circumstances and the consequences thereof, as a result of the alleged administration of Nesacaine to Mary Ann McCullough on or about August 24, 1980.” (Emphasis supplied.)
The document contained the following indemnity clause:
“It is further expressly understood and agreed that Mary Ann McCullough and Bruce McCullough will indemnify and hold harmless Pennwalt of, from and against any and all claims, actions, lawsuits, liabilities and/or losses of any kind or nature whatsoever which do or might arise out of or result from any claim, lawsuit or action brought by or on behalf of Mary Ann McCullough, Bruce McCullough or B.J. McCullough or their estates, arising out of or relating to the administration of Nesacaine to plaintiff on or about August 24, 1980, and will be responsible for and pay in full any and all judgments that might be entered therein against Pennwalt or any other party released herein and will promptly pay and reimburse any and all attorneys’ fees, court costs and expenses incurred by Pennwalt and any other party released herein as they become due.”
On June 30, 1983, some concern arose on the part of the plaintiffs attorney relative to the language of the release. It was determined certain interlineations should be made to make the point precise that the only party being released was Pennwalt. Consequently, the title of the document was amended to read “General Release of All Claims as to Pennwalt Only” rather than the previous designation, “General Release of All Claims.” On the second page of the release a clause which had read: “. . . in consideration for plaintiffs agreement to dismiss, with prejudice, the aforementioned pending lawsuit, and to enter into this .General Release . . . .” was amended to state:
“. . . in consideration for plaintiff s agreement to dismiss Pennwalt from the aforementioned pending lawsuit, with prejudice, and to enter into this General Release . . . .” (Emphasized portions being insertions.)
The number four paragraph on June 29 had read: “Mary Ann McCullough hereby stipulates and agrees that she, as the named plaintiff, will stipulate to the dismissal with prejudice and shall dismiss the pending lawsuit, Case No. 81-C-4009 in the District Court for Wyandotte County, Kansas.” On June 30, as amended, paragraph four declared: “Mary Ann McCullough hereby stipulates and agrees that she, as the named plaintiff will stipulate to the dismissal of Pennwalt only, with prejudice, from the pending lawsuit, Case No. 81-C-4009 in the District Court of Wyandotte County, Kansas.” (Emphasized portions being insertions.) Another interlineation to plaintiff s release occurred in paragraph eleven. Previously, as pertinent here, the paragraph had read: “. . . with regard to the advisability of entering into this General Release of All Claims, and that they have been fully advised by said counsel regarding their rights in the execution of this General Release.” As amended, paragraph eleven stated: “. . . with regard to the advisability of entering into this General Release of All Claims as to Pennwalt only, and that they have been fully advised by said counsel regarding their rights in the execution of this General Release.”
The June 30, 1983, release modifications were made prior to the filing, the same day, of a Stipulation for Dismissal with Prejudice of plaintiff s claim against Pennwalt. The remaining defendants did not sign the dismissal order as required by K.S.A. 60-241(a) but they do not contend this rendered the release ineffectual. Rather, they argue they are included in the release. This contention is predicated upon the claim that they were “distributing” or “dispensing” Nesacaine when the same was used on plaintiff and hence, they were included in the following release phrase:
“[F]or and in consideration of the payments agreed to be made by Pennwalt therein, fully and forever release, acquit and forever discharge Pennwalt, its successors and assigns, together with its respective subsidiaries, agents, insurers, reinsurers, servants, employees, officers and representatives, and any other person, corporation, or entity involved in any way on Pennwalt’s behalf with the manufacture, distribution or dispensing of the drug Nesacaine of and from any and all liability, loss, claims . . . .” (Emphasis supplied.)
The district court held the release, even with the interlineations, constituted a general release and entered summary judgment for defendants Bethany Medical Center and Kelso.
It is undisputed neither Bethany nor Kelso participated in the Pennwalt settlement negotiations. In fact, when invited to do so by Pennwalt, these other defendants declined. On June 23, 1983, Pennwalfs counsel wrote other defense counsel, stating:
“I am writing to advise that defendant Pennwalt and plaintiff McCullough have reached a settlement agreement regarding alleged claims against Pennwalt arising out of the events of August 24, 1980.”
No mention was made of any indemnification claim Pennwalt might assert against the other defendants. None has ever been asserted. It was agreed by plaintiff and Pennwalt the amount of settlement was confidential and must never be revealed. The amount has not been disclosed despite the other defendants’ efforts to obtain this information. On June 24, 1983, counsel for defendants Bethany and Kelso wrote the district judge herein acknowledging he had been informed “a settlement has been reached between plaintiff and defendant Pennwalt” and seeking to delay Pennwalt’s dismissal until after completion of discovery. The stipulation of dismissal filed on June 30, 1983, provided:
“COMES NOW plaintiff, Mary Ann McCullough, by and through her attorneys of record, and defendant, The Pennwalt Corporation, by and through its attorneys of record, and stipulate that defendant, The Pennwalt Corporation, be dismissed with prejudice, at defendant’s costs.” (Emphasis supplied.)
Affidavits filed by plaintiff, her attorney, and the Pennwalt counsel are wholly consistent with plaintiff s position that only her claim against Pennwalt was intended to be included in the release.
We conclude, under the totality of the circumstances herein, defendants Bethany Medical Center and Kelso have, as a matter of law, failed to carry their burden of proof that they were included in the release filed herein and that the district court erred in entering summary judgment in favor of these defendants.
The judgments herein are reversed and the case is remanded for further proceedings. | [
-80,
-24,
-11,
-67,
10,
96,
56,
88,
65,
-77,
51,
19,
-83,
-52,
13,
111,
114,
61,
85,
96,
118,
-95,
7,
-63,
-30,
-77,
-13,
87,
49,
-33,
-10,
-12,
77,
120,
-126,
-75,
102,
-53,
-41,
30,
-114,
-97,
-72,
-31,
65,
72,
-80,
59,
24,
15,
-15,
94,
-93,
40,
30,
-57,
-23,
40,
-21,
60,
-127,
-80,
-101,
-115,
109,
6,
-93,
36,
-68,
38,
-40,
60,
28,
57,
0,
-24,
50,
-74,
-110,
84,
107,
-103,
12,
102,
98,
49,
20,
-17,
56,
-70,
15,
60,
13,
-90,
-38,
88,
-55,
3,
-106,
-67,
117,
64,
-114,
106,
-18,
12,
31,
108,
3,
-118,
-46,
-79,
31,
124,
-104,
3,
-21,
-125,
16,
113,
-51,
98,
92,
-58,
51,
-69,
-98,
-76
] |
The opinion of the court was delivered by
Miller, J.:
This is an appeal by the Department of Revenue from an order of the Barton District Court reversing an administrative order suspending the driver’s license of Scott F. Standish. The Department raises but one issue on appeal: whether an initial refusal to submit to a lawfully requested chemical test of breath to determine the alcoholic content of the blood, K.S.A. 8-1001, may be “rescinded” by subsequent consent.
Sometime during the night of September 17, 1982, Standish was driving west on 10th Street in Great Bend. Officer Buczinski saw the Standish vehicle strike the curb three or four times and move back and forth between the curb and the center line. The officer stopped Standish and immediately noticed the odor of intoxicants on his breath. Standish was given a field sobriety test and failed. Next, the officer advised Standish of his rights by reading him the Miranda warnings. The officer then asked Standish to take a breathalyzer test. Standish responded that he would like to talk to his attorney first. The officer then placed Standish in his vehicle and took him to the Great Bend police department. Standish attempted to telephone his attorney but was unable to reach him. The officer asked him what he wanted to do and Standish said that without talking to his attorney he could not take the breathalyzer test. The officer then told him “that he might stand a chance of losing his license for some time,” and Standish responded that he was sorry but he could not take a breathalyzer test without consulting his attorney first. Officer Buczinski then took Standish to the Barton County jail. Officer Buczinski left the jail and returned to duty. Within fifteen to thirty minutes Standish talked to the jailer and asked him, “Am I going to take this test or what?” And the jailer said, “It is too late now.” The jailer did not call Officer Buczinski and ask him to return to the jail. The officer testified that if Standish had changed his mind while he was still in the officer’s custody, he would have administered the test and would not have sent in a refusal report.
An administrative law judge found that Standish had refused to submit to a chemical breath test and suspended his driving privileges for 120 days. Upon appeal to the Barton District Court, that court, after an evidentiary hearing, held that Standish within a reasonable time rescinded his refusal to take the test, and that had the officer been made aware of this the test would have been given. The court concluded that Standish did not ultimately refuse because his initial refusal was rescinded within a reasonable time. Therefore, the order suspending his driving privileges was reversed.
K.S.A. 8-1001 provides:
“Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, to determine the alcoholic content of the person’s blood whenever the person is arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of alcohol .... The test shall be administered at the direction of the arresting officer.”
The statute continues:
“If the person so arrested refuses a request to submit to a test of breath or blood, it shall not be given and the person’s refusal .... shall be admissible in evidence against the person at any trial for driving under the influence of alcohol. The arresting officer shall make a report verified on oath to the division of vehicles of the refusal .... [I]f, after [a] hearing, the division finds that the refusal was not reasonable . . . the division shall suspend the person’s license . . . for a period of not less than 120 days and not more than one year.”
There is nothing within the statute regarding the right of a person so arrested to change his mind and “rescind” a refusal to take the test. We have carefully considered the arguments of the parties and cases from other jurisdictions. See, for example, Covington v. Department of Motor Vehicles, 102 Cal. App. 3d 54, 162 Cal. Rptr. 150 (1980); Asbridge v. North Dakota State Highway Com’r, 291 N.W.2d 739 (N.D. 1980); Peterson v. State, 261 N.W.2d 405, 410 (S.D. 1977); Hoffman v. Iowa Dept. of Transp., 257 N.W.2d 22 (Iowa 1977); Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D. 1974); and Annot., Request Before Submitting to Chemical Sobriety Test to Communicate with Counsel as Refusal to Take Test, 97 A.L.R.3d 852.
The chemical testing system provided under our implied consent law is important because it provides the best available and most reliable method of determining whether a driver is “under the influence” of alcohol. It protects both the accused and the public. A refusal to submit to the test, on the other hand, invokes serious consequences for the person arrested. We believe that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it. For this reason, we hold that an initial refusal may be changed or rescinded, and if rescinded in accordance with the following rules, cures the prior refusal. To be effective, the subsequent consent must be made:
(1) within a very short and reasonable time after the prior first refusal;
(2) when a test administered upon the subsequent consent would still be accurate;
(3) when testing equipment is still readily available;
(4) when honoring the request will result in no substantial inconvenience or expense to the police; and
(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.
For example, if Standish had refused at the scene and then changed his mind and requested the test a few minutes later when he arrived at the police station, the test should have been given. Here, however, Standish did not change his mind until the arresting officer had taken him from the scene to the police station and then to the jail, and until some time after the officer had left the jail and returned to his other duties. This, under the rules laid down above, was too late. The arresting officer need not sit and wait for the person to change his or her mind, and thus neglect other duties.
A conditional response such as, “I want to talk to my attorney (or parent or relative or friend or some other third person) first,” is not a consent to take the test. It is a refusal. See Lewis v. Department of Motor Vehicles, 191 Neb. 704, 217 N.W.2d 177 (1974); Rusho v. Johns, 186 Neb. 131, 181 N.W.2d 448 (1970); the cases cited above, and Annot., 18 A.L.R.4th 705. Standish, both at the scene of the arrest and at the station house, clearly refused to take the test.
One matter remains. The officer gave Standish the Miranda warnings, including the statement that “he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. 436, 479, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). The officer then asked Standish if he would take a breath test, and Standish responded by asking to first exercise his just-stated right to counsel. This sequence, without any further explanation, was obviously confusing to the accused.
Should the Miranda warnings be given in such a case? Does the accused have the right to consult counsel before deciding whether to take the chemical test? And what further advice, if any, must the officer give? Those questions remain to be answered.
As to Miranda, the United States Supreme Court just this month has resolved the issue. The Miranda safeguards apply regardless of the nature or severity of the offense for which the accused is suspected or arrested. Persons temporarily detained pursuant to an ordinary traffic stop are not “in custody,” and need not be given the warnings. But as soon as the suspect is arrested or his or her “freedom of action is curtailed to a ‘degree associated with formal arrest,’ ” the Miranda safeguards become applicable and the warnings must be given. Berkemer v. McCarty, 468 U.S. __, 82 L.Ed.2d 317, 104 S.Ct. 3138 (1984). Officer Buczinski followed the proper procedure in giving Standish the Miranda warnings as soon as Standish was substantially detained, arrested, or in custody.
The right to drive a motor vehicle on the public streets is not a natural right but a privilege, subject to reasonable regulation in the public interest. Agee v. Kansas Highway Commission, 198 Kan. 173, 180, 422 P.2d 949 (1967). When a blood testis required under state law, the accused is not entitled to assert the Fifth Amendment privilege against self-incrimination. Also, the blood test does not violate the Fourth Amendment right to be free of unreasonable searches and seizures; it is a reasonable test. Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966). We conclude that when, as in Kansas, state law deems that all drivers have given consent to chemical tests of blood or breath when arrested for driving while under the influence, and that if the person arrested refuses to submit to the test certain consequences follow, no constitutional right to consult counsel in order to determine whether to submit to the test attaches. See Peterson v. State, 261 N.W.2d at 410, and Hoffman v. Iowa Dept. of Transp., 257 N.W.2d at 26. If, as here, it is convenient to give the accused an opportunity to call an attorney, that procedure may be followed; but contacting an attorney or having one present at this stage of the proceedings is not an absolute right and cannot be used to delay or thwart the implied consent procedure.
In the future, when an officer in making a DUI arrest gives the suspect the Miranda warnings, he or she should also tell the person arrested:
“Kansas law provides that a person who drives a motor vehicle shall be deemed to have given consent to submit to a chemical test of breath or blood, to determine the alcoholic content of the person’s blood, whenever the person is arrested or taken into custody for operating a motor vehicle while under the influence of alcohol.
“Your right to consent or refuse to take a chemical test is not a constitutional right. You have no constitutional right to consult with an attorney as to whether or not you will take the test.”
Also, and although not required to do so by our earlier cases, the officer could well add:
“If you refuse to take the test, the fact of your refusal can be used against you in any trial for driving under the influence of alcohol.
“Also, if you refuse to take the test, your driver’s license will probably be suspended for a period of not less than 120 days and not more than one year.”
Under the facts of the case now before us, we hold that the district court erred in holding that Standish timely rescinded his earlier refusal to submit to the.test. However, in light of the confusion caused by giving the Miranda warning without explaining the inapplicability of the right to counsel when the accused was determining whether to submit to the test, we hold that Standish’s refusal was reasonable.
The judgment is affirmed.
Prager, and Holmes, JJ., not participating. | [
-16,
-22,
-23,
-98,
43,
-64,
59,
61,
80,
-73,
119,
115,
-81,
-46,
5,
123,
-70,
109,
117,
91,
-33,
-74,
87,
5,
-10,
-5,
-104,
-41,
-13,
75,
-12,
-12,
74,
56,
-118,
-107,
38,
-56,
-25,
88,
-114,
6,
-71,
104,
81,
-38,
34,
106,
-109,
11,
49,
-98,
-29,
62,
25,
-117,
9,
44,
91,
-91,
-120,
-15,
-103,
29,
-49,
70,
-93,
20,
-103,
-127,
-8,
127,
-99,
-111,
0,
-8,
51,
-92,
-128,
-12,
111,
-103,
-116,
98,
98,
-96,
21,
-17,
-92,
-87,
-114,
-102,
29,
-89,
-40,
121,
104,
44,
-106,
-65,
110,
54,
7,
-8,
107,
68,
93,
-4,
6,
-50,
-8,
-111,
-49,
-76,
-96,
67,
-62,
1,
48,
97,
-41,
-10,
86,
-59,
114,
27,
-57,
-12
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding. Larry Burton (defendant-appellant) guilty of aggravated robbery as an aider and abettor (K.S.A. 21-3427 and K.S.A. 21-3205). The appellant contends (1) the evidence was insufficient to sustain the charge of aiding and abetting, (2) the jury was improperly instructed on the presumption of intent, and (3) he is entitled to a new trial.
On November 27, 1982, around 5:00 p.m., the Kizer-Cummings Jewelry Store in Lawrence was robbed at gunpoint by two black males and a black female. The jewelry taken was stuffed into the female robber’s purse. The female robber also carried a plastic trash bag containing a hard object which she used to try to break the glass on one of the jewelry cases. After the robbery a trash bag with a rock in it was found on the floor of the jewelry store.
While the robbery was in progress a police officer patrolling the downtown shopping area pulled into a parking lot located behind the jewelry store and several other businesses. He noticed a car backed into one of the parking stalls with the lights on and the engine running. The officer’s car was marked only with a city seal on the side. Because the car in the parking lot matched the description of a car sought in connection with an earlier shoplifting incident, the officer blocked it in with his car and got out to investigate. A black male later identified as the appellant got out of the car on the driver’s side and asked if anything was wrong. The officer was not sure whether the appellant had been in the front or back seat. When the officer advised the appellant the car was illegally parked, the appellant said he was there to pick up a package. The officer told the appellant not to leave the car parked that way for long and went'to talk to another officer who had pulled into the parking lot. The officer then noticed the appellant walking in the alley behind the parking lot in the direction of the jewelry store. The officer estimated the car was parked 100 yards from the jewelry store. The car was parked facing the exit so it could be driven straight out of the parking lot onto the street. The officer thought the appellant appeared slightly nervous, but no more so than any person confronted by a police officer for parking illegally.
A few minutes later when the officer returned to police headquarters he heard the report of the robbery. A check of the parking lot behind the jewelry store confirmed that the illegally .parked car was no longer there. A description of the vehicle and the four suspects was broadcast to other law enforcement personnel. Shortly thereafter, a highway patrol trooper spotted the getaway car coming from the direction of Lawrence on Highway K-10 in Johnson County. The patrolman followed the car for several minutes and, upon ascertaining that at least three black persons were riding in it, pulled the car over. The passengers were instructed to exit the car. The female passenger dropped her purse to the ground and it fell open, exposing numerous items of jewelry inside with price tags still attached. The four passengers of the car, including the appellant, were placed under arrest for aggravated robbery. When the car was later searched a large quantity of jewelry was found in a trash bag on the floorboard of the car. Price tags from the jewelry store were found strewn about the front of the car. A trash bag with a rock in it was found on the floorboard behind the front seat. The appellant was sitting in the back seat when the car was stopped.
The appellant maintained he knew nothing about the robbery until the car was stopped and he was arrested. He told officers nothing was said by anyone in the car about a robbery, nor had he seen a gun or any stolen property which led him to believe a robbery had been committed. The appellant testified that the day before the robbery he had travelled to Kansas City from St. Louis, where he lived, to look for a job. The day of the robbery he was walking near Interstate 70 looking for a ride. Lawrence Lane stopped and offered to give him a ride back to St. Louis. Lane and the appellant were not personally acquainted, but knew members of each other’s families. Lane was accompanied by his wife, Claudia, and her brother, Delvin Trotter. The three had travelled to Kansas City from St. Louis early the day of the robbery, ostensibly to check on a car. In Kansas City, Lane spotted the appellant walking along 1-70. Lane stopped to talk to the appellant because he thought he knew him. Lane testified he told the appellant he would take him back to St. Louis, but first he had to pick up a package in Kansas, and the appellant could either go with them or they could pick him up on the way back to St. Louis. The appellant decided to go with them rather than wait.
The appellant testified he went to sleep in the car and did not wake up until they had arrived in Lawrence. After making a few stops to buy food and gas, Lane parked the car in the parking lot with the engine running and told the appellant to wait while he and the others went to pick up some packages. The appellant got out of the car when the police officer pulled up because he saw another marked police car also pull into the parking lot at about the same time and was curious about what was going on. He did not realize the first car that stopped was a police car until he saw the officer’s uniform. After talking to the officer he walked into the alley behind the parking lot to see if he could find Lane or one of the others to tell them to move the car.
The three participants in the robbery all told the same basic story to police and at the appellant’s trial. Lane maintained he alone planned the robbery and the other two did not know of his plans until they were walking to the jewelry store. Lane then forced his wife and brother-in-law to help him with the robbery. There was never any discussion concerning a robbery by the passengers in the car prior to when the car was stopped by police. Before the robbery Lane parked the car in the parking lot behind the jewelry store and told the appellant they were going to pick up some packages. He left the engine running because it was cold outside. When they returned to the car the appellant told them a police officer had said the car was illegally parked but did not issue a ticket or take down the license number. Lane said he did not tell the appellant what they were doing because it “wasn’t none of his business.” He also said he threw the gun out of the window after the robbery.
Various discrepancies in the stories told by the participants surfaced during trial. A detective who interviewed Lane after his arrest testified Lane told him that after arriving in Lawrence they drove around for a while looking at jewelry stores before determining Kizer-Cummings would be the best to rob. Claudia Lane told the detective basically the same story. Claudia Lane testified at her own trial that after driving around Lawrence they stopped and purchased trash bags at a store. Her husband “fixed up” the trash bags with rocks in them and put one in the back seat by her brother and one in the front seat with her. He told her to empty her purse out in the car and put one of the trash bags in the purse. After the robbery she became scared and started asking what was going to happen to them when the highway patrol trooper began to follow them.
The appellant denied he knew anything at all about the robbery. He testified he did not hear any discussion of a robbery, he did not see Lane throw a gun out of the window, he did not see any jewelry in the front seat after the robbery, he did not hear Lane tell Claudia to dump her purse out in the car, and he did not see any trash bags in the car.
The appellant first contends the evidence was insufficient to establish that he intentionally aided and abetted in the commission of the aggravated robbery. In a criminal action, when the defendant challenges the insufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Pham, 649, 667-68, 675 P.2d 848 (1984); State v. Voiles, 226 Kan. 469, Syl. ¶ 6, 601 P.2d 1121 (1979). In considering the sufficiency of the evidence, the appellate court looks only to the evidence in favor of the verdict; it does not weigh the evidence, and if the essential elements of the charge are sustained by any competent evidence the conviction must stand. State v. Pondexter, 234 Kan. 208, 211-12, 671 P.2d 539 (1983); State v. Williams, 229 Kan. 290, 296, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981). The inquiry is not whether the court itself believes the evidence establishes guilt beyond a reasonable doubt, but rather whether the court believes any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Douglas, 230 Kan. 744, 745-46, 640 P.2d 1259 (1982); State v. Hutton, 232 Kan. 545, 550, 657 P.2d 567 (1983).
K.S.A. 21-3205(1) provides a person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime. It'is the rule in this state that mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, 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. See State v. Williams, 229 Kan. at 661; State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981); State v. McDaniel & Owens, 228 Kan. 172, 178, 612 P.2d 1231 (1980); State v. Wilson & Wentworth, 221 Kan. at 367; State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972).
The appellant contends no direct evidence was presented from which a reasonable inference of guilt could be drawn to support his conviction of aiding and abetting. This contention is based upon the fact the appellant and the other passengers in the car testified the appellant had no knowledge of the robbery. The appellant maintains his conviction can only be supported by “stacking” inferences entirely drawn from circumstantial evidence presented at trial. He argues the State’s theory of the case required the jury to infer from his presence in the car that he knew about the robbery, and to infer from that knowledge that he intentionally participated in the robbery by acting as a lookout.
It is a basic principle of the law that presumptions and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference. State v. Williams, 229 Kan. at 649; State v. Gobin, 216 Kan. at 280; State v. Doyle, 201 Kan. 469, 488, 441 P.2d 846 (1968). What is meant by this rule is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. State v. Williams, 229 Kan. at 649; Farmers Ins. Co. v. Smith, 219 Kan. 680, 689, 549 P.2d 1026 (1976). The rule has been stated another way — that while reasonable inferences may be drawn from the facts and conditions shown, they cannot be drawn from facts and conditions merely imagined or assumed. State v. Williams, 229 Kan. at 650.
It is also well established in this jurisdiction that even the gravest offense may be sustained by circumstantial evidence. State v. Williams, 229 Kan. at 296; State v. White & Stewart, 225 Kan. 87, Syl. ¶ 14, 587 P.2d 1259 (1978); State v. Ritson, 215 Kan. at 745. In State v. Edwards, 209 Kan. 681, Syl. ¶¶ 2, 3, it was held the element of intent necessary to establish guilt for aiding and abetting another to commit a crime may be inferred from the circumstantial evidence surrounding the perpetration of the crime and is a fact question for the jury to determine.
The appellant’s contention that the evidence required the jury to infer that he intentionally participated in the robbery from the inference that he had knowledge of the robbery is without merit. The jury could infer from the facts and circumstances shown at trial that either the appellant did not know about the robbery and therefore was not guilty, or that he did know about the robbery and was guilty. The evidence at trial established that the appellant stayed with the getaway car and that he provided an explanation to the police officer for the illegally parked car. If the appellant had no knowledge of the robbery these acts were entirely innocent. However, as pointed out in State v. Wilson & Wentworth, 221 Kan. at 366, one who stays with the car, in which he knows the main participants in the crime plan to make their getaway, intentionally aids and abets in the commission of the crime and may be charged and convicted of the crime, although he did not participate at the scene of the crime. Therefore, if the appellant knew about the robbery, these acts established his intent to aid and abet in the commission of the robbery. The only inference which the jury was required to draw from the facts and circumstances presented by the evidence was whether or not the appellant knowingly associated with the unlawful venture. The second element necessary to establish guilt for aiding and abetting, that the defendant participate in a way which indicates he willfully is furthering the success of the venture, was established by uncontroverted facts.
Sufficient evidence was presented from which the jury could reasonably infer that the appellant knowingly associated himself with the unlawful venture. While the robbery was in progress the appellant waited in the getaway car. The car was backed into a parking stall facing an exit with the lights on and the engine running. The appellant got out of the car when the police officer approached and advised the officer he was there to pick up a package and would not be there long. He was then seen walking in the alley behind the parking lot in the direction of the jewelry store. The appellant and his companions were apprehended a short time later. The loot from the robbery was found strewn about the front seat of the car. Part of the loot had been transferred from Claudia Lane’s purse to a plastic trash bag. Trotter testified that while he was sitting in the back seat with the appellant he handed Claudia some gems he had taken in the robbery. A plastic trash bag containing a rock was found on the floorboard in the back seat, where the appellant was sitting when the car was stopped. Evidence was also presented that prior to the robbery Lane and his cohorts drove around Lawrence “casing” jewelry stores to determine which would be the best to rob. Lane bought some trash bags, put rocks in two of them, and placed one in the front seat and one in the back seat where the appellant was riding. Claudia Lane was instructed to empty her purse out in the car. Before they were apprehended Lane threw the gun used in the robbery out of the window of the car. The car was followed by the highway patrol trooper for several miles before it was stopped and the arrests were made. All four occupants were from St. Louis. Lane and the appellant were acquainted through their families.
From this evidence it was reasonable for the jury to infer that the appellant knew about the plans for the robbery prior to when it was committed. Although the appellant and his companions testified their meeting in Kansas City was merely by chance and the appellant had no knowledge of the robbery, the jury was absolutely free to reject this testimony. There was sufficient opportunity for the appellant and the others to agree, when it became apparent they were being followed by police, to testify that Lane had forced Claudia and Trotter to assist in the robbery and the appellant was an innocent passenger in the car. The facts and circumstances leading to the inference that the appellant knew about the plans for the robbery and knowingly associated with an unlawful venture were not merely imagined or assumed, they were established by the evidence at trial. Nor was the evidence upon which the inference was based so uncertain or speculative that it merely raised a conjecture or possibility of guilt. The inference drawn by the jury logically followed from the evidence presented at trial.
The facts in State v. Wilson & Wentworth, 221 Kan. 359, are very similar to those in the instant case. The defendant Wilson challenged the sufficiency of the evidence to sustain his conviction of aiding and abetting in the robbery of a drugstore. Two men seen leaving the drugstore on foot were apprehended by police a short distance away, with the loot from the robbery thrown nearby. A car with an Oklahoma license tag was found parked a block from the drugstore in a parking lot so the license tag was obscured against a building. Wilson was found lying in the back seat. He disavowed any acquaintance with the two men apprehended by police and said he had become tired upon returning to Tulsa from Wichita so had “pulled over” to sleep. However, the town where the robbery occurred was over 36 miles from any highway connecting Wichita and Tulsa. All three men were from Tulsa. The defendant made a statement to police after his arrest indicating he was previously acquainted with one of the other men. On appeal the court held the evidence gave rise to a reasonable inference that Wilson knowingly associated himself with the unlawful venture and participated as the driver of the car, thereby intending to further the success of the venture.
In the instant case the circumstantial nature of the evidence forming the basis for the reasonable inference of guilt does not diminish its probative value. The defendant argues his conviction should be overturned because the evidence presented does not exclude every reasonable theory of innocence. He points to earlier cases from this court which held that where proof of the defendant’s guilt was based substantially or entirely on circumstantial evidence an instruction should be given requiring that the jury be able to exclude every reasonable theory or hypothesis of innocence before finding the defendant guilty. See State v. Wilkins, 215 Kan. 145, 151-52, 523 P.2d 728 (1974), and cases cited therein. In Wilkins the court dispensed with the requirement, holding:
“The probative values of direct and circumstantial evidence are intrinsically similar and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each. We believe that whatever type of evidence is introduced in a criminal trial (whether it be termed direct, indirect, testimonial, circumstantial or a combination) the trier of fact must apply the same test to convict the defendant and if there is a reasonable doubt as to his guilt then the defendant should not be found guilty. This court now feels it is time to discard our former rule requiring a circumstantial evidence instruction to be given.
“A proper instruction on ‘reasonable doubt’ as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further on the probative force of circumstantial evidence is to invite the confusion of semantics; and we disapprove statements to the contrary found in State v. Skinner, 210 Kan. 354, 362, 503 P.2d 168, State v. Hale, 207 Kan. 446, 450, 485 P.2d 1338, and in any other decision of this court contra to our holding in the instant case.
“We hold an instruction on circumstantial evidence, which cautions the jury that a defendant should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence or states that the jury cannot convict the defendant on circumstantial evidence unless the circumstances exclude every reasonable hypothesis of his innocence, is unnecessary when a proper instruction on ‘reasonable doubt’ is given; and we overrule State v. White, 211 Kan. 862, 508 P.2d 842, and all other decisions in which this court has required a special instruction on circumstantial evidence.” 215 Kan. at 156.
See also State v. Peoples, 227 Kan. 127, 135, 605 P.2d 135 (1980); State v. Costa, 228 Kan. 308, 319, 613 P.2d 1359 (1980).
The defendant contends his testimony offered a reasonable theory of innocence which precluded the jury from finding him guilty based upon the circumstantial evidence presented. A reasonable doubt instruction was given in this case. The jury rejected the testimony presented by the appellant and his accomplices and concluded from the facts and circumstances established by the evidence that he had knowledge of the robbery. The evidence presented in this case was sufficient to form the basis for a reasonable inference that the appellant knowingly associated with the unlawful venture when viewed in the light most favorable to the State. This inference, coupled with the facts established by the evidence that the appellant stayed with the getaway car and concealed the true purpose for the illegally parked car from the police, sufficiently established that he intentionally aided in the commission of the robbery.
In a related issue the appellant contends the “presumption of intent” instruction given to the jury was improper under the evidence presented. The instruction given, essentially identical to PIK Crim. 2d 54.01, reads:
“Ordinarily a person intends all of the usual consequences of his/her voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met the burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
The presumption in criminal cases that a person intends the ordinary consequences of his acts is merely a rule to assist the jury in reaching its conclusion upon a question of fact, and is not a presumption of law. 29 Am. Jur. 2d, Evidence § 204. This court has said this instruction only establishes a permissive inference and does not create a burden-shifting presumption. State v. Robinson, Lloyd & Clark, 229 Kan. 301, 309, 624 P.2d 964 (1981); State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022, cert. denied 449 U.S. 965 (1980).
The appellant contends that aiding in the commission of a robbery is not the usual consequence of any of the appellant’s actions proved by the evidence and therefore the instruction should not have been given. The appellant argues in his brief:
“It can hardly be maintained that facilitating a robbery is a usual consequence of sitting in a car at dusk with the engine and lights on. Nor can it be asserted that promoting a robbery is a usual consequence of talking to an officer because the car is illegally parked. ... At most, one could argue that promoting a robbery is a usual consequence of voluntarily associating and remaining with a group of robbers, with knowledge that they are about to commit a robbery. Such an application stretches the rationale of the instruction, especially when knowledge of the robbery plan could only be inferred. No intent relevant to guilt can be inferred pursuant to this instruction from anything that Burton did, until other inferences are first made about his actions and involvement.”
In other words, the appellant argues the instruction was not supported by facts established by the evidence, but merely by inferences drawn from that evidence. This instruction, it is argued, improperly allowed the jury to infer the appellant’s guilty intent to aid in the success of the venture from the inferences upon which the instruction was based, that the appellant knowingly associated with the unlawful venture.
This argument is based in large part upon the appellant’s contention that his conviction can only be supported by “stacking” inferences drawn from the evidence, which is not the case here. As it has been stated, the central issue of fact presented to the jury was whether the appellant had knowledge of the plans for the robbery. Once this finding was made the instruction permitted the jury to infer the appellant’s intent to aid in the commission of the robbery from his voluntary acts of staying with the getaway car and providing the police officer who happened by with an explanation for the illegally parked car. These facts were established by the evidence and provided a basis for giving this instruction. The instruction merely states the concept underlying the principle of law recognized in State v. Wilson & Wentworth, 221 Kan. at 366, that one who stays with the getaway car intends to aid in the commission of the crime, which is the usual consequence of such an act. It did not permit or require the jury to infer solely from its finding that the appellant had knowledge of the robbery that he also intentionally participated in the commission of the robbery, as the appellant implies. This court had held as many inferences may be drawn from a fact, or a state of facts, as it will justify, so long as each has a factual foundation, without violating the rule against inference based on inference. Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, Syl. ¶ 3, 578 P.2d 1095 (1978); Virginia Surety Co. v. Schlegel, 200 Kan. 64, Syl. ¶ 5, 434 P.2d 772 (1967). Both the inference that the appellant had knowledge of the robbery and the inference that he intended to aid in the commission of the robbery by his voluntary act had a firm factual foundation in the evidence presented at trial. It was not error for the trial court to give this instruction.
Finally, the appellant contends he was denied a fair trial because he was restricted during voir dire examination and closing argument from attempting to explain the meaning of the reasonable doubt instruction and its applicability. This court has consistently adhered to the position that no definition could make the concept of “reasonable doubt” any clearer than the words themselves. State v. Douglas, 230 Kan. at 745; State v. Costa, 228 Kan. at 319. The trial court has broad discretion in controlling both voir dire and closing arguments. See State v. Crouch, 192 Kan. 602, 606, 389 P.2d 824 (1964); Skelly Oil Co. v. Urban Renewal Agency, 211 Kan. 804, 809, 508 P.2d 954 (1973). The trial court did not abuse its discretion in limiting this line of discussion. The appellant further argues his rights were prejudiced by the trial court’s failure to excuse a juror, who worked in the media, who was familiar with the prosecutor and one of the police officers involved, and who had read a police report of the robbery shortly after it was committed. The juror indicated he remembered little about the case and believed he could be fair and impartial. The State’s challenge of this juror for cause was denied by the trial court. The appellant did not raise any objec tion to the juror, did not challenge him for cause, and did not exercise a peremptory challenge to remove him. The appellant is in no position to complain that he was denied a fair trial due to the trial court’s failure to discharge this juror. See State v. Paxton, 201 Kan. 353, 359-60, 440 P.2d 650, cert. denied 393 U.S. 849 (1968).
The judgment of the lower court is affirmed. | [
-16,
-20,
-7,
-116,
24,
98,
50,
-70,
81,
-123,
-89,
91,
45,
-53,
1,
123,
-1,
-3,
84,
105,
-46,
-77,
71,
-79,
-46,
-13,
-6,
-59,
-77,
-54,
-10,
-42,
76,
48,
-126,
-35,
102,
74,
-57,
84,
-114,
1,
17,
81,
80,
24,
-92,
58,
52,
11,
-79,
30,
-29,
42,
28,
-60,
-87,
44,
-21,
61,
-16,
-47,
-87,
-123,
125,
20,
-93,
38,
-70,
5,
-40,
127,
-104,
57,
0,
88,
115,
-90,
-126,
84,
77,
27,
12,
102,
98,
0,
29,
-18,
-92,
-87,
-114,
119,
-121,
-89,
-104,
72,
64,
36,
-106,
-97,
117,
55,
3,
-4,
-45,
28,
87,
108,
7,
-49,
-80,
-111,
-55,
116,
30,
-22,
-37,
-127,
51,
33,
-50,
-30,
92,
87,
122,
-77,
-50,
-43
] |
The opinion of the court was delivered by
Herd, J.:
This is a damage action for false arrest brought by Esteban Mendoza against Reno County and the arresting officers, individually. The trial court granted summary judgment to the defendants, from which this appeal was taken.
At approximately 5:00 a.m. on May 13,1982, John Hendrix, the Hutchinson Fire Marshal, was called to the scene of a house fire at 407 W. 1st Street, Hutchinson. Mr. Hendrix inspected the premises and determined the fire was arson caused by a flammable liquid. Mr. Hendrix then contacted Detective Loren Beshore of the Reno County Sheriffs Office. Detective Beshore commenced an investigation and obtained a statement from an alleged eyewitness. At 10:23 a.m., the eyewitness was shown five mug shots. The witness immediately identified Esteban Mendoza, the appellant, as the arsonist.
Detective Beshore and Fire Marshal Hendrix then contacted the county attorney. They were advised there was probable cause to issue a warrant for the arrest of Mendoza. There was no permanent address available for Mendoza. At approximately 11:30 a.m., Detective Beshore was advised by an informant of the location of Mendoza. Detective Beshore then requested County Attorney Joe McCarville, and Fire Marshal Hendrix, who was also a deputy sheriff, to accompany him in an attempt to locate and talk with Mendoza.
When they arrived at the location where Mendoza had been seen, they observed a group of men some distance from the road. McCarville remained in the vehicle, while Detective Beshore and Fire Marshal Hendrix approached the group. Esteban Mendoza was in the group. Detective Beshore askéd Mendoza if he would come with them for a discussion. Mendoza refused and began to walk away. Detective Beshore again asked if he would come. Mendoza again refused and became belligerent. Detective Beshore then placed Mendoza under arrest.
Mendoza was incarcerated for suspicion of arson, and bond was set for $2500. Mendoza could not make bond and thus spent the night in jail. The next morning, after County Attorney McCarville determined there was insufficient evidence to convict appellant of the crime, he was released without being charged. Mendoza then brought this civil action.
The first issue on appeal is whether the trial court erred in holding the county and its officers immune from liability for arresting appellant under the discretionary function exception to the Kansas Tort Claims Act (KTCA), K.S.A. 1983 Supp. 75-6101 et seq.
The enactment of the KTCA initiated a new direction in tort liability of governmental entities making “liability the rule and immunity the exception.” Carpenter v. Johnson, 231 Kan. 783, 784, 649 P.2d 400 (1982). This is clearly articulated in K.S.A. 1983 Supp. 75-6103(c), which provides:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
There are, however, numerous exceptions to this general rule of liability which “indicates there has been no wholesale rejection of immunity by the Kansas Legislature.” Robertson v. City of Topeka, 231 Kan. 358, 360, 644 P.2d 458 (1982). The discretionary function exclusion relied upon by appellees is K.S.A. 1983 Supp. 75-6104(d):
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the governmental entity or employee, whether or not the discretion be abused.”
We have discussed this exception on previous occasions. See, e.g., Cansler v. State, 234 Kan. 554, 569-70, 675 P.2d 57 (1984); Robertson v. City of Topeka, 231 Kan. at 360-63; Carpenter v. Johnson, 231 Kan. at 788-89. We described the exception in Robertson as it pertains to police officers performing their jobs.
“It would be virtually impossible for police departments to establish specific guidelines designed to anticipate every situation an officer might encounter in the course of his work. Absent such guidelines, police officers should be vested with the necessary discretionary authority to act in a manner which they deem appropriate without the threat of potentially large tort judgments against the city, if not against the officers personally.” 231 Kan. at 362.
In the instant case, an eyewitness to the arson identified the appellant from a photo lineup. Appellant did not have a permanent address. When the police received a report as to his whereabouts, they proceeded to that location with the intent of questioning appellant about the crime. A complaint and arrest warrant were not obtained since the purpose of making contact with the appellant was merely to gather further information about the crime. When appellant was approached, however, and refused to cooperate or to talk with the police, the officers chose to arrest him. They feared if he was allowed to go he might destroy evidence or flee from the jurisdiction, since he was now aware the police had connected him with the crime. This constituted probable cause for Mendoza’s arrest. As in Robertson, there are no police department rules or regulations which cover situations such as this. From such probable cause the appellees exercised their discretion in determining to arrest appellant. Thus, the trial court properly held this action was a discretionary function immune from liability pursuant to K.S.A. 1983 Supp. 75-6104(d). The legal status of a warrantless arrest without probable cause is outside the issues of this case.
Appellant next argues the question of probable cause in the arrest is a fact question for a jury. Since the trial court granted summary judgment, the fact issues were resolved by the court. This court has held summary judgment is proper only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show there is no genuine issue as to any material fact or that the moving party is entitled to judgment as a matter of law. Zehring v. Wickham, 232 Kan. 704, Syl. ¶ 1, 658 P.2d 1004 (1983).
False arrest has been defined as “the restraint of the personal freedom of an individual without legal excuse by any words, acts, threats, or personal violence that under the circumstances the one being restrained fears to disregard.” See PIK Civ. 2d 14.20. Appellant contends there is a genuine issue of material fact as to the existence of “lawful excuse” for his arrest; therefore, he argues summary judgment was improper. Taking the uncontroverted facts in the light most favorable to the accused, there was sufficient probable cause for Mendoza’s arrest. Thus, as a matter of law the officers had the lawful excuse required for arrest, leaving unresolved no genuine issue of material fact. Summary judgment was proper.
Appellant finally argues Joseph McCarville is liable for false arrest since he was not acting within the scope of his employment when he helped arrest appellant because he was illegally carrying a concealed weapon.
It is acknowledged a county attorney is not a law enforcement officer. See K.S.A. 22-2202(11). The State of Kansas prohibits the carrying of a concealed weapon if one is not a law enforcement officer. See K.S.A. 1983 Supp. 21-4201. There are exceptions, however, to the statutory prohibition against carrying a concealed weapon. One exception allows any person who is summoned by a law enforcement officer to assist in making an arrest to carry a concealed weapon while actually engaged in assisting the officer. See K.S.A. 1983 Supp. 21-4201(2)(o). The county attorney in this case was acting in this capacity. The uncontroverted evidence shows Mr. McCarville was requested by Detective Beshore, a law enforcement officer, to accompany him in locating appellant. This act of keeping the peace and arresting appellant was, therefore, within the scope of Mr. McCarville’s employment. He is thus immune from liability for the false arrest claims of appellant.
The judgment of the trial court is affirmed.
Prager, J., concurs in the result. | [
112,
-20,
-15,
46,
8,
96,
62,
-119,
67,
-109,
-16,
-45,
-83,
-55,
21,
127,
80,
125,
68,
121,
-62,
-74,
87,
69,
-46,
-13,
89,
-59,
-69,
95,
-26,
-1,
74,
48,
-118,
-43,
6,
72,
-121,
92,
-122,
7,
-119,
-16,
-43,
8,
-76,
115,
50,
7,
113,
62,
-5,
42,
28,
-38,
-51,
60,
75,
-115,
81,
-79,
-23,
-99,
95,
2,
-127,
32,
-97,
5,
-16,
62,
-104,
17,
0,
-8,
115,
-94,
-114,
100,
69,
-117,
0,
-26,
98,
33,
92,
-93,
104,
-119,
46,
59,
-97,
-91,
-112,
105,
11,
37,
-106,
-103,
113,
50,
11,
-12,
-29,
20,
125,
-20,
-124,
-50,
-108,
-15,
-49,
32,
16,
107,
-29,
37,
49,
117,
-51,
-94,
84,
68,
19,
59,
-100,
-44
] |
The opinion of the court was delivered by
Prager, J.:
This is an action for a declaratory judgment to construe a certain mineral deed and to determine the ownership of the parties in the oil and gas and other minerals located in a certain tract of land in Stafford County. The essential facts in the case are undisputed. The mineral deed in question was executed and delivered in June of 1925. The handwritten deed provided as follows:
“Deed to An Undivided Interest in Oil, Gas and Other Minerals
“This Indenture, made this _day of June A.D., 1925 between D. C. Masters of Stafford County, Kansas the party of the first part (whether one or more) and Andrew W. Hartnett and Berij. E. Evans, of Stafford County, Kansas the party of the second part.
“Witnesseth: That the said party of the first part, for and in consideration of the sum of
“One Dollar and other valuable considerations. Dollars ($1.00)
To us in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell, release and forever quitclaim unto the said party of the second part and to heirs and assigns forever an undivided 1/16 interest in and to all of the oil, gas and other minerals whatsoever in and under the following described lands situate in Stafford County, State of Kansas, to-wit:
The North half of the North West Quarter of Section 32 in Township 22, south, of Range 11 West of the 6th P.M.
of Section_, Township_, south, Range __east of the 6th P.M., and containing 80 acres more or less. Together with the rights of ingress and egress at all times for the purpose of mining, drilling and exploring said land, for oil, gas and other minerals, and removing the same therefrom, and any and all rights and privileges necessary, incident to, or convenient for the economical operation of said land for such purposes.
“To Have And To Hold all and singular said premises, together with the appurtenances and privileges thereto incident unto the said party of the second part, heirs and assigns forever.
“If such land is covered by a valid oil and gas or other mineral lease, the party of the second part, — heirs and assigns, by this instrument shall have an undivided Vz interest in the Royalties, Rentals, and Proceeds therefrom, of whatsoever nature.
“Witness Our Hands and Seals the day and year first above written.
“Witness:_D.C. Masters (Seal)”
The deed was acknowledged before a notary public by the grantor, D.C. Masters, on June 13, 1925, and recorded on December 5, 1925.
The record shows that there was no existing oil and gas lease on the tract at the time the mineral deed was executed. The grantor, D.C. Masters, and one of the grantees, Andrew W. Hartnett, died prior to the commencement of this action. The defendants, Drew Hartnett and his sister, Mary Evelyn Hartnett Hazen, are the successors in title and owners of record of the interest acquired by the grantee, Andrew W. Hartnett. In the years following the execution of this mineral deed, D.C. Masters, by warranty deed dated October 26, 1926, deeded the east 60 acres of the tract to H.L. Hart except gas and oil royalty held by Hartnett and Evans. On October 24, 1927, D.C. Masters conveyed the west 20 acres of the tract to H.L. Hart subject to existing oil and mineral reservations of l/16th to Hartnett and Evans. On November 30,1928, H.L. Hart and his wife conveyed the entire 80-acre tract to the plaintiff, Cobus J. Heyen, except an oil and mineral reservation of l/16th to Hartnett and Evans. At the time these conveyances were made by Masters to Hart and later from Hart to Heyen, there was no existing oil and gas lease on the tract.
On August 31, 1936, all of the parties to this action joined as lessors in an oil and gas lease to Stanolind Oil and Gas Company. Stanolind promptly discovered and produced oil from the property continuously from 1936 until 1969. Plaintiff Heyen admitted at the trial that he knew when the lease to Stanolind was made that the defendants were claiming a V2 interest in the minerals in the property. Plaintiff also admitted that Stanolind paid him one-half of the $3,000 cash bonus for that lease and paid the defendants the other one-half. After oil was produced on the property, the plaintiff executed and delivered to Stanolind a division order which guaranteed and warranted the legal ownership of the oil produced from the property to be as follows:
Stanolind Oil and Gas Company %;
Cobus J. Heyen V2 of Vs royalty interest;
Benj. E. Evans Va of Vs royalty interest;
The Hartnetts 14 of Vs royalty interest.
The Stanolind oil and gas lease, which was signed by all parties, provided that payment of royalties on oil and gas due and payable under the lease should be divided V2 to Cobus J. Heyen, Va to Benj. E. Evans, and Va to the Hartnetts.
Throughout the thirty-three year period from 1936 to 1969, Stanolind produced oil under the lease, and royalty payments were made in accordance with the lease provisions and the division order set forth above — V2 to plaintiff Heyen, Va to Evans, and Va to the Hartnetts. In 1969, production ceased on the land and the Stanolind lease expired.
Between December of 1977 and June of 1980 an oil and gas leasehold interest was created in Iannitti Oil Company by a series of four separate leases from each separate mineral owner. The lease from the plaintiff, Heyen, dated June 2, 1980, to Iannitti contained this special clause:
“Lessor hereby reserves an undivided 1/16 of % of all oil, gas and other hydrocarbons produced, saved and marketed from the above land under the terms of this lease, as an overriding royalty.”
Iannitti testified plaintiff refused to give the lease unless it contained such an overriding royalty interest “to make up for all of the interest or royalty that he no longer owned.”
This action was filed by Heyen on January 20, 1981. Pending this action, the defendant, Benj. E. Evans, died on January 2, T982. Drew Hartnett, as executor of the Evans estate, entered his appearance on behalf of the estate. Thus at the time of the trial all of the parties to the mineral deed were deceased. It should be noted that the defendants, in addition to filing an answer to the petition of plaintiff, filed a counterclaim seeking to recover damages from plaintiff for slander of title by this action.
In the district court, and again on this appeal, the position of the parties was basically as follows: Plaintiff Heyen maintained, in substance, that the 1925 mineral deed was not ambiguous. He contended that the granting clause of the mineral deed expressly conveyed an undivided l/16th perpetual mineral interest in the property to Hartnett and Evans, but that the parties added a contingency clause at the end of the granting clause which allowed them to receive Vz of the royalty if, and only if, such land was covered by a valid oil and gas or mineral lease at the time the mineral deed was executed. Since there was no existing oil and gas lease at the time the mineral deed was executed, the required contingency did not occur and hence the provision giving the grantees an undivided Vz of the royalties never became effective and must be disregarded. He further maintained that, when plaintiff signed the Stanolind lease, although he knew that he owned an undivided 15/16ths of the oil, gas and minerals under the property, he knew that all interests could not be leased unless he agreed to accept only one-half of the royalty. He waived his right to take his lawful share of and accepted one-half of the royalty. He contended that, since the Iannitti lease was an entirely different lease, plaintiff is not barred by laches or the statute of limitations, and he has a right to receive his lawful 15/I6th royalty interest under the Iannitti lease.
The defendants, on the other hand, have consistently maintained that the 1925 mineral deed should be construed to convey to the grantees one-half of the oil and gas and other minerals in the land, that is, such a mineral interest as is sufficient to carry and support the grantees’ right to “an undivided V2 interest in the Royalties, Rentals, and Proceeds therefrom, of whatsoever nature,” when such land is covered by a valid oil and gas or other mineral lease. The defendants contended that the mineral deed is ambiguous and must, therefore, be construed against the grantor in favor of the grantees. They further contended that an examination of the mineral deed from its four corners shows that it was the intent of the grantor and grantees for the grantees to receive an undivided V2 interest in the royalties, and that the provision for a grant of an undivided l/16th interest in the minerals simply arose as a result of a mutual mistake or miscalculation as to the mineral interest required to vest in the grantees one-half of the royalties produced under any oil and gas lease. The defendants further asserted the affirmative defense of laches, waiver, and the statute of limitations based on the grantor’s recognition of and acquiescence in the defendants’ claim for a period of more than 30 years under the Stanolind lease.
The case was submitted to the trial court for decision. It found that an ambiguity did exist in the mineral deed in question and that it was required to consider extrinsic evidence to establish the true intent of the parties to the instrument. The court noted the distinction between a mineral interest and a royalty interest. The court found from the evidence that the plaintiff owned 15/I6ths of the minerals in place in the property and that the defendants owned l/16th of the minerals in place in the property. As to the claimed royalty interest of the defendants, the court noted that the property was not covered by a valid oil and gas lease in June of 1925, when the document was executed. The court concluded that, if the parties had intended the grantees to receive one-half of the royalties for any future lease, the word “if’ would not have been used in the clause addressing the royalty issue. Also the court noted the deed would have given the grantees the right of ingress and egress in the specific paragraph granting the royalty interest. Thus, the court reasoned that, since there was no valid oil and gas lease in existence at the time the mineral deed was executed in 1925, the grantees took no royalty interest. The trial court rejected the contention that the plaintiff was barred from claiming ownership of 15/16ths of the minerals because of laches, estoppel, acquiescence, or the statute of limitation. Under all the circumstances, the trial court found that the defendants owned only l/16th of the minerals in place and l/128ths of the royalty payable under the Iannitti Oil Company lease. The trial court denied the defendants’ counterclaim for slander of title. The defendants appealed.
The first point raised by the defendants on the appeal is that the trial court erred in construing the ambiguous mineral deed .strictly in favor of the grantor and strictly against the grantees. At the outset, it would be helpful to consider some of the basic principles to be followed in construing deeds and other instruments conveying an interest in real estate. We agree with the trial court that the 1925 mineral deed was ambiguous and, therefore, the rules for construction of deeds must be applied in this case. The recognized principles are as follows:
(1) The fundamental rule in construing the effect of written instruments is that the intent and purpose of the parties be determined from an examination of the entire instrument or from its four corners. Thus the language used anywhere in the instrument should be taken into consideration and construed in harmony with other provisions. In Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 129, 368 P.2d 19 (1962), the general rule was applied in the construction of a mineral deed where the provisions of a deed were ambiguous as to the intention of the grantor.
(2) Where a deed is ambiguous, all of the surrounding facts and circumstances attendant upon its execution may be considered in order to ascertain and carry out the intention of the parties. Siegel v. Hackler, Administrator, 181 Kan. 316, 310 P.2d 914 (1957).
(3) Where there is an ambiguity in a deed making two constructions possible, one which will be favorable to the grantee and one more favorable to the grantor, and there is no outside aid to construction, that method of construction most favorable to the grantee will be selected. Corbin v. Moser, 195 Kan. 252, 403 P.2d 800 (1965); Fast v. Fast, 209 Kan. 24, 496 P.2d 171 (1972); Gotheridge v. Unified School District, 212 Kan. 798, 512 P.2d 478 (1973); Energy Transp. Systems, Inc. v. Union Pac. R.R. Co., 456 F. Supp. 154, 164 (D. Kan. 1978). This rule has a statutory basis in K.S.A. 58-2202 which provides in part that “every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
(4) The ancient rule to the effect that the habendum clause of a deed controls the granting clause has lost much of its former force. Today courts construe a deed by considering all of its language contained anywhere in the instrument with a view to ascertaining the intent of the grantor. Brungardt v. Smith, 178 Kan. 629, 290 P.2d 1039 (1955).
(5) Subsequent conduct of parties to a contract or written instrument may aid interpretation of controversial provisions. If parties to a contract, subsequent to its execution, have shown by their conduct that they have placed a common interpretation on the contract, this interpretation will be given great weight in determining the meaning to be attributed to the provisions in question. Cline v. Angle, 216 Kan. 328, 532 P.2d 1093 (1975).
With these principles in mind, we turn now to the construction of the 1925 mineral deed. Although, as noted above, we agree with the trial court that the mineral deed was ambiguous, we have concluded that the trial court erred in its construction of the mineral deed and that the ambiguous mineral deed should be construed to convey to the grantees an undivided one-half of the oil and gas and other minerals in the land so as to carry out the intent of the parties to provide the grantees an undivided one-half interest in the royalties, rentals, and proceeds therefrom of whatsoever nature, whenever the land is covered by a valid oil and gas lease.
In arriving at this conclusion, we must disagree with the trial court’s conclusion that the word “if’ must be construed to mean that, unless the property was covered by a valid subsisting oil and gas lease on the day when the mineral deed was executed and delivered, the final clause of the deed giving to the grantees an undivided one-half interest in the royalties, rentals, and proceeds therefrom is to be totally nullified and disregarded. The trial court overlooked the fact that the word “if’ has several meanings, including “in the event that,” referring to a future happening. (Webster’s Third New International Dictionary, p. 1124.) We think it inconceivable that the parties to the mineral deed were not fully aware that there was no existing oil and gas lease on the property at the time the mineral deed was executed in June of 1925. To adopt such a construction would require us to find that the parties were accomplishing a wholly useless thing by the insertion of the final clause in the deed.
There are several other provisions in the deed which, in our judgment, establish the intention of the parties. We note that whatever interest was granted, it was intended to be perpetual, for the word “forever” appears twice in the initial clause of the deed. Furthermore, it is important to note that the grantees were .granted the right of ingress and egress “at all times” for the purpose of exploring the land for oil and gas and other minerals and the right to remove the same and to operate on the land for such purposes. It seems obvious to us that future exploration, drilling, and, hopefully, production of oil and gas was contemplated by the parties at the time the deed was executed.
It also cannot be denied that the trial court’s construction of the word “if,” so as to require an existing oil and gas lease at the time the mineral lease was executed, was not the construction which all parties placed on it during the thirty-three years Stanolind produced oil and gas under its lease made eleven years after the mineral deed. People'buy oil and gas and other minerals for one purpose — to get a share of the production and the income resulting therefrom.
Finally, the widespread confusion as to the fractional interest in the minerals required to produce a certain share of the royalties under an oil and gas lease has been recognized by this court. We believe that the use of the fraction “1/16” in the initial clause of this mineral deed was simply an error commonly made in the early days of oil and gas conveyancing. The confusion is not uncommon today. In Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. at 134-35, there is an excellent discussion of this early day misconception and misuse of the fraction “l/16th” when “Vi” was really intended:
“It is not uncommon for parties to mineral deeds or reservations, where a royalty or mineral interest is conveyed or reserved subject to an existing oil and gas lease, to confuse the fractional interest conveyed or reserved. Such confusion occurred in the instant deed. The reservation states ‘an undivided Vi of the landowners Vs royalty, or, V32 of the interest in and to oil, gas or other miner als . . . in and under the said land.’ This court has previously considered fractional discrepancies created by such confusion. (Lathrop v. Eyestone, [170 Kan. 419, 227 P.2d 136 (1951)]; Froelich v. United Royalty Co., [178 Kan. 503, 290 P.2d 93 (1955), modified 179 Kan. 652, 297 P.2d 1106 (1956)]; Magnusson v. Colorado Oil & Gas Corp., [183 Kan. 568, 331 P.2d 577 (1958)].) In the Magnusson case it was pointed out that it was not only persons in the petroleum industry who made this type of inadvertent mistake, but on occasion the mistake has been made by courts, and it was said:
“ ‘As the most common leasing arrangement provides for a one-eighth royalty reserved to the lessor, the confusion of fractional interests stems primarily from the mistaken premise that all the lessor-landowner owns is a one-eighth royalty. In conveying minerals subject to an existing lease and also assigning a corresponding fractional interest in the royalties received, mistake is often made in the fraction of the minerals conveyed by multiplying the intended fraction by one-eighth. Thus, if a conveyance of an undivided one-half of the minerals is intended, the parties will multiply one-half by one-eighth and the instrument will erroneously specify a conveyance of one-sixteenth of the minerals upon the assumption that one-sixteenth is one-half of what the grantor owns. An ambiguity is created because the instrument will also show that the conveyance of one-sixteenth of the minerals is meant to entitle the grantor to one-half of the royalty. Of course, an undivided one-half of the minerals is needed to carry one-half of any royalties reserved.’ (l.c. 576.)
“And so here. In computing the fractional interest reserved the parties were aware of the existence of the Jennings leases providing for 14th royalty to the landowner, and it is obvious the scrivener multiplied %th by 14th and the instrument erroneously specified a reservation of V32nd as the interest reserved, apparently upon the assumption that V32nd interest in and to all oil, gas or other minerals, would constitute ownership of 14th of the landowners’ 14th royalty, when the intention of the reservation as disclosed by its other terms indicate that the fraction %th should have been used instead of the fraction l/32nd. When this is done, the intent of the grantor is clear and no ambiguity exists. Plence, contrary to plaintiffs’ contention, no occasion exists for the application of any rule of construction to aid in the interpretation of the reservation.”
On the basis of the reasoning set forth above, we hold that the ambiguous mineral deed of 1925 should be construed to convey to the grantees an undivided Vi interest in the oil and gas and other minerals in and under the land in question, so as to carry out the intention of the parties to give the grantees and their successors in title an undivided l/z interest in the royalties produced under the Iannitti lease. The trial court erred in holding to the contrary. Since we have decided the defendants’ first point in this manner, it is not necessary for us to consider the contention of defendants that the plaintiff is barred by laches, acquiescence, waiver, or the statute of limitations, resulting from his course of conduct throughout the years.
The defendants’ final point on the appeal is that they are entitled to maintain their counterclaim seeking damages for slander of title as a result of the bringing of this action by the plaintiff. We have concluded that the defendants have no cause of action for slander of title under the circumstances shown in this case. Recause of the ambiguity in the deed, we cannot say that the plaintiff brought this action for a declaratory judgment .with malice, without probable cause, and not in good faith.
The judgment of the district court is reversed. Judgment is entered in favor of the defendants and the interests of the parties in the oil and gas and other minerals located in the tract of land involved are determined in the manner set forth in the opinion. | [
-10,
110,
-11,
29,
24,
-32,
40,
-101,
72,
-91,
37,
83,
-23,
-54,
20,
57,
34,
9,
68,
107,
-122,
-78,
67,
-47,
-44,
-13,
-15,
-51,
56,
88,
-90,
-58,
77,
0,
-54,
85,
-58,
2,
-59,
92,
-114,
5,
-55,
84,
-39,
0,
62,
107,
80,
75,
81,
-68,
115,
43,
29,
-30,
41,
46,
-49,
45,
89,
-8,
-65,
-41,
125,
18,
-127,
2,
-48,
-25,
-56,
10,
-112,
57,
8,
-24,
119,
-90,
22,
116,
15,
-69,
12,
98,
34,
49,
52,
-17,
-24,
-104,
14,
-10,
-115,
-89,
-14,
88,
-29,
34,
-106,
-99,
108,
20,
7,
-10,
-30,
5,
31,
-3,
18,
-53,
-42,
-95,
13,
124,
-104,
65,
-13,
7,
48,
100,
-63,
-70,
92,
71,
56,
27,
-113,
-80
] |
The opinion of the court was delivered by
Lockett, J.:
This appeal involves four cases consolidated for trial. Lentz Plumbing Company (Lentz), Conner Tile & Floor Covering, Inc. (Conner Tile), and Ralph Stumbaugh (Stumbaugh) furnished labor and materials to Country Showplace, Inc., a private club in Topeka, Kansas. Conner Tile and Stumbaugh appeal from the trial court’s determination that Tom Fee, Jr. (Fee), president of Country Showplace, Inc. (Showplace), was not personally liable for the labor and materials supplied to Showplace. All three appellants appeal the trial court’s failure to enforce their mechanic’s liens against the property leased to Showplace for use as a private club. Kenneth E. Reeves (Reeves) owned the land where the private club was located. Mr. Reeves appeals from the trial court’s denial of his fraud claim for damages against Fee.
Showplace was incorporated as a Kansas corporation May 15, 1977. In 1977, the corporation leased the building owned by Reeves for use as a 3.2 beer tavern. In 1978, Fee purchased 25% of the corporate stock of Showplace and became president of the corporation.
The corporation hired Ron Morey to manage the tavern. In 1979, the corporation determined it should change the image of the tavern. Morey convinced the board of directors of Showplace that Topeka had need for another private club. Morey was authorized by the corporation to renovate the premises. Morey contacted each of the plaintiffs and entered into separate oral contracts for material and labor to remodel the leased premises.
Between April, 1979, and September, 1979, each of the plaintiffs worked on the premises. Conner Tile installed carpeting and tile. The bill for labor and materials supplied by Conner Tile was $6,394.09. Lentz did various plumbing work on the building. Lentz’ bill for labor and materials amounted to $1,156.72. Stumbaugh performed various carpentry jobs and painting. Stumbaugh charged $6,000.00 for labor and materials. Each of the plaintiffs billed “Country Showplace” for payment.
On September 20,1979, the stockholders of Showplace agreed to sell their stock to Morey. Showplace requested Reeves to allow it to assign the lease to Morey. Reeves would not approve assignment of the lease to Morey by Showplace. Reeves’ refusal to allow the assignment of the lease to Morey halted the sale of the stock. Later in September, 1979, Morey rented a trailer, loaded Showplace’s movable property into the trailer, and departed. Morey disappeared, never to be heard from again.
Showplace failed to pay its outstanding obligations. Reeves-changed the locks on the doors of the building, barring Showplace employees from entering. Showplace could not continue the business. Each plaintiff filed a mechanic’s lien for the amount it claimed due from Showplace. Suits were filed and consolidated. Showplace filed for bankruptcy.
This matter was tried to the court. At the close of the trial, the court made findings of fact and conclusions of law, some of which are hereinafter set forth:
“1. Country Showplace, Inc., was ... a Kansas corporation pursuant to Articles of Incorporation filed with the Secretary of State on May 15, 1977.
“4. The corporation . . . has filed a bankruptcy . . . . The . . . plaintiffs were listed as creditors of the corporation and their claims have been discharged in bankruptcy.
“5. At the time of trial, counsel for the defendant, Country Showplace, Inc., confessed judgment as to the . . . claims of the . . . plaintiffs.
“6. That defendants, Vickers and Glynn, were at all times relevant herein officers and stockholders in Country Showplace, Inc.
“8. . . . the defendants Reeves were the owners of the real estate commonly known as 8249 S.W. 10th Street, Topeka, Kansas. The real estate and improvements had been leased by Reeves to Country Showplace, Inc., that lease agreement specifically forbade any material improvements to the property without written permission of the landlord and forbade any improvements which would result in mechanic’s liens without written permission and provided that the tenant was not to be considered an agent of the landlord.
“9. From about April, 1979, through September, 1979, each of the plaintiffs above named furnished labor and materials for the remodelling of the Country Showplace. The labor and materials furnished by the respective plaintiffs were, for the most part, ordered by Ronald Morey, who was acting as manager of Country Showplace, Inc. Morey directly supervised the remodelling of the premises and dictated what was to be done. The defendant Fee was at that time president of the corporation and had hired Morey as manager. He visited the premises from time to time and presumably was aware of the nature and extent of the remodelling, although he denies authorizing Morey to incur some of the expenses for which the plaintiffs make claim.
“10. No evidence was presented by any party to connect the defendants, Vickers or Glynn, with any of the events in question.
“11. In late September or early October, 1979, when Country Showplace, Inc., had defaulted in rent payments under its lease, Reeves locked the parties out of the premises and took possession.
“12. Although the defendant, Kenneth Reeves, may have had some knowledge as to the improvements which were being added to the premises by plaintiffs, he did not authorize or consent to any of the improvements.
“13. There is no evidence to establish an agency relationship between the defendants Reeves and any of the other defendants.
“Based upon the foregoing findings of fact, the following are the Court’s conclusions of law:
“1. The services and materials furnished by each of the above named plaintiffs were furnished to Country Showplace, Inc., and these plaintiffs have failed to establish facts sufficient to prove that the defendants, Fee, Vickers or Glynn, are individually liable, although they were officers and directors of the corporation.
“2. The plaintiffs have failed to establish facts to prove an agency relationship between the defendants Reeves and the other defendants.
“3. The mechanic’s liens asserted by each of the above named plaintiffs are not enforceable against the defendants Reeves or the real estate owned by them for the reason that the labor and materials furnished by each of these plaintiffs was not furnished under a contract with the owners or their agent. The labor and materials in question were never requested or authorized by the defendants Reeves.
“4. The defendants Reeves have failed to establish by clear and convincing evidence their claims of fraud on the part of the defendant Fee.
“5. The individual defendants, Fee, Vickers and Glynn, are entitled to judgment in their favor as to the respective claims of the plaintiffs for labor and materials furnished.
“6. The defendants Reeves are entitled to judgment in their favor as to the claims of the plaintiffs above named for foreclosure of their respective mechanic’s liens and these liens should be dismissed.
“7. The individual defendant Fee is entitled to judgment in his favor as to the claims of fraud by the cross claimants Reeves.”
Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial, competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. In determining whether a trial court’s findings of fact are supported by the evidence, it is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. Carpenter v. Riley, 234 Kan. 758, 675 P.2d 900 (1984).
Conner Tile claims the trial court should have held Fee personally responsible for payment for the work it performed at Showplace. Conner testified that he had a discussion with Fee, a neighbor, while they were both working in their yards. Conner testified Fee stated during the conversation “I own the place,” and that he had over $100,000.00 invested in the club. Fee denied stating he had spent $100,000.00 on the club. Essentially, Conner Tile argues Fee acted fraudulently and induced Conner Tile to perform work on the premises.
A corporate officer or director acting on behalf of a corporation is personally liable for damages caused by his willful participation in acts of fraud or deceit to one directly injured thereby. A corporate officer or director, actively participating in the fraud practiced on behalf of a corporation, cannot escape personal liability on the ground that he was acting for the corporation or that the corporation obtained the benefit therefrom. Amoco Chemicals Corporation v. Bach, 222 Kan. 589, Syl. ¶¶ 6, 7, 567 P.2d 1337 (1977).
The trial court determined that Fee had not stated he would be personally responsible for the carpet and labor furnished by Conner Tile. The court determined no fraud was committed by Fee. The existence of fraud is ordinarily a question of fact. Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with a disregard for truth, where another party justifiably relies on the statement and acts to his injury. Nordstrom v. Miller, 227 Kan. 59, Syl. ¶¶ 6, 9, 605 P.2d 545 (1980). The trial court’s determination that Fee had not acted fraudulently is supported by the evidence.
Conner Tile and Stumbaugh contend Fee was personally responsible for their labor and material because Fee was an agent acting for an undisclosed principal, Showplace. The appellants rely on Bruce v. Smith, 204 Kan. 473, 476, 464 P.2d 224 (1970). The Bruce court stated an agent purporting to act upon his own account, but in fact making a contract on account of an undisclosed principal, is a party to the contract.
If his agency and the identity of his principal are unknown, an agent, to avoid personal liability on a contract to be entered into on behalf of his principal, has a duty to disclose both the fact that he is acting in a representative capacity and the identity of his principal, for the party dealt with is not required to discover or make inquiries to discover such facts. Bruce v. Smith, 204 Kan. at 476.
In Bruce, the plaintiffs relied on statements made by the defendant Smith. Smith was identified as the owner and manager of the business. No existing circumstances revealed to the plaintiffs Smith had sold the business a month prior to his conversation with the plaintiffs. The court determined that the plaintiffs reasonably believed Smith was the proprietor of the business and dealt with him on that basis.
Where directors or officers of a corporation contract with a third person who is unaware of the existence of the corporation and to whom no disclosure of its existence is made, the director or officer is personally liable on the contract. 19 Am. Jur. 2d, Corporations § 1342.
The trial court found that the services and material supplied by Conner Tile and Stumbaugh were at the request of Showplace. Plaintiffs failed to establish facts sufficient to prove that the defendants, Fee, Vickers or Glynn, are individually liable, although they were officers and directors of the corporation. Evidence was introduced at the trial showing both Conner Tile and Stumbaugh had billed Country Showplace, the corporation, for their services. Further evidence was introduced to show that Stumbaugh had previously worked for Showplace. Stumbaugh had billed Showplace for his services and had been paid with a check drawn on the corporation.
Where the other party has actual knowledge of the agency and the identity of the principal, the agent will be relieved from liability, whether he himself makes the disclosure or the other party'acquires the knowledge from some other source. 3 C.J.S., Agency § 369.
Whether or not the fact of the agency and the name of the principal were disclosed or known to the third party so as to protect the agency from personal liability on the transaction is essentially a question of fact which depends upon the circumstances surrounding a particular transaction. Such disclosure may, of course, be proven by direct evidence, but the disclosure, with the third person’s knowledge, may be shown by circumstances surrounding the transaction and the course of dealing between the parties. 3 Am. Jur. 2d, Agency § 320. The trial court, after hearing the facts in this matter, determined that Fee was not an agent acting for an undisclosed principal. Conner Tile and Stumbaugh both had knowledge of the circumstances surrounding the transaction and knew they were dealing with Showplace, a corporation. The trial court’s finding was supported by the evidence.
Reeves appeals from the trial court’s ruling that he did not prove his claim of fraud against Fee. Reeves argues that Fee made improvements to the building with no reasonable expectation of paying for them. Reeves suffered because of Fee’s acts. The existence of fraud is ordinarily a question of fact to be determined by the trier of facts. The trial court, after hearing the evidence, determined Reeves had failed to establish by clear and convincing evidence his claim of fraud on the part of the defendant Fee.
Conner Tile and Lentz contend that their mechanic’s liens should be enforced against Reeves’ property leased to Showplace. They base their claim on the lease between Reeves, owner of the building, and Showplace, the tenant which had the work performed on the building. Plaintiffs claim as persons who had furnished labor, equipment, material or supplies which were used or consumed for improvements of real property, under a contract with the owner or his agent, and are thereby entitled to a lien upon the property for labor, equipment, material or supplies furnished, and for the cost of transporting the same. K.S.A. 60-1101.
Lessees often have been held to be agents for lessors in determining the enforceability of mechanic’s liens against the lessor’s property. Lumber Co. v. Petroleum Co., 116 Kan. 78, 225 Pac. 744 (1924); Brown v. Walker, 100 Kan. 542, 164 Pac. 1092 (1917). The estate of the owner cannot be subjected to a lien for work done or materials furnished at the instance of the lessee unless the lessee may be regarded as an agent or trustee of the owner. Such may be express or implied from the conduct and acquiescence of the owner and from all the circumstances, which estop him from denying the agency. Potter v. Conley, 83 Kan. 676, 679, 112 Pac. 608 (1911).
It is not enough that the lessor should merely know that the improvements are being made by the lessee, nor that he should have agreed with him that the repairs or improvements are to be made by the lessee, as that may be done for the convenience of the lessee and not because of any benefit to the lessor or his property. Potter v. Conley, 83 Kan. at 679-80. If the lessee acts for himself, no lien will attach to the property of the lessor. But where the owner rents his property to another and stipulates in the lease that improvements may be made on the property by the lessee, and the expense thereof deducted from the rentals to be paid him, the lessee may be regarded as the agent of the owner, and those doing the work and furnishing materials for improving the property will be entitled to a lien on the interest and estate of the lessee and the owner. 83 Kan. at 680.
In Lumber Co. v. Band Co., 89 Kan. 788, Syl. ¶ 1, 132 Pac. 992 (1913), a short-term lease contained a provision authorizing the lessee to make repairs or improvements at his own expense but all the repairs, additions and materials became and remained the permanent fixtures to the building. The court held that provision, being for the lessor’s benefit, thereby makes the lessee so far his agent as to entitle laborers and materialmen who furnish labor or materials in making the repairs or additions, under contract with the lessee, to a lien on the leased property for such labor or materials.
Here, the lease entered into between Reeves and Showplace required the corporation to keep the property repaired and to return the premises to the lessor in the same condition it was when the lease was executed. The corporation was allowed to remove any other property placed upon the leasehold after the lease had expired. Therefore, the present case is distinguishable from the cases the plaintiffs cite.
Each of the three plaintiffs claim a mechanic’s lien upon Reeves’ property. Each contends Reeves should be estopped from denying the validity of their mechanic’s liens. Plaintiffs base their claim for liability upon Reeves due to the fact that Reeves was building a residence on property he owned immediately adjacent to the land occupied by Showplace. Plaintiffs contend that Reeves had ample opportunity to observe the improvements being made by Showplace upon the real estate which Reeves owned. The evidence presented at trial indicated that Reeves was on the premises leased to Showplace on one occasion while the remodeling was in progress. When Reeves reviewed the remodeling he inquired who was going to pay for the work. There is no evidence that Reeves ever authorized the remodeling or agreed to be responsible for the cost of remodeling. Knowledge of labor and material being furnished is not alone sufficient to establish liability on the part of the owner. Norris v. Nitsch, 183 Kan. 86, 325 P.2d 326 (1958). A mechanic’s lien is purely a creation of statute, and those claiming such a lien must bring themselves clearly within the provisions of the statute authorizing it.
Plaintiffs claim that Reeves was estopped from denying their right to place the mechanic’s lien upon his property. Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. The party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. Iola State Bank v. Biggs, 233 Kan. 450, Syl. ¶ 4, 662 P.2d 563 (1983). The trial court determined that Reeves was not estopped from denying the plaintiffs’ right to a mechanic’s lien by his conduct. None of the plaintiffs had relied on any acts of Reeves.
Conner Tile and Lentz claim their mechanic’s liens should attach to Reeves’ property under the doctrine of merger of estates.
The general rule is where a mechanic’s lien arises under a contract with a tenant, such lien attaches to the leasehold or tenant’s estate only, and not to the reversion, fee, or the estate of the landlord. The rights of the mechanic’s lien claimant can rise no higher than those of the person with whom he has contracted or to whom he has furnished labor or materials. A mechanic’s lien which attaches to a leasehold is subject to all the conditions of the lease and subordinate to the rights of the lessor. Without the authority of the landlord, or his consent, or some act of the landlord to make his estate liable, a tenant cannot charge the land with a lien for labor or materials for constructing or improving a building thereon. Annot., 74 A.L.R.3d 330, 334.
Although a mechanic’s lien when filed attaches only to an equitable or leasehold estate, it may be enforced against the fee after the equitable and legal titles have merged or the leasehold has been merged in the fee by the acts of the landlord. However, equity will prevent or permit a merger, whichever will best serve the purpose of justice and the actual and just intent of the parties, so that whether in equity two estates will be held to have coalesced will depend on the facts and circumstances in a particular case. 74 A.L.R.3d at 335-36.
A merger of the leasehold and the fee, permitting enforcement against the fee of a lien against the leasehold, may be held to exist where a leasehold has been surrendered or abandoned after improvements have been made by the tenant and the landlord has taken possession and appropriated the leasehold interest, including the improvements to his own use and benefit, to the exclusion of the lien holder.
No Kansas cases are cited which follow the merger of estate rationale. Two leading cases cited by the appellants are both Nebraska cases.
In Harte v. Shukert, 94 Neb. 210, 142 N.W. 517 (1913), improvements were made upon the property at the direction of the lessee in contemplation that they would be used by the lessee during the term of the lease. The lessor knew what was being done by the lessee and the lien claimant. The lessor observed the progress of the work but stood by for more than a year and saw the improvements being added to the property at the rate of $1,000.00 per month. During the entire period of construction, no rent payment was ever made when due by the lessee. When the work on the improvements ceased, the lessor declared a forfeiture of the lease and took possession of the property including the improvements. The Nebraska court found that there were two estates, the fee and the leasehold. After the lessor assumed to forfeit the lease, he took possession of the premises and all the improvements made by the lessee and the lien claimant and ever since has used both estates as his own property. The court found that the lessor had not kept the estates separate and for the purpose of the land merged the leasehold and the fee due to his actions.
In Waite Lumber Co., Inc. v. Masid Bros., Inc., 189 Neb. 10, 200 N.W.2d 119 (1972), 74 A.L.R.3d 320, the landlord leased his building to a tenant. Certain improvements were to be installed by the tenant; certain equipment and fixtures were to be removed, but others could not be removed under the lease. The tenant entered into a contract for the improvements required. The tenant operated the business for about four months, and then unexpectedly abandoned the premises and took some of the equipment. The landlord locked the building, replaced the equipment and rented the premises to a similar operation. The landlord then claimed that the lien did not attach to the fee. The Nebraska court held that to allow the landlord to enrich himself at the expense of the lien claimants could produce an unconscionable result which equity would not permit. The court, applying the equitable doctrine of merger, held the landlord’s fee was subject to the payment of the mechanic’s lien even though the contracts for improvement of the premises were between the tenant and the contractors.
Here, appellants claim the lease was not yet in default under its provisions when the landlord secured the premises to his own use, precluding access by the tenant, thereby destroying the leasehold. Reeves had taken control of the premises, changed the locks on the building which precluded the tenant from entering the premises, and refused to allow Showplace to sell the business.
The trial court, after hearing the evidence, determined from the facts that the doctrine of merger of estates was not proper. The court found that the lease in question did not impose a duty upon the lessee to make improvements upon the leasehold nor was there any evidence reflecting that the lessee ever acted as an agent of the owner. There was no evidence to indicate that the lessor stood by until the improvements were completed, then terminated the lease to obtain the benefits of the lessee’s contracts for remodeling. The court found that Reeves was entitled to reclaim the premises from Showplace because of its failure to pay the rent as required under the lease.
Each of the issues raised by the parties and decided by the trial court were dependent on the factual determination by the trial court. In reviewing the findings of the trial court to determine if they are supported by substantial evidence, a reviewing court considers the evidence favorable to the successful party. If there is substantial evidence to support the findings, it is of no consequence that there may have been contrary evidence adduced which if believed would have supported a different finding. Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. ¶ 1, 524 P.2d 690 (1974). Substantial evidence means evidence possessing something of substance and relevant consequence, and furnishes substantial basis of fact from which the issues can reasonably be resolved. Mann v. Good, 202 Kan. 631, Syl. ¶ 2, 451 P.2d 233 (1969). There was substantial evidence to support the trial court’s findings in this case.
Judgment is affirmed. | [
-16,
106,
-40,
124,
24,
-22,
50,
-101,
105,
-91,
55,
87,
-23,
-62,
4,
123,
-77,
93,
80,
97,
-57,
-78,
3,
-22,
-62,
-5,
-39,
-60,
-16,
75,
-75,
-41,
76,
48,
74,
-105,
-58,
-126,
-59,
92,
-118,
4,
26,
-28,
-7,
0,
48,
-120,
52,
75,
49,
15,
-13,
56,
29,
-49,
76,
44,
127,
59,
80,
-72,
-46,
5,
124,
21,
48,
5,
-100,
-121,
-56,
11,
-104,
-8,
8,
-56,
115,
-74,
-42,
100,
75,
-103,
13,
35,
99,
34,
17,
-49,
-20,
-80,
62,
-1,
-99,
-89,
-111,
88,
81,
41,
-74,
-100,
112,
24,
3,
86,
-10,
29,
89,
109,
-125,
-114,
-106,
-77,
13,
116,
-98,
-127,
-17,
-121,
-79,
112,
-53,
-32,
92,
-57,
118,
31,
12,
-76
] |
The opinion of the court was delivered by
Miller, J.:
This is a negligence action for damages brought by M. Bruenger & Company, Inc., and Duane Mueller as plaintiffs against Dodge City Truck Stop, Inc., the defendant. Plaintiffs appeal from judgment entered on a jury verdict finding plaintiffs forty percent at fault, Dodge City Truck Stop ten percent at fault, and the thief who stole and demolished plaintiff s tractor-trailer rig fifty percent at fault. For convenience, we will refer to M. Bruenger & Company, Inc., as Bruenger, to Duane Mueller as Mueller, and to Dodge City Truck Stop, Inc., as the truck stop or Dodge City.
Plaintiffs raise five issues on appeal: (1) Whether the court erred by allowing comparison of the intentional acts of a thief with the negligent acts of a bailee under the doctrine of comparative negligence; (2) whether the defendant-bailee negated the presumption of lack of due care; (3) whether the court erred by instructing the jury that it could consider the plaintiffs-bailors to be licensees; (4) whether the court erred in failing to direct a verdict against the defendant and in favor of the plaintiffs, as there was no substantial competent evidence to support a finding of negligence against the plaintiffs; and (5) whether a negligent bailee should be responsible to a bailor under comparative fault principles, when the bailor’s damages are caused by a thief.
The facts must be set out at some length. Mueller owned a Peterbilt truck and hauled refrigerator trailers owned by Bruenger. On May 19, 1980, Mueller picked up a trailer, drove to Dodge City and serviced the “reefer,” drove to a plant where the trailer was loaded, and then drove back to Dodge City where he parked the truck and trailer. He discovered that an outside dual tire was flat, and he contacted the manager of OK Tire, Inc., to have the tire replaced. OK Tire is not a part of Dodge City, but is a separate business. The manager, Kliesen, thought he would have no trouble replacing the tire once his service truck became available. Mueller and Kliesen inspected the truck where it was parked on the Dodge City lot. Kliesen left to return to his shop about 5:30 p.m., and Mueller, thinking that Kliesen would have to move the truck to change the tire, left it unlocked with the keys in the ignition. Mueller had the impression the job would be done shortly.
At 8:00 o’clock p.m., Mueller checked the truck and found that the tire had not been replaced. Around 11:00 o’clock p.m., Mrs. Mueller received a phone call from Joe Snodgrass, a night manager of Dodge City. She learned that Kliesen had brought a tire to the truck stop and arranged for Snodgrass to change the tire. Mrs. Mueller relayed the message to Mueller, who was in the bathtub. Speaking through his wife, Mueller agreed to let Snodgrass change the tire, told him that he could move the truck into the service bay to do the work, and also told him that the keys were in the truck. He told Snodgrass not to let anyone else drive or move the rig. Snodgrass agreed to have the truck ready in time for Mueller’s planned 5:00 o’clock a.m. departure.
Nothing was said about where to leave the keys after the work was done. Mueller testified that his experience in the past had been that after repairs were made, the keys were always kept inside the station with the repair ticket until the vehicle was picked up. The owner of the truck stop, however, testified that it was Dodge City’s policy to leave trucks the way they were found.: if the keys were in the truck before the repairs, they were left in afterward.
Just before midnight, Snodgrass drove the rig into Dodge City’s service bay, changed the tire, and then returned the truck to about the same location on the parking lot where he had found it. He left the doors unlocked and the keys in the ignition. Sometime later that night, the truck was stolen by George Fansler. It was overturned and totally demolished about forty miles away.
The parties stipulated that at the time Dodge City took possession of Mueller’s tractor and Bruenger’s trailer, there was a bailment and a bailor-bailee relationship between plaintiffs and defendant; that George Fansler stole the truck and trailer; and that Mueller’s damages were $31,484.75 and Bruenger’s damages were $14,946.30.
Before discussing the issues, we look first to the relationship of the parties and the duties arising therefrom. “Bailment” is defined as follows:
“The word ‘bailment’ is derived from the French term ‘bailler’ meaning to deliver, and is generally defined as meaning a delivery of property for some particular purpose on an express or implied contract that after the purpose has been fulfilled the property will be returned to the bailor, or dealt with as he directs.” 8 C.J.S., Bailments § 1.
“A ‘bailment,’ in its ordinary legal signification, imports the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it.
“The principles of bailment were borrowed from the civil law; and the word ‘bailment’ is derived from the French ‘bailler,’ meaning ‘to deliver.’
“ ‘Bailee’ is the term applied to the person who receives the possession or custody of property under circumstances constituting a bailment, and ‘bailor’ is the designation given the person from whom the property is thus received.” 8 Am. Jur. 2d, Bailments § 2.
The delivery of a motor vehicle by the owner to a repairman for the performance of work or repairs thereon is a typical example of a bailment for the mutual benefit of the parties — the owner will have some desired work or repair done upon his vehicle and the repairman will be paid for his services.
The duties and liabilities of a bailee for hire or for mutual benefit have been variously expressed.
“The bailee in a bailment for mutual benefit must use ordinary care and diligence in the safeguarding of the bailor’s property, and he is answerable for loss or injury resulting from failure to exercise such care, or . . . for any loss or injury due to his negligence, or ordinary negligence . . . .”8 Am. Jur. 2d, Bailments § 221.
“Although his liability may be limited or enlarged by special contract, a bailee for mutual benefit is generally held to the exercise of ordinary care and is liable for ordinary negligence.” 8 C.J.S., Bailments § 27a(l).
“A repairman with whom a motor vehicle is left for repairs under a bailment for mutual benefit or for hire is not an insurer of the safety of the vehicle, but is required to use ordinary and reasonable care in safeguarding it, and is liable to the owner for loss of, or damage to, the vehicle resulting from his negligent acts or omissions.” 61A C.J.S., Motor Vehicles § 731.
“As a bailee for hire, a repair or service station operator has been held liable for theft of a motor vehicle which was left unattended by him in a street or vacant lot outside his shop. It is no defense that it is the usual or customary practice of persons in the same business to park motor vehicles, after completion of repairs, on vacant lots outside their shops. Where an automobile repair company permit ted a repaired vehicle to remain on its parking lot with the keys in the ignition, and it subsequently disappeared, the company was negligent in its control and care of the vehicle and was held liable for its loss.” 38 Am. Jur. 2d, Garages, and Filling and Parking Stations § 61.
Bearing in mind the relationship of the plaintiffs and the truck stop, we turn to the first issue: Whether the trial court erred by allowing comparison of the intentional acts of a thief with the negligent acts of a bailee under the doctrine of comparative negligence. We agree with appellants, and hold that the trial court did err in allowing comparison.
Theft is clearly one of the harms against which a bailee must protect. The instant Dodge City allowed the tractor-trailer rig to be stolen from its lot, Mueller and Bruenger had sustained some degree of loss. Once it had been stolen, the rig might have been recovered uninjured only a few blocks away; it might have been recovered with its load of meat gone; it might have been recovered partly damaged; or it might never have been recovered. As it turned out, the loss was total despite the truck’s recovery. Nevertheless, the amount of damage sustained by the truck has no bearing on Dodge City’s duty as a bailee. The thief s level of care in using or abusing the rig did not alter Dodge City’s duty one whit. Its obligation was to use ordinary care to prevent the theft in the first place.
The South Carolina case of Fortner v. Carnes, 258 S.C. 455, 189 S.E.2d 24 (1972), is particularly helpful. Fortner left his Corvette automobile with the defendant garageman for repairs. The defendant completed the repairs and left the Vehicle, with the keys in the ignition, inside of his locked garage building. A thief gained entrance by forcing open one of the garage doors. He stole the Corvette, the wreck of which was later recovered. Plaintiff secured a jury verdict for the value of his automobile, and the defendant garageman appealed. Defendant claimed that any lack of ordinary care on his part was not the proximate cause of plaintiff s loss because between his alleged negligence and the occurrence of an injury to the vehicle there intervened a willful, malicious or criminal act of a third person which produced the injury. In disposing of this claim, the Supreme Court of South Carolina said:
“In a bailment case the theft itself constitutes injury or loss to the bailor and there is no act of a third party intervening between any negligence of the bailee and the injury or loss.” 258 S.C. at 462.
Our comparative negligence statute, K.S.A. 60-258a, does not change this or any other rule of the law of bailments. It speaks only of comparative negligence, which we have interpreted to mean comparative fault. The acts or omissions to be compared, in addition to ordinary negligence, include those found in cases decided under the doctrine of strict liability in tort and implied warranty, Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), and those found in highway defect cases, Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 582 P.2d 271 (1978), and Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978). We have not, however, interpreted K.S.A. 60-258a to require the comparison of negligence with intentional wrongdoing, and the facts of this case do not require such an interpretation. Dodge City had a duty, as bailee, to exercise reasonable care to prevent theft of the rig. It negligently failed to do so, and the rig was stolen. Whether the thief was a careful driver and kept the vehicle forever, or whether the thief was a careless driver who wrecked the vehicle, does not affect the cause of loss — the failure to exercise reasonable care to prevent theft. We conclude that the trial court committed reversible error in requiring the jury to compare the negligence of the bailee with the acts or omissions (whether intentional or negligent) of the thief.
The second issue is whether Dodge City negated the presumption of lack of due care. The bailment and the amount of plaintiffs’ damages were stipulated. The truck was stolen from Dodge City’s premises, and it was not returned by Dodge City to the owners. When the bailor shows that the property was delivered to the bailee for hire and that the bailee has failed to return it, the bailor has made out a prima facie case of negligence against the bailee, and the burden of going forward with the evidence to explain the failure to redeliver then shifts to the bailee. See 8 Am. Jur. 2d, bailments § 330; 8 C.J.S., Railments § 50c(2); Virginia Surety Co. v. Schlegel, 200 Kan. 64, 71, 434 P.2d 772 (1967); and Strange v. Price Auto & Service Co., 169 Kan. 98, 104, 218 P.2d 208 (1950).
Dodge City Truck Stop introduced evidence that it was its policy to leave the keys in the truck if the owner had left them in the vehicle, and that it was the policy of other repair shops in the vicinity to leave vehicles unlocked with the keys in them after repairs had been completed. While this evidence may explain Dodge City’s actions, it does not show lack of causative negligence. The leaving of the keys in the ignition of an unlocked and unattended vehicle parked on an outdoor lot at night is negligence as a matter of law, and as pointed out in 38 Am. Jur. 2d, Garages, and Filling and Parking Stations § 61, quoted above,
“It is no defense that it is the usual or customary practice of persons in the same business to park motor vehicles, after completion of repairs, on vacant lots outside their shops. Where an automobile repair company permitted a repaired vehicle to remain on its parking lot with the keys in the ignition, and it subsequently disappeared, the company was negligent . . . .”
Nor is Mueller’s own negligence a defense. Under the circumstances of this case, his negligent conduct in leaving the rig unlocked with the keys in it so that the repairman could move it to change the tire occurred before the bailment to Dodge City. Once the bailment arose, Dodge City had care of the rig and Mueller’s prior conduct became irrelevant. Mueller’s negligence had ceased before the theft occurred. Therefore, there was no reason to compare the negligence of Mueller with that of Dodge City; Mueller’s negligence had ceased, and it did not cause or contribute to the theft.
We conclude that Dodge City introduced no evidence which negated the presumption of its lack of due care, which arose upon the showing that it received the vehicle as a bailee, and that it failed to return the rig when the repair work was completed.
The third issue is whether the trial court erred in instructing the jury that it could consider the plaintiffs as licensees. The court instructed as follows:
“A licensee is a person who is privileged to enter or remain upon the premises by virtue of the possessor’s consent either express or implied.
“The duty owed by an owner or occupant of the premises to a licensee is to refrain from willfully or wantonly injury him.”
The doctrine is generally applicable when someone sustains personal injury upon the premises of another. See Hanks v. Riffe Constr. Co., 232 Kan. 800, 658 P.2d 1030 (1983), and Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978). It is inapplicable here where Dodge City acted as bailee of the vehicle. Whether Mueller was a licensee or business invitee when he was upon the premises is, for the purposes of this action, entirely immaterial. We hold that the giving of the quoted instruction on the premises doctrine was reversible error under the facts of this case.
The two final issues plaintiff states are essentially disposed of already. These issues are whether comparative fault principles should be applied in this case and whether the trial court erred in refusing to direct a verdict against Dodge City Truck Stop. Since we have held that the fault of the thief was not to be compared with that of the bailee, Dodge City, and since Mueller’s claimed negligence had ceased long before the theft, there was no other party whose negligence could have been compared with that of the truck stop. Comparative negligence principles are inapplicable. Further, since there was no evidence negating the negligence of Dodge City Truck Stop, we conclude that the trial court erred in refusing to direct a verdict against it.
The judgment is reversed, and the case is remanded to the trial court with directions to set aside the jury verdict and the judgment, and to enter judgment for the plaintiffs and against Dodge City Truck Stop, Inc., in the stipulated amounts of their respective damages. | [
-48,
-6,
-23,
-83,
26,
-32,
58,
-6,
101,
-88,
55,
19,
-19,
-49,
-99,
107,
-1,
95,
-11,
122,
-9,
-77,
3,
-29,
-46,
-77,
-69,
-124,
-78,
74,
100,
-44,
76,
80,
-54,
-43,
36,
-118,
69,
-36,
78,
-124,
41,
-6,
-7,
64,
48,
-6,
52,
71,
81,
-116,
98,
46,
56,
67,
40,
40,
-85,
45,
-32,
48,
-30,
5,
95,
22,
-79,
36,
-100,
39,
-40,
10,
-112,
-79,
40,
-24,
112,
-74,
-122,
-44,
99,
-101,
12,
98,
103,
35,
21,
-49,
-4,
-72,
14,
-33,
-113,
-25,
-72,
57,
27,
35,
-74,
-99,
112,
22,
68,
-18,
-2,
29,
15,
108,
7,
-121,
-80,
-79,
-81,
96,
-34,
-111,
-49,
-95,
54,
113,
-116,
-24,
93,
5,
114,
-101,
15,
-48
] |
The opinion of the court was delivered by
Lockett, J.:
This is an appeal by the State of Kansas in a traffic prosecution from an order of the Shawnee County District Court dismissing one count of a two-count traffic complaint against the defendant, Randall C. Bickford, pursuant to K.S.A. 22-3602(h)(l).
A driver’s license check lane was established by the Kansas Highway Patrol at the intersection of South Topeka Avenue and 45th Street on the night of November 20, 1982. At approximately 2:10 a.m. on November 21, 1982, the defendant was stopped at the check lane. While checking the defendant’s driver’s license, the trooper smelled alcohol on the defendant’s breath and in the car. Checking the interior of the defendant’s automobile, the trooper noticed a puddle of liquid near the defendant’s feet, and an overturned beer bottle. The trooper requested the defendant exit his car and perform several sobriety tests. After evaluating the defendant’s performance of the sobriety tests, the trooper arrested the defendant and charged him with two traffic offenses: (1) driving under the influence of alcohol, K.S.A. 8-1567, and (2) transportation of an open container of alcohol, K.S.A. 41-804. A sample of the defendant’s breath taken later showed the defendant’s blood was .11 percent alcohol by weight.
The defendant filed a motion to suppress all evidence seized as a result of his arrest and requested pretrial discovery. The trial court conducted a pretrial discovery hearing on March 23, 1983. The trial court, on its own, determined that there was no evidence that the defendant drove his automobile in a dangerous, illegal or erratic manner. Without this showing, the trial court dismissed the DUI count of the complaint. The State appealed from the court’s dismissal of one count of the two-count complaint pursuant to K.S.A. 22-3602(b)(l). The defendant agreed to waive his right to a speedy trial (K.S.A. 22-3402) until the State’s appeal of count one had been determined by this court.
Prior to a resolution of the points raised by the State’s appeal, we must ascertain if this court has jurisdiction to determine the issue raised by the trial court’s dismissal of one count of the two-count traffic complaint. In State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983), we agreed with the defendant’s assertion that there is no statutory ground for an appeal when there has been only a partial dismissal of a several-count complainbinformation by a trial court. Here the defendant has not objected to the jurisdiction of the appellate court; therefore, is it necessary for the appellate court on its own motion to refuse to determine the issue before it because of a lack of jurisdiction? We believe it is necessary.
Jurisdiction of courts is usually divided into two categories, jurisdiction over the subject matter and jurisdiction over the parties. To properly act in any case, a court must be vested with both jurisdiction of the subject matter and the parties. For a court to have jurisdiction of a party, that party must appear generally or submit to the jurisdiction of the court. Jurisdiction over the subject matter must be contained in the power of the court to hear and determine that case.
The general rule is that proceedings conducted or decisions made by a court are legally void where there is an absence of jurisdiction over the subject matter. An objection based on absence of jurisdiction of the subject matter must be considered and may be effectively raised at any time. Such an objection may be raised for the first time in the appellate court, even on the appellate court’s own motion. Micheaux v. Amalgamated Meatcutters & Butcher Workmen, 231 Kan. 791, 648 P.2d 722 (1982).
The right to appeal is statutory and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court. State v. Hermes, 229 Kan. 531, Syl. ¶ 1, 625 P.2d 1137 (1981). The two statutes which authorize appeals to the appellate courts in a criminal action are K.S.A. 22-3602 and K.S.A. 22-3603.
K.S.A. 22-3602(b) provides:
“Appeals to the supreme court may be taken by the prosecution from cases before a district judge or associate district judge as a matter of right in the following cases, and no others:
“(1) From an order dismissing a complaint, information or indictment;
“(2) From an order arresting judgment;
“(3) Upon a question reserved by the prosecution.”
K.S.A. 22-3602(fo)(l) and (2) provide for appeals by the State when the trial court has terminated the case (1) by dismissing the charging document — complaint, information or indictment; or (2) by entering an order arresting judgment. An order arresting judgment requires a finding that the complaint, information or indictment does not charge a crime or that the court was without jurisdiction of the crime charged. By dismissing or arresting judgment, the trial court has ended the case. State v. Grimes, 229 Kan. 143, 146-47, 622 P.2d 143 (1981); State v. Freeman, 234 Kan. 278.
K.S.A. 22-3603 is for interlocutory appeals when the trial judge quashes a warrant or search warrant, or suppresses evidence, a confession or an admission prior to trial. During the pendency of the interlocutory appeal the defendant cannot be held in jail or subject to bond. The time during which the appeal is taken is not counted for the purpose of determining whether the defendant is entitled to discharge under K.S.A. 22-3402. K.S.A. 22-3604.
In State v. Freeman, 234 Kan. 278, this court was faced with the question of whether the State can appeal from the dismissal of some counts of a multiple-count complaint, information or indictment while other counts of the same charging instrument are still pending in the district court. After an automobile accident resulting in a death, Freeman was charged with four counts in an amended information: involuntary manslaughter in count one; vehicular homicide in count two; failure to yield the right-of-way in count three; and speeding in count four. At the arraignment, defendant pled not guilty to counts one, two and four, and guilty to count three, the failure to yield the right-of-way charge. Later the defendant filed a motion to dismiss counts one and two on the grounds that further prosecution of those counts was duplicitous in violation of K.S.A. 21-3107(2)(d) (now amended), and barred by the double jeopardy provisions of K.S.A. 21-3108(2)(a). The trial court sustained the defendant's motion on the basis of double jeopardy and dismissed counts one and two. Without dismissing the remaining charge, count four— speeding, the State filed an appeal from the dismissal of counts one and two under K.S.A. 22-3602(b)(l). After reviewing prior cases, Justice Holmes, for a unanimous court, stated:
“To hold that K.S.A. 22-3602(fo)(l) authorizes an appeal from the dismissal of some of the counts in a multiple-count information while the remaining counts are left pending and unresolved in the district court would result in untold delay and chaos in the trial and appellate courts. Two of the problems which may result from an appeal from a partial dismissal of the charging instrument are aptly demonstrated in this case. Appellee has asked this court to dismiss count four of the information on the grounds he has been deprived of his right to a speedy trial and that he has been continued under bond in violation of K.S.A. 22-3604. However, there are no final orders of the district court as to count four which have been appealed or are before this court. Count four is still pending in the district court while the State is attempting to appeal the dismissal of counts one and two in this court. The district court and the appellate courts cannot both have jurisdiction of a pending case at the same time.
“We hold that there is no statutory authority for the State to appeal from the dismissal in a criminal case of some of the counts of a multiple-count complaint, information or indictment while the case remains pending before the district court on all or a portion of the remaining counts which have not been dismissed and which have not been finally resolved. This court lacks jurisdiction of the appeal.” 234 Kan, at 282.
Let us examine 18 U.S.C. § 3731 (1982), the federal appellate procedure which is similar to K.S.A. 22-3602, K.S.A. 26-3603 and K.S.A. 22-3604, except the United States is specifically allowed to appeal a dismissal of one or more counts of an indictment or information filed in the United States District Courts. 18 U.S.C. § 3731 provides:
“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
“An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
“The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.
“Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 of this title.
“The provisions of this section shall be liberally construed to effectuate its purposes.”
An appeal by the prosecution of a partial dismissal of an indictment or information under the federal appeal procedure raises none of the problems inherent to the Kansas criminal appeals statutes.
This court has no power to create an appellate procedure other than the appellate procedure contained in the statutes. Only the legislature has power to create an additional appellate procedure for partial dismissal of a complaint, information or indictment; this it has not done.
In this criminal case, where there has been a dismissal of one count of a two-count complaint, and there remains pending a count which has not been dismissed and which has not been finally resolved, there is no statutory authority for the State to appeal. This court lacks jurisdiction of the appeal.
The appeal is dismissed. | [
-16,
-22,
-15,
-114,
11,
64,
43,
-100,
83,
-73,
-10,
115,
-81,
-61,
5,
115,
-6,
61,
84,
105,
-25,
-74,
87,
-127,
-74,
-13,
-40,
-50,
-65,
89,
-28,
-10,
78,
-80,
-118,
-107,
38,
74,
-122,
88,
-114,
6,
-103,
-15,
90,
-103,
-80,
41,
-109,
11,
49,
15,
-25,
42,
26,
-61,
-87,
44,
-37,
-84,
-111,
-16,
-51,
-105,
126,
0,
-77,
4,
-100,
5,
-48,
63,
-104,
49,
16,
-8,
-13,
-90,
-126,
-12,
111,
-103,
8,
-90,
98,
33,
17,
-81,
-68,
-87,
14,
122,
45,
-90,
-104,
25,
105,
0,
-106,
-99,
119,
18,
15,
-8,
-21,
85,
91,
120,
3,
-53,
-80,
-111,
-51,
52,
-126,
90,
-21,
-91,
16,
97,
-57,
-10,
94,
-59,
112,
27,
-49,
-108
] |
The opinion of the court was delivered by
Lockett, J.:
The Kansas Department of Health and Environment (KDHE) appeals from two district court decisions consolidated for appeal in this court. KDHE denied certificates of need to build psychiatric hospitals to Excepticon Midwest, Inc. (Ex-cepticon), and Community Psychiatric Centers, Inc. (CPC). In separate cases two different district court judges reversed the KDHE and granted certificates of need to Excepticon and CPC. KDHE appeals the reversal of its denial of both certificates of need.
This appeal involves the certificate of need provision of the Health Facilities Act, K.S.A. 65-4801 et seq. Under the Act any person undertaking to construct a new hospital to be licensed under the Kansas health laws must first secure a certificate of need. K.S.A. 65-4802. KDHE is the State agency entrusted with the administration of the Kansas Certificate of Need Program established by K.S.A. 65-4701 et seq. and K.S.A. 65-4801 et seq. KDHE, acting through its secretary, is required to consider the evaluation and recommendations of the appropriate health systems agency and make the initial administrative decision as to the need of a proposed new health facility and service.
On June 28, 1982, Excepticon filed an application for a certificate of need pursuant to K.S.A. 65-4801 et seq. to build and operate a free-standing 96-bed psychiatric hospital in Johnson County. Excepticon would provide (1) acute psychiatric services to children, (2) acute psychiatric services and substance abuse treatment to adolescents and adults, and (3) treatment for the elderly. On July 26, 1982, CPC filed an application for a certificate of need to build and operate a 65-bed free-standing psychiatric hospital in Johnson County. CPC would be devoted to (1) psychiatric and substance abuse treatment of adolescents, (2) care of adults, and (3) geriatric care.
The applications of Excepticon and CPC were both set for hearing by KDHE August 20, 1982, pursuant to K.A.R. 28-42-5 (d), which provides:
“All completed applications reviewed in the same cycle which pertain to similar types of services, facilities, or equipment affecting the same health service area as determined by the state agency, shall be considered in relation to each other.”
Excepticon objected to the concurrent review procedure. Ex-cepticon claimed CPC’s application for certification was incomplete under KDHE requirements and, therefore, should not be considered in relation to Excepticon’s application for certification. On August 20, 1982, the public hearing authorized by K.S.A. 1982 Supp. 65-4808 was held before Scott Buckley, an employee of KDHE.
September 27, 1982, the secretary of KDHE denied both applications for certificates of need. Excepticon and CPC requested that the secretary reconsider his decision. November 9, 1982, a joint reconsideration hearing of the applications was held by KDHE. December 21, 1982, the secretary issued an order affirming the earlier decision denying the certifications of need to Excepticon and CPC. Excepticon and CPC separately appealed the decision to the Johnson County District Court pursuant to K.S.A. 1982 Supp. 65-4816. The separate appeals were assigned to different divisions of the Johnson County District Court. KDHE filed a motion to consolidate the two cases. KDHE’s motion to consolidate was denied by the district court.
The CPC appeal was assigned to Judge Janette Howard. Judge Howard conducted a hearing and subsequently found the KDHE’s conclusions in the matter were arbitrary. On April 26, 1983, Judge Howard in a memorandum opinion vacated KDHE’s decision and remanded the case to KDHE for reconsideration for certification in light of findings made by the court. KDHE then filed a motion for rehearing in the district court. On May 31, 1983, CPC filed a motion requesting the district judge to issue a certificate of need to CPC. On June 13, 1983, Judge Howard denied the KDHE rehearing request and sustained the CPC motion to enter an order granting the certificate of need.
KDHE appealed the ruling of Judge Howard.
The Excepticon case was assigned to Judge J. Stewart McWilliams. On June 7, 1983, Judge McWilliams issued his memorandum opinion on the Excepticon application, finding KDHE’s denial of the application was not supported by substantial evidence. Judge McWilliams ordered that the certificate of need be issued to Excepticon. KDHE appealed this ruling of Judge McWilliams.
First we will consider Excepticon’s claim that KDHE acted arbitrarily in having concurrent reviews (batching) where CPC’s application for a certificate of need failed to follow the adopted rules and regulations of KDHE. Judge McWilliams found that the secretary had acted arbitrarily in batching the incomplete application of CPC with the completed application of Excepticon at the original hearing conducted by KDHE.
K.S.A. 65-4806(c) provides:
“An application shall be deemed filed when it contains all required information and is received by the state agency. A filed application shall be a public document and shall be available for inspection at the offices of the health systems agency and the state agency. A copy thereof shall be furnished to any person upon request and payment of a fee established by the state agency or the health systems agency in an amount approved by the director of accounts and reports under K.S.A. 1980 Supp. 45-204. A completed application may be amended or withdrawn by the applicant at any time without prejudice, but any amendment to an application, except as the state agency and the applicant may otherwise agree, shall cause the amended application to be treated as a new application for purposes of the time limits of this act.”
KDHE did not receive all the information required by K.S.A. 65-4806(£>) until the public hearing held August 20, 1982.
Rules and regulations adopted by the secretary to implement and administer the provision for hearing applications for certificates of need allows all completed applications affecting the same health service area to be reviewed in the same cycle. Each application must be considered in relation to the other. K.A.R. 28-42-5 (d).
The KDHE admits it did not follow its own rules and regulations when it determined that CPC’s application had been filed (completed); that CPC’s application did not conform to KDHE regulations until the day of the hearing when CPC submitted the final required information on the hearing date, August 20, 1982.
Excepticon presented extensive evidence in support of its application. KDHE did not compare Excepticon’s application against CPC’s application for a certificate of need. Excepticon and CPC both claimed a need for additional expansion in psychiatric bed space and treatment. KDHE denied both Excepticon’s and CPC’s requests for certificates of need.
KDHE’s concurrent review of Excepticon’s complete application with CPC’s incomplete application was error, but only harmless error. Agency action will not be upset because of harmless error. McCulloch Interstate Gas Corp. v. F.P.C., 536 F.2d 910, 913 (10th Cir. 1976). Error which does not prejudice the substantial rights of Excepticon affords no basis for reversal of an administrative determination and must be disregarded.
Any party specified under K.S.A. 1982 Supp. 65-4811 may appeal the decision of KDHE to the district court having proper venue. K.S.A. 1982 Supp. 65-4816. Excepticon and CPC appealed the adverse administrative decision after a rehearing was conducted by KDHE.
The standard of review by a district court and an appeals court of the KDHE administrative decision not to issue a certificate of need to Excepticon and CPC is well established. Neither the district court nor this court on appeal is permitted to try the case de novo and substitute its judgment for that of KDHE. The district court is restricted to considering whether as a matter of law (1) KDHE acted fraudulently, arbitrarily, or capriciously, (2) the administrative order is supported by substantial evidence, and (3) KDHE acted within the scope of its authority. Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975). In reviewing the district court’s judgment, this court must make the same review of the administrative tribunal’s action as does the district court to determine whether the district court observed the requirements and restrictions placed upon it. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 451, 436 P.2d 828 (1968), 28 A.L.R.3d 472.
Excepticon and CPC both claim in their separate appeals that KDHE in denying a certificate of need acted arbitrarily and capriciously and that KDHE’s decision not to issue a certificate of need was unsupported by substantial evidence. Arbitrary and capricious conduct is shown where an order of an administrative tribunal is based upon findings which are not substantially supported by the evidence in the record. Neeley v. Board of Trustees, Policemen’s & Firemen’s Retirement System, 212 Kan. 137, Syl. ¶ 3, 510 P.2d 160 (1973). “Substantial evidence” is defined as evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Jibben v. Post & Brown Well Service, 199 Kan. 793, 433 P.2d 467 (1967). Neither the district court nor this court can substitute its judgment for that of KDHE.
For a more in-depth discussion of the health facility planning legislation see Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546; Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 597 P.2d 654 (1979); Pratt v. Board of Thomas County Comm'rs, 226 Kan. 333, 597 P.2d 664 (1979); and State ex rel. Metzler v. St. Francis Hosp. and Medical Center, 227 Kan. 53, 605 P.2d 100 (1980). The purpose of the legislation and the procedures for the granting of a certificate of need embrace the identification and discontinuance of duplicative or unneeded health services and facilities. The adoption of policies was (1) to contain the rapidly rising cost of health care delivery, (2) to insure more appropriate use of health care services, and (3) to promote greater efficiency in the health care provider group. In accordance with state and federal regulations, Mid-America Health Systems Agency (MAHSA) was designated to conduct health planning for the greater Kansas City area which includes seven counties located in the states of Kansas and Missouri. MAHSA submitted yearly plans and updates from 1979 through 1981. February, 1982, MAHSA submitted a Health System Plan for a four year period — 1982 - 1986.
There was no health system agency in existence when Exception and CPC submitted their applications. MAHSA, created by K.S.A. 65-4701 et seq., ceased to exist in April, 1982. Just prior to its demise, MAHSA prepared its plan for the MAHSA region as required by K.S.A. 65-4722. Johnson County was included within the MAHSA region.
KDHE, acting through its secretary, is required to consider the evaluations and recommendations of the appropriate health system agency and to make the initial administrative decision as to the need for the proposed new health facility and service. When making the administrative decision as to the need for the project, KDHE must apply certain interim review criteria established by the Statewide Health Coordinating Counsel under authority granted by K.S.A. 65-4804. The six review criteria or standards applied by KDHE are community need, quality of care, community support, financial feasibility, cost containment and accessibility. In addition to the review criteria or standards, the secretary has available three studies authorized by the legislature as guides to determine if a certificate of need should issue. These studies are: (1) Health System Plan 1982-1986, Kansas-Missouri, prepared by MAHSA; (2) the 1982 plan for the Health of Kansans prepared by the Kansas Statewide Health Coordinating Council and KDHE; and (3) Kansas Combined State Plan Update for Alcohol and Drug Abuse, 1982, prepared by the Joint Kansas Citizens Advisory Committee on Alcohol and Drug Abuse for 1981-82 and the State Department of Social and Rehabilitation Services.
KDHE determined that Excepticon and CPC had met only four of the six review objectives and criteria adopted by the Kansas Statewide Health Coordinating Council pursuant to K.S.A. 65-4804. Excepticon and CPC met the criteria for (1) quality of care, (2) financial feasibility, (3) community support, and (4) accessibility. Excepticon and CPC failed to show community need and cost containment. The secretary found the project was not needed to improve the availability or accessibility of psychiatric hospital beds in the sponsor’s designated service area. The service area is defined as the counties of Johnson, Wyandotte and Leavenworth in Kansas, and Jackson, Clay, Cass and Platte in Missouri. The secretary found that patient charges, and the cost of health care services in general, would be unnecessarily increased by the project.
Both Excepticon and CPC presented evidence at KDHE’s administrative hearing. A portion of the evidence presented by Excepticon and CPC was as follows:
1. There is only one free-standing psychiatric center in Johnson County. (Not physically attached as a part of a general hospital.)
2. Psychiatric care would cost less in each of the proposed facilities.
3. Testimony of working psychiatrists in private practice in Johnson County was:
a. there is a community need,
b. private practicing psychiatrists are unable to admit patients into all hospitals in the area,
c.general hospital beds are unsuitable for psychiatric care because of the special treatment required and therefore one cannot convert regular care beds to psychiatric care.
Both applicants claimed that KDHE improperly included certain bed space not available to Johnson County residents when determining the total bed space available for psychiatric care in the seven-county area. Both also claimed KDHE improperly used formulas or a percentage of 85% of bed space usage as the desirable average occupancy in determining if there was a community need for additional psychiatric beds in Johnson County.
KDHE contends that the service area is seven counties that .compose the greater Kansas City area, not Johnson County alone. The requirement for additional psychiatric bed space and care is based on the seven-county area when KDHE determines whether a certificate of need should issue to Excepticon and CPC. Therefore, Johnson County needs are to be considered in relation to the total service area, not separately.
Until recently construction of health facilities has been treated as a matter for local concern and needs. Each community or area built whatever facilities it desired. Escalating cost of health care has now brought public attention to (1) the need for adequate health facilities, and (2) cost to the community when there is an over-supply of hospital facilities. This increased public awareness has resulted in state and federal regulation of hospital expansion in all areas.
Various criteria have been established by KDHE to make a determination of need. The primary criterion is whether there is a need for new facilities. If there is a need for new facilities, is there available health care personnel for the staffing of the proposed expansion? Will the construction of the new facilities increase the cost of care in the existing facilities in the local area? KDHE determined that there was no need for expansion, there is insufficient health care personnel for staffing of the proposed expansion, and the new facilities, though more cost effective, would increase the cost of health care in existing facilities in the area where bed space and care is available to the general public. It would serve no useful purpose for us to recite with particularity all the evidence in the record considered by KDHE in arriving at its decision not to issue the certificates of need to Excepticon and CPC.
We have considered the entire record in these consolidated cases and have determined that there is substantial evidence in the record to support KDHE’s decision not to issue a certificate of need to Excepticon or CPC. Both Excepticon and CPC failed to satisfy the review criteria of community need and cost containment, as established by the Kansas Certificate of Need Program. We further find that both district courts erroneously sub stituted their judgment for that of KDHE. KDHE did not act arbitrarily or capriciously in reaching its decision in each case.
We understand how the district court in each case could have reached the conclusion that there was a need for additional facilities to provide bed space and psychiatric treatment in Johnson County. However, this is not the test to be applied by the district court on appeal from the determinations by KDHE. If this were the test to be applied, then each Kansas county included in the seven-county area could show a need for expansion of health care facilities, when considered separately from the surrounding area, thereby defeating tire legislative requirement of a statewide health program. We, therefore, reverse the district courts’ judgments ordering KDHE to issue certificates of need for Excepticon and CPC.
The cases are remanded to the district courts with instructions to deny the certificates of need to Community Psychiatric Centers, Inc. and Excepticon Midwest, Inc.
Schroeder, C.J., dissenting. | [
-108,
-24,
-36,
-52,
11,
-32,
114,
14,
83,
-85,
102,
87,
-19,
-22,
21,
127,
-50,
39,
68,
121,
-31,
-77,
83,
-56,
-58,
-5,
-13,
-57,
-5,
95,
-28,
-11,
73,
-47,
-102,
53,
-30,
-62,
-33,
88,
-114,
-105,
-88,
-32,
81,
-62,
44,
107,
-14,
2,
117,
15,
-109,
40,
92,
-57,
-56,
44,
91,
44,
73,
-16,
-102,
29,
93,
6,
33,
-124,
-103,
-59,
-16,
54,
-102,
-111,
24,
-20,
26,
38,
-42,
116,
67,
29,
0,
101,
66,
33,
24,
-25,
104,
-119,
31,
6,
-99,
-26,
-117,
25,
96,
3,
-106,
61,
116,
54,
6,
124,
-17,
-124,
87,
108,
-118,
-34,
-24,
-77,
-49,
113,
-104,
-69,
-17,
-56,
34,
49,
-113,
-74,
94,
-41,
58,
31,
-82,
-66
] |
The opinion of the court was delivered by
Holmes, J.:
Theodore C. Knapp appeals from his conviction by a jury of two counts of first-degree murder (K.S.A. 21-3401) in the slaying of his ex-wife and her next-door neighbor.
Defendant and Connie Sue Knapp were divorced in the District Court of Cowley County on August 5, 1981. As part of the decree, Connie Sue was awarded possession of a 1976 Volkswagen Dasher automobile, which her husband was to pick up and deliver to her. Defendant was then to take possession of a 1979 Jeep held by Connie Sue. Defendant at the time was a staff sergeant in the Army stationed at Fort Huachuca, Arizona. On September 23, 1981, he was granted temporary leave to pick up the Volkswagen in New Orleans, Louisiana, where it had arrived after being shipped from defendant’s prior duty station in West Germany. Connie Sue was expecting her ex-husband to arrive on September 24, 1981, to exchange cars with her.
On the night of September 24, 1981, Winfield police officers were dispatched to the home of Connie Sue Knapp following the report of a domestic disturbance. Upon entering the residence they discovered the bodies of Connie Sue Knapp and her neighbor Jacqueline Musgrave. Both had been brutally stabbed numerous times and, in addition, Musgrave had been shot once with a 9mm weapon. Because of the recent divorce, Winfield police and KBI agents immediately attempted to locate defendant. Upon contacting Fort Huachuca they were advised defendant was in transit between New Orleans and the army post. The Kansas authorities then sent a teletyped regional broadcast to law enforcement agencies stating they were attempting to locate defendant for questioning in a double homicide. The attempt to locate notice was also sent to the authorities at Fort Huachuca.
Sgt. Phillip Whitehead, of the army military police, located Knapp at the fort on September 26, 1981. Whitehead advised Knapp he was wanted for questioning by Kansas authorities and asked if Knapp would proceed to the military police station on the post. Defendant did so willingly and, other than the initial contact, the military police had no conversation with Knapp other than to make him comfortable in the station. Special Agent George Fifer of the Army Criminal Investigation Command was contacted and advised that Knapp had been located.
Fifer then had a telephone conversation with an agent of the Kansas Bureau of Investigation, who informed Fifer of the following: (1) That a double homicide had occurred in which Knapp’s ex-wife and a next-door neighbor were killed in Win-field, Kansas; (2) that Knapp had picked up a Volkswagen Dasher from New Orleans, Louisiana, on September 23, 1981; (3) that the homicides occurred on September 24, 1981; (4) that a Kansas court had ordered Knapp to take the Volkswagen to Winfield to exchange it for the Jeep that Knapp’s ex-wife had in her- possession; (5) that both women were stabbed to death with what was estimated to be a 7 - 7 Vz inch bladed knife; (6) that Musgrave was also shot with what appeared to be a 9mm weapon; and (7) that Knapp owned a 9mm weapon. The KBI agent stated they wanted to interview Knapp, but couldn’t reach Fort Huachuca until the next day, September 27th, and asked if Knapp would be available for questioning at that time. Fifer told the KBI agent he would have to check with the army legal advisors to determine whether Knapp could be held for their arrival.
Agent Fifer then contacted an Army Staff Judge Advocate and presented him with the above facts, and that Knapp was on permissive temporary leave to pick up the Volkswagen, and the further information that the Knapps’ divorce had not been amicable. Fifer indicated he felt he had reasonable belief to detain Knapp for twenty-four hours under Army regulations, and asked the Staff Judge Advocate whether he was legally correct. After some research on the question, the judge advocate called Fifer to advise him there was reasonable belief to detain Knapp for questioning by Kansas authorities on the following day. Kansas officials were notified accordingly, and Knapp was placed in a detention cell at the military police station overnight.
On September 27 a KBI agent and a Winfield police officer arrived at Fort Huachuca and met with Sgt. Knapp in the presence of Agent Fifer. Defendant was advised of his Miranda rights at the outset of this meeting and again after being given an explanation of the officers’ purpose. A waiver of rights form was presented and read to the defendant, who eliminated that portion of the form which stated he was willing to answer questions, and he then signed the form. Defendant stated he was willing to give a written statement detailing his trip to New Orleans to pick up the car and he did so. Knapp also gave both verbal and written consents to searches of his barracks room and the Volkswagen automobile, although he carefully studied and modified the written consent form to exclude certain items originally included stating he didn’t want the authorities looking at his personal papers. Defendant dictated to the officers when the searches should take place. During the meeting Knapp was cooperative but insisted everything be done on a “one-time basis,” saying “whatever you’ve got to do, make sure you do it now and get it over with.” Knapp was taken to his quarters for the search, and the following items were seized: a diving knife, a butcher knife, a jumpsuit, a shirt, and a pair of boots, none of which were presented at trial. The car search followed, during which the officers obtained a shoe print lifted from the front bumper, the odometer reading, a floor mat, and a box of 9mm Remington center-fire cartridges. Later, additional physical evidence was recovered from the automobile after search warrants had been obtained from Cochise County, Arizona, civil authorities and from Fort Huachuca military authorities.
After the initial searches, the group returned to Agent Fifer’s office where the Kansas authorities pointed out “large gaps” in defendant’s written statement and inquired whether defendant would reconsider discussing his activities. Knapp acquiesced and insisted the inquiry proceed immediately. KBI Agent Green reminded defendant of his earlier indication he did not wish to answer questions but Knapp agreed to give a detailed accounting of his trip from New Orleans without expressing any dissatisfaction or desire to avoid the questioning. After the defendant had narrated his activities during the previous four days, Green suggested it was time for the interview to stop and the officers could contact him later if the need arose. Knapp responded that if the officers had further need of his cooperation or assistance for questions or anything else, he wanted it done at that time rather than in the future. Green indicated he desired a set of fingerprints and hair samples, but specifically advised Knapp that he did not have to supply this material to the officers. Knapp insisted the evidence sought be obtained at that time, and assisted the officers in their efforts. The written and oral statements given by Knapp were exculpatory in nature and did not involve any confession or admission of any connection with the two murders. Defendant denied having been in Winfield, Kansas, on September 24, 1981.
Upon the officers’ return to Kansas, they obtained a warrant for Knapp’s arrest on the basis of the accumulated information. He was brought to trial in April, 1982, and was convicted by a jury of two counts of first-degree murder. He now appeals those convictions.
Defendant’s first point on appeal is that the trial court committed error in admitting into evidence the statements and some of the physical evidence obtained during the questioning and searches which took place at Fort Huachuca. He contends his initial arrest by Sgt. Whitehead was without probable cause, or its military equivalent of reasonable belief, and therefore all of the evidence obtained thereafter was inadmissible under the doctrine of fruit of the poisonous tree as enunciated in Nardone v. United States, 308 U.S. 338, 84 L.Ed. 307, 60 S.Ct. 266 (1939), and Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963). The trial court held an extensive evidentiary hearing on defendant’s motion to suppress the statements and evidence and in a lengthy and scholarly written opinion found that the defendant’s original restraint amounted to an arrest without probable cause but that the taint of the unlawful arrest was dissipated by subsequent events and the evidence was admissible. We agree with the trial court’s conclusion that the evidence was admissible.
It appears clear that an apprehension under the Uniform Code of Military Justice is essentially the same as an arrest under the general criminal law. The trial court, in its opinion, stated:
“There was no question that in the circumstances described in Sgt. Whitehead's testimony, the defendant was subject to the control and direction of Sgt. Whitehead and not free to exercise choice as to whether he would accompany him to the military police station, although Whitehead testified that he only asked the defendant if he would precede him. Whitehead’s testimony was that if the defendant had asked, Whitehead would not have let him go until he had contacted the desk sergeant.
“. . • It is not seriously contended by the State that the information Whitehead possessed at the time he encountered defendant was sufficient to constitute probable cause.”
Accepting the trial court’s determination that the initial arrest of Knapp was without probable cause and therefore a violation of his Fourth Amendment rights under the United States Constitution, it remains to be determined whether the statements and evidence were admissible in evidence irrespective of that violation and whether the statements and consents to search were voluntary under the requirements of the Fifth Amendment. In an analysis of defendant’s contentions that both his Fifth Amendment and Fourth Amendment rights were violated, it is necessary that we first look to the allegations that the statements and consents to search were not freely, voluntarily and knowingly given. In State v. Kanive, 221 Kan. 34, Syl. ¶ 5, 558 P.2d 1075 (1976), we held:
“When a trial court conducts a full pre-trial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.”
In the instant case it is abundantly clear that the statements and consents to search were freely, voluntarily and knowingly given. Following defendant’s apprehension by Sgt. Whitehead the military authorities made no attempt to interrogate or question Knapp. They made no attempt to conduct any search of defendant, his quarters or his automobile and merely detained him until the Kansas officers arrived. The Kansas officers were meticulous in giving Knapp his Miranda rights and in following Knapp’s directions as to how he was willing to proceed. Knapp made changes in the Miranda rights form, at first indicating he would not submit to questioning but would submit a written statement of his activities from the time he left New Orleans with the Volkswagen automobile until he arrived back at Fort Huachuca. Later he changed his mind, without any coercion, promises or threats and gave oral information to the officers. Knapp also made changes in the consent to search his quarters and automobile. He imposed certain limitations upon the items to be included in the search, accompanied the officers during the searches, cooperated with the officers and at all times insisted that the entire investigation be completed immediately and at one time. It is obvious that he understood his rights, and asserted them as he saw fit, and that the statements and the consents to search were freely, voluntarily and knowingly given to the Kansas officers. We find no Fifth Amendment violations of the defendant’s constitutional rights.
Having determined as a threshold matter that defendant’s Fifth Amendment rights were not violated, we must next determine whether the illegal arrest so tainted the statements and physical evidence that the same was inadmissible under the Fourth Amendment and the fruit of the poisonous tree doctrine. In determining whether the taking of the statements and the recovery of the physical evidence is sufficiently divorced from the taint of the original illegal arrest or detention, the test to be applied is similar to that used in the determination of Fifth Amendment violations. That is, when a trial court conducts a full pretrial hearing on the admission of statements and other evidence obtained following an illegal arrest and determines that the initial taint of the illegal arrest has been sufficiently purged or diluted and admits the evidence at trial, this court, on appeal, should accept that determination if it is supported by substantial competent evidence. In Wong Sun, the Supreme Court said:
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” 371 U.S. at 487-88.
Since Wong Sun recognized that evidence might be “sufficiently an act of free will to purge the primary taint of the unlawful invasion” it becomes necessary to determine what is necessary to dissipate the taint and whether sufficient dissipation was shown in the instant case. In Brown v. Illinois, 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254 (1975), the court was faced with a ruling of the Illinois Supreme Court which held that the giving of Miranda warnings “ 'served to break the causal connection between the illegal arrest and the giving of the statements, and that defendant’s act in making the statements was “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” [Citing Wong Sun.]’ ” 422 U.S. at 597. The court said:
“While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or ‘but for’ rule. The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12, 45, 47. The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant.” pp. 603-04.
The trial court in the instant case then went on to analyze numerous federal cases and the evidence in this case and held:
“Making the inquiry prescribed by Wong Sun — whether the evidence to which objection is made has been come at by exploitation of the primary illegality of police action — and keeping in sharp focus the deterrent purpose of the Fourth Amendment exclusionary rule, as enjoined by Justice Powell in Brown, the Court concludes that, on all of the circumstances, there was an attenuation of the chain of causation between the illegal arrest of the defendant and his subsequent statement and consent to search, as a result of which the physical evidence sought to be suppressed was obtained, which permits the admission of the statement and evidence as having been purged of the primary taint of the illegal arrest. There is much more here than the simple giving of Miranda warnings, which were held insufficient to dissipate the taint of illegal arrest in Brown v. Illinois. The other factors identified in Brown as determinative of whether evidence is obtained by exploitation of an illegal arrest weigh, in the aggregate, in favor of admissibility. In addition to meeting the Fifth Amendment standard of voluntariness, defendant’s conduct in making a written statement and executing a consent to search is found to be ‘sufficiently an act of free will to purge the primary taint.’ ”
We agree with the trial court. Here the Kansas officers had no part in the illegal arrest of defendant and did not seek such an arrest. Defendant was not coerced in any manner, he voluntarily cooperated with the officers and dictated the terms of his statements, interrogation and the searches. He was fully advised of his rights and understood them. He acknowledged an obligation to assist in the investigation. Finally, the military personnel were acting in complete good faith in their belief that they were acting properly under military procedure. Their actions were sanctioned by the staff judge advocate’s office and no ulterior motive on their part is evident. As stated by Justice Powell in his partial concurrence in Brown:
“The basic purpose of the rule, briefly stated, is to remove possible motivations for illegal arrests. Given this purpose the notion of voluntariness has practical value in deciding whether the rule should apply to statements removed from the immediate circumstances of the illegal arrest. If an illegal arrest merely provides the occasion of initial contact between the police and the accused, and because of time or other intervening factors the accused’s eventual statement is the product of his own reflection and free will, application of the exclusionary rule can serve little purpose: the police normally will not make an illegal arrest in the hope of eventually obtaining such a truly volunteered statement.” 422 U.S. at 610.
The trial court’s finding that there was sufficient attenuation between the illegal arrest and the obtaining of the statements and consents to search to make the statements and evidence admissible is supported by substantial competent evidence and will not be disturbed on appeal.
Defendant’s next point on appeal is claimed error in the trial court’s admission into evidence of portions of his deceased wife's testimony from the divorce trial and a police officer’s testimony of an earlier break-in at the victim’s residence. It is contended the testimony of Connie Sue Knapp from the divorce trial constitutes inadmissible hearsay under K.S.A. 60-460. We find no merit in this contention. The portion of the testimony of Connie Sue meets all the requirements of K.S.A. 60-460(c) and is therefore admissible. Defendant also asserts that the testimony, if admissible, and which could be construed to be in the nature of a prior threat, required a limiting instruction under K.S.A. 60-455. In State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982), we held that in cases of marital homicide evidence of a discordant marital relationship was admissible independent of K.S.A. 60-455. The same case controls the admissibility of the police officer’s testimony that the victim had told him the defendant broke into her house on August 4, 1981, the day before the divorce. Defendant’s arguments lack merit.
Next the defendant objects to certain proceedings which transpired during the trial outside the defendant’s presence which involved the jury and a member thereof. During Knapp’s trial a juror named Manske contacted the bailiff and indicated she thought she had independent knowledge of the case. Her brother had been questioned by the Winfield police during their investigation because he owned a sports car similar to one observed near the scene of the crime the night the two women were killed. At trial one of the State’s witnesses testified on cross-examination that he heard a vehicle come onto the street in front of Connie Sue’s home and accelerate rapidly. Since Juror Manske had not previously mentioned during voir dire that her brother had been questioned, she felt that after this testimony her information should be brought to the attention of the court. A conference ixr the judge’s chambers was held, attended by the jxxdge, the juror, and counsel for both pax'ties. Defendant was not advised and was xxot present. At this confei'ence the jxxdge inquired as to what effect this information had on the jxxror’s nxixxd. Both counsel wex'e given an opportxxnity to inquire of the jixror, and after she was excused from the judge’s chambers, the decision was made not to remove her from the jury. Knapp’s coxxnsel wanted her left on the jury as he felt she would be a good juror for the defense. Knapp now claims prejudicial en'or occxxrred ixx this proceeding and decision made outside his presence.
K.S.A. 22-3405(1) states:
“The defendant in a felony case shall he present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntary absence after trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.” (Emphasis added.)
It is defendant’s contention that this conference with the jxxror amounted to an extension of the voir dire examination and that his statutory and constitutional rights to be present were violated. See State v. Antwine, 4 Kan. App. 2d 389, 607 P.2d 519 (1980). The State readily concedes that the trial couil erx-ed in pxxxceeding in violation of K.S.A. 22-3405. It argues, however, that the appropriate question on appeal is whether Knapp’s presexxce at this conference was essential to a fair and just determination of a substantial issue and points to the fact that defense coxxnsel was present, qualified, and did make the relevaxxt determination to keep Manske on the jury. See State v. Mantz, 222 Kan. 453, 565 P.2d 612 (1977). K.S.A. 22-3405 provides that a defexxdant in a felony case shall be present “at every stage of the trial.” We have construed this section of the statute to require defendant’s presence at all times when the jury is present or at other proceedings where defendant’s presence is essential to a fair and just determination of a substantial issue. State v. Sanders, 227 Kan. 892, 610 P.2d 633 (1980); State v. Mantz, 222 Kan. at 463; State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942 (1979). Where an in-chambers conference concerns only questions of law an accused’s presence is not crucial and he is not thereby prejudiced by his absence. State v. Sanders, 227 Kan. at 894. The failure to have defendant present at the conference was a clear violation of the statute. A defendant has a constitutional right to a fair trial and the failure of defendant to be present at crucial stages of the trial is also a violation of that constitutional right. However, as will be shown later, the violation does not constitute reversible error.
Defendant also asserts the trial court committed error in instructing the jury outside the presence of the defendant. K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” (Emphasis added.)
During deliberations the jury sent a communication to the trial judge seeking clarification of instruction No. 13, ¶ 3. The question was delivered to the judge and counsel in chambers, out of defendant’s presence, where an answer was formulated by the judge, approved by counsel for both sides, and sent back to the jury. The relevant communications were:
Instruction No. 13, ¶ 3: “When there is doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.”
Jury Question: “Is this considered on an individual basis or the jury as a whole?”
Court's Answer: “Your agreement upon a verdict must be unanimous as you have been instructed in the last line of Instruction No. 14.”
The State concedes, once again, that the trial court violated the statute by answering the jury outside defendant’s presence. However, the State argues that this error is not prejudicial to the point of requiring reversal, because defendant’s counsel was present, and the answer proposed by the court and approved by counsel contained no new instructions. We agree that K.S.A. 22-3420 was violated by the trial court but again find no reversible error.
The evidence of defendant’s guilt was overwhelming. It will be reviewed only briefly to show the basis of our decision. Defendant, in his statements to the Kansas officers at Fort Huachuca, denied any knowledge of the murders of his ex-wife and Jacqueline Musgrave and contended he had returned to Arizona from New Orleans on a direct route on Highway 10 through southern Texas and New Mexico. At trial a completely different set of facts developed. It was shown that defendant purchased motor oil in Richardson, Texas, some 250 miles north of his reported course of travel. There was considerable evidence of the marital discord which existed between defendant and Connie Sue Knapp. Defendant’s roommate testified as to the marital problems, as related to him by the defendant, and also testified that when defendant returned with the Volkswagen automobile, he stated it looked like he would be getting his children sooner than he had anticipated.. Williamson also testified defendant intended to pick up the Jeep vehicle from his ex-wife on the 23rd of September, 1981. It was established that the odometer on the Volkswagen registered 90,313 miles when picked up from Naval authorities on September 23, 1981. When the vehicle was examined by Kansas police authorities at Fort Huachuca on September 27, 1981, the odometer registered 92,405 miles, or a difference of 2,092 miles. The distance from New Orleans to Fort Huachuca by the route claimed by defendant is 1,460 miles while the distance by way of Winfield, Kansas, is 1,928 miles.
The bullet which passed through the body of Musgrave was fired from defendant’s 9mm pistol. The search of defendant’s automobile disclosed a box of 9mm cartridges. Both victims were killed by repeated savage stabbing attacks with wounds to the chest, lungs, heart and great vessels. Defendant’s sister testified as to the marital strife between defendant and Connie Sue and stated defendant had threatened to kill his wife. Another sister of defendant testified to similar threats. Perhaps the most damaging testimony was that of KBI experts that a bloody handprint of the defendant was found on the wall of Connie Sue’s apartment and the blood matched that of a mixture of both victims. Blood was found on the floor mat of the car and on the trunk lid. In the face of all this evidence, the defendant testified to a completely different story than the one originally given the Kansas police in Arizona. He admitted he had gone to Winfield to deliver the car but on his arrival found his ex-wife lying on the floor in a pool of blood. He tried to render assistance to her but was unable to do so. He then discovered the body of Jacqueline Musgrave in the dining room and, after doing so, left and proceeded to Arizona. Numerous elements of his testimony were shown to be untrue or physically impossible. There were no other witnesses for the defense.
Assuming that the errors of the trial court in questioning one juror and answering the jury’s question outside the presence of the defendant amounted to errors of constitutional magnitude, we have no hesitancy based upon this record in finding beyond any reasonable doubt that such errors had little, if any, likelihood of changing the results of the trial. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, reh. denied 386 U.S. 987 (1967); State v. Thompson, 221 Kan. 176, 558 P.2d 93 (1976); State v. Fleury, 203 Kan. 888, 457 P.2d 44 (1969). Defendant’s points relative to the court’s communications with the jury are not sufficient to constitute reversible error.
The fourth issue raised by appellant is that the trial court erred in permitting the prosecuting attorney, on cross-examination of defendant Knapp, to impeach his exculpatory statements by alluding to Knapp’s pre-arrest silence and post-arrest statements. During direct examination defendant testified that his post-arrest statements to police were inaccurate for various reasons, and then gave a completely different version of the events. On cross-examination, the following exchange occurred:
Q. “Okay. Mr. Knapp, why is it that you waited until this time to let us in on what actually happened?”
Mr. Ellis (defense counsel): “Your Honor, I object.”
The Court: “State the basis of your objection.”
Mr. Ellis: “It’s a comment on his right to remain silent during various times from his arrest until today.”
The objection was overruled. Knapp also contends error in the State’s closing argument when the prosecutor commented on the defendant’s failure to report until trial what he had found at the crime scene. Knapp’s objection to the alleged erroneous cross-examination is controlled by our decision in State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982), where, in a similar situation, this court stated:
“We find no error in this regard. At the time the question was asked, the evidence showed that defendant had given several inconsistent stories as to what happened at the time of the shooting. The evidence was clear that, from the beginning of the investigation, the defendant had given statements to the police officers and had not invoked his right to remain silent. It is obvious to us that the prosecutor was simply referring to the fact that the defendant had changed his story on several occasions and, under the circumstances, the question cannot reasonably be construed as a criticism of the defendant for refusing to give a statement to the police officers. The question was directed to the fact that defendant had given inconsistent statements. It was not a comment on the defendant’s exercise of his right to remain silent.” p. 480.
During closing argument the prosecutor stated to the jury:
“Defendant never reported what he had seen until last Friday.”
No objection to the comment was made by counsel for the defendant at that time. The Kansas standard for improper prosecutorial conduct during final argument is whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. State v. Henderson, 226 Kan. 726, 603 P.2d 613 (1979). We conclude that the prosecutor’s questions and remarks were less comments on defendant’s silence than permissible uses of pre-arrest silence and prior inconsistent statements to impeach defendant’s story and constituted proper comment upon the evidence during argument. No error is shown.
Appellant Knapp’s final contention on appeal is that the trial court erred in instructing the jury on the doctrine of felony murder under the circumstances of this case. Instruction No. 11 given to the jury reads as follows:
“In the second count of the information, defendant is charged with the crime of murder in the first degree of Jacqueline Musgrave. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved.
1. The defendant killed Jacqueline Musgrave.
2. Such killing was done while in the commission of the act of killing Connie Sue Knapp, a felony;
3. This act occurred on or about the 24th day of September, 1981, in Cowley County, Kansas.”
Defendant admits that no objection was lodged against the felony murder instruction at the trial level, but now contends the instruction was clearly erroneous and therefore constitutes an exception to the contemporaneous objection rule. K.S.A. 60-251(b); State v. Moore, 230 Kan. 495, 639 P.2d 458 (1982). Defendant claims, among other things, that the murder of his ex-wife cannot be used as the underlying felony to support the first-degree murder conviction for the death of Mus grave. We have thoroughly considered defendant’s various theories and arguments and find them to be totally without merit. It would serve no useful purpose to extend this opinion further by a full discussion of the felony murder rule. That has been done numerous times in the past. See State v. Crump, 232 Kan. 265, 654 P.2d 922 (1982); State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980), and cases cited therein.
A careful and comprehensive review of the entire record in this case reveals no reversible error.
■The judgment is affirmed. | [
16,
-24,
-11,
-114,
41,
96,
58,
-88,
106,
-79,
98,
-45,
-19,
75,
1,
121,
42,
-65,
85,
121,
-11,
-73,
3,
-120,
82,
-13,
-8,
-43,
-74,
-49,
-10,
-10,
75,
96,
-114,
-35,
102,
74,
-123,
92,
-50,
-124,
-117,
-16,
90,
-46,
52,
63,
30,
10,
-11,
-113,
-29,
10,
22,
-62,
104,
8,
107,
-83,
112,
112,
-53,
21,
-33,
50,
-109,
32,
-66,
-91,
88,
63,
-40,
49,
8,
-24,
-37,
-74,
-102,
116,
103,
-119,
4,
34,
98,
3,
124,
-55,
108,
-119,
46,
-16,
-121,
39,
29,
72,
64,
5,
-106,
-99,
127,
22,
10,
-16,
-5,
77,
77,
-28,
14,
-54,
-80,
-111,
77,
112,
-102,
106,
-21,
-123,
50,
113,
-51,
-30,
93,
68,
91,
-67,
-125,
-110
] |
Per Curiam:
Brian M. Helgeson appeals from his conviction of one count of driving while under the influence of alcohol (D.U.I.), K.S.A. 8-1567(a), and the sentence entered by the court pursuant to K.S.A. 8-1567(d). We note that the statute was amended effective April 21, 1983, but the amendments are not material to the issues herein. Therefore, we will not refer to the 1983 Supplement in our citations to the statutes. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
As there is no issue as to the sufficiency of the evidence of the defendant being under the influence of alcohol, we will not set forth the facts in detail. Suffice it to say the evidence was overwhelming as to defendant’s state of intoxication. In the complaint filed by the arresting officer, the defendant was charged with a violation of K.S.A. 8-1567. At the close of the State’s evidence, defense counsel moved for a dismissal on the ground defendant had not been charged with a violation of any of the various subsections of the statute. His position was that a defendant must be charged with violation of a particular subsection of 8-1567, “either section (c), section (d), or section (e), and cannot be charged generally under the statute.” Subsection (c) sets forth the penalty for a first conviction; (d) the penalty for a second conviction; and (e) the penalty for a third or subsequent conviction. The trial judge denied the defendant’s motion, stating:
“I see the sections of 1567 dealing with sentencing as going to whether there were prior convictions. I don’t think it is mandatory upon the officer at the time of writing tire ticket that he needs to designate whether it is a first conviction, second conviction or third conviction. The motion will be overruled.”
At the close of all the evidence the court found defendant guilty of driving under the influence of intoxicating liquor. In the course of setting the date for sentencing, the court asked whether defendant had any “prior D.W.I.’s.” The prosecutor replied his records showed one. Defense counsel responded: “[T]hat evidence should have been produced during the trial and not in sentencing investigation or at some later date. ... In my opinion, the statute is saying he has to be convicted of the first offense, second offense, and third offense at the time of trial.” The court disagreed, saying:
“I have construed the statute as saying that the issue before the court is whether he is driving while under the influence. If he is convicted of that, then it becomes a question at sentencing whether it is a first time, second time, or third time or subsequent conviction. I don’t see that as being an issue that would be submitted to the trier of fact, quite honestly, Mr. Bowker. That is a point that you might just have to take up on appeal if that is the way you feel. My question at this point is, I see from the driving record he has one prior D.W.I. in 1980. Do we have any prior D.W.I.’s prior to that?
“MR. BOWKER: None that I know of, Your Honor.”
Defendant was sentenced as a second offender on June 9, 1983, at which time defense counsel conceded the defendant had a prior conviction. This case has been submitted on an abbreviated record pursuant to the agreement of counsel and many of the issues raised by the appellant do not appear to have been raised before the trial court. “It is incumbent upon the appellant to include in the record on appeal any matter upon which he intends to base a claim of error.” Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 3, 564 P.2d 508 (1977).
The first issue properly before this court is appellant’s claim that the complaint was deficient for failing to include any allegation of a prior D.Ü.I. conviction. As a second offender it is apparently the appellant’s position that he should have been specifically charged with a violation of K.S.A. 8-1567(d). Appellant relies upon State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 (1976), as support for his argument. That reliance is misplaced. In Loudermilk the defendant appealed “from his second conviction of possession of heroin, a class B felony under K.S.A.
1975 Supp. 65-4127a,” and from the sentence imposed. 221 Kan. at 157. This court clearly pointed out the distinction between crimes in which a prior conviction is an element of the present crime charged and those crimes in which prior convictions are considered only in establishing the penalty to be imposed. We stated:
“[T]he legislature has created the following crimes under which a previous conviction is not an element of the substantive crime but serves only to enhance punishment: . . . driving while under the influence of intoxicating liquor or drugs (K.S.A. 8-1567); . . . possession of narcotics (K.S.A. 1975 Supp. 65-4127a) .... In each of these statutes the fact of prior conviction is not contained in the statutory definition of the crime but is contained only in the penalty provisions of the statute.” 221 Kan. at 160.
A prior D.U.I. conviction is not a statutory element of the crime under K.S.A. 8-1567, and merely bears on the penalty imposed. There was no error in the complaint hot charging the prior offense. See also K.S.A. 22-3208(3).
At the time of sentencing the defendant again contended that the prior conviction should have been a matter of proof by the State during the trial and that the court erred in considering it at the sentencing hearing. What has been said about appellant’s first issue disposes of this argument.
The balance of the issues raised by the appellant do not appear from the record before us to have even been raised before the trial court. Ordinarily this court will not consider issues, including constitutional questions, which were not presented to the trial court. McGowen v. Southwestern Bell Tel. Co., 215 Kan. 887, 529 P.2d 97 (1974). However, having reviewed the entire record submitted in this case, we can say that even those issues, when considered on their merits, lack substance.
The judgment is affirmed. | [
-16,
-22,
-51,
-66,
47,
96,
43,
-76,
-47,
-9,
-4,
82,
-17,
-46,
5,
59,
-29,
127,
85,
105,
-41,
-73,
87,
65,
-10,
-77,
-119,
70,
-73,
79,
108,
-76,
15,
-80,
-61,
117,
70,
-56,
-123,
94,
-114,
4,
-103,
-15,
88,
10,
52,
111,
7,
15,
49,
-113,
-9,
40,
26,
66,
105,
12,
91,
-83,
-56,
-79,
-111,
13,
123,
6,
-77,
20,
-99,
-115,
88,
63,
-100,
49,
0,
-8,
114,
-90,
-122,
-76,
111,
-103,
-116,
102,
98,
32,
21,
-49,
-27,
-104,
46,
46,
-67,
-89,
-104,
81,
73,
12,
-106,
-3,
102,
54,
45,
-4,
-18,
85,
93,
104,
22,
-50,
-80,
-79,
-49,
116,
2,
83,
-61,
37,
16,
33,
-35,
-30,
94,
116,
112,
27,
-61,
-108
] |
The opinion of the court was delivered by
McFarland, J.:
This is a mortgage foreclosure action. The trial court held plaintiff mortgagee, Capitol Federal Savings & Loan Association, Inc., was entitled to have its mortgage, foreclosed and the subject property (commonly referred to as Glenwood Manor) sold with the proceeds therefrom applied to the debt, taxes and legal assessments. Defendants Glenwood Manor, Inc., and Lederman Enterprises, Inc., are the owners of certain interests in the mortgaged property and appeal from the judgment of the trial court. Inasmuch as one of the issues in the case concerns the exact legal status of the defendants’ interests in the subject property, we refrain from specifying the nature of their interests at this point in the opinion.
The facts giving rise to this action are not in serious dispute. The controversy primarily concerns the applicable law and legal conclusions to be drawn from the facts. The trial court’s factual statement of the case adequately sets the framework for the legal issues and will be set forth herein. It should be noted that, at the time of the trial court’s memorandum opinion, there were a number of other defendants who are not parties to this appeal. For appellate purposes, Glenwood Manor, Inc., and Lederman Enterprises, Inc., are the only defendants herein. With this prefatory clarification, the trial court’s factual statement is as follows:
“In northeast Johnson County on the west side of Metcalf Avenue north of 95th Street is an expanse of land containing what for years was known as the Glenwood Manor, a motor hotel, the Glenwood Theater, and some smaller facilities. Suffice it to say that the land occupied by these businesses is prime commercial property.
“On April 27, 1973, defendant Glenwood Manor, Inc. executed and delivered to plaintiff a first mortgage note in the total amount of $3,125,000 at 8 Vi% interest to be repaid in installments as provided therein and secured by a real estate mortgage duly made, executed and delivered on an even date therewith.
“The plaintiff is a federally chartered savings and loan association. Its principal place of business and correct post office address is located in Topeka, Kansas.
“At the time of the giving of the mortgage and as part of the same transaction, the defendants, Glen W. Dickinson, Jr. and Georgia Faye Dickinson, as partial consideration for the making of said loan by the plaintiff, gave to the plaintiff their joint and several personal guarantee for the repayment of said loan and all other terms of the said note. Mr. Dickinson is now deceased and his representative is not substituted in this action.
“On December 23, 1980, Glenwood Manor, Inc. entered into what was denominated a ‘purchase agreement’ with defendant Glenwood Hotel Partnership for the sale of the property which is the subject of this lawsuit which will be identified for the sake of clarity as the Glenwood Manor. The theater and other portions of the real estate were not included in the sale. The agreement was with a group entitled ‘Glenwood Hotel Partnership’ which is a defendant to this action. On or about February 23, 1981, pursuant to the terms and conditions of the ‘Purchase Agreement’ of December 23, 1980, defendant Glenwood Manor, Inc. received partial payment and consideration for the interest in the property in the amount of $2,500,000.
“On the 24th day of December, 1981, defendant Lederman Enterprises, Inc. purchased all interest of the defendant, Glenwood Hotel Partnership, in and to the property and did cause to be filed with the Register of Deeds of Johnson County, Kansas, an affidavit of equitable interest in and to the real property.
“A portion of the mortgage involved reads as follows:
“ ‘The loan evidenced by said note and secured by this mortgage has been made by said Lender by reason of the personal and financial responsibility of the Borrower. The real estate mortgaged to secure said note may be sold, conveyed or otherwise alienated by the Borrower at any time subject to the lien of this mortgage, provided, however, that in such event, the Borrower agrees that said Lender may, at its option and for any reason it deems sufficient, elect to declare all remaining principal and accrued interest remaining due on said note immediately due and payable and foreclose this mortgage.’
“The plaintiff is contending that since February 23, 1981, due to the actions of Glenwood Manor, Inc. and the Glenwood Hotel Partnership that the mortgage and note have been in default by reason of ‘. . . sales, conveyances or alienations of the real property, . . .’
“The plaintiff contends it is entitled to interest from and after that date at the rate of 10% per annum as is set forth in the note and mortgage. The plaintiff contends that after just credit and application of all payments received, the unpaid principal balance on said note and mortgage is approximately $2,298,570.06.
“The transfer of interest between Glenwood Hotel Partnership and Lederman Enterprises, Inc. was accomplished through the defendant, Meadow Hills West Associates Ltd., which acted as a ‘pass through’ entity for purposes of attempting to effectuate a tax free exchange of the property for Lederman Enterprises, Inc. There was some evidence to the effect that the Internal Revenue Service of the United States was not recognizing that as a valid tax free exchange for tax purposes.
“At the time of the exchange between Glenwood Manor, Inc. and the Glen-wood Hotel Partnership on February 23,1981, the partnership paid to Glenwood Manor, Inc. over $1,000,000 in cash, delivered a promissory note in the amount of 1.5 million dollars, agreed to pay an additional sum of 1.3 million dollars on June 10, 1988, and agreed to pay the monthly mortgage payments evidenced by the note and mortgage held by plaintiff. In exchange for this consideration, the partnership obtained immediate possession of the hotel, acquired the sole right to manage and operate the business; acquired the right to receive all rents from business operations, obtained ownership of all equipment, fixtures, and furnishings located on the hotel premises, and acquired all outstanding contracts and leasing arrangements Glenwood Manor, Inc. had prior to the transaction.
“Between the time that there was a transfer of interest from the Glenwood Partnership to Lederman Enterprises, Inc., the Partnership made substantial improvements and repairs on the hotel in an amount of approximately $650,000.
“Since the transfer between Glenwood Hotel Partnership and Lederman Enterprises, the improvements have continued to the property. From the evidence it appears that the loan is well secured, and that the property, even if bulldozed, would be worth more than the outstanding debt balance.
“There was testimony received that at the time the Glenwood Hotel Partnership took over, there was an article in the Kansas City Star indicating that Mr. Ross had signed an operating agreement to manage the hotel as Catering Manager, General Manager and Executive Vice President.
“There was nothing in the article to suggest a change in ownership and Kent Dickinson, the former President of Glenwood Manor, Inc., was identified as the President in the article.”
The trial court then concluded plaintiff was entitled to the relief sought — foreclosure of its mortgage and sale of the property. Defendants Glenwood Manor, Inc., and Lederman Enterprises, Inc., appeal from this judgment asserting various claims of error.
For their first issue defendants contend the trial court erred in not barring plaintiff s claim' on the defense of laches.
The doctrine of laches is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with the lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity. Alternatively, laches has been described as the neglect for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. Laches is the neglect or omission to assert a right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party. Black’s Law Dictionary, 787 (5th ed. 1979). In Calkin v. Hudson, 156 Kan. 308, 133 P.2d 177 (1943), this court observed laches existed when there was undue delay in the assertion of a legal right before a tribunal competent to enforce it. The Calkin court further commented mere lapse of time alone does not constitute laches but if such a delay has misled other parties to their prejudice, the bar of laches may be invoked. 156 Kan. at 318. More recently the Court of Appeals in Moore v. Phillips, 6 Kan. App. 2d 94, 627 P.2d 831, rev. denied 230 Kan. 818 (1981), in contrasting laches from estoppel stated:
“The doctrine of laches and estoppel are closely related, especially where there is complaint of delay which has placed another at a disadvantage. Laches is sometimes spoken of as a species of estoppel. Laches is a wholly negative thing, the result of a failure to act; estoppel on the other hand may involve an affirmative act on the part of some party of the lawsuit. The mere passage of time is not enough to invoke the doctrine of laches. Each case must be governed by its own facts, and what might be considered a lapse of sufficient time to defeat an action in one case might be insufficient in another. Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. Clark v. Chipman, 212 Kan. 259, 510 P.2d 1257 (1973). The defense of laches may be applied in actions at law as well as in equitable proceedings. McDaniel v. Messerschmidt, 191 Kan. 461, 464, 382 P.2d 304 (1963). In Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652 (1913), it was held that laches is an equitable defense and will not bar a recovery from mere lapse of time nor where there is a reasonable excuse for nonaction of a party in making inquiry as to his rights or in asserting them.” 6 Kan. App. 2d at 98.
In its legal conclusions, the trial court noted:
“The Court finds as somewhat contradictory the defendants’ claim that laches should apply to the present situation. It appears from the evidence that Glen-wood Manor, Inc. and the Partnership were quite careful to make sure that little or no information was leaked to the public at large or to the plaintiff in particular concerning the nature of the operating change. They, of course, were not required to, but they cannot now be heard to say that the bank was remiss for not finding out what they were so eager to conceal. It is also unusual for them to contend that the bank blithely allowed the arrangement while simultaneously flogging them with the equitable defenses set out above that charged them with rapaciousness.
“The Court would find that as soon as the bank could reasonably have expected to find out about the changes, that it acted with alacrity to assert its rights.”
In December 1980, the first purchase agreement was executed with possession date being set at February 23, 1981. The second purchase agreement was executed in November 1981. The plaintiff did not learn of either of these changes in ownership until the spring of 1982 when one of its employees read a newspaper article which alerted plaintiff on the need to investigate the matter. After ascertaining the facts, plaintiff tried to reach an arrangement with defendants satisfactory to all. This attempt failed and suit was filed in September 1982. We find no error in the trial court’s refusal to apply the equitable defense of laches herein.
For their second issue defendants contend the trial court erred in refusing to hold the “due-on-sale” clause was unenforceable for failure of the plaintiff to establish its security was impaired by the ownership changes. Defendants have cited cases from other jurisdictions in support of this contention. E.g., Tucker v. Pulaski Fed. S & L, 252 Ark. 849, 481 S.W.2d 725 (1972); Patton v. First Fed. Sav. & Loan Ass’n, Etc., 118 Ariz. 473, 578 P.2d 152 (1978); Nichols v. Ann Arbor Savings, 73 Mich. App. 163, 250 N.W.2d 804, appeal denied 400 Mich. 844 (1977). The concept that an institutional lender must show security impairment before a due-on-sale clause will be enforceable apparently arose in California or, at least, found strength there which had not previously been displayed in other jurisdictions. See Tucker v. Lassen Sav. & Loan Assn., 12 Cal. 3d 629, 116 Cal. Rptr. 633, 526 P.2d 1169 (1974). In Wellenkamp v. Bank of America, 21 Cal. 3d 943, 148 Cal. Rptr. 379, 582 P.2d 970 (1978), the California Supreme Court held an institutional lender could not enforce a due-on- sale clause in a promissory note or deed of trust unless the lender could demonstrate that enforcement was reasonably necessary to prevent impairment of the security or risk of default. The so-called “Wellenkamp” rule did not long go unchallenged in the federal court system. In Fidelity Federal Sav. & Loan Assn. v. De La Cuesta, 458 U.S. 141, 73 L.Ed.2d 664, 102 S.Ct. 3014 (1982), the United States Supreme Court was confronted with a California case where the California courts had applied the “Wellenkamp” rule. The savings and loan association therein, which was federally chartered (like Capitol Federal herein), contended federal law and regulations preempted state law in this area. The United States Supreme Court agreed.
The high court provided an extensive review of federal law in this area beginning with the Home Owners’ Loan Act of 1933 (HOLA), 12 U.S.C. § 1461 et seq. The court noted in 1976 the Federal Home Loan Bank Board became concerned about the increasing controversy as to the authority of federal savings and loan associations to exercise “due-on-sale” clauses. 458 U.S. at 145. As the United States Supreme Court observed:
“[T]he Board felt that restrictions on a savings and loan’s ability to accelerate a loan upon transfer of the security would have a number of adverse effects: (1) that ‘the financial security and stability of Federal associations would be endangered if . . . the security property is transferred to a person whose ability to repay the loan and properly maintain the property is inadequate’; (2) that ‘elimination of the due on sale clause will cause a substantial reduction of the cash flow and net income of Federal associations, and that to offset such losses it is likely that the associations will be forced to charge higher interest rates and loan charges on home loans generally’; and (3) that ‘elimination of the due on sale clause will restrict and impair the ability of Federal associations to sell their home loans in the secondary mortgage market, by making such loans unsalable or causing them to be sold at reduced prices, thereby reducing the flow of new funds for residential loans, which otherwise would be available.’ 41 Fed. Reg. 6283, 6285 (1976). The Board concluded that ‘elimination of the due on sale clause will benefit only a limited number of home sellers, but generally will cause economic hardship to the majority of home buyers and potential home buyers.’ Ibid.” 458 U.S. at 146.
The Board issued a regulation in 1976 governing due-on-sale clauses. The regulation, now codified as 12 C.F.R. § 545.8-3(f) (1983) (originally codified as 12 C.F.R. § 545.6-ll(f) [1980]), provides in pertinent part:
“[A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as [otherwise] provided in . . . this section . . . , exercise by the association of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.” 458 U.S. at 146-47.
In promulgating this regulation the Board explained its intent the due-on-sale practices of federally-chartered savings and loans, like Capitol Federal, be governed “ ‘exclusively by Federal law.’ ” 41 Fed. Reg. 18286, 18287 (1976). The Board emphasized that “ ‘[f]ederal associations shall not be bound by or subject to any conflicting State law which imposes different . . . due-on-sale requirements.’ ” 458 U.S. at 147.
The United States Supreme Court reviewed its decisions on the constitutional doctrine of federal preemption, 458 U.S. at 152-54, and then noted California courts, by requiring federal savings and loan associations to show impairment of security in seeking enforcement of due-on-sale clauses, had limited a federal association’s right to exercise such clauses. 458 U.S. at 154-55. The high court held that by virtue of the so-called “Wellenkamp” rule (which defendants in the instant action seek to have applied here) the “California courts have forbidden a federal savings and loan to enforce a due-on-sale clause solely ‘at its option’ and have deprived the lender of the ‘flexibility’ given it by the Board.” 458 U.S. at 155.
In De La Cuesta the United States Supreme Court rejected the contention the Home Owners Loan Act, 12 U.S.C. § 1461 et seq., was not broad enough to permit the Board to promulgate its due-on-sale regulation. As the high court observed, “Congress delegated to the Board broad authority to establish and regulate ‘a uniform system of [savings and loan] institutions where there are not any now,’ and to ‘establish them with the force of the government behind them, with a national charter.’ ” 458 U.S. at 166. Continuing:
“Although the Board’s power to promulgate regulations exempting federal savings and loans from the requirements of state law may not be boundless, in this case we need not explore the outer limits of the Board’s discretion. We have no difficulty concluding that the due-on-sale regulation is within the scope of the Board’s authority under the HOLA and consistent with the Act’s principal purposes.” 458 U.S. at 167.
Concluding:
“Admittedly, the wisdom of the Board’s policy decision is not uncontroverted. But neither is it arbitrary or capricious. As judges, it is neither our function, nor within our expertise, to evaluate the economic soundness of the Board’s approach. In promulgating the due-on-sale regulation, the Board reasonably exercised the authority, given it by Congress, so as to ensure the financial stability of ‘local mutual thrift institutions in which people . . . invest their funds and . . . [which] provide for the financing of homes.’§ 5(a) of the HOLA, 12 U.S.C. § 1464(a) (1976 ed., Supp. IV). By so doing, the Board intended to pre-empt conflicting state restrictions on due-on-sale practices like the California Supreme Court’s Wellenkamp doctrine.
“Our inquiry ends there. Accordingly, we hold that the Board’s due-on-sale regulation bars application of the Wellenkamp rule to federal savings and loan associations.” 458 U.S. at 169-70.
See also First Federal S & L Ass’n of Lake Worth v. Brown, 707 F.2d 1217, 1221 (11th Cir. 1983); Note, Due-on-Sale Clauses: The Economic and Legal Issues, 43 U. Pitt. L. Rev. 441 (1982); Comment, The Due-On-Sale Clause: Current Legislative Actions and Probable Trends, 9 Fla. St. U. L. Rev. 645 (1981); Dunn & Nowinski, Enforcement of Due-On-Transfer Clauses: An Update, 16 Real Prop. Prob. & Tr. J. 291 (1981); Note, Enforcement of Due-On-Transfer Clauses: A Review and Commentary of the State of the Law on Enforceability of Acceleration Provisions In Mortgages and Deeds of Trust by Reason of Transfer of an Interest in Security, 13 Real Prop. Prob. & Tr. J. 891 (1978).
In light of De La Cuesta the assertion by the defendants here that Capitol Federal Savings & Loan Association must demonstrate an impairment of security before it may enforce the “due-on-sale” clause in the 1978 mortgage must be rejected. We conclude the trial court properly held De La Cuesta was controlling on this issue.
For its third issue defendants contend the due-on-sale clause is a restraint on alienation of property and must be strictly construed against the lender in determining whether the transactions herein “sold, conveyed, or otherwise alienated” the mortgaged property and thereby triggered the operation of the clause.
There is no question but that restraints on alienation of property are to be strictly construed against the party urging the restraint. Wood v. Hatcher, 199 Kan. 238, Syl. ¶ 2, 428 P.2d 799 (1967). However, is a due-on-sale clause a restraint on alien ation? While some authority may be found supporting the proposition such clauses are a restraint, e.g., Consol. Capital Properties v. Nat. Bank, 420 So. 2d 618, 621 (Fla. Dist. Ct. App. 1982), the better view and reasoning, as expressed in Occidental Sav. & Loan Assn. v. Venco Partnership, 206 Neb. 469, 293 N.W.2d 843 (1980), is that due-on-sale clauses do not constitute a restraint on alienation. While lengthy, it is appropriate to set forth in some detail the Nebraska Supreme Court’s opinion in Occidental to demonstrate the rationale of holding due-on-sale clauses are not restraints on alienation. The Nebraska Supreme Court, in Occidental, stated in part:
“Most of the cases which have considered this issue have started their analysis by concluding without much discussion that the ‘due-on-sale’ clause is a restraint on alienation. They have then either upheld the clause or struck it down depending on whether they thought that, under the particular facts, the restraint was reasonable. Likewise, appellants herein urge this court to find that the ‘due on sale’ clause is an uni'easonable restraint on alienation, absent the mortgagee pleading and proving that the security is impaired; while the appellees urge us to find that the clause is a reasonable restraint on alienation. We believe that the error committed by most jurisdictions in deciding this matter is their willingness to assume that a ‘due on sale’ clause is a restraint on alienation and that the only issue is reasonableness. In our view, the ‘due on sale’ clause is not a restraint on alienation as that concept is legally defined.
“Both parties seem to concede that the language in the questioned clause is not, in a technical sense, a direct restraint on alienation but appellants maintain that the clause has the pi'actical effect of a restraint on alienation and, therefore, should be struck down unless necessary to protect the lender’s security.
“An examination of the law pertaining to restraints on alienation makes it clear that a ‘due on sale’ clause is not a restraint on alienation and cannot be so considered for any purpose, theoretical or practical.
“The Restatement of Property § 404 (1944) defines a restraint on alienation as follows:
“ ‘(1) A restraint on alienation, as that phrase is used in this Restatement, is an attempt by an otherwise effective conveyance or contract to cause a later conveyance
(a) to be void; or
(b) to impose contractual liability on the one who makes the later conveyance when such liability results from a breach of an agreement not to convey; or
(c) to terminate or subject to termination all or a part of the property interest conveyed.
“ ‘(2) If a restraint on alienation is of the type described in Subsection (1), Clause (a), it is a disabling restraint.
“ ‘(3) If a restraint on alienation is of the type described in Subsection (1), Clause (b), it is a promissory restraint.
“ ‘(4) If a restraint on alienation is of the type described in Subsection (1), Clause (c), it is a forfeiture restraint.’
“One need simply read the various subparts of § 404 to conclude that a ‘due on sale’ clause does not, in any manner, bring about any of the effects noted there and cannot, therefore, be a direct restraint on alienation.
“The questioned clause in no manner precludes the owner-mortgagor from conveying his property. The owner is free to convey without legal restraint and the conveyance does not cause a forfeiture of the title, but only an acceleration of the debt.
“It is true that the possibility of acceleration may impede the ability of an owner to sell his property as he wishes; nonetheless, not every impediment to a sale is a restraint on alienation, let alone contrary to public policy. It is a fact that zoning restrictions, building restrictions, or public improvements may impede the sale and substantially affect the ability of an owner to realize a maximum price. Yet no one suggests that such restrictions or "covenants, as a class, are invalid simply because they affect the ease with which one may dispose of one’s property. We are somewhat at a loss to understand how or why so many courts have been willing to describe a ‘due on sale’ clause as a restraint on alienation and we are unwilling to do so. Therefore, we begin our analysis by holding that ‘due on sale’ clauses are not direct restraints on alienation within the meaning of the law.
“Appellants next argue that, if a ‘due on sale’ clause is not a direct restraint on alienation and, therefore, void, it is, at least, an unreasonable indirect restraint on alienation which should be declared invalid and unenforceable as a matter of public policy unless a mortgagee pleads and proves that his security is in jeopardy. That argument may be due, in part, to some overly broad language in our decision in Cast v. National Bank of Commerce T. & S. Assn., 186 Neb. 385, 391, 183 N.W.2d 485, 490 (1971), wherein we said:
“ ‘A majority of this court, including the writer, has come to the conclusion that the law is the same on direct and indirect restraints on alienation. The authorities are not in accord on the question. While much has been written on the subject, we adopt the following as a proper statement of the law: “As used in this treatise, the expression ‘restraint on alienation’ refers not merely to the restriction of the legal power of alienation, but also to the restriction of alienability as a practical matter. Any provision in a deed, will, contract, or other legal instrument which, if valid, would tend to impair the marketability of property, is a restraint on alienation.’ ” Simes and Smith,-The Law of Future Interests (2d Ed.), § 1111, p. 4. ‘In brief, the law is concerned primarily with practical alienability, not with a theoretical power of alienation.’ Simes and Smith, The Law of Future Interests (2d Ed.), § 1115, p. 8.
“Whatever an indirect restraint on alienation as envisioned by us in Cast may be, a ‘due on sale’ clause in a mortgage does not fall within that category. We perhaps were overly generous in our statement in Cast that ‘[a]ny provision . . . which, if valid, would tend to impair the marketability of property, is a restraint on alienation.’ Id. (Emphasis supplied.) As we have already observed with regard to zoning restrictions and building restrictions, some covenants may impair the marketability of property and yet not be restraints on alienation, direct or indirect, as that concept is known in the law. As an example, a covenant in a deed that requires the dedication of property solely to residential purposes is not a restraint on alienation even if the owner could sell the property at a higher price for commercial purposes. The most that need be said about Cast is that the restriction in question affected the validity of title and totally precluded the fee title owner from transferring title for a period of 25 years. There is no similarity between the language of the will in the Cast case and a common ‘due on sale’ clause in a mortgage.
“The difficulty in attempting to determine the validity of a contract based upon some notion of an indirect restraint on alienation and a concept of ‘practical inalienability’ is that there is no framework within which a court may operate. Parties to a contract can never know, absent litigation, whether the contract is valid or not. Such a result is undesirable and should be avoided if possible.” 206 Neb. at 471-75.
Continuing:
“The restraint, if any, in this case does not attach itself to the title and the con veyance thereof but rather to the mortgage and the assumption thereof. The lender never promised the seller that another could assume the mortgage; as a matter of fact, it told the seller the contrary. Should we, therefore, ignore the plain terms of the contract and look for some hidden intention, unsupported by evidence?” 206 Neb. 478-79. (Emphasis supplied.)
Concluding (after a discussion of a public policy argument):
“We are cited to no authority, nor are we able to find any, which would legally justify declaring a contract provision such as the one in the instant case, generally referred to as a ‘due on sale’ clause, to be contrary to public policy and void. Generally, a ‘due on sale’ clause contained in a mortgage contract is not contrary to the public policy of this jurisdiction and is, therefore, valid and enforceable.” 206 Neb. 481.
In summary, the Nebraska Supreme Court held in Occidental that due-on-sale contracts are neither direct nor indirect restraints on alienation and are not generally contrary to public policy.
Occidental has found increasing favor with American courts. In Society for Sav. v. Bragg, 38 Conn. Supp. 8, 444 A.2d 919 (1981), the Superior Court of Connecticut in rejecting the argument due-on-sale clauses were restraints on alienation, commented:
“Some jurisdictions, in addressing the issue of the validity of a due-on-sale clause, have held that it is a restraint on alienation. See, e.g., Tucker v. Pulaski Federal Savings & Loan Assn., 252 Ark. 849, 853-58, 481 S.W.2d 725 (1972); Malouff v. Midland Federal Savings & Loan Assn., 181 Colo. 294, 301, 509 P.2d 1240 (1973); People’s Savings Assn. v. Standard Industries, Inc., 22 Ohio App. 2d 35, 37, 257 N.E.2d 406 (1970); Continental Federal Savings & Loan Assn. v. Fetter, 564 P.2d 1013 (Okl. 1977). This court disagrees. It finds that such unfavorable holdings rest on an insufficient analysis of this issue. It approves of the following recent statement by the Supreme Court of Nebraska: ‘We believe that the error committed by most jurisdictions in deciding this matter is their willingness to assume that a “due on sale” clause is a restraint on alienation and that the only issue is reasonableness. In our view, the “due on sale” clause is not a restraint on alienation as that concept is legally defined.’ Occidental Savings & Loan Assn. v. Venco Partnership, 206 Neb. 469, 471, 293 N.W.2d 843 (1980).” 38 Conn. Supp. at _, 444 A.2d at 924.
The Connecticut court, like the Nebraska Supreme Court, held due-on-sale clauses did not fall within the general definition of a restraint of alienation as that concept is presented in Restatement of Property § 404 (1944).
In Williams v. First Fed. Sav. & Loan Ass’n, Etc., 651 F.2d 910, 923, n. 29 (4th Cir. 1981), the Fourth Circuit Court of Appeals followed Occidental. The federal intermediate appellate court observed due-on-sale clauses could not be viewed in isolation. Such clauses are but one piece in the larger puzzle of real estate financing. 651 F.2d at 924. In Williams the Fourth Circuit noted succinctly, “[LJenders have legal rights, too. If they have complied with all requirements of the law, they are entitled to enforce their due-on-sale clauses, for they are simply not restraints on alienation.” 651 F.2d at 926. (Emphasis supplied.)
We conclude due-on-sale clauses such as that before us are neither direct nor indirect restraints on alienation of property. Therefore, strict construction against the lender is not required on defendants’ assertion that such are restraints on alienation of property.
Finally, defendants contend the trial court erred in- finding the transactions herein constituted a sale, conveyance or alienation within the meaning of the due-on-sale clause.
The trial court found the two designated “purchase agreements,” first between Glenwood Manor, Inc., and the Partnership and then between the Partnership and Lederman (with Meadow Hills West Associates Ltd., of Colorado acting as a go-between), to be, in fact, installment land sales contracts. Defendants, basically, do not challenge this finding. Under the December 23, 1980, agreement between Glenwood Manor, Inc., and the Partnership, the latter obtained immediate possession of the hotel, acquired the sole right to manage and operate the business, acquired the right to receive all rents from the business operations, obtained ownership to all equipment, fixtures, and furnishings, and acquired all outstanding contracts and leasing agreements possessed by Glenwood Manor. The consideration Glenwood Manor, Inc., received from the Partnership was $1,000,000 in cash paid on February 23, 1981, and, on the same date, the Partnership delivered to Glenwood Manor, Inc., a promissory note for $1,500,000. Additionally, the Partnership agreed to pay $1,300,000.00 to Glenwood Manor, Inc., on June 10, 1988, at which time Glenwood Manor, Inc., would convey a warranty deed to the Partnership. Finally, under the Glenwood Manor-Partnership agreement, the Partnership was obligated to make the monthly mortgage payments Glenwood Manor, Inc., had to pay to Capitol Federal under the 1973 mortgage. The rights the Partnership had obtained from Glenwood Manor, Inc., were subsequently acquired by Lederman on December 24, 1981. Lederman then caused to be filed in the Register of Deeds Office in Johnson County, Kansas, an affidavit of equitable interest in the property Capitol Federal had a mortgage upon. There seems to be no dispute between the parties that at the end of all these transactions Lederman possessed an equitable interest in the realty but Glenwood Manor was still the registered title owner. The question which confronted the trial court and now challenges this Court is whether, under such circumstances, there had been a sale, conveyance or alienation of the mortgaged real estate so as to trigger the due-on-sale clause?
In Morris v. Matthews, 263 Ark. 298, 564 S.W.2d 509 (1978), the crucial word in the acceleration clause was “sell” and the question for the Arkansas Supreme Court was whether a conditional contract of sale triggered the clause. The Arkansas Supreme Court held the conditional contract for sale did invoke the clause. 263 Ark. at 299.
In Bakker v. Empire Sav., Bldg. & Loan Ass'n, 634 P.2d 1021 (Colo. App. 1981), the Colorado Court of Appeals considered two acceleration clauses. The first clause was triggered upon the “sale or transfer of the real property” while the second was operable when the property was “conveyed.” 634 P.2d at 1022. Bakker involved an installment land sales contract, like here, and the intermediate Colorado appellate court held under either, the due-on-sale provision had been triggered. Rustic Hills v. Columbia Sav. & L. Ass’n, 661 P.2d 254 (Colo. 1983), found the Colorado Supreme Court faced with a contention an installment land contract did not trigger a due-on-sale clause which provided it was invoked upon the “sale or transfer of the real property.” In rejecting this argument the Colorado court compared and contrasted installment contracts with outright sales.
“Installment sales and outright sales differ in form and in the time they take to complete, but their substance is the same for purposes of a due-on-sale clause in a deed of trust. In the case of an installment land contract, both possession and equitable title are in the purchaser, with the seller retaining bare legal title, thus posing the same threats to the lender’s economic interests as are posed by an outright sale. See Carpenter v. Winn, 39 Colo. App. 238, 566 P.2d 370 (1977); Mutual Federal Savings & Loan Association v. Wisconsin Wire Works, 58 Wis. 2d 99, 205 N.W.2d 762 (1973) (‘In view of common and technical usage of the term “convey” and the purpose of the “due-on-sale clause” of the mortgage and note, there is no ambiguity. The land contract was a conveyance that gave the purchaser an equitable title to the property as well as the immediate right to possession’). Williams v. First Federal Savings & Loan Association, 651 F.2d 910 (4th Cir. 1981). See also Dunn & Nowinski, Enforcement of Due-on-Transfer Clauses: An Update, 16 Real Prop., Prob. & Tr. J. 291 (1981) (pointing out that with the exception of a Florida District Court of Appeals decision, courts have uniformly held that sale by installment land contract is a sale or transfer for purposes of the due-on-sale clause). Moreover, the purchaser under an installment contract assumes the risk of loss and receives any appreciation in value.” 661 P.2d at 256.
The New Jersey Superior Court, Chancery Division, in Century Fed. Sav. & Loan Assn. v. Van Glahn, 144 N.J. Super. 48, 364 A.2d 558 (1976), was faced with a due-on-sale clause which spoke of “change in ownership.” The court held: (1) a contract for sale of land operated as an equitable conversion; (2) “convey” applied to any transfer of title to the mortgaged property, whether such transfer be legal or equitable; and (3) the fact the mortgagor still held legal title to the property would not stop the invocation of the due-on-sale clause.
In January, 1982, the Virginia Supreme Court handed down two decisions involving due-on-sale clauses. In Lipps v. First American Serv. Corp., 223 Va. 131, 286 S.E.2d 215 (1982), the borrower had executed an agreement with the financial institution which contained a clause permitting acceleration if the mortgaged property was “sold or transferred.” 223 Va. at 133. Subsequently the borrower entered into an agreement with a third party which was entitled a “Land Contract for Sale of Improved Real Property - Virginia.” 223 Va. at 134. The status of the borrower in Lipps as compared to the status of Glenwood Manor, Inc., here, is similar. 223 Va. at 139. In holding the due-on-sale clause had been triggered the Virginia court said:
“Sale v. Swann, 138 Va. 198, 208, 120 S.E. 870, 873 (1924), is controlling, and there we said:
" ‘When such a contract is concluded, although it is wholly executory in form, it clothes the purchaser with an equitable estate in the land and the vendor with an equitable ownership of the purchase money. This because equity treats that as done which ought to be done by the terms of such a contract, and as the land ought to be conveyed to the vendee and the purchase money transferred to the vendor, equity regards these as done, and treats the vendee as having acquired property in the land, and the vendor as having acquired property in the price. It follows that as the vendee has thus acquired the full equitable estate, he may convey or encumber it, devise it; if he dies intestate it descends to his heirs at law; his wife is entitled to dower in it, and specific performance may be enforced against his heirs at law after death. In fact, all the incidents of a real ownership belong to it.’ Accord, Carmichael v. Snyder, 209 Va. 451, 455, 164 S.E.2d 703, 706 (1968).
“We therefore hold that Covenant 17 of the deed of trust was breached by the execution of the Land Contract by Borrowers and Purchaser on April 21, 1979.” 223 Va. at 140. (Emphasis supplied.)
The other Virginia case decided the same day as Lipps was United Va. Bank/Nat. v. Best, 223 Va. 112, 286 S.E.2d 221, cert. denied 459 U.S. 879 (1982). In United Va. Bank the same result as Lipps was achieved with regard to a contract to purchase property.
The Washington Court of Appeals in Terry v. Born, 24 Wash. App. 652, 604 P.2d 504 (1979), said although the term “conveyance” in a strict legal sense meant the transfer of legal title to land it also denoted any transfer of title, legal or equitable. 24 Wash. App. at 654. The Terry court relied upon the Wisconsin Supreme Court’s opinion in Mutual Fed. S. & L. Asso. v. Wisconsin Wire Wks., 58 Wis. 2d 99, 205 N.W.2d 762 (1973), 69 A.L.R.3d 702, (Wisconsin Wire I) for its decision conveyance meant the legal or equitable transfer of property. In Wisconsin Wire I the Wisconsin court dealt with an acceleration clause which was triggered upon “a conveyance or other transfer.” 58 Wis. 2d at 102. The mortgagor executed a land contract to sell with a third party. Neither the mortgagor nor the third-party advised the plaintiff-mortgagee about the contract. The land contract was recorded with a county register of deeds office and subsequently, when the plaintiff learned of the transaction it invoked the acceleration clause of the mortgage and declared the loan to Wisconsin Wire Works to be due and payable. Mutual Federal Savings & Loan brought a foreclosure action which was dismissed by the Wisconsin lower court. The savings and loan association appealed and the Wisconsin Supreme Court reversed the lower court. In so doing the Wisconsin high court said:
“One definition of ‘convey’ appears in Webster’s, Third International Dictionary (1965): ‘To transfer or deliver (as property) to another; specif: to transfer (as real estate) or pass (a title, as to real estate) by a sealed writing.’ The term 'convey' applies to any transfer of title to the mortgaged property whether legal or equitable. By the execution of a land contract which conferred equitable title on Megal, Wisconsin Wire Works conveyed away the mortgaged premises. The contractual term is not ambiguous. In the parlance of both laymen and lawyers, a land contract is a conveyance.
“In view of common and technical usage of the term ‘convey’ and the purpose of the ‘due on sale clause’ of the mortgage and note, there is no ambiguity. The land contract was a conveyance that gave the purchaser an equitable title to the property as well as the immediate right to possession.” 58 Wis. 2d at 105. (Emphasis supplied.)
See also Mutual Fed. S. & L. Asso. v. Wisconsin Wire Wks., 71 Wis. 2d 531, 239 N.W.2d 20 (1976) (Wisconsin Wire II).
An excellent review of the case law in this area may be found at Annot., What Transfers Justify Acceleration Under “Due-On-Sale” Clause of Real-Estate Mortgage, 22 A.L.R.4th 1266. See also Annot., Validity, Construction, and Application of Clause Entitling Mortgagee to Acceleration of Ralance Due in Case of Conveyance or Transfer of Mortgaged Property, 69 A.L.R.3d 713.
We conclude the trial court did not err in holding the transactions herein had triggered the due-on-sale clause. The transfer of equitable title to the real estate coupled with immediate right to possession thereof is clearly a conveyance under the due-on-sale clause of the mortgage.
The judgment is affirmed.
Holmes, J., not participating. | [
-76,
-20,
-11,
-20,
26,
-32,
40,
-104,
96,
-32,
-89,
87,
105,
-50,
20,
111,
-10,
45,
-43,
105,
5,
-78,
23,
-61,
-46,
-77,
-5,
-43,
-71,
93,
-12,
71,
73,
32,
-62,
23,
-58,
-126,
-57,
92,
-114,
-123,
-120,
-43,
-51,
-62,
52,
-69,
22,
78,
85,
28,
-13,
44,
-99,
98,
72,
40,
-39,
45,
-112,
-7,
-85,
13,
111,
23,
-79,
36,
-44,
35,
-8,
-114,
-112,
49,
0,
-24,
115,
-74,
-122,
52,
111,
-119,
45,
36,
98,
1,
85,
-21,
-8,
-99,
15,
-41,
-115,
-89,
-109,
88,
123,
1,
-74,
-99,
124,
19,
71,
124,
-18,
5,
25,
-19,
-113,
-17,
-42,
-111,
12,
124,
26,
-125,
-1,
-127,
-96,
112,
-51,
-96,
95,
-9,
120,
-69,
-114,
-67
] |
The opinion of the court was delivered by
Herd, J.:
This is a landowners’ appeal from the award in a condemnation action. Appellants were owners of a 1.38 acre tract of commercially zoned highway frontage property located in the City of Tonganoxie. For sixteen years prior to the condemnation, appellants operated a part of the liquid propane business on the property. A storage tank cradled on concrete piers was located there. The piers were four feet high and were buried approximately six feet beneath the surface of the ground. They were constructed of steel and concrete. Related equipment consisting of an electric motor, pump and various valves to load and unload propane was welded in place and attached to a concrete foundation and to an electric conduit on the site. The tank and related equipment, weighing approximately twelve to fourteen tons, were removed from the site after this litigation began.
In 1979, Unified School District No. 464 condemned a tract of land belonging to Alvin Shilling for school expansion. The Shilling land surrounds the Porter land taken in this proceeding. After the expansion onto the Shilling land by the school district, the Porter land was considered unsafe because of its proximity to the school and use as a propane facility. Condemnation or purchase of the Porter land nevertheless was impossible in 1979 for lack of resources. However, in 1980, the school district’s finances were in better shape. On April 10, 1980, upon learning of the appellants’ obtaining a building permit from the City to build a $50,000 building on the property, the superintendent talked to Mrs. Porter on the phone and inquired about the possibility of purchasing the property. The Porters did not respond to the inquiry. On April 11, the school board authorized immediate condemnation of the property. The appellants were advised of the board’s action by telephone on that date. On April 14, 1980, the condemnation action was filed and notice was published on April 16. The Porters were personally served with process on April 23, 1980, after they returned from a trip to Hawaii.
In the meantime, appellants had entered into a contract with Alvin Shilling on April 4, 1980, to erect a metal building on the location. Incidentally, the building to be placed on appellants’ property was the same building Shilling had removed from the land the school district acquired from him by condemnation in 1979. Shilling started surveying the building site on April 10, and proceeded to pour cement foundation piers and assemble the building in spite of the school board’s notice.
Appellants contend they had no notice of the school district’s intentions to condemn their property until service of summons and that they were previously assured by school board member Bill New the school district had no such intentions.
On May 2,1980, the court approved the condemnation petition and appointed appraisers, at which time the construction on the building was halted. Following the appointment of appraisers, the appellee filed a motion asking the court to instruct the appraisers to omit the partially completed building, tank, pump and equipment from appraisal. After a hearing the court sustained the motion. Appellants then filed a petition for a writ of mandamus with this court concerning the same issue. The petition was denied without a hearing on August 13, 1980.
In the meantime, the appraisers filed their report and the award was paid into the clerk of the court on August 4, 1980. Appellants appealed from the award. See K.S.A. 26-508.
Thereafter, appellee filed a motion to compel removal of the building, tank, pump and accessories from the site, which was resisted by appellants on the grounds it jeopardized their right to a trial de novo on the issues of valuation of the building and tank; would impose noncompensable costs on appellants; and there existed no compelling need for the removal of the tank and building pending the full trial of all the issues. The court ordered the tank and building removed.
In response to appellee’s motion in limine, the trial court again excluded all evidence at trial pertaining to the partially completed building, propane tank and related equipment in determining the value of the taking.
At trial, the parties stipulated the value of the remaining real estate to be $27,150 and the court entered judgment for that amount in favor of appellants. Appellants appeal the stipulated award under a reservation of rights.
Appellants initially argue the trial court erred in granting appellee’s motion in limine to exclude evidence of the value of the partially completed building and propane tank and equipment.
In sustaining the motion, the trial court stated: “The decision to grant this . . . motion in limine is based upon both the doctrine of res judicata as well as a review of the facts . . . .”
Although there were decisions prior to trial involving the same facts by both the trial court and this court, the doctrine of res judicata is inapplicable. In the instant case, as in all eminent domain proceedings, the appraisers were directed to appraise appellants’ condemned property. The trial court heard numerous motions pertaining to the exclusion of evidence of the value of the metal building and propane tank. Appellants persuaded the court to include the concrete foundation piers which support the propane tank in the appraisal, but all else was excluded. It was after these decisions appellants appealed to the trial court, pursuant to K.S.A. 26-508. This statute provides:
“If the plaintiff ... is dissatisfied with the award of the appraisers, he may . . . after the filing of the appraisers’ report, appeal from the award .... An appeal by the plaintiff . . . shall bring the issue of damages to all interests in the tract before the court for trial de novo.”
Court rulings, prior to an appeal which provides a trial de novo, are not res judicata to the reconsideration of the issues at the de novo trial. Res judicata is applicable only when a case has been finally decided on the merits. See Dennis v. Southeastern Kansas Gas Co., 227 Kan. 872, 878, 610 P.2d 627 (1980).
The appellants also sought a writ of mandamus from this court prior to their appeal to the district court. The appellants urged this court to order the trial judge to include the partially completed building and storage tank in its instructions to the appraisers. This court issued a ruling stating the writ was “considered and denied.” Appellee argues this was a full adjudication of the issues on the merits. We have previously held: “Mandamus will be invoked only when an order of the trial court denies a litigant a right or privilege which exists as a matter of law and there is no remedy by appeal.” Nunn v. Morrison, 227 Kan. 730, Syl. ¶ 1, 608 P.2d 1359 (1980). Mandamus is an extraordinary remedy unavailable if there is an ordinary remedy. An appeal was available to the appellants in this case pursuant to K.S.A. 26-508. The denial of the writ was therefore based upon mandamus being an inappropriate remedy rather than upon the merits of the case. The doctrine of res judicata does not apply to this issue.
Appellants argue the motion in limine in this case was an improper use of the motion because the evidence excluded is not the type which is legally contemplated to be covered by a motion in limine.
We have recognized a motion in limine as a proper method of excluding evidence not at issue in a trial. See State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979), and Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 563 P.2d 467 (1977). Generally, the motion is seen as a manner by which to exclude inflammatory, prejudicial, immaterial and irrelevant evidence which if inquired about at trial, despite an objection, would so prejudice the side objecting as to preclude a fair trial. See 20 Am. Jur. Trials, pp. 447-49.
The trial court, prior to appraisal, had determined the building and storage tank were not attached to the realty and thus should not be included in the appraisal. The evidence is therefore irrelevant and immaterial to the value of the real estate, the issue at trial.
Additionally, we have long recognized a trial court has broad discretion in determining what evidence will be allowed in an eminent domain proceeding:
“ ‘It has been said that a condemnation trial is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner, and that the trial of such a proceeding is essentially an informational .inquisition in which the boundaries of the inquiry must be liberally intrusted to the sound discretion of the trial judge.’ ’’ City of Manhattan v. Kent, 228 Kan. 513, 519-20, 618 P.2d 1180 (1980), quoting 30 C.J.S., Eminent Domain § 286, p. 44.
An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court. See Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981). Under the trial court’s broad discretion and power to exclude or admit evidence, we hold the sustaining of the motion in limine was not an abuse of discretion.
Appellant next argues the trial court erred in instructing the appraisers not to appraise the propane tank and equipment. This issue is a question of fact. In Addis v. Bernardin, Inc., 226 Kan. 241, Syl. ¶ 2, 597 P.2d 250 (1979), we held:
“It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact and our only concern is with evidence which supports the trial court’s findings, and not with evidence which might have supported contrary findings.”
We are, therefore, limited on appeal to determining if there is evidence to support the findings of the trial court. The trial court ruled the storage tank and its accessories are personal property and properly irrelevant in determining the value of the condemned property. Appellants argue it was the intention of the landowners that the tank be a permanent fixture. Appellants cite cases from other jurisdictions holding gasoline tanks to be a part of the real estate. They are distinguishable, however, because there the storage tanks were buried underground and this not easily removed. Here the tank is above ground, unattached to the soil and easily moved.
We held in determining whether personal property had become a fixture and hence a part of the real estate:
“The tests to be applied in determining whether or not personal property becomes a fixture are: (1) Annexation to the realty; (2) adaption to the use of that part of the realty with which it is connected; (3) the intention of the party making the annexation to make the article a permanent annexation to the freehold.” Water Co. v. Irrigation Co., 64 Kan. 247, 252-53, 67 Pac. 462 (1902).
See also Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977). The tank and equipment do not meet this test and thus are not fixtures to be considered in the eminent domain award as part of the real estate.
Appellants persist, however, citing authority for the proposition that machinery attached to a building must be considered a part of the real estate. See Jackson v. State of New York, 213 N.Y. 34, 36, 106 N.E. 758 (1914), where it was stated: “Severed from the building, such machinery commands only the prices of second-hand articles; attached to a going plant, it may produce an enhancement of value as great as it did when new.” This case is also easily distinguishable. There the machinery was a part of the manufacturing plant system specially adapted to the particular process and in a sense attached to the realty. Here, the tank had none of those characteristics and is as usable at another location as on the land in question.
The trial court in this case, after considering diagrams, pictures, and testimony, determined the storage tank was not a fixture, despite appellants’ insistence that it was intended to be permanent. The tank was not buried in the ground and was easily movable. We find ample evidence to support the trial court’s finding.
Appellants next argue the court erred in holding the partially completed prefabricated metal building also to be personal property and thus not subject to condemnation. In 4 Nichols on Eminent Domain § 13.14 (3rd ed. rev. 1981), it is stated:
“When, however, a building is erected upon or moved to land which the owner knows is to be taken by eminent domain, with the sole purpose of enhancing the damages, and not in the natural, ordinary and legitimate use of such property, the building remains personal property and should not be considered in determining the value of the real estate. Where the owner so acts in bad faith, the intention of a permanent affixation is, of course, lacking.” pp. 13-79-80.
The appellants argue the intent of the landowner in constructing a building is irrelevant in Kansas. In support of this the appellants cite Briggs v. Comm’rs of Labette Co., 39 Kan. 90, 91-92, 17 Pac. 331 (1888), which states:
“It appears from the record that a certain cattle shed and corral had been erected by the plaintiffs, and that a short time thereafter steps were taken to have this road laid out. The evidence shows that the shed was completed about January, 1884, and the petition for the road was filed April 11, 1884. This shed and corral were located directly across the line on which this road was afterward laid out, the shed being 280 feet long and standing immediately on the line .... Evidence was also given to show that the shed and corral were erected by the plaintiffs at that particular point for the purpose of preventing a public road from being located on that section line and across that land . . . .”
Briggs is distinguishable from the instant case in two ways. Initially, the building in that case was completed in January, while the condemnation petition was filed in April. In the instant case construction of the building began at the same time the petition was filed. The building itself was never completed. Additionally, the landowner in Briggs sought to prevent the road from being built; here the landowners intended to enhance their damages, not prevent a taking. The holding in Briggs that the mere rumor of condemnation proceedings is not sufficient to stop a landowner from building is still valid.
The issue, then, is whether the appellants’ construction of the building was accomplished without prior knowledge of the condemnation proceedings.
To determine whether a building was constructed solely to enhance a landowner’s award, the courts have used a good faith standard. If a landowner erects a building on land which he knows is to be taken by eminent domain, he has acted in bad faith and the value of such building should not be considered in determining the value of the taking. If, however, a landowner constructs a building on land which “lies in the path of one of the many public improvements which are so often discussed and projected without being actually consummated for many years (if at all),” the owner has not acted in bad faith. 4 Nichols on Eminent Domain § 13.14, p. 13-76 (3rd ed. rev. 1981).
In the instant case, to determine whether the appellants acted in good faith, as they claim, this court must look to the facts. Both parties agree the superintendent of schools called Mrs. Porter on April 10, 1980. The parties disagree as to whether the superintendent told Mrs. Porter of the condemnation action during the April 10 phone call. The condemnation action was filed April 14, 1980. Up until that time only $60 worth of work had been completed on constructing the building. This consisted solely of surveying and staking the property. Public notice of the action appeared in the newspaper on April 16, 1980. On April 23, the appellants were personally served with process. On May 2, 1980, the court approved the condemnation. On May 7, the construction was stopped. The date of taking, as determined by the date appellee paid appellant for the property, was August 4, 1980.
The trial court ruled the partially completed building should not be considered in the landowners’ award because the owner had knowledge of the condemnation and acted in bad faith in continuing construction after gaining that knowledge. “[T]he function of this court on appeal is to determine whether the findings [of the trial court] are supported by substantial competent evidence . . . .” City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976). The facts, discussed above, indicate the landowner could have been found to have knowledge of the action as early as April 11, 1980. The latest possible date would have been April 23, 1980, when they received personal service. Regardless, construction was not halted until May 7,1980, two weeks after personal service of the action. This insistence on allowing construction, long after the condemnation action was at the stage of being merely discussed and projected, confirms the trial court had substantial competent evidence to hold the landowners acted in bad faith in constructing the building. We hold the trial court did not err in refusing to include the building’s value as part of the appraisers’ award.
The judgment of the trial court is affirmed. | [
-43,
108,
-48,
12,
10,
98,
120,
-97,
65,
-85,
100,
87,
45,
-40,
28,
107,
115,
61,
68,
-8,
-41,
-78,
67,
-46,
-105,
-13,
-13,
-35,
59,
92,
100,
-41,
72,
65,
-54,
-43,
-122,
-118,
103,
-36,
-50,
5,
-117,
-18,
-39,
64,
62,
99,
50,
78,
17,
14,
-13,
36,
28,
-61,
72,
46,
-5,
45,
73,
-15,
58,
15,
127,
6,
-127,
34,
-34,
-57,
-24,
10,
-104,
49,
16,
-24,
119,
38,
-122,
-28,
7,
-119,
-120,
-84,
-18,
27,
61,
-25,
-24,
-120,
15,
-34,
-83,
-90,
-96,
25,
34,
97,
-99,
31,
112,
19,
-123,
126,
-26,
-123,
95,
125,
3,
-114,
-64,
-77,
79,
56,
-104,
15,
-21,
-125,
50,
112,
-51,
-94,
92,
70,
51,
-33,
-122,
-72
] |
The opinion of the court was delivered
Per Curiam:
This is a direct appeal by the defendant, Bradley R. Boan, from convictions by a jury in two consolidated criminal cases. Case number 81 CR 1322 involved homicides which occurred at the Kansas University Medical Center on March 20, 1981. This will be referred to in the opinion as the KU incident. On that date defendant Boan drove to the KU Medical Center in his 1971 Chevrolet Malibu. In the vehicle he had a shotgun with shells. He parked in front of the hospital emergency room, got out of the car, walked around the car, took the shotgun out and proceeded to load it, standing next to the car. He then walked into the emergency room, saying nothing. He saw a number of medical personnel standing in the hallway and fired the shotgun in their direction, killing a doctor. When a woman, who was there as a visitor, screamed, he turned the shotgun toward her and killed her. A police officer in uniform then drew Boan’s attention, and Boan fired once at him. Boan then left the emergency room, put the shotgun in his car, and drove off. The police department responded to the initial call. The Kansas Bureau of Investigation conducted a very extensive nine-month investigation. Shotgun shells found at various locations at the medical center were processed and retained by the KBI laboratory in Topeka. As a result of this incident, the defendant was charged and convicted of two counts of murder in the first degree (K.S.A. 21-3401) and one count of aggravated assault on a law enforcement officer (K.S.A. 21-3411).
In case No. 81 CR 1277, defendant was charged with aggravated assault on a law enforcement officer (K.S.A. 21-3411) and aggravated assault (K.S.A. 21-3410) on a Baptist minister. The evidence showed that on the morning of December 9, 1981, defendant Boan drove his 1971 Chevrolet Malibu to the Baptist church at 55th and Klamm Road in Wyandotte County. He parked the car, got out of the car, removed a shotgun and loaded it as he stood beside the car. He then walked into the rectory looking for the Baptist minister, carrying the shotgun with him. The minister and his two assistants, on seeing Boan coming with the shotgun, barricaded themselves in the office. They called the police. As Boan was leaving the rectory a police officer drove up. He was in uniform and in a marked police car. Upon seeing him, Boan aimed the shotgun at the police officer, causing the police officer to duck for cover. Boan then jumped into his car and drove to his parent’s home several blocks away. The police officer pursued him, and when they arrived at the home, Boan got out of his car, aimed the shotgun at the officer, and walked toward him. Boan then ran into the home. After a period of time, during which the police used tear gas, Boan was apprehended. KBI agents at the scene took possession of the shotgun and a number of shotgun shells both from the inside of the home and from the interior of Boan’s car. In the opinion, we will refer to this case as the church incident.
The shotgun and the shells were later examined at the KBI laboratory in Topeka. It was found that the strikings on the shotgun shells found at the KU Medical Center following the KU incident matched with the shotgun. The shells taken from the house and car also matched the shell casings that were recovered at the medical center.
Following the defendant’s apprehension on December 9, 1981, statements were taken from defendant by a detective from the Kansas City, Kansas, police department and also by a special agent with the KBI. In those statements, Boan admitted that he was the individual involved in both the KU incident and the church incident. He admitted that he had used the shotgun in both crimes. At the trial, the evidence was undisputed that the defendant was the person involved in both the KU incident and the church incident. The only defense presented in both cases was that defendant was not guilty by reason of insanity. The jury rejected this defense, finding defendant guilty as charged in both cases. Defendant appealed his convictions.
At the outset, it should be stated that this case was prosecuted and defended by two able trial lawyers who represented each side in a highly professional manner. The case was a difficult one, because the evidence was undisputed that defendant was suffering from chronic paranoid schizophrenia, a severe mental illness for which defendant had been treated for several years prior to the two incidents involved here. The defendant raises twenty points on the appeal. Many of these points involve rulings on motions filed by the defendant before the true facts were developed in the course of discoveiy.
Four of the issues raised on appeal involve the defendant’s competency to stand trial. Defendant maintains that the trial court erred in finding him competent to stand trial, in refusing additional testing as to incompetency, in refusing to submit the question of defendant’s competency to a jury, and in overruling yet another motion to determine defendant’s competency. The record discloses that, not long after defendant was charged, he was referred by the court to Larned State Hospital for examination as to his competency to stand trial. On February 9, 1982, Dr. G. W. Getz of that hospital reported to the court that defendant was not competent to stand trial. On the basis of that report, the district court ordered that defendant be committed to Larned State Hospital for further evaluation and treatment. He remained there for a period of time during which he was given medication for his mental problems. On April 26, 1982, Dr. Getz advised the court by letter that defendant was now competent to stand trial and assist in his defense. Defendant then filed motions for additional testing and to impanel a jury to help determine competency. The district court denied defendant’s motions and found defendant competent to stand trial but appointed a physician to monitor and treat the defendant while he was in jail. From the entire record, we have concluded that no abuse of discretion has been shown in the determination of the trial court that defendant was competent to stand trial; nor was there abuse of discretion in denying defendant’s other motions. K.S.A. 22-3301, 22-3302, and 22-3303 are the applicable statutes which set forth the procedure for determining competency. The 1982 amendment to K.S.A. 22-3302 is not applicable because this case arose prior to the effective date of that amendment. This court interpreted the statutory procedure to be followed in State v. Costa, 228 Kan. 308, 613 P.2d 1359 (1980). In Costa, it was noted that under K.S.A. 22-3302(3), a trial court has several options available to assist the court in making a determination of competency, including the impaneling of a six-person jury. A district court is not required to use a jury. In this case defendant presented no evidence to the trial court to show that his counsel was unable to prepare a defense to the charges or that defendant did not understand the nature and purpose of the proceedings against him or was unable to assist in making his defense. Under all the circumstances shown in the record, we find no abuse of discretion or error in the rulings of the trial court involving defendant’s competency to stand trial.
The defendant’s next point is that the trial court erred in refusing to suppress defendant’s statements made to law enforcement officers after his arrest on December 9, 1981. Defendant filed a motion to suppress pursuant to K.S.A. 22-3215. At that time, counsel for defendant had not as yet determined that the defense in the case would be that of insanity. Simply stated, defense counsel contends that any possible statement taken from defendant Boan on December 9, 1981, the date of the church incident, should be held to be involuntary because of defendant’s mental status at the time the statements were taken. This argument is based upon the fact that the medical authorities at Larned State Hospital had concluded in their letter report to the court that defendant was incompetent to stand trial and was legally insane at the time of the church incident. Counsel for defendant argues that, under those circumstances, defendant could not be competent so as to be able to waive his Miranda rights and understand the significance thereof. At the Jackson v. Denno hearing on the motion to suppress, the evidence was undisputed that defendant was properly advised of his Miranda rights, that no threats or promises were made to him, that defendant was sober and cooperative, and that defendant read aloud a form advising him of his rights and stated that he understood his rights. There was no evidence of pressure or coercion of any kind. The defendant then gave detailed statements to the police officers admitting his involvement in the church incident and to a KBI agent concerning his actions at the KU medical center.
In determining defendant’s motion to suppress at the conclusion of the Jackson v. Denno hearing, the trial court, on the basis of the totality of circumstances, including the evaluation reports from Larned State Hospital, found that the statements were given voluntarily, were not the result of pressure and coercion, and were admissible into evidence.
The question as to the effect of mental illness on the voluntariness of a confession has been before this court on several occasions. In State v. Pyle, 216 Kan. 423, 440, 532 P.2d 1309 (1975), it was held that the test for determining whether a suspect has the mental capacity to make a voluntary confession is the same as the test for determining his criminal responsibility for committing the crime. In absence of insanity meeting the M’Naghten test, the mental condition of a defendant at the time he makes a statement is relevant to the issue of voluntariness but is not necessarily conclusive; its weight is for the trier of fact. A trial court’s finding, after a Jackson v. Denno hearing, that the defendant was sane and made his confessions knowingly and voluntarily is binding on appellate review if supported by substantial competent evidence. More recent cases in accord with this position are State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977); State v. Buckner, 221 Kan. 117, 120, 558 P.2d 1102 (1976); State v. Wright, 219 Kan. 808, 549 P.2d 958 (1976).
In this case, the first report from Larned State Hospital dated February 9, 1982, stated that it is probable that defendant was aware of the nature and seriousness of his behavior on March 20 and December 9, 1981. In the written statement and also in the tape recording of the interview with Boan, the defendant described in great detail the events surrounding both the KU incident and the church incident. Under all the circumstances, we cannot say that the trial court’s order finding the statements were voluntary and admitting them into evidence was not supported by substantial competent evidence. In any event, other evidence of defendant’s participation in the two incidents was overwhelming, and the failure to suppress the confessions would, at most, constitute harmless error. At the time of the trial, defense counsel introduced into evidence the tape recording of defendant’s confession to the KBI agent for the purpose of showing that the defendant was irrational and insane at the time. Under all the circumstances, we find that the failure of the trial court to suppress the defendant’s statements was not error.
Defendant raises several issues involving extensive media publicity about the case which the defense maintains was prejudicial and denied defendant a fair trial. Following the preliminary hearing, defendant sought dismissal of the case because of prejudicial publicity resulting from the reading of defendant’s confessions at the preliminary hearing. The defendant argues that the court should have closed the preliminary hearing from the public because of these confessions. We find no error in the failure of the court either to close the preliminary hearing or in overruling defendant’s motion to dismiss. In Kansas City Star Co. v. Fossey, 230 Kan. 240, 630 P.2d 1176 (1981), this court held that a trial court may close a preliminary hearing and seal the record only if: (1) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means. The record shows that the preliminary hearing was held on June 22 and the trial began on September 27, 1982, three months after the preliminary hearing. The time lapse would ordinarily be sufficient to dissipate any pretrial publicity arising at the preliminary hearing. Furthermore, the defendant failed to introduce evidence in support of his claim of prejudice.
Defendant also contends that the trial court erred in denying defendant’s motion for change of venue and also in refusing to appoint an investigator to determine if community prejudice existed. The record shows extensive newspaper publicity, but the defendant produced no affidavits showing community prejudice and the record does not show any unusual difficulty in selecting the jury. The prosecution passed the jury for cause after excusing one person for cause. The defense passed the jury for cause. Three jurors were excused, two for unrelated reasons, and one for having served on a jury within the past year. Defendant made no showing of necessity for the appointment of an investigator to show community prejudice. In State v. Campbell, 210 Kan. 265, 500 P.2d 21 (1972), the court stated that the granting or denial of a motion for funds to provide supporting services to an indigent defendant in a criminal action is' a matter resting within the sound discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that the exercise of such discretion has been abused to the extent of prejudicing the substantial rights of the defendant. We find no abuse of discretion. Likewise, as to the court’s denial of defendant’s motion for a change of venue, we find no abuse of discretion under the principles set forth in State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977).
The defendant complains that the trial court erred in consolidating the two criminal cases involving the KU incident and the church incident. K.S.A. 22-3203 provides that the court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment. This court in State v. Bagby, 231 Kan. 176, 177-78, 642 P.2d 993 (1982), stated:
“Joinder in the same complaint or information is proper if the crimes charged: (1) are of the same or similar character, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1)."
Within these guidelines, the decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal, absent a clear showing of abuse of the exercise of that discretion. We have no hesitancy in holding in this case that the trial court did not abuse its discretion in consolidating the two cases for trial. The evidence in the two cases was similar. The same shotgun was used. Although the victims were different, the motive was the same — the defendant acted for “security reasons.” The defendant’s modus operandi was similar. The defense to both actions was not guilty by reason of insanity. The defense in each case would have been the same regardless of whether there were separate trials. Under the circumstances, we find no error in the consolidation of the cases for trial.
Defendant next maintains that the trial court erred in admitting a prior conviction under K.S.A. 60-455. The prior conviction occurred in 1977 for attempted aggravated assault when the defendant went to the KU Medical Center with a gun and threatened a therapist for the same reason that he went there in March of 1981; he was there to take “security measures.” This evidence was clearly admissible to show identity and intent. We find no error in the court’s rulings.
Defendant raises several points of claimed error involving rulings of the court at the trial. He claims that the trial court erred in failing to sequester the jury, in admitting into evidence photographs of the victims at the KU Medical Center, in denying the defendant’s motion in limine to preclude the prosecutor from using the photographs during his argument, in failing to grant a mistrial because of prosecutorial misconduct in the prosecutor’s opening statement, in refusing to grant a mistrial due to prosecutorial misconduct in the cross-examination of defense witnesses, and in denying defendant’s motion for an expert to test the murder weapon and the ammunition. We have examined each of these points and find them to be without merit.
The final two points raised involve the defense of not guilty by reason of insanity. This was the basic issue to be determined by the jury in this case, in view of the overwhelming evidence that defendant was the person involved in both incidents. Defendant contends that the trial court erred in failing to direct a verdict in his favor at the close of the case, because the evidence was uncontradicted that defendant did not know the difference between right and wrong at the time of the commission of the acts charged. The defense called four medical witnesses and defendant’s natural mother in support of its position that the defendant was legally insane. The only medical expert called on behalf of the State was a psychiatrist who had examined Boan on August 25, 1980, at the Wyandotte County Mental Health Center. Boan was referred to the Wyandotte County Mental Health Center from the Osawatomie State Hospital on August 20, 1980. It was this expert’s opinion that at that time Boan suffered from an explosive personality disorder with chronic social malfunctions. This doctor never examined defendant concerning the incidents of March 20, 1981, and December 9, 1981. He had no professional opinion as to defendant’s insanity at the time those incidents occurred.
Defendant called as medical experts, Dr. William Walter Menninger of the Menninger Foundation in Topeka; Dr. Charles Befort, a psychologist from Larned State Hospital; Dr. Ratnam Polavarapu, a psychiatrist from Larned State Hospital;, and Dr. Rae Sedgwick, a clinical psychologist from Bonner Springs. A number of lay witnesses testified that Boan was deranged, that he had delusions and distorted reality. The Baptist minister who was assaulted in the church incident had had several previous conversations with Boan. He testified that he had the impression that Boan was a very sick person. The evidence was thus undisputed that defendant had a severe mental illness. Dr. Menninger, in describing Boan’s mental illness, testified that Boan had mental aberrations such as a hearing of voices and a preoccupation with certain ideas and concerns that are quite real for him but which to others do not make sense. In his opinion, Boan had a feeling of being God or a representative of God, who was present at the Last Supper, who had been in this world at various times, who had at various times been threatened or attacked by others who had not given him credit for his rightful position. In his judgment, Boan felt that he was being threatened, which prompted the violent behavior in these cases for “security reasons.” In Boan’s mind, his actions were totally justified. Boan had a mental illness which Dr. Menninger diagnosed as paranoid schizophrenia. Dr. Menninger testified that Boan sensed that other persons were in his body and displaced him, and that some of these people were at the KU Medical Center. Boan felt that he could not tolerate this and had to defend himself from what he described as “salvation level attacks.” As to the church incident, it was Dr. Menninger’s opinion that Boan felt he rightfully deserved money and respect from the church which he was not getting. Therefore, Boan needed to eliminate this “sermon giver” (the minister) so that he could arrange for another who would respond and give Boan the money to which he was entitled.
The issue to be determined is whether the evidence presented at the trial required the district court to direct a jury verdict of not guilty by reason of insanity. The test for criminal insanity which has been adopted and followed in Kansas, is the so-called “M’Naghten Rule.” The M’Naghten rule was formulated in an advisory opinion of the English judges in M’Naghten's Case, 10 Clark & F. 200, 8 Eng. Rep. 718 (1843). That case held that the test of mental responsibility is whether the accused “was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.” It is important to note that the M’Naghten rule has two branches. The accused is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or in the alternative, (2) where he does not know right from wrong with respect to that act.
In applying the M’Naghten test to the evidence presented in this case, it is clear from the testimony of the defense experts that at the time defendant Boan committed the acts with which he is charged, he understood and knew the nature and quality of those acts. Dr. Charles Befort testified that at the time of the KU incident, Boan probably was aware of what he was doing and that his actions were intentional. Dr. Polavarapu testified that, on both occasions, the defendant knew he was shooting somebody and that death or personal injury would result therefrom. Dr. Menninger, on direct examination, testified that in both the KU incident and the church incident Boan knew what he was doing and did it quite purposefully and quite directly in terms of conveying a message to the persons present. Furthermore, in his statements given to the police, Boan described clearly and accurately the actions he took on both occasions. In view of this evidence, defendant Boan was not entitled to a directed verdict of not guilty by reason of insanity under the first branch of the M’Naghten test.
The second branch of the M’Naghten test provides that an accused may not be held criminally responsible where he does not know right from wrong with respect to his actions. This raises the question whether, under the M’Naghten test, “right and wrong” means legally or morally right and wrong. There appears to be' a disagreement among some of the jurisdictions on this issue. The judges in M’Naghten’s Case took the view that the knowledge of right and wrong involved in that test means a knowledge that the act committed was contrary to the law of the land. In response to a question, the judges stated that an act would be punishable according to the nature of the crime committed, although committed in consequence of an insane delusion, if the accused knew at the time of committing the crime that he was acting contrary to the law of the land. Later, in Regina v. Windle, [1952] 2 Q. B. 826, [1952] 2 All. E.R. 1 Crim. App., the argument that under the test the term “right and wrong” should be taken in the moral rather than in the legal sense was rejected. The syllabus of the case states as follows:
“Where, in a criminal case, the defence is set up that, owing to disease of the mind, the prisoner did not know that he was doing what was wrong, it must be proved that at the material time he did not know that he was doing what was contrary to the law. It is not sufficient to prove that he believed that, while what he was doing was legally wrong, it was morally right.”
This interpretation of the right and wrong test was recognized and applied in State v. Andrews, 187 Kan. 458, 469, 357 P.2d 739 (1960). In the opinion, the court cited Regina v. Windle and held that the meaning of the word “wrong” as used in the M’Naghten test is “that which is prohibited by the law of the land.” In considering the evidence in this case, we must, therefore, consider whether there was evidence which raised a factual issue as to whether defendant Boan knew that his actions were contrary to Kansas law at the time they were committed.
Dr. Befort testified at first that he did not know if the defendant knew the difference between right and wrong at the time of the two incidents involved in these cases. He later testified that Boan knows right from wrong and probably knew it then. Specifically, that expert witness testified that Boan knows the moral laws and the laws of the state, knows that it is wrong to shoot somebody, and knows that it is wrong to point a loaded shotgun at a police officer. At another point, the doctor testified that, in his opinion, Boan knew right from wrong on March 20,1981, and December 9, 1981, but that he thought what he was doing was the right thing on both dates.
Dr. Ratnam Polavarapu testified that, at the KU incident, Boan knew that he was going to shoot somebody and that death or personal injury would result from the shooting. When asked whether Boan knew the difference between right and wrong, the doctor stated that was a vague thing that he could not answer. There was evidence at the trial that the defendant had conversations with the doctors in which he stated that he did not want to go to prison but preferred going to a hospital. When asked if the defendant ever knew right from wrong, Dr. Menninger responded: “The problem with answering that . . . is to define what one means in terms of right and wrong. Because of certain respects, clearly I think he had some awareness of certain things being right and wrong in the ordinary sense of the word. I think that its only been in more recent years that he has become more preoccupied with the religious thoughts and what we would perceive as a religious delusion that he then modified the definition of what was right, according to his belief that he, as God, made the rights.”
In State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978), it is stated:
“There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. (State v. Coltharp, 199 Kan. 598, 433 P.2d 418 [1967].) The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant’s sanity at the time the offense was committed. (See, State v. Penry, 189 Kan. 243, 368 P.2d 60 [1962]; Wilson v. United States, 288 F.2d 121 [D.C. Cir. 1960]; State v. Clokey, 83 Idaho 322, 364 P.2d 159 [1961]; People v. Smothers, 2 Ill. App. 3d 513, 276 N.E.2d 427 [1971], aff'd 55 Ill. 2d 172, 302 N.E.2d 324 [1973].) This evidence may come from either the defendant or the state. (State v. Johnson, 92 Kan. 441, 446, 140 Pac. 839 [1914]; State v. Crawford, 11 Kan. 32, 45 [1873]; Davis v. State, 90 Neb. 361, 133 N.W. 406 [1911]; Lemke v. State, 56 Okla. Crim. 1, 9, 32 P.2d 331 [1934].) The term ‘evidence,’ however, does not include the insanity plea or opening statements. Neither rebuts the presumption of sanity. (State v. Coltharp, supra at 602; State v. Mendzlewski, 180 Kan. 11, 13, 299 P.2d 598 [1956]; United States v. Currier, 405 F.2d 1039, 1042 [2d Cir. 1969], cert. denied 395 U.S. 914, 23 L.Ed.2d 228, 89 S.Ct. 1761 [1969]. Cf., United States v. Marbley, 410 F.2d 294 [5th Cir. 1969].) . . .
“The presumption of sanity is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person’s sanity. (State v. Johnson, supra at 447.) At that point the question of sanity becomes a question for the jury, assisted by proper instructions. (State v. Johnson, 223 Kan. 237, 240, 573 P.2d 994 [1977]; State v. Coltharp, supra at 603; State v. Mendzlewski, supra at 14.) If the jury has a reasonable doubt as to a defendant’s sanity at the time the offense was committed, it is under a duty to acquit the defendant. (State v. McBride, 170 Kan. 377, 226 P.2d 246 [1951]; State v. Nixon, 32 Kan. 205, 4 Pac. 159 [1884]; State v. Crawford, supra at 43.) It is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. In State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973), we said:
“ ‘A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.’ (Syl. 3.)
“In State v. Chase, 207 Kan. 352, 362, 480 P.2d 62 (1971), we quoted from Dusky v. United States, 295 F.2d 743, 756 (8th Cir. 1961), as to the test for acquittal in an insanity defense case:
“ ‘ “. . . [I]n order to remove this case from the jury’s consideration, . . . ‘reasonable men must necessarily possess a reasonable doubt as to defendant's sanity and . . . reasonable men must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime.’ . .
“Unless evidence of insanity is so great that a trial judge can rule the government could not convince a reasonable man it has sustained its burden of proof as to defendant’s sanity, the issue should go to the jury, as we have recommended in the past. (E.g., State v. Sagebiel, 206 Kan. 482, 480 P.2d 44 [1971]; State v. Chase, supra; State v. Coltharp, supra; State v. Mendzlewski, supra.)” pp. 767-69.
In State v. Sanders, 225 Kan. 147, 151, 587 P.2d 893 (1978), we find the following language:
“It is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. [Citation omitted.] The test for taking the issue of insanity away from the jury was adopted by this court in State v. Chase, 206 Kan. 352, 362, 480 P.2d 62 (1971). In order to remove the case from the jury’s consideration on the basis of the evidence, reasonable men must necessarily possess a reasonable doubt as to defendant’s sanity and must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime. Dusky v. United States, 295 F.2d 743, 756 (8th Cir. 1961).”
Having considered the evidence contained in the record in this case, we have concluded that the trial court did not err in its refusal to direct a verdict of not guilty by reason of insanity at the close of the case. An issue of fact existed in the case and, hence, the factual issue of defendant’s insanity was properly submitted to the jury.
The final point raised on the appeal is that the trial court erred in the instruction which it gave on the insanity issue. Instruction No. VI on the insanity issue was as follows:
“Insanity, to constitute a legal defense to the charge of crime, means that the defendant is laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he is doing, or if he did know it, that he did not know that what he was doing was wrong because of his mental inability to distinguish between right and wrong, and if these facts exist, then the law does not hold him responsible for his act. On the other hand, if a defendant is mentally capable of understanding what he is doing and has the power to know that his act was wrong, then the law will hold him criminally responsible for it. If this power of discrimination existed, he was sane in the eyes of the law. A person of sound mind and discretion will not be exempted from punishment because he might have been a person of weak intellect or one whose moral perceptions were blunted or ill developed, or because his mind may have been depressed or distracted from brooding over misfortunes or disappointments, or because he may have been wrought up to the greatest and most intense mental excitement from sentiments of disappointment, rage, revenge, or anger. The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by the law to be criminal, so long as the person committing the act had the capacity to know what he was doing and the power to know that his act was wrong. Right and wrong are used here in their legal sense, not the social or moral sense. ‘Wrong’ means that which is prohibited by the law.
“If you have a reasonable doubt as to the ability of the defendant to know what he was doing or to distinguish right from wrong at the time of the alleged commission of the act, you should find the defendant not guilty because of insanity.” (Emphasis supplied.)
The defendant complains that instead of this instruction the court should have given PIK Crim. 2d 54.10, Insanity — Mental Illness or Defect, which states:
“The defendant has denied criminal responsibility because of lack of mental capacity at the time the offense was committed. In law, this is called insanity. The defendant is not criminally responsible for his acts if his mental capacity was such that he did not understand the nature of his acts or did not understand that what he was doing was wrong because of his mental inability to distinguish between right and wrong.
“If you have a reasonable doubt as to the mental capacity of the defendant at the time of the alleged commission of the offense, then you should find the defendant not guilty because of insanity.”
In overruling defendant’s objection and request to give PIK Crim. 2d 54.10, the trial court pointed out that, as used in the right and wrong test, the word “wrong” means “that which is prohibited by the law of the land.” The trial court noted that the PIK instruction has no definition to inform the jury as to what is meant by “right and wrong.” PIK Crim. 2d 54.10 does not state' whether it is a moral judgment, a religious judgment, a social judgment, or a legal judgment. The court observed that it understood the rule to be that so long as an accused knows what he is doing is prohibited by the laws of our state, he can be held criminally responsible. In our judgment, the comments of the trial judge were quite appropriate. In this case, the trial court gave the Andrews instruction which was approved in In re Jones, 228 Kan. 90, 612 P.2d 1211 (1980), but added the following additional lines:
“Right and wrong are used here in their legal sense, not the social or moral sense. ‘Wrong’ means that which is prohibited by the law.”
PIK Crim. 2d 54.10 would be much clearer to the jury if these two additional lines or comparable language were added at the end of the first paragraph. We hold that the trial court did not err in giving the instruction which it gave on the insanity issue.
We have considered the many issues raised by defense counsel in this case. We have concluded that the trial court did not commit prejudicial error and that the judgment of the district court should be and is affirmed.
Holmes, J., and Cook, District Judge assigned, not participating. | [
-112,
-22,
-95,
30,
15,
98,
112,
40,
97,
-93,
-12,
83,
-19,
-53,
5,
107,
90,
37,
-59,
121,
-91,
-73,
71,
-56,
-78,
115,
-6,
-60,
-78,
-49,
-12,
-11,
73,
96,
10,
85,
6,
74,
-27,
84,
-114,
4,
-87,
-16,
-45,
-62,
-92,
46,
94,
3,
53,
-97,
-29,
42,
22,
-57,
73,
40,
90,
-83,
17,
-15,
-128,
21,
-18,
18,
-77,
34,
-100,
41,
-48,
63,
-40,
49,
32,
-68,
115,
-90,
-118,
116,
71,
-119,
4,
103,
114,
48,
24,
-51,
40,
-87,
47,
74,
-97,
39,
-101,
73,
96,
-123,
-106,
-99,
127,
20,
3,
-4,
-31,
86,
79,
108,
4,
-38,
-8,
-109,
79,
96,
-34,
56,
-21,
-123,
96,
113,
-51,
-26,
94,
-59,
114,
-69,
-102,
-76
] |
The opinion of the court was delivered by
McFarland, J.:
John Walter was convicted of possession of marijuana with intent to sell (K.S.A. 1982 Supp. 65-4127b[£>][3]) and possession of drug paraphernalia (K.S.A. 1982 Supp. 65-4152). On appeal the Court of Appeals reversed the convictions and remanded the case for a new trial. State v. Walter, 8 Kan. App. 2d 461, 660 P.2d 574 (1983). The matter is before us on petition for review.
The Court of Appeals held the district court erred in denying defendant’s motion to suppress all evidence seized in the execution of a search warrant. By virtue of this determination, other issues raised on appeal were not reached by the Court of Appeals.
We shall first discuss defendant’s challenges to the affidavit on which the search warrant was issued. The search warrant was issued July 23, 1981 on the affidavit of Don Hermreck, then Anderson County Sheriff. The affidavit states:
“Affiant is the Anderson County Sheriff and has received heretofore unverified information from several sources that John Walter was growing marijuana on the above-described premises. On July 21, 1981, affiant received one such report from an informant who specifically said that he had personally observed mari juana growing on the above-stated premises. Affiant, upon receiving that information proceeded to view the premises from the public road south of the Walter’s premises approximately 100 feet and saw what appeared to be approximately 1 acre of marijuana plants growing approximately 75 to 100 feet west of the house. Most of the plants were taller than the affiant. Affiant, based upon his experience in law enforcement dealing with, handling, and observing marijuana, believes the plants he observed growing to be marijuana.”
The search warrant was executed the same day. A large quantity of growing marijuana (when cut by deputy sheriffs the marijuana filled a county dump truck) as well as a plastic planting flat with fitted individual seedling containers and a trowel were seized. The marijuana plants were, for the most part, six feet or greater in height, were planted in rows and occupied approximately three-fourths of an acre. The planting and cultivation equipment was located in the marijuana plot.
Subsequent testimony of the sheriff (presented at preliminary hearing and at the suppression hearing) differed from the affidavit in a number of respects — primarily in the areas of quantity and size of marijuana plants viewed prior to preparation of the affidavit and the number of informant contacts involved.
After having heard the evidence and with full opportunity to observe the witnesses’ demeanor, the trial court concluded:
“There are inaccuracies in the affidavit presented for search warrant. With the inaccuracies removed, the affidavit still alleges the following facts:
“1. Affiant is the Anderson County Sheriff.
“2. Said affiant has received, heretofore, unverified information from several sources that defendant, John Walter, was growing marijuana on the described premises.
“3. Said affiant received one such unverified report from an informant, who specifically said that he had personally observed marijuana growing on the above stated premises.
“4. Affiant viewed, from a public road, marijuana plants growing upon the described premises. Affiant, based upon his experience in law enforcement, dealing with, handling and observing marijuana, believes the plants he observed growing, to be marijuana.
“The law I have applied to this case is best set forth in U.S. v. Axselle, 604 F.2d 1330 [(10th Cir. 1979)]. ... I have also considered State v. Newell, 226 Kan. 295, [597 P.2d 1104] (1979), and State v. Towles & Brewer, 4 Kan. App. 2d 567, [609 P.2d 228, rev. denied 228 Kan. 807] (1980). Considering all of such matters, I would specifically find further that the affiant’s sworn statements were not made in deliberate or reckless disregard of the truth and further conclude that the remaining portions of the affidavit, set forth above, are sufficient to establish probable cause. The unverified reports, while not sufficient, coupled with personal observation, which also would not be sufficient by itself, create a probable cause for the warrant.” (Emphasis supplied.)
Franks v. Delaware, 438 U.S. 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978), concerns the issue of the type of preliminary showing a criminal defendant must make in order to be entitled to an evidentiary hearing on his challenge to the legal sufficiency of the affidavit supporting a search warrant. In Franks, the United States Supreme Court held:
“There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at the hearing is, of course, another issue.” 438 U.S. at 171-72.
Franks was followed by this court in State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978). In the case before us, of course, defendant was afforded a full evidentiary hearing.
The Court of Appeals, relying on Franks and Jacques, stated:
“We may accept the trial court’s finding that the misstatements were not deliberate, but their abundance, detail, and the breadth of their departure from fact, all lead us to conclude that they reflect at least a reckless disregard for the truth.” 8 Kan. App. 2d at 463.
There was considerable confusion in the questions propounded to the sheriff relative to what he viewed and from which public road the view was made as well as the number of informant contacts. The trial court’s finding “the affiant’s sworn statements were not made in deliberate or reckless disregard of the truth” is supported by substantial evidence and may not be disturbed on appellate review.
The Court of Appeals held the affidavit stripped of erroneous statements did not constitute probable cause to support the issuance of the search warrant. We do not agree.
When the affidavit is distilled to its essence, there remains the following:
1. The affiant was the Anderson County Sheriff.
2. The affiant was experienced in law enforcement.
3. The affiant was experienced in dealing with, handling and observing marijuana plants.
4. The affiant received an unverified report sometime before he viewed the property that marijuana was growing there.
5. The affiant, from a public road, viewed the property he was told marijuana was growing on and observed what he believed, based on his experience, were marijuana plants.
Having this information before it, the district court had substantial evidence to deny the motion. An appellate court holding otherwise would be reweighing the facts and substituting its judgment for that of the district court and would be exceeding its scope of review. See State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982); State v. Strecker, 230 Kan. 602, 608, 641 P.2d 379 (1982); State v. Nicholson, 225 Kan. 418, 423, 590 P.2d 1069 (1979); State v. Johnson, 223 Kan. 185, 187, 573 P.2d 595 (1977); and State v. Youngblood, 220 Kan. 782, Syl. ¶ 2, 556 P.2d 195 (1976).
Defendant raises another objection to the affidavit. Defendant contends under Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964), there should have been a statement concerning the credibility of the informant. The Court of Appeals opinion in this case was filed on March 24, 1983. On June 8, 1983, the U.S. Supreme Court abandoned the two-prong credibility requirement of Aguilar (and Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584 [1969]) in Illinois v. Gates, 462 U.S__, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983), in favor of a totality of the circumstances approach. On June 23, 1983, the Kansas Court of Appeals in State v. Rose, 8 Kan. App. 2d 659, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983), abandoned the two-pronged test of Aguilar and Spinelli and adopted the “totality of the circumstances” test set forth in Gates. Refer ence may be made to the Rose decision for further discussion thereon.
We conclude this issue, in its entirety, is without merit and the trial court did not err in denying defendant’s motion to suppress the evidence seized in the execution of the search warrant.
The second issue is whether the trial court erred in denying defendant’s motion in limine which was treated as a motion for a protective order.
K.S.A. 1982 Supp. 65-4151, relative to drug paraphernalia, provides in part:
“In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:
“(a) Statements by an owner or person in control of the object concerning its use.
“(b) Prior convictions, if any, of an owner or person in control of the object, under any state or federal law relating to any controlled substance.”
Defendant wanted to speak to these two subsections for the purpose of showing he was not in control of the trowel and flat removed from the marijuana patch and he had no prior convictions. The trial judge ruled if Mr. Walter testified to these matters he would open himself up to cross-examination of his knowledge of the property and also about his character. Defendant contended it was error not to allow him to address these statutory provisions without being subject to cross-examination.
Generally, the scope of cross-examination rests within the discretion of the trial court. Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 (1979). We find no error or abuse of discretion on this issue.
Defendant next contends the trial court erred in refusing to grant his motion for a new trial. Much of the motion is grounded on claims of error which we have already discussed and held to be without merit. That which remains is essentially a challenge to the sufficiency of the evidence.
When, on appeal, the sufficiency of the evidence in support of the conviction is challenged, the question for the reviewing court is: Does the evidence, when viewed in the light most favorable to the prosecution, convince the appellate court a rational fact finder could have found the defendant guilty beyond a reasonable doubt? State v. Williams, 234 Kan. 233, 670 P.2d 1348 (1983), and State v. Everson, 229 Kan. 540, 626 P.2d 1189 (1981).
We have carefully reviewed the record, applied the aforecited test, and are convinced a rational fact finder could have found defendant guilty beyond a reasonable doubt.
Other issues raised have been carefully considered and are held to be without merit although not specifically set forth in this opinion.
Judgment of the Court of Appeals reversing the district court is reversed and judgment of the district comí; is affirmed. | [
-79,
109,
-3,
28,
10,
96,
42,
62,
87,
-95,
-12,
87,
-19,
-38,
4,
41,
-78,
125,
116,
121,
-61,
-74,
99,
-64,
118,
-13,
-54,
-43,
-71,
79,
-82,
84,
8,
80,
-118,
85,
-26,
72,
-91,
88,
-114,
5,
-103,
123,
-45,
66,
54,
-85,
34,
27,
49,
31,
-9,
40,
25,
-61,
73,
44,
-85,
-68,
73,
-47,
-72,
93,
-51,
22,
-125,
-96,
-112,
-123,
-8,
124,
-40,
57,
2,
-24,
-13,
-92,
-122,
116,
15,
-7,
12,
34,
98,
33,
60,
-17,
-32,
-120,
31,
41,
-65,
39,
-102,
88,
107,
41,
-106,
-67,
85,
48,
14,
-20,
-29,
-59,
5,
124,
16,
-49,
-108,
-125,
25,
112,
-116,
91,
-17,
35,
48,
113,
-51,
-30,
93,
70,
113,
-103,
-114,
-107
] |
The opinion of the court was delivered by
Herd, J.:
This is an appeal from a conviction for murder in the first degree (K.S.A. 21-3401), and aggravated battery on a law enforcement officer (K.S.A. 21-3415). We reverse and remand for a new trial.
The facts reveal Officers Paul Garofalo and Randy Mullikin of the Wichita Police Department were on routine vehicular patrol in the early morning hours of November 8, 1980. At 3:30 a.m. they were proceeding west on 9th Street. Garofalo was the driver. They passed through the intersection of 9th and Washington and stopped one-half block west where they observed two black women and a man. They had a brief conversation with one of the women and then turned back to the east. They parked in front of an after-hours bar, the Chicken Shack. It is located on the second story of a building located on the northeast corner of 9th and Washington streets. A number of people had congregated on the sidewalk there.
The officers spoke to Regina Franklin and Krystal Butler. Both women stood on the passenger side of the car and conversed through the open front window. Krystal was to the front and Regina to the rear of that window. Officer Garofalo was leaning from his position on the driver’s side across Officer Mullikin to converse with the women. After a short conversation Mullikin heard a loud noise he thought was a car backfiring. The noise was a shotgun blast fired twice at close range into the head and back of Officer Garofalo through the car window on the driver’s side. A few stray pellets hit Mullikin’s leg.
After the second shot Mullikin rolled out of the car and sought cover. When he looked back he saw people running but no gunman. He returned to the car and radioed the dispatcher for help. Officer Garofalo lay in the driver’s seat, his head tilted back, bleeding profusely. With the help of a person identifying himself as a paramedic, Mullikin lowered Garofalo from the car to the pavement outside the car where they attempted to administer C.P.R. There were no vital signs. At this time Mullikin observed a shotgun lying beside the car. He picked it up and placed it in the car.
Officer Pete Dubovich and other officers arrived at the scene shortly thereafter. They observed Officer Mullikin, who was wounded and appeared in shock. Dubovich took charge and secured the area. In so doing he discovered a pool cue case lying on the north curb just to the east of Washington Street. He told a rookie policeman to guard it.
Next Dubovich observed a black man, later identified as Dale Jackson, standing beside Paul Garofalo, together with Larry Mitchell, the person who claimed to be a paramedic. Officer Dubovich authorized Mitchell to assist. The ambulance arrived. Officer Garofalo died from the shotgun wounds to the back of his head.
While Officer Dubovich was busy sealing off the area and doing preliminary investigative work, he forgot about the pool cue case. At trial he testified he felt it was safe with the rookie standing guard. He returned an hour or two later to discover both the pool cue case and the rookie gone. The case was subsequently found a block away on Washington Street. Officer Dubovich saw Anthony Ray Martin at the scene among the crowd which gathered after he arrived.
Officer Mullikin informed the policemen that an individual in a white three-piece suit (Dale Jackson) had information about the crime. Jackson was taken to the City Building for interrogation. After he was promised protection and discussed the matter with his girlfriend, Jackson stated Ivory Haislip was the person who shot Officer Garofalo. Jackson had made prior inconsistent statements.
Mullikin also identified Ivory Haislip as the man he and Garofalo had seen one-half block west prior to the shooting. His first description of the man was inconsistent with Haislip’s actual appearance.
Regina Franklin, one of the women talking to the officers when the shooting occurred, talked to the police the next day. She picked Haislip’s photograph out of a group when she was directed to pick out the killer.
At 4:30 a.m., November 9, 1980, Ivory Haislip was arrested for the murder of Officer Garofalo.
Police later were informed Haislip went to the home of Dorothy Jones and Hubert Jeffries late on the Saturday night of the shooting. They stated he appeared high and when Ms. Jones mentioned the killing of the officer, Haislip said, “I did it.” Neither of them believed him.
The clincher in the case against Haislip was the statement of Anthony Ray Martin. Martin had been picked up by the police on December 11,1980, on other matters but was interviewed by the district attorney about the Garofalo homicide. Martin identified Haislip as the murderer. He was not held on the charges for which he was picked up. Martin had previously told the police he saw the man with the pool cue case with the gun but did not see his face.
The case against Haislip appeared airtight, particularly to the prosecutor’s office because at that time nothing was known of a statement of police informant A1 Bowens to the police which would later introduce a new element into the case. The prosecutor did not hear of Bowens’ statement until December 28, 1981.
Bowens gave a taped statement to the police department on November 11, 1980, and a second statement two days later. He told the detectives he was driving west on 9th Street at about 3:30 a.m. November 8, 1980, and saw Anthony Ray Martin walk across the street in front of his car. He stated Martin was carrying a pool cue case with the butt end of a gun sticking out of it. Bowens turned right and parked in a church parking lot. He discussed what he saw with the two people who were riding with him. As he assisted the person in the back seat in getting out of his two-door car, he heard a gunshot and looked toward its source at the parked police car. Bowens saw Martin there and then saw Martin throw something down and run northeast in front of Bowens’ car again. The police officers gave the statements no credence and told Bowens it was impossible for him to have seen what he saw. The tapes did not again emerge for over a year.
With that battery of witnesses minus Al Bowens, Ivory Haislip was tried and convicted of murder in the first degree and aggravated battery of a law enforcement officer on May 15, 1981.
Haislip filed a motion for a new trial. In the hearing on the motion on June 9, 1981, new evidence was produced. Krystal Butler, one of the women talking to the officers at the time of the shooting, and Clementine Gasper, a spectator on the sidewalk at the time, testified they saw Anthony Ray Martin kill the officer. The motion was overruled. Haislip was sentenced to life and fifteen years to life to run concurrently.
Haislip appealed his conviction and filed his second motion for a new trial with this court. We remanded the case to the trial court for a hearing on his claim of newly discovered evidence. Eleven witnesses testified for Haislip. Six of them testified they saw Martin shoot the officer. Regina Franklin recanted her previous testimony identifying Haislip as the murderer. On October 30, 1981, a new trial was ordered and set for December 7, 1981.
The granting of the new trial caused the State to start a completely new investigation of the case. Initially one hundred seventy-five witnesses were endorsed on the information by the State. The list eventually grew to over two hundred witnesses. The volume of evidence to be reviewed consisted of reports, statements and prior testimony. The task was staggering. The State asked for and received a continuance of the trial from December 7 to January 11, 1982. Haislip objected.
Finally, on December 28, 1981, the prosecutor was informed of Al Bowens’ two taped statements with regard to Anthony Ray Martin’s involvement. The district attorney had given no ere dence to the testimony of Haislip’s witnesses in the hearings on the two motions for a new trial. Only after hearing the Bowens statements did suspicion seriously focus on Martin, and then with much skepticism. On January 8, 1982, the State charged Martin with the identical offenses as Haislip. On January 11, 1982, the State again asked for a continuance, this time for one week. It was granted over Haislip’s objection. After an oral motion to consolidate the two cases was denied, on January 14, 1982, the cases against Haislip and Martin were dismissed without prejudice and one case instantaneously filed against both of them. The charges were identical to those in the original case against Haislip.
The next procedural development in the case was the filing of Anthony Ray Martin’s motion for a bill of particulars on January 22, 1982, which the State furnished on February 5. The bill charged Haislip as principal and Martin as aider and abettor.
Haislip filed a motion on January 29, 1982, to dismiss the action against him alleging he had not been brought to trial within the ninety-day speedy trial requirement of K.S.A. 22-3402. The motion was overruled.
Haislip then filed a motion for severance of the trials. It was also overruled.
The final pretrial motion was for a change of venue. It was also overruled.
The trial commenced on April 19, 1982. It lasted until May 29, 1982. Haislip was convicted as charged. After a motion for a new trial was overruled, this appeal followed.
Appellant Ivory Haislip first argues the trial court erred in refusing to dismiss the charge against him due to the State’s failure to comply with K.S.A. 22-3402, the speedy trial statute.
Haislip was granted a new trial October 30, 1981. He was incarcerated at the time and continued to remain in jail. The ninety-day time clock under K.S.A. 22-3402 was thus triggered. State v. Grimes, 229 Kan. 143, 144, 622 P.2d 143 (1981). Trial was first set for December 7,1981, then was continued to January 11, 1982, on the State’s motion, over the objection of Haislip. On January 11, the State appeared and requested another continuance, again over Haislip’s objection. Anthony Ray Martin had been charged on January 8, 1982, with the same offenses as Haislip. The State discussed with the court joining the two cases for trial due to the problems of proof inherent in separate trials. Upon the court’s indication it would not permit such joinder, the State dismissed both cases and immediately filed a new case charging Haislip and Martin together. At that time seventy-six days had transpired since the new trial was granted. The State’s theory was that upon the filing of the new case on January 14, it had ninety additional days. On January 29, Haislip filed his motion to discharge for failure to bring him to trial within ninety days. The court overruled the motion. Haislip and Martin were arraigned February 8,1982. The trial commenced April 19, 1982, one hundred seventy-one days after Haislip was awarded a new trial, but within ninety days of the joint arraignment.
'We held in State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979), “Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute.” Hence, the issue is whether the State made an adequate showing of necessity to the trial court when the case against Haislip was dismissed without prejudice and refiled. If adequate necessity was shown, the time chargeable to the State in the previous case would not be combined with the time elapsed under the new filing. Otherwise Haislip is entitled to discharge.
Appellee, citing State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975), argues there is no need to show necessity. In Fink we stated, “The time elapsing between the filing of the first information and the dismissal of the cause by the court is not to be counted in determining the time elapsed between the filing of the second information and trial.” 217 Kan. at 675. The holding in Fink is correct but inapplicable to the facts here. It does not deal with whether a prosecutor’s dismissal was necessitous but rather.with when the counting begins for the speedy trial statute. The dismissal in Fink was prior to arraignment and pursuant to appellant’s motion.
In absence of an adequate showing of necessity this court requires the aggregate time in both cases to be counted in testing the speedy trial requirement. In Cuezze, the leading case on this issue, the State dismissed charges against two defendants and refiled identical charges but added a third conspirator. The dismissal came three months after the State had heard evidence implicating the third conspirator. The necessity claimed by the State was the complexity of the case. We held the State failed to show necessity and thus could not avoid the time limitations of K.S.A. 22-3402. Of particular importance to the Cuezze rationale was the State’s failure to apply for a continuance pursuant to K.S.A. 22-3402(3)(c). The Court of Appeals found the same omission controlling in State v. Hunt, 8 Kan. App. 2d 162, Syl. ¶ 3, 651 P.2d 967 (1982):
“The State cannot avoid the statutory speedy trial time limits by dismissing an information and subsequently refiling the charges. The proper procedure for the State to follow is to obtain a continuance pursuant to K.S.A. 22-3402(3).”
K.S.A. 22-3402(3) provides:
“The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(a) The defendant is incompetent to stand trial;
“(h) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section;
“(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date;
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
In the case at bar, the provisions of the foregoing statute do not meet the needs of the State. The case against Haislip was dismissed and refiled to afford a method of trying both suspects together since the court refused to join the two cases for trial. A continuance pursuant to K.S.A. 22-3402(3) could not have accomplished that result. Thus, unlike Cuezze and Hunt a request for a continuance was not required.
There is no evidence the State was attempting to manipulate the speedy trial requirement. The statements of A1 Bowens implicating Anthony Ray Martin in the murder of Officer Garofalo were not available to the prosecutor’s office until December 28, 1981. The statements of Haislip’s witnesses at the hearings on motions for a new trial implicating Martin were not taken as credible evidence by the State due to failure of the witnesses to come forward at Haislip’s first trial and their prior inconsistent statements. In light of the timing of the discovery of Rowens’ statement, and a controversy between the suspects as to which should be tried first, the prosecution, in good faith, concluded the trials of Haislip and Martin should be joined. This resulted in a need for extensive additional investigation of the case. We find there was adequate showing of necessity for dismissal and refiling of this case at that time, even though the trial later disclosed antagonistic defenses which prejudiced Martin. Under these particular circumstances Ivory Haislip’s statutory speedy trial rights were not violated.
Haislip next claims his constitutional right to speedy trial was also violated.
Kansas has adopted the test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972), forjudging constitutional speedy trial claims. See State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). Barker established a balancing test with four factors to be considered when a claim of unconstitutional denial of speedy trial is asserted. The four factors are: length of delay, the reasons for delay, the defendant’s assertion of his right to speedy trial, and the prejudice resulting to the defendant. None of these factors alone is dispositive. They must be considered together.
The length of the delay in this case, which is the first factor, was six months from the granting of a new trial in October 1981, until the actual trial in April 1982. It had been seventeen months from appellant’s initial arrest in November 1980 to trial in April 1982. This court has held longer times not to constitute a violation of a defendant’s right to speedy trial. See State v. Wilson, 227 Kan. 619, 608 P.2d 1344 (1980) (three years), and State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972) (five years).
The second factor is the reason for delay. Haislip argues the reasons for the delay by the State in this case were political pressure and gain of tactical advantage. Appellee argues it was due to the late development of important evidence, namely the newly discovered testimony of Al Rowens. Appellee’s argument is supported by the record and is persuasive.
A defendant’s assertion of his right is the third factor to be considered. Haislip argues he never requested a continuance and was prepared to go to trial as scheduled. Appellee points out, however, that Haislip did not raise the speedy trial issue until January 29, 1982, one year and two months after his arrest and three months after a new trial was ordered. Although it is not mandatory for Háislip to assert his right to trial (Barker, 407 U.S. at 528), the failure to do so makes it difficult for him to prove that he was denied his constitutional right. Hemminger, 210 Kan. 587, Syl. ¶ 4. Similar long delays have been held to weigh against a defendant’s assertion of the right on appeal. See State v. Wilson, 227 Kan. 619; State v. Hunt, 8 Kan. App. 2d 162.
The final factor is the prejudice to the appellant by the long delay. Haislip argues he was prejudiced since the result of the delay was to require him to be tried with Martin. This is not a prejudice which is the result of the delay between arrest and trial.
Haislip also argues he was prejudiced because three witnesses could not be located for the second trial. The unavailability of witnesses has been held to be a factor prejudicing the defendant. Hemminger, 210 Kan. at 594. In this case, however, Haislip did not try to locate the witnesses, no subpoenas were issued, and there was no showing they would have been available for an earlier trial. No prejudice is shown. This issue is without merit.
Haislip next argues the trial court erred in not instructing the jury it could acquit Haislip and convict Martin. Haislip requested the following instruction:
“You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him.
“All evidence produced tending to show that the defendant Anthony Ray Martin personally fired the shots which killed Paul Garofalo and wounded Randy Mullikin may only be considered as it relates to the question of whether or not Ivory Haislip committed the crimes with which he is charged.
“The testimony of Anthony Ray Martin may only be considered as it relates to the question of whether or not he is criminally responsible for the crimes committed by some other person, and may not be considered in determining whether or not Ivory Haislip committed the crimes with which he is charged.”
The court gave the first paragraph of the requested instruction but refused Haislip’s request to give the rest. We have held error cannot be predicated on refusal to give a specific instruction where the instruction given covers the substance of the request. State v. Taylor, 212 Kan. 780, Syl. ¶ 2, 512 P.2d 449 (1973). We find no error since the instruction given summarized the entire requested instruction. However, the court gave the following instruction on aiding and abetting:
“A person is criminally responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he intentionally aids or advises the other to commit the crime.
“You are further instructed in this case that if you find beyond a reasonable doubt that the defendant, Anthony Ray Martin, intentionally counseled, aided, abetted, advised or in any manner assisted Ivory Haislip in the commission of the crime or crimes charged in the information, as elsewhere defined in these instructions, then he, individually, is guilty of such crimes as though he, by himself, without assistance, committed those crimes.”
Haislip made a contemporaneous objection to this instruction, which was overruled. We find the trial court erred in failing to sustain Haislip’s objection. Giving the foregoing instruction left the jury no option but to convict Ivory Haislip if it found Anthony Ray Martin guilty. The stronger the case against Martin, the more certain Haislip would be convicted. The instruction should have stated if Martin “aided, abetted, advised or in any manner assisted Ivory Haislip or others” then he is guilty. It should also be pointed out the State’s evidence is consistent with the suggested change. There was no evidence Martin knew Haislip or that he handed him the murder weapon. There was evidence Martin possessed the shotgun shortly before the shooting, that he approached the police vehicle, then ran after the shots. He could have aided and abetted others in the shooting.
The jury’s action during deliberations substantiates our conclusion. The jury foreman presented the following question to the trial court: “If we find Haislip not guilty can we find Martin guilty of (a) aiding and abetting; (b) first degree murder?” The court responded, “Please refer to instructions.” Thus, the erroneous instruction was reemphasized. The jury then returned to deliberate and convicted both appellants. The clearly erroneous instruction is so prejudicial to Ivory Haislip it requires a new trial for him.
Haislip raised other issues all of which were considered by this court, but since the foregoing issue requires a new trial we need not discuss them.
The judgment of the trial court is reversed and the case remanded for a new trial.
Lockett, J., not participating.
Schroeder, C.J., and Prager, J., concur in the result. | [
80,
-21,
-32,
-18,
45,
96,
56,
-66,
-13,
-77,
-16,
115,
37,
-55,
5,
121,
78,
125,
-44,
105,
-80,
-73,
-121,
9,
-78,
115,
19,
-63,
-77,
-49,
-4,
-11,
106,
112,
-117,
93,
102,
-118,
-27,
92,
-114,
4,
-119,
-16,
80,
2,
-80,
58,
-14,
15,
-79,
12,
-29,
106,
18,
-62,
-24,
56,
74,
-83,
-127,
-5,
-23,
-123,
-2,
82,
-125,
-74,
-100,
-89,
-8,
23,
-39,
49,
0,
104,
115,
-32,
-126,
124,
109,
-119,
-60,
38,
96,
4,
25,
-55,
-88,
-119,
12,
109,
-115,
-121,
-103,
41,
33,
4,
-106,
-97,
109,
16,
11,
108,
-5,
95,
89,
-20,
-122,
-50,
-68,
-111,
-49,
56,
26,
-38,
-21,
7,
34,
113,
-51,
34,
94,
69,
114,
-5,
-114,
-110
] |
The opinion of the court was delivered by
McFarland, J.;
On April 6, 1981, plaintiff Crupper Transport Company, Inc., commenced an action (81-C-1254) against defendant, Secretary of the Kansas Department of Transportation, seeking damages for inverse condemnation (Count I) and requesting mandamus to compel defendant to institute condemnation proceedings for the taking of plaintiffs property (Count II). On November 30, 1981, plaintiff Lone Star Industries commenced a near identical action (81-C-4487) against the same defendant. Both plaintiffs were represented by the same attorney. The two cases were subsequently consolidated and both were dismissed on grounds plaintiffs had failed to state causes of action on either count on the respective petitions (K.S.A. 60-212[b][6]). Plaintiffs then filed a joint notice of appeal.
Before proceeding further, it should be noted that subsequent to the filing of the notice of appeal, but before the time of oral argument herein, defendant Secretary has instituted eminent domain proceedings against the property of plaintiff Crupper Transport Company, Inc., which is involved herein. Clearly all elements of damage arising from the taking which are legally compensable will be determined in the eminent domain action, thereby rendering Count I moot as to Crupper. The mandamus cause of action (Count II) seeking to compel defendant to initiate an eminent domain action is likewise moot. This appeal so far as it relates to plaintiff Crupper Transport Company, Inc., is declared moot and is dismissed.
We turn now to the remaining plaintiff, Lone Star Industries, Inc. Lone Star manufactures cement and cement products at Third and Bunker Streets in Kansas City, Kansas. In 1970 defendant’s predecessor, State Highway Commission, announced its intention to acquire land in Wyandotte County for construction of Interstate Highway 670 (1-670). Among properties proposed for acquisition was an unspecified portion of plaintiffs property. Defendant’s representatives discussed the project with Lone Star representatives but neither definite plans nor a timetable for acquisition was established. Representatives of plaintiff and defendant have, through the intervening years, negotiated relative to acquisition of plaintiffs property, but no agreement has been reached. The lengthy and unfruitful discussions and negotiations were, at least in part, the result of the fact the proposed highway would, relative to plaintiffs property, be an elevated roadway which would trisect plaintiffs land. The extent of the required taking and its effect on the operation of the business apparently have never been fully determined.
The first issue is whether the district court erred in dismissing Count I on the ground plaintiff had failed to state a cause of action therein.
Count I of plaintiffs petition seeks damages based on the theory of inverse condemnation suffered by plaintiffs business as a result of the delay of defendant in moving forward with the taking of plaintiffs property. Specifically, plaintiff contends:
“That due to said actions and inactions of the defendant and his representatives, the plaintiff has suffered a disruption of its business operation; has been limited in its ability to contract business and to bid for said business due to the uncertainty of the plaintiffs ability to produce its product and in light of the required penalty clauses to said contracts; and the plaintiff has suffered unauthorized entry upon its property by the defendant, his employees, agents and representatives.”
The unauthorized entry referred to in said contention concerns defendant’s intrusion onto plaintiff’s property for purposes of surveying and the taking of core samples rather than actual construction of the highway.
At this point a discussion of the background and general principles of law relative to eminent domain and inverse condemnation is appropriate.
The Fifth Amendment to the United States Constitution prohibits private property being taken for public use without just compensation. While the Kansas Constitution does not contain an identical provision, with the exception of Art. 12, § 4, governing corporations, the Fifth Amendment prohibition is applicable to the states by way of the Fourteenth Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 66 L.Ed.2d 358, 101 S.Ct. 446 (1980); San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 67 L.Ed.2d 551, 101 S.Ct. 1287 (1981); Panhandle Co. v. Highway Comm’n, 294 U.S. 613, 618, 79 L.Ed. 1090, 55 S.Ct. 563, reh. denied 295 U.S. 768 (1935), rev’g State Highway Comm. v. Panhandle Eastern P.L. Co., 139 Kan. 185, 29 P.2d 1104, reh. denied 139 Kan. 849, 33 P.2d 151 (1934). See also 26 Am. Jur. 2d, Eminent Domain § 8; and Nowak, Rotunda & Young, Constitutional Law, pp, 437-50 (1978). Further, the constitutional prohibition is codified in Kansas in K.S.A. 26-513(a) which provides private property shall not be taken or damaged for public use without just compensation. See also Urban Renewal Agency of Wichita v. Gospel Mission Church, 4 Kan. App. 2d 101, 103, 603 P.2d 209 (1979), rev. denied 227 Kan. 928 (1980); and Consultation, Inc. v. City of Lawrence, 5 Kan. App. 2d 486, 487, 619 P.2d 150 (1980), rev. denied 229 Kan. 669 (1981).
Eminent domain, as a legal term and concept, apparently originated in the works of the seventeenth century legal scholar Grotius. See Grotius, De Jure Belli ac Pacis Libri Tres, ch. 20, § VII, ¶ 1 (1625), cited in 1 Thayer, Cases on Constitutional Law, p. 945 (1895), and Nowak, Rotunda & Young, Constitutional Law, p. 438. It is sufficient to say eminent domain is the right and power of government or lawfully designated authority to take private property for public use without the owner’s consent upon payment of just compensation. Weast v. Budd, 186 Kan. 249, 252, 349 P.2d 912 (1960). The right is an inherent power of the sovereign and comes into being with the establishment of government and continues as long as the government endures, but its exercise may be limited by the constitution. 186 Kan. at 252; Glover v. State Highway Comm., 147 Kan. 279, 285, 77 P.2d 189 (1938).
While eminent domain powers may only be exercised by the government or lawfully designated authority, a person having an interest in realty may compel a government to invoke those powers by bringing an action for inverse condemnation. Inverse condemnation is an action or eminent domain proceeding initiated by a person having an interest in realty rather than by the government condemner. It is availablé when private property has actually been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness on the part of the taker to bring an action to acquire the property. Ventures in Property I v. City of Wichita, 225 Kan. 698, Syl. ¶ 3, 594 P.2d 671 (1979).
Both eminent domain and inverse condemnation involve a “taking” of real property without the owner’s consent but with compensation. However, a government may, by the exercise of its police powers, regulate private property but not be deemed to have taken it so as to require compensation. In Lewis v. Globe Constr. Co., 6 Kan. App. 2d 478, 630 P.2d 179, rev. denied 230 Kan. 818 (1981), the Court of Appeals held a temporary closing of a street for repairs fell within the police powers of the government, not the powers of eminent domain. 6 Kan. App. 2d at 484. See also Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259 (1959). If government imposes a restriction upon property which is too oppressive so as to deny the owner the use, benefit, and enjoyment of the realty, it may be deemed to have taken the land and be obligated to pay compensation. Eldridge v. City of Palo Alto, 57 Cal. App. 3d 613, 621, 129 Cal. Rptr. 575 (1976); and Ventures in Property I v. City of Wichita, 225 Kan. at 710. Finally, no damages are allowable for a mere threat to condemn. Hood v. Chadick, County fudge, 272 Ark. 444, 447, 615 S.W.2d 357 (1981).
Before a party may recover compensation it must establish the property in question is one in which it has an interest, Wittke v. Kusel, 215 Kan. 403, 524 P.2d 774 (1974), and there has been a taking. This court has previously defined “take” (or “taken”) in Kansas eminent domain law to mean the acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides. Steck v. City of Wichita, 179 Kan. 305, 313, 295 P.2d 1068 (1956); and Foster v. City of Augusta, 165 Kan. 684, 690, 199 P.2d 779 (1948). As noted in Ventures, 225 Kan. 698, strict adherence to this definition of “take” has been relaxed in recent times by this court in cases concerning lateral support (Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981 [1973]; see also Comment, Property: Lateral Support — An Inversely Condemnahle Property Right, 13 Washburn L.J. 248 [1974]) and access (McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P.2d 1165 [1974]; and Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 559 P.2d 771 [1977]).
Plaintiff contends Kansas has so relaxed its concept of “taking” that defendant’s actions of announcing, preparing plans for, and actual construction of some portions of the 1-670 project have resulted in the “taking” of its property within the concept of inverse condemnation. In support of this argument plaintiff places heavy reliance upon Ventures, 225 Kan. 698, and also cites Sanders v. State Highway Commission, 211 Kan. 776, and McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, and certain cases from other jurisdictions.
The district court dismissed Count I on the grounds Lone Star had failed to allege a legally sufficient “taking” had occurred. In so doing, the district court reasoned as follows: (Note: The memorandum opinion refers to plaintiffs throughout as both the Crupper and Lone Star cases were being decided.)
“The first count of each petition sounds in inverse condemnation. Plaintiffs claim that the defendant, in pursuing the construction of Interstate 670, announced the intention to construct in 1970 and over a period of time expressed the intention to take the property of the plaintiffs, in whole or in part, by eminent domain. Plaintiffs, meantime, have expressed the intention and necessity of expanding their facilities on the property affected. As a result of defendant’s failure to speedily complete the proposed condemnation, the plaintiffs allege that their properties have been effectively taken from them, and pray for damages as a result of this inverse condemnation.
“Inverse condemnation has long been recognized in Kansas. Cohen v. St. L., Ft.S. and W. Rld. Co., 34 Kan. 158, 8 Pac. 138 (1885); [Brock] v. State Highway Commission, 195 Kan. 361, 404 P.2d 934 (1965); Wittke v. Kusel, 215 Kan. 403, 524 P.2d 774 (1974). Plaintiffs admit, in page two of the Crupper ‘Memorandum in Opposition to Defendant’s Motion to Dismiss,' that for inverse condemnation to lie, it is usually required that the entity with eminent domain authority ‘acquire possession of the property in question and to control the property to the exclusion of the owner.’
“Inverse condemnation will not lie unless a taking has occurred. See Steck v. City of Wichita, 179 Kan. 305, 295 P.2d 1068 (1956); Foster v. City of Augusta, 165 Kan. 684, 199 P.2d 779 (1948).
“But plaintiffs go on to argue that this standard has been eroded by McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P.2d 1165 (1974), in which a landowner was compensated for the denial of the reasonable access he had previously enjoyed; by Sanders v. State Highway Comm., 211 Kan. 776, 508 P.2d 981 (1973), in which removal of lateral support was held to afford an action in inverse condemnation; and by Ventures in Property I v. City of Wichita, 225 Kan. 698, 594 P.2d 671 (1979), where the Supreme Court recognized a taking had occurred even though there was no physical possession by the governmental entity.
“The Ventures case, while factually quite different, is important to the disposition of the instant action because for the first time the Kansas Supreme Court discussed the question of whether or not the mere planning or plotting of a public improvement constitutes a taking or damaging of property affected. The Court stated:
“ ‘While the issue has never arisen in this context before our court, generally the mere planning or plotting in anticipation of a public improvement does not constitute a taking or damaging of the property affected.’ (Ventures, p. 706)
“But these cases are all distinguishable from the case at bar. McCall (supra) was not an inverse condemnation proceeding at all, but instead an eminent domain condemnation proceeding from which the landowner appealed. In Sanders (supra) the Court held that the common right to lateral support was a right accompanying ownership, and could not be taken without compensation. Thus, while at first glance the case seems to support an action in inverse condemnation where there was no acquisition or taking of property, the theory on which the case was decided was that a taking of a valuable property right liad in fact occurred. Ventures (supra) likewise holds that a taking must occur for inverse condemnation to lie, and that requiring a property owner to reserve a portion of his land for public use in the distant future is such a taking.
“The cases cited by the plaintiffs simply apply the established principles of inverse condemnation to novel circumstances; they do not require abandonment of the principles. In the instant cases, no such novel circumstances intrude. While the plaintiffs may have felt themselves unduly inhibited in the proposed expansion of their facilities, they had at all times free and uncontrolled access to, and the use of their property. Some inconvenience must necessarily accompany the planning of new thoroughfares by governmental units, and it cannot be avoided. But to label all such interferences ‘takings’ by inverse condemnation would make public planning impossible.
“Plaintiffs mention and apparently rely on a California citation, namely Klopping v. City of Whittier, 8 Cal. 3d 39, 104 Cal. Rptr. 1, 500 P.2d 1345 (1972). Usually that particular state has been considered as liberally construing inverse condemnation issues. However, in reading other cases from that State, this Court found different interpretations.
“The Supreme Court of Kansas in Ventures discussed Smith v. State of California, 50 Cal. App. 3d 529, 123 Cal. Rptr. 745 (1975). In Smith, the plaintiff alleged that for seven years following the announcement of a plan by the condemning authority to acquire property for a public improvement no action had been taken. That as a result of the delay there was an actual taking of the property and by inverse condemnation. The California court stated:
“ ‘Without question, when the state embarks upon a plan to develop a freeway, because of the public airing which is legally attendant to such a project, marketability of property in the affected area is adversely impacted. On the other hand, invocation of the doctrine of inverse condemnation or the assessment of damages against the state upon the public announcement of the state’s plan would result in acquisition of large amounts of property that may never be used and would inordinately increase the cost of any such project. The real result would be a severe hampering of the state’s ability to undertake necessary and worthwhile improvements in our highway system.’ (p. 536)
“More recent cases from California that discuss the issues of whether or not mere planning or plotting in anticipation of a public improvement constitutes a taking or damaging of property affected include Johnson v. State of California, 90 Cal. App. 3d 195, 153 Cal. Rptr. 185 (1979). The headnote from Johnson summarizing the holding states:
“ ‘Complaint filed by landowners, whose property was near proposed route of state freeway which was still in the planning stage and questionable due to severe funding cutback in state highway program, who contended that state had acted unreasonably in issuing precondemnation statements, in purchasing property adjacent to landowners’ property, and in unreasonably delaying eminent domain proceedings against them, who alleged that they had lost a valuable tenant and had been unable to lease their property as result of state’s conduct, but whose access had not been impaired, and whose property would not be affected for 10 to 20 years if project was in fact constructed, failed to state cause of action in incerse condemnation.’ [153 Cal. Rptr. at 186] (Emphasis supplied.)
“The motion to dismiss is granted as to Count I of both petitions.”
We agree with the rationale of the district court.
Before concluding this issue, however, Ventures, 225 Kan. 698, should be discussed in more depth. This court in Ventures was asked whether a restriction in a proposed platting ofland to reserve a proposed highway corridor could amount to inverse condemnation of the land requiring compensation of the landowner. In Ventures, plaintiff purchased land previously used for agricultural purposes immediately outside the city limits of Wichita. In December, 1972, plaintiff applied for a zoning change to permit it to develop the property as a residential subdivision. At the hearing on the application there was much discussion of a concept called the Northeast Circumferential, a state highway corridor which had been proposed and considered over the past twenty years. A proposed corridor extended over a portion of plaintiff s land. The zoning application was approved with the qualification a plat would not be submitted until the precise location of the highway was determined.
In 1976 the plaintiff, believing it had waited long enough, submitted a plat which did not include the proposed highway corridor. The Wichita Metropolitan Area Planning Commission (MAPC) informed plaintiff it would approve a plat of its land only for that area not set aside for the proposed highway. As for the land in the proposed corridor, Ventures could do nothing and would have to keep the land undeveloped until a decision was finally made where to locate the state highway. In response to the MAPC’s decision Ventures brought a declaratory judgment suit under K.S.A. 60-1701, contending MAPC’s denial of plaintiffs platting of its land, and the restriction a portion of the land be held in abeyance until the location of the state highway was determined, constituted a compensable taking. The district court denied plaintiffs action, finding plaintiffs only relief was pursuant to K.S.A. 12-712. We reversed and remanded the case with directions.
Speaking for the court, Chief Justice Sehroeder observed while this court had frequently found inverse condemnation to have occurred when there had been a physical taking of property, e.g., Ellis v. City of Kansas City, 225 Kan. 168, 589 P.2d 552 (1979); In re Central Kansas Electric Coop., Inc., 224 Kan. 308, 582 P.2d 228 (1978); Rostine v. City of Hutchinson, 219 Kan. 320, 548 P.2d 756 (1976); and Wittke v. Kusel, 215 Kan. at 405-06; or where access rights had been impinged, Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230; and Brock v. State Highway Commission, 195 Kan. 361, 404 P.2d 934 (1965); or where rights to lateral support had been violated, Sanders v. State Highway Commission, 211 Kan. at 787; the question confronting the court in Ventures was whether a physical invasion of a landowner’s property was necessary before there could be a compensable taking. 225 Kan. at 705, 706.
In Ventures this court proclaimed it adhered to the general rule of inverse condemnation, 225 Kan. at 707, that mere planning or plotting in anticipation of a public improvement does not constitute a taking or damaging of the property affected. 225 Kan. at 706. The crucial factor in Ventures which allowed recovery and which distinguishes the case from the general rule, and from the instant litigation, is that besides the plotting specifications the MAPC had coupled it with a legal restriction the landowner had to keep a certain portion of its realty undeveloped to facilitate a proposal to construct a state highway sometime in the indefinite future. Corpus Juris Secundum cited by the Ventures court, 225 Kan. at 706, has aptly noted:
“[T]he making and filing of a description of map of a street or highway, or other public improvement, is not a taking unless the plotting is coupled with legal restrictions on the owner’s use of the property.” 29A C.J.S., Eminent Domain § 135, 537, citing Lansburgh v. Market Street Ry. Co., 98 Cal. App. 2d 426, 220 P.2d 423 (1950), 21 A.L.R.2d 785. (Emphasis supplied.)
Ventures does not radically relax the concept of “taking,” as asserted by the plaintiff herein. Rather, Ventures characterizes an exception to the general rule that mere plotting and planning in anticipation of a public improvement does not constitute a taking or damaging of the property affected unless such plotting and planning is coupled with a legal restriction on the landowner’s use of the property.
We conclude the district court did not err in dismissing Count I on the basis plaintiff had failed to state a cause of action in inverse condemnation by virtue of the legal insufficiency of the alleged taking.
The second issue is whether the district court erred in dismissing Count II (mandamus claim) for failure to state a cause of action.
The district court, in dismissing Count II, reasoned:
“The second count of the petitions calls for the issuance of a writ of mandamus, directing the defendant to institute condemnation proceedings. A writ of mandamus will lie only when a public officer has a clearly specified duty, not involving discretion. The Court holds that such a clearly defined duty does not lie before the defendant, but rather a range of possibilities as to what course to follow in eminent domain proceedings. Where such discretion is involved, mandamus is not a proper remedy.”
We held in the first issue a compensable “taking” has not occurred in regard to plaintiffs property inasmuch as the plotting and planning in anticipation of the public improvement was not coupled with a legal restriction on the landowner’s use of the property. The public policy underlying such holding also compels that mandamus should not lie to compel the institution of eminent domain proceedings against plaintiffs property,
The district court was correct in concluding the defendant has no clearly defined duty to institute eminent domain proceedings under the circumstances here.
In Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 671 P.2d 559 (1983), the general rules relative to mandamus were stated as follows:
“K.S.A. 60-801 defines mandamus as a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.
“It has uniformly been held that the remedy of mandamus is available only for the purpose of compelling the performance of a clearly defined duty; that its purpose is to require one to whom the writ or order is issued to perform some act which the law specifically enjoins as a duty resulting from an office, trust, or station; that mandamus may not be invoked to control discretion and neither docs it lie to enforce a right which is in substantial dispute, and further, that resort to the remedy may be had only when the party invoking it is clearly entitled to the order which he seeks. (Following Lauber v. Fireman’s Relief Assn. of Salina, 195 Kan. 126, 402 P.2d 817 [1965].)
“The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus are such acts only as are in their nature strictly ministerial, and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed, (Following Martin, Governor v. Ingham, 38 Kan. 641, 17 Pac. 162 [1888].)” 234 Kan. 257, Syl. §§ 1, 2, 3.
The defendant had no clearly defined legal duty to institute eminent domain proceedings against plaintiffs property. We therefore conclude the district court did not err in dismissing Count II of plaintiff s petition.
For its third issue, plaintiff contends the district court erred in consolidating its case with that of Crupper Transport Company, Inc.
K.S.A. 60-242(a) provides when two or more actions involve common questions of law or fact a district court may order the actions consolidated for a single proceeding. The determination to consolidate actions lies within the sound judicial discretion of the district court. Aspelin v. Mounkes, 206 Kan. 132, 138, 476 P.2d 620 (1970). One who asserts the court has abused its discretion bears the burden of showing such abuse of discretion. Hoover Equipment Co. v. Smith, 198 Kan. 127, 134, 422 P.2d 914 (1967); Skahan v. Powell, 8 Kan. App. 2d 204, 208, 653 P.2d 1192 (1982); Lemons v. St. John’s Hospital of Salina, 5 Kan. App. 2d 161, 613 P.2d 957, rev. denied 228 Kan. 807 (1980); State v. Wright, 4 Kan. App. 2d 196, Syl. ¶ 5, 603 P.2d 1034 (1979), rev. denied 227 Kan. 928 (1980). Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men 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. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973); Cook v. Cook, 231 Kan. 391, 394, 646 P.2d 464 (1982).
There were many common facts in these cases. Each arose from the same highway project. Both plaintiff businesses alleged the same activities of defendant caused them injury. The same type of relief was sought in each case. Common questions of law were present. It is interesting to note both plaintiffs filed a joint brief before this court and raised identical issues therein.
We find this issue to be without merit.
Finally plaintiff contends the district court erred in denying its request for discovery.
Like the consolidation of cases, 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. Commercial Union Ins. Co. v. City of Wichita, 217 Kan. 44, Syl. ¶ 8, 536 P.2d 54 (1975). See also Binyon v. Nesseth, 231 Kan. 381, 646 P.2d 1043 (1982).
The factual basis and legal theories on which relief was sought in each count of the petition were before the district court. These were examined by the district court and it held plaintiff had failed to state a cause of action in either count. We have agreed with the district court’s determination relative thereto. Nothing has been presented to us to show discovery could in any way have affected the outcome herein.
We conclude no abuse of discretion has been shown relative to discovery.
The judgment is affirmed as to the appeal of appellant Lone Star Industries, Inc. The appeal of appellant Crupper Transport Company, Inc., is dismissed. | [
-48,
74,
-72,
92,
10,
96,
58,
57,
97,
-93,
101,
83,
-115,
-54,
1,
123,
-2,
29,
-44,
120,
-28,
-90,
67,
-14,
-42,
-78,
-45,
-35,
123,
79,
-26,
86,
76,
17,
-54,
23,
6,
-62,
69,
92,
-50,
4,
-103,
-56,
-63,
104,
-76,
-21,
20,
79,
17,
-84,
-13,
40,
25,
-63,
73,
44,
-101,
-83,
-63,
-8,
-88,
21,
95,
16,
33,
36,
-100,
5,
-56,
59,
-104,
-71,
48,
-88,
83,
-90,
6,
-12,
33,
-39,
8,
-90,
99,
49,
-107,
-81,
-20,
-104,
14,
90,
15,
-90,
-110,
24,
106,
65,
-106,
-99,
125,
22,
-61,
-2,
-18,
5,
23,
108,
-125,
-54,
-44,
-13,
15,
118,
-115,
1,
-21,
-123,
48,
96,
-51,
-26,
92,
71,
57,
-65,
15,
-112
] |
The opinion of the court was delivered by
Miller, J.;
This is an appeal from an order dividing the property of the parties following the granting of a divorce. This action was commenced in the district court of Russell County by the plaintiff, Mary Jane Reich, against the defendant, Dale Reich, seeking a divorce, division of property, alimony, attorney fees, and costs. A divorce was granted on November 23, 1982, on the grounds of mutual incompatibility, and no appeal was taken from that order. Both parties have since remarried.
After a full trial, the trial court divided the property between the parties, denied alimony or attorney fees, and taxed the costs to the plaintiff wife. The journal entry was filed on February 17, 1983, and it is from that order that the husband appeals. Three issues are raised: Whether the court abused its discretion in dividing the property; whether the court abused its discretion by failing to consider the tax consequences of its property division; and whether the wife’s proposed findings concerning alimony and division of property were erroneously admitted evidence of compromise.
The first issue requires us to review the facts. Plaintiff and defendant married on June 6, 1954. The couple started with little or nothing, but acquired substantial assets over the years. Much of the wealth consists of family ranch operations which the husband’s father started during the 1930’s and then gradually transferred to his son. Defendant paid for some of the land, but the bulk came to him by gift. Additionally, some other land has been purchased. The husband has been primarily a rancher and cattleman; the wife has not been employed outside the home. She has an artificial hip and a ruptured disc, anticipates additional surgery, and is unable to work.
The trial court awarded the entire ranch, including the almost-new home thereon, all of the stock, cattle, machinery and equipment, and a small Colorado property, to the husband. The court divided the mineral interests equally between the parties, with the provision that the wife’s portion be for life only and that upon her death her interest would revert to the surface owner of the land. The trial court awarded the wife a judgment in the amount of $500,000, payable $200,000 in cash, and the balance of $300,000 payable in twelve equal annual installments of $25,000 each, the first installment to have been paid February 1, 1984, with interest at eight percent per annum on the unpaid balance to have commenced accruing on that date. The judgment is made a lien upon the ranch. The trial court also awarded the wife a residence in Colorado. The trial court denied the wife’s request for alimony and attorney fees, and taxed the costs to her.
The property or interests passing to the parties under the court’s decree may be summarized as follows:
TO THE WIFE:
Money judgment $500,000.00
Life estate in minerals 85,000.00
Pitkin, Colorado, property 60,300.00
Total value .................... $645,300.00
(The parties are in agreement as to the foregoing values.)
WIFE’S HUSBAND’S
TO THE HUSBAND: VALUATION VALUATION
Cattle $ 192,170.00 $ 125,750.00
Minerals 85.000.00 85.000.00
Pasture land 463.230.00 409.394.00
Crop land 276.877.00 276.877.00
Farmstead & improvements 132.750.00 109.101.00
Equipment 203.241.00 182.100.00
Tin Cup Colo., property 10.000.00 10.000.00
Gross value $1,363,268.00 $1,198,222.00
Less current indebtedness 50,000.00 50,000.00
Net Value $1,313,268.00 $1,148,222.00
Disregarding the minerals, which the parties will share, the husband received all of the income-producing property — the ranch, machinery, equipment, cattle and feed. Total net value of that property is, by either party’s computation, well over a million dollars. Plaintiff s judgment is approximately half of that amount. We have not included in our computation the interest which may accrue in future years on plaintiff s judgment, or the income which may be earned or accrue to the husband in future years.
The statute which guides the courts in the division of property in divorce actions is K.S.A. 60-1610(h). That statute reads:
“(b) Financial matters. (1) Division of property. The decree shall divide the real and personal property of the parties, 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 kind; (B) awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum; or (C) ordering a sale of the property, under conditions prescribed by the court, and dividing the proceeds of the sale. In making the division of property the court shall consider the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property.”
The earlier forms of this statute have been held to vest the trial court with broad discretion. In Bohl v. Bohl, 232 Kan. 557, 561, 657 P.2d 1106 (1983), we said:
“There is no disagreement on the rules governing division of property pursuant to divorce. The trial court 'is under a duty to divide the marital property in a just and reasonable manner.’ K.S.A. 1981 Supp. 60-1610(d). In determining a just and reasonable division of the property the trial court should consider: (1) the ages of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) the present and future earning capacities of the parties; (5) the time, source and manner of acquisition of property; (6) family ties and obligations; (7) the question of fault when determined; and (8) the allowance of alimony or the lack thereof. Powell v. Powell, 231 Kan. 456, 459, 648 P.2d 218 (1982); Parish v. Parish, 220 Kan. 131, 133-34, 551 P.2d 792 (1976).
“ Tn a divorce action the district court is vested with broad discretion in adjusting property rights, and its exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse.’ Powell, 231 Kan. at 459. See also Downing v. Downing, 218 Kan. 549, 542 P.2d 709 (1976). ‘[Discretion is abused only where no reasonable [person] would take the view adopted by the trial court. If reasonable [persons] could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.’ Powell, 231 Kan. at 459. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).”
The statute today remains substantially as it has been for many years, the only notable exception being the deletion of “fault” from the items which the trial court must consider, and appellant does not contend that that item was considered here.
Appellant contends that he will be required to sell the ranch, or at least liquidate a major portion of his assets, in order to satisfy the judgment which the trial court awarded to the plaintiff. Appellant cites a number of cases from other jurisdictions which espouse the desirability of keeping the family farm together as a matter of public policy. He also cites the following .language from Bohl v. Bohl:
“However, we recognize and acknowledge it would be unfair to require Mr. Bohl to liquidate his company and turn the proceeds over to Mrs. Bohl with nothing left for him. If this were the case it would defeat the trial court’s goal of dividing the marital property equally.” 232 Kan. at 565.
We do not disagree with the statements quoted above, but feel that they are not applicable here. First, Mr. Reich testified that he wanted to keep the ranch together and wished to take his son in as a partner and pass the ranch along to him. The trial judge awarded the entire property to Mr. Reich, thus indicating his intention that the property should be kept together and in the family. The judge also heard argument that the proposed judgment would cause the defendant to liquidate the ranch, but he was not required to accept such contentions. In any event, the evidence does not show that Mr. Reich is left with nothing, nor does it show that the trial court’s goal of dividing the property equally has been defeated.
Mrs. Reich presented testimony that a local bank had extended to her a letter of credit for the sum of $750,000 and that the bank would extend similar credit to the defendant. In addition, the trial court had before it testimony that the defendant had substantial cash flow, including a net cash flow for the first nine months of 1981 of more than $70,000, and that he had purchased large amounts of new equipment within the past few years without borrowing money to do so. There was also evidence that defendant’s taxable income for the years 1980 and 1981 was not large, but defendant’s tax returns were in evidence and the trial court had an opportunity to examine the figures contained therein. Upon a thorough examination of the evidence, we are not convinced that the defendant will be compelled to liquidate the ranch in order to meet the payments required of him by the trial court’s judgment. True, he may be required to borrow; but that is not grounds for setting aside the trial court’s judgment.
In Stayton v. Stayton, 211 Kan. 560, 506 P.2d 1172 (1973), we said:
“We have said many times that the district court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action and that its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse. ... In determining the amount in each case the trial court may, among other things, take into consideration the conduct of the parties, their financial situation, the needs and the earning capacities of the parties, and make such an award as will be just and reasonable under all' the circumstances. The discretion of the trial court is, of course, subject to appellate review and correction where there has been a clear-cut abuse of discretion. In its exercise a judge may not be arbitrary or whimsical. We have held on a number of occasions that abuse of judicial discretion, as that term is ordinarily used, implies not merely an error in judgment, but perversity of will, passion or moral delinquency when such discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence.
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men 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. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” 211 Kan. at 561-562.
Applying those rules to the facts before us, we do not find that the trial court’s action was “arbitrary, fanciful or unreasonable,” or that “no reasonable man would take the view adopted by the trial court.” We hold that the trial court did not abuse its discretion.
Next, we turn to the issue of tax consequences. The defendant contends that the trial court failed to consider the tax consequences of its order. Defendant would obviously prefer a more modest award to the wife, and one which would permit the payment to be tax deductible to him. While the trial court did not specifically state on the record that it was taking into consideration the various provisions of the Internal Revenue Code, the trial court was presented with much evidence and argument regarding the tax aspects of any proposed order in this case. We cannot say that the trial court ignored that evidence.
Finally defendant contends that the trial court erred when it permitted the plaintiff to testify that she was willing to pay the defendant $700,000 for his interest in the ranch. This was not an offer of compromise but a statement of the plaintiff s proposed valuation and division of property. K.S.A. 60-452, relating to the nonadmissibility of evidence of offers to compromise damage or loss, is inapplicable. The evidence was relevant and admissible.
Defendant’s primary argument is that he will be required to liquidate the ranch in order to pay the judgment, and that the trial court should have made the payments taxable to the wife as alimony, rather than taxable to the husband as division of property- The trial court exercised its judgment in ordering the payments specified, and we cannot say that it abused its discretion. The matter of forced liquidation is one of argument, which was not persuasive when made to the trial court and is not persuasive here. The matter of to whom the payments are taxable will vary from case to case, depending upon the type of payment ordered. Here, the trial court denied alimony but decreed an equitable division of property. We find no abuse of discretion and no reversible error.
The judgment is affirmed. | [
-47,
110,
-107,
108,
10,
96,
42,
-103,
112,
-81,
51,
83,
-21,
-6,
16,
121,
50,
63,
64,
106,
-42,
-77,
23,
96,
127,
-77,
-71,
-36,
-77,
76,
-92,
87,
79,
32,
-126,
21,
102,
-62,
-63,
80,
-122,
70,
-117,
125,
-40,
66,
52,
107,
114,
9,
33,
-113,
-13,
45,
61,
66,
44,
46,
11,
52,
-104,
-72,
-85,
12,
95,
2,
-111,
0,
-56,
68,
-56,
90,
-112,
49,
0,
-24,
123,
-74,
-122,
116,
78,
-69,
9,
100,
98,
17,
77,
-49,
112,
-120,
14,
89,
-99,
-91,
-48,
88,
42,
64,
-66,
-100,
101,
-106,
7,
-2,
109,
13,
93,
108,
28,
-50,
-46,
-77,
-113,
120,
-104,
8,
-29,
-93,
49,
113,
-53,
-94,
94,
103,
123,
-101,
-57,
-10
] |
The opinion of the court was delivered by
Miller, J.:
This is a taxpayer’s appeal from a judgment of the Wyandotte District Court affirming an order of the Board of Tax Appeals which upheld an assessment of sales and compensating taxes by the Kansas Department of Revenue. J. G. Masonry, Inc., a masonry construction firm of Kansas City, Kansas, is the taxpayer and appellant. Following an audit of the taxpayer’s records in 1980, the Department assessed additional unpaid taxes on several services and business transactions occurring in the years 1977, 1978 and 1979. Total taxes, interest and penalties amounted to $2,912. Five questions are presented, two regarding the sales tax, K.S.A. 79-3601 et seq., and the then-current amendments, and three regarding the compensating tax, K.S.A. 79-3701 et seq., as then constituted. Each issue is based upon different facts, so we will discuss separately the facts applicable to each.
I. THE “ORIGINAL CONSTRUCTION” AND “BUILDING” EXEMPTIONS IN K.S.A. 1978 Supp. 79-3603
The taxpayer first contends that two of its construction projects upon which sales taxes were levied come within the “original construction” exemption of the statute and thus should not have been taxed. The pertinent portions of the statute read:
“79-3603. Tax imposed; rate. From and after the effective date of this act, for the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act, there is hereby levied and there shall be collected and paid a tax as follows:
“(p) a tax at the rate of three percent (3%) upon the gross receipts received for the service of installing or applying tangible personal property which when installed or applied is not being held for sale in the regular course of business, and whether or not such tangible personal property when installed or applied remains tangible personal property or becomes a part of real estate, except that no tax shall be imposed upon the service of installing or applying tangible personal property in connection with the original construction of a building or facility or the construction, reconstruction, restoration, replacement or repair of a bridge or highway. The tax imposed pursuant to this subsection shall not be applicable to said services which were rendered on and after the effective date of this act pursuant to a written contract for a fixed price and not subject to negotiation or alteration entered into prior to May 15, 1977.
“For the purposes of this subsection:
“(1) ‘Original construction’ shall mean the first or initial construction of a new building or facility. The term ‘original construction’ shall include the addition of an entire room or floor to any existing building or facility, the completion of any unfinished portion of any existing building or facility and the restoration, reconstruction or replacement of a building or facility damaged or destroyed by fire, flood, windstorm, hailstorm, rainstorm, snowstorm, lightning, explosion or earthquake, but said term shall not include replacement, remodeling, restoration, renovation or reconstruction under any other circumstances;
“(2) ‘Building’ shall mean only those enclosures within which individuals customarily live or are employed, or which are customarily used to house machinery, equipment or other property, and including the land improvements immediately surrounding such building . . . .”
In April or early May 1979, J. G. Masonry, Inc. (J. G.), built an office at the Perk Foods plant. The office is described as having four freestanding walls and a roof. It is wholly within the plant building and is “a building within a building.” Similarly, in June 1979, J. G. built an office inside the Midwest Conveyor plant. Again, it consists of four freestanding walls and a roof. It is “a building inside a building.” Taxpayer contends that these rooms were “original construction,” as that term is used in 79-3603(p)(l), because each is “the addition of an entire room ... to [an] existing building . . . .” J. G. argues that it added a new room to each plant. The State claims that the statute exempts only rooms added to the exterior of buildings, and in support of its argument it cites K.A.R. 1983 Supp. 92-19-31. That regulation as originally adopted by the secretary of revenue was submitted to the 1979 session of the Kansas Legislature and was modified by Senate Concurrent Resolution No. 1627. The modified regulation, set forth in 1979 Session Laws, chapter 349, reads in part as follows:
“92-19-31. Installation or application of tangible personal property, (a) General rule. Kansas sales tax must be collected by the retailer on total gross receipts received for the service of installing or applying tangible personal property. A retailer of the service of installing or applying tangible personal property is the person who performs such service.
“(b) Original construction. No tax is imposed upon the service of installing or applying tangible personal property in connection with the original construction of a building or facility. (1) The addition of a room or floor inside an existing building is not considered to be original construction. The addition of an entire room or floor to the exterior of an existing building or facility is considered to be original construction.” (Emphasis in original.)
The administrative regulation makes it clear that a building inside a building or a room within a room is not original construction. Administrative regulations, when adopted, have the force and effect of statutes. Jones v. The Grain Club, 227 Kan. 148, Syl. ¶ 1, 605 P.2d 142 (1980); Harder v. Kansas Comm’n on Civil Rights, 225 Kan. 556, Syl. ¶ 1, 592 P.2d 456 (1979). This resolution became effective on May 1, 1979, and thus was in full force at the time of the Midwest Conveyor construction. Whether it is applicable to the Perk Foods job depends upon the time that work was done, and the record shows only that the work was done in “April or early May.”
Nevertheless, this issue may be decided on the basis of KS.A. 1978 Supp. 79-3603(p)(l) alone, without resort to the regulation. That portion of 79-3603(p)(l) here applicable speaks of “the addition” of a room. “Addition” is defined in Webster’s Third New International Dictionary (1964) as “a part added to or joined with a building to increase available space.” To add is to enlarge. Neither the Perk Foods nor the Midwest Conveyor projects resulted in any increased available space in either plant; rather, the available space inside the plant was subdivided in order to make it usable for a particular purpose. The original structure was not enlarged. The interior of the plant was merely remodeled.
The sales tax statutes are penal, and thus must be strictly construed in favor of the taxpayer. State v. Zimmerman & Schmidt, 233 Kan. 151, 155, 660 P.2d 960 (1983). The rule of strict construction, however, does not permit a disregard of manifest legislative intention appearing from plain and unambiguous language. State v. Howard, 221 Kan. 51, 54, 557 P.2d 1280 (1976). The legislative language speaks of “the addition of an entire room.” The plain and ordinary meaning of that language is not the dividing of one room into two or more rooms; it connotes an addition to the building. We conclude that the statute does not exempt from the sales tax the construction of a building within a building or a room within a room. The Board of Tax Appeals and the district court did not err in finding the construction at the Perk Foods and Midwest Conveyor plants subject to the Kansas sales tax.
In August 1978, J. G. erected masonry walls to screen and surround a trash and debris area outside of and adjacent to the existing Midwest Conveyor plant. J. G. contends that this project is exempted from sales tax by the last portion of K.S.A. 1978 Supp. 79-3603(p)(2), which exempts “land improvements immediately surrounding such building.”
The first portion of 79-3603(p) imposes a sales tax; later, the same section exempts “the original construction of a building.” Subsection (1) defines original construction as “the first or initial construction of a new building,” and, as noted above, subsection (2) defines “building” to include the land improvements immediately surrounding the building. Read together and taken in context, these provisions of the act exempt new buildings from the imposition of sales tax. Included within the initial exemption are all exterior improvements — steps, sidewalks, retaining walls, landscaping, and parking lots, for example — which are built or installed in connection with the original construction. The taxpayer urges a construction of the statute that would exempt any exterior improvements added to the property at a later date, long after the completion of the original building. This, it seems to us, is a strained construction, not within the legislative intent as expressed in the clear terms of the statute. The walls erected in the trash area, built as a separate project and not as a part of the original building construction, were not exempt from sales tax.
Four other jobs performed by J. G. were also assessed with sales tax by the Kansas Department of Revenue. In February 1978, J. G. rebuilt a wall which had been damaged by a truck at the Perk Foods plant. In April 1978, J. G. rebuilt a wall which had been damaged by a vehicle at Keils liquor store. In April 1979, J. G. cut a hole in a masonry wall and built an opening to receive an overhead door at the Perk Foods plant. Finally, in July 1979, J. G. repaired and enlarged a retaining wall after a truck had collided with the prior wall at the Perk Foods plant. Appellant does not argue against these four assessments in its brief and we find no provisions of the statute which would exempt these projects from the imposition of the sales tax. The walls in question were not damaged or destroyed by “fire, flood, windstorm, hailstorm, rainstorm, snowstorm, lightning, explosion or earthquake,” and thus the reconstruction of these four walls was properly subjected to the tax.
II. THE VAGUENESS ISSUE
Appellant contends that K.S.A. 1978 Supp. 79-3603(p) is unconstitutionally vague. The legal standards for determining whether a statute is unconstitutionally vague and indefinite were stated by Justice (now Chief Justice) Schroeder in Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65, modified 221 Kan. 752, 564 P.2d 1280 (1977). The issue in that case was whether K.S.A. 1974 Supp. 79-3603(p), the predecessor of the provision now at issue, was constitutional. The section was declared unconstitutionally vague. The rules leading to this declaration were stated as follows:
“[T]he basic test as to what constitutes an unconstitutionally vague and indefinite statute is stated in Connally v. General Const. Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126 [1925], There the current rate of wages in the locality was to be paid to persons employed by or on behalf of the State of Oklahoma. In holding the words ‘current rate of wages’ and ‘locality’ were vague, the United States Supreme Court enunciated the rules to be applied. The court said:
“ ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. . . .’ (p. 391.) [Citations omitted.]
“Since the Kansas Retailers’ Sales Tax Act provides for monetary fines or imprisonment, or both, for violating the provisions of the act, the rule in Connally must be applied.
“The court in Connally goes on to point out that statutes which employ terms that have a technical meaning understood by those who are to be affected by the statute, or employ terms that have a well settled meaning at common law, are generally upheld when attacked for being vague or indefinite. The appellant concedes the words used in 79-3603(p) are not technical in nature.
“Our Kansas cases have employed virtually the same test as originally stated in Connally, only adding that if the words used in a statute have been previously judicially construed, the statute will not be considered vague. In Unified School District No. 255 v. Unified School District No. 254, 204 Kan. 282, 463 P.2d 499 [(1969)] the court held:
“ ‘A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previouslyjudicially defined, or having a settled meaning in law.’ (p. 288.)
“At its heart the test for vagueness is a commonsense determination of fundamental fairness.
“There are three terms used in 79-3603(p), supra, which cause particular concern to those liable for the collection of the tax. The first term is ‘tangible personal property’; the second term is ‘original construction’; and the third term is ‘structure.’ ” 221 Kan. at 662-63.
The court went on to discuss the three terms and found their then-undefined use in the statute to be vague and their meaning uncertain. Bolstered by some 500 opinions — some conflicting— written by the legal division of the revenue department and interpreting the act, the court held the statute unconstitutional. These constitutional defects have since been remedied by the legislature. See L. 1977, ch. 337, § 2.
Additional rules for determining whether a statute is unconstitutionally vague are collected in State v. Lackey, 232 Kan. 478, 479-80, 657 P.2d 40 (1983).
K.S.A. 1978 Supp. 79-3603(p), like its predecessor considered in Kansas City Millwright, uses words which are not technical in nature. There is no evidence that the statute has been the subject of myriad departmental rulings as was its predecessor. “Original construction,” “building” and “structure” have been statutorily defined, and the legislatively approved regulation, quoted above, aids in explaining the statute. Though one witness for the taxpayer complained of problems generally in interpreting the statute, another witness obviously had not read the statute and was unfamiliar with the fire, flood, windstorm and other natural calamity exceptions which are carefully spelled out in the act. We have discussed above the taxpayer’s contentions as to the application of the statute to the rooms and the walled-in trash area, and find the statute sufficiently clear and understandable, when considered in its entirety. We conclude that the statute now before us is not vague and indefinite, and not constitutionally infirm.
III. THE “FREIGHT CHARGE” ISSUE
J. G. next contends that the tax imposed by K.S.A. 79-3701 et seq., the compensating or use tax, is unconstitutional because the tax must be paid not only on the sale price of the item purchased but also upon the freight charges from the place of purchase to the person using the property in this state. It claims that this discriminates against out-of-state sellers since in-state sellers may absorb the cost of transportation to the point of sale and charge sales tax only on the freight charges from seller to buyer. Thus, the taxpayer contends that the act conflicts with the commerce clause, article I, section 8, of the Constitution of the United States, by placing an impermissible burden on interstate commerce.
Let us examine the statutes and regulations. K.S.A. 79-3703 imposes a tax of 3% upon the consideration paid by the taxpayer. K.S.A. 79-3702(a) defines “purchase price” as the consideration paid plus the actual cost of transportation from the place where the article was purchased to the person using the same in this state.
The applicable regulations have been in effect since January 1, 1972. K.A.R. 92-20-1 explains the purposes of the Kansas Compensating Tax Act. It reads:
“92-20-1. Purposes. The Kansas compensating (use) tax act, as amended, .supplements the Kansas retailers’ sales tax act by imposing a like tax for the privilege of using, storing, or consuming within this state tangible personal property purchased at retail or for the privilege of utilizing taxable services within this state and in respect to which property or taxable services neither sales tax nor use tax of three percent (3%) or more has been imposed by this state or any other state.”
K.A.R. 92-20-4 deals with the imposition of the tax on transportation costs. It provides in applicable part:
“92-20-4. Purchase price, consideration, trade-ins. The actual cost of transportation from the place where the article was purchased to the person using the same in this state is taxable as a part of the consideration and purchase price. Transportation costs mean freight, express, parcel post, or other hauling charges. It shall include charges for crating, packing and preparing tangible personal property for shipment.”
Similarly, K.S.A. 1978 Supp. 79-3603 imposes a 3% sales tax upon the gross receipts received from the sale of tangible personal property within this state, and K.S.A. 1978 Supp. 79-3602(g) defines “selling price” as “the total cost to the consumer . . . including freight and transportation charges from retailer to consumer.” Section 3602(h) defined “gross receipts” as “the total selling price.” Thus, both the compensating tax and the sales tax are computed as 3% of the total sale price plus the freight charges from seller to buyer.
Neither tax is imposed upon the shipping charges from manufacturer, wholesaler or distributor to the seller. Such charges form a part of the seller’s cost and are reflected in the sale price. But shipping charges incurred after the sale and arising upon shipment from seller to buyer are alike subject to the same rate of tax. This is true whether the purchase is made in-state or out, whether near or far from the buyer’s designated point of delivery.
The taxpayer relies primarily upon two cases, Halliburton Oil Well Co. v. Reily, 373 U.S. 64, 10 L.Ed.2d 202, 83 S.Ct. 1201 (1963), and Chicago Bridge & Iron Company v. Cocreham, 317 So. 2d 605 (La. 1975), cert. denied 424 U.S. 953 (1976). We find both cases distinguishable on the facts. Halliburton struck down a Louisiana use tax as discriminating against interstate commerce. Louisiana applied its use tax to the cost of labor and shop overhead in the assembly of machinery that was put together in another state and then brought into Louisiana, but its sales tax did not apply to the cost of labor and shop overhead in the assembly of machinery put together within the state. Similarly, its use tax applied to isolated sales of equipment bought out of state and brought in, but its sales tax did not apply to isolated sales within the state. The court said:
“The conclusion is inescapable: equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.” 373 U.S. at 70.
Chicago Bridge and Iron followed the Halliburton rationale. A Louisiana use tax on freight charges applied to out-of-state purchases, and the Louisiana sales tax did not apply to freight charges on in-state sales. The use tax act was discriminatory, and was held unconstitutional.
In the recent case of Maryland v. Louisiana, 451 U.S. 725, 68 L.Ed.2d 576, 101 S.Ct. 2114 (1981), the Supreme Court in an original action struck down a Louisiana “First-Use Táx” imposed on certain uses of natural gas brought into that state principally from offshore gas wells in the Outer Continental Shelf (OCS). The tax was so structured that its imposition fell not on consumers within the state, but only on the ultimate consumers of the gas outside of Louisiana. Holding that the tax was discriminatory and thus unconstitutional under the commerce clause, the court said:
“In our view, the First-Use Tax cannot be justified as a compensatory tax. The concept of a compensatory tax first requires identification of the burden for which the State is attempting to compensate. Here, Louisiana claims that the First-Use Tax compensates for the effect of the State’s severance tax on local production of natural gas. To be sure, Louisiana has an interest in protecting its natural resources, and, like most States, has chosen to impose a severance tax on the privilege of severing resources from its soil. [Citations omitted.] But the First-Use Tax is not designed to meet these same ends since Louisiana has no sovereign interest in being compensated for the severance of resources from the federally owned OCS land. The two events are not comparable in the same fashion as a use tax complements a sales tax. In that case, a State is attempting to impose a tax on a substantially equivalent event to assure uniform treatment of goods and materials to be consumed in the State. No such equality exists in this instance.
“The common thread running through the cases upholding compensatory taxes is the equality of treatment between local and interstate commerce. See Boston Stock Exchange [v. State Tax Comm’n], 429 U.S. [318] at 331-332, [50 L.Ed.2d 514, 97 S.Ct. 599 (1977)]; Henneford v. Silas Mason Co., 300 U.S. 577, 583-584 [81 L.Ed. 814, 57 S.Ct. 524] (1937). See generally Halliburton Oil, 373 U.S., at 70 (‘equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state’). As already demonstrated, however, the pattern of credits and exemptions allowed under the Louisiana statute undeniably violates this principle of equality. As we have said, OCS gas may generally be consumed in Louisiana without the burden of the First-Use Tax. Its principal application is to gas moving out of the State. Of course, it does equalize the tax burdens on OCS gas leaving the State and Louisiana gas going into the interstate market. But this sort of equalization is not the kind of ‘compensating’ effect that our cases have recognized.'
“In conclusion, we hold that § 1303C violates the Supremacy Clause and that the First-Use Tax is unconstitutional under the Commerce Clause.” 451 U.S. at 758-760.
In 1959, Justice (now Chief Justice) Schroeder authored a unanimous opinion for this court in the case of Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 334 P.2d 808 (1959). The case involved G. S. 1949, 79-3701 et seq., as then amended. These statutes are the forerunners of our present compensating tax act. G. S. 1949, 79-3702, as amended in 1957, defined “purchase price” exactly the way it is now defined by K.S.A. 79-3702 — the consideration paid plus “the actual cost of transportation from the place where the article was purchased to the person using the same in this state.” Interestingly, the Retailers’ Sales Tax Act then applicable did not make the sales tax applicable to intrastate freight charges from seller to buyer. That statute was changed in 1971 to make the tax applicable to freight and transportation charges from retailer to consumer. See L. 1971, ch. 321, § 1. The language adopted in 1971 is retained in our present statute, K.S.A. 1983 Supp. 79-3602.
The issue of freight charges was not raised in Custom Built Homes, but the act was attacked as violating the interstate commerce clause. Citing Henneford v. Silas Mason Co., 300 U.S. 577, 81 L.Ed. 814, 57 S.Ct. 524 (1937), and Southern Pac. Co. v. Gallagher, 306 U.S. 167, 83 L.Ed. 586, 59 S.Ct. 389 (1939) (neither of which has since been reversed or overruled), the opinion states:
“The imposition of a ‘use’ tax by Kansas is not violative of the interstate commerce clause of the Federal constitution merely because the merchandise was transported to Kansas from the State of Minnesota. When merchandise transported in interstate commerce has arrived at its destination and is there held for use or disposal, it passes under the protection of state law and becomes subject to the taxing and police power of the state.” Custom Built Homes, 184 Kan. at 45.
The history, scope and purpose of the Kansas sales tax and compensating tax acts have been set forth in several of our cases. See United Parcel Service, Inc. v. Armold, 218 Kan. 102, 104, 542 P.2d 694 (1975); Custom Built Homes, 184 Kan. at 41; General Motors Corporation v. State Comm. of Rev. & Taxation, 182 Kan. 237, 242-243, 320 P.2d 807, cert. denied 358 U.S. 875 (1958); Consumers Co-operative Ass’n v. State Comm. of Rev. & Taxation, 174 Kan. 461, 464-465, 256 P.2d 850 (1953); Southwestern Bell Tel. Co. v. State Commission of Revenue and Taxation, 168 Kan. 227, 230-231, 212 P.2d 363 (1949); Natural Gas Pipeline Co. v. Commission of Revenue & Taxation, 163 Kan. 458, 463, 183 P.2d 234 (1947). In General Motors, Justice Price gave this summary:
“The sales tax law levies a tax of two per cent upon the privilege of selling tangible personal property at retail in this state, or rendering or furnishing certain services therein. Under that law the event which gives rise to the tax is the sale of tangible personal property at retail, or the rendering or furnishing certain services. The law is framed, and has been construed, so that the transaction which is taxed is that by which a commodity moves to the ultimate consumer, whoever he may be.
“With the enactment of the sales tax law another problem arose. Much property is purchased outside the state and brought into the state for various purposes. Kansas could not tax the privilege of selling property when the sale took place beyond its borders. In other words, the necessity for a ‘use’ tax arose from the fact that a state is without power to tax sales which are completed beyond its territorial limits. The result of this situation was the enactment of the so-called ‘use tax’ law, here involved. The two laws are, from a practical standpoint, complementary and supplemental to each other, and are to be construed together. Under the ‘use tax’ law the taxable event giving rise to the imposition of the tax is not the sale but is the use, storage or consumption of property within the state which was acquired by purchase outside the state.” (Emphasis in original.) 182 Kan. at 242-43.
Our sales and use taxes still complement each other, and still serve the same purposes. The use or compensating tax equalizes the ultimate consumer cost, whether the consumer buys within or without the state. Delivery charges from seller to consumer are subject to the same rate of tax as a part of the cost of the item. Transportation costs between manufacturer, distributor and seller, whether in-state or out-of-state, are not separately taxed, but are reflected in the price which seller must charge buyer and therefore contribute to the retail selling price which is subject to tax. All tangible property sold, used or consumed in the state is subject to a uniform tax burden regardless of the location of the seller. The 1971 change in section 79-3602 of our sales tax statutes, noted above, serves to strengthen our conviction that our sales and compensating tax laws are constitutional. We adhere to our ruling in Custom Built Homes and hold that the Kansas Compensating Tax Act, K.S.A. 79-3701 et seq., does not violate the commerce clause, article I, section 8, of the United States Constitution.
IV. COMPENSATING TAX NOT “COLLECTED OR COLLECTIBLE”
In August 1978 and June 1979, J. G. ordered office supplies by telephone from a firm in Chicago, Illinois. The cost of the supplies totaled $160, and the tax thereon is about $4.80. The taxpayer complains about the imposition of compensating tax on those purchases, and relies upon the proviso contained in K.S.A. 79-3705a, which reads:
“If the tax levied under K.S.A. 79-3703 is not collected or collectible by the retailer, then the person using, consuming or storing tangible personal property in this state shall file a return and pay the tax, as required by K.S.A. 79-3706.”
The taxpayer makes no claim that any Illinois sales tax was paid, that the out-of-state seller was the holder of a permit to collect Kansas compensating tax, pursuant to K.S.A. 79-3705d, or that the taxpayer has paid any compensating or sales tax on these purchases. Instead, taxpayer claims that the phrase “not collected or collectible” should be read “neither collected nor collectible,” and that when so read, the court should hold that the Chicago company could have collected the tax and therefore the State cannot look to the purchaser-consumer for payment of the tax.
This is a strained construction of the act which we decline to follow. The word “collected” is clear, and there is no claim that the tax was collected. The word “collectible,” in the context of its use in the compensating tax statutes, indicates “capable of being collected” in the sense that the seller was authorized to collect the tax for the State of Kansas. There is no showing here that the seller was so authorized. We find no error in this assessment.
V. APPLICATION OF THE USE TAX TO IN-STATE RETAIL SALES
Finally, the taxpayer objects toan assessment of compensating tax on its purchase of antifreeze from a Standard Oil retail sales outlet in Kansas City. The service station did not collect sales tax on J. G.’s $383 purchase in October 1977. The tax involved is about $11.50. So far as is disclosed by the record, this transaction took place entirely within this state.
K.S.A. 79-3603 (Weeks 1969) imposed a sales tax of 3% upon the total selling price received from the sale of personal property at retail within this state. The following section, 79-3604, required the consumer to pay the tax to the retailer, and imposed a duty upon the retailer to collect the tax. Section 79-3607 required the retailer to file a monthly return to the director of revenue, and to pay to the director the amount of the tax imposed by the Act. Ensuing sections contain provisions for penalties and interest and for the enforcement of the act by the director against delinquent retailers.
The State contends that it is authorized by K.S.A. 79-3703 to collect compensating tax from the consumer where the sales tax is not charged, collected or paid by the retailer. That section reads in part:
“All property purchased or leased within or without this state and subsequently used, stored or consumed in this state shall be subject to the compensating tax if the same property or transaction would have been subject to the Kansas retailers’ sales tax had the transaction been wholly within this state.” (Emphasis added.)
The difficulty with this argument is that the transaction was wholly within this state. The statutes authorized the State to collect the sales tax from the retailer, not directly from the consumer. We find no provision in the statutes authorizing the State to invoke the provisions of the compensating tax act and proceed directly against the consumer where the sales transaction was wholly within this state and subject to the provisions of the Sales Tax Act. The taxpayer is correct in its objection to this assessment.
The judgment is modified by deleting therefrom the assessment for compensating tax and any interest and penalties based upon the retail purchases made by the taxpayer through the Standard Oil retail sales outlet in Kansas City, Kansas. In all other respects, the judgment is affirmed. | [
-47,
-22,
-4,
-52,
58,
-62,
114,
-97,
81,
-75,
-73,
83,
77,
-118,
21,
123,
-69,
29,
-44,
98,
-61,
-77,
3,
-118,
-108,
-69,
-47,
-35,
-71,
79,
-92,
-60,
76,
49,
74,
-75,
38,
-62,
77,
92,
78,
2,
10,
-51,
-7,
97,
52,
-23,
50,
11,
-79,
-113,
115,
40,
28,
-63,
72,
44,
91,
42,
-127,
-80,
-86,
21,
95,
21,
49,
20,
-40,
-57,
-40,
-118,
-104,
113,
64,
-24,
115,
-90,
-58,
-12,
47,
-69,
9,
108,
98,
32,
21,
-49,
-4,
-104,
14,
-46,
-99,
-25,
-109,
25,
50,
-83,
-106,
-99,
125,
2,
4,
124,
-26,
20,
-97,
109,
15,
-114,
-26,
-111,
-115,
117,
-101,
3,
-1,
-127,
50,
97,
-49,
2,
94,
87,
50,
-101,
-105,
-8
] |
The opinion of the court was delivered by
Cook, J.,
District Judge Assigned: This is an appeal from an order of the district court denying defendants-appellants further relief after receiving the mandate of this court in an earlier appeal, Provance v. Shawnee Mission U.S.D. No. 512, 231 Kan. 636, 648 P.2d 710 (1982) (hereafter Provance I).
The original action below involved the attempted closing of the Antioch Elementary School in Johnson County, Kansas. A detailed factual statement of the events which originally brought the action before this court is set forth in Provance I and will not be repeated herein. Rather, we will limit the factual recitation in this opinion to events pertinent to this appeal.
Antioch Elementary School is a part of the Shawnee Mission Unified School District No. 512. On September 22, 1980, the Superintendent of Schools of the Shawnee Mission School District recommended to the Board of Education that Antioch be closed at the end of the 1980-81 school term. After consideration of the factors outlined in K.S.A. 72-8136b, the Board adopted a resolution stating its tentative intention to approve the recommendations of the superintendent and close the school. A final decision to close the school was made on December 17, 1980, after a public hearing. Thereafter, in accordance with K.S.A. 72-8136e(h), a petition was submitted to the Johnson County election commissioner demanding that a referendum election be held on the issue of the closing of Antioch Elementary School. That election was held on April 7, 1981, and the forces in favor of keeping the school open won a narrow victory.
Plaintiff, D. William Provance, resides in the northwest area of the school district, approximately 2.7 miles from Antioch Elementary School. Because of the location of his residence within the Shawnee Mission School District in relation to Antioch Elementary School, he was not permitted to vote in the referendum under the provisions of K.S.A. 72-8136e(h) and (c). Prior to the election Provance filed a petition seeking a judgment declaring the school closing statutes unconstitutional because of the manner in which they limited participation in school closing referenda. He also sought an injunction prohibiting the continued operation of Antioch solely on the basis of the results of the referendum and a writ of mandamus directing the School Board to conduct all elections held pursuant to K.S.A. 72-8136e on a district-wide basis.
Defendants-appellants were allowed to intervene below and Provance consented to allow the referendum to be held, subject to the trial court’s determination regarding its validity. After trial the court held K.S.A. 72-8136e unconstitutional in part as viola tive of the 14th Amendment to the U.S. Constitution. The appeal in Provance I followed.
Our decision in Provance I upholding the constitutionality of the school closing referendum statute, K.S.A. 72-8136e, was filed July 16, 1982. Motions for rehearing were denied on October 29, 1982, and the time for appeal to the United States Supreme Court expired February 4, 1983.
On February 14, 1983, appellants Balsinger and Blecke filed a motion in the original proceedings seeking “a hearing on the issue of reopening the Antioch School and for such other relief as the Court deems proper in accordance with the mandate of the Supreme Court.” Memorandums were filed and considered by the trial court, but no evidentiary hearing was held nor any evidence introduced, either by proof or stipulation. On June 16, 1983, the trial court issued a memorandum opinion denying appellants’ motion. Judge Walton concluded he was without jurisdiction to entertain the motion:
“In this action the Defendant-intervenors base their claim of trial court jurisdiction upon the mandate from the Kansas Supreme Court. The mandate provides:
‘The judgment of the district court is reversed. The April 7, 1981, referendum was valid.’
It is clear that the order from the Supreme Court is silent with respect to remand directions. It simply provides that the judgment of the district court is reversed. It is an opinion on the issues of law as provided in K.S.A. 60-2106(c). There is no order that the school be re-opened or any directions that this court proceed in that direction. Thus, the mandate fails to give this court any continued jurisdiction to grant the relief requested. Absent an express remand or directive from the Kansas Supreme Court, this court simply does not have jurisdiction.”
The journal entry of final judgment denying relief was filed August 30, 1983. The present appeal was filed September 15, 1983.
Appellants contend the trial court erred in refusing to assume further jurisdiction in the original proceedings and now it is necessary for this court “to clarify its mandate and order the trial court to take such action as is necessary to return the parties to the same positions they were in prior to the District Court’s erroneous decision in ordering Antioch Elementary School closed.”
Appellants have cited several cases purporting to support their position we should amplify or supplement our prior mandate. In West v. Insurance Co., 105 Kan. 414, 185 Pac. 12 (1919), we amplified a prior mandate by directing the district court to tax against plaintiff all costs incurred from the time an offer to submit to a judgment was made by the defendant and to determine what part of the attorney’s fee awarded plaintiff was earned prior to the receipt of the offer to confess judgment. There plaintiff had sued defendant upon an insurance policy for the loss of certain farming equipment and a corn shredder and belt, all of which had been destroyed by fire. Before filing an answer, the defendant offered to confess judgment for the destruction of the farming equipment, but disclaimed liability for the corn shredder and belt. Defendant also agreed that interest, costs and attorney’s fees would be added to the judgment it was willing to confess. The offer was declined and, after a jury trial, judgment was entered for destruction of all the property including the corn shredder and belt. The judgment was appealed and we held the corn shredder and belt were not covered by the insurance policy. Our later amplification went to. the issue of apportionment of costs and attorney’s fees which were a part of the subject matter in the original proceedings. We held “if the snarl pertained in any way to some matter presented to us in the original appeal, or which in any degree frustrates the efficacy of our mandate already issued, the mandate may be recalled, corrected, amplified or modified as justice may require.” West, 105 Kan. at 415-16.
In Union Central Life Ins. Co. v. Irrigation L. & T. Co., 146 Kan. 545, 73 P.2d 70 (1937), we held this court had authority to issue an additional or supplemental mandate directing the trial court to hear evidence and pass upon controverted issues not previously determined. Plaintiff had sued to foreclose its mortgage on land, obtained a decree of foreclosure and a sheriff s deed based thereon, and went into possession of the property. It was later questioned whether the title owner of the land had been made a party to the foreclosure action. Plaintiff then filed an action to quiet title, basing its action on the sheriff s deed and contending the proper party had been made a defendant in the foreclosure action. The defendant in the new action filed his answer and asked for affirmative relief to be restored to possession of the property and for judgment against plaintiff for actual damages for the two crop years plaintiff had been in possession. Plaintiff replied alleging it had paid taxes on the land for the two years in question. The trial court rendered judgment for plaintiff and the issues of taxes and rental were not addressed. Defendant appealed, and this court reversed the judgment of the trial court with directions to enter judgment for the defendant, holding the sheriff s deed void. After the mandate of this court was spread of record in the trial court, defendant requested, among other things, that judgment be entered against plaintiff on his rent claim. The trial court declined to do so and defendant filed a motion in this court asking for an order directing the trial court to enter such a judgment. We issued a supplemental mandate directing the trial court “ ‘to hear such evidence as may be offered by either party and to decide as to the reasonable rental value of the real estate in question during the time that appellee was in possession of it and allow judgment for appellant for that amount less the. taxes paid by appellee.’ ” Union Central Life, 146 Kan. at 546-47. It was clear' there had been no trial or determination on the issue of rents ánd taxes and those were issues set forth in the original pleading. They had to be determined by a further hearing in the original case, or in a separate action. Under those circumstances it was proper for this court to give supplemental directions to the trial court in order to allow the parties the opportunity to fully litigate the issues before the court in the original proceedings.
In a more recent decision, Bartlett v. Davis Corporation, 219 Kan. 148, 547 P.2d 800 (1976), we held the effect of a reversal by this court of a district court’s ruling in connection with a motion to dismiss or for summary judgment, where no judgment is directed, is the same, for the purpose of further proceedings in the district court, as if the district court had made the correct ruling in the first instance, except that the district court has no authority to change or modify the ruling made by this court. There the issue was whether our reversal of the trial court’s order dismissing the cross-petition for indemnity was a complete and final judgment determining that cross-petitioner was entitled to indemnification. We concluded that our prior decisions did not construe the indemnity provisions of the contract and thus we made no decision on liability under the indemnity provision which could have become the settled law of the case. Bartlett, 219 Kan. at 152-53.
It should be apparent the cases cited by appellant do not address the issues in the instant appeal. This action was originally filed in the district court for declaratory judgment, injunction and mandamus. Plaintiff filed the action to determine whether the school closing statutes were unconstitutional because of the manner in which they limited participation in school closing referenda. He also sought an injunction prohibiting the continued operation of Antioch School, solely on the basis of the results of the referendum and a writ of mandamus directing the school board to conduct all elections held pursuant to K.S.A. 72-8136e on a district-wide basis. The appellants were allowed to intervene below with the same rights and privileges as original defendants, including the right of appeal. The trial court held K.S.A. 72-8136e unconstitutional in part as violative of the 14th Amendment to the United States Constitution. The intervenors appealed from that ruling.
The only issues before this court in Provance I were the propriety of the order allowing intervention and the constitutionality of the school closing statutes. We were not asked to decide whether Antioch School should be re-opened and our decision and mandate did not address that issue. Appellants are now asking not only for an expansion of our prior decision but also for an expansion of the issues joined in the original proceedings. We can find no precedent, either by statute or prior case law, for such extraordinary relief. Although we have recognized our authority to recall, correct, amplify or modify a prior decision or mandate entered by this court, along with authority to issue an additional or supplemental mandate directing a trial court to hear evidence and pass upon controverted issues not previously determined, we have never been called upon to do so outside the scope of the joined issues. Any previous amplification or modification of a decision or mandate of this court was directed toward resolving or finalizing issues which were proper subject matters of the original proceedings.
There must be some finality injudicial decisions. When a trial court has jurisdiction of the parties and of the subject matter of an action and renders a judgment within its competency, such judgment is final and conclusive unless corrected or modified on appeal. The jurisdiction and authority to enter a judgment includes the power to decide a case wrongly. Taber v. Taber, 213 Kan. 453, 516 P.2d 987 (1973). If parties were permitted to re-open cases after final judgment and litigate matters not properly pled or considered in the original action, there could never be finality in the judicial decision.
We do not construe K.S.A. 60-2106 as authority for this court to expand, by remand directions to the trial court, issues which were not the proper subject matter of the litigation below. If our decision and mandate is fully determinative of the issues presented in the proceedings below, they become a part of the judgment in the case without further order of the trial court. It is only where our decision and mandate does not fully determine the issues pending before the trial court that directions are necessary or appropriate to control the conduct of further proceedings to resolve any remaining issues.
The sole substantive issue before the trial court and before this court in Provance I was the constitutionality of K.S.A. 72-8136e. The trial court had jurisdiction of the parties and the subject matter and entered a judgment within its competency. Its decision was final and conclusive until corrected on appeal. After the trial court’s decision there were no issues left undecided. This court reversed the trial court on appeal and held K.S.A. 72-8136e was valid. We gave no directions to the trial court in our mandate because our decision was fully determinative of the issues presented below. We now decline to open up or expand these proceedings to matters which were never before the trial court.
We would be remiss in failing to mention some additional reasons why we decline to remand the present case back for further hearing. Both the briefs submitted by the parties herein and the memorandum decision of the trial court mention that the Shawnee Mission School Board, on December 9, 1981, during the pendency of the appeal in Provance I, passed a new resolution to close Antioch Elementary School. This second resolution announced the Board’s intention of closing the school at the end of the 1981-82 school year. Apparently no protest petition was filed in opposition to the closing and defendant-intervenors did not seek the extraordinary remedy of injunction from either the trial court, under K.S.A. 60-262(<i), or K.S.A. 60-901 et seq., or this court, under K.S.A. 60-2103(d). The briefs and memorandum decision also allude to the fact that Antioch School was closed at the end of the 1981-82 school term and the building was sold on July 1, 1982, to Heritage Hills, Inc., an affiliate of Shawnee Mission Medical Center, for use in conjunction with certain health care needs. It appears the new owners may have substantially altered the building to suit their own needs.
Appellants seek a remand with directions to the trial court to proceed on their motion to re-open Antioch School. Such hearing would require the trial, court to hear evidence pertaining to the second closing resolution inasmuch as appellees contend the school was closed and sold as a result of the December 9, 1981, resolution rather than on the strength of the original resolution and subsequent court proceedings. A new hearing would also require the joinder of an additional, contingently necessary party. Heritage Hills, Inc. is now in possession of the property under color of title. It is elementary that notice and an opportunity to be heard are essential to any judgment affecting personal or property rights. Sweetser v. Sweetser, 7 Kan. App. 2d 463, 643 P.2d 1150 (1982).
A remand, as requested by appellants, would clearly mean an expansion of the original issues and the joinder of an additional party. It is conceivable that such relief may be appropriate in an instance where the issues actually raised below have not been fully determined and where a final judgment has not been rendered. But where, as in the instant case, those issues have been fully determined and a final judgment entered, such relief is inappropriate.
The judgment of the district court is affirmed.
Holmes, J., not participating. | [
-107,
-52,
-108,
12,
58,
-64,
95,
30,
121,
-77,
101,
83,
-19,
-38,
20,
123,
-97,
45,
-48,
121,
-59,
-73,
83,
-128,
-96,
-5,
-14,
-35,
-69,
-3,
-12,
-41,
72,
49,
26,
-43,
-122,
74,
-51,
-44,
-114,
35,
-85,
-41,
84,
-125,
60,
99,
26,
15,
37,
62,
-13,
40,
28,
-61,
73,
45,
89,
33,
23,
-39,
60,
-107,
95,
23,
-111,
37,
-102,
-121,
64,
122,
-112,
57,
0,
-24,
115,
34,
6,
-10,
3,
-55,
8,
36,
98,
67,
-68,
-17,
-68,
-120,
14,
119,
29,
102,
-105,
25,
96,
-124,
-74,
-99,
117,
22,
11,
-6,
-62,
4,
31,
108,
-124,
-54,
-72,
51,
79,
57,
-102,
3,
-5,
20,
48,
49,
-39,
-74,
94,
-46,
50,
-101,
-50,
-104
] |
The opinion of the court was delivered by
Lockett, J.:
This case is before the court on a Petition for Review. Waunetta Atkinson, a teacher employed by the Board of Education, Unified School District No. 383, appealed from an order of the district court dismissing her appeal to the district court of Riley County. The Court of Appeals reversed the trial court. 9 Kan. App. 2d 175, 675 P.2d 917 (1984). Much of Judge Parks’ Court of Appeals majority opinion has been incorporated into this opinion.
On April 15, 1982, the defendant Board of Education of Unified School District No. 383 [the Board] notified Ms. Atkinson, after 12 years of service, it would not renew her contract of employment. Ms. Atkinson requested a due process hearing which was held on July 20 and 21. The hearing committee recommended to the Board that plaintiff s employment contract not be renewed. On September 1 the Board, in an open meeting which Ms. Atkinson did not attend, voted to concur with the hearing committee’s recommendation not to renew Ms. Atkinson’s employment. K.S.A. 72-5436 et seq. In a letter dated and mailed September 3, the Board notified the teacher of its decision not to renew her contract.
On October 5, 1982, pursuant to K.S.A. 72-5443 (since amended) and K.S.A. 60-2101(d) (since amended), Ms. Atkinson filed her notice of appeal with the district court of Riley County. The Board, by mail, received the notice of Ms. Atkinson’s appeal on October 6. At a hearing prior to trial, the district court sustained the Board’s motion to dismiss the appeal on the ground that Ms. Atkinson’s notice of appeal had not been timely filed. The teacher appealed from that order to the Court of Appeals which reversed the trial court, determining the teacher’s, Ms. Atkinson, notice of appeal had been timely filed. This court accepted the Board’s Petition for Review.
A teacher is entitled to appeal from a school board’s decision to terminate his or her contract pursuant to K.S.A. 72-5443, which provides:
“Unless otherwise agreed to by both the board and the teacher, the hearing committee shall render a written recommendation not later than thirty (30) days after the close of the hearing, setting forth its findings of fact and recommendation as to the determination of the issues. The recommendation of the hearing committee shall be submitted to the teacher and to the board which shall, after considering the hearing committee’s recommendation and after hearing oral argument or receiving written briefs from the teacher and a representative of the board, decide whether the teacher’s contract shall be renewed or terminated, which decision shall be final, subject to appeal to the district court as provided by K.S.A. 60-2101. The decision of the board shall be submitted to the teacher not later than thirty (30) days after the close of oral argument or submission of written briefs. ” Emphasis supplied.
Ms. Atkinson’s notice of appeal was filed with the district court October 5, 1982, 32 days after the Board mailed the teacher notice of its decision to terminate her employment. The Board received its notice of Ms. Atkinson’s appeal October 6, 1982, 33 days after mailing notice of its decision to terminate the teacher’s employment. In dispute is whether plaintiff s filing of the notice of appeal from the Board’s decision was timely under K.S.A. 60-2101(d), which states in part:
“If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered.”
In order to decide the timeliness of the notice of appeal, the Court of Appeals had to determine when the period for declaring the intention to appeal began to run and when that period expired. K.S.A. 60-2101(<i) indicates that an appeal from a school board decision must be filed 30 days from the “entry” of its “judgment or order.” In the context of a civil action, the entry of judgment takes place when a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court. K.S.A. 60-258.
We agree with the Court of Appeals that the determination of when the judgment of a quasi judicial administrative body is entered for the purposes of appeal is complicated by the lack of any uniform statutory procedures. However, we have recognized that entry of judgment is generally the ministerial act of recording the judgment rather than the judicial act of rendering it. In re Estate of Penn, 216 Kan. 153, 155, 531 P.2d 133 (1975). Thus, if an analogy is drawn to judicial proceedings, the entry of an administrative order should take place when the decision of the agency is in some manner officially recorded. In LeCounte v. City of Wichita, 225 Kan. 48, 587 P.2d 310 (1978), the court began the counting of the 30-day period on the day “the city retirement board announced and gave notice to plaintiff that his claim for disability retirement would not be reopened or considered.” 225 Kan. at 52. In an appeal from a civil service board’s dismissal of employment, this court considered the date of the entry of the Board’s order to be when the board “announced its decision which was made a part of its minutes.” Thompson v. Amis, 208 Kan. 658, 659, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972). Here there is no indication in the record that the minutes of the school board’s decision were released or published or indeed that such a procedure is in any way mandated. However, K.S.A. 72-5443 does include a provision requiring the school board to submit its decision to the teacher not later than thirty days after the close of oral argument or submission of written briefs. In light of the inclusion of this language in the statute, we find it consistent to view the notice which must be given the teacher as the ministerial act signaling entry of judgment.
The appellate jurisdiction of the district court to review the Board’s decision was created by statute. Jurisdiction of the district court to review the decision of the Board is acquired when the appellant properly follows the procedural steps to confer jurisdiction upon the district court to review. Statutory rules of appellate procedure usually receive liberal construction to accomplish the ends of justice, although such statutes are strictly construed.
The time for requesting a review of the Board’s refusal to renew the teacher’s contract is limited to 30 days from the date of entry. K.S.A. 60-2101(d). The date the decision of the Board became final is determined by K.S.A. 72-5443. The Board, after receiving the recommendation of the hearing committee, must reach a final decision within 30 days, subject to certain statutory extensions which delay commencement of the 30-day period for the Board to reach a decision. The statute requires the decision of the Board shall then be submitted to the teacher.
Entry of the Board’s decision to be effective under K.S.A. 72-5443 requires for the Board’s decision to be submitted to the teacher. Is there a distinction between the term service and submitted? Service is defined as:
“The exhibition or delivery of a writ, summons and complaint, criminal summons, notice, order, etc., by an authorized person, to a person who is thereby officially notified of some action or proceeding in which he is concerned, and is thereby advised or warned of some action or step which he is commanded to take or to forbear.” Black’s Law Dictionary 1227 (5th ed. 1979). Emphasis supplied. See also K.S.A. 60-205(a) requiring service of pleadings.
Chief Judge Foth in his dissent argues “service” is a term of art. He states that submission could take place by the teacher’s presence at the Board’s meeting, by a face-to-face conversation, or by telephone. None of the above acts would be proper service of notice on paper, but each would be a submission of the Board’s decision sufficient to comply with the requirements of K.S.A. 72-5443. 9 Kan. App. 2d at 180.
“Submit” is defined as “to present or make available for use or study.” Webster’s Third New International Dictionary 2277. In 40 Words and Phrases 631 “submit” is defined as “to leave or commit to the discretion of another, to present for determination.” Submission under K.S.A. 72-5443 implies the Board must present the teacher with notice of its decision. This notice required by K.S.A. 72-5443 is necessary to commence the running of the appeal time allowed under K.S.A. 60-2101(d). See LeCounte v. City of Wichita, 225 Kan. 48, 52, and Daniels v. Chaffee, 230 Kan. 32, 630 P.2d 1090 (1981). Unless the decision of the Board is submitted, i.e., made available to the teacher, the teacher would be unable to exercise her discretion to determine whether or not she will exercise her right to appeal the Board’s decision not to renew the employment contract.
Under most Kansas statutes, the time for taking an appeal does not commence to run until the party- having the right to appeal has received notice of the judgment or order or the judgment is filed with the clerk of the court. The reason to require notice to the party is to insure that the party entitled to appeal has actual knowledge that an adverse judgment has been rendered.
The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. In re Lakeview Gardens, Inc., 22TI Kan. 161, 605 P.2d 576 (1980). Where the legislature has provided the right of an appeal, the minimum essential elements of due process of law, in an appeal affecting a person’s life, liberty or property, are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. State v. Durst, 235 Kan. 62, 678 P.2d 1126 (1984). The method of notice required by due process must insure that the party entitled to an appeal receives notice. To insure that the teacher whose contract is not to be renewed received notice, the statute required that the decision of the Board not to renew the contract of employment be submitted to the teacher.
Therefore, the Court of Appeals correctly concluded that the announcement by the Board of September 1 merely constituted the rendering of an order as opposed to the entry of an order of judgment. Furthermore, it held that when the Board mailed to the teacher its decision, by letter dated September 3, that her contract would not be renewed, the act of depositing the letter in the mail constituted the submission of the Board’s decision not to renew the teacher’s contract. Time for appeal pursuant to K.S.A. 72-5443 began to run when the decision of the Board was submitted (mailed) to the teacher.
In determining the time limitation for seeking judicial review pursuant to K.S.A. 72-5443 and K.S.A. 60-2101(cZ), the Court of Appeals determined, and both the parties accepted, the provisions of K.S.A. 60-206(a) applied. K.S.A. 60-206(c) provides in part:
“In computing any period of time prescribed or allowed by this chapter . . . or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.”
Applying K.S.A. 60-206(a), the Court of Appeals agreed with the trial court that the first day of the teacher’s filing period was September 4, 1982.
What was the date upon which the time for filing the appeal to the district court expired? Ms. Atkinson asserts that when the Board chose to submit by mail its decision to the teacher she was entitled to three additional days in which to act, pursuant to K.S.A. 60-206(e), which states:
“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail, three (3) days shall be added to the prescribed period.”
The Court of Appeals initially pointed out that article two of chapter 60 of the Kansas Statutes Annotated governs the procedure of all actions in the distinct courts of Kansas except for those actions commenced under Chapter 61. K.S.A. 60-201, K.S.A. 60-265. The Board cited federal court decisions which refused to apply Rule 6 (e) of the Federal Rules of Civil Procedure to appeals from various federal administrative boards and agencies. See, e.g., Army and Air Force Exchange Service v. Hanson, 250 F. Supp. 857 (D. Hawaii 1966). However, these cases were distinguished by the Court of Appeals because they involved appeals governed by specific statutory provisions which limit the total appeal time to a certain number of days. There appears no authority for exempting a K.S.A. 60-2101(d) appeal to the district court from any of the provisions of K.S.A. 60-206.
The Board contended that subsection (e) should not be applied because service of a notice is not required as a condition for an appeal. The majority of the Court of Appeals reasoned K.S.A. 72-5443 required the Board to submit its decision to the teacher. They had determined that it is the submission which triggers the right to appeal. The use of the word submitted rather than served in K.S.A. 72-5443 was of little consequence. It was the submission of the Board’s decision by mail which required plaintiff to file her notice of appeal within a 30-day period for appeal or forfeit the right. Therefore, when the Board submitted its decision to the teacher by mail it brought into play the provisions of K.S.A. 60-206(e), which increased the 30-day filing period to 33 days. It is held that when notice of a school board’s decision as required by K.S.A. 72-5443 is submitted by mail, and it is the submission of this decision which commences the time to take an appeal, the three-day extension of time permitted by K.S.A. 60-206(e) applies. Ms. Atkinson had timely invoked the jurisdiction of the district court to hear her appeal. The district court erred when it ruled the teacher’s appeal to the district court was not timely.
Judgment of the Court of Appeals is affirmed. Judgment of the district court is reversed and the case is remanded to the district court for trial on its merits.
Holmes, J., not participating. | [
-108,
-24,
-44,
28,
10,
-63,
122,
-106,
121,
-75,
38,
83,
109,
-101,
29,
121,
-45,
45,
81,
104,
66,
-73,
83,
-128,
54,
-5,
-37,
-35,
-69,
94,
-12,
86,
72,
48,
10,
-43,
6,
-61,
77,
80,
-116,
6,
11,
-40,
83,
-29,
60,
43,
58,
10,
49,
62,
-13,
40,
28,
-61,
-20,
58,
89,
-83,
22,
-79,
-70,
-121,
127,
86,
-109,
5,
-98,
-121,
-56,
46,
-104,
49,
8,
-20,
50,
-26,
-126,
-12,
13,
-103,
8,
99,
98,
35,
-76,
-19,
-76,
-119,
14,
90,
45,
-94,
-104,
24,
99,
5,
-108,
-100,
116,
22,
67,
126,
-25,
6,
31,
108,
10,
-54,
-8,
-111,
15,
48,
-126,
11,
-5,
32,
48,
81,
-55,
-28,
92,
-57,
51,
83,
-18,
-68
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an action to quiet title to residential property located in Johnson County, Kansas. The district court quieted title in the property in the name of Robert and Dona Jones (defendants), subject to existing mortgages, liens and other encumbrances on the property. These include a judgment lien in favor of Gene and Joyce McDaniel (plaintiffs) and tax liens in favor of the United States of America (intervenor). The court further ordered the property be foreclosed to satisfy these liens. Each of these parties has appealed from parts of the judgment.
The facts involved span a period of over twenty years. In 1959 the defendants purchased a home located at 8900 Delmar in Prairie Village, Kansas, for $61,000. Part of the purchase price was paid in cash and the remainder was financed through two mortgages. Beginning in 1963 the defendants began to encounter financial difficulties. They fell behind in making payments to one of the mortgagees and tax liens were filed against them by the federal government for unpaid income taxes. In August 1963 the mortgagee instituted foreclosure proceedings against the property. The property was foreclosed upon and was sold at a sheriff s sale in November 1963. The defendants were unable to obtain refinancing to redeem the property due to the outstanding tax liens and other financial problems. In early 1964 Mr. Jones sought assistance from Mr. McDaniel, his law partner, in obtaining refinancing for the property. McDaniel was aware of the defendants’ financial problems and was concerned about his law partner losing his home. Jones and McDaniel entered into an oral agreement that the property would be conveyed to McDaniel to enable him to secure a loan to redeem the property. Jones and his family would continue to live in the house and pay all expenses for the property for which McDaniel would be liable as record title owner, including the mortgage, insurance and tax payments.
McDaniel subsequently obtained a mortgage on the property of approximately $40,000 from Mission State Bank. McDaniel was the sole obligor on the mortgage. The proceeds of the mortgage were used to redeem the property for the Joneses by paying off the two prior mortgages and the defendants’ various tax liabilities secured by liens against the property. Jones paid the fees and costs incurred in obtaining the mortgage. The warranty deed conveying the property from the defendants to McDaniel and the mortgage held by Mission State Bank were recorded in 1964. In October of that year Mission State Bank assigned the mortgage to Prudential Insurance Company. At that time the president of the bank wrote Jones notifying him that “your loan” was sold to Prudential.
Subsequently the defendants made payments on the mortgage directly to Prudential, and maintained insurance on the property listing Prudential as the loss payee. They also paid for repairs and improvements to the house. In 1965 both McDaniel and Jones submitted financial statements to a bank in connection with attempts to obtain financing for their partnership. Jones listed the residence at 8900 Delmar as an asset with the $40,000 mortgage thereon as a liability. McDaniel did not list the property as an asset nor the mortgage as a liability.
During 1966 Prudential was required to advance funds for the payment of taxes on the property when the defendants were late in making such payments. In early 1967 Prudential declared the mortgage in default and indicated it would commence foreclosure proceedings. McDaniel and Jones attempted to reinstate the mortgage in accordance with the terms of a demand letter sent by Prudential which required payment of the amount then due and execution of an affidavit setting forth the interests of the defendants in the property. A check drawn on the trust account of the Jones and McDaniel law firm for the amount due was returned by Prudential for failure to furnish the requested affidavit. A foreclosure action was filed by Prudential against McDaniel, the defendants and the United States. (Additional tax liens had been filed against the defendants since 1964.) Subsequently, Jones forwarded an affidavit to Prudential’s counsel stating “[t]hat he occupies the premises at 8900 Delmar, Prairie Village, Kansas, not under any lease agreement, purchase contract or mortgage assumption agreement, but by virtue of oral agreement between the affiant and Gene A. McDaniel, the owner of the fee interest in said property.” This affidavit was rejected by Prudential. McDaniel and Jones later received a letter from Prudential setting forth five specific requirements for reinstatement, including execution of an affidavit prepared by Prudential’s counsel. This affidavit states McDaniel is the fee title owner of the real estate and further reads:
“[T]hat affiant [McDaniel] does not live or reside on the real estate above described, but that Robert C. Jones and Donna Jones, his wife, are in possession thereof as month-to-month tenants of affiant as lessor; that said tenants, Robert C. Jones and Donna Jones, occupy the said real estate under an oral month-to-month lease arrangement with affiant and said tenants, Robert C. Jones and Donna Jones, are in possession of said real estate only under such oral tenancy arrangement and do not occupy said premises under or by virtue of any written lease agreement, trust, purchase contract, option or mortgage assumption agreement and said Robert C. Jones and Donna Jones have no interest whatsoever in said real estate, except as such month-to-month tenants.”
This document was executed by McDaniel and Jones in order to comply with the reinstatement requirements and was forwarded to Prudential along with other requested documents and the funds due. The letter from Prudential also directed that all further payments were to be made from McDaniel’s individual account and not from the law firm account or a trust account established for McDaniel and Jones. Thereafter the defendants made payments in the amount of the mortgage payments to McDaniel, who in turn made the mortgage payments to Prudential. The defendants continued to pay all expenses incurred for maintenance, taxes and insurance on the property.
Beginning in 1967 and continuing through 1980 when this lawsuit commenced, the plaintiffs reported the money they received from the defendants for the mortgage payments as rental income on their federal income tax returns. In addition, they claimed deductions relating to the property for depreciation, taxes and interest on the mortgage. For six of those years the plaintiffs reported net losses in connection with the property. The remaining years, however, they realized net gains on the rental income received from the defendants, on which they were required to pay income taxes.
Also during this time the Internal Revenue Service apparently became suspicious of the dealings between the plaintiffs and defendants concerning the property and conducted an investigation to determine if it could levy against the property to satisfy the defendants’ tax liens. The aforementioned affidavit submitted to Prudential indicating McDaniel was the fee title owner of the property was given to the I.R.S. to preclude it from levying on the property.
At various times prior to 1980 Jones and McDaniel discussed the possibility of reconveying the property to the defendants. In 1972 a deed was purportedly executed by the plaintiffs convey ing the property to the defendants. However, this deed was not notarized, dated or recorded. In 1974 another deed was allegedly executed by the plaintiffs conveying the property to Chris and Naomi Jones, the parents of Robert Jones. This deed was notarized by Joyce Jordan, but was not recorded and instead was kept at the defendants’ residence. Apparently Chris and Naomi Jones had no knowledge of the conveyance. After this deed was executed the defendants continued to make payments to the plaintiffs for the mortgage on the property.
In August 1979, Robert Jones requested an associate in his law office to prepare a memorandum on the tax consequences of a transfer of the property to a third party or as a gift from the plaintiffs to the defendants. Because of the tax liens pending against him, Jones was interested in the possibility of transferring the property to his son. The associate later drafted a followup memorandum for McDaniel concerning the gift tax consequences which would be involved in a transfer of the house from McDaniel to Jones. At about this time the defendants unsuccessfully listed the property for sale with a realtor with an asking price of $225,000. McDaniel did not raise any objections to the proffered sale.
In May 1980, Jones and McDaniel dissolved their partnership. Thereafter, Jones either ceased or was late in making mortgage payments to the plaintiffs. In August, McDaniel demanded that Jones pay him $2,250 per month for rent instead of the $281.20 per month mortgage payments which had been made since 1964. When these payments were not forthcoming the plaintiffs notified the defendants they were terminating their “lease” and instituted a forcible detainer proceeding on October 16, 1980. The defendants offered to immediately pay off the mortgage on the property, which the plaintiffs refused. The defendants then recorded the 1974 deed on October 30, 1980. Shortly thereafter the forcible detainer action was dismissed by the district court and the instant lawsuit was filed.
When this case was presented to the trial court, the plaintiffs maintained they purchased the property from the defendants in 1964 as an investment and, because of the partnership relationship between McDaniel and Jones, it was agreed the defendants would continue to live in the house until their children were grown, at which time the plaintiffs would sell it at fair market value. They argued the defendants were month-to-month tenants and the affidavit submitted to Prudential by McDaniel and Jones accurately reflected their agreement concerning the property. As their “rent” payment the defendants were required to pay the amount of the mortgage payments ($281.20 per month), plus pay all other expenses incurred for maintenance, insurance and taxes on the property. According to McDaniel’s testimony, he was prompted to purchase the property for at least two reasons: (1) he wanted to help his law partner out of a bad situation, and (2) it presented an investment opportunity which would not cost him anything. The plaintiffs denied executing the 1972 and 1974 deeds reconveying the property to the defendants and maintained their signatures thereon were forgeries. The plaintiffs also sought damages from Joyce Jordan and her bonding company, Maryland Casualty, for her notarization of the allged forged signatures.
The defendants, on the other hand, claimed the property was conveyed to McDaniel only to enable them to obtain refinancing for the defendants to allow them to redeem the property from foreclosure. Once the defendants’ tax and other financial problems were resolved the property would be reconveyed to the defendants. McDaniel would not lose any money at all on the deal and, because the property was worth substantially more than $40,000 in 1964, he assumed no risk in obtaining the loan. They argued the affidavit submitted to Prudential did not represent their agreement and was signed only because Prudential would not reinstate the loan without it. They further maintained the 1974 deed was in fact executed by the plaintiffs because they no longer wanted the property in their name. The deed was not recorded at that time, however, because the defendants did not think it was necessary due to the amicable business relationship between the parties, and because McDaniel was concerned about the tax consequences of the reconveyance.
After the case was presented to the trial court, but before judgment was rendered, the United States filed a motion to intervene in order to assert the outstanding federal tax liens against any interest which the defendants held in the property. The court granted the motion over the defendants’ objections. Subsequently, an evidentiary hearing was held to allow the United States to present evidence concerning the tax liens.
In a comprehensive memorandum decision filed on December 23,1982, the trial court dismissed the action against Chris Jones, Naomi Jones, Joyce Jordan and Maryland Casualty Company, for lack of personal jurisdiction. (Chris Jones had died in 1975; the others were not residents of Kansas and had not subjected themselves to jurisdiction here.) The trial court held the conveyance of the property from the defendants to McDaniel in 1964 did not pass fee simple title to the plaintiffs, but was intended to secure an equitable mortgage on the property of $40,000. Accordingly, the defendants remained fee title owners of the property. This interest, however, was subject to a lien in favor of the plaintiffs for money expended since 1980 for mortgage payments, taxes and interest, in addition to an equitable award of a four percent interest charge or “risk factor” on the $40,000 to compensate the plaintiffs for the risks they were subjected to on the loan obtained for the benefit of the defendants. This lien came to a total of approximately $44,500. The defendants’ interest in the property was also subject to federal tax liens totaling approximately $233,800. The plaintiffs’ judgment lien was held to have priority over the tax liens. The trial court ordered that the property be foreclosed to satisfy these liens and held the foreclosure was not barred by any homestead rights held by the defendants. In addition, the court held the 1974 deed was void because as equitable mortgagees the plaintiffs had no right, title or interest which they could convey, and because no consideration was given for the deed.
The defendants appeal from all rulings adverse to them. The plaintiffs contend the trial court erred in finding they were not the fee simple title owners of the property. The United States appeals the court’s ruling subordinating the federal tax liens to the plaintiffs’ award.
Initially we must consider a motion filed by the defendants seeking involuntary dismissal of the cross-appeals of both the plaintiffs and the United States on the grounds of acquiescence in the lower court’s judgment. After entry of final judgment the plaintiffs filed a motion to obtain an order from the district court directing the sale of the property to satisfy their judgment. At this time no appeals had been perfected. On March 31, 1983, the district court entered an order for the sale of the property. On April 15, 1983, the court entered an order establishing a viewing schedule for prospective purchasers of the property and the redemption periods for the parties. A similar order extending the time for viewing the property was filed on May 26, 1983. Meanwhile, the parties had all filed notices of appeal and had docketed their appeals with the Clerk of the Appellate Courts.
On May 18, 1983, the defendants filed an application with this court for a stay of the proceedings to enforce the judgment without a supersedeas bond. A memorandum of law opposing this motion was filed by the United States. The defendants’ motion was denied on June 3, 1983. Subsequently steps were taken by the United States and the plaintiffs to enforce the order of sale. The property was sold at a sheriff s sale on July 28, 1983, to a third party for $85,000. Part of the proceeds from the sale was used to pay court costs, publication expenses and outstanding taxes. Various motions were filed by the defendants requesting that the trial court deny confirmation of the sale and that the proceeds from the sale be impounded pending the outcome of the appeal. The United States filed a memorandum of law opposing the defendants’ motion. The sale was confirmed by the district court on November 4, 1983. Thereafter the defendants redeemed the property by tendering the purchase price plus other expenses which were found to be owing. These funds were impounded by the district court pending the outcome of the appeal.
The defendants contend both the plaintiffs and the United States, by virtue of their actions resulting in the foreclosure and sale of the property, have voluntarily complied with the trial court’s judgment, thereby losing their right to appeal. The rules on acquiescence in a judgment were summarized in Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. ¶¶¶ 6, 7, 8, 597 P.2d 1080 (1979):
“The general rule, subject to certain exceptions, is that a party to litigation who has acquiesced in the judgment of the trial court either by assuming the burden of such judgment or by accepting the benefits thereof will be deemed to have acquiesced in such judgment and may not thereafter adopt an inconsistent position and appeal from such judgment.”
“Where a judgment or decree involves distinct and severable matters, demands or issues, an acceptance of the burdens or benefits of one or more parts thereof will not prevent an appeal as to the remaining contested matters, demands or issues.”
“When a party to an appeal has paid or otherwise assumed the burden of any portion of a judgment rendered against such party, including the payment of costs, such party will not be deemed to have acquiesced in the judgment so long as the issues on appeal cannot affect the payments made or burdens assumed and such payment or burden is not involved in the issues on appeal. Likewise, any party to an appeal who accepts such payment shall not be deemed to have acquiesced in the judgment so long as the issues on appeal do not affect the obligation for the payment of or the right to receive such portion of the judgment.”
See also Halpin v. Frankenberger, 231 Kan. 344, 348, 644 P.2d 452 (1982); Garden City Country Club v. Commercial Turf Irrig., Inc., 230 Kan. 272, 274-75, 634 P.2d 1067 (1981); City of Topeka v. Stauffer Communications, Inc., 7 Kan. App. 2d 353, 354-55, 642 P.2d 120 (1982). The gist of acquiescence sufficient to cut off a right to appeal is voluntary compliance with the judgment. Haberer v. Newman, 219 Kan. 562, 566, 549 P.2d 975 (1976).
The plaintiffs have appealed from the trial court’s decision finding the defendants were fee title owners of the property and granting the plaintiffs an equitable mortgage on the property. They contend the trial court should have quieted fee title to the property in them. However, after the trial court’s final judgment was entered and while this appeal was pending before the appellate courts, the plaintiffs and the United States vigorously pursued the remedy of foreclosure granted to them by the trial court in order to satisfy their judgments. The proceeds from the sale were not sufficient to satisfy both judgments.
Although this court is reluctant to deny litigants their right to a review of questions on the merits, nevertheless, it is impossible to find reasons why the plaintiffs have not acquiesced in the judgment by their actions. In seeking and obtaining execution of the judgment by causing the property to be foreclosed and sold, the plaintiffs have impliedly recognized the validity of the trial court’s judgment granting them an equitable mortgage on the premises and the right to foreclose to satisfy the mortgage.
In 4 Am. Jur. 2d, Appeal and Error § 264, it is stated:
“The right to appeal or bring error may.be waived by pursuing another, inconsistent remedy. There is considerable authority that a party against whom an adverse judgment has been rendered and who, pending an appeal therefrom, prosecutes another action based on the same cause and involving the same parties and issues, will be held to have waived or abandoned his right to appeal.”
See also 4 C.J.S., Appeal and Error § 222. In 4 C.J.S., Appeal and Error § 220 the rule is recognized that a party who enforces his judgment waives his right to appeal:
“A party who enforces payment or satisfaction of a judgment or decree in his favor, by suing out execution or otherwise, generally waives his right to bring or prosecute an appeal or writ of error, although the execution was ordered under a misapprehension, for which appellee was not responsible. Under this general rule a right of appeal is waived, even though appellant claims that the judgment is for less than he was entitled to recover, unless there is a statutory provision to the contrary. . . .
“However, the right to appeal or bring error is not waived where the judgment or decree is of such a character, or the circumstances are such, that there is no inconsistency between such enforcement and the appeal or proceeding in error . . . .”
More specifically relating to the instant case, 4 C.J.S., Appeal and Error § 221 states:
“A mortgagee cannot appeal from a judgment or decree of foreclosure, after judgment or decree has been satisfied, by his causing a sale to be made of the mortgaged premises thereunder. In such a case the mortgagee waives his right to appeal from that part of the decree which gives judgment for a less sum than is claimed to be due . . . .”
Ry their actions the plaintiffs have clearly accepted the benefit of the court’s judgment and therefore must be deemed to have acquiesced in such judgment, unless it can be said there is no inconsistency between the execution of the judgment and the issues raised by the plaintiffs on appeal, or the issue raised will not affect the obligation for payment or the right to receive such portion of the judgment. Neither is true in the instant case. The foreclosure and sale of the property to satisfy the equitable mortgage awarded by the trial court to the plaintiffs is absolutely inconsistent with the plaintiffs’ contention that the court erred in failing to find they were fee title owners of the property. Under the theories advanced by the parties either the plaintiffs were fee title owners and the defendants were month-to-month tenants, or the defendants were fee title owners and the plaintiffs were entitled to an equitable mortgage on the property. The plaintiffs cannot assert they are entitled to foreclose their equitable mortgage on the property and at the same time on appeal claim they should be declared fee title owners. The plaintiffs have acquiesced in the trial court’s judgment and therefore the issue raised by them on appeal is not subject to review.
However, this is not true with the issue raised on appeal by the United States. It challenges only that portion of the trial court’s ruling concerning the order in which the judgment lien and tax liens on the property are to be satisfied from the proceeds of the sale of the property. This issue involves only the respective rights of the United States and the plaintiffs, and is a distinct and severable matter from the foreclosure and sale of the property to satisfy the judgments entered against the defendants. Any determination on this issue will not affect the defendants’ obligation for payment of the judgments or the right of the plaintiffs and the United States to foreclose on the property to satisfy their respective judgments. As the foreclosure of the property has no bearing on the issue raised by the United States on appeal, the execution of that portion of the trial court’s judgment does not amount to acquiescence by the United States.
In support of their argument that the United States has acquiesced in the judgment the defendants point to the fact that a portion of the proceeds was used to pay court costs and other expenses relating to the foreclosure of the property. However, in Brown v. Combined Ins. Co. of America, 226 Kan. at 231, the court expressly overruled prior cases which held the payment of court costs by the appellant is sufficient acquiescence in a judgment to bar judicial review on appeal. The court held the payment of costs in the trial court by the appellant or cross-appellant, when the assessment and amount of such costs would not be affected by the decision on appeal, does not constitute such an acquiescence in the judgment to foreclose appeal.
The plaintiffs assert the defendants have acquiesced in the judgment by redeeming the property after foreclosure. However, it is generally the rule that a waiver is not implied from measures taken by an appellant in defense of and to protect his rights or interest, as where, for such purpose, an execution debtor redeems from a sale on execution. 4 C.J.S., Appeal and Error § 212, p. 620-21.
Having acquiesced in the judgment the issues asserted by the plaintiffs on appeal are of no consequence. Accordingly, in the instant case the trial court’s finding that the transfer of the deed to the plaintiffs constituted an equitable mortgage rather than an actual conveyance of title to the property must be accepted as supported by the evidence and stands unassailed.
The defendants first contend the trial court erred in finding the warranty deed executed by the plaintiffs in 1974 conveying the property to Chris and Naomi Jones was void for lack of consideration. This argument, however, misstates the trial court’s ruling. After briefly stating the relevant facts pertaining to this issue and finding there was insufficient evidence to rule on the plaintiffs’ claim the deed was a fraud or forgery, the trial court held:
“In addition, having determined that the transaction of May 22, 1964, was an equitable mortgage, the Court has little problem disposing of the 1974 deed between the plaintiffs and the parents of the defendants. A person can convey no interest greater than that he owns. The 1974 deed purported to convey right, title and interest in the property at 8900 Delmar. Since the plaintiffs owned none of the right, title or interest the deed is completely void, because it passes nothing. Perhaps equally as compelling of this conclusion of the Court rests in the fact there was absolutely no consideration exchanged and the purported conveyance must be found invalid.”
The gist of this ruling is the conveyance of fee title to Chris and Naomi Jones was void because the plaintiffs, as equitable mortgagees, held no interest in the property which they could convey by warranty deed to the elder Joneses. The court cites the lack of consideration only as an additional factor in support of its conclusion. The defendants, of course, are in agreement with the trial court’s ruling that the plaintiffs held only an equitable mortgage on the property.
It has long been established that a grantee can acquire no greater title or interest in land conveyed to him by warranty deed than his grantor had. See, e.g., Ames v. Brooks, 179 Kan. 590, Syl. ¶ 2, 297 P.2d 195 (1956); Johnson v. Allen, 178 Kan. 348, 352, 285 P.2d 764 (1955); Common School District No. 45 v. Lewis, 177 Kan. 261, Syl. ¶ 2, 278 P.2d 596 (1955). The statement of law cited by the defendants, that a deed is generally good between parties without consideration in the absence of a wrongful act on the part of the grantees such as fraud or undue influence (see Briscoe v. Reschke, 170 Kan. 367, 376, 226 P.2d 255 [1951]), does not have any bearing on the trial court’s finding that the equitable mortgagees could not convey fee title to the property. There was no error in the trial court’s finding that the 1974 warranty deed purporting to convey fee title to Chris and Naomi Jones was void.
Next the defendants contend it was error for the trial court to allow the post-trial intervention of the United States. On June 14, 1982, after the case had been presented to the trial court, but before judgment was entered, the United States filed its motion to intervene. The United States did not have actual notice of the lawsuit until it learned of the matter through a revenue agent on May 17, 1982. The defendants do not dispute this evidence. However, they vigorously opposed the motion to intervene before the trial court claiming the motion was untimely. The trial court granted the motion to intervene pursuant to K.S.A. 60-224 and directed that the parties file proposed findings of fact and conclusions of law on all the issues, “including the validity of the liens asserted by the United States, and the right to foreclose those liens.” The court did not specify whether intervention was allowed under subsection (a) of the statute as a matter of right or under subsection (b), which allows permissive intervention. A supplementary evidentiary hearing was held on August 31, 1982, to permit the United States to present evidence of the tax liens pending against the defendants.
The requirements for intervention are set forth in K.S.A. 60-224, which reads:
“(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
“(b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1) When a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
The right to intervene under subsection (a) depends on the concurrence of three factors: (1) timely application, (2) a substantial interest in the subject matter, and (3) lack of adequate representation of the intervenor’s interest. Hukle v. City of Kansas City, 212 Kan. 627, 630, 512 P.2d 457 (1973); American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 573, 545 P.2d 399 (1976); Rawlins v. Stanley, 207 Kan. 564, 567, 486 P.2d 840 (1971). The provisions of 60-224(c) are to be liberally construed, and to avoid intervention the opposing party has the burden of showing the applicant’s interest is adequately represented by the existing parties. Campbell American Legion v. Wade, 210 Kan. 537, Syl. ¶¶ 1, 2, 502 P.2d 773 (1972). See also Hukle v. City of Kansas City, 212 Kan. at 632. Whether a motion to intervene is allowed is a matter of judicial discretion. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. at 573.
The defendants claim the motion to intervene was not timely filed for four reasons: (1) the United States has had knowledge of the plaintiffs’ and defendants’ conflicting interests in the property since 1967 by virtue of being named as a party defendant in the foreclosure action by Prudential; (2) the United States had constructive notice of the present lawsuit since December 31, 1980, by virtue of the lawsuit being a matter of public record; (3) the United States did not file a motion to intervene until four weeks after receiving actual knowledge of the lawsuit; and (4) the motion was not filed until after the case had been tried before the trial court.
The first two of these reasons need only be addressed briefly. In Rawlins v. Stanley, 207 Kan. 564, Syl. ¶ 2, the court made it clear that actual notice of the pendency of any action is required before an interested party must take steps to intervene. In that case the court held a letter from plaintiff s counsel to the intervenor stating he intended to file the lawsuit was not sufficient notice of the action to require the intervenor to take steps to intervene. Here the United States did not have actual notice until May 17, 1982. Moreover, although the United States had notice as early as 1967 that the Joneses occupied the premises and possibly had an equitable interest in the property, the defendants had subsequently indicated to the United States that they retained no interest in the property other than as month-to-month tenants by supplying the I.R.S. with the Prudential affidavit to this effect. The defendants are hardly in a position at this time to assert that the United States was on notice of the defendants’ potential interest in the property when the instant lawsuit was filed.
With regard to the third and fourth reasons advanced by the defendants, it cannot be said the motion to intervene was not timely because it was filed almost a month after actual notice was received or because it was filed after the case was tried. Upon receiving actual notice of the dispute over the property the United States obtained a copy of the trial transcript to ascertain the nature of the lawsuit and claims asserted by the parties, sought authorization to intervene, and then prepared its motion and supporting memorandum of law. The United States wasted little, if any, time in asserting its right to intervene once it had knowledge of the lawsuit. This court has approved of intervention after the case has been tried and final judgment entered where adequate representation of the intervenor’s interest no longer existed for purposes of appeal. Hukle v. City of Kansas City, 212 Kan. at 632; Moyer v. Board of County Commissioners, 197 Kan. 23, 27, 415 P.2d 261 (1966). See also Annot, 37 A.L.R.2d 1306 § 9 (recognizing some jurisdictions permit intervention at any time prior to determination of the issues), and § 11 (discussing cases which have not allowed intervention once trial has begun). Sufficient reasons do not appear for holding the trial court should have disallowed intervention merely because the case had been tried before the district court. A judgment had not yet been rendered in the action. Every opportunity existed for the plaintiffs and defendants to request that the court reopen the case to present evidence rebutting the claims asserted by the United States. The cases cited by the appellant which have denied intervention where a motion was not filed until after the action was tried are from other jurisdictions and involve situations where the applicant had actual notice of the pendency of the action for a significant length of time prior to filing a motion to intervene. Under the circumstances of this case the motion to intervene was timely filed.
The remaining two factors which must exist to establish the right to intervene, a substantial interest in the lawsuit and lack of adequate representation, were also present here. The United States had a substantial interest in the ownership of the property, which was the crux of the lawsuit. Substantial tax liens had been filed over the years against the defendants which remained unsatisfied. Under 26 U.S.C. § 6321 (1976) federal tax liens attach to all property and right to property held by a taxpayer. Ownership of the property by the Joneses was the cornerstone of the United States’ claim that it was entitled to enforce its tax liens by foreclosure. It is equally clear the other parties did not adequately represent the interests of the United States in this matter. The United States sought to prove the defendants were fee title owners of the property which was contrary to the position asserted by the plaintiffs. The United States and the plaintiffs were also at odds on the issue of the priority of the equitable mortgage over the federal tax liens. On the other hand, the position taken by the United States conflicted with the defendants’ claim that the 1974 deed conveyed the property to the elder Joneses. As pointed out in Campbell American Legion v. Wade, 210 Kan. 537, Syl. ¶ 3, the interests of the existing parties and the party seeking intervention need not be wholly adverse before there is a basis for concluding that existing representation of a different interest may be inadequate. Here the defendants have not carried their burden of showing the United States’ interest was adequately represented by the existing parties. There is sufficient evidence the United States was entitled to intervene as a matter of right under K.S.A. 60-224(c).
In addition, sufficient evidence exists to conclude permissive intervention was proper under 60-224(fe). That section empowers a court to allow a party to intervene when the applicant had a conditional right to intervene under statute or when the applicant’s claim and the main case have a common legal or factual question. Both situations are present in this case. Under 26 U.S.C. § 7424 (1976) the United States is allowed to intervene in any action involving property against which the United States claims a tax lien. Thus, intervention was proper under 60-224(h)(1). The United States sought resolution of the same issue as the parties: fee title ownership of the property. The trial court aptly noted if the United States was not allowed to intervene, a second lawsuit concerning substantially the same issues and requiring the same discovery, evidence and testimony would be required. The defendants argue, however, that the United States should have been required to file another action seeking a determination of its rights. They claim in such an action the United States would have been able to protect and preserve its alleged rights and the defendants would have had an opportunity to contest the validity of the United States’ liens or the right to foreclose them. This argument holds no persuasive merit where compelling reasons cannot be advanced for requiring the duplication of lawsuits when the interests of the parties can be resolved in an existing lawsuit and intervention does not result in any prejudice to the parties. The defendants were provided with an adequate opportunity by the trial court to contest the validity of these liens and to present defenses to foreclosure. Permissive intervention was also proper under 60-224(b)(2).
In conclusion it cannot be said the trial court abused its discretion by granting the United States’ motion to intervene either as a matter of right under K.S.A. 60-224(a) or permissively under 60-224(b).
In a related issue the defendants contend the post-trial intervention of the United States deprived them of their procedural due process right to present evidence to the trial court of equitable defenses they possess which would have allowed the trial court to bar foreclosure of the tax liens. The sole equitable defense asserted by the defendants is their homestead interest in the property.
This point is not well taken. The record does not bear out the defendants’ claim that they were denied the opportunity to defend their homestead interest against foreclosure of the tax liens. As noted above, when the district court granted the motion to intervene the court specifically instructed the parties to address “the validity of the liens asserted by the United States, and the right to foreclose on those liens” in their proposed findings of fact and conclusions of law. Subsequently the defendants filed proposed findings and conclusions wherein they thoroughly and vigorously argued that their homestead interests in the property should bar foreclosure of the tax liens. Neither at the supplemental evidentiary hearing held after the United States intervened nor at any time thereafter did the defendants indicate they desired an opportunity to present additional evidence to support their homestead defense. In a lengthy motion to amend the judgment the defendants once again asserted intervention was improper and challenged the court’s ruling that the homestead interest did not bar foreclosure. However, they did not allege they had been denied an opportunity to present evidence of their homestead interest and did not request an opportunity to do so at that time.
It is obvious the defendants were provided with the opportunity to and did in fact argue the merits of their homestead interest in the property. Accordingly, the defendants’ claim that intervention by the United States deprived them of their due process rights to present evidence of equitable defenses to foreclosure is without merit.
The arguments presented to the trial court concerning the defendants’ homestead interest in the property are virtually identical to those advanced here. The defendants assert that under United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973), and United States v. Rogers, 649 F.2d 1117 (5th Cir. 1981), the district court had discretion to determine whether the defendants’ homestead property should be protected from foreclosure. On this issue the trial court held:
“Defendants have raised the defense of homestead rights particularly on behalf of Dona Jones. The Court in noting the arguments of the United States in its reply brief, filed September 15, 1982, in substance finds that a husband and wife may file joint federal income tax returns. 26 U.S.C. § 6013(a). If husband and wife file a joint return, they are jointly and severally liable for the tax for that year. O’Dell v. United States, 326 F.2d 451, 456 (10th Cir. 1964). Where a joint return has been filed, and judgment on the tax liability has been entered against both husband and wife, they are precluded from contending that they are not jointly liable for the tax assessed. United States v. Maxwell, 459 F.2d 22, 23 (5th Cir. 1972). Defendants filed joint returns. Assessments were made against them jointly and judgment was entered against them jointly. They therefore are jointly and severally liable for the tax. Thus the tax lien attached to all property owned by them, whether jointly or separately. This lien is enforceable against both of their property interests. United States v. Mitchell, 403 U.S. 190, 205 (1971).
“Defendants contend that under United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973), the Jones’ house is a Kansas homestead against which a federal tax lien cannot be enforced. This contention is not well taken. In Hershberger the Court dealt with whether the Kansas homestead statute created merely an exemption, or whether it created a present property interest in the wife. The Court found that a property interest in the wife was created. Since the tax assessment was only against her husband, the tax lien did not attach to her homestead interest. Therefore, her homestead interest ‘cannot be subjected to levy and sale for the satisfaction of the federal tax liability of her husband.’ Hershberger, 475 F.2d at 682. In expounding upon its earlier decision, the Court in United States v. Eaves, 499 F.2d 869 (10th Cir. 1974), noted that in deciding whether to foreclose a tax lien, the trial court sits as a Court of equity. Thus, if a spouse against whom no tax liability is outstanding has a property interest in a home, the Court could hold, within its discretion, that the liens cannot be foreclosed.
“The situation in Hershberger is not present here. The tax liability in question is one for which both defendants are liable. Thus, there is no interest in the house to which the tax lien did not attach and against which the tax lien is not enforceable. The Kansas exemption statute does not bar foreclosure of tax lien. K.S.A. § 60-2301. Second, for a period of nearly twenty years, the defendants have enjoyed a high standard of living while disregarding their duty to pay the tax owed by them. Finally, as was testified to by both defendants, the reason title to the home remained in plaintiff s name was so that they could avoid paying their tax liability. To allow the defendants to now shield their assets runs contrary to entering equity with ‘clean hands’.”
In United States v. Hershberger, 475 F.2d 677, the Tenth Circuit Court of Appeals held the Kansas homestead law conferred upon the appellee a vested undivided one-half interest in her homestead property which could not be foreclosed against to satisfy her husband’s tax liabilities, which she did not share, for so long as she maintained her homestead interest in the property. Similar decisions were reached by the Fifth Circuit in United States v. Rogers, 649 F.2d 1117, and Ingram v. City of Dallas Dept. of Housing, Etc., 649 F.2d 1128 (1981). In a consolidated appeal the United States Supreme Court reversed these last two cases, holding 26 U.S.C. § 7403 (1976) empowers a federal district court to order the sale of a delinquent taxpayer’s homestead property, but a taxpayer’s spouse who is not liable for the tax indebtedness and has a separate homestead interest in the property is entitled to be compensated for that interest from the proceeds of the sale. United States v. Rodgers, _ U.S. _, 76 L.Ed.2d 236, 253, 255, 103 S.Ct 2132 (1983). The Supremacy Clause prevents state homestead laws from barring foreclosure of property held as a homestead by a nondelinquent third party in § 7403 proceedings. 76 L.Ed.2d 258. Moreover, the court recognized that where both spouses have federal tax liability and the federal tax assessment was made against both spouses, the homestead interest of the taxpayers cannot defeat the foreclosure of the federal tax liens. 76 L.Ed.2d at 257, and cases cited therein. See also United States v. Estes, 450 F.2d 62 (5th Cir. 1971); Shambaugh v. Scofield, 132 F.2d 345 (5th Cir. 1942). The court held, however, that district courts are not absolutely required to order foreclosure in § 7403 proceedings, but may exercise “limited equitable discretion,” in determining whether the homestead property should be foreclosed upon, taking into account “both the Government’s interest in prompt and certain collection of delinquent taxes and the possibility that innocent third parties will be unduly harmed by that effort.” The court was quick to add this caveat:
“To say that district courts need not always go ahead with a forced sale authorized by § 7403 is not to say that they have unbridled discretion. We can think of virtually no circumstances, for example, in which it would be permissible to refuse to authorize a sale simply to protect the interests of the delinquent taxpayer himself or herself. And even when the interests of third parties are involved, we think that a certain fairly limited set of considerations will almost always be paramount.” 67 L.Ed.2d at 263. (Emphasis added.)
As the trial court correctly pointed out, the situation involved here is not one where only one of the defendants is liable for the tax indebtedness. Both Robert and Dona Jones are jointly liable for the taxes assessed against them, despite the fact Dona Jones may have had no personal income for the period in question. See 26 U.S.C. § 6013 (1976); O’Dell v. United States, 326 F.2d 451, 456 (10th Cir. 1964). The Supreme Court clearly expressed its doubts that this is a situation where it is permissible to refuse to authorize a sale merely to protect the delinquent taxpayers’ homestead interests. Nevertheless, it is clear from the last paragraph of the district court’s memorandum decision quoted above that the defendants’ homestead defense was given due consideration and no equitable circumstances were found to exist which should bar foreclosure. To the contrary, the district court found the defendants had not come into court with “clean hands” and should not now be protected by equity.
The arguments asserted on appeal with regard to this issue were presented before the trial court for consideration. There is no evidence in the record to suggest the trial court abused its discretion in refusing to bar foreclosure by the United States of its tax liens to protect the defendants’ homestead interest, in the property.
The remaining issues raised by the parties concern the equitable mortgage awarded the plaintiffs by the trial court. A judgment of $44,512.34 was entered against the defendants based upon the following damages which the court found to have been incurred by the plaintiffs:
“(a) Direct payments to Prudential Insurance Company of $8998.40 representing payments of $281.20 from May 1980 (date of defendants’ last payment) and December, 1982.
“(b) Real estate taxes, past $5,605.38 and current $1,005.92 or total of $6,611.30.
“(e) Insurance, $3,104.00.
“(d) A recognition of some interest charge for the exposure or risk factor of the $40,000.00 initially obtained for the benefit of Defendants. In the interest of equity, if the Court applies a reasonable 4% risk factor to the 18 years of payments ($60,739.20 most admittedly paid by defendants but still subjecting plaintiff to the risk) one arrives at $86,537.00 less amounts paid gives a resultant of $25,798.64 which the Court feels is a reasonable assessment for the 18 years technical use of plaintiffs money or certainly his credit to initiate the transaction and continuing since May, 1964.”
The court held the entire judgment constituted an equitable mortgage on the property which could be foreclosed and which had priority over the federal tax liens.
The defendants first contend the trial court, in determining the plaintiffs’ award of damages, improperly considered a “Statement of Expenses” submitted by the plaintiffs after the close of trial. This statement sets forth the mortgage payments, real estate taxes and insurance premiums paid by the plaintiffs on the property since May 1980, when difficulties arose between the plaintiffs and defendants. The defendants promptly filed an objection to the consideration of this statement by the trial court. The defendants contend it was improper for the trial court to rest its damages award upon the statement because evidence of these expenses was not introduced at the time of trial. They further argue that because no evidence of such damages was introduced at trial the trial court did not have a reasonable basis upon which to compute damages and therefore a directed verdict should have been granted at that time.
The defendants’ argument overlooks the evidence elicited from Mr. McDaniel at trial on both direct and cross-examination that since May 1980, he had been responsible for the mortgage payments, real estate taxes and insurance premiums on the property. The rule is often stated that in order for the evidence to be sufficient to warrant recovery of damages there must be some reasonable basis for computation which will enable the trier of facts to arrive at an approximate estimate thereof. Sampson v. Hunt, 233 Kan. 572, 586, 665 P.2d 743 (1983); Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974). The uncontroverted evidence presented at trial established the plaintiffs had incurred these expenses on the property since May 1980. The updated statement of expenses submitted by the plaintiffs merely provided the trial court with the exact amount of these expenses testified to at trial. The acceptance of this evidence by the trial court falls within the spirit of the rule that it is discretionary whether the trial court permits either or both of the parties to reopen a case for introduction of additional evidence after having rested. See Cansler v. Harrington, 231 Kan. 66, 68, 643 P.2d 110 (1982); Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 306, 520 P.2d 1262 (1974). Here there is no showing of an abuse of discretion which would warrant a reversal of the award based on the statement of expenses submitted by the plaintiffs.
The defendants next contend the trial court erred in awarding the plaintiffs damages for the use of their money and credit by the defendants over the years in question. The defendants contend this “risk factor judgment” was an abuse of discretion because the plaintiffs did not seek recovery for these damages in their pleadings and because no evidence was introduced at trial to support such an award. This court has pointed out in prior cases that the fact a party requests one form of equitable relief, i.e., that his title be quieted, does not bar the trial court from rendering such other different and equitable relief as may be justified by the evidence. Fuqua v. Hanson, 222 Kan. 653, 656, 567 P.2d 862 (1977); Benton v. Benton, 215 Kan. 875, 879, 528 P.2d 1244 (1974). The defendants argue the plaintiffs had no risk at any time because the value of the house far exceeded $40,000 in 1964 when the plaintiffs obtained the loan.
Under all the facts and circumstances presented by this case we find it improper to award the plaintiffs damages for what the trial court termed an “interest charge for the exposure or risk factor of the $40,000 initially obtained for the benefit of the Defendants.” The plaintiffs did not seek recovery in their pleadings of “risk factor” damages or present any evidence to support such an interest charge; the parties did not contract orally or otherwise for such an interest charge; no statute provides for the payment of such an interest charge; the value of the house far exceeded $40,000 in 1964 when the plaintiffs obtained the loan; and, more particularly, the parties were rrtanuevering throughout these dealings for the purpose of defeating the payment of taxes due and owing the United States. Neither the plaintiffs nor the defendants come into court for equitable relief with clean hands. Therefore the “risk factor” judgment in the amount of $25,798.64 in favor of the plaintiffs is set aside and vácated.
Finally, the defendants and the United States both contend the trial court erred in holding the plaintiffs’ entire judgment constituted an equitable mortgage. They contend only the mortgage payments to Prudential, the real estate taxes and the insurance premiums paid by the plaintiffs should constitute the equitable mortgage, but the “risk factor” is merely a judgment lien which is inferior to the federal tax liens and cannot be foreclosed against the defendants’ homestead interest in the property. Having determined the “risk factor” award to be invalid, we are concerned only with the priority of the remaining judgment over the federal tax liens.
The United States expressly concedes in its brief that the mortgage payments, real estate taxes and insurance premiums paid by the plaintiffs on the property enjoy priority over the federal tax liens. We are in agreement with this conclusion. In United States v. Rodgers, 76 L.Ed.2d at 246, the Supreme Court restated the axiom that although the definition of underlying property interests is left to state law, the consequences that attach to those interests, including priority of federal liens, is a matter left to federal law. The priority of federal tax liens over other interests is set forth in 26 U.S.C. § 6323 (1976). A federal tax lien is not valid against the specific interest holders named in this statute — security interest holders, judgment lien creditors, purchasers or mechanic’s lienors — whose interests have attached prior to the filing of the tax liens. U.S. v. Pioneer American Ins. Co., 374 U.S. 84, 88, 10 L.Ed.2d 770, 83 S.Ct. 1651 (1963). See also United States v. Equitable Life, 384 U.S. 323, 327-28, 16 L.Ed.2d 593, 86 S.Ct. 1561 (1966). It is generally recognized that insurance premiums, real estate taxes and costs paid by a mortgagee constitute additional liens which are secured by the mortgage. See, e.g., 55 Am. Jur. 2d, Mortgages §§ 268, 284, 631-32; Farmers & Merchants Bank v. Copple, 190 Kan. 170, 175, 373 P.2d 219 (1962); Douthitt v. Farrell, 60 Kan. 195, 200-01, 56 Pac. 9 (1899). In this case McDaniel’s equitable interest in the property was secured in 1964 by the transfer of title to the property to him. The unreimbursed mortgage payments, insurance premiums and real estate taxes paid by the plaintiffs to protect their interest in the property created an equitable lien on the property which relates back to the 1964 security arrangement and which has priority over the subsequently filed federal tax liens. Accordingly, we hold the plaintiffs’ judgment in the amount of $18,713.70 has priority over the tax liens of the United States.
The judgment of the lower court is affirmed as modified. | [
-12,
-18,
-103,
108,
10,
-64,
42,
-118,
66,
-75,
-90,
87,
109,
-54,
5,
109,
-26,
45,
-43,
105,
-29,
-78,
119,
-109,
-106,
-13,
-63,
-35,
-71,
-35,
-10,
-105,
76,
48,
-54,
53,
38,
-128,
-99,
92,
-114,
-121,
25,
85,
-47,
0,
52,
107,
28,
12,
-127,
62,
-77,
40,
29,
-56,
8,
44,
-53,
45,
-63,
-8,
-69,
-105,
127,
21,
-111,
5,
-100,
71,
-40,
-118,
-112,
57,
0,
-24,
83,
-90,
-122,
116,
9,
27,
40,
46,
98,
34,
-59,
-17,
-8,
-72,
7,
85,
-115,
-90,
-122,
88,
2,
40,
-74,
-99,
124,
21,
71,
-12,
-26,
4,
29,
-20,
-98,
-53,
-106,
-109,
15,
125,
-97,
11,
-10,
-127,
-96,
113,
-53,
66,
95,
67,
51,
59,
-114,
-47
] |
The opinion of the court was delivered by
Lockett, J.:
The Siples, plaintiffs, brought this action in tort for damages to plaintiffs’ car, premised on the duty owed by the City of Topeka, defendant, to inspect and remove an allegedly defective tree. Defendant claimed it was exempted from tort liability by the Kansas Tort Claims Act. In a trial to the court, judgment was granted in favor of plaintiffs. Defendant appeals.
On June 21, 1981, the Siples were returning to their home in Topeka from an overnight camping trip in their five-week-old Chevrolet Chevette. The Siples parked their Chevette in front of their home. A violent storm struck in the early morning of June 21, 1981. A large limb from a soft maple tree located across the street fell, crushing the Siple’s Chevette. It buried the automobile. The top of the car buckled, the trunk was smashed, the frame bent, and the interior saturated with rainwater.
Prior to June 21, 1981, many limbs of varying sizes had fallen from the same tree. Mrs. Siple had viewed the tree after limbs had fallen. She observed hollow spots in the tree where the limbs had broken and a black sappy liquid oozing out the base of the tree. Because of the danger caused by the falling limbs, the Siples and other neighbors had called the City Forestry Department a number of times prior to June 21, 1981, requesting the department to inspect the tree.
The city forester testified that due to reports of falling limbs, he had inspected the tree prior to June 21, 1981. The forester conducted a visual inspection. During that inspection of the tree, he observed several rotted areas on the tree trunk. The inspector determined this was to be expected on a twenty-year-old soft maple. After the June 21,1981, storm, the city forester was called again to inspect the tree. He observed a black liquid on the tree. Later in 1982, at the request of the property owner, the soft maple tree was cut down. At the trial, an expert witness testified a visual inspection of the tree was insufficient under the circumstances.
After the tree limb had fallen on the vehicle, Siples’ insurer inspected the damaged car. Siples’ insurance company wrote a check for $2,145.64 for damages to the vehicle. The Siples were concerned about permanent damage to the frame and interior of their car. Determining the car could not be restored to its previous condition, the Siples purchased a new car. The plaintiffs traded in their old car, the insurance check and $927.00 to purchase a new 1981 Chevette.
The Siples sued the City of Topeka for damages to their car caused by the falling tree limb. The City defended, claiming it was exempt under the Kansas Tort Claims Act, K.S.A. 1983 Supp. 75-6101 et seq. The trial court found for the plaintiffs and awarded damages of $3,072.64. The City of Topeka appeals.
The trial court made these conclusions of law:
“1. The parties are the proper parties to bring this action and the City is responsible for the entire loss of $3,072.64.
“2. Substantial facts in this case indicate that the windstorm alleged to be an intervening cause was not such an intervening cause in light of the prior knowledge of the City that the tree was defective and. had falling limbs and in light of the dispute about the severity of the windstorm compared to others the tree had withstood.
“3. The incident involved the performance or nonperformance of a non-discretionary nongovernmental proprietary function of the City and the City is therefore liable and not immune from the damages which occurred to the Plaintiffs’ property. The Court can find very little discretion or governmental functioning on the part of the City in this transaction. The inspection or lack of inspection or negligent inspection was a ministerial act done on the operational rather than the planning level by the City Forester or employees under his jurisdiction. When the City undertakes to perform this type of function, it should do so properly and comprehensively and not in a negligent manner as occurred in this particular instance. The Court is satisfied from the preponderance of evidence that this transaction involved duties of the City which were not statutorily immune. An early illustration of City responsibility in this area is Turner v. City of Wichita, 139 Kan. 775 [, 33 P.2d 335 (1934)], wherein the City was held responsible in a similar factual circumstance.
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that Plaintiffs be entitled to judgment against the City of Topeka in the amount of $3,072.64 plus interest and costs.”
The City contends, although it is the duty of the city forester to conduct inspections of trees and determine if a tree or trees endanger the public safety, the city employee’s inspection, lack of inspection or negligent inspection of the tree or trees is a duty which is specifically exempted from liability under K.S.A. 1983 Supp. 75-6104(j).
The historical origin of the governmental immunity doctrine has been discussed in many prior cases. The doctrine of governmental immunity was held to exempt governmental entities from privately instituted civil suits without the expressed consent of the sovereign. The doctrine was founded upon the belief the courts, which derived their power from the sovereign, could not have been empowered to enforce such authority against the sovereign; that the king could do no wrong, nor could he authorize such conduct while acting in his sovereign capacity, for no man can do by his agents and officers that which he cannot do by himself. Under the doctrine of immunity for governmental officers, the common law recognized the necessity of permitting public officials to perform their official duties free from the threat of personal liability. Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975), modified on reh. 219 Kan. 2, 547 P.2d 1015 (1976).
The doctrine of governmental and sovereign immunity, as noted in Brown, was originally of judicial origin in Kansas. Unless a state is prohibited by its constitution it may waive its privileges and immunities from suit and permit itself to be made a defendant in a private suit. Consent of the state to be sued upon claims against it or its employees by private persons is generally given expressly by statutory enactment. The State, as the creator of municipal corporations, may by statute impose obligations or liabilities upon the municipal corporation which otherwise would not exist unless such action is prohibited by the State Constitution.
The Kansas Tort Claims Act was passed to permit recovery of damages from a governmental entity when damages are “caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 1983 Supp. 75-6103. Exceptions to this general liability are set forth in K.S.A. 1983 Supp. 75-6104. Here the City claims the exception exempting it from liability is contained in 75-6104(j) which relates to inspections. K.S.A. 1983 Supp. 75-6104 provides in pertinent part:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(j) the failure to make an inspection, or making an inadequate or negligent inspection, of any property other than the property of the governmental entity, to determine whether the property complies with or violates any law or regulation or contains a hazard to public health or safety.”
Inspection laws are regulations designed to safeguard the public against fraud, injury and to promote the public health, safety and welfare. They provide for the examination or inspec tion of property by an authorized public official. The public official is to examine and determine whether the standards prescribed by the regulations are complied with.
Subject to the paramount authority of the legislature, the enactment and enforcement of inspection laws are within the police power of the state. The power to enact inspection laws may be conferred upon municipal corporations by the state.
K.S.A. 12-3207 gives a limited title to the trees on property abutting upon streets to the abutting property owners. The statute also grants the City certain rights. The statute provides:
“The owners of property abutting upon streets, avenues and boulevards in cities shall have such title to and property in growing trees, shrubbery and the parking situated in front of such real estate between the curb line and the property line as to enable the owners, in case of injury to or destruction of such trees, shrubbery and parking, to recover from the person, company or corporation causing said injury or destruction the full damages which the abutting property in front of which they are situated may sustain by reason thereof, and such abutting property owner shall also have the right of action in any court of competent jurisdiction to enjoin injury to or destruction of such trees, shrubbery and parking, except that no recovery or injunction shall be had against the city in the making of public improvements or in any other reasonable exercise of its authority over such streets, alleys, avenues or boulevards or over the trees and shrubbery located thereon.”
See Mead v. City of Coffeyville, 152 Kan. 799, 107 P.2d 711 (1940).
In 1961 our legislature enacted K.S.A. 12-3201, which provides:
“The governing body of any city is hereby authorized to regulate, by ordinance, the planting, maintenance, treatment and removal of trees and shrubbery upon all streets, alleys, avenues and boulevards within such city. Upon the failure of the owner of property abutting streets, alleys, avenues and boulevards to comply with such regulations, and after reasonable notice the city may trim and maintain or, where necessary, remove such trees and shrubbery and assess the costs of such work against the abutting property as a special assessment.”
In 1975, the City of Topeka adopted Section 45-18 of the Code of the City of Topeka, which states in part:
“It shall be the function of the division of forestry under the administration and supervision of the city forester to administer and supervise planting, maintenance, protection, spraying, fertilizing, treating, pruning, trimming and removal of trees, hedges, shrubs, bushes and vines upon public streets, parkways, avenues, alleys and other public property and of trees, hedges, shrubs and bushes upon private property where they endanger other private or public trees, hedges, shrubs, bushes and vines or when they endanger the public safety or hinder the use of public property.”
The Siples believe that the legislature did not intend “inspection” to be so broadly defined as to include the city forester’s action. No Kansas cases have been found which define inspection in this context. The Siples claim that the inspection contained within the statute was intended to apply only to building inspections. This is incorrect. Kansas statutes contain infinite requirements for inspections in addition to building inspections. Such inspections range from inspection of apiaries for disease detection and control (K.S.A. 2-413), to working conditions of apprentices and minors (K.S.A. 44-645). Such inspections are required by the State or a municipal corporation to determine whether property complies with or violates any law or regulation of the governmental entity or if the property constitutes a hazard to public health or safety. When an employee of the governmental entity is conducting an inspection within the scope of his or her employment, neither the governmental entity nor the employee is liable for the employee’s failure to make an inspection or for making of an inadequate or negligent inspection under K.S.A. 1983 Supp. 75-6104(i).
First, we must determine what is an inspection. “Inspection” is derived from a Latin word “inspicere,” to look into. 21A Words and Phrases p. 462. Black’s Law Dictionary 716 (5th ed. 1979) defines inspection as follows:
“To examine; scrutinize; investigate; look into; check over; or view for the purpose of ascertaining the quality, authenticity or conditions of an item, product, document, residence, business, etc.”
Inspection as used in K.S.A. 1983 Supp. 75-6104(j) means investigation, or examination for the purpose of determining whether any property other than property of a governmental entity complies with or violates any law or regulation of the governmental entity or constitutes a hazard to public health or safety.
Having defined inspection, we must now determine whether or not the city forester’s action in this case constituted an inspection. The trial court determined the City was liable for the forester’s negligent act in failing to remove a tree that endangered the public safety. The City had received numerous complaints; therefore, it had reasonable notice of the existing hazard to public safety and failed to act. The court determined such action was not within the exception to liability provided by K.S.A. 1983 Supp. 75-6104(j). We do not agree.
Title to the tree was in the owner of the land abutting the street. K.S.A. 12-3207. The legislature had authorized the City of Topeka to regulate the maintenance or removal of the tree. K.S.A. 12-3201. The City of Topeka had adopted an ordinance authorizing its division of forestry, under the administration and supervision of the city forester, to remove trees that endanger the public safety.
K.S.A. 12-3201 requires certain steps be taken by a city prior to removal of a tree belonging to an owner of land abutting a street: (1) the City must adopt an ordinance for removal of a tree; (2) the City or its employee must determine if the tree violates the ordinance; (3) if the tree violates the ordinance, reasonable notice of the violation must be given to the person owning the tree; and (4) should the owner of the tree fail to comply with the regulation after reasonable notice, the City may remove the tree and assess the cost of such work against the abutting property as a special assessment.
The city forester was notified by the Siples and their neighbors of a tree which endangered public safety because tree limbs were falling to the ground. How did the forester determine whether the tree endangered the public safety? The city forester went to the location, visually examined and inspected the tree, determined the tree was not endangering the public safety and took no further action. The forester’s inspection was conducted within the scope of his employment. That inspection, found by the trial court to have been done in a negligent manner, did not subject the City or the forester to a private claim for damages to the Siples’ automobile. Such inspection is one of the listed exceptions from liability granted governmental entities or its employee under K.S.A. 1983 Supp. 75-6104 for the employee’s acts or omissions.
Statutes, ordinances and codes requiring inspections are enacted by governmental entities to secure for the public at large the benefits of such enactments. The legislature determined inspection activities are to be encouraged rather than discouraged by the imposition of civil tort liability. Inspections under such statutes, ordinances and codes are not a private service to the owner or occupier of the property. Inspection laws do not create a duty to an individual. K.S.A. 1983 Supp. 75- 6104(/) precludes an individual from recovering damages caused by a governmental employee acting within the scope of his employment in failing to make, or making an inadequate or negligent inspection.
Other points are raised by the parties in the appeal. Since we have determined that the City of Topeka is immune under K.S.A. 1983 Supp. 75-6104(j) for the negligent inspection by its employee, the other points raised by the parties are moot and will not be discussed in this opinion.
Judgment is reversed.
Prager, J., dissenting. | [
-16,
110,
-40,
-84,
12,
-32,
122,
90,
93,
-123,
-75,
87,
-53,
-55,
77,
41,
-26,
125,
112,
115,
85,
-77,
7,
-102,
-110,
-77,
-15,
69,
-7,
122,
116,
118,
12,
48,
-54,
-43,
-90,
-56,
-51,
92,
-50,
-122,
-119,
-16,
-39,
80,
-76,
-101,
98,
73,
113,
13,
98,
46,
24,
-61,
41,
40,
107,
-87,
-45,
-72,
-120,
21,
127,
18,
-95,
4,
-100,
35,
72,
13,
-112,
57,
0,
-8,
115,
-78,
-126,
124,
35,
-119,
8,
-90,
102,
33,
29,
-17,
-4,
-120,
46,
-14,
47,
-90,
4,
56,
2,
1,
-66,
-97,
117,
80,
5,
124,
-6,
85,
29,
104,
3,
-117,
-108,
-109,
-49,
32,
28,
3,
-17,
-121,
50,
113,
-49,
-78,
92,
5,
55,
-101,
-113,
-102
] |
The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff, Chester Barrows, as a property owner to enjoin a street paving project in the City of Ness City. The district court held in favor of the defendant City and denied the injunction. The Court of Appeals reversed in a published opinion, Barrows v. City of Ness City, 9 Kan. App. 2d 225, 676 P.2d 1285 (1984). The Supreme Court granted the City’s petition for review.
The facts in the case are undisputed. On August 3, 1982, a street improvement petition signed by 40 people was filed with the City of Ness City pursuant to K.S.A. 12-602. On the same day and pursuant to the same statute, the city council passed a resolution declaring it necessary to improve the same streets described in the street improvement petition. Following publication of the resolution, 25 property owners filed a protest. At a meeting on October 5, 1982, the City was advised that the protestors owned only 48.6% of the total area of the benefit district. The city council then voted to accept the original petition and authorized the work to be done. Plaintiff, as one of the protestors, filed this action for an injunction. The district court found that the City had properly used both the petition and resolution methods authorized by K.S.A. 12-602 for initiating the improvement. The court also found that the petition contained the signatures of a majority of the resident owners of real property liable for the tax in two or more adjacent blocks (35 out of 59) and that the protest petition did not contain the names of owners of more than one-half of the property liable for the tax. The court denied plaintiff injunctive relief and he appealed.
This street improvement was initiated under the “old” general paving law for street improvements, K.S.A. 12-601 et seq. We are, therefore, not concerned about K.S.A. 12-6a01 et seq., the “new” paving law which was enacted in 1957 and which authorizes a city to create an improvement district within a definable area. The statutory provisions which are involved in this case are as follows:
“12-601. Cost of street improvements assessed against abutting owners. Whenever any street or avenue in any city shall be graded, regraded, paved, repaved, curbed, recurbed, guttered, reguttered, macadamized, remacadamized, or otherwise improved, the cost of such improvement shall be paid by and assessed to the property on each side of said street or avenue to the middle of the block.”
“12-602. Resolution, protest, contract, levy and assessment for improvements. Whenever the governing body of any city deems it necessary to grade, regrade, pave, repave, curb, recurb, gutter, regutter, macadamize, remacadamize or otherwise improve any street or avenue, or any part thereof, for which a special tax is to be levied, as herein provided, the governing body shall by resolution declare such work or improvement necessary to be done. Such resolution shall be published once each week for two consecutive weeks in the official city newspaper. If the resident owners of more than ¥2 the property liable for the tax do not within 20 days from the■ last publication file with the city clerk a protest against such improvement, the governing body shall have power to cause such work to be done or such improvement to be made, to contract therefor and to levy taxes as herein provided.
“Whenever a majority of the resident owners of real property liable for the tax for the improvement in two or more adjacent blocks petition the governing body to grade, regrade, pave, repave, curb, recurb, gutter, regutter, macadamize, remacadamize or otherwise improve a street or avenue, or any part thereof, the governing body shall cause such work to be done or such improvement to be made, shall contract therefor and shall levy taxes for all such improvements as herein provided upon the property on each side of the street or avenue to the middle of the block.
“The sufficiency of a protest or petition filed hereunder, as to the ownership of the property, shall be determined by the record in the office of the register of deeds at the time of the adoption of the resolution.
“The cost of grading, regrading, paving, repaving, curbing, recurbing, guttering, reguttering, macadamizing, remacadamizing or otherwise improving intersections of streets and the cost of making any . . . improvements in streets, avenues and alleys running along or through city property shall be paid for by the city at large, for which general improvement bonds of the city may be issued according to law, except that, if the petition of the resident owners initiating the project so provides, the entire cost or a part thereof may be assessed against the benefited property in the same manner as the remainder of the improvements.” (Emphasis supplied.)
We are particularly concerned in this case with K.S.A. 12-602 which provides for two methods to initiate a street improvement project — the resolution method and the petition method. The first paragraph of K.S.A. 12-602 authorizes a city to initiate a street improvement by resolution in which event it can be successfully protested by the resident owners of more than one-half of property liable for the tax. In the alternative, the second paragraph of 12-602 provides that a street improvement may be initiated by a petition filed by a majority of the resident owners in two or more adjacent blocks. Under the petition method, 12-602 provides that whenever a majority of the resident owners of real property liable for the tax for the improvement of two or more adjacent blocks petition the governing body to pave or otherwise improve a street or avenue or any part thereof, the governing body shall cause such work to be done or such improvement to be made. The word “shall” has been construed to mean “may,” so that the governing body of the city is given discretion whether or not to proceed with the street improvement. Bock v. Stack, 132 Kan. 533, 296 Pac. 357 (1931).
It is undisputed that in this case the City of Ness City proceeded under both the petition method and the resolution method provided under K.S.A. 12-602. It has been held that once a city has elected to follow the old paving law (K.S.A. 12-602), it is bound to follow it. Dodson v. City of Ulysses, 219 Kan. 418, 425, 549 P.2d 430 (1976).
The petition that was filed in this case requested the paving of portions of six different streets in the City including Crescent Drive, Lover’s Lane, Court Street, Eden Street, James Street, and Johnson Street. The same street areas were identically described in the resolution passed by the City. In the district court and also in the Court of Appeals, the plaintiff maintained that a city cannot lawfully proceed by using both the petition method and the resolution method to enlarge the boundaries of a proposed benefit district. The district court and the Court of Appeals held that it could find no legal reason why the City could not use either or both the petition method and resolution method to commence a street improvement. The Court of Appeals noted that in Shaw v. City of WaKeeney, 187 Kan. 301, 356 P.2d 832 (1960), it was held that, under K.S.A. 12-602, a city may proceed either by the resolution method or by the petition method. There are no cases which prohibit a city from proceeding under both methods simultaneously. There have been prior cases of this court in which a city proceeded with a street improvement using both the petition method and the resolution method in the same project. Paul v. Oberholtzer, 121 Kan. 699, 249 Pac. 585 (1926); Root v. City of Topeka, 104 Kan. 668, 180 Pac. 229 (1919). In those cases, the issue as to the propriety of a city proceeding by both methods was not raised.
From our review of the cases, we have concluded that the Court of Appeals correctly decided this issue and agree with its holding that K.S.A. 12-602 does not prevent a city from initiating a city improvement project both by using a resolution, subject to protest, and also by acting on a petition of resident owners.
We now turn to the question whether the petition alone was sufficient to permit the City to proceed with the street improvement project. As noted above, the City sought to pave portions of Crescent Drive, Lover’s Lane, Court Street, Eden Street, James Street, and Johnson Street. The Court of Appeals noted that, for the most part, the persons who signed the protest petition resided on Eden Street, Court Street, or Crescent Drive, and in this area that constituted the majority of persons and owners of over one-half of the area. It concluded that if, under K.S.A. 12-602, the sufficiency of the petition or the protest must be ascertained by a block-by-block comparison, the city was not legally entitled to pave the northern and eastern portions of the proposed project.
In determining the sufficiency of the petition, the Court of Appeals held that, under the petition method for street improvement, the statutory test is whether the majority of resident owners “in two or more adjacent blocks” have signed the petition. The word “blocks” as used in the phrase “two or more adjacent blocks” has been interpreted to mean two blocks across from each other with a street in between. Berndt v. City of Ottawa, 179 Kan. 749, Syl. ¶ 2, 298 P.2d 262 (1956). In our judgment, the Court of Appeals correctly concluded from the record that in this case the requirement was satisfied for James Street, Johnson Street, and Crescent Drive to its intersection with Lover’s Lane on the east. That court further held that the requirement probably was not satisfied as to the northeastern end of the proposed project. We agree with the holding of the Court of Appeals that, under the petition method, K.S.A. 12-602 requires a comparison of the views of resident owners in each two adjacent block segments regardless of the size of the project. Thus, a determination of the sufficiency of a petition under K.S.A. 12-602 requires a block-by-block comparison of the persons whose names are containéd in the petition.
The Court of Appeals remanded the case to the trial court to determine on a block-by-block basis which blocks had a majority of the resident owners favoring the paving improvement. This holding was correct since the district court had not made that determination under the petition method.
Turning to a consideration of the resolution method and the sufficiency of the protest filed in response to the city’s resolution to commence the street improvement, the basic question presented is whether the block-by-block test should be applied to determine the sufficiency of the protest under the resolution method provided for in K.S.A. 12-602. It is important to note that the words “in two or more adjacent blocks,” which are contained in the paragraph pertaining to the petition method, are not included in the first paragraph of K.S.A. 12-602 which provides for the resolution method. That paragraph states, in substance, that whenever the governing body of any city deems it necessary to pave or otherwise improve “any street or avenue or any part thereof,” for which special taxes are to be levied, the governing body by resolution shall declare such work or improvement to be done. This language in our judgment establishes a clear legisla tive intent that a governing body of a city may proceed by resolution to pave “any street or any part thereof,” that the portions of a particular street to be paved are to be considered as a unit, and that, in determining the sufficiency of the protest filed by the resident owners, the views of persons in the area of the street which is to be improved are to be considered as a unit. The block-by-block test which is utilized under the petition method is not applicable.
In this regard, we note that in several cases the block-by-block test has not been applied and the portion of the street included in the project was treated as a unit in determining the strength of the protest of the resident owners. In Clarke v. Lawrence, 75 Kan. 26, 88 Pac. 735 (1907), the City of Lawrence passed a resolution for the paving of Rhode Island Street. There were 93 real estate owners along Rhode Island Street, of whom 46 protested and 47 were in favor of the project. The block-by-block method was not used in determining the validity of the protest. In Rodgers v. Ottawa, 83 Kan. 176, 109 Pac. 765 (1910), the City of Ottawa passed a resolution to grade and curb Main Street covering several blocks. At the time the protest was filed, there were 76 resident owners of real estate and the protest was filed signed by 45 resident property owners. The afternoon of filing day, a number of property conveyances were made which increased the number of resident owners to 94 so that those protesting the project were reduced to a minority and the paving project was upheld. The point is that all of the resident owners along the entire portion of the street which was to be paved were considered as a unit and the court did not apply the block-by-block test.
In Dodson v. City of Ulysses, 219 Kan. 418, the City used the resolution method in authorizing the paving improvements along Maize Street and also along several other streets. This court held that, although a number of paving projects under the general paving law (K.S.A. 12-602) may be consolidated for convenience in administration, each is a separate project for the purpose of determining the validity of the protest. The court, in the opinion at page 426, states that the paving of two blocks of Maize Street was individually subject to protest, quite apart from the eight other paving projects included in the same resolution. The court held that in determining whether a protest was signed by the resident owners of more than one-half the property subject to assessment, property assessable only for streets other than Maize would not be counted. Thus, each street was to be considered as a separate unit in determining the validity of the protest.
We have concluded from these decisions and from our analysis of the language in K.S.A. 12-602, that in determining the sufficiency of a protest under the resolution method, the entire portion of each street which is to be improved under a paving project is to be treated as a unit and the views of the resident owners along that street are to be considered in determining the sufficiency of the protest. The block-by-block test is not to be applied where a city proceeds by the resolution method. Thus, the Court of Appeals was in error in requiring the block-by-block test where a city proceeds by the resolution method.
Based upon the reasoning set forth above, we reverse the district court. We affirm in part and reverse in part the judgment of the Court of Appeals. The case is remanded to the district court with directions to determine the sufficiency of the petition by using the block-by-block test, and to determine the sufficiency of the protest under the resolution method by considering the resident property owners along each street as a separate unit. The district court may then proceed to either grant or deny injunctive relief.
Holmes, J., not participating.
Schroeder, C.J., dissenting. | [
-12,
-24,
-76,
15,
-54,
64,
26,
-97,
72,
-79,
-28,
95,
45,
75,
4,
49,
-69,
125,
80,
107,
-41,
-94,
111,
-61,
-74,
-13,
-13,
94,
-7,
93,
-28,
86,
78,
49,
-62,
-107,
70,
-22,
7,
-36,
-114,
7,
10,
-35,
-47,
64,
52,
106,
82,
11,
81,
-84,
-13,
40,
24,
-61,
-24,
44,
-37,
44,
-45,
-80,
-88,
-99,
88,
14,
-128,
84,
-68,
-57,
-48,
43,
-112,
57,
16,
96,
119,
38,
-106,
118,
71,
-39,
12,
-90,
98,
33,
53,
-25,
-8,
-72,
14,
-40,
-83,
-92,
-77,
56,
99,
35,
-74,
-99,
117,
6,
69,
-2,
-26,
5,
95,
-20,
6,
-118,
-76,
49,
-57,
-80,
-126,
1,
-17,
69,
48,
113,
-53,
-42,
94,
-25,
49,
-37,
14,
-80
] |
The opinion of the court was delivered by
Holmes, J.:
Herbert E. Huser and Ethel M. Huser, his wife, appeal from an adverse decision in an action wherein they sought a writ of mandamus and a mandatory injunction against Duck Creek Watershed (Joint) District No. 59, Wilson, Montgomery and Elk Counties (hereafter Duck Creek) concerning the construction and maintenance of a flood control dam and lake on the appellant’s property. Appellants also sought a declaratory judgment establishing their right to appropriate water from the project for irrigation purposes. The trial court denied all relief sought and the Husers have appealed.
The dam and lake in question were constructed by Duck Creek pursuant to the Kansas watershed district act, K.S.A. 24-1201 et seq. Duck Creek was originally formed in 1963 and encompasses land in the Duck Creek watershed extending over portions of three counties. In 1969, Duck Creek adopted a general plan for the district which was approved by the chief engineer of the Division of Water Resources of the Department of Agriculture of the State of Kansas. The general plan was adopted for the purpose of flood control and contemplated the construction of a dam and water storage facility on property subsequently purchased by the appellants. On December 20, 1971, the fee owner of the property, Theodore Myers, executed an easement to Duck Creek. The easement provided, in pertinent part:
“[F]or or in connection with the construction, operation, maintenance, and inspection of a flood water retarding structure designated as Site No. 7-30(2) in the Duck Creek Watershed to be located on the above described land, And for the flowage of any waters in, over, upon, or through such structure, and for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by such structure.
“There is reserved to the Grantor, his heirs and assigns, the right and privilege to use the above described land of the Grantor at any time, in any manner and for any purpose not inconsistent with the full use and enjoyment by the Grantee, its successors and assigns, of the rights and privileges herein granted.”
In December, 1974, the Husers purchased the property from Myers subject to the easement. Mr. Huser was fully aware of the easement, its terms and the general plan of Duck Creek for the development of the flood control project in the district, including Dam Site No. 2, which was to be located upon the property purchased from Myers. Dam Site No. 2 was constructed during 1978 and the spring of 1979 upon appellants’ property. This action was filed May 9, 1979.
K.S.A. 24-1201 et seq. provides for the establishment and function of watershed districts in this state. The general corporate powers and duties of a watershed district formed pursuant to the act are set out in K.S.A. 24-1209, which provides in pertinent part:
“Each watershed district incorporated under the provisions of this act shall be a body politic and corporate and shall have the power:
Fourth. To construct, improve, maintain and operate works of improvement including such facilities and appurtenances as necessary for the conservation of soil, prevention of floods, disposal of water and the conservation, development and utilization of water for domestic, municipal, agricultural, industrial, recreational purposes and such other uses as may be authorized by the provisions of K.S.A. 82a-701 to 82a-725, inclusive, and any amendments thereto.”
K.S.A. 24-1213 - 1218 set forth the procedures for undertaking watershed projects and improvements. Reference is made in those statutes to a “general plan” which must be submitted by the district for approval of the chief engineer of the division of water resources of the Kansas state board of agriculture. The “general plan” is defined in K.S.A. 24-1202(rn) to mean:
“[A] preliminary engineering report describing the characteristics of the district, the nature and methods of dealing with the soil and water problems within the district, and the projects proposed to be undertaken by the district. It shall include maps, descriptions and such other data as may be necessary for the location, identification and establishment of the character of the work to be undertaken and such other data and information as the chief engineer may require.”
The statutes make provision for the general plan to be modified as to the plan itself or as to its financing and for such modifications to be submitted to the chief engineer for subsequent approval. K.S.A. 24-1214. The statutes do not specify the degree of exactitude with which the district must comply with approved plans. K.S.A. 24-1216 calls for “detailed construction plans and specifications” for projects in the watershed district whenever the district determines such projects should be undertaken. The statute also requires that the project plans be in “conformance to the general plan and other applicable state laws on water use and control” and that the project plans also be submitted to the chief engineer for approval, disapproval or modification. Again, the statutes are silent as to any requirement for exact conformity or the degree of compliance with the general plan.
The act, itself, makes no provision for appeals to the district court from decisions of the watershed district board of directors. In the absence of a statutory provision for appellate review of an administrative decision, no appeal is available. However, relief from illegal, arbitrary and unreasonable acts of the district can be obtained using an extraordinary remedy like mandamus, quo warranto or injunction. Bush v. City of Wichita, 223 Kan. 651, 576 P.2d 1071 (1978); Ryan, Judicial Review of Administrative Action — Kansas Perspectives, 19 Washburn L.J. 423, 426 (1980).
The Husers, in their first claim for relief, assert that the dam and lake as constructed materially and substantially departed from the general plan and the construction plans. These contentions are based upon the size of the finished lake area and the location of the borrow areas from which earth was removed in order to construct the dam. Appellants sought a writ of mandamus directing the Duck Creek board of directors to specifically comply with the general plan.
K.S.A. 60-801 reads:
“Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” (Emphasis added.)
As long ago as 1888, it was said:
“The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus, are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.” Martin, Governor v. Ingham, 38 Kan. 641, 17 Pac. 162. (Emphasis added.)
A writ of mandamus is discretionary and does not issue as a matter of right. Unless the defendant’s legal duty is clear, the writ should not issue. State, ex rel., v. Paulsen, 204 Kan. 857, Syl. ¶ 2, 465 P.2d 982 (1970).
Since the duty of the watershed district to strictly comply with the general plans for the watershed is not clear in the enabling statutes, mandamus would not be a proper remedy. The trial court found there was substantial compliance with the plans based upon the testimony of the construction engineers and district representatives. An examination of the record discloses that the court’s findings of substantial compliance are supported by the evidence and therefore, the decision of the Duck Creek board of directors was not arbitrary, illegal or unreasonable. The mandamus was properly denied.
Plaintiff next contends that the watershed district should be compelled to plant certain grasses which he desires on the dam and lake area, grasses which he contends would be more suitable for livestock grazing than the grasses actually planted.
The watershed district has the power, authority and duty, under K.S.A. 24-1209 Fourth to maintain the dam and lake project. Testimony offered at trial supported the conclusion that the grasses planted were chosen for their peculiar characteristics in holding the soil and retarding erosion. According to the expert testimony, the grass desired by the plaintiff does not have the same qualities and would not serve to maintain and preserve the structure as well as that utilized by Duck Creek. As the decision of the watershed board is supported by substantial competent evidence, the refusal to grant a mandatory injunction did not constitute an abuse of discretion by the trial court. The granting or denial of an injunction is, generally speaking, discretionary. Absent an abuse of that discretion, the appellate court will not normally interfere. Southeast Kansas Landowners Ass’n v. Kansas Turnpike Auth., 224 Kan. 357, 582 P.2d 1123 (1978).
Next the appellants sought a mandatory injunction to require the appellee to remove and relocate a fence which had been installed to protect the dam. The fence was installed along the same line as an earlier fence and appellants desired that it be moved and relocated as it “unnecessarily interfere[d] with plaintiffs’ full use and enjoyment of their property.” There was testimony that the appellee tried to place the fence where Mr. Huser wanted it placed, but for some reason failed to satisfy him. Mr. Huser admitted at trial that the fence did not actually prevent his use of the land, but rather hindered it.
The trial court found upon the evidence presented that the fence was placed for the purpose of protecting the dam. As it did not prevent plaintiff s use of the land, the trial court did not abuse its discretion in refusing to order that the fence be moved. The decision to place the fence was not illegal, arbitrary or unreasonable, even though it might have been placed in a location more suitable to the appellants.
The final point raised by appellants concerns the claimed right to use water accumulated in the lake for commercial agricultural irrigation purposes. The watershed district refused to permit irrigation based upon advice of engineers that irrigation could adversely affect the lake level and thereby promote erosion and damage to the dam .by. wave action and wintertime freezing. Appellants sought a declaratory judgment that they had a right of access to use water from the lake for irrigation purposes. The court based its decision to deny the declaratory judgment on its finding of a potential for damage to the dam and the conclusion that no water rights were reserved for the plaintiff s benefit in the original easement granted to the watershed district. The stated purposes of the easement were flood control, water flowage and water storage. The reservation of rights in the original easement is for purposes “not inconsistent” with the grantee’s rights. The watershed district has the responsibility for the maintenance of the flood control project, including the dam in question. Costs of maintenance, as are other expenses, of the district, are borne by the taxpayers in the watershed district.
Although there was evidence to the contrary, a civil engineer with the soil conservation service testified that irrigation from the impounded water could cause damage to the dam structure for which the watershed district would be responsible. He also testified that the dam was not designed or constructed for purposes of irrigation. There was similar testimony from other witnesses. As there was competent evidence that irrigation might result in damage to the dam and increased maintenance at the cost of the taxpayers, the district’s action in denying access for irrigation purposes was not illegal, arbitrary or unreasonable. Based upon the evidence of potential damage to the dam, the trial court did not commit error in refusing to enter a declaratory judgment in appellant’s favor.
The judgment is affirmed. | [
-11,
-18,
-11,
-19,
10,
-24,
56,
-125,
73,
-79,
-11,
83,
-17,
26,
-123,
127,
87,
125,
-43,
121,
-58,
-74,
119,
-126,
113,
115,
-7,
-33,
-6,
95,
-26,
71,
76,
-96,
2,
85,
-58,
-118,
85,
28,
-122,
-106,
9,
-45,
-47,
74,
54,
107,
114,
78,
53,
11,
-13,
43,
29,
-29,
-87,
36,
-53,
45,
65,
-8,
-118,
-44,
94,
20,
48,
-128,
-112,
-125,
64,
42,
-112,
-80,
9,
-4,
119,
-90,
-106,
53,
75,
-69,
40,
114,
102,
3,
109,
-49,
-20,
-104,
30,
-37,
-83,
-92,
-111,
24,
106,
-128,
-76,
-99,
116,
22,
6,
118,
-26,
-123,
95,
-20,
7,
-121,
-76,
-77,
-33,
117,
-118,
19,
-29,
-127,
32,
100,
-117,
-30,
78,
69,
48,
31,
-118,
-36
] |
The opinion of the court was delivered by
Prager, J.:
This is a direct appeal from convictions of rape (K.S.A. 21-3502) and aggravated burglary (K.S.A. 21-3716). The facts in the case were undisputed except for the identity of the defendant, Richard Coy, as the burglar-rapist. On August 4, 1982, Miss B was awakened in the middle of the night when she heard an intruder in her bedroom. She was raped by the intruder. Because of the darkness and lack of illumination, she could not identify defendant as her assailant by visual observation. Defendant lived in an apartment across the street from the victim and was observed shortly after the rape walking on the street in the vicinity of the victim’s home. Identification of defendant as the rapist was based on two types of evidence: (1) A voice identification by the victim from a taped conversation between defendant and police officers at the police station, and (2) a piece of a zipper tooth found at the scene which matched a broken zipper tooth found in blue jeans taken in a search at defendant’s house. The testimony as to the matching zipper tooth was not rebutted or explained by the defense testimony. It undoubtedly brought about the conviction in this case. On the appeal, defense counsel raises six points of claimed error.
The defendant first contends that he was unlawfully arrested or seized without probable cause, that he was taken to the police station and questioned at length by police officers about the rape, and that the voice recording of the conversation played to the victim constituted the fruits of an unlawful arrest and seizure and was, therefore, not admissible. The testimony presented at the trial showed clearly that defendant went to the police station voluntarily, driving his own vehicle, and that he consented to have his conversation with the police officers taped. The police officer testified that he stopped defendant for a defective muffler and tail light and that defendant could not produce a driver’s license. It appears that the defendant was under suspicion in connection with the rape incident. The police officer testified that he asked defendant to go to the police station to talk with him about the rape incident and that defendant agreed to go. Defendant testified that the policemen stopped him, but he did not know why. He also said that the officer asked him to go to the station and answer some questions and that defendant said, “Sure.” He also testified that there was no indication that he was under arrest at that time and that it was only after he was read his Miranda warning at the police station that he thought he was under arrest. In view of this testimony, we cannot say that the trial court erred in its denial of defendant’s motion to suppress the testimony. We hold that the voice recording did not constitute the fruits of an unlawful arrest and, hence, the voice identification by the victim was admissible into evidence.
Defendant next maintains that the voice identification of defendant by the victim was made under unreliable circumstances and, for that reason, should not have been admitted into evidence. It has long been the rule in Kansas that testimony by a witness as to identification of an accused is admissible into evidence when based upon a voice identification. In State v. Herbert, 63 Kan. 516, 66 Pac. 235 (1901), it was held that where a crime was committed in the darkness, a witness who could not distinguish the features, but did hear the voice of the one who committed the offense, may testify that the defendant was the offender, and that he recognized him by his voice. Other cases which recognize the admissibility of voice identification are State v. Freeman, 195 Kan. 561, 408 P.2d 612 (1965), cert. denied 384 U.S. 1025 (1966); State v. Visco, 183 Kan. 562, 567, 331 P.2d 318 (1958); State v. Nixon, 111 Kan. 601, 207 Pac. 854 (1922). The Kansas cases are in accord with the general rule followed throughout the United States as shown by the many cases cited in the annotation in 70 A.L.R.2d 995. Moreover, in considering the question whether one suspected of a crime may be required to demonstrate his voice for identification purposes, the courts have generally held that a suspect or a defendant may not refuse on the grounds that his privilege against self-incrimination would be violated. This rule is followed in State v. Freeman, 195 Kan. 561. See also United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967).
In considering the admissibility of a pretrial identification of a suspect in a criminal case based upon voice identification, it has generally been held that the totality of the circumstances must be analyzed to determine whether the voice identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. In State v. Ponds, 227 Kan. 627, 608 P.2d 946 (1980), the court recognized the danger of an impermissibly suggestive pretrial photo-lineup identification and followed the totality of circumstances rule. In United States v. Pheaster, 544 F.2d 353, 369 (9th Cir. 1976), the United States Court of Appeals for the Ninth Circuit held that, because the possibility of irreparable misidentification is as great when the identification is from a tape recording as when it is from a photograph or lineup, the same due process protections should apply to either method. Following Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375 (1972), the court held that, in determining the constitutional adequacy of pretrial identification procedures in any particular case, the central question is whether, under the totality of circumstances, the identification procedures were reliable even though the confrontation procedure was suggestive.
We hold that the totality of circumstances rule which has been applied in this state to photo-lineup identifications should also be applied in cases involving pretrial voice identifications. In the case now before us, a voice identification test was reasonably necessary. The victim could not identify her assailant from a visual observation because there was not sufficient illumination of his features. Her description of the assailant was very general and not adequate to establish the identity of the rapist. The record discloses that there were two tapes involved in the voice identification. On one of the tapes, there were three people engaged in conversation — defendant Coy and two police officers. On the other tape, defendant’s brother was substituted for the defendant with the others the same. No specific words were requested of the defendant. The victim keyed in on defendant’s use of the word “stupid” and his manner of speaking. The surrounding circumstances do not indicate suggestiveness. The victim was awakened at 12:30 a.m. to come to the police station to hear the tapes. She was not told whose voices were on the tapes and if they were suspects. She made a quick and emotional identification which was positive and not indecisive. She heard defendant’s voice, both angry and calm, and immediately identified his voice. The trial court, after a hearing on defendant’s motion to suppress, held the tapes to be admissible. We cannot say that the trial court committed error. The necessity of the voice identification was clearly established and the procedure used was not unduly suggestive under the totality of the circumstances. We hold that the voice identification by the victim was admissible.
Defendant’s next point is that the jury panel was selected in a way contrary to applicable statutes and constitutional mandates designed to afford defendant a fair trial by his peers. The difficulty with the defendant’s position is that he has presented no evidence whatsoever that the jury was selected in an improper manner. The original panel of 40 persons was exhausted after 20 qualified jurors had been selected with an additional eight jurors still needed. The trial court ordered the sheriff to round up an additional 13 persons from which the additional eight jurors would be selected. At this time, defendant’s counsel moved the court to declare the jury panel unconstitutional because of improper selection.
In selecting additional jurors, the trial judge utilized the provisions of K.S.A. 43-167 which, in substance, provides that in any case where an insufficient number of jurors appear or if a panel be exhausted by challenge or otherwise before the jury is sworn, the court may order the sheriff to summon a sufficient number of other persons to complete the jury. The court may order such additional members summoned in the same manner as is provided for members of the original jury panel or otherwise. In State v. McCambry, 225 Kan. 803, 805, 594 P.2d 222 (1979), it was held that the procedure outlined in 43-167 is a fair and reasonable manner of selection. It is based upon necessity, and is constitutionally permissible when fairly and impartially carried out. Today, the more prevalent practice is for the court to maintain special lists of talesmen to fill emergency shortages. In the present case there is nothing in the record to show that the additional jurors were not summoned in a fair and impartial manner.
Although defense counsel did move to discharge the jury panel, he did not comply with the provisions of K.S.A. 22-3407 which provides:
“22-3407. Motion to discharge jury panel. (1) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel. The motion shall be made at least five days prior to the date set for trial if the names and addresses of the panel members and the grounds for objection thereto are known to the parties or can be learned by an inspection of the records of the clerk of the district court at that time; in other cases the motion must be made prior to the time when the jury is sworn to try the case. For good cause shown, the court may entertain the motion at any time thereafter.
“(2) The motion shall be in writing and shall state facts which, if true, show that the jury panel was improperly selected or drawn.
“(3) If the motion states facts which, if true, show that the jury panel has been improperly selected or drawn, it shall be the duty of the court to conduct a hearing. The burden of proof shall be on the movant.
“(4) If the court finds that the jury panel was improperly selected or drawn, the court shall order the jury panel discharged and the selection or drawing of a new panel in the manner provided by law.”
In State v. Holt, 228 Kan. 16, 19, 612 P.2d 570 (1980), it was held that K.S.A. 22-3407 imposes a duty upon the moving party, who challenges a jury panel, to go beyond a bald claim of discrimination, and to state some factual basis for the claim that the jury panel was improperly selected or drawn. This defendant failed to do. The specific facts supporting a claim that a jury panel was improperly drawn must be included in the motion challenging the venire before a hearing is required. In this case, we also note that defendant, on motion for a new trial, did not suggest to the court any evidence that he had knowledge of to show that defendant was denied a fair trial because the jury was improperly selected. Under the circumstances, we have no hesitancy in holding that counsel’s contention that the defendant should have a new trial because the jury panel was improperly selected is without merit.
Defendant’s next point is that defendant’s bond was excessive and his incarceration by reason thereof, before and during the trial, denied him a fair trial. The original bond set for the defendant by the court was $100,000, which was later reduced to $50,000. Although defendant argues that his confinement deprived him of his right to defend himself, he presented no evidence to this effect. There is no showing whatsoever that the investigation of the case by defense counsel was in any way hampered by the fact that defendant was confined in jail. Defendant made no attempt to test the legality of the bond by filing a writ of habeas corpus. We find no error.
The defendant next maintains that the trial court erred in denying defendant’s request for a change of venue. In order to prove prejudice so as to require a change of venue, specific facts and circumstances must be established by evidence which indicate that it will be practically impossible to obtain an impartial jury in the original county to try the case. State v. Rainey, 233 Kan. 13, 14, 660 P.2d 544 (1983); State v. Salem, 230 Kan. 341, 343, 634 P.2d 1109 (1981).
In the present case, 53 people were available and 30 members of the panel were passed for cause. The record does not show that there was any great difficulty in selecting the jury, nor does the record contain any news articles to show prejudice in the community. The record simply was not sufficient to require the trial court to grant a change of venue in this case.
We, likewise, find no error in the contention that the evidence was not sufficient to sustain the convictions in the case. The evidence of the State is set forth in the beginning of this opinion and, when considered in the light most favorable to the prosecution, is sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt. State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983).
As his next point, defendant maintains that the trial court committed reversible error in sentencing the defendant to a term of imprisonment in excess of the statutory penalties and, thereafter, in changing the sentence without affording the defendant an opportunity to be present at the hearing where change of sentence could be considered. In this case, the judgment of sentence was originally entered on January 3, 1983, at which time the trial court imposed a sentence of a minimum of 20 years to a maximum of life on the conviction of rape and a minimum of ten years to a maximum of twenty years on the conviction of aggravated burglary. The minimum terms set by the court were excessive. Rape (K.S.A. 21-3502) is a Class B felony and the statutory minimum sentence is fixed at five to fifteen years. Aggravated burglary (K.S.A. 22-3716) is a Class C felony and the statutory minimum sentence is three to five years. See K.S.A. 1982 Supp. 21-4501. Apparently the court noted that the minimum sentences imposed were excessive, and, on January 5, 1983, without notice to defendant, entered an ex parte order changing the minimum sentence on the rape count to fifteen years and the minimum sentence on the aggravated burglary count to five years, thus bringing each sentence within the statutory limitations.
We find that the trial court committed error in imposing the new sentences without affording defendant an opportunity to be present in person. This court has specifically held that, in a criminal prosecution where an erroneous original sentence of imprisonment has been vacated and set aside, a new sentence imposed in the absence of the defendant is void, for, under such circumstances, it is mandatory that the defendant be present in court at the time of the sentencing. Roberts v. State, 197 Kan. 687, 690, 421 P.2d 48 (1966); Aeby v. State, 199 Kan. 123, 127, 427 P.2d 453 (1967). In Aeby, the court held that the proper procedure to correct a sentence is to return the defendant to court for sentencing. The factual circumstances in the present case are similar to those in Roberts and Aeby. The sentences pronounced were longer than the statutory limits provided. The trial court had no right to resentence the defendant without affording him a right to be present. On this point the case is reversed and remanded to the district court with directions to resentence the defendant on the convictions of rape and aggravated burglary.
We have considered other claimed errors set forth in defendant’s brief, and we find them to be without merit.
For the reasons set forth above, the convictions of the defendant for rape and aggravated burglary are affirmed. As to imposition of sentences, the case is reversed and remanded to the district court with instructions to resentence defendant, affording defendant an opportunity to be present and to be heard at the time of resentencing. | [
16,
-18,
-3,
-66,
27,
97,
42,
-82,
98,
-121,
-78,
-13,
-95,
66,
4,
107,
-102,
125,
84,
97,
-33,
-73,
-9,
-63,
-74,
115,
122,
-44,
-73,
-51,
-28,
-10,
9,
48,
-62,
81,
98,
-54,
-11,
92,
-114,
15,
-72,
-43,
-47,
0,
100,
59,
-24,
15,
49,
-99,
-89,
40,
20,
-58,
9,
44,
75,
-75,
-16,
121,
-119,
21,
-49,
54,
-77,
38,
-68,
37,
-16,
5,
-100,
49,
0,
104,
115,
-92,
-122,
116,
111,
-118,
-116,
96,
98,
0,
9,
-29,
40,
-95,
46,
118,
-76,
-89,
-72,
8,
72,
101,
-65,
-103,
109,
80,
47,
-2,
-11,
78,
31,
108,
-113,
-49,
-108,
-111,
-115,
100,
-110,
-23,
-17,
37,
0,
113,
-51,
-30,
92,
85,
123,
-37,
-114,
-14
] |
Per Curiam:
This is an attorney discipline proceeding pertaining to the conduct of Richard J. Rome.
The origins of this controversy stem from events of years past. Richard J. Rome was admitted to the Bar of Kansas in 1961. He successfully served as Reno County attorney for a number of years. He later served as assistant U.S. district attorney for one year.
Kansas amended the judicial article to the Constitution in 1972. It provided for the nonpartisan selection of judges on a local option basis. Reno County opted for nonpartisan selection. Richard J. Rome was selected as an associate district judge in 1973. Subsequently, he became interested in returning Reno County to partisan election of judges. In 1974 Judge Rome insensitively wrote a decision in rhyme concerning women. He was censured. See In re Rome, 218 Kan. 198,542 P.2d 676 (1975).
In 1978, while Richard Rome was president of the Reno County Bar Association, a vote was taken by that bar association on the issue of partisan election of judges. The vote was strongly in favor of nonpartisan selection, which was counter to the desire of Rome. Judge Rome’s reaction to the vote was vindictive. He later advised an attorney who was seeking probation for a client, that the client’s “fate was sealed” by her previous attorney’s vote at the bar meeting.
That action coupled with other misconduct on the part of Rome caused a judicial qualifications complaint to be filed against him. After proper procedural due process, Richard Rome was ruled disqualified from serving as an associate district judge and was removed February 10,1981. See State ex rel Comm’n on Judicial Qualifications v. Rome, 229 Kan. 195, 623 P.2d 1307, cert. denied 454 U.S. 830, reh. denied 454 U.S. 1094 (1981).
Rome brought an injunction action in the U.S. District Court of Kansas to enjoin his ouster. He lost and appealed to the 10th Circuit where the appeal was dismissed. He then sued the members of this court for damages in federal court. Upon an adverse ruling he again appealed, which appeal is now pending.
This action originated in the investigation of Richard Rome’s judicial misconduct but pertains only to Rome’s conduct after his removal from the judiciary.
In 1979, Edward G. Collister, legal counsel to the Commission on Judicial Qualifications, was conducting the investigation into alleged judicial misconduct of Richard J. Rome. Mr. Collister subpoenaed Joseph P. O’Sullivan III, and consequently took his deposition on October 3, 1979. At the time O’Sullivan was the Reno County attorney. Mr. O’Sullivan was subpoenaed for the deposition because Judge Rome had listed him as a potential witness in his upcoming hearing before the Commission on Judicial Qualifications. As a result of information obtained during O’Sullivan’s deposition, James Fountain, Reno County sheriff, was also interviewed by Mr. Collister. Mr. Fountain gave a sworn statement to Mr. Collister on October 4, 1979.
On November 6, 1979, and again on April 28, 1980, O’Sullivan and Fountain testified in hearings before the Judicial Qualifications Commission concerning misconduct of Rome. Roth O’Sullivan’s and Fountain’s testimony in part concerned an alleged occurrence where Rome challenged Sheriff Fountain to a fight. In his testimony before the Commission, Judge Rome denied the alleged occurrence and contended the county attorney and the sheriff conspired against him.
The Commission found that on January 5, 1978. Respondent made the statement challenging Sheriff Fountain to a fight. Rome’s removal as judge was then recommended and his removal followed, as previously stated.
. On March 9, 1981, at 1:30 p.m., the Judicial Nominating Commission for the 27th Judicial District convened to consider potential nominees for the position of associate district judge vacated by Judge Rome. Joseph O’Sullivan III, the county attorney, was one of the potential nominees.
On the morning of March 9, 1981, at 10:52 a.m., a few hours prior to the judicial nominating committee hearing, Respondent, as complaining witness, filed two criminal cases in the Reno County District Court. One action, State ex rel. Richard Rome v. O’Sullivan, case No. 81-CR-118, alleged three counts of perjury against Joseph O’Sullivan III. The second, State ex rel. Richard Rome v. Fountain, case No. 81-CR-117, alleged two counts of perjury against James Fountain. The allegations of perjury were based upon the testimony given by Fountain and O’Sullivan in their sworn statements to Edward Collister on October 3 and 4, 1979.
In the case against O’Sullivan, Rome alleged O’Sullivan had falsely testified when he expressed his opinion that Rome in a preliminary hearing on a criminal case held the State to a beyond a reasonable doubt standard of proof. The complaint also alleged O’Sullivan perjured himself when he expressed the opinion that Judge Rome displayed favoritism to certain attorneys appearing before him. The final allegation of peijury was O’Sullivan’s testimony that Rome admitted to O’Sullivan he had challenged Sheriff Fountain to a fight.
In the complaint against Fountain, it was alleged Fountain falsely testified when he recounted to Collister what an unidentified third person had related to him concerning a statement made by Rome in the third person’s presence. Fountain admitted in the course of his statement that he had no personal knowledge as to whether Rome ever made the alleged comment.
The second count of the complaint alleged Sheriff Fountain perjured himself when he testified that Rome had challenged him to a fight. In his statement the sheriff recalled the event as occurring in September or October of 1978. When testifying before the Commission on Judicial Qualifications on April 28, 1980, Fountain corrected his prior statement and indicated the event occurred on January 5, 1978.
Respondent Rome did not consult with or obtain the consent of the county attorney or the attorney general before filing the complaints.
Respondent personally presented both complaints to the district court on the morning of March 9, 1981, and requested they be filed. Respondent expressed his opinion to the district court judge that O’Sullivan and Fountain lied under oath. The judge did not make an independent examination of the evidence, nor did he read the transcripts presented by Respondent which allegedly formed the basis of the perjury; rather, he accepted Respondent’s word that the perjury occurred. The judge recognized that most of the allegations concerned opinion testimony which he believed could not be the basis for peijury allegations. He attempted to dissuade Rome from filing the complaints, but Respondent persisted in his efforts. The judge, after having Rome swear to the allegations of the complaints, allowed the complaints to be filed. Rome then requested the issuance of arrest warrants. The judge directed instead that notices to appear be issued to both O’Sullivan and Fountain.
Sometime before noon on March 9, 1981, Robert Mackey, News Director for WKHK radio station, Hutchinson, received an anonymous phone call advising him of the existence of the complaints against O’Sullivan and Fountain. On the same date, also prior to noon, Dan Deming, News Director for KWBW radio station, Hutchinson, received an anonymous phone call advising him of the existence of the complaints. The filing of the complaints received considerable attention in the local news media. Information concerning the complaint was broadcast on the noon news of the local radio stations, and published in the afternoon edition of the Hutchinson News on March 9, 1981.
Thereafter, both Fountain and O’Sullivan filed motions to quash the complaints. Respondent sought no involvement of the county attorney but rather continued to pursue the prosecution of these complaints as the complaining witness pro se. Respondent filed a written argument and brief in opposition to the motions to quash.
After briefing by all parties, Fountain’s and O’Sullivan’s motions to quash came for oral argument on December 14, 1981, before the court. Judge Richard Wahl of the 12th Judicial District was assigned to hear the cases. Both defendants appeared with their counsel. Also appearing was Joe McCarville, the new Reno County attorney, and James Flory, a deputy attorney general for the State of Kansas. Respondent did not appear. Judge Wahl dismissed both complaints and made the following findings:
"1. The complaints are essentially couched in the language of the statute claimed to be violated, perjury. No affidavits were filed with the complaints. No sworn testimony was adduced with the filing of the complaints. The complaints do not contain sufficient factual information to enable a magistrate to make an impartial and detached finding of probable cause upon which a warrant or a summons could issue.
“2. No copy of the complaint was supplied to the county attorney, nor was any apparent effort made to have the court appoint some attorney to act as county attorney. The complaining witness immediately presumed to act as prosecutor and titled the complaint in the name of the State of Kansas on the relation of Richard J. Rome. He is a private citizen and cannot conduct any criminal prosecution in the name of the state. As an attorney he could have been appointed by the court in the absence or disqualification of the county attorney were he not the complaining witness or otherwise interested in the prosecution. As the complaining witness he could not be appointed as the prosecuting attorney by the court.
“4. The argument of the complaining witness in his brief centers around the right of a citizen to sign a complaint. No one contends that a citizen does not have that right. The problem here is that the citizen then proceeded to conduct the prosecution personally in the name of the State of Kansas, and that he cannot do.
“6. The complaints filed in these cases are wholly inadequate under the requirements which the Kansas Supreme Court defined in Wilbanks against State, 224 Kan. 66. The notice to appear has no efficacy at all. It served no legal purpose. The motions to quash the complaints should be sustained.
“11. The complaints filed in each of these cases should be quashed. The stated defendants should be released from any obligation under them.
“12. As an attorney and former Judge, the complaining witness should be charged with full knowledge of the impropriety of the procedures which he set in motion and in which he was the principal actor.”
Respondent filed a motion to set aside the order of dismissal. This request was denied. On April 28, 1982, Respondent filed a notice of appeal in both cases. The appeal, however, was never docketed pursuant to Supreme Court Rule No. 2.04 (232 Kan. c). On February 14, 1983, Judge Wahl dismissed the appeal for failure of Respondent to docket them.
On February 15, 1983, Respondent applied to the Court of Appeals to reinstate his appeal of the perjury case. On March 1, 1983, the formal complaint in this disciplinary proceeding was filed. On March 9, 1983, Rome’s motion to reinstate the appeal was denied. A second request for reconsideration was filed on May 20, 1983. The appeal was finally docketed on June 9, 1983, and transferred to this court. On February 18, 1984, we dismissed the appeal and awarded costs and attorney fees to Fountain and O’Sullivan. See State ex rel. Rome v. Fountain, 234 Kan. 943, 678 P.2d 146 (1984).
The hearing on the complaint against Rome before the Kansas Hoard for Discipline of Attorneys was held May 23 and 24, 1983, after the original dismissal of the appeal and prior to its docketing. The disciplinary complaint alleged Respondent had commenced the perjury cases knowing the charges were unwarranted and for the purpose of harassing and maliciously injuring O’Sullivan. In addition to the criminal cases concerning pequry, the disciplinary complaint alleged Respondent had also commenced civil actions against both Fountain and O’Sullivan for the purpose of harassment and malicious injury. This civil litigation was Sumner v. Yoder Township, et al., case No. 81-C-219, and Chansler v. Reno County Public Works, et al., case No. 81-1459.
Sumner was commenced in the district court of Reno County, on May 22, 1981. It involved a dispute between Sumner, a landowner, and Yoder Township over the placement of Sumner’s fenceposts. The Township contended the fenceposts were in its right-of-way and must be moved. Sumner refused to move the posts. The Township eventually attempted to remove the posts without Sumner’s permission.
Mr. Sumner contacted O’Sullivan and asked whether the Township could remove the posts. O’Sullivan, in his capacity as county attorney, informed Sumner if the posts were in the right-of-way, the Township was required to remove them. When the Township attempted to remove the posts, Sumner’s wife interfered. A sheriff s deputy at the scene phoned O’Sullivan and requested advice. O’Sullivan advised the deputy that both parties had counsel and the deputy was not to make any decision as to the property rights involved. The deputy was instructed only to preserve the peace and insure no one was injured. This was O’Sullivan’s only involvement in the case. Respondent, on behalf of Sumner, commenced suit against the Township and named O’Sullivan as a defendant. The judge eventually ordered the Township to remove the posts.
Chansler was filed in the United States District Court for the District of Kansas. Respondent commenced that action on behalf of Chansler on September 3, 1981. The case concerned Chansler’s discharge from employment with the Reno County Public Works Department. The suit named O’Sullivan as a party defendant and alleged he conspired to violate the plaintiff s civil rights. O’Sullivan’s sole involvement was in providing advice to a representative of the public works department who was drafting a response to a labor union grievance filed by Ms. Chansler after her termination. The action filed by the respondent was dismissed at the close of plaintiff s evidence on defendant’s motion for directed verdict.
The complaint against Rome in this case was initiated by O’Sullivan and investigated for the Kansas Board of Discipline of Attorneys by D. W. Wheeler, a Marion attorney. After the May hearing on the matter, the hearing panel found Respondent had violated D.R. 1-102(A)(6) (232 Kan. clxxv) in that he:
“(1) Prepared and directed the filing of case number 81 CR 118, State of Kansas ex rel Richard J. Rome against Joseph P. O’Sullivan III, in the District Court of Reno County, Kansas and case number 81 CR 117 being the State of Kansas ex rel Richard J. Rome against James Fountain, in the District Court of Reno County, Kansas, with knowledge and experience that such were groundless and could not be proven, failing to maintain the integrity of Respondent in a manner and with a purpose reflecting on being entrusted with the duties and responsibilities belonging to the office of an attorney.”
The panel recommended Respondent receive public censure and filed a report on July 20, 1983. On August 13, 1983, Respondent filed written exceptions to the report.
Respondent’s first argument is that all of the justices of this court should recuse themselves from this case. The reasons given for this request are the court’s involvement in the removal of Respondent from his judicial seat; a lawsuit which is pending before the United States District Court in which Respondent is plaintiff and this court is a defendant; and finally, because Respondent is in favor of the partisan election of all judges and this court is allegedly “on record for its opposition to the election of judges by the people . . . .” The grounds for judicial disqualification are stated in the rules relating to judicial conduct, Rule 601, Canon 3C (1), 232 Kan. cciii-cciv. These rules are:
“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding.”
None of the reasons require the disqualification of any member of this court in this case. We are charged in K.S.A. 7-103 with supervision of the practice of law. To permit the filing of a suit against members of this court to disqualify them from discharging that statutory duty would nullify it and permit manipulation of the court.
Respondent next argues he was denied procedural due process during the investigation stage of this disciplinary case. The report of the person appointed by the Disciplinary Administrator to investigate the complaint against respondent included information concerning Sumner v. Yoder Township, et al., and Chansler v. Reno County Public Works, et al., the two cases previously discussed in which Respondent was involved as plaintiffs’ counsel and O’Sullivan was a defendant. Respondent claims since he was not asked about these cases by the investigator, he was denied due process. He argues if given the opportunity to explain the circumstances of those two cases to the investigator, the “outcome of the review committee’s action would have been different,” since “[t]hey never had the benefit of Respondent’s views or his presentation of the files in their entirety.” Respondent also argues he was further denied due process since he did not receive a copy of the investigator’s report until a few days before the hearing.
Petitioner, the State of Kansas, admits the investigator did not inquire about the two civil cases when he spoke with Respondent, but claims Respondent was still afforded procedural due process.
It is undisputed procedural due process is required in lawyer disciplinary proceedings. This has been interpreted to require notice of the charges to afford a meaningful opportunity for explanation and defense. In re Ruffalo, 390 U.S. 544, 550, 20 L.Ed.2d 117, 88 S.Ct. 1222, reh. denied 391 U.S. 961 (1968). This rule is recognized in Kansas. See, e.g., State v. Turner, 217 Kan. 574, 538 P.2d 966 (1975), and State v. Alvey, 215 Kan. 460, 524 P.2d 747 (1974).
On March 1, 1983, Respondent was given a copy of the formal charges, which included allegations of unethical conduct by his action in the two civil cases. The hearing on the formal complaint was May 23, 1983. Thus, Respondent was afforded almost three months advance notice that his action in the two civil cases would be considered in assessing his professional conduct at the May hearing.
The United States Supreme Court in Hannah v. Larche, 363 U.S. 420, 4 L.Ed.2d 1307, 80 S.Ct. 1502 (1960), considered the constitutional requirements owed by an agency during an investigation. That court held an efficient investigation would not be conducted by an agency “if persons being investigated were permitted to convert the investigation into a trial.” The court further held individuals who. are investigated by agencies and who will be “accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding,” cannot successfully complain they were not given procedural due process. 363 U.S. at 446. Such is the case here. Respondent was afforded every element of due process by receipt of the formal notice three months prior to hearing and the opportunity to thoroughly explain the circumstances of the two civil cases and presentation of his files on the matters at the disciplinary hearing. The failure of the investigator to inquire of the respondent as to the civil cases prior to the hearing was not a denial of procedural due process. A person under investigation has no constitutional due process right to conduct the inquiry or to control its scope so long as he has notice of the charges prior to the adjudicative hearing.
Respondent also argues the hearing panel abused its discretion by determining it would proceed with the disciplinary action against Respondent, despite the fact the criminal peq'ury charges, alleged in the formal disciplinary complaint against Respondent as frivolous, were not then final.
The criminal perjury actions were filed in March, 1981. After their dismissal in December, 1981, an appeal was taken but was not docketed until June, 1983, after the disciplinary hearing. The appeal was heard by this court and an opinion adverse to Respondent’s position was filed February 18, 1984.
At the commencement of the disciplinary hearing on May 23, 1983, the Respondent requested the disciplinary matter be continued until the other court cases involving O’Sullivan and Fountain were concluded. The hearing panel overruled the request pursuant to Supreme Court Rule 214, 232 Kan. clxix. This rule provides:
“Proceeding of complaints shall not be deferred or abated because of substantial similarity to the material allegations of pending civil or criminal litigation, unless authorized by a review committee or hearing panel.”
Respondent contends the failure of the hearing panel to continue the matter was an abuse of discretion.
The State argues it was not an abuse of discretion because the jurisdictional status of Respondent’s appeal on the criminal perjury matters appeared tenuous. On February 8, 1983, O’Sullivan and Fountain moved the district court to dismiss the appeal of the criminal cases since Respondent had failed to docket them. The court sustained the motion and dismissed the appeal on February 14,1983. On February 15,1983, Respondent filed with the district court a motion requesting the Court of Appeals to reinstate the appeal. The motion was denied on March 9, 1983, for lack of jurisdiction. On May 20, 1983, the Respondent filed a motion asking the Court of Appeals to reconsider the application to reinstate the appeal. This motion was still pending on May 23, 1983, the day the hearing on Respondent’s disciplinary charges began. It was also on May 23, 1983, that the hearing panel refused to continue the disciplinary proceedings until after the final adjudication of the appeal. The State contends due to the tenuous status of the appeal, the hearing panel should not have been required to postpone the disciplinary proceeding, but was allowed to act within its discretion under Supreme Court Rule 214 (232 Kan. clxix).
Petitioner also argues the ethical question of professional misconduct and the issues presented in the pending criminal appeal were separate and distinct since the issue on appeal involved the standing of Respondent to bring criminal charges. The ultimate issue in the appeal, however, was the issue involved in the disciplinary case. The question was whether the Respondent abused the judicial process as a personal tool of revenge to maliciously injure another without justification under the law. The appeal might have been resolved with a ruling that Respondent was justified under the law in bringing the criminal charges. Thus, the disciplinary hearing panel determined the same issue as this court — the legality of Respondent’s acts. We find, however, no abuse of discretion in this case. If this court’s ruling in the criminal appeal would have been favorable to Respondent, he would have had ample opportunity for either rehearing before the disciplinary panel or review of the panel’s recommendation by this court in light of the favorable appeals prior to disciplinary penalties being assessed.
Respondent next argues the bringing of the disciplinary action by O’Sullivan constituted a collateral attack of the criminal proceedings against him. This collateral attack is alleged to have deprived Respondent of equal protection, due process, and the right to petition the government for the redress of grievances. The basis for respondent’s argument is the bringing of the disciplinary complaint occurred while the criminal cases were on appeal to the Court of Appeals.
The criminal complaints were dismissed by the trial court on December 14, 1981, sixteen months prior to the filing of the formal complaint. Although a notice of appeal was filed by Respondent on April 28, 1982, no action was taken to pursue the appeal until after the disciplinary complaint had been investigated, and referred for prosecution. While the gravamen of the disciplinary charge against Respondent involved the criminal charges, there is no evidence this constituted a collateral attack or in any way violated any of Respondent’s constitutional rights. The record is void of any demonstration of such prejudice. Rome’s argument on this point is unsupported.
He further alleges the panel’s findings are contrary to the law and evidence. Respondent argues he had the right as a private citizen to bring the perjury charges. The State argues the perjury charges were groundless and brought only with the intent to harass O’Sullivan and Fountain. Both parties argue the substance of the perjury charges, which need not be discussed here since that issue has previously been decided by this court. State ex rel. Rome v. Fountain, 234 Kan. 943, 678 P.2d 146 (1984). In that decision this court held respondent had no right as a private citizen to pursue the prosecution of criminal cases and further held the cases were frivolous and brought for the purpose of harassment. The facts presented in that case were substantially the same as those presented to the hearing panel in this case.
It is well recognized in Kansas that to warrant a finding of misconduct of an attorney, the charges must be established by substantial, clear, convincing and satisfactory evidence. State v. Scott, 230 Kan. 564, 570, 639 P.2d 1131 (1982). In this case there was clear and convincing evidence of the Respondent’s misconduct. The hearing panel correctly weighed the evidence when it found the two criminal cases filed by respondent “were brought with knowledge and experience that such were groundless and could not be proven.” This issue is without merit.
Respondent next argues he conducted himself professionally and within his rights as a private citizen in bringing the peijury charges against O’Sullivan and Fountain. Respondent argues he followed all the legal requirements in filing the criminal complaints. While this is true, the problem is the Respondent went beyond his right to file the complaints and also sought to prosecute, which is not a right afforded private citizens. Also, Respondent was a former associate district judge and had served as county attorney. With such experience Respondent knew his actions were improper in that the cases were frivolous. An attorney may not divorce himself from his ethical obligations as an attorney when acting as a private citizen. He or she must always uphold the attorneys’ oath not to bring “groundless or unjust suits.” Supreme Court Rule 702(i), 232 Kan. ccxx. Although Rome complied with the legal technicalities in bringing the criminal complaints, there was no meritorious basis for the peijury complaints. Respondent failed to conduct himself professionally and went beyond his rights as a private individual.
Respondent argues the recommended discipline of public censure is unwarranted. This court has carefully considered the facts in this case and determined under all the circumstances the panel recommendation of public censure is quite lenient. In State v. Scott, 230 Kan. 564, 571, we enumerated the instances where public censure was proper. We conclude the panel’s recommendation of public censure appropriate for the misconduct of Respondent.
It Is Therefore Considered, Ordered and Adjudged by the court that Richard J. Rome be and he is hereby publicly censured by this court. The costs of this proceeding are taxed against the Respondent and are ordered paid forthwith. | [
-80,
-22,
-59,
92,
12,
64,
-98,
46,
83,
-69,
119,
83,
-21,
-53,
4,
63,
91,
125,
20,
91,
-63,
-78,
119,
-50,
-10,
-14,
-8,
-43,
-69,
127,
-12,
-3,
8,
-80,
-38,
-107,
70,
-54,
-123,
84,
-122,
0,
9,
124,
-38,
-127,
52,
103,
82,
31,
49,
46,
-13,
46,
53,
99,
-24,
44,
-37,
-24,
32,
-103,
-34,
-107,
109,
20,
-77,
39,
30,
-125,
92,
63,
88,
57,
32,
-8,
115,
-74,
2,
118,
15,
-85,
-127,
98,
97,
2,
53,
-125,
-96,
-23,
13,
26,
13,
-89,
-7,
88,
107,
39,
-74,
-75,
116,
18,
39,
-4,
103,
-51,
31,
108,
-124,
-50,
-44,
-77,
79,
-86,
-50,
66,
-21,
-125,
-112,
85,
-123,
-28,
86,
86,
50,
31,
-113,
-92
] |
The opinion of the court was delivered by
Prager, J.:
This is an appeal by Unified School District No. 501, Topeka, (school board) from a judgment of the district court of Shawnee County affirming an order of the Secretary of the Kansas Department of Human Resources (secretary), finding that the school board had violated K.S.A. 72-5430(b) by refusing to negotiate certain proposals of the National Education Association-Topeka (NEA).
The present controversy arises as a result of negotiations between the school board and NEA during the 1981-82 school year. NEA noticed for renegotiation all provisions contained in the current professional agreement, including, among others, three proposals entitled “Reduction in Staff,” “Employee Files,” and “Student Teacher Program.” The specific proposals will be discussed later in the opinion. In the course of negotiations, the school board refused to negotiate eight topics proposed by NEA. As a result of the school board’s failure to negotiate these topics, NEA filed a prohibited practice complaint with the secretary pursuant to K.S.A. 72-5430. The complaint, as amended, specifically charged the school board with failing to negotiate in good faith on mandatorily negotiable topics. The secretary considered each of the eight topics to determine whether it fell within the purview of mandatorily negotiable categories listed under K.S.A. 72-5413(Z). The secretary determined that five of the topics were not mandatorily negotiable and that three of the topics were mandatorily negotiable. The mandatory negotiability of only the three topics was considered in district court. The primary issues presented on this appeal are concerned with whether these three proposals fell within the category of subjects which were mandatorily negotiable.
At the outset, it should be noted that both the secretary and the district court determined the question of mandatory negotiability by using the so-called topic approach. Under this approach, a proposal does not have to be specifically listed under K.S.A. 72-5413(Z) to be mandatorily negotiable as a term and condition of employment. All that is required is that the subject matter of the specific proposal be within the purview of one of the categories listed under “terms and conditions of professional service.” K.S.A. 72-5413(Z), as amended in 1980, defines “terms and conditions of professional service” as'follows:
“(l) ‘Terms and conditions of professional service’ means (1) salaries and wages, including pay for duties under supplemental contracts; hours and amounts of work; vacation allowance, holiday, sick, extended, sabbatical, and other leave, and number of holidays; retirement; insurance benefits; wearing apparel; pay for overtime; jury duty; grievance procedure; including binding arbitration of grievances; disciplinary procedure; resignations; termination and nonrenewal of contracts; re-employment of professional employees; terms and form of the individual professional employee contract; probationary period; professional employee appraisal procedures; each of the foregoing is a term and condition of professional service, regardless of its impact on the employee or on the operation of the educational system; and (2) matters which relate to privileges to be accorded the recognized professional employees’ organization, in- eluding but not limited to, voluntary payroll deductions, use of school or college facilities for meetings, the dissemination of information related to the professional negotiations process and related matters to members of the bargaining unit on school or college premises through direct contact with members of the bargaining unit, the use of bulletin boards on or about the facility, and the use of the school or college mail system to the extent permitted by law, reasonable leaves of absence for members of the bargaining unit for organizational purposes such as engaging in professional negotiating and partaking of instructional programs properly related to the representation of the bargaining unit; and (3) such other matters as the parties mutually agree upon as properly related to professional service. Nothing in this act, or acts amendatory thereof or supplemental thereto, shall authorize the diminution of any right, duty or obligation of either the professional employee or the board of education which have been fixed by statute or by the constitution of this state. Except as otherwise expressly provided in this subsection, the fact that any matter may be the subject of a statute or the constitution of this state does not preclude negotiation thereon so long as the negotiation proposal would not prevent the fulfillment of the statutory or constitutional objective. Matters which relate to the duration of the school term, and specifically to consideration and determination by a board of education of the question of the development and adoption of a policy to provide for a school term consisting of school hours, are not included within the meaning of terms and conditions of professional service and are not subject to professional negotiation.” (Emphasis supplied.)
None of the parties on this appeal challenges the use of the topic approach in considering the mandatorily negotiable categories under K.S.A- 72-5413(1). In our judgment, the topic approach was the proper method to be utilized by the secretary and the district court in interpreting K.S.A. 72-5413(1). Such an approach is in accord with the intent of the Kansas legislature and is consistent with the Kansas decisions.
Prior to 1977, there was no statutory definition of “terms and conditions of professional service” contained in the statute. An early case defining “terms and conditions of professional service” was National Education Association v. Board of Education, 212 Kan. 741, 512 P.2d 426 (1973), often referred to as the Shawnee Mission case. In that case, certain specific topics were held to be included within the phrase and the “impact test” was adopted. In 1977, the legislature amended K.S.A. 72-5413 by adopting the “impact test.” The “impact test” required a court to consider whether an issue proposed for negotiation had a greater direct impact on the well being of the individual teacher than on the operation of the school system as a whole.
In 1980, the legislature adopted K.S.A. 72-5413(1). New mandatory topics were added and the “impact test” was deleted. Two of the new topics added were “nonrenewal of contracts” and “re-employment of professional employees.” The 1980 amendment also included the following language:
“Except as otherwise expressly provided in this subsection, the fact that any matter may be the subject of a statute or the constitution of this state does not preclude negotiation thereon so long as the negotiation proposal would not prevent the fulfillment of the statutory or constitutional objective.”
The topic approach was suggested in an opinion by Justice McFarland in Chee-Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 593 P.2d 406 (1979). Chee-Craw established certain guidelines to be followed by the courts in determining whether a particular item is mandatorily negotiable. Guidelines two and three speak directly to utilizing the topic approach in resolving disputes of this nature. They provided in part as follows:
“2. The district court shall, in its determination, decide such negotiability questions as a matter of law. Ordinarily, evidence admitted should be only the proposals themselves, but the district judge may, in his discretion, permit such other evidence as will assist him in understanding the nature and effect of the proposal. The court will, of course, hear arguments of counsel and consider prior case law.
“3. The district court shall, whenever possible, determine the matter on the ‘topic’ basis rather than on the nuances of the actual individual proposal. For example, this court held in NEA-Topeka, Inc., 225 Kan. at 451, that class size was not negotiable. ‘Class size’ is a topic and any particular proposal to negotiate class size, regardless of its phraseology, is not mandatorily negotiable. As another example, ‘insurance benefits’ is a topic statutorily made mandatorily negotiable and any particular proposal, regardless of its phraseology, is mandatorily negotiable .... The district court shall not be bound by the caption given the proposal in determining the negotiability question. If a particular proposal covers more than one subject, the district court may divide the proposal.” pp. 567-68.
We have no hesitancy in holding that the topic approach is the method to be followed by the Secretary of the Kansas Department of Human Resources and the district courts in determining whether certain items are mandatorily negotiable under K.S.A. 72-5413(1). Both the secretary and the district court properly followed that method in determining the negotiability of the NEA proposals in this case. We now turn to a consideration of the three specific proposals involved in this appeal to determine whether they are or are not mandatorily negotiable under the statute.
Reduction in Staff
One of the proposals that the secretary and the district court found to be mandatorily negotiable was reduction in staff. The specific NEA proposal on this subject stated in pertinent part as follows:
“In the event of a reduction in staff of teachers beyond what can be accommodated by attrition, those retained shall be those teachers with the longest continuous service in the district and who hold certification appropriate for assignments in the district.
“Any inconsistent provision of this agreement notwithstanding, the commitment of the Board and the Association to affirmative action will be maintained in a layoff ....
“Teachers affected by staff reductions . . . shall be placed on a Preferential Hiring List for a period of two years. If there are two (2) or more persons on the list determined to be equally qualified for an available vacancy, preference shall be given to the person with the most service in the district (requiring a teaching or administrative certificate). If reinstated within one year from the date of layoff, an employee shall receive credit for accumulated unused sick leave and credit shall be given any teaching, supervisory or administrative experience in a similar or like position during the period of layoff after evaluation and acceptance by the Department of Personnel for purposes of negotiated salary increases they would have received had they not been laid off. Length of service for any employee employed from the Preferential Hiring List, shall date from the last date of hire held prior to layoff less the time of the layoff. Persons re-employed from the Preferential Hiring List after one (1) year from the date of layoff shall not be entitled to these benefits.”
The secretary divided this proposal into three areas of concern: (1) How staff was to be reduced in the event of a layoff; (2) a plan for affirmative retention of staff during layoff; and (3) a plan for the reemployment of teachers who have been laid off due to the reduction in staff. Upon a review of K.S.A. 72-5413(1), the secretary found that the mechanics of staff reduction was a mandatorily negotiable subject. He found that the NEA’s proposal relating to staff reduction was implicitly contained within the mandatorily negotiable topics of “termination and nonrenewal,” and “reemployment.” The secretary ruled that the portion of the NEA proposal having to do with affirmative action possibly fell within the scope of illegal subjects for negotiation due to federal and state plans relating to affirmative action. As to the third area of concern, reemployment, the secretary found that this item had been negotiated by the parties. As a result of these findings, the secretary ruled that the mechanics of staff reduction had not been properly negotiated by the board.
On appeal, the district court agreed with the secretary and held that the mechanics of staff reduction was a mandatorily negotiable topic under K.S.A. 72-5413(Z). In reaching this conclusion, the district court emphasized the 1980 amendments to K.S.A. 72-5413(Z) which deleted the impact test and added “termination and nonrenewal of contracts” and “reemployment of professional employees” as specific topics to be included as terms and conditions of employment. We agree with the secretary and the district court that the decision to reduce staff is a managerial decision for the school board and thus is not mandatorily negotiable. However, the mechanics for termination or nonrenewal of teachers as a result of reduction of staff are mandatorily negotiable items. Reduction in staff, as in the case of any type of layoff, must be accomplished either through termination or nonrenewal. Logically that portion of the NEA proposal should be mandatorily negotiable.
Employee Files
The NEA proposal pertaining to Employee Files was as follows:
“A master file of all materials relating to an employee shall exist at the district personnel office. All materials placed in the employee’s file and originating with the school district shall be available to the employee at his request for inspection in the presence of the person(s) responsible for keeping the files. Furthermore, at the request of the teacher, an Association representative may inspect the file.
“Material which is derogatory to an employee’s conduct, service, character or personality, shall not be placed in an employee’s file unless the employee has had an opportunity to read the material. The employee shall acknowledge that he has read such material by affixing his signature on the actual copy to be filed. Such signature does not necessarily indicate agreement with the content of such material.
“The employee shall have the right to respond to all materials contained in said file. Such response shall become part of the file. The teacher and/or his/her representative shall have the right to reproduce any of the contents of his/her file.
“Material originating outside the district before employment by U.S.D. #501 shall be placed in a separate file marked ‘confidential’ and shall not be used against the professional employee in case of promotion or dismissal.”
In examining this proposal, the secretary concluded that the school district could utilize employee files in determining an employee’s salary and wages, termination, nonrenewal, and reemployment. He further concluded that access by an employee to his file would be valuable to an employee in processing a grievance. The secretary also noted K.S.A. 72-9005 which, in substance, gives a teacher a right to have evaluation documents made available both to the teacher and also to a person specified by the teacher.
The district court upheld the findings of the secretary that the topic of Employee Files was a mandatorily negotiable subject under K.S.A. 72-5413(Z). The court concluded that this proposal affected a teacher’s salary and wages, termination and nonrenewal of contracts, reemployment of professional employees, and employee appraisal procedures. The district court also noted that, under K.S.A. 72-9005, a teacher has a right to examine and respond to evaluations. Accordingly, the district court ruled that the employee was entitled- to have access to all evaluation documents and supporting materials and any information contained in his or her file relating to mandatory topics of negotiation.
In our judgment, the district court was correct in affirming the order of the secretary and in its judgment that the subject of Employee Files was mandatorily negotiable under K.S.A. 72-5413(Z).
Student Teacher Program
The NEA proposal entitled Student Teacher Program stated as follows:
“It is recognized by the Board and the Association that the Student Teacher Program is vital to the continued improvement of the teaching profession and the progress of the School District.
“It is understood that each member of the bargaining unit shall be required to work with a student teacher if assigned, unless they submit a signed written request on a form made available by the District by the last day of the prior semester to be excluded from assignment for the following semester. The Superintendent shall not make a student teacher assignment to any teacher who has timely filed a written request form unless after considering such written request, he or his designee, determines there is not sufficient teachers available within the desired level (elementary or secondary) and subject matter area. In this event, the Superintendent shall make the assignment and the teacher-selected shall accept the student teacher.
“Any teacher who has been involuntarily assigned a student teacher shall be exempt from a student teacher assignment the following semester provided they have timely filed a written request on a form made available by the School District.
“Teachers shall be given notice by May 15 of any student teaching assignment for both or either of the semesters in the ensuing school year.
“This provision shall not apply to the summer program.”
The secretary suggested that the title of this proposal was misleading. He concluded that this proposal, in essence, only dealt with the requirement that a teacher work with a student teacher and this proposal did not interfere in any way with the decision of the school board to establish or maintain a student teacher.program. The secretary, in holding that this NEA proposal was mandatorily negotiable, reasoned as follows:
“Recognizing . . . that a teacher is employed for the purpose of educating students of the district, it seems reasonable to- assume that the additional responsibility of instructing and, perhaps, evaluating student teachers creates additional work for the teacher. The Secretary believes that the legislature intended for school boards to negotiate duties which impacts upon the hours and amounts of work required of the teacher.
“The Secretary must rule the subject matter contained in the proposal is mandatorily negotiable under the headings of hours and amounts of work or, perhaps, nonteaching duty assignments which the district has proposed to negotiate. The general subject of Student Teacher Program is a subject not contemplated by the legislature to be mandatorily negotiable. The district, by its refusal to negotiate the included subject matter in the NEA-Topeka proposal, has refused to negotiate in good faith with teachers’ representatives.” (Emphasis supplied.)
The secretary thus concluded that the NEA proposal pertaining to the mechanics of selecting teachers to participate in the student teacher program was within the mandatorily negotiable topic of “hours and amounts of work” under K.S.A. 72-5413(Z).
The district court, on appeal, affirmed the decision of the secretary and found that this proposal was mandatorily negotiable under K.S.A. 72-5413(Z), since it dealt with the requirement that a teacher work with student teachers. The court noted the NEA proposal did not in any way affect the board’s managerial policy to establish or maintain a student teacher program. It only dealt with the fact that teachers would need to spend time aiding or evaluating a student teacher and, as a result, their “hours and amounts of work” would be affected. As a result, the district court held that the proposal on student teacher programs was mandatorily negotiable, since it substantially affected “hours and amounts of work,” a “term and condition” of employment specified in K.S.A. 72-5413(Z). We have concluded that the district court was correct in affirming the secretary and in holding that the NEA proposal covering the mechanics of selecting teachers to participate in student teacher programs fell within the category of “hours and amounts of work” and was, therefore, mandatorily negotiable.
In affirming the district court in this case, we wish tó empha size that the fact that a particular proposal is mandatorily negotiable does not require a school board to accept the proposal or to reach an agreement thereon. The statute simply requires the school board to discuss the proposal and to attempt to arrive at a fair result which will benefit both the teachers and the school board. Professional negotiation in the field of public education is obviously a difficult area both for a school board and a teachers’ professional organization. There is great public interest involved and the parties to professional negotiations must conduct them with that public interest in mind.
The judgment of the district court is affirmed.
Holmes, J., not participating.- | [
20,
-19,
-3,
93,
-118,
65,
59,
-122,
105,
-13,
117,
83,
-19,
-36,
21,
123,
23,
109,
80,
107,
-45,
-78,
115,
-112,
-76,
-70,
-47,
-35,
-69,
126,
-76,
94,
73,
-96,
74,
-43,
6,
-62,
77,
84,
-86,
6,
-117,
-21,
-33,
-57,
48,
97,
58,
27,
48,
-20,
-77,
40,
24,
-61,
-52,
46,
89,
43,
81,
-79,
42,
-121,
125,
4,
-109,
36,
-104,
15,
88,
46,
24,
56,
9,
-24,
80,
-90,
-2,
103,
9,
-119,
-56,
98,
50,
3,
-72,
-36,
-80,
-99,
110,
-47,
-83,
-26,
-45,
24,
98,
9,
-105,
-68,
121,
22,
13,
126,
-25,
4,
31,
-4,
90,
-122,
-28,
19,
15,
100,
-102,
11,
-21,
70,
32,
21,
-115,
-76,
95,
-58,
50,
27,
-34,
-72
] |
The opinion of the court was delivered by
Holmes, J.:
Jerry L. Handley appeals from his conviction by a jury of one count of aggravated robbery, K.S.A. 21-3427. Numerous alleged trial errors are asserted on appeal, none of which has merit. We affirm.
Late in the evening on September 13, 1982, four men sought shelter in the downtown Wichita Macy’s parking garage. One of the four men, Anthony Kondrath, is the complaining witness in this case. He was personally acquainted with only one of the other men in the group, Kenneth Wertz, and did not know the names of their two companions. At about 2:00 a.m., September 14, 1982, Kondrath awoke to the sounds of screams, and found two new unknown men attacking his companions with pieces of two-by-four-inch lumber. Kondrath tried to run but was stopped by one of the assailants. Kondrath was struck several times with the two-by-fours and was forced to give his attackers seventy-five cents, consisting of a quarter and a Kennedy fifty-cent piece. The two men also allegedly robbed the other men who had been in the garage with Kondrath. After the two assailants departed, Kondrath was able to get to a telephone and summon help through the telephone operator. Police and an ambulance arrived and Kondrath, along with one of the other men, was transported to St. Francis Hospital for treatment of his wounds. The police, having obtained a description of the two assailants, broadcast the information about the robberies including physical descriptions of the men sought.
Within minutes after receiving the radio dispatch, a Wichita police officer began patrolling Broadway near the scene of the crime. He came upon two individuals walking south away from the direction of the garage. On approaching the two men he noted that one had a torn shirt and blood on the knuckles of his hand. The officer recognized one of the men as Ronald Holman, but did not know the second individual and asked him for some identification. This man, the defendant, produced a beige-colored billfold and handed it to the officer. The officer opened the wallet and found an identification card issued by the Kansas Department of Social and Rehabilitation Services being the name “John Caudill.” The background information contained on the card placed John Caudill in the middle fifties age bracket. As the officer was inspecting the billfold he asked the defendant, who was twenty-four years old, his name. Defendant replied, “Jerry Handley.” Both Holman and Handley were taken into custody and, after being taken to the bus station and St. Francis Hospital for identification by the victims, were transported to the police station. Upon being booked Holman was found to have a Kennedy fifty-cent piece and three quarters on his person and defendant had a second wallet in his possession with identification in the name of Jerry Handley. The two were then charged with four counts of aggravated robbery of Tim Alexander, John Caudill, Anthony Kondrath and Kenneth Wertz. At the time of trial only Kondrath could be located and the other three counts of aggravated robbery were dismissed.
At trial defendant testified that he and his brother Holman were the victims on the night in question. He and Holman were innocently walking past the Macy’s garage in Wichita when they were attacked by four men wielding clubs he described as being table legs. After he and his brother had disposed of the four attackers and left them “picking theirself up off the floor at Macy’s” the two of them “walked away from it.” He contended no threats were made and no robbery took place. On cross-examination defendant corroborated the police officers’ testimony about the Caudill billfold but could not explain how he happened to be in possession of it. He also admitted that at the time he was first approached by the police officers, and for several hours thereafter, he did not tell them that he and his brother had been attacked by a group of men at the garage.
Three of appellant’s six claims stem from the admission into evidence of the wallet containing the Caudill identification, and testimony concerning defendant’s possession and use of the wallet. Handley asserts that the introduction of this evidence denied him his constitutional right of confrontation, subjected him to an impermissible compulsion to testify, and constituted an abuse of discretion by the trial court. The premise underlying all of appellant’s objections is that the wallet and its contents were hearsay evidence improperly presented to the jury. "
There can be no serious question about the independent relevance and admissibility of this evidence taken from the defendant.
“Items found in the possession of a defendant at the time he is taken into custody are part of the total circumstances surrounding his presence near the scene of a crime and are pertinent as tending to explain his actions at the time of arrest and his purpose for being in the vicinity. Such evidence of attending circumstances, including property found in the accused’s possession, is relevant and admissible when the circumstances logically tend to connect the accused with the crime charged.” State v. Baker, 219 Kan. 854, 859, 549 P.2d 911 (1976).
Assuming that the identification card and wallet of John Caudill could be classified as hearsay evidence, a determination which is by no means clearly established, the evidence was admissible independent of a hearsay objection. We have previously held:
“Acts done or declarations made before, during or after the happening of the principal occurrence may be admissible as part of the res gestae where the acts or declarations are so closely connected with it as to form in reality a part of the occurrence.” State v. Sherry, 233 Kan. 920, Syl. ¶ 6, 667 P.2d 367 (1983).
Chief Justice Schroeder discussed res gestae declarations in State v. Rider, Edens & Lemons, 229 Kan. 394, 625 P.2d 425 (1981), wherein it was stated:
“Unsworn declarations received as part of the res gestae do not depend for their effect on the credibility of the declarant, but derive probative force from their close connection with the occurrence which they accompany and tend to explain. They are admissible as original evidence, although it is frequently stated that they are received as an exception to the hearsay rule.” (Emphasis added.) 229 Kan. at 404.
Appellant had a full opportunity to confront and cross-examine the police officers as to the circumstances surrounding his possession and use of the Caudill wallet. It is well settled that the right of confrontation is satisfied when the defendant has had an opportunity to cross-examine the witness against him. State v. Thrasher, 233 Kan. 1016, 666 P.2d 722 (1983).
The defendant next claims that the admission of this evidence subjected him to an impermissible compulsion to testify, relying on the dissenting opinions in United States v. Gainey, 380 U.S. 63, 13 L.Ed.2d 658, 85 S.Ct. 754 (1965). The State aptly points out that the defendant never raised this issue before the trial court, and we therefore decline to consider it for the first time on appeal. K.S.A. 60-404; State v. Garcia, 233 Kan. 589, 608, 664 P.2d 1343 (1983).
Third and finally with regard to the Caudill wallet, the defendant claims that the trial court abused its discretion in admitting the Caudill identification card because of its hearsay aspect. Having determined that the evidence was admissible independent of its alleged hearsay character there was, of course, no abuse of discretion by the trial court.
Appellant’s fourth contention on appeal is that the trial court erréd in refusing to declare a mistrial or suppress the complaining witness’ testimony after he violated the court’s order of sequestration and separation of witnesses. Prior to trial both parties agreed to sequester the witnesses. Before the commencement of the trial proceedings on the second day, defense counsel encountered the complaining witness, Anthony Kondrath, sitting in the witness room along with a police detective who interviewed defendant after his arrest. The detective was also a witness in the case. Although defense counsel did not overhear the entire conversation, he did overhear the detective say to Kondrath, “[I]t was a 1979 half-dollar, wasn’t it?” Counsel brought the matter to the attention of the court and sought a mistrial. The prosecuting attorney conceded he had not informed his witnesses of the court’s order or explained to them what it meant. The court denied the motion for a mistrial but granted defendant great leeway in examining the State’s witnesses about the communication. For over one hundred years, it has been the law of this state that violation of a court order separating witnesses does not ordinarily disqualify a witness from testifying and the trial court, in its discretion, may admit the testimony. Davenport v. Ogg, 15 Kan. 363 (1875). See also State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983), and cases cited therein. Appellant’s fourth point lacks merit. However, we repeat the following from Cantrell:
“We have previously recognized that any person violating a separation order could be punished therefor by contempt, although the admission of die testimony is generally proper unless a party to the action participated in the guilt of the witness. State v. Carney, 216 Kan. 704, 709-10, 533 P.2d 1268 (1975). In certain instances contempt proceedings against an attorney for failing to properly advise the witnesses of a sequestration order may be an appropriate sanction.” p. 431.
Appellant next contends that the trial court erred in failing to submit a jury instruction on the reliability of eyewitness identification as contemplated in State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). The argument is wholly without merit. Appellant admitted he was present at the fracas at the Macy’s garage and identification was not an issue in the trial. The only question was whether appellant was the attacker or the attackee.
Next he contends the trial court erred in failing to instruct on the lesser included offense of robbery. Again, the argument lacks merit. All parties concede that clubs were wielded in the confrontation and Kondrath had to be transported to St. Francis Hospital for treatment of his wounds. There was no evidence which would warrant an instruction on robbery. Appellant was either guilty of aggravated robbery or no robbery at all. State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980).
Next appellant asserts error in the failure of the trial court to grant his motion for judgment of acquittal.
“A trial judge in passing on a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind, or rational trier of facts, might fairly conclude guilt beyond a reasonable doubt.” State v. Mack, 228 Kan. 83, 89, 612 P.2d 158 (1980).
A careful review of the record in this case leads to the inevitable conclusion that there was sufficient evidence to support the conviction and the motion for acquittal was properly overruled.
Finally, appellant claims he is entitled to a new trial because the prosecution withheld information concerning Anthony Kondrath’s criminal history. The State checked the records and advised counsel for appellant that Kondrath had no criminal history. However, after informing defendant that Kondrath had no criminal history, the State later learned that Kondrath had been charged in the Wichita Municipal Court with misdemeanor theft. Handley was convicted of aggravated robbery in the present case on January 26, 1983; Anthony Kondrath pled guilty to the misdemeanor theft charge one day later, January 27, 1983. The State conveyed this information to defense counsel and sent a written stipulation of facts upon which the defendant requested a new trial. After reviewing briefs for both sides, the trial court denied defendant’s motion. We find no error. The lack of a conviction renders evidence of a pending charge inadmissible to impeach a witness’s credibility; K.S.A. 60-421 specifically requires a conviction before evidence of a crime is admissible for that purpose. State v. Lomax & Williams, 227 Kan. 651, 655 (1980); State v. Johnson, 219 Kan. 847, 852, 549 P.2d 1370 (1976). In the present case, Kondrath had not been convicted on January 25, 1983, the date he testified against Handley. In addition, it is clear that the information about the pending charge against Kondrath was not intentionally withheld from the defendant and there was no bad faith involved. See State v. Kelly, 216 Kan. 31, Syl. ¶ 2, 531 P.2d 60 (1975).
The judgment is affirmed. | [
80,
-20,
-7,
-65,
25,
100,
42,
-88,
97,
-105,
54,
115,
-55,
-61,
65,
121,
-41,
45,
84,
113,
126,
-73,
39,
-127,
-14,
115,
123,
-60,
-77,
-50,
102,
-12,
9,
112,
-126,
29,
70,
-56,
-49,
20,
-114,
5,
32,
-46,
-13,
8,
-96,
47,
-92,
2,
-15,
12,
-5,
42,
16,
-62,
105,
41,
75,
-119,
-112,
-79,
-63,
-123,
-35,
20,
-93,
2,
-66,
7,
-48,
54,
-100,
57,
0,
120,
50,
-90,
-122,
117,
109,
-103,
12,
110,
98,
32,
89,
-21,
40,
-119,
46,
117,
-65,
-89,
-111,
104,
0,
101,
-106,
-103,
127,
20,
7,
-4,
-9,
92,
95,
-28,
-122,
-33,
-48,
-109,
-51,
48,
14,
-69,
-5,
3,
48,
113,
-56,
-96,
76,
69,
114,
-67,
-98,
-48
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This case comes before the court for review of the decision of the Court of Appeals found at 9 Kan. App. 2d 217, 675 P.2d 384 (1984). Loren H. and Betty Lou Hohman (defendants/appellants) appealed the trial court’s award of punitive damages in favor of Donald and Leah F. Gabler (cross-petitioners/appellees) where no actual damages were awarded in a mortgage foreclosure action. The Court of Appeals held punitive damages may be awarded to the victim of a willful breach of trust where the injury suffered is fully remedied by an equitable decree thereby precluding an award of actual damages. We granted review.
The nature of the case and the pertinent facts were summarized by the Court of Appeals as follows:
“This case started as a mortgage foreclosure action brought by Capitol Federal Savings and Loan Association. At trial the right to foreclose was not in dispute. The controversy centered on the dealings between the mortgagor, Loren Hohman, a Topeka attorney and real estate broker and developer, and Donald Gabler, a business associate and client of Hohman’s and the occupant of the property. The facts as found by the trial court are not disputed on appeal and need only be summarized.
“Loren Hohman sold a residential lot to Mr. and Mrs. Gabler in 1976. Because the Gablers were involved in a federal income tax controversy, Hohman, as their attorney, advised them that he should retain title to the property and would deliver a deed to the Gablers at an appropriate time. The Gablers took Hohman’s advice, and Hohman retained record title to the property.
“In 1977 the Gablers moved into the house they built on the lot. Over the ensuing years, the Gablers made payments on Capitol Federal’s first mortgage, executed by the Hohmans, and also made substantial improvements to the house. In February, 1982, the Hohmans gave a $35,000 second mortgage on the property to Hill and Company to secure a preexisting debt.
“By December, 1981, the Gablers had fallen behind in their payments to Capitol Federal and in March, 1982, Capitol Federal filed this foreclosure action. Among the defendants were Hohman and his wife as record title holders; the Gablers as. occupants; and Hill and Company as holders of the second mortgage. The Gablers cross-claimed against the Hohmans, alleging breach of fiduciary duty and praying for actual damages to the extent of any interest of third parties above the mortgage to Capitol Federal and for punitive damages.
"In addition to decreeing foreclosure, the trial court found that a constructive trust existed, with Hohman in a fiduciary relationship to the Gablers by reason of Hohman’s agreement to transfer the deed, and that Hohman had an attorney-client relationship with the Gablers. It found that equitable title to the property, and hence the equity of redemption, belonged to the Gablers. It also found that the second mortgage to Hill and Company was given in breach of trust and without consideration and therefore decreed it void. On appeal no issue is raised as to any of these aspects of the judgment.
“However, the trial court also found that Hohman’s breach of his fiduciary relationship with the Gablers constituted an independent tort which would support the award of punitive damages and fixed those damages at $15,000. It is from this aspect of the judgment that the Hohmans appeal.” 9 Kan. App. 2d 217-18.
The simple issue on appellate review is whether on the facts in this case the rule applies that no punitive damages may be awarded in the absence of actual damages. See Traylor v. Wachter, 227 Kan. 221, Syl. ¶ 4, 607 P.2d 1094 (1980), and cases cited therein.
After reviewing the decisions of other jurisdictions we affirm the decision of the Court of Appeals and approve the opinion as written.
The Gablers sustained an injury even though no actual damages were awarded. They were required to establish both their title and the invalidity of the second mortgage through litigation. Had the second mortgage not been declared invalid for lack of consideration, the Gablers would have been entitled to a judgment of $35,000 as actual damages. Under the circumstances equitable relief was granted, which was the substantial equiva lent of actual damages, and the deterrent effect of a punitive damage award was proper.
In addition to cases from other jurisdictions cited by the Court of Appeals, holding that a court may award punitive or exemplary damages as incidental to equitable relief, are the following: Ward v. Taggart, 51 Cal. 2d 736, 743, 336 P.2d 534 (1959); Hedworth v. Chapman, 135 Ind. App. 129, 133-34, 192 N.E.2d 649 (1963); Holden v. Construction Machinery Company, 202 N.W.2d 348, 359 (Iowa 1972); Charles v. Epperson & Co., Inc., 258 Iowa 409, 431-32, 137 N.W.2d 605 (1965); Rexnord, Inc. v. Ferris, 294 Or. 392, 657 P.2d 673 (1983); Hutchison v. Pyburn, 567 S.W.2d 762, 764-66 (Tenn. App. 1977); Kneeland v. Bruce, 47 Tenn. App. 136, 148-49, 336 S.W.2d 319 (1960); International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 582-84 (Tex. 1963); Russell v. Truitt, 554 S.W.2d 948, 955 (Tex. Civ. App. 1977); Nash v. Craigco, Inc., 585 P.2d 775, 778 (Utah 1978).
The judgment of the Court of Appeals affirming the trial court is affirmed.
Holmes, J., not participating. | [
-15,
44,
-71,
-20,
26,
98,
26,
26,
105,
-92,
-89,
95,
-23,
-22,
5,
47,
-75,
61,
-95,
105,
-111,
-77,
23,
-85,
-45,
-78,
-77,
-43,
-70,
-7,
-12,
-41,
76,
48,
-62,
-75,
-26,
-94,
-121,
92,
-114,
-122,
-101,
84,
-43,
64,
52,
63,
22,
79,
81,
-81,
-13,
44,
29,
72,
72,
44,
-37,
57,
-16,
-69,
-86,
5,
95,
23,
49,
52,
-98,
103,
-64,
42,
-112,
53,
0,
-24,
115,
-90,
-126,
52,
71,
-117,
12,
38,
102,
17,
77,
-21,
124,
-103,
14,
85,
-113,
7,
-109,
88,
18,
33,
-74,
-97,
124,
2,
3,
-4,
-18,
-124,
29,
-19,
13,
-50,
-74,
-111,
47,
112,
24,
2,
-9,
-127,
32,
112,
-49,
-22,
93,
54,
123,
-69,
14,
-3
] |
The opinion of the court was delivered by
Herd, J.:
This is an appeal from a trial court decision holding the City of Mission acted unreasonably, arbitrarily and capriciously in a zoning decision.
In September, 1981, Taco Bell entered into a contract to purchase a vacant lot on the northeast corner of Johnson Drive and Walmer in Mission, Kansas, from Arthur Treacher’s Fish & Chips, Inc., for $150,000, subj'ect to rezoning for a drive-thru fast-food restaurant.
The Taco Bell site has been vacant for many years. Prior to Taco Bell’s application the site was zoned special class for retail development as an automobile service station. Taco Bell requested special class zoning to construct its drive-thru window restaurant pursuant to Chapter 18.34 of the Mission Zoning Regulations.
The Mission planning commission and city council have consistently rejected applications for retail use of the vacant site, including a request for a Kentucky Fried Chicken restaurant, a Wylie’s Fast-Food restaurant and an automatic car wash.
Johnson Drive, upon which the site fronts, is a four-lane highway through the City of Mission. It is capable of handling up to 23,000 vehicles a day. The City’s most recent traffic count is approximately only 20,800 vehicles a day. Johnson Drive cannot be expanded to increase its capacity for additional traffic without great financial cost. Toward the west end of Mission, three residential streets intersect Johnson Drive from the north. These are Riggs, Walmer, and Russell. These streets provide access to a stable residential area to the north of Johnson Drive.
To the south of Johnson Drive the area has developed as retail-commercial. There is another east-west thoroughfare, Martway Street, which handles traffic throughout the retail-commercial area, with Martway Street to the south of Johnson Drive.
The Taco Bell site plan satisfied all of the City’s requirements pertaining to parking, signage and elevations. Taco Bell’s proposed facility would have a seating capacity of forty persons. Its hours of operation were until midnight during the week and later on weekends. The environmental or aesthetic impact of the proposed Taco Bell operation is not of any different kind or degree than the developments already present along the north side of Johnson Drive except Taco Bell would contain a drive-thru facility. The adjoining businesses ofWinchell’s Donuts and Arthur Treacher’s are separated from the residential area by only a chainlink and wooden fence respectively.
The Taco Bell application was heard by the City Planning Commission on January 18, 1982. The Planning Commission unanimously recommended to the City Council that the application for the rezoning be denied. On March 10, 1982, after further review by the planning commission, the City Council also unanimously denied Taco Bell’s application for rezoning. The City Council denied Taco Bell’s application based on the Planning Commission’s expressed intentions to rezone a portion of the north side of Johnson Drive for office use. The only information presented by Taco Bell to the Planning Commission or the City Council in support of its rezoning application was the oral testimony of Michael Staenberg, the realtor for the Taco Bell/Arthur Treacher’s property sale. On April 6, 1982, after the City denied its application, Taco Bell filed suit alleging the City was arbitrary, capricious and unreasonable in denying its application.
Subsequently, on June 23, 1982, the City Council voted to “down zone” a portion of the north side of Johnson Drive to office use. This area included the Taco Bell site as well as Arthur Treacher’s, a Winchell’s donut shop and a Sizzler restaurant. Such zoning could not be implemented immediately because of the existence of the three restaurants presently in operation. Thus, this change would affect only the selling price of the property, since it could be sold only for office use rather than use as another restaurant.
Appearing before the Planning Commission and City Council on the blanket down-zoning were Michael Staenberg, the realtor for Taco Bell, and James Davis, Taco Bell’s attorney.
On July 19, 1982, Arthur Treacher’s also filed an action in Johnson County District Court alleging the City's blanket zoning as applied to Arthur Treacher's facility was arbitrary and capricious. In addition, Taco Bell filed an amended petition on July 15,1982, alleging the blanket zoning, as applied to the vacant lot it wanted to purchase, was arbitrary, capricious and unreasonable. The Taco Bell lawsuit and the lawsuit of Arthur Treacher’s were consolidated for trial.
Prior to trial, upon motion of Taco Bell, the trial court struck the City’s defense that the court lacked jurisdiction over Taco Bell because Taco Bell was not the owner of the property which it desired to rezone as required by K.S.A. 12-708.
The Taco Bell site and the Arthur Treacher’s site are situated within a retail commercial zone fronting along both the north and south sides of Johnson Drive. The strong retail commercial character of the sites is well defined by reference to nearby uses, such as two automobile dealerships (one north side, one south side), a Vicker’s Service Station (south), Captain D’s Fish & Chips (south), McDonald’s (south), Arby’s (south), Winchell’s donut shop (north), Arthur Treacher’s Fish & Chips (north) and Mission West Shopping Center (south). Leasing plans for the Mission West Shopping Center called for future development of nineteen retail stores to the south of the subject site. The various retail commercial users on the north of Johnson Drive all border directly on residential areas.
There has been no recent indication of small office building development along Johnson Drive in the Mission area and the local market for office space has been soft for well over a year, as is evidenced by the area’s high vacancy rate and the substantial rent concessions being offered by landlords to attract tenants.
The residential neighborhoods to the north of the subject site have remained stable in recent years notwithstanding the extensive growth of retail development, which has included various fast-food restaurants with drive-thru facilities.
On December 8, 1982, the district court rendered its decision finding the City’s actions in the Taco Bell and Arthur Treacher’s matters were arbitrary, capricious and unreasonable. The City of Mission appeals.
We first consider appellant’s initial argument that Taco Bell did not qualify as a landowner or as a party with such an interest in the property as to entitle it to challenge the zoning actions of the City.
The appellees argue this point was not raised at the trial level since the contract for sale between Taco Bell and Arthur Treacher’s was entered without objection. The issue was raised, however, in the pretrial order where the trial court ruled Taco Bell had standing. Even though the issue was not renewed at trial it is properly before this court as an exception to the general rule. The general rule is that an issue not raised before the trial court may not be raised for the first time on appeal. Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983). There is an exception to the rule if a newly asserted argument involves only a legal issue arising on proven or admitted facts. See State v. Puckett, 230 Kan. 596, 598, 640 P.2d 1198 (1982).
As previously stated, standing is a legal question which may be resolved here by a determination of proven facts. Thus, this court will consider the standing issue even though allegedly raised for the first time on appeal. Taco Bell submitted the application for the requested zoning change, although Arthur Treacher’s is the legal owner of the property. The reason for the action on the part of Taco Bell, as opposed to Arthur Treacher’s, is the purchase agreement between the two parties. Arthur Treacher’s agreed to sell the land to Taco Bell contingent upon Taco Bell successfully obtaining rezoning to allow a drive-thru fast-food restaurant on the location. The purchase contract between the parties provided for Taco Bell to obtain rezoning as Arthur Treacher’s agent.
Taco Bell’s interest and authority to act for Arthur Treacher’s was accepted throughout the proceedings with the City. There is no evidence Taco Bell acted without Arthur Treacher’s complete consent.
The appellant argues, however, the law in Kansas allows only the landowner to seek rezoning. In support appellant notes the language of K.S.A. 12-708, which provides:
“A proposal for such amendment may be initiated by the governing body, the planning commission or upon application of the owner of property affected.”
Appellant further cites Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755 (1974). That case involved a group of citizens who sought to delay the utility company’s condemnation proceedings. The group argued the utility company could not condemn their property until it had successfully secured all proper rezoning. The court held the utility company could not be required to rezone the property prior to condemnation since “it is apparent that one who is not the owner of property affected may not make application for a change in zoning.” 215 Kan. at 236.
Concerned Citizens is not applicable here. In that case the utility company shared no interest with the landowners. There was no agreement or connection between the parties. In the case at bar, Taco Bell and Arthur Treacher’s both want to accomplish the rezoning. Their interest is not only the same, but it is expressed in writing in their purchase agreement.
On the contrary, Martin Marietta Aggregates v. Board of Leavenworth County Comm’rs, 5 Kan. App. 2d 774, 625 P.2d 516, rev. denied 229 Kan. 670 (1981), is applicable. In Martin Marietta surrounding landowners were challenging the efforts of Martin Marietta to obtain a special use permit to allow mining. Martin Marietta did not own the land, but rather had an option to lease the land if they were successful in obtaining the special use permit. The surrounding landowners argued Martin Marietta was not the real party in interest, as required by the law of variances. The Court of Appeals pointed out that although a landowner and not a lessee must suffer the hardship necessary to prove the need for a variance, such was not the case with a special use permit. The court adopted the reasoning of Burr v. Keene, 105 N.H. 228, 230, 196 A.2d 63 (1963), which states:
“As pointed out by counsel for the defendants no useful purpose would have been served by requiring the owners’ signatures on the petitions. The prospective purchasers were the real parties in interest and the only ones who could furnish the information which the board needed in order to make its decision.”
This logic is more applicable here than in Martin Marietta since Taco Bell has an option to buy, not merely an option to lease, after the rezoning is accomplished. Additionally, as the Burr court reasoned, it is Taco Bell’s field engineers, marketing representatives, traffic consultants and designers who must be in close contact with the planning commission and city council during the planning stage for this development, not Arthur Treacher’s. Arthur Treacher’s only interest is seeing the real estate contract consummated and the purchase price received. It would not be reasonable to require Arthur Treacher’s, which is the landowner, to expend the time and expense of seeking rezoning which was purely for Taco Bell’s benefit.
Additionally, the zoning ordinances of the City of Mission specifically allow a landowner “or his authorized agent” to submit an application for rezoning. See Mission Zoning Ordinance No. 18.60.010. This alone is persuasive in supporting the trial court’s decision to allow Taco Bell to bring this suit.
Appellant also argues Taco Bell lacks standing to challenge the blanket zoning order made by the City on June 23, 1982. This action allowed only office use on certain sites on the north side of Johnson Drive, which includes the Taco Bell property and Arthur Treacher’s restaurant.
K.S.A. 12-712 provides only parties having an interest in the property affected may challenge the reasonableness of a zoning change. The City argues appellee was not a party with an interest in the property due to a clause in the Taco Bell/Arthur Treacher’s purchase contract. The clause stated Taco Bell had 180 days from September 8, 1981, to obtain rezoning. Since the blanket zoping action on June 23, 1982, occurred after the 180 days had lapsed, the City argued Taco Bell lacked sufficient standing. Appellee alleges the contract contains no automatic termination provision. Further, the undisputed evidence was that Arthur Treacher’s and Taco Bell continued to reaffirm their collective interest in the vacant tract at all City meetings, including the June 23, 1982, council meeting. Taco Bell’s regional real estate manager testified Taco Bell still was the contract-purchaser under the purchase agreement on date of trial. In June, 1982, appellee was a party having an interest in the property affected by the zoning change as required by K.S.A. 12-712.
Based upon the realities of the Arthur Treacher’s/Taco Bell contract which provided for Taco Bell to obtain rezoning in cooperation with Arthur Treacher’s, we hold Taco Bell had standing to bring the case at bar.
The appellant next argues the trial court erred in ruling the City was arbitrary and unreasonable in denying Taco Bell’s request to change the allowed use of the vacant lot from an automobile service station to a fast-food restaurant with a drive-thru window facility.
The law in Kansas is well settled concerning the scope of judicial review of zoning matters. These rules are:
“(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
“(2) The district court’s power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
“(3) There is a presumption that the zoning authority acted reasonably.
“(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
“(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
“(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980).
In judging the actions of the City to be arbitrary and unreasonable in denying Taco Rell’s application, the trial court utilized the appropriate scope of review and applied the test of reasonableness established by this court in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978). Prior to Golden the standard for determining “unreasonable” was so general and nondescript a court was helpless in applying any comprehensible standards to test the validity of zoning determinations. The results of applying such ambiguities as “beyond the realm of fair debate” and “reasonableness” often resulted in the City prevailing merely by presenting some evidence to support its action. Such is no longer the case. This court in Golden defined the factors which it suggested “would be well for a zoning body to bear in mind when hearing requests for change.” 224 Kan. at 598. These factors are:
“1. The character of the neighborhood;
“2. the zoning and uses of properties nearby;
“3. the suitability of the subject property for the uses to which it has been restricted;
“4. the extent to which removal of the restrictions will detrimentally affect nearby property;
“5. the length of time the subject property has remained vacant as zoned; and
“6. the relative gain to the public health, safety, and welfare by the destruction of the value of plaintiff s property as compared to the hardship imposed upon the individual landowner.”
To these the court added: “the recommendations of permanent or professional staff, and the conformance of the requested change to the adopted or recognized master plan being utilized by the city.” Golden, 224 Kan. at 598.
Further, this court in Golden instructed that a City’s rezoning determination on a particular tract rose or fell not on the use of generalized complaints against commercial development such as “noise,” “litter,” and “traffic,” but rather on the defensibility of the City’s stated reasons for its actions. The traditional tests of reasonableness were not abandoned but are enhanced by the eight factors which provide a reviewing court with a basis for testing the action of a governing body in a meaningful way.
Let us now review the denial of Taco Bell’s application on the basis of the Golden criteria.
THE CHARACTER OF THE NEIGHBORHOOD.
The City argues the area north of Johnson Drive is mainly residential with some light commercial activity. The entire area, however, both north and south of Johnson Drive, is composed of retail business. Fast-food restaurants are quite predominant. On each side of the Taco Bell lot is a fast-food retailer, Winchell’s Donuts to the west with Arthur Treacher’s to the east. While there are no drive-thru restaurants on the north side of Johnson Drive, there are many to the south which are quite close to the Taco Bell lot.
The City also argues the increased traffic on Johnson Drive caused by the Taco Bell would require substantial improvements to the streets north of Johnson Drive as well as Johnson Drive itself. This assertion is without substantiation. Taco Bell presented a proposal to allow exits only onto Johnson Drive from its restaurant in order to keep traffic off the north residential streets. Further, there was no evidence that Johnson Drive in its present condition was not completely adequate to handle Taco Bell’s customers.
The City alleges Winchell’s and Arthur Treacher’s, Taco Bell’s neighbors, have lighter customer traffic and a small number of personnel. While Winchell’s is slightly lower in customer traffic, the only competent evidence concerning Arthur Treacher’s is that it has the same amount of traffic as Taco Bell is projected to have.
The City speculates, without support, that one lone drive-thru fast-food restaurant will disrupt the peace and quiet of this entire area, as if there were no other commercial activity nearby. In actuality, the entire neighborhood is commercial/retail with the exception of the private homes to the north of the businesses which are situated on the north of Johnson Drive. The Taco Bell lot is surrounded on all sides, except to the north, by busy retail establishments. The trial court did not err in finding the character of the neighborhood was strong retail-commercial.
THE ZONING AND USES OF PROPERTY NEARBY.
Prior to this action the Taco Bell lot was zoned for a gasoline service station. In considering the effect of the restaurant proposed by Taco Bell on the nearby property, the trial court found “the planned fast-food store with a drive-thru capacity appears to be a less intensive use than a gasoline service station.” Substantial evidence was introduced at trial in support of this finding. Further, the trial court held: “Whatever impact the commerce of Johnson Drive may have on the adjacent residential area, the addition of one further restaurant should not significantly alter that impact.”
The testimony at trial established the residential property adjacent to the businesses on the north side of Johnson Drive, while affected by the retail activity there, would not be harmed by the addition of the Taco Bell as compared to all the other retail businesses.
THE SUITABILITY OF THE SUBJECT PROPERTY FOR THE USES FOR WHICH IT HAS BEEN RESTRICTED.
The property, although zoned for use as a service station, was never developed as such. Testimony was offered at trial showing gas stations are not being built or purchased these days due to market conditions. The property, however, is now zoned C-O (office building). The City states this action was taken in order to provide better transitional zoning between the retail businesses and the residential area. While it is true office buildings provide transitional zoning, .there was overwhelming evidence at trial that a demand for office buildings in Mission does not exist. The City admits this is currently true but speculates the future may have a need for such development.
This court in Golden faced a similar argument. In that case the landowner presented substantial evidence that at the time of trial there were many vacant office buildings in the Overland Park area and the landowner’s property was not attractive for office development. The City of Overland Park argued that in the past while the landowner had owned the tract in question there had been a great demand for office buildings. In determining this was irrelevant to the facts at trial, this court held: “The issue is whether zoning for office construction was appropriate at the time of the hearing .... A massive overbuild of office space . . . leads to the inevitable conclusion that the demand for additional office space did not exist . . . .” 224 Kan. at 600. Such is the case here. Experts from the fields of real estate sales, construction and real estate appraising all testified office buildings in Mission were vacant; tremendous rent concessions were being made by landlords in order to keep tenants; there had been no activity on some office building listings for over a year; no office buildings were being constructed on Johnson Drive; and finally, it would be extremely difficult to lease office space in a building located between two fast-food restaurants. The witnesses agreed any office building on the Taco Bell site would be a losing proposition.
The trial court’s finding it is not feasible to develop the Taco Bell site as an office building is supported by substantial, competent evidence.
THE EXTENT TO WHICH REMOVAL OF THE RESTRICTIONS WILL DETRIMENTALLY AFFECT NEARBY PROPERTY.
The City contends the economic value of the residential area will be decreased by the placement of a fast food restaurant on the vacant lot. The evidence at trial, however, was that selling time could possibly be delayed but selling price would not be hurt. Other expert testimony was offered showing any decrease in value occurred years ago when Johnson Drive was developed commercially and one more restaurant could not realistically be linked to a decrease in property values.
The City also argued Taco Bell could not provide proper screening for lights or automobile odors, or provide for other aesthetic considerations. Expert testimony was admitted which demonstrated substantial planning for green areas to include trees, shrubbery, fences and landscaping, all of which would result in effective screening. It was pointed out that Arthur Treacher’s and Winchell’s have only fences, one wooden and one chain link, to separate their property from the residential properties adjacent to them. Taco Bell’s plan provided substantially more than a fence.
It is also argued by the City that permitting the construction of Taco Bell would make the area less safe for children. A sidewalk and signaled crosswalk presently exist on the north side of Johnson Drive. There is no evidence Taco Bell would interfere with these. Additionally, Hickory Grove Elementary School, to the south and east across Johnson Drive from the vacant lot, is no longer used as an elementary school. The number of children on Johnson Drive has thus substantially decreased.
The major detriment the City urges would result from the Taco Bell restaurant is increased traffic. For support of this the City cites Moyer v. Board of County Commissioners, 197 Kan. 23, 30, 415 P.2d 261 (1966). The Moyer case, however, is easily distinguishable. There the court found traffic was an important consideration when the landowner proposed to build a service station on property completely surrounded by a residential neighborhood. The court held the attracting of outside traffic into an area where it would not normally venture was a detriment to the zoning change. Here there is no evidence new traffic will be attracted to the area. Taco Bell expects to receive its customers from the 20,000 plus vehicles which already drive on Johnson Drive each day.
Taco Bell contends the City’s traffic objections are further evidence of the unreasonableness of its action. As proof, Taco Bell points to the new expansion of Mission West Shopping Center, which when completed will include nineteen new retail stores. This expansion was allowed despite complaints from residential neighbors concerning traffic problems. Mission West is across. Johnson Drive from the vacant lot. Taco Bell convincingly argues it is arbitrary behavior for the City to reject its zoning change based on the same complaint received and rejected against the shopping center.
Taco Bell additionally indicates if traffic is the deciding factor in this area, then any commercial development, no matter how small, in a retail district would be threatened. Considering this argument, the Missouri Supreme Court held;
“[A]ny added traffic congestion which would be caused by any ordinary commercial use of this tract would be wholly insignificant, when compared to the existing volume of traffic and congestion; . . . thus the tract should not be penalized because of existing traffic conditions.” Huttig v. City of Richmond Heights, 372 S.W.2d 833, 840 (Mo. 1963).
The trial court adopted the foregoing rationale in its Conclusion of Law No. 18:
“A city council should consider all matters affecting safety, health and public welfare in considering a particular planned zoning request. One of these matters frequently is the traffic flow in, through and around the proposed project. Where basic safety considerations have been met an application may not be rejected because the project will increase the traffic flow on the existing street network, particularly where the development is of small size in relation to the capacity of traffic on the adjoining streets. The simple fact that a proposed use would generate additional traffic is not relevant to the proper land use for that property.”
Both the Missouri Supreme Court and the court below express the proper balance between zoning changes and traffic considerations. The lone Taco Bell restaurant in this case should not be disallowed merely because it might have an impact on traffic. We warned in Golden of the danger of a governing body relying on such general considerations as “traffic problems” and “traffic congestion” to control zoning decisions.
The City traffic engineer testified no new traffic signals would be needed after the Taco Bell was built because the traffic increase would be insignificant. The City’s evidence that nearby property would be detrimentally affected by the Taco Bell restaurant is not persuasive.
THE LENGTH OF TIME THE SUBJECT PROPERTY HAS REMAINED VACANT AS ZONED.
For thirteen years, from 1969 to 1982, the property was zoned to allow a gasoline service station and remained undeveloped. The office district zoning has only been in effect since June 23, 1982. The evidence nevertheless demonstrated the City has an oversupply of office space, as previously discussed, and the area is thus not adaptable to that use.
THE RELATIVE GAIN TO THE PUBLIC HEALTH, SAFETY, AND WELFARE BY THE DESTRUCTION OF THE VALUE OF THE PLAINTIFF’S PROPERTY AS COMPARED TO THE HARDSHIP
IMPOSED TO THE INDIVIDUAL LANDOWNER.
When analyzing the gain to the public it must be remembered who constitutes the “public.” This court has previously held: “Zoning is not to be based upon a plebiscite of the neighbors, and although their wishes are to be considered, the final ruling is to be governed by consideration of the benefit or harm involved to the community at large.” Waterstradt v. Board of Commissioners, 203 Kan. 317, Syl. ¶ 3, 454 P.2d 445 (1969). Thus, while residents neighboring the proposed Taco Bell site have protested its development, the benefit to the community as a whole must be considered. The neighbors argue there would be traffic, noise, light and odor problems. These have already been addressed and the evidence shows they can be alleviated by screening. The benefit to the public in not developing seems to be minimal. The benefit to the public in developing is great in the way of jobs, taxes, and use of previously unproductive property.
The hardship to the owner of not allowing the zoning change is also great. As previously explained, development as an office would be highly unlikely. The lot would thus remain unused and unprofitable to the owner.
THE RECOMMENDATIONS OF PERMANENT OR PROFESSIONAL' STAFF.
The City of Mission does not employ any permanent professional land-use planners. The City argues nevertheless it relied upon a previous decision of the district court upholding the City’s decision not to allow another fast-food drive-thru restaurant, Burger King, to locate on the north side of Johnson Drive. The district court decision was not appealed.
An unpublished decision of a district court has no binding effect on this action except for its persuasive value. See In re Sawyer, 234 Kan. 436, 672 P.2d 1093 (1983). In addition, the Burger King case is distinguishable on the facts. The Burger King restaurant called for an operation about three times the magnitude of the proposed Taco Bell. Also the Taco Bell site provides natural screening from the contour of the land. The Burger King land was on the same level as the adjoining properties, and Burger King proposed no additional screening, unlike Taco Bell. The reliance by the City on the previous district court case was misplaced and is not persuasive in the case at bar.
THE CONFORMANCE OF THE REQUESTED CHANGE TO THE ADOPTED OR RECOGNIZED MASTER PLAN BEING UTILIZED BY THE CITY.
The City argues it was guided in its decisions in the Taco Bell proceedings by its new master plan, designated at trial as de fendant’s exhibit D. Exhibit D is a map of the City of Mission. It is color-coded to indicate multi-family, commercial, office district and parks and open spaces. Only a small portion of the city is so colored. It is not indicated what zoning designation the uncolored portions have. The exhibit appears very unprofessional.
Taco Bell argues this map does not qualify as a comprehensive plan pursuant to K.S.A. 12-704. This statute authorizes city planning commissions to make comprehensive master plans to help plan for future development in their cities. The statute gives guidelines for the preparation of such plans as follows:
“[T]he planning commission shall make or cause to be made comprehensive surveys and studies of past and present conditions and trends relating to land use, population and building intensity, public facilities, transportation and transportation facilities, economic conditions, natural resources, and may include any other element deemed necessary to the comprehensive plan. Such proposed plan, which may in addition to a written presentation, include maps, plats, charts and other descriptive matter, shall show the commission’s recommendations for the development or redevelopment of said territory . . . .”
When examined in light of the statute, exhibit D falls far short of meeting the legislative requirements. Additionally, the planning commission chairman, Larry Jones, could not remember whether the proposed comprehensive plan had been completed before the filing of this lawsuit. This casts considerable doubt as to the use of this plan by the City as a guide during the proceedings before the planning commission and city council.
Taco Bell argues a 1968 study performed by Howard, Needles, Tammen, & Bergendoff is the recognized comprehensive plan for the City of Mission. This study is a two-hundred page document covering in detail the factors proposed in K.S.A. 12-704 with numerous maps, diagrams and charts to illustrate the written material.
To support its contention that this was the recognized comprehensive plan, one of Taco Bell’s expert witnesses, Andrew Schlagel, testified he had visited city hall, requested a copy of the City’s master plan and was given a copy of the 1968 Howard-Needles study.
The Howard-Needles plan called for commercial, wholesale and retail development in a strip along the north side of Johnson Drive including the Taco Bell lot. The color-coded map pro posed by the City shows office district development in the small area on the north of Johnson Drive.
The City has no ordinance adopting either plan as its official comprehensive plan. This court, however, in Golden stated the court should look to either the “adopted or recognized” master plan. 224 Kan. at 598.
Finally, the City argues regardless of which plan is the official one this court has held a city is not bound by or obligated to follow the comprehensive plan. See Coughlin v. City of Topeka, 206 Kan. 552, 557, 480 P.2d 91 (1971). It is true the City is not “bound” by the plan, but this court held “they should not be overlooked when changes in zoning are under consideration.” Golden v. City of Overland Park, 224 Kan. at 598.
In this case, the evidence supporting the granting of the zoning change was overwhelming. The evidence in opposition was minimal. The trial court properly applied the correct rules of law. After examining the entire record, we hold the trial judge did not err in finding the city council’s action in denying rezoning unreasonable as a matter of law. See Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 31, 605 P.2d 533 (1980).
The third issue presented is whether the City was arbitrary and capricious in enacting zoning which allowed only office use on the north side of Johnson Drive.
The City rezoned only four retail properties on the north side of Johnson Drive to office use. These were the Taco Bell lot, Arthur Treacher’s, Winchell’s and the Sizzler, Its action was taken while this case challenging the denial of the zoning change was pending. In support of the rezoning, the City argues historically up until 1969 the area along the north side of Johnson Drive was zoned only for office use and a return to this use was needed to provide adequate buffering for the residential area.
It was not explained by the City why the rest of the retail businesses abutting the residential area were not also rezoned. There was evidence of what appeared to be an anti-restaurant animus among the city planning commission. Several statements were made which indicated the commission wished to eliminate some of the restaurants on the west end of Johnson Drive. If this is true, it appears these four restaurants were arbitrarily singled out to be eliminated for no reason. No study was done to indicate why these particular establishments should be precluded, on the feasibility of the new office-use zoning, or on the impact of the change to the community as a whole. The city planning commission members when asked to explain the basis for their decision stated they were long-term city residents and they knew what was best for their city. Further, there was evidence they relied heavily upon the opinions of nearby residential neighbors. While these are appropriate considerations they are only part of the picture. The effect of zoning on the public at large is the primary consideration. There was no consideration of the financial hardship to the landowners by the zoning change, no consideration of the public welfare, or consideration of the overall feasibility of such changes. The process was not the thoughtful, issue-oriented analysis required by this court in Golden. The City’s action in changing the zoning from special use and retail commercial to office district use was arbitrary, capricious and unreasonable.
The judgment of the trial court is affirmed. | [
-15,
-40,
-12,
-20,
26,
104,
22,
-98,
91,
-88,
-11,
83,
15,
-6,
28,
57,
-9,
93,
-112,
-7,
-43,
-73,
7,
-128,
-16,
-13,
-46,
-20,
-15,
77,
118,
-10,
74,
4,
-118,
-107,
-90,
-54,
77,
94,
-50,
-89,
73,
81,
-43,
-126,
52,
123,
22,
15,
-107,
45,
-45,
44,
24,
-61,
-23,
40,
-103,
45,
25,
-8,
-23,
-124,
127,
18,
-127,
32,
-39,
-121,
80,
94,
-112,
49,
8,
-96,
83,
-74,
-126,
116,
79,
-101,
12,
-76,
98,
33,
105,
-21,
-12,
-99,
78,
-53,
37,
-91,
-123,
25,
64,
33,
-100,
-97,
125,
6,
2,
126,
-50,
1,
27,
-19,
-119,
-46,
-76,
-79,
-49,
-8,
-122,
89,
-1,
-77,
49,
-31,
-56,
-26,
94,
-59,
54,
31,
-113,
-80
] |
The opinion of the court was delivered by
Holmes, J.:
Joseph William Cantrell appeals from his conviction by a jury of one count of rape. K.S.A. 21-3502. The appellant raises several points of alleged error in the trial court proceedings and also asserts there was insufficient evidence to support the conviction. After carefully considering all points we affirm the conviction.
The first point to be considered is whether there was sufficient evidence to support the conviction. Appellant did not deny that he had sexual intercourse with the victim, Mrs. B., on the night of April 26,1982. Mrs. B., a divorcee and a resident of Colorado had been visiting a friend, Jackie Larson, in Kansas City, Missouri. On Sunday, April 26,1982, they went shopping in the Plaza area of Kansas City and late in the afternoon started visiting various restaurants and bars. Early in the evening they met John Mullane, an acquaintance of Miss Larson, at the Bristol Bar and Grill. Mullane introduced the two ladies to several people including Joseph Cantrell. Mrs. B. had some conversation with Cantrell at that time although he left the bar shortly thereafter. Later in the evening Mrs. B., Jackie Larson and John Mullane left the Bristol to go to Plaza III, another bar in the area. On the way they encountered Joseph Cantrell who was walking to his car to go home. Jackie Larson asked him to join them and he did. The group stayed at Plaza III until closing time, which was around 11:45 p.m., and then decided to go to the Clarette Club in Johnson County, Kansas, to continue their evening of drinking and dancing. It was decided that Mrs. B. would ride with Cantrell and Larson would ride with Mullane, and they would then meet at the Johnson County club.
On the way to the Clarette Club, Cantrell pulled off onto a side street where the alleged rape took place in the front seat of his El Camino truck. Appellant contends the sexual intercourse was consensual while Mrs. B. contends it was rape. It would serve no useful purpose to detail the two versions of the event. Suffice it to say Mrs. B. testified that she resisted and struggled with the defendant; that she was crying; and that she begged the defendant to stop, although she admitted that he made no threats, did not strike her, had no weapon and did not curse her or raise his voice. Her clothes were not ripped or torn and she suffered no bruises or other evidence of trauma. She made no attempt to scream, honk the horn or leave the vehicle. Upon completion of the act, the two proceeded on to the Clarette Club where they joined John Mullane and Jackie Larson. Mrs. B. told Jackie Larson that she had been raped by defendant. Mrs. B., Larson and Mullane then left the club and Mrs. B. and Larson returned to Larson's home at which time they contacted the police.
K.S.A. 21-3502 (amended L. 1983, ch. 109, § 2) provided:
“(1) Rape is the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when committed under any of the following circumstances:
(a) When a woman’s resistance is overcome by force or fear;
(b) When the woman is unconscious or physically powerless to resist; or
(c) When the woman is incapable of giving her consent because of mental deficiency or disease, which condition was known by the man or was reasonably apparent to him; or
(d) When the woman’s resistance is prevented by the effect of any alcoholic liquor, narcotic, drug or other substance administered to the woman by the man or another for the purpose of preventing the woman’s resistance, unless the woman voluntarily consumes or allows the administration of the substance with knowledge of its nature.
(2) Rape is a class B felony.” (Emphasis added.)
In the instant case the charging instrument stated “when her resistance was overcome by force and fear” rather than force or fear. As a result the trial court instructed the jury that they must find the victim’s-resistance was overcome by both “force and fear.”
In considering the sufficiency of the evidence, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983). In State v. Sanders, 227 Kan. 892, 610 P.2d 633 (1980), we held:
“The testimony of the prosecutrix need not be corroborated to sustain a conviction for rape in this state; there may be a conviction on the uncorroborated evidence of the prosecutrix if it is believed by the jury.” Syl. ¶ 2.
While the evidence in this case is not strong on the element of overcoming the resistance of the victim, we have concluded that the testimony of Mrs. B. was sufficient to meet the test set forth in Matlock. Her testimony that she physically resisted the defendant is clear and the jury could have concluded from her actions that her resistance was also overcome by fear. See State v. Hacker, 197 Kan. 712, 421 P.2d 40 (1966), cert. denied 386 U.S. 967 (1967). The jury had the opportunity to view the witnesses and to hear the evidence and evidently believed the testimony of Mrs. B. rather than that of the defendant.
Appellant’s next point on appeal is that the trial court erred in refusing to strike the testimony of Mrs. B. as she had violated the court’s sequestration order. The court, at defendant’s request, had entered a sequestration order which the prosecutor failed to relay to his witnesses. During the evening, after the first day of trial, Mrs. B., who had not yet testified, discussed the case with her friend Jackie Larson, who had testified that day. On cross-examination defense counsel discovered this violation, and im mediately moved to strike the prosecutrix’ direct testimony and to prevent her from testifying further. The prosecutor responded that his failure to inform the witnesses of the court order was inadvertent, and as the victim had previously testified at the preliminary hearing her testimony was “locked in,” resulting in no prejudice to the defendant. The court reserved its ruling on defendant’s motion, excused the jury, and permitted counsel to inquire of the witness as to the scope of the actual communication. After hearing her testimony the judge read the transcript of the preliminary hearing and concluded:
“[T]here has been no substantial variance nor material alteration of testimony in this matter. That, if anything, the witness’ testimony^ at trial is, as might be anticipated, less detailed than the testimony presented at preliminary hearing.
“The Court finds only the most minor of variances from the testimony earlier given at preliminary hearing. I have made a few notes of minor time variances that appear from the preliminary hearing to the trial of the case and trial testimony. Obviously, simple time discrepancies, unless time is a critical factor, [are] of no great consequence.
“I have reviewed with particular interest necessarily the witness’ testimony about the precise actions, statements, etc., that relate to the parked car or parked Camino episode which, of course, the Court must view as the critical time element involved in the matter and whether or not any variance of a substantial matter occurred in that precise area.
“The Court finds virtually no variance in that testimony. Any variance that there is in terms of trial testimony as opposed to preliminary hearing in the Court’s view inures to the defendant’s benefit rather than detriment because it is, in the Court’s view, substantially less detailed.
“The Court necessarily then finds that no prejudice has resulted to the defendant from the communication of whatever nature and, of course, that has been permitted to be explored by counsel by examining the principal witness, [Mrs. B] in open court outside the presence of tire jury and following counsel’s very proper objection.”
The jury was called back into court, and defense counsel, on further cross-examination of Mrs. B., fully explored the two witnesses’ conversation and any discrepancies in the victim’s pretrial and trial testimony.
The well-established rule in Kansas is that violation of a court order separating witnesses does not of itself disqualify a witness from testifying, and the trial court in its discretion may permit the witness to testify. State v. Blocker, 211 Kan. 185, 505 P.2d 1099 (1973); State v. Edwards, 209 Kan. 696, 498 P.2d 53 (1972); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970); State v. Trotter, 203 Kan. 31, 453 P.2d 93 (1969); Barber v. Emery, 101 Kan. 314, 167 Pac. 1044 (1917); State v. Falk, 46 Kan. 498, 26 Pac. 1023 (1891); Davenport v. Ogg, 15 Kan. 363 (1875). We find no abuse of discretion in the court’s ruling.
Before leaving this point, however, we pause to note our increasing concern over the number of inadvertent failures of attorneys to communicate sequestration and separation orders to their own witnesses. See State v. Handley, 234 Kan. 454, 673 P.2d 1155 (1983). In the present case, the trial judge addressed the following remarks to the prosecutor:
“I will instruct you that in the future it is my view that as an officer of the Court you do have an affirmative obligation, even without direction specifically by the Court, to admonish witnesses that you anticipate calling for trial in advance of that testimony as to any restrictions upon their discussions that the Court has seen fit to impose.”
We emphatically agree. We have previously recognized that any person violating a separation order could be punished therefor by contempt, although the admission of the testimony is generally proper unless a party to the action participated in the guilt of the witness. State v. Carney, 216 Kan. 704, 709-10, 533 P.2d 1268 (1975). In certain instances contempt proceedings against an attorney for failing to properly advise the witnesses of a sequestration order may be an appropriate sanction.
Appellant’s final contention is that the trial court erred in failing to instruct on the requisite felonious intent under K.S.A. 21-3502. We note at the outset that defendant lodged no objections to the instructions and unless the instructions given were clearly erroneous appellant may not now claim error. K.S.A. 22-3414(3); State v. Jones, 233 Kan. 112, 115, 660 P.2d 948 (1983).
The instructions submitted to the jury included the following:
“Instruction No. 10. In order for the defendant to be guilty of the crime charged the State must prove beyond a reasonable doubt that his conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent, or lack of intent, is to be determined or inferred from all of the evidence in the case.
“Instruction No. 11. The defendant is charged with the crime of rape. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved.
1. That the defendant had sexual intercourse with [Mrs. B.];
2. That [Mrs. B.] was not the defendant’s wife;
3. That the act of sexual intercourse was committed without the consent of [Mrs. B.] under circumstances when her resistance was overcome by force and fear; and
4. That this act occurred on or about the 26th day of April, 1982, in Johnson County, Kansas.”
The State also points to Instruction No. 9, which was an expanded version of PIK Crim. 2d 54.01, as bearing on defendant’s intent, but 'that was only the standard “natural and probable consequence” instruction which is solely evidentiary in nature. See Notes, PIK Crim. 2d 54.01.
Appellant contends these instructions are clearly erroneous, asserting rape is a specific intent crime, relying on State v. Gonzales, 217 Kan. 159, 161, 535 P.2d 988 (1975), and the following quote from State v. Hampton, 215 Kan. 907, 529 P.2d 127 (1974):
“Either the use of force or the use of overbearing fear is a necessary ingredient of the offense, of rape. The sexual act must be committed against the will and without the consent of the woman; her resistance must be overcome. Thus it is that the intent with which a marauding male approaches a member of the opposite sex in seeking sexual gratification becomes important. Is it his intent to satisfy his lust at any cost, that is, against the lady’s will and by overcoming her resistance, or is it simply to find an accommodating partner? If the first be his intent, and the sexual act is accomplished by destroying resistance, the statute has been violated. On the other hand, if it be his intent merely to cajole the lady into acquiescence, and he is successful, intercourse is on a mutually enjoyable basis, and rape, it is not.” 215 Kan. at 909.
In Gonzales the defendant was charged with rape and one of the questions before the court was the admission of evidence of other similar offenses under K.S.A. 60-455. The evidence was admitted for the limited purpose of showing intent, motive and plan of operation. The majority of this court, in reliance upon Hampton, concluded the other crimes evidence was admissible. Justice Prager, in his dissent, stated:
“A defendant’s specific intent is not a genuine issue in a rape case. Other crimes evidence offered to prove intent, where intent is not substantially in issue, amounts to no more than showing the defendant’s disposition or inclination for bad conduct. This is clearly impermissible under the statute and our case law. (State v. Cross, 216 Kan. 511, 532 P.2d 1357.) In the present case evidence of the defendant’s prior odious sexual conduct had no bearing on the matters in issue. In a rape case the burden is on the state to prove that the female victim was overcome by force and subjected to sexual intercourse without her consent. It is her intent and state of mind which is of supreme importance. If the defendant voluntarily committed the act of forcible sexual intercourse his specific intent is immaterial. Defendant’s prior offenses have no probative value on the question of the victim’s consent.” 217 Kan. at 162.
In State v. Carr, 230 Kan. 322, 327, 634 P.2d 1104 (1981), the defendant was convicted of aggravated burglary and attempted rape and among his claims on appeal was that there was insufficient evidence to establish his specific intent to commit the crimes. A majority of the court reversed the convictions stating:
“As in State v. Gobin, 216 Kan. 278, 284, 531 P.2d 16 (1975), one might infer ‘a general unlawful and criminal intent’ but not a specific intent to rape. Admittedly, defendant’s presence in the bedroom presents a closer case than Gobin but, even assuming that presence, which was disputed at trial, defendant was fully clothed in a room light enough that a person could have seen two figures in the bed. Finding the evidence insufficient to support the intent to commit rape which is necessary to the charge of attempted rape, that conviction must be reversed. Since attempted rape is the felony on which the charge of aggravated burglary is predicated, defendant’s conviction for aggravated burglary must also be reversed.” 230 Kan. at 327.
Thus it appears that on occasion the court has indicated that rape is a specific intent crime.
K.S.A. 21-3201(1) states:
“Except as provided by sections 21-3202, 21-3204, and 21-3405, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was willful or wanton. Proof of willful conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a wanton manner.”
The distinction between a general intent crime and a crime of specific intent is whether, in addition to K.S.A. 21-3201, the statute defining the crime in question identifies a further particular intent which must accompany the prohibited acts. In the context of theft this distinction was made in State v. Gobin, 216 Kan. 278, 531 P.2d 16 (1975), where we said:
“We note that in addition to the general criminal intent mentioned in K.S.A. 1973 Supp. 21-3201(2), the acts of theft proscribed by 21-3701 must be done with intent to deprive the owner permanently of the possession, use or benefit of particular property.
“To ‘deprive permanently’ as defined in the general definitions section of the code means:
‘Take from the owner the possession, use or benefit of his property, without an intent to restore the same; . .
(K.S.A. 1973 Supp. 21-3110[6][<a].)
So it becomes apparent from the foregoing that the specific intent which must be established under the present charge of theft is an intent to take from the owner the possession, use or benefit of his property ($50.00 worth of swine) without an intent to restore the same.” (Emphasis added.) 216 Kan. at 280.
In State v. Clingerman, 213 Kan. 525, 516 P.2d 1022 (1973), involving a conviction of first-degree robbery, the court stated:
“The elements of intent required for various statutory crimes vary according to the particular crime. Where intent is a required element of the crime it must be included in the charge and in the instructions of the court covering the separate elements of that particular crime. (State v. Carr, 151 Kan. 36, Syl. ¶ 5, 98 P.2d 393.)” 213 Kan. at 530
In State v. Cruitt, 200 Kan. 372, 436 P.2d 870 (1968), a prosecution for blackmail under K.S.A. 21-2412 (Corrick) (repealed 1970), the court stated the rule as follows:
“We agree with the defendant that where the Legislature expressly refers to intent and makes it an essential element of a statutory offense, such intent must be alleged in the information. . . .
“On the other hand, it has been repeatedly held that the Legislature has the power to forbid the doing of an act and make its commission criminal, without regard to the intent or knowledge of the doer. [Citations omitted.] And where an act is made a crime by statute, without any express reference to intent, this court has held that it is not necessary to allege such intent, or any intent, but simply to allege the commission of the act in the language of the statute, and the intent will be presumed. (Citations omitted.)” 200 Kan. at 374-75.
Rape as defined in K.S.A. 21-3502 does not require as one of the statutory elements of the offense a specific intent on the part of the defendant to commit rape and therefore there is no necessity to instruct on such a specific intent. We conclude that Justice Prager’s comments in his dissent in Gonzales correctly state the law on this question. Language to the contrary in Hampton and Carr is hereby overruled. Having concluded that rape is not a crime of specific intent, the instructions given were not clearly erroneous and appellant’s point lacks merit.
Appellant’s final contention is that if rape is not a specific intent crime requiring an instruction on that intent, then K.S.A. 21-3502 is unconstitutionally vague. In State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980), we set forth some principles to be followed in such a challenge. We held:
“This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” Syl. ¶ 1.
“The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” Syl. ¶ 5.
Appellant argues that without requiring instructions that defendant was aware of the victim’s resistance and intended to engage in intercourse despite that resistance, men of ordinary intelligence might well differ as to the meaning and application of the acts prohibited by K.S.A. 21-3502. We disagree. The statute is clear, readily understandable by persons of common intelligence and as such was constitutional.
The judgment is affirmed. | [
49,
-22,
-7,
-66,
56,
64,
-86,
24,
122,
-77,
-73,
83,
-83,
-54,
0,
123,
-38,
45,
84,
97,
-42,
-73,
7,
-31,
-14,
51,
122,
-36,
-77,
-34,
-26,
-10,
12,
112,
74,
85,
34,
74,
-43,
84,
-114,
-122,
-87,
-64,
82,
0,
36,
123,
64,
10,
-79,
14,
-61,
42,
28,
-45,
105,
44,
75,
60,
120,
-79,
10,
23,
79,
52,
-77,
36,
-66,
5,
-8,
63,
-40,
49,
8,
-8,
-5,
-90,
2,
116,
125,
-117,
4,
32,
98,
33,
21,
-53,
45,
-103,
62,
127,
-67,
-89,
-104,
9,
73,
101,
-74,
-103,
100,
80,
11,
-6,
-13,
69,
63,
-28,
-118,
-53,
-76,
-79,
77,
57,
2,
-72,
-13,
49,
16,
113,
-51,
-14,
76,
85,
120,
-101,
-114,
-78
] |
The opinion of the court was delivered by
McFarland, J.:
This is an action for breach of an oil and gas drilling contract, and related tort claims, arising from the drilling of wildcat wells in western Kansas. The drilling contract was between defendant Empire Drilling Company, a contract drilling company, and plaintiff Plains Resources, Inc., an enterprise engaging in exploring for oil and gas production on a wildcat basis. Following a bench trial the district court entered judgment against defendant Empire Drilling Company and defendant Empire Oil & Gas Company, a related corporation, for compensatory damages of $282,569.05, prejudgment interest, punitive damages of $1,000,000 and certain fees and expenses. Empire Drilling Company and Empire Oil & Gas Company appealed from the judgment. The appeal of the latter corporation has been voluntarily dismissed and the matter is before this court on the appeal of Empire Drilling Company (hereinafter referred to as Empire).
As would be expected, the evidence introduced during the trial, which took four weeks, was extensive and complex. The trial court made eighty-eight detailed factual findings. It would be inappropriate to include the same in this opinion in their entirety or to attempt to summarize the entire trial court memorandum opinion. Rather, we will state generally the background of the case and reserve discussion of facets of the evidence until necessary for determination of specific issues.
Plains Resources, Inc. (hereinafter referred to as Plains), obtained leasehold mineral rights on tracts located in Ford and Sherman Counties, Kansas. In 1977 Plains solicited funds from investors for development of the leases. A selling point for the potential investors was that the funds invested would be expended or obligated by the end of the calendar year thereby gaining 1977 income tax advantages for the investors. Plains and Empire entered into a drilling contract in November 1977 whereby Plains prepaid drilling expenses of $795,000.' A total of eight wells were drilled or commenced under the contract with Empire. Six wells were drilled to total depth with Empire deducting expenses therefor from the prepaid funds. Many problems arose during the operation. While Ellis No. 1 was being drilled, an additional difficulty surfaced. Empire advised Plains the prepaid drilling expenses had been exhausted and additional funds would be needed to complete the hole. The funds were not forthcoming. On February 16, 1978, orders were sent to shut down the operation at Ellis No. 1 and Empire removed its equipment from the hole. It was later discovered the hole had been sabotaged. Plains made unsuccessful efforts to salvage Ellis No. 1, and a new well (Ellis No. 1A) was subsequently drilled by another drilling contractor. Plains brought this action for breach of contract seeking compensatory damages arising from inferior performance of the drilling contract and overcharges. Plains further sought compensatory and punitive damages for the sabotage of Ellis No. 1.
We turn now to the issues. The first issue is alleged error by the trial court in relying on certain testimony of plaintiff s expert witness, H. E. Barry, Jr. Mr. Barry owns and operates an oil and gas industry consulting firm based in Oklahoma City, Oklahoma.
As has been previously noted, Plains prepaid drilling expenses to Empire in the sum of $795,000. Empire was drilling the eighth well when the ship hit the rocks, so to speak. As of the time of the shutdown Empire contended it was owed $114,705 by Plains, over and above the prepaid funds. Plains contended it had been overcharged for services performed and charged improperly for items that were not its responsibility and was, in fact, owed a refund by Empire. Accounting procedures employed by Empire were quite deficient. Into this chaotic situation came plaintiff s expert, H. E. Barry, Jr. Mr. Barry’s qualifications for the difficult assignment given him are very impressive and are not seriously challenged by Empire. Mr. Barry examined the hundreds of entries and documents relative to the entire drilling operation and, utilizing his expertise, arrived at very definite opinions relative to who owed whom what amounts and why. It is not surprising the trial court relied heavily on Mr. Barry’s report and testimony in determining the compensatory damage issues herein. It should be noted Empire did not employ an expert to offer evidence contrary to that of Mr. Barry.
Empire fires no broadsides at Mr. Barry. Rather, it contends that, in certain instances, Mr. Barry testified as to legal opinions and thereby overreached his area of expertise. We do not agree. In determining what were or were not proper charges in this highly specialized field, the expert had, of necessity, to give consideration to what in his expert opinion was encompassed within the contractual obligation of the parties. Illustrative of the complaints made in this regard is Barry’s testimony relative to whether Empire had properly charged Plains with paying for rigging up and rigging down at the daywork rate. Another area of complaint is Barry’s testimony relative to whether certain rig transportation costs had been properly charged against the Plains account. We have examined all complaints concerning the testimony and report of Mr. Barry and find no error or abuse of the trial court’s discretion.
The second issue concerns numerous alleged errors by the trial court in the allowance and computation of the compensatory damages herein. The trial court, as previously noted, made extensive findings of fact and conclusions of law. The parties, of course, are intimately familiar with the evidence, their contentions herein, the basis on which damages were allowed and the method of damage computations. We see no precedential value in this issue. We, therefore, conclude it would be inappropriate to burden this opinion with a lengthy discussion of this many-faceted issue. It is sufficient to say we have carefully examined the record, considered the contentions of the parties and conclude no reversible error has been shown in the trial court’s allowance and computations of compensatory damages.
The third issue is whether the trial court erred in allowing prejudgment interest on the compensatory damage award. Prejudgment interest was allowed from the February 1978 shutdown of Ellis No. 1 (and another uncompleted well) to date of judgment.
A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same become definitely ascertainable by mathematical computation. Where an amount is due upon contract, either expressed or implied, and there is no uncertainty as to the amount which is due or the date on which it becomes due, the creditor is entitled to recover interest from the due date. Equity Investors, Inc. v. Academy Ins. Group, Inc., 229 Kan. 456, 625 P.2d 466, modified on other grounds 229 Kan. 668 (1981); First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 537, 562 P.2d 32 (1977).
The trial court made no finding the Plains claim became a liquidated claim as of that date and stated no other reason for such allowance. It is certainly true the parties were disenchanted with each other at the time of the shutdown of the rigs which had occurred after a history of acrimonious confrontations relative to how the work was being performed and, towards the end, over the failure of Plains to pay additional funds. However, ill will is not a basis for allowance of prejudgment interest. We do not believe under the totality of the circumstances herein plaintiff s claim can be considered to be a liquidated claim as of February 1978 so as to permit the allowance of prejudgment interest from that date. We conclude the trial court erred in allowing prejudgment interest on the contractual damage award.
The next three issues concern the punitive damage award which, by Empire’s own admission, is its primary concern in this appeal. At this point it is appropriate to state in some detail the bizarre facts relative to the sabotage of the Ellis No. 1 hole.
The trial court, in its findings of fact, described defendant John Gable as follows:
“22. The first of these is John Gable, the President of Empire Drilling Co., Inc., and Empire Oil and Gas. Gable had been a contract driller since 1962 and had organized several contract drilling companies which were, more or less, predecessors to Empire Drilling and Empire Oil and Gas. At least one of these companies had gone bankrupt and another had been dissolved due to exorbitant insurance rates resulting from fatality accidents occurring during exploration operations. Gable had been convicted of a felony bankruptcy fraud as a result of his actions in one bankruptcy. At the time of trial Mr. Gable indicated that he had approximately $1,000,000.00 in judgments pending against him and was not a stockholder in either of the Defendant companies. However, his son and daughter each owned 90,000 shares in Empire Oil and Gas and a family trust owned 100% of Empire Drilling Company’s stock.”
The trial court described Dale Higgins, the Empire employee in charge of the drilling of Ellis No. 1 as follows:
“24. Next, to be introduced is the heavy, the villain, Dale Higgins, who was the tool pusher on Rig #6. He was variously described as being between 6'4" and 7'2" in height and 250 to 325 pounds, in weight. A man, who all agree, seldom shaved or seldom bathed. His covert nickname was ‘The Ape’, apparently in reference to his size, his lack of personal hygiene, his affinity for raw meat and vegetables and, particularly, onions, and the fact that he slept on the floor of the dog house [drilling crew’s on-site accommodation] with a railroad tie as a pillow. Higgins spoke with a loud voice used to oppress and threaten his subordinates. He presented himself as a bull-strong, violent, dangerous man who bragged of killing Arabs and disposing of their bodies after removing their jewelry. His actions in sabotaging the Ellis #1 Well raised one of Plaintiff s major claims in this case.”
In February 1978 Plains became very concerned about the drilling conditions on its leases. The equipment utilized was in dangerous disrepair and caused delays in the operation. As found by the trial court:
“29. On the six wells which were drilled to total depth, Empire’s average drilling time was 23-% days per well. This drilling time exceeded the 14 days contemplated when the agreement was executed. It also exceeded the reasonable drilling time of 17 days established by the evidence.”
Further:
“31. On February 8th Gilbert Kennedy [past-President of Plains] visited the Empire rig #6 supervised by Dale Higgins after being alerted about the conditions by Paisley, a mud logger. He gave Higgins oral and handwritten notice of the repairs needed and ordered a shutdown. While there he was drinking and was knocked senseless by either Paisley or Higgins.
“32. These conditions and the failure of the Defendant, Empire, to. correct them led to a meeting among Gable and the Kennedy brothers [Gilbert Kennedy’s brother, John Kennedy, was Vice-President of Plains] in Oklahoma City during early February of 1978. There [the] Kennedys enumerated their complaints about rig conditions and drilling progress, Gable advised them that the prepayment was consumed and more money was needed if drilling was to continue. Gable agreed to have the requested repairs done and Gilbert Kennedy said more money would be paid.
“33. The repairs were not made, nor was the money paid, and on February 16, 1978, the Plaintiffs sent formal notice to shut down drilling operations.
“34. Higgins habitually conferred with Gable whom he referred to as ‘the Boss’, since Empire had no drilling superintendent. These conferences occurred on almost a daily basis by telephone.
“35. After Gilbert Kennedy’s shutdown of the rig for repairs, rumors circulated among the rig crew that ‘Empire might be run off the hole’. A driller named Jack Porter asked the tool pusher, Higgins, if the rig was going to be permitted to finish drilling the Ellis #1. Higgins announced he would call ‘the Boss’ and in the overheard phone conversation stated, ‘If they don’t let us finish the well, they won’t be able to move another rig in on the hole. We’ll take care of it.’
“36. Higgins returned to well site of Ellis #1 and again stated in the rig doghouse: ‘If they do run us off, we’ll make sure they don’t get back in the hole’. The next morning, during the tearing down of the rig, he ordered all the drill bits gathered and welded together with the cones up to be used to plug the hole. Higgins later dropped several pairs of the welded-together bits into the hole as well as rope, pipe collars, cable and lumber. The actions resulted in total sabotage of the Ellis #1 well.”
Additionally:
“74. Higgins told at least two employees that since the Kennedys (Plains) were not going to pay for the well, ‘we were going to plug the hole’. The information about the Plains nonpayment had to have been given to Higgins by someone in the Denver office of Empire. Higgins told Purcell he reported to Gable. Gable was the chief executive officer in Denver. He admitted he talked daily with Higgins. Higgins referred to him as ‘Boss’. The overheard phone conversations between Higgins and the ‘Boss’ contained Higgins’ proposal to ‘take care of the well so that Plains could not get back on it.’ Although Empire may not have known exactly what technique was to be used, those phone conversations gave adequate notice that some means was to be used to ‘junk’ or sabotage the well. Apparently after having been so notified Empire did nothing to prevent, and thus may have encouraged, the sabotage.
“75. The two phone conversations between Higgins and the Denver office of the Defendant, Empire, were established by testimony of coemployees and although the Defendant, Gable, could not recall the conversations, there was no evidence to indicate that the calls were not made by Higgins or that he did not inform his ‘Boss’ of his intended sabotage.
“76. Empire was aware that its employee, Higgins, was a big, wild, reckless, rough, unkempt man who carried weapons. Empire was informed that there had been objections by Plains to his continued employment since there had been discussions about replacing the rig supervised by him due to his failure to maintain the rig and his problems with the Kennedys and Plains’ investors. Most all people who knew him were apprehensive of him due to his conduct, his threats and his self-reported escapades which depicted him as a violent, ruthless man. On occasion, Gable had revealed some apprehension when he made payroll deliveries. Higgins intimidated most all men he met including coemployees and Plains’ agents and representatives. He bragged that he would not be fired by Gable and apparently he was not.
“77. Gable denies any recollection of the phone conversations with Higgins in which he was given any reason to believe that sabotage was planned, but he did give orders to lay down the pipe and move the rig after x-eceiving the notice to shut down from Plains.
“78. Cex'tainly Higgins was not pursuing any private objective of revenge against Plains when he ‘junked’ the hole. He was loyally avenging a wrong to his employer, Empii-e, in his own misguided manner.
“79. The acts of sabotage occun-ed dui'ing and incidental to tearing down the rig and preparing to leave the well site. This operation and its supervision are cextainly within the scope of employment of a tool pusher who is, by practice, custom, and contx-act, the stewai'd vested with responsibility for safeguai'ding the hole, the crew, and equipment.
“80. Higgins had been hired by Gable as a tool pusher for Empire after a personal intei'view and a recommendation of Frances Carper. Higgins supervised the drilling of six wells in Colorado before moving to Kansas. Gable acknowledged concern about Higgins when infoi'med of problems with him by the Kennedys. Orders were given by Gable to Higgins to make equipment repairs, but they were not followed. For example, after the rig was returned to Colorado substantial repairs were made and even the derrick was repaired or exchanged. Thus, Empire knew, or had reason to know, of its agent and employee’s belligerent, reckless and imprudent character.”
The fourth issue presented (the first relative to the punitive damage award) is alleged error in permitting testimony relative to what Mr. Higgins was overheard to say in a telephone conversation purportedly with the Empire home office. Mr. Higgins was not called as a witness at trial nor had his deposition been taken. Empire objected to the admission of testimony as to the overheard conversation on the ground such was inadmissible hearsay. The trial court permitted the testimony as an exception to the hearsay rule pursuant to K.S.A. 60-460(i)(l) which provides:
“(i) Vicarious admissions. As against a party, a statement which would be admissible if made by the declarant at the hearing if (1) the statement concerned a matter within the scope of an agency or employment of the declarant for the party and was made before the termination of such relationship ....’’ (Emphasis supplied.)
In Schlatter v. Ibarra, 218 Kan. 67, 542 P.2d 710 (1975), this court had an opportunity to consider K.S.A. 60-460(i)(l). In Schlatter defendant’s son, Gus, had spoken with a Mr. Clyde Long about a matter concerning his mother’s business. By the time of trial, Mr. Gus Ibarra was in Florida and unable to be present. At trial, with the son’s agency to his mother established, Mr. Long was allowed to testify to what Mr. Ibarra had said. In Schlatter this court held:
“Under K.S.A. 60-460(i) an out-of-court declaration is admissible, as against a party, if the statement concerns a matter within the scope of an agency or employment of the declarant for that party, and was made before the termination of the relationship. However, evidence extrinsic to the out-of-court declaration must be in the record to establish some substantial factual basis that an agency or employment existed before hearsay evidence may be admitted as an exception to the hearsay rule.” Syl. ¶ 5. (Emphasis supplied.)
Specifically:
“The authorities are not agreed as to the question of the admissibility of a telephone conversation which has been conducted by some third person and repeated by him to another person. While some authorities have held such evidence to be competent, others have deemed the testimony to be objectionable as being hearsay. However, a bystander who has heard another converse by means of a telephone may testify as to what the latter said, no violation of the hearsay rule being involved where the purpose was to prove what the conversation was, not to prove the truth of the facts stated in the conversation.” 2 Jones on Evidence § 7:33, pp. 155-56 (6th ed. 1972). (Emphasis supplied.)
See also:
“An agent is competent to testify to the declarations made by him, but it is not essential that he be called as a witness. His statements may be proved by a third person.” 29 Am. Jur. 2d,. Evidence § 662, p. 714. (Emphasis supplied.)
In the instant action the bystander testimony was not admitted to prove Mr. Higgins sabotaged Ellis No. 1 — indeed, defendant Empire has conceded as much; rather the testimony was admitted for the mere purpose to establish what the phone conversations were.
It is uncontroverted Mr. Higgins was an employee of Empire at the time of the telephone conversation. Further, he was the highest ranking on-site employee of Empire’s in the drilling of Ellis No. 1. The statements made by Higgins directly concerned a matter within the scope of Higgins’ employment — the operation of the Empire drilling rig and its possible shutdown. We conclude the Higgins statements are directly within the exception to the hearsay rule set forth in K.S.A. 60-460(¿)(l) and the trial court did not err in admitting testimony relative thereto.
The fifth issue is whether the trial court erred in determining Empire was liable in tort for the sabotage of Ellis No. 1.
In holding Empire liable in tort for the sabotage of Ellis No. 1, the trial court stated:
“F. Plaintiffs have presented two tort alternative meritorious theories of recovery against Empire for the sabotage to the Ellis #1 Well. The first is that Empire Drilling is responsible under the theory of respondeat superior. The second is that Empire was negligent in the hiring or retention of Higgins, an incompetent or unfit employee.
“G. When the tool pusher, Dale Higgins, in the process of tearing down the rig after shutdown, directed that the drill bits be welded together and then dropped them down the open hole of the Ellis #1 rig well, he was acting in the scope of his authority and performing services for which he had been employed since this was reasonably incidental and directly involved in his employment. As stated in Hollinger [v. Stormont Hosp. & Training School for Nurses, 2 Kan. App. 2d 302, 311, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978)]:
“ ‘The test is not necessarily whether the conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it. The liability of an employer for the acts of his employee depends not upon [whether the injurious act of the employee was willful and intentional or was unintentional, but upon] whether the employee, when he did the wrong, was acting in the prosecution of the employer’s business and within the scope of his authority, or had stepped aside from that business and had done an individual wrong. The now generally recognized rule is that the employer is liable for the reckless, willful, intentional, wanton or malicious acts of his employee as well as for his heedless and careless acts if they are committed while the employee is acting in the execution of his authority and within the course of his employment, or with a view to the furtherance of his employer’s business and not for a purpose personal to the employee.’
“In view of the phone conversations in which he alerted the Denver office of his intentions to destroy the well and his own character, reputation and conduct, this action could have reasonably been foreseen by Empire. His actions were motivated by his desire to avenge what he considered to be a wrong to Empire to prevent Plains from gaining the benefit of a hole drilled by Empire which he thought had not been paid for at the time of the shutdown.
“H. Since the actions of Dale Higgins were intentional, criminal acts as opposed to negligent commissions or omissions, the case decisions arising around assaults and batteries by employees in the course of their employment bear close analogy. These cases and particularly Williams v. Community Drivein Theater, Inc., 214 Kan. 359 [, 366, 520 P.2d 1296 (1974)], as stated:
“ ‘If the assault is committed by the employee while furthering the employer’s interest in some way the employer is liable under the doctrine of respondeat superior — Let the master answer.’
“Part of the tool pusher’s duties included supervising the tear down of the rig and preparing it for the move. This, in turn, involves cleaning up the well site location and making disposition of trash items. The evidence indicates that he enlisted the aid of several of the other employees, over which he had supervision, in preparing the bits to be dropped down the hole. Thus, Empire Drilling should answer for all damages directly caused by the tortious acts and in this case intentional acts of its tool pusher who was assisted by other employees of the Defendant.
“I. The Plaintiff contends that, alternatively, Empire should be held liable for the damage resulting from Higgins’ intentional sabotage on the common law theory that Empire was negligent in retaining an incompetent, or unfit, employee under the theory stated in Stricklin v. Parsons Stockyard Co., 192 Kan. 360 [, 388 P.2d 824 (1964)]. Empire, through Gable, had been informed of the problems that Higgins had presented by his failure to maintain the equipment, his attitude and conduct toward the Plains personnel, his general character bolstered by his own statements of past criminal escapades. In addition, either Gable or someone in the Denver office, whoever informed Higgins that Plains was not paying for the drilling and was going to shut down the rig, had been placed on notice of his intended sabotage in the telephone conversations. Thus Empire knew, or had reason to know, of Higgins’ propensities and his intended conduct, but took no measure to protect the Plaintiff s interests. No argument can be advanced that the sabotage of the well was not a direct result of this reckless and wanton propensity on the part of Higgins. Therefore, Plains is entitled to judgment under this theory also.”
The findings of fact upon which the trial court based its conclusions are supported by substantial competent evidence and will not be disturbed on appeal. We have no quarrel with the rationale of the trial court in holding Empire liable for its employee’s acts under the theories of respondeat superior and negligent retention of an unfit employee.
In distinguishing between employer liability under respondeat superior and negligent hiring and/or retention of an unfit or incompetent employee, it has been said:
“Under the theory of respondeat superior the employer is vicariously liable for the employee’s negligence, whereas under the theory of negligent hiring the employer is liable for his primary negligence in hiring or retaining the employee. In a respondeat superior action, it must be proved that the employee was acting within the course and scope of his employment and that he was negligent, which negligence was the proximate cause of the plaintiff s injuries. In a negligent hiring action, there is no need to prove that the employee’s act was committed within the course and scope of employment. Furthermore, recovery may be had in circumstances where the employee himself was not negligent, such as where he suffered a blackout due to a physical condition which was unknown to him but should have been known to the employer.” 2 Am. Jur. Proof of Facts 2d, Negligent Hiring § 3, p. 616.
As succinctly noted by one authority: “The application of the theory of independent negligence in hiring or retaining an employee becomes important in cases where the act of the employee either was not, or may not have been, within the scope of his employment.” 53 Am. Jur. 2d, Master & Servant § 422, p. 437. In other words, “[A] master may be liable for injury caused by the wilful wrong of his servant on the basis of his negligence in hiring or retaining such servant, entirely aside from the doctrine of respondeat superior.” 53 Am. Jur. 2d, Master & Servant § 438, p. 457.
The negligent hiring and/or retention doctrine recognizes that an employer has a duty to use reasonable care in the selection and retention of employees. This duty requires that an employer hire and retain only safe and.competent employees. An employer breaches this duty when it hires or retains employees that it knows or should know are incompetent. 29 Am. Jur. Trials, Negligent Hiring of Employee § 2, p. 276. Liability exists under either of these doctrines relating to negligent hiring or retention despite the fact the direct cause of injury to the injured person is the negligent or intentional acts of an employee acting outside the scope of his employment. 29 Am. Jur. Trials, Negligent Hiring of Employee § 2, p. 276.
Kansas has long been associated with the majority of states recognizing an action for negligent hiring and/or retention of an unfit or incompetent employee. In Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, 280 P.2d 623 (1955), this court declared:
“A master may be liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known 'of such incompetence or unfitness of the servant.” Syl. ¶ 4.
See Murray v. Modoc State Bank, 181 Kan. 642, Syl. ¶ 1, 313 P.2d 304 (1957).
In Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 388 P.2d 824 (1964), plaintiff brought an action against defendants for injuries inflicted by an employee who was prone to horseplay and who committed an assault and battery upon plaintiff. In Stricklin this court said:
“The doctrine of respondeat superior is not here involved. This is a common-law action charging the master with actionable negligence in retaining an incompetent and unfit employee, and it is unnecessary to determine whether Burt was acting within the scope of his employment. In Murray v. Modoc State Bank, [181 Kan. 642,] it was held:
“ ‘A master may be liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known of such incompetence or unfitness of the servant.’ (Syl. ¶ 1.)” 192 Kan. at 367.
Corpus Juris Secundum has well summarized this area of law as follows:
“A master may be liable for injuries inflicted on a third person by his servant where he was guilty of negligence in selecting a servant incompetent or otherwise unfit to perform the services for which he was employed, and this is especially true where skill and capacity are required for the performance of the services or where the services require the use of instrumentalities which are very dangerous if not skillfully handled. The servant’s incapacity must relate to the duties required of him, but it is not essential that the precise injury or accident which did occur could have been anticipated or foreseen, and it will be sufficient that the injury resulting therefrom is such as is usual and therefore might have been expected.
“The master, in selecting an employee, must exercise a degree of care commensurate with the nature and danger of the business in which he is engaged and the nature and grade of service for which the servant is intended, but is required to hire employees possessing only such skill as is ordinarily and reasonably commensurate with the work to be performed by them.
“Retaining in employment a servant who is, or should be, known to be incompetent, habitually negligent, or otherwise unfit, is such negligence on the part of the master as will render him liable for injuries to third persons result ingfrom the acts of the incompetent servant, whether the master’s knowledge of the servant’s incompetency was actual, or direct, or constructive; the master is chargeable with knowledge of the incompetency of the servant if by the exercise of due or reasonable care or diligence he could have ascertained such incompetence.” 57 C.J.S., Master & Servant § 559. (Emphasis supplied.)
See also Annot., Employment of Incompétent, Inexperienced, or Negligent Employee as Independent Ground of Negligence Toward One Other Than an Employee, 8 A.L.R. 574; Note, Torts—Recognition of Negligent Hiring Expands Employer Liability—Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983), 10 Wm. Mitchell L. Rev. 361 (1984); Note, Torts—Master and Servant—Negligent Hiring—Employer Owes a Duty to the General Public to Use Reasonable Care in Hiring and Retaining Employees. Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978), 9 U. Balt. L. Rev. 435 (1980); Note, The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 Chi. - Kent L. Rev. 717 (1977); Brill, The Liability of an Employer for the Wilful Torts of His Servants, 45 Chi. - Kent L. Rev. 1 (1968); Loftus, Employer's Duty to Know Deficiencies of Employees, 16 Clev.-Mar. L. Rev. 143 (1967).
We have no hesitancy in concluding the factual findings made by the trial court amply supported its conclusion that Empire was liable in tort for the intentional sabotage of Ellis No. 1 on both theories — respondeat superior and retention1 of an unfit employee.
The sixth issue is whether the trial court erred in awarding plaintiff $1,000,000 in punitive damages. In this issue Empire launches a hydra-headed attack on the punitive damage award. First, Empire contends it had no tort liability arising from the sabotage of Ellis No. 1. This contention has been disposed of in the preceding issue.
Next Empire contends the tortious conduct of Higgins did not constitute an independent tort causing additional injury. Rather, Empire asserts, the sabotage of the Ellis No. 1 well was a breach of its contractual obligation to protect and safeguard the hole. In support of this contention Empire calls our attention to the fact the trial court classified all compensatory damages as “contractual” damages, including the damage directly arising from the well sabotage. The trial court, after finding Empire liable in tort, stated:
“However, only one recovery can be awarded and the award of compensatory damages on the contractual claims of Plaintiff have made allowances for these damages with the exception of punitive damages.”
Empire had a contractual obligation to safeguard the hole and failure to do so constituted a breach of the contract. Here, however, Empire’s man in charge (there was no superintendent assigned to the rig) intentionally destroyed the hole, the drilling of which was the subject of the contract. This argument is somewhat akin to a security guard company contracting to provide a bodyguard to protect a client, then contending the premeditated murder of the client by the bodyguard constituted merely a breach of contract to protect the client even though the bodyguard was known to be vicious and had previously threatened to kill the client.
The trial court had a difficult task in computing previously paid overcharges and improper charges and determining how much of the unpaid invoices presented by Empire should be offset against amounts due Plains for the excessive charges. The compensatory damages occasioned by the sabotage are specifically designated in the computation of the aggregate compensatory damage award. It should be remembered also that a substantial portion of the unpaid invoices were for work done on Ellis No. 1,' the subsequently sabotaged hole. The hole was drilled to approximately three-fifths of the contracted-for drilling depth when the sabotage occurred. It is not surprising the trial court, under the circumstances herein, elected to compute compensatory damages at one time and arrive at a total figure rather than piecemeal it into a contractual compensatory damage award and a tort compensatory damage award. Although the trial court referred to the compensatory damage award as being on “contractual claims” it is clear that compensatory damages were allowed specifically for the well sabotage as a part of the total compensatory damage award. Clearly the well sabotage constituted an independent tort causing additional injury.
In Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 652 P.2d 665 (1982), this court, in a combined contract and tort action, summarized Kansas law on punitive damages as follows:
“Damages for breach of contract are limited to pecuniary losses sustained and exemplary or punitive damages are not recoverable in the absence of an inde pendent tort. Temmen v. Kent-Brown Chev. Co., 227 Kan. 45, 605 P.2d 95 (1980). This exception to the rule of unavailability of punitive damages in breach of contract actions is recognized when some independent tort or wrong results in additional injury which justifies the assessment of punitive damages by way of punishment of the wrongdoer. In such a case the proof of the independent tort must indicate the presence of malice, fraud or wanton disregard for the rights of others. The difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising under or imposed by agreement; whereas, a tort is a violation of a duty imposed by law. Atkinson v. Orkin Exterminating Co., 230 Kan. 277, 634 P.2d 1071, adopting 5 Kan. App. 2d 739, 625 P.2d 505 (1981).” 232 Kan. at 78-79.
The requirements set forth in Guarantee Abstract are satisfied in this case.
Next Empire argues in Kansas a corporation cannot be liable in punitive damages for the tort of an employee unless the employer corporation had complicity in the tortious conduct. On November 10, 1982, the trial court filed its judgment in this action. Eight months later, on July 15, 1983, this court announced its decision in Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 666 P.2d 711 (1983). In Kline the question before the court was whether, under Kansas law, a corporation could be held liable for punitive damages arising from an act of an agent or employee, within the scope of the agent’s or employee’s employment, when the corporation, through its board of directors or an officer, neither directed, authorized nor ratified the act. 233 Kan. at 989. In Kline this court noted there were two views on this question. The first held a corporation could be liable upon the standard rules of vicarious liability for the torts of an agent or employee. The second held a corporation could not be made to answer unless it had been “complied” in the tortious conduct. The court noted the vicarious liability rule was followed by a majority of American states while the complicity rule was adhered to by a considerable minority of American jurisdictions. 233 Kan. 990-91. In Kline this court adopted the complicity rule as enunciated in Restatement (Second) of Torts § 909 (1977), which provides:
“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
“(a) the principal or a managerial agent authorized the doing and the manner of the act, or
“(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
“(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
“(d) the principal or a managerial agent of the principal ratified or approved the act.” (Emphasis supplied.)
In the instant action the trial court concluded both of plaintiff s alternative tort theories, vicarious liability and negligent hiring and/or retention of Mr. Higgins, were meritorious. It should be noted in making its ruling the lower court made reference to Restatement (Second) of Torts § 909. The ensuing comments to section 909 reveal the Restatement provision is meant to be applicable in a situation such as here.
“It is . . . within the general spirit of the rule to make liable an employer who has recklessly employed or retained a servant or employee who was known to be vicious, if the harm resulted from that characteristic.” Restatement (Second) of Torts § 909, Comment b, p. 468 (1977). (Emphasis supplied.)
Additionally, in Kline this court, in following Restatement (Second) of Torts § 909, held a corporation might be liable for punitive damages resulting from acts of its employees when it directed or ratified those acts. 233 Kan. at 994. In the instant action there was evidence in the record Empire management knew of Mr. Higgins’ intended course of conduct a week before the sabotage of Ellis No. 1 occurred and did nothing to dissuade or forestall Mr. Higgins from his intentional and criminal acts. Silence under these circumstances could certainly be held to constitute ratification, especially when Mr. Higgins remained in the employment of Empire until the filing of this action. Further, it could be argued Higgins, as the top company man on the drilling site with no supervision in the State of Kansas, was in a managerial position. It is unnecessary to go as far as these latter grounds, however, as inherent in the trial court’s findings is that the negligent retention of Higgins was reckless and, therefore, a proper basis for allowance of punitive damages under Kline and Restatement (Second) of Torts § 909 (1977).
This brings us to the final point in this issue. Does the award of $1,000,000 in punitive damages shock the conscience of this court so as to require the award be set aside? According to Empire:
“A punitive damage award of $1,000,000, an amount more than eleven times the compensatory damages for the loss of the Ellis hole, is more than merely a deterrent. It amounts to a shocking confiscation of the assets of a struggling corporation. The award of punitive damages is excessive under the circumstances of this case and should be set aside.”
The trial court found:
“13. Empire Drilling and its alter-ego, Empire Oil and Gas, are corporations of substantial income, means and net worth. The most current financial information available at time of trial indicated that 1981 revenues were approximately $17,000,000.00 and 1981 reserves were approximately $20,000,000.00, with total assets of $31,000,000.00 and an overall operating profit in 1981 of $4,000,000.00.”
In its conclusions of law relative to the punitive damage award, the trial court stated:
“K. In determining the amount of punitive damages which can be assessed for this well sabotage, the Court has considered the elements set out in U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346 [, 629 P.2d 196, rev. denied 230 Kan. 819 (1982),] and in Binyon v. Nesseth, 7 Kan. App. [2d 110, 638 P.2d 946 (1981), aff’d 231 Kan. 381, 646 P.2d 1043 (1982)], which included the nature, extent and enormity of the wrong, the intent of the party and the surrounding circumstances of the contractual arrangement and conduct between Plains and Empire.
“L. These factors in this case indicate that this was a felony act occasioned during a time when the perpetrators were in a position of trust with reference to Plaintiff s property. It violated not only the express contractual obligation of the Defendant to safeguard the hole, but also the implicit obligation and confidence that arises in the industry among drilling companies, oil producers, working interest owners, investors, mineral interest owners and land owners to work toward a common objective of exploring for, finding and producing petroleum products. This conduct has far reaching consequences. The acts were premeditated and deliberately planned so as to make retrieval of the [drilling] bits next to impossible. . . . [T]his perfidious ruination of the well exhibits the pinnacle of the contempt held by Empire for the good faith normally and traditionally inherent among contracting parties. Since Empire had been paid well in advance for most of its services and had very handsome revenues from other activities, the malice here displayed increased and as the adage goes, ‘punishment ought to be increased as malice increases’. Punitive damages are assessed against Empire Drilling Co. in the amount of $1,000,000.00 in favor of the Plaintiff.”
We take notice of the fact oil and gas drilling contractors frequently perform their services in remote areas far from the likelihood of supervision by those paying the high cost of such work. Wildcat oil exploration is a high-risk investment. Sabotage by one’s own drilling contractor should not be an added risk of the operation. The outrageous conduct of intentionally sabotaging the well is abhorrent to all concepts of trust and fair dealing. Certainly the sabotage of the hole is an activity which should be punished and others in like circumstances be deterred from committing.
Empire points out Gilbert Rockwell Kennedy, President of Plains, was not a candidate for a good citizenship award. In its findings of fact, the trial court described Mr. Kennedy as follows:
“His alcoholic binges, intemperate conduct and jet set appetite contributed substantially to the emerging problems between Plains Resources and Empire Drilling. These characteristics, combines with his lack of business ethics and self-dealing, resulted in his termination as President of the Plaintiff, Plains, and subsequent criminal charges being filed by Plains for alleged embezzlement and also litigation prompted by his successor in office against him to recover funds allegedly misappropriated and converted during his tenure as President. He appears to have been, during the time in question, a high rolling promoter of the Lear jet set, who was a bad tempered drunk, sophisticated, well educated and a suspected embezzler.”
However, the character deficiencies of Plains’ president are not matters of consideration in the area of punitive damages against Empire. As the Court of Appeals stated in Sanders v. Park Towne, Ltd., 2 Kan. App. 2d 313, 578 P.2d 1131, rev. denied 225 Kan. 845 (1978):
“[Pjunitive damages ‘are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. (Malone v. Murphy, 2 Kan. 250; Albert Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448.) Such damages are allowed not because of any special merit in the injured party’s case, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party’s rights, the purpose being to restrain and deter others from the commission of like wrongs. (Stalker v. Drake, 91 Kan. 142, 136 Pac. 912; see, also, Townsend v. Seefeld, 102 Kan. 302, 169 Pac. 1157; and 15 Am. Jur., Damages, § 266, p. 700.)’ Watkins v. Layton, 182 Kan. 702, 705, 324 P.2d 130 (1958).” 2 Kan. App. 2d at 318-19.
In Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979), this court stated:
“The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).” 225 Kan. at 694.
See Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979).
The conscience of this court is not shocked by the punitive damage award entered herein and, accordingly, the same will not be disturbed on appeal.
For its final issue Empire contends the cumulative effect of all the previously discussed alleged errors mandates reversal. Having found no error by the trial court, this issue is moot.
Before concluding this opinion we wish to commend the trial court on its hiandling of this complex and time-consuming litigation. The trial court’s findings of fact and conclusions of law are skillfully drawn, thorough, and, obviously, the product of careful .consideration of the evidence and the applicable law.
The judgment is affirmed as modified, the modification being the disallowance of the prejudgment interest awarded by the trial court. | [
-16,
106,
-15,
28,
8,
96,
120,
-102,
93,
-93,
101,
87,
-83,
-49,
4,
121,
67,
121,
-59,
104,
23,
-77,
5,
66,
-122,
-77,
-15,
-35,
-79,
91,
-26,
-44,
72,
84,
10,
85,
-58,
-62,
-63,
-36,
-82,
5,
-119,
-20,
85,
32,
62,
107,
48,
75,
113,
-83,
-13,
41,
29,
-29,
41,
60,
-33,
44,
25,
-47,
-22,
-123,
93,
16,
-80,
4,
-74,
69,
-40,
62,
-48,
-80,
8,
-20,
115,
-90,
-108,
-12,
47,
-71,
13,
46,
98,
49,
20,
-121,
124,
-104,
23,
-37,
-115,
-25,
-42,
8,
-29,
72,
-106,
-99,
126,
6,
-121,
126,
-24,
5,
91,
124,
3,
-53,
-42,
-95,
15,
-25,
-100,
19,
-21,
-125,
16,
116,
-63,
-94,
93,
7,
120,
31,
-113,
-70
] |
The opinion of the court was delivered by
McFarland, J.:
Plaintiff Henry Eli was injured in a one-vehicle accident on August 13, 1979, while operating his motorcycle. Plaintiff filed suit against defendant Board of County Commissioners contending the cause of the accident and his resultant injuries was a street defect in a road maintained by the defendant. The district court entered summary judgment in favor of defendant and plaintiff appeals therefrom.
The motorcycle in question had been acquired in a trade a few months earlier. It is undisputed that at the time of the accident plaintiff was operating the vehicle in violation of state laws relative to motor vehicle registration (K.S.A. 8-127[a]), license tags (K.S.A. 8-133), and insurance (K.S.A. 40-3104). Additionally the motorcycle was not equipped with turn signals and could not have passed the then applicable state inspection requirements. It is conceded that the failure to comply with these state motor vehicle laws made it unlawful for plaintiff to operate the motor cycle upon a public highway (K.S.A. 8-142, K.S.A. 40-3104). It is not contended there was any causal connection between these statutory violations by the plaintiff and the injuries he sustained. The district court entered summary judgment for the defendant Roard of County Commissioners on the basis that Kansas law precluded recovery for injuries received from an alleged street defect where the injured party was operating his vehicle in violation of state law. The district court cited Miller v. City of El Dorado, 152 Kan. 379, 103 P.2d 835 (1940), as controlling on this issue.
The court in Miller held:
“A city is under no duty to furnish reasonably safe streets for the use of a motor vehicle which, under our statutes, no one is authorized to use on the streets.” Syl. ¶1.
In Miller this court reaffirmed its previous holding in McCarry v. Center Township, 138 Kan. 624, 27 P.2d 265 (1933), which stated:
“A township is not liable to one driving an automobile, for injury received on the ground that the highway over which the motorist was driving was defective, where the motorist was unlicensed and under the statute was prohibited from driving upon the highway when the accident occurred, even though there was no causal relation between the violation of the statute by the motorist and the injury he sustained.” Syl. ¶ 1. (Emphasis supplied.)
This rule of law did not apply where the injured driver brought the action against a private individual for negligence rather than against a governmental entity predicated upon a street defect. E.g., Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635 (1915).
As stated in Williams v. Esaw, 214 Kan. 658, 522 P.2d 950 (1974):
“The violation of the provisions of a driver’s licensing act or of restrictions contained in a license issued thereunder, so far as the question of contributory negligence is concerned, will not defeat recovery for injuries sustained in a motor vehicle accident unless the licensing violation proximately contributes to the injuries received.” Syl. ¶ 3.
It is obvious from the quoted portion of Williams the cause of action arose therein before the 1974 adoption of comparative negligence in Kansas. K.S.A. 60-258a. Under the present law where there is evidence of a causal connection between the statutory violation and the injury complained of, the matter would be submitted to the jury as a factor in determining appor tionment of fault, rather than as an absolute bar to recovery under the prior law of contributory negligence. As stated in Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978):
“In the context of comparative negligence, highway defects claimed to have contributed to the occurrence from which the injuries and damages arose must be compared to the alleged negligence of other parties if the intent of K.S. A. 60-258a is to be accomplished.” Syl. ¶ 3.
The dubious logic of treating persons operating motor vehicles in violation of the law differently, depending upon whether recovery was sought against private persons for negligence or against governmental entities for street defects, has been criticized for its inequity. As one commentator noted fifty years ago:
“It is a little difficult to understand why an automobile driver can be an outlaw and his automobile a nuisance as to one adversary, and be free from the same results as to another . . . .” Comment, Automobiles■ — Unlicensed Operator, 2 J.B.A.K. 213, 214 (1934).
Plaintiff contends the unfairness in the law relative to this area has been eliminated by the adoption of the Kansas Tort Claims Act (K.S.A. 1983 Supp. 75-6101 et seq.). Specifically, plaintiff relies upon K.S.A. 1983 Supp. 75-6103(a) which provides:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. ” (Emphasis supplied.)
We agree. We therefore conclude the rule of law which held a governmental entity had no liability to a person who was injured by a street defect while operating a motor vehicle upon a public road if the injured driver was in violation of the law in so driving, regardless of whether or not there was a causal connection between the law violation and the injury, has been legislatively abolished by enactment of K.S.A. 1983 Supp. 75-6103(a) of the Kansas Tort Claims Act (K.S.A. 1983 Supp. 75-6101 et seq.). If there is evidence of a causal connection between the motor vehicle driver’s law violation and the injuries he or she received, this is a factor to be considered by the jury in its determination of fault under comparative negligence (K.S.A. 60-258a).
It should be noted defendant is not contending the alleged street defect herein is within any of the exceptions from liability set forth in K.S.A. 1983 Supp. 75-6104 of the Kansas Tort Claims Act.
The judgment is reversed and the case is remanded for further proceedings. | [
-16,
106,
-15,
110,
91,
64,
2,
10,
89,
-75,
37,
19,
-113,
-54,
-121,
125,
-18,
-1,
68,
75,
-11,
-73,
87,
-118,
-106,
-77,
-53,
70,
-101,
-53,
108,
-19,
78,
48,
10,
85,
36,
72,
5,
-36,
-50,
22,
-117,
-48,
-39,
-117,
-76,
106,
66,
14,
113,
15,
99,
62,
24,
-61,
-83,
12,
-117,
-83,
-39,
-80,
-55,
-99,
126,
0,
-93,
4,
-100,
37,
80,
8,
-112,
-71,
120,
-24,
114,
-90,
-124,
-11,
109,
-119,
8,
38,
102,
33,
21,
-51,
-20,
-72,
12,
114,
15,
-89,
-98,
89,
51,
11,
-97,
29,
115,
54,
66,
124,
-6,
20,
91,
56,
7,
-53,
-112,
-111,
-19,
118,
-126,
-59,
-17,
7,
-79,
113,
-50,
-10,
95,
69,
122,
27,
95,
-2
] |
Per Curiam:
James L. Chamberlain was convicted on April 1, 1980, by a jury in Shawnee County District Court of felony murder, K.S.A. 21-3401, and aggravated robbery, K.S.A. 21-3427. He was sentenced to life imprisonment for the murder and fifteen years to life for the robbery, the sentences to be served consecutively.
No post-trial motions were filed. Trial counsel filed a notice of appeal and secured an order directing the preparation of a transcript at public expense, since defendant was indigent. The appeal was not docketed here within ten days, as was required by Rule 2.04, 228 Kan. xxxix. Defendant’s attorney took no further action, and for reasons unrelated to this case was subsequently suspended indefinitely from the practice of law in this state. State v. Nelson, 233 Kan. 473, 663 P.2d 303 (1983).
In February 1983 present counsel filed a motion to docket the appeal out of time, and we granted leave to do so. Briefs were then filed and the matter was argued and submitted. Only one issue was raised: whether trial counsel was so ineffective that defendant was deprived of his constitutional right to the effective assistance of counsel.
The standards upon which a claim of ineffective assistance of counsel must be considered and determined were stated earlier this year by Justice McFarland in our unanimous opinion in State v. Kendig, 233 Kan. 890, 895-96, 666 P.2d 684 (1983):
“Recently in State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982), this court reiterated the applicable rules previously stated in State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981), as follows:
“The rules relative to determination of effective assistance of counsel were stated in Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶¶ 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978), and iterated in State v. Voiles, 226 Kan. 469, 470-471, 601 P.2d 1121 (1979), as follows:
‘The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.
‘Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant’s Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client’s conviction or otherwise works to the client’s substantial disadvantage, is also a deprivation of the constitutional guarantee of “effective” counsel.
‘In applying the foregoing standard to counsel’s performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.’ 229 Kan. at 389.” ’ 232 Kan. at 299.
“Defendant, on appeal, points to several alleged instances of ineffective assistance of counsel. Some of these arise from the wisdom of hindsight. As stated in Cook v. State,_Ind. App__, 403 N.E.2d 860 (1980):
“ ‘It is one of the characteristics of human experience that hindsight often reveals alternative courses of conduct that may have produced different results if only they had been employed. Hindsight, however, is not the vantage point from which we judge allegations of incompetence. Thomas v. State, (1969) 251 Ind. 546, 242 N.E.2d 919. It may be that had defendant’s counsel on appeal conducted the defense at trial, he would have done things differently. Whether or not he would have fared better before the jury is a matter of conjecture. Where experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel. Crocker v. State, (1978) Ind. App., 378 N.E.2d 645.' 403 N.E.2d at 868.”
The Sixth Amendment right to the effective assistance of counsel was also discussed recently by the United States Court of Appeals, Tenth Circuit, in United States v. King, 664 F.2d 1171 (10th Cir. 1981):
“It is now settled that the Sixth Amendment entitles a criminal defendant to more than mere legal representation; an accused has the right to the effective assistance of competent counsel. Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77 L.Ed. 158 (1932). If a defendant’s lawyer does not exercise the skill, judgment, and diligence of a reasonably competent attorney, then that right has been violated. United States v. Golub, 638 F.2d 185, 187 (10th Cir. 1980); Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.), cert denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). Significantly, this Sixth Amendment guarantee is so fundamental that its deprivation will mandate reversal of a conviction even absent a showing that the resulting prejudice affected the outcome of the case. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1941); Golub, 638 F.2d at 190; United States v. Porterfield, 624 F.2d 122, 124-25 (10th Cir. 1980).” 664 F.2d at 1172.
Defendant’s capable appellate counsel points out many errors and omissions by trial counsel, including his failure (1) to challenge the legality of defendant’s warrantless arrest in his own home, absent exigent circumstances, (2) to move to suppress incriminating evidence seized “incident” to that arrest, (3) to request a Jackson v. Denno hearing prior to trial, (4) to move to suppress defendant’s confession, and (5) to object to the introduction into evidence of various prejudicial exhibits. Present counsel also points to trial counsel’s repeated elicitation of evidence which was prejudicial and incriminating, and to counsel’s persistence in this practice even in the face of warnings from the prosecutor. Much evidence to support the suggested motions and objections is found within the trial record, and law to support appellant’s position is both familiar and plentiful. Payton v. New York, 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371 (1980); Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034 (1969); Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964); State v. Platten, 225 Kan. 764, 594 P.2d 201 (1979); and ABA Standards Relating to the Prosecution Function and the Defense Function § 3.6, Approved Draft, 1971.
The chief purpose for defense counsel was succinctly stated by this court long ago in the case of State v. Clough, 70 Kan. 510, 512, 79 Pac. 117 (1905):
“On the trial of criminal cases attorneys for defendants are in court for the purpose of protecting the interests of their clients in every legitimate way. They should not, however, lie in wait to catch the court in error for the purpose of obtaining reversals, but should claim every right of the client at the proper time, as the trial progresses, and object and except to every adverse ruling supposed to be inimical to the rights of the client at the time it is made. After the verdict, and before judgment, all rulings made during the progress of the trial, still supposed to be prejudicial to the client, should be again called to the attention of the court by a motion for a new trial, and exceptions saved to adverse rulings thereon. Then, if desired, the questions may be presented for review in this court.”
Appellant now argues that trial counsel failed to properly protect his client’s interest. As we noted in Clough, however, supposed prejudicial error should be called to the attention of the trial court in order that it might have an opportunity to rule thereon.
In the case of State v. Porter, Green & Smith, 228 Kan. 345, 354, 615 P.2d 146 (1980), on direct appeal from a verdict finding three defendants each guilty of two counts of aggravated robbery, two of the defendants contended that they received ineffective assistance of counsel from their court-appointed attorney. We said:
“This issue was never raised at any time during the trial nor on the defendants’ motion for a new trial. The trial court was therefore not given an opportunity to consider this issue. Since the point was not presented to or determined by the district court, it is not properly before this court and will not be considered for the first time on appeal. State v. Roberts, 226 Kan. 740, 602 P.2d 1355 (1979).”
In Roberts, as in Porter, Green & Smith, the defendant contended on direct appeal that he had been denied effective assistance of counsel. The claim was made on the basis of an affidavit attached to appellant’s brief filed in this court. That affidavit had not been presented to the trial court, nor had the trial court otherwise been given an opportunity to consider the issue. Following the well-established rule that an issue will not be considered on appeal where it was not presented to or determined by the trial court and where the determination of the issue depends upon facts which do not appear in the record, we declined to reach the issue but held that the defendant’s remedy, if any, lay under K.S.A. 60-1507. Roberts, 226 Kan. at 744-45.
As noted above, the trial record lends much support to appellant’s view of the issue which he now seeks to have us determine. However, the prosecution has not had an opportunity to offer evidence in opposition to this view, and the trial court has not had an opportunity to consider and rule upon the issue. The trial judge heard the entire trial and did have the opportunity to observe and evaluate defense counsel’s performance throughout, but the claim of ineffective assistance of counsel has never been presented to him. We will not consider this issue until the trial court has had an opportunity to consider and rule upon it.
This appeal is dismissed without prejudice to the defendant’s right to raise this issue before the trial court in proceedings under K.S.A. 60-1507. | [
-48,
-30,
-4,
31,
10,
98,
58,
28,
65,
-13,
-89,
83,
-19,
-49,
1,
57,
27,
45,
20,
105,
64,
-105,
119,
73,
-74,
-6,
121,
-43,
-73,
79,
-11,
-76,
76,
112,
66,
-43,
6,
-56,
65,
92,
-114,
1,
-102,
-10,
-47,
3,
48,
107,
20,
7,
49,
92,
-77,
106,
49,
-22,
28,
44,
10,
-83,
114,
-111,
-118,
-123,
-2,
20,
-79,
4,
-98,
7,
80,
62,
-100,
61,
0,
-24,
112,
-106,
-122,
-42,
103,
9,
-84,
102,
98,
-94,
16,
79,
-96,
-87,
31,
-46,
-99,
-89,
-103,
25,
107,
45,
22,
-97,
117,
52,
39,
-4,
-28,
13,
29,
108,
-117,
-113,
-16,
-77,
15,
115,
-114,
-101,
-21,
-123,
-80,
113,
-120,
-26,
94,
-41,
122,
-1,
-118,
-80
] |
The opinion of the court was delivered by
Holmes, J.:
This appeal arises from an action by the Secretary of Human Resources to enforce a judgment under the employment security law, K.S.A. 44-701 et seq., for collection of unemployment contributions from the defendant corporation. The defendant, Sherlock Auction & Realty, Inc. (Sherlock Auction), is a closely held corporation owned entirely by Frederick E. Sherlock, the sole employee, shareholder, officer and director. The corporation asserts that the statute requiring contributions to the state unemployment fund has been applied in an arbitrary and capricious manner and is unconstitutional as applied to it because the corporation’s owner-employee is ineligible to receive unemployment benefits.
Numerous procedural issues were raised in the trial court but none of them have been asserted on appeal. It appears that sometime prior to September 22, 1981, Frederick E. Sherlock filed a claim for unemployment compensation which was denied on the grounds he failed to qualify for benefits under K.S.A. 1983 Supp. 44-705 and -706. Mr. Sherlock did not appeal that determination and the specific reasons for his ineligibility are not shown in this record. The denial of benefits to Mr. Sherlock is not an issue in this case although it is used by the defendant as a basis for its argument that the sole employee, who is the only owner, director and officer of a one-person corporation, can never receive benefits under the act.
On September 22, 1981, the Department of Human Resources (the DHR) filed in the District Court of Cheyenne County a tax warrant in the amount of $235.29, representing delinquent unemployment contributions and accrued interest allegedly owed by Sherlock Auction. The tax was not paid and on March 22, 1982, the DHR filed a request for execution against the property of the corporation. The corporation then filed with the court a petition for declaratory judgment, asking that the court determine the state statutes and regulations to be arbitrary and capricious insofar as they require unemployment contributions from a closely held corporation whose sole employee is also the only stockholder, officer and director, asserting that such an employee can never be eligible for benefits under the act. The answer of the DHR alleged the petition failed to state a claim upon which relief could be granted. The DHR then filed a motion for summary judgment or dismissal. The trial court, after a hearing upon the motion, found the act constitutional, denied all claims of Sherlock Auction and entered judgment in favor of the DHR.
At the outset we note that in examining the constitutionality of a statute, the statute is presumed to be constitutional. All doubts are resolved in favor of its validity and before a statute will be stricken, it must clearly appear the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed as constitutionally permissible, that should be done. Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, Syl. ¶ 1, 618 P.2d 778 (1980).
The DHR concedes that there are many instances in which the sole employee, who is also the only owner, officer and director of a one-person corporation, could not qualify for unemployment benefits but also asserts that there are instances in which such an employee could qualify for benefits such as when the corporation permanently ceases business or when the ownership of the corporation is sold and the new owner does not retain the seller as an employee. Such examples presume, of course, that the employee would otherwise meet the qualifications and requirements of the statutes.
In Wesley Medical Center v. McCain, 226 Kan. 263, 597 P.2d 1088 (1979), the employment security act was attacked as violating the due process and equal protection clauses of the federal and state constitutions because of the great disparity between the amount of contributions required and benefits actually paid. Sherlock Auction distinguishes the issue in this case from that in Wesley Medical Center on the basis that in this case no benefits could be paid as opposed to the disparity between large contributions and minimal benefits in that case.
The Kansas employment security act is the embodiment of the public policy of this state to protect against involuntary unemployment, i.e., to provide benefits for those who are unemployed through no fault'of their own, who are ready, willing and able to support themselves and their families, and who are unemployed because of conditions over which they have no control. Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P.2d 856 (1961); K.S.A. 44-702.
In Wesley Medical Center we stated:
“We think it is clear the relationship of taxes paid to the benefits received is not a per se violation of the due process clauses of the constitutions. Such discrepancies are unconstitutional only if there is no rational relationship between the tax and a legitimate and substantial state interest or goal, or if the statute is applied in an arbitrary or capricious manner.
“We find there is a rational relationship between K.S.A. 1975 Supp. 44-710a, the taxing section of the act, and the State interest and goal as stated in K.S.A. 44-702 [protection against involuntary unemployment]. Appellants have contributed much more to the fund than their former employees have received back in compensation but a taxing system cannot be judged on a cost/benefit ratio. There are many benefits an employer receives which are not disclosed on such an evaluation. . . .
“Finally, in this regard it has been shown that all contributing employers receive the benefit from their contributions of helping prevent unemployment and ‘to lighten its burden.’ ” 223 Kan. at 266-68.
The court in reaching its decision relied upon Carmichael v. Southern Coal Co., 301 U.S. 495, 81 L.Ed. 1245, 57 S.Ct. 868 (1937), in which an attack was lodged against the unemployment compensation act of Alabama on several grounds asserting the act violated the due process and equal protection clauses of the Constitution. In upholding the act, the court stated:
“It is not a valid objection to the present tax, conforming in other respects to the Fourteenth Amendment, and devoted to a public purpose, that the benefits paid and the persons to whom they are paid are unrelated to the persons taxed and the amount of the tax which they pay — in short, that those who pay the tax may not have contributed to the unemployment and may not be benefited by the expenditure. . . . Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied.
“A tax is not an assessment of benefits. It is, as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. See Cincinnati Soap Co. v. United States, [301 U.S. 308]. Any other view would preclude the levying of taxes exceptas they are used to compensate for the burden on those who pay them, and would involve the abandonment of the most fundamental principle of government — that it exists primarily to provide for the common good. A corporation cannot object to the use of the taxes which it pays for the maintenance of schools because it has no children. Thomas v. Gay, 169 U.S. 264, 280. This Court has repudiated the suggestion, whenever made, that the Constitution requires the benefits derived from the expenditure of public moneys to be apportioned to the burdens of the taxpayer, or that he can resist the payment of the tax because it is not expended for purposes which are peculiarly beneficial to him. . . .
“It is irrelevant to the permissible exercise of the power to tax that some pay the tax who have not occasioned its expenditure, or that in the course of the use of its proceeds for a public purpose the legislature has benefited individuals, who may or may not be related to those who are taxed.” pp. 521-25.
We are not called upon to determine whether Mr. Sherlock, at some time in the future, may or may not qualify for unemployment benefits under our employment security law. Based upon the record as developed in this case, we are of the opinion that the Kansas employment security law has not been applied arbitrarily and capriciously and does not violate the due process and equal protection clauses of the constitutions as applied to Sherlock Auction & Realty, Inc.
The judgment is affirmed. | [
-112,
-8,
-3,
-84,
10,
-32,
58,
26,
65,
-25,
39,
87,
-31,
90,
16,
127,
-5,
45,
80,
106,
-41,
-74,
3,
-86,
90,
-5,
-103,
-51,
-67,
79,
-76,
84,
76,
-80,
74,
-44,
38,
98,
4,
20,
-50,
-122,
26,
-23,
-7,
-128,
48,
123,
-70,
75,
49,
-34,
-69,
32,
20,
-53,
76,
44,
105,
-65,
113,
-15,
-21,
-123,
127,
20,
3,
4,
-68,
-57,
-40,
63,
-102,
48,
1,
-24,
91,
-74,
-126,
52,
43,
-71,
8,
98,
98,
-127,
16,
-25,
108,
-120,
14,
-41,
63,
-91,
-112,
88,
122,
15,
-106,
-103,
125,
22,
70,
124,
-26,
-123,
-105,
109,
2,
-98,
-6,
-125,
-115,
116,
-108,
11,
-1,
-95,
18,
113,
-98,
-96,
93,
71,
50,
31,
102,
-48
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a jury verdict finding Clyde Richard a/k/a Clyde Rhodes (defendant-appellant) guilty of aggravated battery (K.S.A. 21-3414) and first-degree murder (K.S.A. 21-3401).
In the early morning hours of June 8, 1980, Darlene Bruner was shot through the head while standing inside an open doorway at the Twenty Grand Club, a drinking and dancing establishment, in Independence, Kansas. She died immediately. The bullet which killed her passed through a paneled wall behind her and was found embedded in a concrete block behind a second wall. From the holes in the walls it was determined the shot had been fired from a point west of the open doors. The path of the bullet passed directly over a flatbed truck parked in the parking lot of the club, several feet from the doors. Although several people were standing in the parking lot and inside the club near the doors at the time, no one saw who fired the fatal shot. Richard Collins, who was dating Darlene, was standing in the parking lot about ten feet east of the doors when the shot was fired. He looked toward the flatbed truck where he thought the shot had come from. He saw someone running away from the club through an adjoining wooded lot. He could not identify the person he saw running. A man who lived on the other side of the wooded lot testified that after he heard the shot he saw a man run through the lot and get into a car parked in the street across from his house and drive off.
The victim’s sister, Debbie Bruner, testified that immediately before she heard the shot fired she looked out into the parking lot as she was walking past the doors to the Club and saw the appellant standing near the flatbed truck. After the shot was fired she began screaming that the appellant had shot her sister. She went home and told this to their mother. However, she did not tell this to police until the appellant was apprehended two years later because she was afraid of what he would do to her.
The appellant was considered the prime suspect in the murder for several reasons. He and Darlene had apparently been involved in a relationship for several years. There was testimony he was the father of her four children. A cousin of the victim testified that in December 1979 he was with Darlene and the appellant at Darlene’s sister’s house, when an argument ensued between Darlene and the appellant. The appellant told Darlene if he ever caught her with another man, he would “follow her to the end of the earth and kill her.”
At the time of the murder the appellant was wanted on an aggravated battery charge stemming from a shooting incident two weeks earlier involving Darlene and Richard Collins. Darlene and Collins were riding around in Darlene’s car when a car in which the appellant was a passenger pulled along side theirs and the appellant fired a shotgun at them. Both sustained injuries to the face and neck from shattered glass and shotgun pellets. A few hours earlier Collins had seen the appellant drive by his home while he and Darlene were there watching television. Delois Carter, the driver of the car in which the appellant was riding when the shooting occurred, was apprehended and pled guilty to aiding and abetting the aggravated battery.
Following that incident the appellant apparently fled from Independence to avoid prosecution. However, he was seen making a telephone call from a public phone booth in Independence the day of the murder by a former co-worker. Delois Carter told police she saw the appellant the night of the murder and rode around with him in his car. They drove by the victim’s mother’s house and the Twenty Grand Club before he took her home. She saw a pistol and either a shotgun or a rifle in the back seat of his car. She learned of Darlene Bruner’s death the next day. Investigators determined the bullet which killed Bruner could have been fired from either a pistol or a rifle.
The appellant was arrested two years later in Oakland, California, living under the name of Clyde Rhodes, and was returned to Kansas for trial on the aggravated battery and murder charges. A witness who was in jail with the appellant while he was awaiting trial testified he overheard the appellant say he “shot this broad, and there wasn’t a witness alive to prove it.” The appellant presented an alibi witness who testified the appellant stayed at his house in Kansas City for three weeks in either May or June of 1980. Other defense witnesses testified for the purpose of impeaching the testimony of Delois Carter. The appellant was convicted of both charges.
On appeal the appellant does not challenge the sufficiency of the evidence.
The appellant first contends the trial court erred in allowing Delois Carter’s attorney to testify as a rebuttal witness for the State that her plea of guilty to the aggravated battery charge was consistent with the facts as he understood them. Throughout trial the credibility of Carter was attacked by the defense in an effort to show the appellant was not the person who fired the shotgun at Collins and the victim in the earlier shooting incident. Carter testified at trial the appellant shot Darlene Bruner with a shotgun while riding around in her (Carter’s) car, and that she pled guilty to aiding and abetting in that offense. The night Darlene was killed Carter rode around with the appellant and saw a shotgun and a pistol in his car. She also testified the appellant is the father of her two children. However, on cross-examination, she contradicted her prior testimony, stating she had told police things that were not true about the appellant, and she did not see him with a gun or go riding around with him on June 7, 1980. A police officer who interviewed Carter several times during the investigation testified Carter told him she went with the appellant the night of the first shooting incident to find Darlene so he could shoot her because Carter wanted the appellant to herself. He also indicated she never varied her story from the first statement she gave police. Another officer also indicated Carter made prior statements about the guns she saw in the back seat of the appellant’s car the night of the murder, which was consistent with her testimony at trial.
Paul Reed, a psychologist, and Dr. Johnny Edrozo, a psychiatrist, were called as defense witnesses to testify concerning Carter’s ability to tell the truth. Reed interviewed Carter in 1981 upon the request of her probation officer. He determined she had a low I.Q. and was mildly mentally retarded. He believed she had difficulty in selecting words to express what she was thinking and that stress would add to that difficulty. Dr. Edrozo interviewed Carter a week before trial at the request of the parties after the appellant obtained an order from the court requiring psychiatric evaluation of Carter. Dr. Edrozo found Carter to be slow mentally, with difficulty concentrating and making decisions. He stated Carter would become confused and unreliable when placed under pressure and that she was susceptible to suggestion because of her desire to please others.
In rebuttal the State called Robert Scovel, the attorney who represented Carter on the aggravated battery charge. He testified he talked with Carter six to ten times concerning the case, discussed her version of the facts with her, was provided information concerning the charge, and made his own investigation into the facts. He then testified:
“Q. As a result of all that, what was your advice to her concerning a plea?
“A. I felt that the facts warranted the plea as was entered in the case.
“Q. Was her plea consistent, then, with the facts as you understood them at the time?
“A. Yes, it was.”
On cross-examination Mr. Scovel stated he was not present during the rest of the trial and did not know how the evidence presented compared with the information he had concerning the case when Carter entered her plea of guilty. On redirect the following exchange took place:
“Q. A reference was made to evidence at your disposal. Did that include a statement taken from Delois Carter, taken by the detective, Troy Roberson?
“A. That’s correct, and I believe there was a statement from Richard Collins.
“Q. Along with other police reports?
“A. And the police — official police reports.”
The jury was given the following instruction with respect to this testimony:
“You are instructed that the testimony of Robert Scovel was offered solely to support the credibility of a witness, Delois Carter, and should not be considered by you as evidence of the defendant’s guilt.”
The appellant challenges this rebuttal testimony, claiming it was improperly admitted because it suggested to the jury that an expert in legal matters had reviewed the facts in the case, including police reports which were not in evidence, and had determined that guilt was the proper conclusion to draw from the evidence. This had the effect of allowing the witness to pass on the weight or credibility of the evidence, which is solely within the province of the jury. The appellant states “[t]he ultimate effect of [this] testimony was to pass judgment on the case against Richard.”
The rules relating to rebuttal evidence were summarized in State v. Weigel, 228 Kan. 194, Syl. ¶ 9, 612 P.2d 636 (1980):
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.”
See also State v. Schultz, 225 Kan. 135, 138, 587 P.2d 901 (1978); State v. Phipps, 224 Kan. 158, 161, 578 P.2d 709 (1978).
Under the broad scope of this rule the testimony complained of was properly received as rebuttal evidence. The appellant attempted to discredit the testimony of Delois Carter, a key prosecution witness, by suggesting that due to her slow mental ability she had been compelled to plead guilty to a crime she was not involved in and had mistakenly implicated the appellant in those crimes upon the suggestion of others. Mr. Scovel’s testimony corroborated both Carter’s testimony concerning the facts underlying the charges against the appellant as well as evidence of prior consistent statements made by Carter to the police during the investigation of the murder. The testimony also served to refute the evidence introduced by the appellant to show Carter’s testimony was unreliable.
The crux of the appellant’s complaint is that Scovel’s testimony was unduly prejudicial because he is an attorney. In State v. Washington, 229 Kan. 47, 60, 622 P.2d 986 (1981), we recognized the potential prejudice in allowing a prosecuting attorney to testify in a criminal proceeding because of the danger that a jury will attach more importance to the testimony of a lawyer in a case than to an ordinary witness. See also State v. Ryan, 137 Kan. 733, 737, 22 P.2d 418 (1933). In Washington the majority of the court held it was not an abuse of discretion for an assistant district attorney who had not participated in the prosecution to testify as a rebuttal witness that only a small percentage of rape victims she had personally observed in prosecuting rape cases and working as a rape counselor displayed visual evidence of injury. In the instant case Mr. Scovel was not involved in any way in the prosecution of the appellant. He was familiar with the case only through his representation of Delois Carter in the State’s prosecution of her for aiding and abetting in the aggravated battery of Darlene Bruner and Richard Collins.
The admissibility of evidence in the form of an opinion is controlled by K.S.A. 60-456, which reads in pertinent part:
“(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skills, experience or training possessed by the witness.”
Subsection (a) of this statute permits the admission of opinions by nonexperts if the judge finds they may be rationally based upon the perceptions of the witnesses and if helpful to a clear understanding of their testimony. The trial court is vested with wide discretion in this regard. Schmeck v. City of Shawnee, 232 Kan. 11, 31, 651 P.2d 585 (1982); State v. Craig, 215 Kan. 381, 383, 524 P.2d 679 (1974). When it is not shown the witness had sufficient knowledge on which to base an opinion, the opinion testimony is so conjectural it lacks probative value and may be properly excluded by the trial court. State v. Amodei, 222 Kan. 140, 146-47, 563 P.2d 440 (1977). Lay witness opinions are admissible even though they embrace ultimate issues. Schmeck v. City of Shawnee, 232 Kan. at 31; K.S.A. 60-456(d). The rules pertaining to the admissibility of expert opinion testimony under 60-456(b) are substantially the same as those pertaining to lay witness testimony. An expert witness may give an opinion on an ultimate issue only insofar as the opinion will aid the jury in the interpretation of technical facts or assist the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of the evidence, for those matters are clearly within the province of the jury. State v. Hobson, 234 Kan. 133, 160, 671 P.2d 1365 (1983); State v. Moore, 230 Kan. 495, 497, 639 P.2d 458 (1982).
Mr. Scovel was not called as an expert witness nor was he qualified as an expert by the State in any manner. His testimony was limited to relating the types of information he had personally received and reviewed in representing Ms. Carter on the aiding and abetting charge. As Scovel indicated, this information consisted of Carter’s version of the facts, police reports and his own investigation of the facts. He did not, however, indicate the substance of this information. He then expressed his opinion that Carter’s plea of guilty to the aiding and abetting charge was consistent with the information he had concerning the charge. This opinion was elicited for the sole purpose of supporting Carter’s earlier testimony and prior consistent statements made to police to the effect that the appellant had fired at Bruner and Collins with a shotgun while riding in Carter’s car. It also refuted the appellant’s suggestion that Carter had pled guilty to the charge although she had not actually been involved in the crime. This opinion was based on Scovel’s perception of the information concerning the charges against his client only and was helpful in providing the jury a clearer understanding of his testimony. The opinion did not embrace the ultimate issue of the appellant’s guilt or innocence, but was limited only to the basis of Carter’s plea of guilty based upon her incriminating statements made to her attorney and the police, as well as statements of other witnesses.
An instruction was given expressly limiting the use of this testimony to the consideration of Carter’s credibility. The opinion testimony elicited from Mr. Scovel, whether characterized as lay or expert opinion testimony, did not pass on the weight or credibility of the evidence, but merely constituted proper rebuttal evidence for the jury to consider in weighing the credibility of Delois Carter’s testimony. Under K.S.A. 60-445 it is within the broad discretion of the trial court to balance the probative value of evidence against the prejudicial effect it may have on the jury. State v. Green, 232 Kan. 116, 123, 652 P.2d 697 (1982). The evidence presented here was not so prejudicial as to outweigh its probative value and deprive the appellant of a fair trial. Under the facts and circumstances of this case the opinion testimony was properly admitted as rebuttal evidence.
The appellant next contends the trial court erred in denying his motion for a new trial based on newly discovered evidence. That motion was based upon the testimony of Michael Davis who had met the appellant in jail following the trial in this case. Davis worked with Richard Collins at the Twenty Grand Club. Davis testified that one evening during the trial he had a conversation with Collins about the night of the murder and Collins told Davis the person he saw running that night who supposedly committed the murder was definitely not the appellant. Collins testified he told Davis he “wasn’t sure if it was Clyde in the parking lot.” He stated this was consistent with his testimony at trial that he could not identify the person he saw running. He did not tell Davis he thought it was someone other than the appellant. He further testified both men had been drinking prior to the conversation.
The rules relative to the granting of a new trial on the basis of newly discovered evidence, pursuant to K.S.A. 22-3501, were summarized in State v. Ashworth, 231 Kan. 623, 630, 647 P.2d 1281 (1982), as follows:
“ ‘The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L.Ed.2d 95, 94 S.Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan. 158].) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)’ ”
See also State v. Myrick & Nelms, 228 Kan. 406, 423, 616 P.2d 1066 (1980), and cases cited therein; State v. Andrews, 228 Kan. 368, 376-77, 614 P.2d 447 (1980).
The trial court, in denying the motion, concluded Davis’ testimony was impeachment testimony and would not be likely to produce a different result upon retrial. A new trial is not granted on the basis of newly discovered evidence which merely tends to impeach or discredit the testimony of a witness. State v. Foy, 224 Kan. 558, 569, 582 P.2d 281 (1978). The trial testimony of Richard Collins concerning his observations the night of the murder did not serve in any way to identify the murderer. It merely corroborated the physical evidence and testimony of other witnesses as to the events which occurred that night. The trial court apparently had doubts concerning Davis’ credibility and did not believe his testimony would alter the jury’s consideration of the evidence. The trial court’s denial of the motion for a new trial did not constitute an abuse of discretion.
The appellant contends the trial court erred in denying his motion for a change of venue. A hearing on the motion was held prior to trial. The appellant produced various newspaper clippings and records of television and radio newscasts, indicating the appellant was the prime suspect in the slaying, which were published or aired at the time of the homicide and two years later when the appellant was apprehended. A “Crimestoppers” report aired in June 1982, by a television station in Pittsburg, whose audience included the Montgomery County area, quoted Darlene Bruner’s mother as saying “I feel that he’s the guy and I’m proud they got him.” The appellant also offered the testimony of an attorney who practices law in Montgomery County who expressed surprise at the Crimestoppers report because it showed a potential witness (apparently referring to the victim’s mother) expressing an opinion as to the guilt or innocence of the appellant. At least one report described the appellant as a “fugitive” and other reports graphically described the scene of the murder and the cause of death.
This court has repeatedly held that one moving for a change of venue has the burden of establishing prejudice, and that specific facts and circumstances must be established which indicate that it will be practically impossible to obtain an impartial jury in the original county to try the case. State v. Crispin, 234 Kan. 104, 107, 671 P.2d 502 (1983); State v. Rainey, 233 Kan. 13, 14, 660 P.2d 544 (1983). In State v. Crump, 232 Kan. 265, Syl. ¶ 6, 654 P.2d 922 (1982), the following rules were stated concerning a change of venue in criminal cases:
“A change in venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. Media publicity alone has never established prejudice per se. Defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury.”
See also State v. Hill, 233 Kan. 648, 651, 664 P.2d 840 (1983); State v. Ashworth, 231 Kan. at 626; State v. Schlicher, 230 Kan. 482, 484, 639 P.2d 467 (1982); State v. Salem, 230 Kan. 341, 343, 634 P.2d 1109 (1981); State v. Myrick & Nelms, 228 Kan. 406.
Here the appellant did little more than provide copies of factual news reports for the trial court and indicate one viewer’s surprise at the comments of the victim’s mother contained in the report aired after the appellant’s arrest. Excluding the Crime-stoppers report, the reports on the whole appear to be objective accounts of the facts. As we said in State v. Taylor, 234 Kan. 401, 404, 673 P.2d 1140 (1983):
“The publication of articles in a local newspaper and coverage by local radio or TV do not per se establish prejudice. Mass media coverage and the dissemination of the news is a reality. We accept the fact that informed jurors are aware of newsworthy events that occur locally, nationally and world-wide. The law does not require disqualification of an informed juror who is able to give the defendant a fair and impartial trial.”
See also State v. Myrick & Nelms, 228 Kan. at 417.
The appellant requests this court to adopt a rule that upon a showing of overwhelming news coverage of a prejudicial nature, prejudice in the community should be assumed or the burden to show lack of prejudice should shift to the State. This we decline to do. The publicity surrounding the murder of Darlene Bruner does not appear to be unduly prejudicial or overwhelming considering the heinous nature of the crime and the length of time between the commission of the crime and trial. The record of the voir dire indicates the appellant had little difficulty in choosing the jury. Only two jurors were challenged and excused for cause relating to pretrial publicity. The appellant did not renew his motion for change of venue after the voir dire. There has been no showing that overwhelming publicity of a prejudicial nature was present in this case or that prejudice existed which would deny the appellant a fair trial. The trial court did not err in its refusal to grant a change of venue.
As his final point on appeal the appellant contends the trial court erred in imposing the maximum sentence for the aggravated battery. The appellant contends the trial court abused its discretion in not imposing the minimum sentence because no consideration was given to the factors set forth in K.S.A. 21-4606. The appellant points out that the presentence report did not indicate the maximum sentence be imposed. The appellant was sentenced to confinement for not less than five nor more than twenty years. Under K.S.A. 21-4501(c) the appellant could have been sentenced on the aggravated battery, a class C felony, to a minimum of not less than one nor more than five years, and a maximum of not less than ten nor more than twenty years. This sentence was ordered to run concurrently with the life sentence imposed on the first-degree murder charge, which was mandatory under 21-4501(a). The trial court did not state on the record that it had considered the factors enumerated in 21-4606 in imposing sentence. The court specifically found the offenses were committed with a firearm, thereby-making the provisions of the firearms statute, K.S.A. 21-4618, applicable.
This court has long adhered to the rule that a sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive. See State v. Crispin, 234 Kan. 104, Syl. ¶ 7; State v. Coberly, 233 Kan. 100, 110, 661 P.2d 383 (1983). In State v. Buckner, 223 Kan. 138, 151, 574 P.2d 918 (1977), we also stated:
“The legislature has dictated, in K.S.A. 21-4606, certain minimum factors to be considered in imposing sentence. Although the statute may not require it, we feel that when the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the trial court has abused its discretion.”
See also State v. Reeves, 232 Kan. 143, 146, 652 P.2d 713 (1982); State v. Coberly, 233 Kan. at 111.
Although the trial court did not expressly consider the factors set forth in 21-4606 in sentencing the appellant, we do not believe the trial court abused its discretion in imposing a sentence in excess of the minimum allowed under K.S.A. 21-4501(c) on the aggravated battery charge. The evidence indicates the appellant twice made attempts upon the life of Darlene Bruner, the second of which was successful. No mitigating factors appear in the record for fixing a minimum sentence, such as grounds for excusing or justifying the appellant’s criminal conduct or conduct by the victim which induced or facilitated the defendant’s criminal conduct. The two sentences were ordered to run concurrently. Where indeterminate sentences are imposed on the same date and run concurrently, the shorter minimum terms merge in and are satisfied by serving the longest minimum term. K.S.A. 1983 Supp. 21-4608(6)(a). The sentencing statute in effect at the time of this case, K.S.A. 1979 Supp. 22-3717(2)(D) (now K.S.A. 1983 Supp. 22-3717[a]), required that anyone sentenced under 21-4618 (the firearms statute) serve the entire minimum sentence imposed. Under K.S.A. 1979 Supp. 22-3717(2)(A) (now K.S.A. 1983 Supp. 22-3717[b]), an inmate sentenced for a class A felony, i.e., first-degree murder, shall be eligible for parole after serving fifteen years of confinement. Therefore, as a practical matter, the appellant’s life sentence controls the time the appellant will serve in prison and the sentence imposed on the aggravated battery has no bearing on the appellant’s parole eligibility. The sentence imposed was within the limits prescribed by statute. We find no error.
The judgment of the lower court is affirmed. | [
-15,
-22,
-15,
44,
57,
96,
122,
26,
98,
-109,
-78,
91,
-81,
-21,
69,
107,
42,
45,
84,
105,
-93,
-74,
23,
-31,
-14,
51,
51,
-43,
-78,
89,
-66,
-11,
73,
96,
-114,
93,
-26,
10,
-75,
88,
-114,
-128,
-71,
-32,
-61,
66,
-76,
110,
12,
14,
-79,
-66,
-93,
43,
20,
-59,
73,
56,
-5,
45,
112,
121,
-21,
-107,
-4,
16,
-77,
-128,
-66,
33,
-40,
24,
-40,
61,
0,
-8,
115,
-90,
-60,
116,
111,
-119,
12,
102,
99,
53,
-99,
-55,
-24,
-119,
14,
103,
-99,
-89,
25,
73,
65,
44,
-42,
-97,
104,
53,
3,
-12,
-25,
73,
89,
-20,
-119,
-38,
-76,
-111,
76,
120,
-98,
-54,
-29,
-91,
52,
117,
-35,
96,
92,
84,
92,
19,
-98,
-112
] |
The opinion of the court was delivered by
Miller, J.:
This is an appeal by the defendant, King Lincoln-Mercury, Inc. (King), from a judgment entered against it in the district court of Sedgwick County for breach of implied warranty of merchantability in the sale of a used car. Plaintiff, LaVerne L. Dale, was the used car purchaser. The single issue raised by appellant is that the trial court erred in awarding judgment based upon breach of implied warranty of merchantability.
On April 7, 1981, Dale bought a 1978 Buick LeSabre Custom with 32,795 miles on it from King Lincoln-Mercury in Wichita, Kansas. Dale paid almost $5,000 for the car, which was described as a “cream puff,” meaning that it was excellent and in tip-top condition. The following express warranty is handwritten on the face of the sales contract:
“30 Day or 1000 mile Warranty 100% on Drive Line & Air Conditioner.”
Twenty-two days after purchase, the car’s transmission failed, and the $468 repair bill was paid by King under the express warranty. About thirty days later, during a Memorial Day weekend trip to Nebraska, the car’s motor failed. Dale rented a car and drove home to Wichita so that he could be at work the next week. The dealer in Lincoln, Nebraska, to whom Dale had taken the car, said he could not repair it for about a month, so Dale returned to Nebraska, rented a tow-bar and hitch, towed the car to Marion, Kansas, and had it repaired by Webster Auto Service of that city. The engine block was replaced at a cost of $1,213.28.
There was no evidence of misuse of the vehicle by Dale. Also, it developed that there had been major repair to the car before it was acquired by King Lincoln-Mercury. The engine had been repaired five times in 1979; repairs included replacement of the engine block, the camshaft, a cylinder head, and other miscellaneous parts. King, however, was not aware of those repairs and had no knowledge of any defect in the engine when it sold the vehicle to Dale.
Appellant’s primary argument is that the express warranty, written on the face of the sales contract, limits the implied warranty of merchantability. We do not agree.
This was a consumer transaction, and it is governed by the provisions of the Kansas Consumer Protection Act, K.S.A. 50-623 et seq. Under the act, a consumer is defined as an individual who acquires property for personal or family purposes. K.S.A. 50-624(h). A consumer transaction means a sale, for value, of property within this state to a consumer by a supplier. K.S.A. 50-624(c). A supplier is a dealer or seller who, in the ordinary course of business, solicits or engages in consumer transactions. K.S.A. 50-624(i). Dale falls within the definition of a consumer; King Lincoln-Mercury, Inc., falls within the definition of a supplier; and the sale by King, in the ordinary course of its business, was a consumer transaction.
K.S.A. 50-639, a part of the Kansas Consumer Protection Act, deals with warranties. Insofar as it is here applicable, that statute says:
“(a) Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall:
“(1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability and fitness for a particular purpose; or
“(2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.
“(c) A supplier may limit the supplier’s implied warranty of merchantability and fitness for a particular purpose with respect to a defect or defects in the property only if the supplier establishes that the consumer had knowledge of the defect or defects, which became the basis of the bargain between the parties. . . .
“(d) Nothing in this section shall be construed to expand the implied warranty of merchantability as defined in K.S.A. 84-2-314 to involve obligations in excess of those which are appropriate to the property.
“(e) A disclaimer or limitation in violation of this section is void. If a consumer prevails in an action based upon breach of warranty, and the supplier has violated this section, the court may, in addition to any actual damages recovered, award reasonable attorney’s fees and a civil penalty under K.S.A. 50-636, and amendments thereto, or both to be paid by the supplier who caused the improper disclaimer to be written.
“(f) the making of a limited express warranty is not in itself a violation of this section.”
K.S.A. 84-2-314, referred to in K.S.A. 50-639, is a part of the Kansas Uniform Commercial Code. It provides in substance that a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. For goods to be merchantable, they must be at least such as pass without objection in the trade under the contract description, and they must be fit for the ordinary purposes for which such goods are used.
The first section of the Kansas Consumer Protection Act provides:
“This act shall be construed liberally to promote the following policies:
“(c) to protect consumers from unbargained for warranty disclaimers .. . .” K.S.A. 50-623.
In the case of J & W Equipment, Inc. v. Weingartner, 5 Kan. App. 2d 466, 469, 618 P.2d 862 (1980), the court observed that:
“Kansas consumer law has become increasingly protective [in the area of warranties of merchantability] and the Kansas Consumer Protection Act, K.S.A. 50-623 et seq., now prohibits the exclusion, modification or attempt to limit the implied warranties of merchantability and fitness.”
Appellant argues that K.S.Á. 50-639(f) permits the making of limited express warranties, and that when there is a limited express warranty, the implied warranty of merchantability is eliminated. In other words, appellant contends that a supplier or dealer may exclude, modify or otherwise limit the implied warranty of merchantability and fitness for a particular purpose by simply extending to the consumer a limited and narrowly drawn express warranty. We do not agree.
The statute, in clear terms, states that an implied warranty of merchantability may be limited only if the supplier establishes that the consumer had knowledge of the defect or defects. Such was not the case here; Dale had no knowledge that the car’s motor and transmission were faulty. Subsection (d) provides that the implied warranty shall not be expanded “to involve obligations in excess of those which are appropriate to the property.” Again, appellant does not argue that the obligation here involved is excessive or inappropriate to the property.
In the recent case of Stair v. Gaylord, 232 Kan. 765, 659 P.2d 178 (1983), we faced the same argument appellant makes here. We said:
“The KCPA was enacted by the Kansas legislature in 1973 with the objectives, among other things, ‘to protect consumers from suppliers who commit deceptive and unconscionable practices,’ and ‘to protect consumers from unbargained for warranty disclaimers.’ K.S.A. 50-623(fe) and (c). In order to promote these policies the KCPA is to be construed liberally. Willman v. Ewen, 230 Kan. 262, 267, 634 P.2d 1061 (1981).
“The warranties given by both General Irrigation and Goodyear contain statements to the effect that the express warranties made were in lieu of all other warranties expressed or implied. Obviously both appellees were attempting to limit the implied warranties imposed by K.S.A. 84-2-314 and -315 and as such were in violation of the KCPA. The appellees rely on K.S.A. 1982 Supp. 50-639if) which states: ‘The making of a limited express warranty is not in itself a violation of this section.’ This section, however, is not applicable to the present controversy. It merely recognizes that since an express warranty is not required to be made at all, a limited express warranty is proper. It does not allow a supplier tó use a limited express warranty to exclude implied warranties. See Rasor, [Kansas Law of Sales Under the Uniform Commercial Code,] pp. 9-24, 9-25; Clark, ‘Lemon Aid for Kansas Consumers,’ 46 J.B.A.K. 143, 147 (1977).” (Emphasis supplied.) 232 Kan. at 775-776.
The limited express warranty given by the seller in this case is authorized by law, but it cannot limit the implied warranties of merchantability, and it cannot insulate the dealer from the requirement that the car it sold be fit for the ordinary purposes for which automobiles are ordinarily used. A “cream puff,” a relatively low mileage General Motors full-size automobile, represented by the dealer as being in excellent condition when sold, certainly can be expected to contain a motor and transmission which will give the new purchaser more than a few days’ service. Such a vehicle, with defective major components, is patently unmerchantable. The fact that the seller in this case was unaware of the true condition of the car is immaterial, for the act imposes no requirement of intent or prior knowledge on the part of a supplier. Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d 131, 133, 561 P.2d 907 (1977).
The sale of used cars by dealers in Kansas is no longer governed by the maxim caveat emptor — let the buyer beware. The consumer protection act now places the responsibility upon the seller, not the purchaser, to determine the quality and condition of the goods. Still, the implied warranty of merchantability varies with the particular car. A late model, low mileage car, sold at a premium price, is expected to be in far better condition and to last longer than an old, high mileage, “rough” car that is sold for little above its scrap value. However, as noted above, there is no contention in this case that the implied warranty of merchantability had “expired.”
Counsel have argued various provisions of the Uniform Commercial Code, K.S.A. 84-1-101 et seq., and the Magnuson-Moss Act, 15 U.S.C. § 2301 et seq., but a discussion of those laws would only prolong this opinion and would not change the result.
We hold that the trial court did not err in awarding judgment to the plaintiff, LaVerne L. Dale, and against the defendant, King Lincoln-Mercury, Inc., for breach of the implied warranty of merchantability. We therefore affirm the judgment. | [
-16,
121,
88,
-116,
9,
-30,
34,
26,
93,
-19,
37,
-41,
-85,
-62,
20,
105,
-17,
61,
116,
106,
69,
-77,
7,
19,
-46,
-109,
-7,
-35,
-71,
73,
-28,
126,
12,
32,
-118,
-123,
38,
-56,
-35,
88,
-50,
6,
57,
-28,
-39,
91,
52,
-88,
68,
73,
97,
-122,
99,
62,
27,
-49,
45,
40,
-23,
41,
-56,
-16,
43,
-115,
127,
18,
48,
6,
-100,
37,
-8,
14,
-112,
-112,
40,
-7,
114,
-74,
-58,
-68,
47,
-103,
41,
38,
102,
-94,
21,
-51,
-40,
-72,
46,
-46,
15,
39,
-106,
120,
42,
103,
-73,
-99,
125,
18,
7,
-4,
-6,
21,
31,
101,
3,
-53,
-110,
-63,
109,
112,
-110,
8,
-18,
-125,
-74,
113,
-49,
-10,
92,
87,
59,
-69,
78,
-94
] |
The opinion of the court was delivered by
McFarland, J.:
This case involves two interlocutory appeals, pursuant to K.S.A. 60-2102(7») and Supreme Court Rule 4.01 (230 Kan. lii), concerning the propriety of some of the district court’s rulings concerning implied warranty and allowing amendment of pleadings after the alleged expiration of the statute of limitations. The Court of Appeals permitted the appeals to be taken and the case was subsequently transferred to this court for determination.
Plaintiff Professional Lens Plan, Inc., is a corporation wholly owned by plaintiffs Dr. Ronald E. Price and Ann M. Price. Loren H. Shellabarger is the operator of Shellabarger Systems, a company which consults with, and assists businesses in selecting and programming computers. Sometime in 1979, Dr. Price and Mr. Shellabarger entered into an agreement whereby Shellabarger would recommend appropriate computer hardware for Professional Lens Plan, Inc. Five computer systems were presented to Dr. Price and he selected a computer manufactured by Ohio Scientific, a corporation.
Professional Lens Plan, Inc., reached an agreement with Impact Systems for acquisition of an Ohio Scientific computer on or about August 15, 1979. For purposes of tax benefits to the ultimate purchaser and other business considerations, Impact Systems purchased the computer from Ohio Scientific but sold the same to its wholly owned subsidiary, defendant Polaris Leasing Corporation. Polaris then executed an agreement with Professional Lens whereby it would lease the equipment to Professional Lens.
The computer was delivered in September, 1979, to Professional Lens by Impact (the computer having never been in the possession of Polaris). Problems in the operation of the computer commenced shortly after its delivery which were ultimately traced, at least in part, to an allegedly defective hard disc, a computer component part, which had been purchased by Ohio Scientific from the disc’s manufacturer, Okidata Corporation.
On June 12, 1980, plaintiff Professional Lens Plan, Inc., filed this action against defendant Polaris Leasing Corporation alleging the computer was defective and, as a result thereof, plaintiff corporation had suffered lost profits of $43,356.00 and incurred $11,911.31 for such expenses as computer forms, equipment, lease payments made, consultation and programming, insurance, additional office space, additional rent, telephone charges and labor. These figures were amended upward on the pretrial questionnaire filed herein by Professional Lens. On July 15, 1980, defendant Polaris Leasing filed a third-party complaint against Impact Systems and Ohio Scientific for indemnity of any judgment rendered against it in favor of plaintiff Professional Lens. On the same day, Professional Lens filed a motion to join Dr. and Mrs. Price as additional parties plaintiff (this motion was granted on February 26, 1981). Plaintiffs Price are in this litigation as guarantors of the lease (purchaser’s) agreement. Third-party defendant Impact Systems, on August 21, 1980, filed a cross-petition against third-party defendant Ohio Scientific for indemnity for any judgment it might have to pay third-party plaintiff, Polaris Leasing. On March 5, 1981, third-party defendant Ohio Scientific filed a third-party petition against Okidata Corporation.
On September 3, 1981, Judge Innes overruled Okidata’s motion to dismiss the third-party petition against it holding:
“[Biased upon Kennedy v. City of Sawyer, 228 Kan. 439, 618 P2d 788 (1980) indemnification is inappropriate, but the Motion to Dismiss will not be granted. Instead, prior to trial, the Court will properly align the parties for purposes of submitting the issue of comparative negligence to the jury.” (Emphasis supplied.)
Thereafter a snowstorm of summary judgment motions was filed. The case was reassigned to Judge Mershon. On February 28, 1983, Judge Mershon issued his 48-page “Court Journal Entry and Memorandum of Decision on Motion for Reconsideration [of the September 3, 1981, decision] and on All Motions for Summary Judgment.” Without attempting to summarize the entire tome, the key holdings for purposes of these interlocutory appeals are as follows:
1. The September 3, 1981, decision was rescinded with the court concluding the laws of breach of contract, breach of warranty and indemnity, rather than comparative negligence, were to be applied.
2. Plaintiff Professional Lens would be permitted to amend its pleadings by bringing an action directly against Okidata and Ohio Scientific despite the nature of the damages, the lack of privity and the alleged running of the statute of limitations; and
3. Impact’s motion for summary judgment against Polaris was sustained on the basis there .was no buyer-seller relationship between the two as Polaris was merely the financing agent in the transaction between Impact and Professional Lens.
Interlocutory appeals were duly perfected by Okidata Corporation and Professional Lens. We shall first discuss the issues raised by Okidata.
The first such issue concerns whether the district court erred in finding Professional Lens had a cause of action against Okidata. Stated more specifically, the question is whether Kansas permits a corporate ultimate purchaser, who has incurred only economic loss, as opposed to personal injury or property damage, to recover on theories of breach of implied warranty of fitness and merchantability, from a manufacturer with whom the ultimate purchaser was not in contractual privity.
Privity of contract is defined by Black’s Law Dictionary 1362 (4th ed. rev. 1968) as follows:
“Privity of contract is that connection or relationship which exists between two or more contracting parties. It is essential to the maintenance of an action on any contract that there should subsist a privity between the plaintiff and defendant in respect of the matter sued on.”
In Booth v. Scheer, 105 Kan. 643, 185 Pac. 898 (1919), 8 A.L.R. 663, the general common law rule requiring privity in sales contracts was stated as follows:
“Ordinarily there is no privity of contract between the original vendor of personal property and third persons who may purchase or acquire the property from the original vendee; and the original vendor’s warranty is a personal obligation between him and his own vendee, and it does not run with the property like covenants concerning real estate.” Syl. ¶ 1.
See also Lumber Co. v. Mercantile Co., 114 Kan. 10, 216 Pac. 815, modified 114 Kan. 17 (1923), 35 A.L.R. 242.
Problems arose with the strict application of the requirement of privity where manufacturers sold inherently dangerous products to dealers who, in turn, sold them to consumers. An exception to the rule requiring privity was frequently held to exist in situations where a manufactured human foodstuff caused personal injury by virtue of a defect. In Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P.2d 82 (1967), this court was asked to impose an implied warranty, in the absence of contractual privity, for defectively manufactured animal vaccines which resulted in death and disease to plaintiff s cattle. The court, in Chandler, analyzed the law of implied warranty as follows:
“Where personal injury or death is caused by unwholesome or contaminated food or drink, we have consistently held that liability may be imposed on the basis of an implied warranty that the food is fit for human consumption. (Parks v. Pie Co., 93 Kan. 334, 144 Pac. 202; Challis v. Hartloff, 136 Kan. 823, 18 P.2d 199; Stanfield v. F. W. Woolworth Co., 143 Kan. 117, 53 P.2d 878; Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P.2d 930; Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan. 845, 308 P.2d 150; Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P.2d 633; Cernes v. Pittsburg Coca Cola Bottling Co., 183 Kan. 758, 332 P.2d 258; Rupp v. Norton Coca-Cola Bottling Co., 187 Kan. 390, 357 P.2d 802; Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 357 P.2d 804.) Likewise, an implied warranty has been extended to include beverage containers (Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887) as well as hair preparations (Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P.2d 413; Patterson v. Weyer, Inc., 189 Kan. 501, 370 P.2d 116).
“An implied warranty does not arise from any agreement, as such, between the parties, but is imposed by operation of law on the basis of public policy for the protection of the people. (Connell v. Norton Coca-Cola Bottling Co., supra; Cernes v. Pittsburg Coca Cola Bottling Co., supra; Graham v. Bottenfield’s, Inc., supra.) Thus privity of contract is not essential to recovery against the manufacturer and each intermediate dealer, as well as the retailer. (Rupp v. Norton Coca-Cola Bottling Co., supra, and cases therein cited.) The rule is well stated in Swengel v. F. & E. Wholesale Grocery Co., supra, as follows:
“ ‘Where articles of food for human consumption are manufactured or packed by a manufacturer or packer, and by a series of transactions reach a retail dealer who sells to the consumer, the manufacturer or packer, each intermediate dealer and the retail seller impliedly warrant that such articles of food are wholesome and fit for immediate human consumption.’ (Syl. ¶ 2.)
“In B. F. Goodrich Company v. Hammond, 269 F.2d 501 (10th Cir. 1959), a husband and wife were killed in an automobile accident resulting from the blowout of a tire purchased by the husband from the defendant company. Applying Kansas law, the court found there was an implied warranty of fitness of an automobile tire for the purpose for which it was designed, i.e., as a tire protected against sudden blowouts, citing Rig & Reel Co. v. Oil & Gas Co., 111 Kan. 37, 205 Pac. 1020, and held that since implied warranty in this state was imposed by operation of law, privity was not essential, and the warranty ran to the wife of the purchaser of the tire. The case was cited with approval in Rupp v. Norton Coca-Cola Bottling Co., supra, which held an implied warranty imposed by law extended to the sister of the purchaser, notwithstanding the lack of privity of contract. We have likewise held that in an action to recover on a breach of implied warranty, neither the contributory negligence of the user nor evidence negativing the lack of due care on the part of the manufacturer, distributor or retailer constitutes a defense. (Challis v. Hartloff, supra; Simmons v. Wichita Coca-Cola Bottling Co., supra.)
“Courts in other jurisdictions in which recovery has been sought against the manufacturer and seller of animal foods and medicines for breach of an implied warranty of fitness vary widely in their holdings and reasonings (see Anno. 81 A.L.R. 2d 138, §§ 11, 12; 3 Hursh, American Law of.Products Liability, ch. xxi). We note, however, that there has been a continuous eroding of the doctrine of caveat emptor in the area under consideration.” 198 Kan. at 579-80. (Emphasis supplied.)
The court then reviewed animal food and medicine cases from other jurisdictions and held;
“[T]he same public policy consideration necessary for the protection of human beings involving the manufacture and sale of food and drink for human consumption is likewise present in cases dealing with animal foods and medicines. Domestic animals constitute the backbone of farm economy in many of the agricultural areas of this country. In our system of enterprise where the potential purchaser is subjected to the advertising pressures of manufacturers, distributors and retailers in promoting the sale of a product, it is of necessity that the purchaser be provided a measure of assurance that the product is fit for the ordinary purposes for which it is sold. Medicines and vaccines for the treatment of domestic animals are manufactured and sold for the purpose and with the expectation they will be used as such, and public policy dictates that if such articles are unfit for the use contemplated by all parties in the chain of sale, then the purchaser must be protected. Accordingly, we are of the opinion there is no compelling reason in our modern-day system of merchandising to refuse to extend an implied warranty of fitness to include animal vaccines.
“Further, we hold that the implied warranty of fitness runs not only from the manufacturer who created the defective product, but also from the distributor-wholesaler and the retailer as well.” 198 Kan. at 582. (Emphasis supplied.)
Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P.2d 380 (1967), involved a personal injury action wherein an attempt was made to extend implied warranty to a recapping device for soda pop, known as “Handy Dandy,” to its manufacturer who was not in contractual privity with the plaintiff-consumer. The court reasoned;
“We now turn our attention to the liability of Bellern, the manufacturer of the ‘Handy Dandy.’ Plaintiff sought recovery against said defendant on the theory of breach of implied warranty in that the recapping device was defectively manufactured and designed. The record is barren of evidence showing the instru ment was defectively manufactured, so we need only concern ourselves with defective design. It is not entirely clear on what basis the trial court sustained the motion for directed verdict on behalf of Bellern. Irrespective of that fact, we think the propriety of the ruling should be considered from the standpoint of whether or not as a matter of law plaintiff may predicate liability against the defendant for breach of an implied warranty of manufacturer-design.
“Plaintiff has cited us to no authority holding that there is an implied warranty against defective design on the part of a manufacturer of a simple household device such as the ‘Handy Dandy,’ and our limited research has revealed none. We gather from plaintiff s brief and argument he is asking us to recognize and apply an implied warranty to this device upon the same public policy considerations that were used in cases involving food, drink, beverage containers, hair preparations, and recently, animal vaccine. Conversely, defendant suggests that were we to extend an implied warranty against defective design to a product of this type, and thus further carve out an exception to the common-law rule of caveat emptor, it would virtually amount to the wholesale lifting of the privity requirement in this state on all products.
“The status of our law on implied warranty was thoroughly explored in Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P.2d 82, and the reader is directed to that opinion for a review of our decisions. The cases therein cited and discussed illustrate that where an implied warranty was found, it was imposed by operation of law on the basis of public policy, and consequently, privity of contract was not essential for recovery against the manufacturer. These exceptions to the common-law rule have been born on a case-by-case basis as the need for protection to the consuming public demanded, and with each exception the privity requirement has fallen.
“ The nature of the product involved in each case has been, as it should be, of manifest importance in determining whether or not warranty protection should be extended as a matter of public policy. The lack of similarity of the ‘Handy Dandy’ and the products involved in those cases reviewed in Chandler is readily apparent. The product here is quite unlike an automobile tire which, from its very nature, could be imminently dangerous to life and limb if defectively designed. (See B. F, Goodrich Company v. Hammond, 269 F.2d 501 [10th Cir. 1959].) We have here a product likely found in many households. Its only feature possessing any uniqueness is that it may be used to manually recap a beverage bottle. It is free from working parts, and simple in design. Inherently dangerous characteristics are lacking, and common sense dictates its limitations of use. That the device may become imminently dangerous if defectively designed, and thus bring about injury, is difficult to imagine, and at best, is a remote possibility. The same may be said of many common tools, such as a hammer, kitchen knife, or ice pick. The law, however, does not require that every product be accident-proof or totally incapable of doing harm. It would be unreasonable, in our opinion, to hold the manufacturer of this simple household device responsible for every injury which might ensue from mishap in its use on the ground that it could have been designed safer or completely accident-free.” 199 Kan. at 647-48. (Emphasis supplied.)
The court then held as a matter of law plaintiff could not recover from defendant manufacturer on a theory of implied warranty.
The incidents giving rise to the litigation in both Chandler v. Anchor Serum Co., 198 Kan. 571, and Evangelist v. Bellern Research Corporation, 199 Kan. 638, occurred before this state’s adoption of the Uniform Commercial Code (K.S.A. 84-1-101 et seq.) effective in 1966.
K.S.A. 84-2-318 sets limits on persons who may assert breach of implied warranty actions under 84-2-314 (merchantability) and 84-2-315 (fitness for a particular purpose). K.S.A. 84-2-318 provides:
“A seller’s warranty whether express or implied extends to any natural person who may reasonably be expected to use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.” (Emphasis supplied.)
K.S.A. 84-2-318 is Alternative B of U.C.C. 2-318 (there are two other alternatives, A and C). Alternative B has been adopted by nine states and the Virgin Islands, some jurisdictions making a few modifications. White & Summers, Uniform Commercial Code § 11-3, p. 404, n. 18 (2d ed. 1980); 3 Anderson, Uniform Commercial Code § 2-318:3 (3rd ed. 1983).
Alternative B (84-2-318) extends express or implied warranties to natural persons who may reasonably be expected to use the goods and who are injured in person. Alternative A, by comparison, is more restrictive, stating:
“A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.” (Emphasis supplied.)
Alternative C broadens the scope of those who may seek recovery on warranty by stating:
“A seller’s warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section with respect to injury to the person of an individual to whom the warranty extends.” (Emphasis supplied.)
As noted in the Official UCC Comment 2 following 84-2-318:
“The purpose of this section is to give certain beneficiaries the benefit of the same warranty which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to ‘privity.’ It seeks to accomplish this purpose without any derogation of any right or remedy resting on negligence. It rests primarily upon the merchant-seller’s warranty under this Article that the goods sold are merchantable and fit for the ordinary purposes for which such goods are used rather than the warranty of fitness for a particular purpose. Implicit in the section is that any beneficiary of a warranty may bring a direct action for breach of warranty against the seller whose warranty extends to him.”
Professional Lens is the buyer of the computer and hence any question of extending the buyer’s warranty to others (the whole purpose of 84-2-318) does not arise in regard to Professional Lens. Additionally, if same did apply in principle, Professional Lens is not a “natural person” who was personally injured. Determination of the issue before us is not a matter of statutory construction.
K.S.A. 84-2-318 has been characterized as relating wholly to “horizontal privity,” that is, extending the class of plaintiff beyond that of the actual purchaser. The question of whether a plaintiff can extend the class of defendants beyond that of the seller is sometimes characterized as a matter of “vertical privity.” See Rasor, Kansas Law of Sales Under the Uniform Commercial Code § 9-6 (1981). These terms are technically misnomers as imposition of implied warranties between persons who are in the buyer-seller relationship is an exception to the requirement of privity.
The propriety of allowing a non-privity ultimate purchaser who has suffered only direct or consequential economic loss to recover from a remote manufacturer of an allegedly defective product under an implied warranty theory has been a matter of considerable debate within the legal profession. See for example Rasor, The History of Warranties of Quality in the Sale of Goods: Contract or Tort? — A Case Study in Full Circles, 21 Washburn L.J. 175 (1982); Zammit, Manufacturers' Responsibility for Economic Loss Damages in Products Liability Cases: What Result in New York?20 N.Y.L.F. 81 (1974); Comment, The Demise of Vertical Privity: Economic Loss Under the Uniform Commercial Code, 2 Hofstra L. Rev. 749 (1974); Speidel, Products Liability, Economic Loss and the UCC, 40 Tenn. L. Rev. 309 (1973); Comment, The Vexing Problem of the Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L. Rev. 145 (1972); Comment, Implied Warranties and “Economic Loss", 24 Raylor L. Rev. 370 (1972); Comment, Manufacturers ’ Liability to Remote Purchasers for "Economic Loss” Damages — Tort or Contract? 114 U. Pa. L. Rev. 539 (1966), Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L. Rev. 917 (1966). See generally White, Contract Law in Modern Commercial Transactions, An Artifact of Twentieth Century Business Life? 22 Washburn L. J. 1 (1982); and Murray, The- Article 2 Prism: The Underlying Philosophy of Article 2 of the Uniform Commercial Code, 21 Washburn L. J. 1 (1981). See also Annot., Privity of Contract as Essential in Action Against Remote Manufacturer or Distributor for Defects in Goods Not Causing Injury to Person or to Other Property, 16 A.L.R.3d 683; Annot., Third-Party Beneficiaries of Warranties Under UCC § 2-318, 100 A.L.R.3d 743.
White & Summers, Uniform Commercial Code (2d ed. 1980), has squarely addressed the issue of direct and consequential economic loss damages of a non-privity ultimate purchaser in implied warranty actions. Speaking of direct economic loss, Messrs. White and Summers have said:
“[T]he law permits a non-privity buyer to recover for direct economic loss if the remote seller has breached an express warranty. Where the buyer cannot show reliance on express representations by the remote seller, however, the case law is in conflict. The majority of courts still appear to hold that absent such reliance, a non-privity buyer, whether commercial or consumer, cannot recover for direct economic loss on either an express or an implied, warranty theory. We have found only two commercial cases to the contrary.
“A minority of courts, however, permit ‘warranty’ recovery for direct economic loss by non-privity buyers who are ordinary consumers.” § 11-5, pp. 407-08. (Emphasis supplied.)
Of consequential economic loss White and Summers have stated:
“Consequential economic loss includes loss of profits, loss of good will or business reputation and other loss proximately resulting from a defective product beyond direct economic loss as defined in the preceding section (loss of bargain, cost of repair, replacement cost, and the like). Recall that the Code neither authorizes nor bars recovery by a non-privity purchaser for economic loss— whether consequential or direct. The vast majority of courts do not allow non-privity consumer purchasers to recover for consequential economic loss. Even courts that allow non-privity consumer purchasers to recover for direct economic loss do not permit such purchasers to recover for consequential economic loss. Note that consumer buyers ordinarily do not suffer any consequential economic loss and only seek recovery for direct economic losses such as loss of bargain or costs of repair.
“We concur in this majority view.” § 11-6, p. 409. (Emphasis supplied.)
In State ex rel Western Seed v. Campbell, 250 Or. 262, 442 P.2d 215 (1968), cert. denied 393 U.S. 1093 (1969), the Oregon Supreme Court commented:
“A buyer whose seller proves to be irresponsible will understandably seek relief further afield. But to allow a nonprivity warranty action to vindicate every disappointed consumer would unduly complicate the code’s scheme, which recognizes the consensual elements of commerce. Disclaimers and limitations of certain warranties and remedies are matters for bargaining. Strict-liability actions between buyers and remote sellers could lend themselves to the proliferation of unprovable claims by disappointed bargain hunters, with little discernible social benefit. Because the buyer and his seller will normally have engaged in at least one direct transaction, litigation between these parties should ordinarily be simpler and less costly than litigation between buyer and remote seller. For these reasons we retain the rule stated in Price v. Gatlin, [241 Or. 315, 405 P.2d 502 (1965)]: Where the purchaser of an unmerchantable product suffers only loss of profits, his remedy for the breach of warranty is against his immediate seller unless he can predicate liability upon some fault on the part of a remote seller.” 250 Or. at 267-68.
White & Summers has observed:
“Even if relevant policies justify allowing non-privity consumers to recover for direct economic loss, there can be no justification in the usual case for allowing non-privity consumer buyers to recover for consequential economic losses they sustain. Remote buyers may use a seller’s goods for unknown purposes from which enormous losses might ensue. Since the remote seller cannot predict the purposes for which the goods will be used he faces unknown liability and may not be able to insure himself. Insurers are hesitant to insure against risks they cannot measure. Moreover, here more than in personal injury and property damage cases, it is appropriate to recognize the traditional rights of parties to make their own contract. If a remote seller wishes to sell at a lower price and exclude liability for consequential economic loss to sub-purchasers, why should we deny him that right? Why should we design a system that forces him to bear the unforeseeable consequential economic losses of remote purchasers? Indeed, by forcing the buyer to bear such losses we may save costly law suits and even some economic losses against which buyers, knowing they have the responsibility, may protect themselves. In short, we believe that a buyer should pick his seller with care and recover any economic loss from that seller and not from parties remote from the transaction.” § 11-6, pp. 409-10. (Emphasis supplied.)
The economic loss claimed by Professional Lens appears to be consequential rather than direct under the following White & Summers, Uniform Commercial Code (2d ed. 1980) definition:
“Direct economic loss . . . includes ordinary loss of bargain damages: the difference between the actual value of the goods accepted and the value they would have had if they had been as warranted. Courts will also frequently measure direct economic loss by the purchaser’s cost of replacement or cost of repair. ‘Consequential economic loss,’ on the other hand, encompasses all eco nomic harm a purchaser suffers beyond direct economic loss as defined above. Thus, consequential economic loss includes loss of profits resulting from failure of the goods to function as warranted, loss of goodwill and loss of business reputation.” § 11-5, p. 406.
However for purposes of this issue we need only utilize the general term, economic loss, as we see no valid reason for distinguishing between direct and consequential economic loss in the circumstances herein.
In Owens-Corning Fiberglas v. Sonic Dev. Corp., 546 F. Supp. 533 (D. Kan. 1982), Judge Saffels was called upon to decide whether Kansas law permitted a corporate buyer to maintain an action against a non-privity manufacturer for only economic loss based on breach of implied warranties of fitness and merchantability. In holding such action was not proper, Judge Saffels reasoned:
“The issue is whether or not privity of contract is a requirement in Kansas for a claim based on breach of implied warranty. We hold that because plaintiff did not buy the air compressors directly from Quincy, but instead bought them from Sonic, an intermediary in the chain of distribution, there is no privity between plaintiff and Quincy, and thus no cause of action against Quincy for breach of an implied warranty.
“K.S.A. 84-2-318 provides that lack of privity is not a bar to recovery by a natural person who is personally injured by a breach of warranty. Plaintiff is, of course, not a natural person and did not suffer personal injury because of the breach of warranty. Therefore, lack of privity of contract bars this lawsuit. Citizens State Bank v. Martin, 227 Kan. 580, 589-90, 609 P.2d 670 (1980).
“Breach of warranty actions, like all breach of contract actions, must be brought by parties who are in privity of contract. Evangelist v. Bellern Research Corp., 199 Kan. 638, 647, 433 P.2d 380 (1967). As an exception to the privity requirement, no privity is required where personal injury is involved. B. F. Goodrich Co. v. Hammond, 269 F.2d 501 (10th Cir. 1959). Privity is also not required in personal injury cases involving implied warranties that food is fit for human consumption, unwholesome drink containers, and health preparations intended for human use. See, e.g., Chandler v. Anchor Serum Co., 198 Kan. 571, 579-80, 426 P.2d 82 (1967), for cited cases. K.S.A. 84-2-318 was not intended to alter these common-law rules. See also Kansas Code Comment to K.S.A. 84-2-318.
“Furthermore, the Kansas Legislature has rejected a draft version of § 2-318 [Alternative C] which would have extended implied warranties to all foreseeable product users, even if no personal injury was involved. For these reasons, we hold plaintiff cannot maintain his action for breach of implied warranty of fitness for purpose.
“Our preceding remarks apply equally to plaintiff s claims against Quincy for breach of implied warranty of merchantability. Absent privity, plaintiff cannot maintain a cause of action for breach of this implied warranty against Quincy.” 546 F. Supp. at 541. (Emphasis supplied.)
In Hole v. General Motors Corp., 83 App. Div. 2d 715, 442 N.Y.S.2d 638 (1981), the New York court reached a similar result in interpreting that state’s version of Alternative B of U.C.C. § 2-318 (N.Y. U.C.C. § 2-318 [McKinney, 1983 Supp.]), the alternative enacted in Kansas (84-2-318). In Hole, the New York court declared:
“Our interpretation of the above statute [U.C.C. § 2-318] leads us to conclude that it does not permit a plaintiff, not in privity, to recover upon the breach of an implied warranty of merchantability unless the claim of the remote user is for personal injuries. In Potsdam Welding & Mach. Co. v. Neptune Microfloc (57 AD2d 993 [, 394 N.Y.S.2d 744 (1977)]), without specifically deciding whether section 2-318 of the Uniform Commercial Code or its amended version (L 1975, ch 774, § 1) applied, we held that a cause of action based on the breach of an implied warranty does not exist when there is no seller-buyer relationship or sales contract between the parties and the plaintiff is not ‘injured in person’ (see Mendelson v. General Motors Corp., 105 Misc 2d 346 [, 432 N.Y.S.2d 132 (1980), aff’d 81 App. Div. 2d 831 (1981)]; Maure v. Fordham Motor Sales, 98 Misc 2d 979 [, 414 N.Y.S.2d 882 (1979)]). The statute is clear and affords relief to one ‘who is injured in person’. To extend the seller’s implied warranty to remote parties not in privity so as to permit recovery for economic loss would impair traditional rights of parties to make their own contract and discard the principle that a buyer should pick his seller with care and recover any economic loss from that seller. While the citadel of privity has been shaken (Randy Knitwear v. American Cyanamid Co., 11 NY2d 5 [, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962)]), it has not been altogether razed . . . .” 83 App. Div. 2d at 716. (Emphasis supplied.)
Public policy reasons are the basis on which implied warranties have been extended to non-privity manufacturers whose inherently dangerous products cause physical injuries to buyers. However, imposing implied warranties on non-privity manufacturers for a buyer’s economic loss is a major step, not to be taken lightly. If contractual privity is not necessary to maintain an action for breach of an implied warranty of fitness (84-2-315), how is it possible for a remote seller to have reason to know any particular purpose for which its goods are required by an unknown ultimate buyer? What is the time of contracting under 84-2-315 between a remote manufacturer and an ultimate purchaser? How does a buyer rely upon the skill or judgment of a seller it has never met or had any dealing with and maybe doesn’t even know the existence of? The problems do not end with 84-2-315, they only begin. For example, how is a remote manufacturer to afford itself of the ability to exclude or modify warranties under 84-2-316, when the remote manufacturer does not know to whom it must exclude or modify its warranties ? In turn, how is an ultimate purchaser, pursuant to 84-2-607(3)(c), to give notice of defect to a remote manufacturer whom it does not know? Further, how is 84-2-719 authorizing contractual modification or limitation of remedy to operate between parties who have not dealt directly with each other? Specifically, how is a remote manufacturer to avail itself of 84-2-719(3) which permits limitation or exclusion of consequential damage liability? An across-the-board extension of implied warranties to non-privity manufacturers or sellers, without regard to the nature of either the involved product or the type of damage sought, would spawn numerous problems in the operation of Article 2 of the Uniform Commercial Code. See generally Murray, The Article 2 Prism: The Underlying Philosophy of Article 2 of the Uniform Commercial Code, 21 Washburn L.J. 1 (1981).
The computer and its component part, the hard disc, are clearly not products which are inherently dangerous. Here damages are sought only for economic loss, no personal injuries or property damage being involved. We find no public policy dictates extending implied warranties of fitness and merchantability to the non-privity manufacturers herein.
We conclude implied warranties of fitness and merchantability are not extended to a remote seller or manufacturer of an allegedly defective product, which is not inherently dangerous, for only economic loss suffered by a buyer who is not in contractual privity with the remote seller or manufacturer. Accordingly the district court erred in holding that Professional Lens had a cause of action against Okidata Corporation for economic loss based on breach of implied warranty.
The second issue may be stated as follows: In the event this court concludes Professional Lens has a cause of action against Okidata based on breach of implied warranties, are warranty and damage limitations contained in Okidata’s sale of the hard disc to Ohio Scientific binding upon Professional Lens, the ultimate purchaser? Such issue, then, relates to certain defenses Okidata might utilize in defending against Professional Lens’ action against Okidata. We have concluded in the foregoing issue that Professional Lens has no cause of action against Okidata. Therefore, this issue is moot.
The third issue is whether the district court erred in permitting Professional Lens to amend its pleadings after the expiration of the applicable statute of limitations and bring an action directly against third-party defendants Okidata Corporation and Ohio Scientific for breach of implied warranties.
The basic issue is whether the applicable statute of limitations is three years (K.S.A. 60-512) or four years (K.S.A. 84-2-725). If the applicable statute is four years, then it is conceded the amendments were timely. If three years is the proper statute of limitations, then the amendments came after the expiration of the statute of limitations, and consideration is sought of complex arguments relative to the relation back of amendments and a form of estoppel arising from the district court’s ruling of September 3, 1981 (later rescinded).
Here again, this court’s previous determination Professional Lens has no cause of action against Okidata renders this issue as it relates to Okidata moot. However, it would be inappropriate to move to the next issue without reference to the procedural problems that exist in this case. Only Okidata sought an interlocutory appeal on the first three issues raised in this case and the district court granted the right to Okidata alone to take this appeal on these issues. Ohio Scientific is an appellee herein and is not an opposing party to any position of appellant Okidata in this appeal. Notwithstanding these facts, Ohio Scientific wears the same shoes as does Okidata as to issues number one (implied warranty) and three (statute of limitations). Ohio Scientific has filed a brief herein which essentially is a “me too” to Okidata’s brief. Despite the procedural problems in the way the matter comes before us, we conclude judicial economy and the best interests of the litigants would be better served by simply declaring the lack of privity between Professional Lens and Ohio Scientific defeats Professional Lens’ claims against Ohio Scientific for breach of implied warranties on the rationale set forth in issue number one herein. Therefore, the statute of limitations issue is also moot as to Ohio Scientific..
This concludes the discussion of all issues raised by Okidata in its interlocutory appeal.
The final issue is the only issue raised by Professional Lens Plan, Inc., in its interlocutory appeal and is stated as follows: In light of the trial court’s ruling sustaining Impact Systems’ motion for summary judgment against Polaris Leasing in this case, does privity of contract exist between plaintiff and Impact Systems?
Interlocutory appeals are governed by K.S.A. 60-2102(&) as follows:
“When a district judge or associate district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, said judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten (10) days after the entry of the order under such terms and conditions as the supreme court may fix by rule. Application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or associate district judge or an appellate court or a judge thereof shall so order. (Emphasis supplied.)
See Supreme Court Rule 4.01 (230 Kan. lii) which sets forth the procedure to be followed.
As will be recalled, Polaris Leasing brought Impact Systems into this litigation as a third-party defendant. Impact Systems was granted summary judgment on the third-party petition on the basis Polaris Leasing was not, in fact, the purchaser of the computer from Impact Systems but was only the financing agent. Hence the court reasoned there could be no implied warranties between Impact Systems and Polaris Leasing. In this interlocutory appeal no one is challenging the propriety of this determination. Rather, Professional Lens, who was not a party to the summary judgment, is asking this court to extend the district court’s rationale and find, as a matter of law, Professional Lens and Impact Systems are in a buyer-seller relationship and hence there is privity between them. This is a matter which was not determined by the district court.
We conclude this issue is not the proper subject of an interlocutory appeal and, accordingly, we have no jurisdiction to determine it. The interlocutory appeal of Professional Lens must be dismissed.
In the interlocutory appeal of Okidata Corporation, the order permitting Professional Lens Plan, Inc., to bring a breach of implied warranty action against Okidata Corporation and Ohio Scientific is vacated. The interlocutory appeal of Professional Lens Plan, Inc., is dismissed. | [
-80,
-8,
93,
-116,
24,
98,
48,
122,
93,
103,
-89,
87,
-99,
-46,
-115,
107,
55,
61,
-60,
110,
87,
-29,
83,
98,
-42,
-69,
-5,
-43,
-79,
-51,
-28,
80,
77,
36,
-118,
-123,
-62,
-126,
77,
-42,
-42,
6,
-69,
-20,
-47,
98,
114,
106,
-80,
75,
49,
-113,
53,
45,
30,
-57,
9,
42,
-99,
40,
73,
-15,
-85,
-115,
127,
18,
48,
16,
-104,
69,
-40,
15,
-104,
-71,
8,
-24,
18,
-74,
-122,
-12,
107,
-71,
-128,
99,
98,
101,
-59,
-19,
-4,
-104,
78,
89,
-97,
33,
-105,
24,
32,
33,
-74,
31,
112,
22,
-119,
126,
-18,
5,
31,
109,
15,
-53,
-74,
-109,
-49,
118,
14,
3,
-17,
-109,
50,
112,
-51,
-62,
94,
70,
122,
23,
74,
-110
] |
The opinion of the court was delivered by
Miller, J.:
This is an appeal by B. B. Andersen Construction Company, Inc. (Andersen), the general contractor on a construction project, from an order of the Neosho County District Court confirming an arbitrators’ award. The appellee is the Board of County Commissioners of Neosho County, Kansas, acting for and on relation of the Board of Trustees of the Neosho Memorial Hospital. The issue to be determined is whether the death of one of three neutral arbitrators, after the conclusion of evidentiary hearings but before closing arguments and deliberations, destroyed the panel’s power to make a valid award.
The parties are in substantial agreement as to the facts. A dispute arose between the hospital, the general contractor (Andersen), and the architect during the progress of a construction and remodeling project. The hospital had separate contracts with the contractor and the architect, both of which contained arbitration clauses. Since the parties could not or did not settle their differences, this action was commenced. The district court compelled the parties to arbitrate. The parties eventually selected a panel of three neutral arbitrators — Herbert A. Marshall of Topeka and A. J. Wachter of Pittsburg, both lawyers, and Max Snodgrass, a Wichita contractor — from lists of proposed arbitrators supplied by the American Arbitration Association. The parties and the arbitrators proceeded with and participated in thirty-four days of hearings, from February 1982 to January 1983. We are advised that a number of lay and expert witnesses testified; the record consists of some thirty-five volumes of transcripts plus depositions, and over 1,000 exhibits; and the cost of the arbitration proceedings to one of the parties alone is in the neighborhood of $300,000. In January 1983 the record was closed, and closing arguments were scheduled in early March. Unfortunately, arbitrator Max Snodgrass died on March 1, before closing arguments and deliberations. Andersen objected to a continuation of the arbitration. It filed suit in Shawnee County District Court for the appointment of a substitute arbitrator, for the appointment of an entirely new panel of arbitrators, or for an injunction. That court refused to exercise jurisdiction in view of the pending Neosho County action. Closing arguments were then made to the two remaining arbitrators. Briefs were submitted and the two remaining members of the panel reached their decision. The award favored the hospital. Andersen filed a motion to vacate the award, pursuant to K.S.A. 5-412 and 5-415, and the hospital filed a motion to approve the award of the arbitrators. After hearing, the trial court denied the motion to vacate and confirmed the award. Andersen appeals. The architect did not challenge the award of the arbitrators and is not a party to this appeal.
The contract between the hospital and Andersen contained the following provision relating to arbitration:
“7.10 ARBITRATION
“7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”
The Construction Industry Arbitration Rules of the American Arbitration Association read in part as follows:
“Section 20. VACANCIES — If any arbitrator should resign, die, withdraw, refuse, be disqualified or be unable to perform the duties of office, the AAA shall, on proof satisfactory to it, declare the office vacant. Vacancies shall be filled in accordance with the applicable provision of these Rules. In the event of a vacancy in a panel of neutral arbitrators, the remaining arbitrator or arbitrators may continue with the hearing and determination of the controversy, unless the parties agree otherwise.”
K.S.A. 5-405, a part of the Kansas Uniform Arbitration Act, reads in part as follows:
“(c) The hearing shall be conducted by all the arbitrators but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.”
The parties are in agreement that the arbitration panel with which we are here concerned was made up of neutral arbitrators, persons selected from lists of proposed arbitrators supplied by the American Arbitration Association. The parties did not each appoint an arbitrator, with the selection of an additional arbitrator or arbitrators left up to those so appointed; the three neutral arbitrators constituted the panel agreed upon by the parties.
Section 20 of the Construction Industry Arbitration Rules became part of the agreement between the contracting parties. That section specifically authorizes the remaining arbitrator or arbitrators to continue the hearing in the event of a vacancy in the panel, unless the parties agree otherwise. In this case, the parties- did not agree otherwise, and the two remaining neutral arbitrators continued with the matter and determined the controversy. The parties here had agreed by their contract that if any one or two of the neutral arbitrators resigned, died, withdrew, or was otherwise unable to continue with the performance of his duties, the remaining neutral arbitrator or arbitrators could continue with the hearing and determine the controversy.
The trial court’s decision was based solely upon the application of section 20 to this case. Andersen argues that section 20 is ambiguous because it states that “[vacancies shall be filled in accordance with the applicable provision of these Rules,” but that there are no applicable provisions of the rules. We do not agree that the rule is ambiguous. Other rules do provide for the appointment of arbitrators, but there was no necessity for the appointment of a successor arbitrator when the parties had already agreed that the surviving panel members could continue and determine the controversy, and the panel members elected to continue. If the parties had agreed, for example, that the remaining arbitrators not continue, and that the vacancy be filled or that an entirely new panel be appointed, then the rules provided the method by which such appointments should be made. Absent such an agreement, the original agreement of the parties controls, and the trial court was correct in determining that the two remaining arbitrators had the power to do what they did in this case.
Andersen argues that on the adoption of the Uniform Arbitration Act, K.S.A. 5-401 et seq., the State of Kansas did not reject the common law principles generally pertaining to the arbitration process and specifically pertaining to the power and authority of an arbitration panel upon the death of one of its members. The common law rule was that if a member of a board of arbitrators died prior to the conclusion of the hearings in front of the board and before the arbitrators had an opportunity to consult with each other, then the remaining board members had no authority to continue hearings and render an award. See 5 Am. Jur. 2d, Arbitration and Award § 95. That rule applied to all boards of arbitrators. The Kansas statute, however, specifically provides that where an arbitrator ceases to act, the remaining neutral arbitrators “may continue with the hearing and determination of the controversy.” That statute, as far as applicable, clearly modifies the common law rule. We need not here decide what happens under Kansas law when the panel consists of non-neutral arbitrators.
Professor Fowks, in his article, The Uniform Arbitration Act: The Kansas Version, 43 J.K.B.A. 9 (1974), at pages 12 and 13, states:
“The Kansas Act omits the Uniform Arbitration Act provision which states that all acts or parts of acts which are inconsistent with it are repealed. Through this omission and the failure of Kansas Legislature to repeal K.S.A. § 5-201 et seq. arbitration in Kansas can be conducted pursuant to common law rules or K.S.A. § 5-201 et seq., or the newly adopted Kansas Uniform Arbitration Act, K.S.A. (Supp. 1973) § 5-401 to 5-422.”
Professor Fowks also notes, on pages 9 and 10, certain classifications and exceptions included within the Kansas Act, and concludes:
“Thus worded, the Kansas Act is self-limiting and where it is not applicable the common law rules would seem to apply.”
Justice Burch, in Clark v. Allaman, 71 Kan. 206, 80 Pac. 571 (1905), carefully traces the history of the applicability of the common law within the territory which is now Kansas, from the time of its acquisition by the United States up to the time of the opinion. He concludes that the common law was prevalent throughout the area now comprising Kansas under every form of governmental organization from the earliest times until the autumn of 1868, when General Statutes of 1868, chapter 119, section 3, became effective. That section now appears as K.S.A. 77-109, which reads as follows:
“Common Law. The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.” (Emphasis supplied.)
When a statute conflicts with the common law, the statute, of course, controls. K.S.A. 77-109, itself, modifies the common law rule “that statutes in derogation thereof shall be strictly construed,” and, under that statute, the specific common law rule there targeted no longer is applicable in this state. Similarly, K.S.A. 5-405(c) authorizes remaining neutral arbitrators to “continue with the hearing and determination of the controversy.” Thus, since the applicable statute varies from and modifies the common law, it controls.
Discussing the power of the legislature to modify and change common law rules, this court in Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962), said:
“From the earliest days of Kansas history, flexibility in the common law has been carefully preserved (G.S. 1949, 77-109). Indeed, the great office of statutes is to remedy defects in the common law as they are developed and to adapt it to the changes of time and circumstances. That the legislature may change the principle of the common law and abrogate decisions made thereunder when in its opinion it is necessary to the public interest is well settled (O'Neil v. North'n Colorado Irrigation Co., 242 U.S. 20, 26, 27, 61 L.Ed. 123, 37 S.Ct. 7; Silver v. Silver, 280 U.S. 117, 74 L.Ed. 221, 50 S.Ct. 57; Komorowski v. Boston Store of Chicago, 341 Ill. 126, 173 N.E. 189; Katz v. Walkinshaw, 141 Cal. 116, 74 Pac. 766; Power Co. v. Cement Co., 295 U.S. 142, 79 L.Ed. 1356, 55 S.Ct. 725; U.S. v. Gerlach Live Stock Co., 339 U.S. 725, 94 L.Ed. 1231, 70 S.Ct. 955, 20 A.L.R.2d 633; State, ex rel., v. Knapp, 167 Kan. 546, 207 P.2d 440).” 190 Kan. at 331-32.
We hold that insofar as K.S.A. 5-405(c) is concerned, that section of the statute modifies the common law rule pertaining to the power and authority of an arbitration panel under the limited circumstances set forth and described in the statute.
Andersen also contends that this court should vacate the award for the reason that the deceased arbitrator was the only contractor panel member. There is no dispute, however, but that the three panel members were all neutral arbitrators. If Andersen had an objection to the competence of a neutral panel member, it should have voiced its objection at the time the panel members were selected, not after arbitration had proceeded.
We hold that under the specific contractual provision of the arbitration agreement between the parties to this action, under the Construction Industry Arbitration Rules of the American Arbitration Association set forth above, and under the applicable Kansas statute, K.S.A. 5-405(c), the two surviving members of the neutral arbitration panel did not lose their power and authority to render a valid award upon the death of arbitrator Snodgrass. The parties to the contract got precisely what they bargained for.
The judgment of the trial court is affirmed.
Holmes, J., not participating. | [
-48,
-24,
-15,
-50,
8,
-122,
122,
-38,
65,
-76,
116,
95,
-19,
-38,
85,
127,
-110,
45,
-44,
107,
-62,
-77,
19,
-54,
-41,
119,
-13,
-51,
-69,
-17,
-12,
-59,
72,
113,
10,
-107,
-26,
-62,
78,
16,
-58,
20,
-87,
-22,
-35,
65,
52,
111,
50,
90,
17,
-82,
-69,
40,
24,
-57,
-20,
40,
89,
41,
81,
-15,
34,
5,
125,
12,
-127,
38,
-98,
-123,
-40,
108,
-104,
-75,
16,
-24,
49,
38,
-42,
-11,
7,
-7,
8,
62,
99,
1,
88,
-17,
-24,
-36,
31,
86,
-113,
-89,
-101,
24,
106,
9,
-108,
-107,
113,
82,
-90,
124,
-25,
21,
-49,
44,
2,
-114,
-108,
-109,
95,
124,
-104,
15,
-17,
-125,
50,
81,
-113,
-10,
95,
-57,
51,
31,
31,
-72
] |
The opinion of the court was delivered by
Herd, J.:
This case is here on petition for review from an unpublished Court of Appeals decision of May 12, 1983. Appellee Hand Realty Company brought this action to recover a real estate commission for the sale of the appellants’ residence. A jury verdict was returned in favor of Hand Realty and the appellants appealed. The Court of Appeals reversed. The appellee now asks review by this court. We reverse the Court of Appeals and affirm the trial court.
Tom Hand is the owner of Hand Realty Company in El Dorado. He has been a real estate broker for eleven years. His wife, Fata Hand, also works in the agency as a salesperson.
Eric Olsen, a resident of El Dorado, was engaged to marry Jean Dawson. Ms. Dawson had three children from a previous marriage. In anticipation of their marriage Olsen was interested in purchasing a four-bedroom home.
Olsen’s fiancee was due to visit El Dorado for two days around February 15, 1980. In planning for her visit Olsen asked the Hand Agency if they would show Ms. Dawson some four-bedroom homes for sale in El Dorado. Hand’s agency had previously shown several of the same homes to Olsen and although he had not seen a home which he was interested in purchasing, he wanted Ms. Dawson to see what was available on the market while she was in El Dorado.
Tom Hand was acquainted with Terry and Betty Meyers and knew they owned a four-bedroom home. He was also aware Terry Meyers had recently acquired a business in Newton and was commuting from El Dorado to his job. Guessing the Meyers might eventually move to Newton, Hand called Terry Meyers on February 15, 1980, and informed him he had a prospect who might be interested in buying a four-bedroom home. He also advised him his client would be in town for only two days, and requested permission to show the Meyers’ residence to her. After some discussion, Meyers agreed to permit Hand to show his house the following morning, February 16, 1980.
The substance of the phone conversation is critical to Hand’s claim that Meyers listed the house with him. Hand testified Meyers asked how much he thought he could get for the house and Hand responded he thought it should bring $85,000. Meyers stated at that price he could not afford to pay a commission. Hand then suggested the price be set at $90,000. According to Hand, they then agreed the price would be $90,000. Hand testified he and Meyers also talked about when a sale could be completed because Meyers was concerned-that any change in possession be postponed until after school was out for the summer. Meyers testified there was no discussion of paying a commission and that he told Hand several times he would have to clear $90,000 before he would consider selling the house. Meyers also stressed he and his family had not decided to move.
Fata Hand showed the Meyers’ residence to Ms. Dawson on the morning of February 16, 1980. Ms. Dawson was favorably impressed. On the same morning, however, a fellow employee advised Eric Olsen he thought the Meyers might be moving from El Dorado and that they owned a four-bedroom home. Olsen immediately telephoned Betty Meyers. She agreed he could look at the home the same morning. By coincidence, Ms. Dawson had been shown the home by Fata Hand several hours earlier. At the time he was shown the Meyers’ home, Olsen was not aware Ms. Dawson had previously seen the house. After looking at the house Olsen immediately expressed an interest in purchasing it.
Later, during the same day, Olsen learned Ms. Dawson had also looked at the home with Fata Hand. Olsen and Dawson decided to try and purchase the home. Eric Olsen met with Terry and Betty Meyers on the evening of February 16, 1980. The terms and conditions of the sale were agreed upon. The sale price was $90,000. Olsen gave Meyers a down payment of $1,000. The parties prepared and signed a short, written agreement.
Olsen testified that during the meeting with Meyers, he expressed some concern about Hand Realty not being involved in the signing. Meyers assured him he would take care of Hand. Hand testified he first learned about the sale of the house a few days after it was shown to Jean Dawson when Meyers called him and offered to compensate him for the sale. Meyers stated he called Hand to avoid hard feelings but he did not intend to employ the Hand Agency to sell the house.
The jury awarded the appellee a verdict of $5,400, which is six percent of the sale price. The appellants appealed. The Court of Appeals reversed. This court granted review.
The issue here is the scope of appellate review where a jury verdict is attacked for insufficiency of the evidence.
“It has long been the rule that when a verdict is attacked for insufficiency of the evidence, ‘the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.’ ” Cantrell v. R. D. Werner Co., 226 Kan. 681, 684, 602 P.2d 1326 (1979).
See also Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977).
In this case appellants argue there was no substantial competent evidence of either a contract of agency or that Hand Realty was the procuring cause of the sale of their home. Both of these are necessary in order for Hand Realty to prove it is entitled to a commission.
The relationship of a real estate broker and a seller is one of agency to which the general rules of a principal and agent apply. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 260, 624 P.2d 420 (1981). An agency relationship can result only from contract, express or implied, and in determining whether a valid contract has been entered into, the rules which pertain to contracts generally are applicable. There must be consideration, mutuality, and a meeting of the minds as to essential matters. The latter may be shown by implication from the conduct of the parties. The burden of establishing the agency is on the party asserting it. Lindsley v. Forum Restaurants, Inc., 3 Kan. App. 2d 489, 491, 596 P.2d 1250, rev. denied 226 Kan. 792 (1979). Once the agency relationship is established, a broker seeking to recover a commission must also prove that he obtained a buyer who was ready, willing and able to meet the terms offered by the owner. Winkelman v. Allen, 214 Kan. 22, Syl. ¶ 2, 519 P.2d 1377 (1974). After meeting both of these burdens of proof the broker is entitled to recover.
The evidence in this case concerning the existence of a contract and Hand Realty’s function as the procuring cause of the sale was in great dispute. Hand’s testimony concerning Meyers’ concern that the price of $85,000 would not provide enough profit to afford a commission implies an agreement to pay a commission. Additionally, the house was sold the evening after it was shown to the people Hand talked to the Meyers about, at the price agreed upon with Hand’s advice and according to the .terms suggested by Hand. This certainly provides circumstantial support for the alleged meeting of the minds on the essential matters. Also the testimony of Olsen, the buyer, concerning the statements by the Meyers that they would take care of Hand Realty indicated Meyers would pay Hand.
As to the amount of the commission owed under the contract, Hand testified he had earned $5,400. That amount went unchallenged and provides sufficient evidence to support the verdict. An instruction on quantum meruit was appropriate in the ab sence of an agreement on the commission; however, in this case it was unnecessary. The amount of commission earned was uncontroverted. Once the contract was established, the commission was, in effect, conceded. The trial court’s response to the jury question was correct. Thus, there was substantial competent evidence to support the jury’s verdict.
The judgment of the trial court is affirmed. | [
-47,
122,
88,
-82,
26,
96,
58,
-104,
122,
-28,
103,
95,
111,
-54,
21,
107,
-106,
13,
-60,
105,
-41,
-78,
86,
-93,
-44,
-13,
-77,
-51,
-71,
92,
-26,
-59,
72,
48,
-62,
21,
102,
-126,
69,
28,
-114,
5,
-117,
100,
-39,
-62,
48,
-5,
0,
10,
21,
-114,
-13,
45,
61,
-53,
41,
46,
-5,
57,
-32,
-72,
-53,
-107,
-33,
19,
-109,
53,
-34,
7,
-8,
14,
-112,
49,
-120,
-24,
115,
-74,
-106,
52,
73,
-101,
8,
36,
102,
33,
-35,
-81,
-8,
-104,
15,
90,
-123,
-89,
-48,
72,
122,
96,
-68,
-98,
117,
20,
11,
-12,
70,
29,
13,
-19,
14,
-81,
-108,
-125,
13,
114,
-103,
75,
-22,
87,
17,
113,
-53,
-30,
92,
70,
50,
27,
14,
-14
] |
The opinion of the court was delivered
Per Curiam:
This is a consolidated appeal of two criminal cases in which defendants, James Fountain and Joseph P. O’Sullivan, III, were each charged with multiple counts of perjury (K.S.A. 21-3805). For purposes of this appeal, the facts are undisputed and essentially are as follows: On March 9, 1981, Richard J. Rome filed two criminal complaints in Reno County District Court against the defendants. At the time the complaints were filed, Fountain was the sheriff of Reno County, and O’Sullivan was the county attorney. The perjury charges were based upon statements made by the defendants at a hearing before the Kansas Commission on Judicial Qualifications which at the time was investigating Rome’s alleged misconduct as a judge. Rome was subsequently removed from his position as Associate District Judge of the 27th Judicial District. State ex rel. Comm’n on Judicial Qualifications v. Rome, 229 Kan. 195, 623 P.2d 1307, cert. denied 454 U.S. 830 (1981).
Upon the filing of the complaints, Associate District Judge William F. Lyle, Jr. ordered that a notice be issued to each defendant directing him to appear before the court on March 20, 1981. Prior to that date, each defendant moved to quash the complaint. The March 20 hearing was continued after all judges of the 27th Judicial District recused themselves. Following various delays, Judge Richard W. Wahl of the 12th Judicial District was assigned to hear the case on November 5, 1981. Prior to the assignment of Judge Wahl, defendant O’Sullivan resigned as Reno County attorney on September 7, 1981. He was replaced by Joseph L. McCarville, III, on September 29, 1981. Judge Wahl requested briefs from all of the parties on the issues presented in defendants’ motions to quash the complaints. Counsel for the defendants requested oral argument. A hearing was held on December 14, 1981. Rome did not attend that hearing, having chosen to present his arguments and authorities by his written brief. It is important to note that James Flory, a deputy attorney general, appeared on behalf of the county attorney, McCarville, and the attorney general. At the close of the oral arguments, Judge Wahl entered an order quashing the complaints. A journal entry was not filed until January 28, 1982. On January 6, 1982, Rome filed a motion to set aside the order quashing the complaints. A hearing was held on March 29, 1982, at which time Rome’s motion was denied. On April 28, 1982, Rome filed a notice of appeal from the order quashing the complaints. Thereafter, there were difficulties in docketing the appeal, because no journal entry had yet been filed. The appeal was dismissed by Judge Wahl, because of Rome’s failure to properly docket the appeal. The appeal was finally docketed with the Court of Appeals, and the parties were ordered to submit memoranda demonstrating that court’s jurisdiction. The case was subsequently transferred to the Supreme Court.
The defendants maintain that the appeal by Rome must be dismissed because this court lacks jurisdiction to hear the appeal. In support of their position, defendants argue (1) that Rome failed to file a timely notice of appeal; (2) that the order of the district court which denied Rome’s motion to set aside the order dismissing the complaint is not an appealable order; and (3) that Rome, as the complaining witness, does not have standing to maintain the appeal. Although there may be legitimate issues raised as to all three contentions, we have concluded that this case should be disposed of on the basis that Rome, as the complaining witness, did not have standing to institute or maintain an appeal in this case, and, therefore, this court has no jurisdiction. Simply stated the issue is this: Where a district court dismisses a criminal complaint, does the complaining witness have the right to take an appeal from the order of dismissal to an appellate court? We have concluded that he does not and that this appeal must be dismissed for want of jurisdiction.
At the outset, we must note the general rule that the right to appeal is statutory and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court. State v. Crozier, 225 Kan. 120, 587 P.2d 331 (1978). Clearly, there is no specific statute in Kansas which permits the complaining witness to appeal from an order of a district court dismissing a complaint in a criminal case. Furthermore, a review of the Kansas statutes and court decisions handed down during the course of our judicial history demonstrates the fact that it has been consistently recognized that a private individual has no right to prosecute another for crime and no right to control any criminal prosecution when one is instituted. Thus, the philosophy of this state has always been that a criminal prosecution is a state affair and the control of it is in the public prosecutor. Jackson v. State, 4 Kan. *150 (1867); State v. Wilson, 24 Kan. *189 (1880). This doctrine has been restated many times during the past century. We note, for example, the following cases: State v. Wells, 54 Kan. 161, 165, 37 Pac. 1005 (1894); State v. Brown, 63 Kan. 262, 65 Pac. 213 (1901); In re Broadhead, 74 Kan. 401, 86 Pac. 458 (1906).
In Foley v. Ham, 102 Kan. 66, 169 Pac. 183 (1917), an examining magistrate refused to dismiss a criminal prosecution on the motion of the county attorney. Foley, the person charged in the complaint, then brought an action in the district court against the justice of peace and the complaining witness and his attorney asking that the defendants be enjoined from further prosecution of the case. The district court issued an injunction against the maintenance of the criminal prosecution. The defendants appealed. In the course of the opinion, Justice Mason noted that the public prosecutor, except as restrained by statute, has ab solute control of criminal prosecutions, and has authority by virtue of his office to dismiss a criminal action regardless of the attitude of the court. The court recognized, however, that a Kansas statute provided that, in extreme cases, the court could compel a county attorney to file an information. The court further stated that the county attorney is the representative of the State in criminal prosecutions in his county. In this regard, the court on pages 69-70 of the opinion describes the role of the public prosecutor in the following language:
“The state is the plaintiff, and the state’s attorney, rather than the complaining witness or any other unofficial person, is entitled to speak in its behalf, and decide upon the course to be pursued in its interest.
“ ‘Unquestionably, a private individual has no longer any right to prosecute another for crime — no right to control any criminal prosecution when once instituted. A criminal prosecution is a state affair, and the control of it is in the public prosecutor. . . . The purpose of a public prosecution is to prevent the use of the criminal law to gratify private malice or accomplish personal gain. This purpose is fully subserved when the control of the case is with the county attorney.’ (State v. Wilson, 24 Kan. 189, 192.)
‘The law makes it the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are alike under his supervision and control.’ (The State v. Wells, 54 Kan. 161, 165, 37 Pac. 1005.)
“ ‘No one but the county attorney, or the attorney-general on proper occasion, or persons deputized by them, may control prosecutions within a county.’ (The State v. Snelling, 71 Kan. 499, 506, 80 Pac. 966.)
“It is true that this interpretation of the law places in the hands of the county attorney a very large power, which is susceptible of abuse. That, however, is a necessary attribute of most governmental powers. In the case of a public officer some protection is afforded by statutes making official misconduct a crime (Gen. Stat. 1915, § 3588), and a basis for ouster (Gen. Stat. 1915, § 7603). The other theory — that the control of a felony prosecution until it reaches the district court, so far as a plaintiff may exercise control, rests with the prosecuting witness, or with any one who is under no official responsibility — would imply that the county attorney might be seriously embarrassed in the attempted enforcement of the criminal law by the interference of individuals, actuated by mistaken judgment or perverse purpose. For instance, a private prosecutor, if in charge of a preliminary examination upon a charge of gambling, might call the keeper of the gambling house and permit him to give such testimony as under the statute (Gen. Stat. 1915, § 3652) would result in his own complete immunity. Clearly the selection of witnesses to be used in that manner should rest with the county attorney, and not with individuals or with the justice of the peace. The power effectively to control a prosecution involves the power to determine when and before what tribunal it shall be brought and maintained, and therefore, whether it should be discontinued. We conclude that the justice of the peace should have acted upon the direction of the county attorney and dismissed the case.”
In State, ex rel., v. Court of Coffeyville, 123 Kan. 774, 256 Pac. 804 (1927), the rule is stated that, while the county attorney is not required to appear and conduct the prosecution of a misdemeanor case in a justice of the peace court unless requested to do so by the magistrate or the complainant, if he does appear he is entitled to have' full charge of the prosecution, and the case should be dismissed if he so directs.
In 1968, in State v. Kilpatrick, 201 Kan. 6, 17, 439 P.2d 99 (1968), the complainant in this case, Richard J. Rome, as county attorney of Reno County, appeared on behalf of the state in a criminal appeal before the Supreme Court. The case involved a claim of denial of equal protection of the law under the Fourteenth Amendment to the United States Constitution, because Rome, as county attorney, had dismissed the original charges of first-degree murder and forcible rape filed against a coparticipant in the crime and had reduced the charges to a lesser included offense. In the course of the opinion, the Supreme Court stated that the county attorney is the representative of the state in criminal prosecutions, and as such he controls these prosecutions. He has the authority to dismiss any charge or to reduce any charge. He can prosecute against one defendant if he so chooses, and he can decide not to prosecute against another defendant.
The power of the county attorney to determine the charges to be filed against a defendant in a particular case was upheld in State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973), where it is stated in the opinion that, when the prosecutor exercises his discretion as to the charges to be filed or as to amendments of the information seeking to reduce the charges to lesser offenses, the trial judge has no right to substitute his judgment for that of the prosecutor absent some compelling reason to protect the rights of the defendant. The county attorney is the representative of the state in criminal prosecutions, and as such he controls them. The principle is restated again more recently in State v. Turner, 223 Kan. 707, 709, 576 P.2d 644 (1978); State v. Marshall & BrownSidorowicz, 2 Kan. App. 2d 182, 577 P.2d 803, rev. denied 225 Kan. 846 (1978); and State ex rel. Miller v. Richardson, 229 Kan. 234, 623 P.2d 1317 (1981).
The philosophy of these cases was incorporated into the Kansas Code of Criminal Procedure (K.S.A. 22-2101 et seq.) which was enacted in 1970. We note, for example, that K.S.A. 22-2104 provides that all prosecutions for violations of the criminal laws of this state shall be in the name of the State of Kansas. K.S.A. 22-2202(19) defines the term, “prosecuting attorney” to mean any attorney who is authorized by law to appear for and on behalf of the State of Kansas in a criminal case, and includes the attorney general, an assistant attorney general, the county or district attorney, an assistant county or district attorney, and any special prosecutor whose appearance is approved by the court. The term “prosecuting attorney” does not include the complaining witness in a criminal action.
K.S.A. 22-2301 provides, in substance, that, unless otherwise provided by law, a prosecution shall be commenced by filing a complaint with a magistrate. A copy of the complaint shall forthwith be supplied to the county attorney of the county. The Judicial Council note to this section states that, “Although the section does not.require that the person filing the complaint have the prior approval of the county attorney, it contemplates that the officer be notified forthwith.” In this action, the district court and all parties are in complete agreement that Richard J. Rome, as the complaining witness, had the right under this section to commence the prosecution by filing his complaint with the district court. We note, however, that K.S.A. 22-3201(6) requires the prosecuting attorney to endorse the names of all witnesses known to said attorney upon the complaint, information, and indictment at the time of filing the same. This action is required so that the person charged with the offense will know, prior to trial, the names of the witnesses to appear against him.
Appeals by the State in criminal cases are covered by K.S.A. 22-3602(b) which declares that appeals to the Supreme Court may be taken by the prosecution from the district court in three instances:
(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment; and
(3) upon a question reserved by the prosecution.
There is no provision which authorizes an appeal to be taken by the complaining witness. In passing, we note K.S.A. 22-3802, which permits the district court to tax all costs of the prosecution against the complaining witness if, upon hearing, the court determines that the prosecution was instituted without probable cause and from malicious motives.
There are other statutes which should properly be considered in determining the issue raised in this case. K.S.A. 19-702 declares that it shall be the duty of the county attorney to appear and prosecute or defend on behalf of the people all suits, civil or criminal, arising under the laws of this state, in which the state or the county is a party or interested. K.S.A. 19-711 states that, in the absence, sickness or disability of both the county attorney and his deputy, the court may appoint an attorney to act as county attorney. In case of a vacancy in the office of county attorney, K.S.A. 19-715 permits the district judges of the judicial district in which the county is located to appoint a temporary county attorney until a person is appointed by the governor. K.S.A. 19-717 authorizes the prosecuting witness to employ, at his own expense, an attorney to assist the county attorney to perform his duty in a criminal action. This special attorney is required to be recognized by the county attorney and court as associate counsel, and it is provided that no prosecution shall be dismissed over the objection of such counsel until the reason of the county attorney for such dismissal, together with the objections of such associate counsel shall be filed in writing, argued by counsel, and fully considered by the court. This statute does not give to the associate counsel the right to take an appeal to an appellate court from an order dismissing the case. Finally, we should note K.S.A. 19-723, which authorizes the county commissioners to employ an additional attorney at law to assist the county attorney in the investigation or prosecution of any civil or criminal matter involving the duties of the county attorney.
A review of the cases and statutes set forth above leads us to the conclusion that, although a complaining witness may institute a prosecution by filing a complaint with an authorized magistrate, the county or district attorney must be notified of the complaint and, when he or she appears in the case, takes over the prosecution on behalf of the state. Although the complaining witness does have the right to employ private counsel to assist the county attorney, the ultimate prosecution of the case remains at all times in the hands of the public prosecutor. This public policy is consistent with that traditionally adopted throughout this country. As noted in the ABA Standards Relating to The Prosecution Function, pp. 19-20 (Approved Draft 1971), “Our nation began with resistance to oppressive official conduct and our traditions, embodied in the national and state constitutions, demand that the prosecutor accord basic fairness to all persons. Because of the power he wields, we impose on him a special duty to protect the innocent and to safeguard the rights guaranteed to all, including those who may be guilty. The conflicting demands on a prosecutor may exert pressures on him which his sense of fairness as a lawyer rejects. Both his public responsibilities as well as his obligations as a member of the bar require that he be something more than a partisan advocate intent on winning cases.”
Standard 2.1 of the Prosecution Function, adopted by the American Bar Association, states, without equivocation, that the prosecution function should be performed by a public, prosecutor who is a lawyer subject to the standards of professional conduct and discipline. In the commentary under this section we find the following comments:
“The concept that the state has a special interest in the prosecution of criminal cases which requires the presence of a professionally trained advocate arose during the formative period of American law. Earlier, in England, it had been assumed that prosecution was a matter for the victim, his family or friends. [Citation omitted.] The idea that the criminal law, unlike other branches of the law such as contract and property, is designed to vindicate public rather than private interests is now firmly established. The participation of a responsible public officer in the decision to prosecute and in the prosecution of the charge gives greater assurance that the rights of the accused will be respected than is the case when the victim controls the process. Almost all prosecutions of a serious nature in this country now involve a professional prosecutor. The absence of a trained prosecution official risks abuse or casual and unauthorized administrative practices and dispositions which are not consonant with our traditions of justice. . . .
“In a few jurisdictions a private party may bring a prosecution without the participation of the prosecutor. [Citation omitted.] This practice carries danger of vindictive use of the processes of criminal law, without the check provided by the participation of a public prosecutor. Standard 2.1 is designed to discourage the practice of police or private prosecution by the adoption of appropriate legislation to require the participation of a prosecutor in all criminal cases except regulatory violations of a minor nature.”
Appellant does not cite us a single case where the right of a private individual to appeal on behalf of the State in a criminal case has been upheld in any court in this country. To the contrary, our research has revealed only one published opinion in an American appellate court where that issue has been raised | [
-80,
-24,
-27,
92,
12,
64,
58,
46,
83,
-109,
119,
83,
-23,
-117,
0,
127,
83,
109,
84,
121,
-64,
-74,
87,
74,
126,
-13,
-6,
-43,
-65,
79,
-28,
-11,
73,
48,
-118,
-43,
-122,
-54,
-123,
84,
-82,
1,
-119,
-4,
-38,
0,
36,
97,
87,
15,
49,
46,
-13,
46,
53,
79,
-24,
44,
-53,
-72,
114,
-111,
-118,
-107,
-19,
20,
-77,
6,
28,
-127,
-12,
63,
-40,
49,
33,
-71,
51,
-90,
-126,
-27,
79,
-85,
8,
102,
99,
17,
29,
-85,
-92,
-120,
47,
19,
-103,
103,
-70,
9,
75,
37,
22,
-107,
113,
80,
3,
-4,
-31,
-123,
125,
108,
-128,
-50,
-6,
-77,
79,
57,
-118,
26,
-29,
-93,
80,
81,
-115,
-32,
94,
70,
18,
63,
-114,
-76
] |
The opinion of the court was delivered by
Holmes, J.:
Plaintiff-appellant Connie S. Young and intervenor-cross-appellant Joe D. Newman both appeal from the trial court’s denial of their conflicting claims to decedent’s corporate stock in the Credit Bureau of Liberal, Inc. The trial court found their claims to be barred by the nonclaim statute, K.S.A. 59-2239.
The facts, though complex, are not in dispute. The decedent, Frank J. Keefer, acquired all of the 6000 shares of stock in the Credit Bureau on September 23, 1974. He immediately sold 667 shares to plaintiff Connie Sue Young. The corporation issued Keefer one certificate representing his remaining 5,333 shares.
On May 13, 1976, plaintiff and Keefer, as sole stockholders of the corporation, entered into a written mutual post-death stock option contract. This agreement provided that if either of them died the survivor would have the first option to acquire the decedent’s stock by cash payment to the decedent’s estate. The contract specified that if Keefer died first, plaintiff Young could purchase his 5,333 shares for one thousand dollars and if Young died first, Keefer could buy her 667 shares for one hundred dollars.
Although he remained a resident of Stevens County, Kansas, in 1979 Keefer moved into Newman’s home in Balko, Oklahoma. Keefer continued to maintain his mobile home in Liberal, Kansas. On March 7, 1980, Keefer and Newman entered into a written contract for the sale of Keefer’s 5,333 shares of stock to Newman for three thousand dollars. Although Newman wrote a check in that amount the same day, the stock certificate was never assigned or delivered to Newman.
Frank Keefer died testate on April 3, 1980, a resident of Stevens County, Kansas. Among decedent’s papers found after his death at the Newman home in Balko, Oklahoma, was a copy of the contract for the sale of the Credit Bureau stock, and the check from Newman for $3,000.00. The check was not endorsed. No one could locate the Credit Bureau stock certificate.
Probate proceedings were commenced in the District Court of Stevens County, Kansas. Notice to creditors was first published on April 17, 1980. Keefer’s will was admitted to probate, and defendant David J. Wheeler was appointed executor of the estate on May 13, 1980. Decedent’s will, dated January 13, 1975, after providing for payment of expenses, devised and bequeathed the remainder of his estate to the Frank J. Keefer trust. A codicil to this will, executed on November 5, 1979, bequeathed and devised all of Keefer’s Oklahoma real estate, and livestock, farm machinery, equipment, and farm supplies located within that state to Newman. Prior to the admission of the will to probate, plaintiff attempted to exercise her option to purchase the 5,333 shares of Credit Bureau stock by mailing to the attorney for the proposed executor a check for $1,000.00, payable to the estate. The attorney, Paul Wolf, acknowledged receipt of the check in a May 1,1980, letter to plaintiff, and at the same time informed her of Newman’s claim to the stock. After defendant Wheeler was appointed executor, he and Wolf conferred about the conflicting claims. On May 15 the attorney returned to Young and Newman their respective checks and, in a joint letter, advised that due to the conflicting claims neither would be recognized and he recommended both claimants seek legal counsel. Thereafter, an inventory and appraisal was filed in the Keefer estate which included the 5,333 shares of Credit Bureau stock. Neither Young nor Newman instituted any challenge in the probate proceedings to strike the stock from the inventory or to enforce their respective claims to the stock.
Instead Young instituted this action in the District Court of Stevens County on November 20, 1980, naming the executor of decedent’s estate as defendant and seeking specific performance of the option agreement. The defendant executor answered alleging as an affirmative defense that plaintiff s claim was barred by K.S.A. 59-2239. Defendant Wheeler also filed a counterclaim and a third party petition against the corporation, as an alternative pleading to recover funds for decedent’s estate from either plaintiff or the corporation in the event plaintiff succeeded in her action. The basis for the counterclaim and third party petition was for money loaned by Keefer to the corporation during his lifetime. Newman did not intervene in this action until April 27, 1981. On June 30, 1980, the Keefer will and codicil were admitted to probate in Beaver County, Oklahoma, and Wheeler was appointed as executor for the ancillary proceedings. Thereafter, the Beaver County court, in reliance upon its interpretation of the Oklahoma statutes, found that it did not have jurisdiction of any personal property, tangible or intangible, in Oklahoma and that all such property was subject to the jurisdiction of the domiciliary proceedings in Stevens County, Kansas.
On November 19, 1981, plaintiff filed an amended petition in the instant action adding an alternative theory and claim to the effect that Keefer had delivered the Credit Bureau stock to Young in compliance with the option contract. The case proceeded to trial beginning March 1,1982, with the specific issues to be determined stated in the pretrial order as: “The sole issues to be tried in this matter are who was the owner of the stock at the time of the death of the decedent and who had possession of the stock.” At the trial plaintiff testified that she thought Keefer had given her the corporate stock and that the certificate must have been destroyed in a fire at her Oklahoma home. Unbeknownst to plaintiff, during the week before trial started, Newman found the Credit Bureau stock certificate in a suitcase belonging to Keefer. The suitcase contained abstracts of title to Keefer’s real property and other personal papers of Keefer. The suitcase had been kept by Keefer in his room at the Newman residence. After Young had testified that Keefer had delivered the stock certificate to her and that it had subsequently been destroyed in a fire, Newman produced the certificate. Following this development, Young took the position that Newman had visited her at her home prior to the fire and must have taken the stock certificate without her knowledge or permission.
Following the trial, the court found that the Credit Bureau stock was owned by Keefer at the time of his death and that Keefer was in possession of the stock certificate at the time of death. Both findings are adequately supported by the evidence and the court found that as neither Young nor Newman had filed claims in the Stevens County probate proceedings within the time allowed by the nonclaim statute, their claims to the Credit Bureau stock were barred by K.S.A. 59-2239. Both Young and Newman contend that as the stock certificate was physically located in Oklahoma, the Kansas court had no jurisdiction of it, that it was not part of the Kansas estate and therefore the Kansas nonclaim statute is inapplicable. Young and Newman both rely on our decision in In re Estate of DeLano, 181 Kan. 729, 315 P.2d 611 (1957). In DeLano the decedent died a resident of Kansas, and domiciliary probate proceedings were conducted in Johnson County. Intangibles owned by the decedent were located in Jackson County, Missouri, and ancillary administration proceedings were instituted in that county. The ancillary executrix took possession, inventoried and administered the intangibles and refused to cede administration over the intangibles to the domiciliary executor. We stated:
“The first consideration in this opinion will be devoted to the question of jurisdiction to administer upon intangible personal property and the correlative question of situs of intangibles for administration purposes.
“Two distinct legal propositions entirely separate should be borne in mind. First, that the state where personal property is located (whether tangible or intangible personal property) has full power to administer upon it, pay creditors out of it, and dispose of it within constitutional limitations, or, at its option to permit the courts and administrators of other states to take possession and administer it. Second, under normal circumstances the court where the intestate’s personal property is located will look to the law of the decedent’s domicile to determine heirship, i.e., to determine the persons who succeed to the property and the proportions in which they take.” 181 Kan. at 736.
Applying those principles to the facts of that case, we concluded:
“We therefore hold in view of the foregoing authorities that the courts of Missouri have jurisdiction to administer upon the intangible property in question and that the courts of Kansas do not have jurisdiction to administer upon such intangible property, unless the state of Missouri cedes its jurisdiction over such property to the domiciliary executrix in Johnson County, which it may or may not do.” 181 Kan. at 742.
While much of what was said in DeLano remains true today, it must be recognized that DeLano was decided under a statute (G.S. 1949, 59-303 [1955 Supp.]) which purported to vest exclusive jurisdiction in the Kansas courts to administer the personal property assets of a Kansas decedent and to divest any other state of jurisdiction even when the property was located in the other state. In' a scholarly opinion by Justice, now Chief Justice, Schroeder the statute was properly found unconstitutional. The controlling statute today is considerably different. K.S.A. 59-1401 provides:
“The executor or administrator shall have a right to the possession of all the property of a resident decedent, except the homestead and allowances to the surviving spouse and minor children. He or she shall marshal all tangible personal property owned by a resident decedent located in the state of Kansas and all intangible personal property owned by a resident decedent wherever located, either directly or by ancillary administration, and shall within nine (9) months from the date of death take possession of all tangible personal property located in this state and all intangible property wherever located, the same to be held, administered and finally distributed as provided by law: Provided, however, That nothing herein shall require an executor or administrator of a resident decedent to take possession of intangible personal property being administered in another jurisdiction, if the court wherein such administration is pending refuses to authorize such delivery of possession.” (Emphasis added.)
The constitutionality of this statute is not challenged in this appeal.
It appears to be the position of Young and Newman that so long as the stock certificate was in Oklahoma, even though no one knew it was there and it was presumed lost or destroyed, Kansas had no jurisdiction to administer upon the stock. If in fact the certificate had been lost or destroyed Kansas certainly would have been the proper forum to assert the interests of the estate in the stock of the Credit Bureau. The Oklahoma court found it had no jurisdiction of Keefer’s personal property and clearly ceded jurisdiction over such property to Kansas. Absent an assertion of jurisdiction by another state over intangible personal property of a Kansas decedent, Kansas is the logical and proper forum to administer such property. Many Kansas residents own intangibles located in other states and to require foreign probate of all such assets would be cumbersome, expensive, and inefficient. It is noted that in the instant case neither Young nor Newman made any attempt to assert a claim to the Credit Bureau stock in Oklahoma although Young maintained the stock certificate was burned in a fire at her Oklahoma residence and Newman maintained the stock was in his possession. We' conclude that under the facts herein, the Kansas court properly had jurisdiction to administer the personal property of the decedent located in Oklahoma.
Given this jurisdiction, the only remaining question is whether plaintiff s and intervenor’s claims were barred by the Kansas nonclaim statute, K.S.A. 59-2239, which provides:
“(1) All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor, or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within six (6) months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shall control.”
The words “all demands” as used in this statute were intended to be all-inclusive and to include claims or demands of every type and character against a decedent’s estate and to any portion thereof, except in particular cases where a statute may expressly provide otherwise. In re Estate of Grindrod, 158 Kan. 345, Syl. ¶ 5, 148 P.2d 278 (1944). In Burns v. Drake, 157 Kan. 367, 371, 139 P.2d 386 (1943), we stated:
“We cannot agree that the word ‘demands’ refers solely to claims to be paid in money. In view of the fundamental purposes sought to be accomplished by the new code we think the legislature intended the term ‘demands’ as here used to be all-inclusive — to include all demands against the estate, whether legal or equitable in character .... All property in the estate is drawn into administration. Upon final settlement the court must determine the heirs, devisees, legatees, and by decree make proper assignment. The determination of an issue such as that here involved [specific performance of an alleged oral contract by decedent to convey real estate by deed or will] is as much a prerequisite to distribution as any money demand. To hold otherwise would defeat one of the purposes of the code — the plain legislative intent to unify administration and expedite the closing of decedent’s estates.”
See also Gantz v. Bondurant, 159 Kan. 389, Syl. ¶ 2, 155 P.2d 450 (1945); In re Estate of Bourke, 159 Kan. 553, Syl. ¶ 3, 156 P.2d 501 (1945); and In re Estate of Bowman, 172 Kan. 17, 21, 238 P.2d 486 (1951). In the recent case of Union Nat’l Bank & Trust Co. v. Estate of Werning, 233 Kan. 671, 665 P.2d 192 (1983), Justice McFarland stated, “Exceptions from the requirement of having to file claims against a probate estate are not favored by law.” 233 Kan. at 675. In Werning we quoted one recognized authority to the effect that:
“ ‘[I]n general the course of legislative and judicial thought has been that it is better policy to deny exceptions to the bar of the nonclaim statute rather than to impair its final effect by allowing exceptions, however meritorious.’ Atkinson, Law of Wills § 127, p. 691 (2d ed. 1953).” 233 Kan. at 675.
The original notice to creditors was first published April 17, 1980. Plaintiff s petition was filed November 20, 1980, seven months and three days later and Newman did not intervene until April 27, 1981, over a year after the first publication. The court was correct in holding both claims constituted demands as contemplated by the statute and were barred by K.S.A. 59-2239.
The judgment is affirmed. | [
112,
110,
-40,
-68,
8,
-96,
58,
42,
115,
-30,
39,
83,
-23,
74,
85,
127,
115,
13,
65,
104,
-26,
-77,
23,
-22,
-46,
-77,
-79,
-51,
48,
91,
-90,
-41,
77,
50,
74,
85,
-26,
10,
-59,
30,
-114,
-124,
27,
-32,
-39,
80,
48,
47,
48,
74,
-31,
90,
-13,
41,
31,
-17,
13,
46,
-1,
41,
-64,
-72,
-117,
-123,
-1,
22,
19,
4,
-72,
103,
-48,
-118,
92,
-80,
8,
-24,
114,
-90,
-58,
116,
43,
-119,
9,
110,
99,
32,
21,
-19,
-84,
-120,
14,
-45,
29,
-89,
-80,
88,
3,
40,
-74,
-99,
120,
4,
10,
-4,
-26,
-36,
13,
-20,
5,
-54,
-42,
-77,
-97,
118,
-100,
15,
-1,
-95,
-78,
113,
-53,
-94,
93,
71,
62,
59,
-114,
-80
] |
The opinion of the court was delivered by
Holmes, J.:
Defendants Henry Lewis McKinney and Lillie Marie McKinney, husband and wife, appeal from an order of the trial court granting summary judgment to Lena Barnhart, plaintiff/appellee, in an action by plaintiff to quiet her title to five acres of land in Franklin County. The facts, of necessity, must be set forth in some detail.
Lena Barnhart and her husband, Dewey Barnhart, owned a farm of approximately 151 acres in Franklin County which they occupied as their home. On December 11, 1971, they entered into a contract to sell the farm, including the home and other improvements, to Lawrence realtors John M. McGrew, Edgar R. Grosdidier, and Kenneth P. Callicott (hereafter referred to collectively as McGrew), who were associated with McGrew Real Estate, Inc. The land sold was described in the contract as:
“The NE fractional V4 of Sec. 5, T16S, R18E; said tract containing approximately 151 acres less a tract to be more specifically described by an engineer’s survey, said tract to be agreed upon by both parties (containing 5 acres more or less). Said S acres are to be retained by Sellers as a site for a house trailer with the understanding that when Sellers decide to sell or vacate said 5 acres they will first offer it to Purchasers at a price not to exceed $200.00 per acre plus the cost of any permanent improvements to the real estate that have a residual value. The property to be conveyed to Purchasers for the below mentioned consideration shall be not less than 145 acres.” (Emphasis added.)
The purchase price was $34,500.00 with $27,000.00 of that amount to be carried by the sellers with interest at 7% per year and semi-annual payments of $1500.00 each. Deeds were executed by the Barnharts to the purchasers and placed in escrow, pursuant to the terms of the contract, with the Kansas State Bank of Overbrook, Kansas.
The contract was a printed form agreement furnished and prepared by the purchasers. The printed portion of the document contained, inter alia, the following:
“It is understood by the parties hereto that McGrew Real Estate, Inc., Law rence, Kansas, is the real estate agent representing the Seller in regard to the sale of the above described property and the commission due is to be paid by the Seller.
“It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.”
Subsequently, the Barnharts installed a mobile home and other improvements on the 5-acre tract as contemplated by the contract. On April 17, 1972, McGrew sold 15 acres in the northwest corner of the property to a Mr. and Mrs. Frevert and retained the remaining 131.23 acres. The tract sold to the Freverts included the home and improvements formerly occupied by the Barnharts, who moved into the recently installed mobile home. Dewey M. Barnhart died May 16, 1974.
On July 1, 1975, McGrew entered into a contract to sell the remaining acreage to the defendants Henry Lewis McKinney and Lillie Marie McKinney. This contract was on a printed form identical to that used in the Barnhart sale and again was furnished and prepared by McGrew. The purchase price for the 131.23 acres was $39,000.00, and in the typewritten portion of that contract the parties agreed payment was to be made as follows:
“[U]pon approval of title, delivery of General Warranty Deed and possession of premises but in any event on or before but no later than August 1,1975, subject to an existing contract to Dewey M. Barnhart and Lena Barnhart in the approximate remaining balance of $18,754.95 which said contract in its exact remaining balance as of date of possession shall be deducted from the purchase price and which Purchasers hereby assume and agree to pay. Interest on said mortgage shall be pro-rated as of date of possession. Payments on said contract are $1,500.00 semi-annually with an interest rate of 7%.
“It is understood that Sellers will obtain written consent from Lena Barnhart for the assumption of said contract.” (Emphasis added.)
A consent to this sale and assumption of the December 11, 1971, contract was prepared and obtained by McGrew. The letter of consent was addressed to McGrew and stated in its entirety:
“Please consider this letter my formal consent to release the three of you from any further liability on your contract purchase of 151 acres, more or less, in the Northeast fractional Vi of Section 5, T16S, R18E, in Franklin County, Kansas.
“As I understand it, the three of you have sold the property to Henry Lewis McKinney and wife and that they will assume the existing contract balance of approximately $18,754.00 on or about August 1, 1975. I consent to Henry Lewis McKinney and wife assuming the above contract dated December 11, 1971. I would, of course, expect them to make the payments promptly just as the three of you have.
Sincerely,
/s/ Lena Barnhart.” (Emphasis added.)
For the next seven years, defendants made payments to Lena Barnhart as required by the two contracts.
In early June, 1982, plaintiff contacted Ken Callicott of the McGrew agency to sell her five-acre tract with improvements. In accordance with the December 11, 1971, contract plaintiff told Callicott to first offer the property to the McKinneys. This was done in a letter to Henry McKinney from Callicott dated June 4, 1982, which stated in part:
“As per your contract with Lena she has instructed me to first offer the property to you on the following basis:
Land Value $1,000.00
Improvements: Two bedroom mobile 21,000.00 home, storm cave, well, septic tank, carport, sheds and fence _
$22,000.00 Terms Cash
“Lena would consider an installment contract sale on terms that would be acceptable to her. For an installment sale the price would be $26,000.00.
“Lewis if you are interested in the property please contact me. Lena would like to know by June 16, 1982 if you are interested.” (Emphasis added.)
On June 15,1982, Henry McKinney wrote back, denying that the mobile home, storm cave and carport were “permanent improvements to the real estate” as specified in the first contract. McKinney was of the opinion that the only additional permanent improvements to the land were the well, septic system, fence and storage shed. McKinney estimated the total cost of the land and these improvements to be $3,500 - 4,000, and said:
“I am willing to purchase the real estate and the four above listed permanent improvements for the $1000 for the five acres plus the cost of the specified four ‘permanent improvements to the real estate that have a residual value.’
“[T]he mobile home and contiguous integral structures would lose a sizeable part of their value if moved from their present location, sol would be willing in a separate contract to negotiate a fair price for the trailer plus car ports, storm shelter, etc. based to a large extent on the trade book price ....
“Possible purchase of the mobile home, and contiguous integral structures at an agreeable price is definitely contingent upon an unimpeded transfer of the five acres, well, septic system, fence, and storage shed as stipulated in our contract of Dec. 11, 1971.
“Furthermore, my contingent offer to purchase the mobile home and contigu ous structures if a fair price-can be mutually agreed on is good only for thirty days from the date of this letter.
“I believe I would prefer to pay cash for the land and permanent improvements to the real estate. The mobile home and contiguous integral structures, on the other hand, would be subject to mutual negotiation.”
Plaintiff refused these terms, and on June 21, 1982, listed the five acres and all improvements with McGrew Real Estate, Inc. for sale to the public at a total price of $26,000. When the McKinneys learned of plaintiff s intention to sell her property on the open market notwithstanding the existing contracts, they filed an affidavit of equitable interest with the Franklin County Register of Deeds on June 24, 1982. This affidavit set forth the fact that defendants had purchased the 131.23 acres around plaintiff s five-acre tract, and that they were to first be offered these five acres at the specified price “when Seller decides to sell or vacate . . . .”
On December 3, 1982, plaintiff filed this action in the district court of Franklin County seeking to quiet title to her property. In a second cause of action plaintiff alleged defendants knowingly and willfully filed a false affidavit of equitable interest, thereby slandering and defaming her title to the five acres and sought actual and punitive damages. Defendants answered that the affidavit was filed solely to protect their interests in the five acres, not to slander or impair plaintiff s interest. Defendants, in a counterclaim, sought to specifically enforce their contractual rights to purchase the five acres and further sought damages for plaintiff s breach of the agreements.
Plaintiffs reply to defendants’ counterclaim denied that defendants, by their purchase of the adjoining land, received any interest in the five-acre tract and claimed instead the land “was specifically excepted from the sale.” Plaintiff acknowledged her signature on the consent letter of July 2, 1975, but denied that letter was a consent to transfer or sell the five acres in question. She alleged defendants’ counterclaim was barred by the statute of frauds, waiver, laches, and estoppel and:
“Further, the portion of the agreement between the Barnharts and McGrew, et al . . . relied upon by defendants in claiming some interest in the 5-acre tract, is void because it is in violation of the Rule against Perpetuities.”
Both plaintiff and the defendants McKinney moved for summary judgment against each other. On August 10, 1983, the trial court rendered summary judgment for plaintiff. Relying on Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124 (1918), the court found that the “option agreement” contained in the 1971 contract was void as a violation of the rule against perpetuities. Defendants filed a motion for reconsideration, which was denied by the trial court on September 20, and have now appealed.
Defendants present three claims on appeal: (1) The trial court erred in holding that the 1971 contract violated the rule against perpetuities; (2) the 1975 sale to defendants in which they acquired their preemptive right to the five acres did not violate the Statute of Frauds; and (3) plaintiff s claim for slander of title should be dismissed. At this point we note once again certain standards governing summary judgment. Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 1, 662 P.2d 1203 (1983). When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister, 233 Kan. 252, Syl. ¶ 4. In light of the narrow issue before this court neither party in this case contends that there are genuine issues of fact which remain unresolved. No discovery has been conducted and the matter was submitted upon the written documents and motions for summary judgment.
While numerous arguments are raised by the parties, the crux of the issues on appeal is whether the language in the December 11, 1971, contract, which reads:
“Said 5 acres are to be retained by Sellers as a site for a house trailer with the understanding that when Sellers decide to sell or vacate said 5 acres they will first offer it to Purchasers at a price not to exceed $200.00 per acre plus the cost of any permanent improvements to the real estate that have a residual value”
violates the rule against perpetuities. If it does, the trial court must be affirmed; if it does not, the trial court must be reversed.
The rule against perpetuities precludes the creation of any future interest in property which does not necessarily vest within twenty-one years after a life or lives presently in being, plus the period of gestation, where gestation is in fact taking place. In re Estate of Freeman, 195 Kan. 190, 195, 404 P.2d 222 (1965). Agreements creating an option to purchase real property and agreements creating a preemptive right to purchase real property have both been recognized in Kansas as being subject to the rule against perpetuities. The distinction between an option and a preemptive right was described in Anderson v. Armour & Company, 205 Kan. 801, Syl. ¶ 1, 473 P.2d 84 (1970), where we held:
“A right of pre-emption differs from an option in that a pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell, but merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption at the stipulated price, and upon receiving such an offer, the pre-emptioner may elect whether he will buy, and if he elects not to buy, then the owner of the property may sell to a third party.”
The rule against perpetuities was first devised to prevent the practice of tying up family property for generations and thereby creating unreasonable restraints upon the alienation of property. The modern trend has been to limit the application of the rule whenever possible, especially in commercial transactions. One authority has stated:
“Excessively long family settlements were the threat which produced the Rule; and the perpetuity period was designed to fit the needs of family gift transactions. To derive from a rule thus motivated and thus formulated a general concept applicable to commercial transactions was a step of doubtful wisdom. Lives in being have no significance in commercial transactions, nor has the period of twenty-one years. Moreover, in accordance with standard perpetuities doctrine, when an option is held to be too remote the entire option is struck down, instead of only the excess beyond some permissible shorter period. This is unduly punitive on one party to the advantage of another who may be equally at fault. The usual case involves an option which the option-holder attempts to exercise within a very short period; the Rule against Perpetuities is seized upon by the owner to escape from his contract on the ground that the option-holder might have exercised the option too remotely — a situation which does not appeal to the common sense of business men or the ethical sense of anyone. Like the late lamented Statute of Frauds, the Rule becomes a destroyer of bargains which in all conscience ought to be performed.” Morris and Leach, The Rule Against Perpetuities, p. 217 (1956).
In Singer Company v. Makad, Inc., 213 Kan. 725, 518 P.2d 493 (1974), we recognized the modern trend in an action involving two “on completion” real estate leases involving proposed construction in two shopping center projects. No time was specified for the beginning of the term of each lease other than that the term would commence upon completion of construction of the premises. The lessee attempted to rescind the leases on the basis the beginning date for the term of the leases created an interest in real property which might not vest until some undesignated time in the future which might be in violation of the rule against perpetuities. The court refused to apply the rule and, in doing so, held:
“The modern tendency is .to temper the rule if possible where its harsh application would obstruct or do violence to an intended scheme of property disposition.” Syl. ¶ 2.
“This court has been reluctant to extend the ‘infectious invalidity’ doctrine to situations where application of the rule against perpetuities was not needed to prevent remote dispositions of property.” Syl. ¶ 3.
“The rule against perpetuities generally bears little relation to contemporary business practices or to the everyday world of commercial affairs.” Syl. ¶ 4.
“A document should be interpreted where feasible to avoid the conclusion that it violates the rule against perpetuities.” Syl. ¶ 6.
“Where no time has been fixed for the performance of an act to be done, the law implies that performance is to be accomplished within a reasonable time.” Syl. ¶ 7.
In the instant case plaintiff has two basic contentions: (1) the language in the December 11, 1971, contract purporting to grant a right to purchase the 5 acres retained by plaintiff and her husband is void as violating the rule against perpetuities, and (2) the sale from McGrew to defendants did not include the 5 acres and did not involve any rights to purchase the 5 acres. Plaintiff asserts that as the printed portion of the contract provided that it “shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties” plaintiff and her heirs or assigns might never decide to sell the property and might never vacate the property and therefore the possible time of vesting is so remote as to violate the rule. Defendants, on the other hand, contend that they purchased the 131.23 acres with the specific understanding that they were receiving all of the rights, as well as obligations, of the December 11, 1971, contract and that the right to purchase the 5 acres will vest, at the very latest, upon the death of Mrs. Barnhart. They contend the term “decide to sell or vacate” sets a time for performance which can be no later than the vacating of the premises by the death of the survivor of Dewey and Lena Barnhart.
In determining the issues before us, four documents are controlling: (1) The December 11, 1971, contract between the Barnharts and McGrew, (2) the July 1, 1975, contract between McGrew and defendants, (3) the July 2, 1975, letter from Mrs. Barnhart to McGrew, and (4) the June 4, 1982, letter from McGrew to defendant, Henry McKinney. In considering the first argument of plaintiff that the December 11, 1971, contract violates the rule against perpetuities, the determination must be made as of the time the contract was executed and cannot be based upon subsequent events. If the interest created might possibly vest at some time beyond the period permitted then the rule is violated. In re Estate of Freeman, 195 Kan. 190, Syl. ¶ 2. In our consideration of plaintiff s second argument, we are of the opinion that under the facts of this particular case, the four documents must be read together to determine the intent of the parties. See West v. Prairie State Bank, 200 Kan. 263, 436 P.2d 402 (1968). In construing these four documents the cardinal rule is that each will be construed from the four corners of the document and that all provisions must be considered together and not in isolation. Wiles v. Wiles, 202 Kan. 613, 619, 452 P.2d 271 (1969).
The December 11, 1971, contract asserts that McGrew Real Estate, Inc., is the agent representing Mrs. Barnhart, yet McGrew, Grosdidier and Callicott, all purchasers under the contract, were associated with or principals in McGrew Real Estate, Inc. That contract specifically gives McGrew a preemptive right to purchase the 5 acres at such time as the Barnharts “decide to sell or vacate” the property. It is also clear that the contract contemplated retention of the 5 acres by the Barnharts only until such time as they might “decide to sell” the property or until such time as they vacated it. The property itself is an integral part of the overall acreage sold and the right to purchase the 5 acres at a later date was clearly an important provision of and part of the consideration for the contract. Was the right to delay the sale of the property or the vacation of the property one which could be passed on to the heirs and assigns of the Barn-harts or was it personal to them? We think it was personal to the Barnharts and therefore the occurrence of either event would trigger McGrew’s preemptive right of purchase well within a term not violative of the rule against perpetuities. See 61 Am. Jur. 2d Perpetuities § 61. It is abundantly clear that the 5 acres was merely “to be retained by Sellers as a site for a house trailer” and that at such time as the Barnharts had no further need for the property, it would become available to McGrew. Such a determination gives credence to all of the terms of the December 11, 1971, agreement and comports with the rule from Singer Com pany that a “document should be interpreted where feasible to avoid the conclusion that it violates the rule against perpetuities.” At the very latest the property will be vacated upon the death of plaintiff which is well within the time necessary to avoid the application of the rule.
The trial court was of the opinion that Henderson v. Bell, 103 Kan. 422, was controlling in this case and that the December 11, 1971, contract did violate the rule against perpetuities. The plaintiff in Henderson sought to foreclose a mortgage given by defendant Bell on certain real property in Atchison County. Cross-petitions were filed among the various defendants, and Bell appealed that portion of the judgment requiring specific performance of a contract Bell had entered into with defendants Buchanan. In pertinent part that contract read:
“ ‘And it is also agreed that should first parties [Bell] elect to sell the following 40 acres now occupied by them, to-wit: The N.W. Vi of the S.W. Vi of Section 10-7-21, in Atchison County, Kansas, the second parties [Buchanans] shall have the right to purchase said last mentioned 40 at the agreed price of $65 an acre. It is further agreed that if said parties [Buchanans] elect to sell [the land actually purchased under the contract] at any time in the future, the first parties shall have the right to purchase same at the agreed price of $65 an acre, provided first parties will also buy the balance of the above described land at the agreed price of $40 an acre.’ ” Henderson, 103 Kan. at 423-24. (Emphasis added.)
In determining that the contract violated the rule against perpetuities, this court stated:
“By the contract, if Bell should elect to sell the property, he must first offer it to the Buchanans. The contract, if enforceable, gave to the Buchanans the right to .purchase the property at some future, indefinite, unknown time; and Bell can be compelled to convey the property to the Buchanans at such time for the price named. Bell cannot sell the property to any person without first offering it to those holding under the contract. When sold under the contract, the property must be sold at $65 an acre, although at that time it may be worth $1,000 an acre. Bell does not have an absolute, uncontrolled right to sell the property at any time that he may see fit. It follows that the Buchanans and those holding under them, either as assignees or heirs, would hold a right to obtain an interest in the property running for an indefinite period of time. That right would be held in violation of the rule against perpetuities. [Citations omitted.]
“All the authorities do not hold in accordance with this rule. [Citation omitted.] But the rule announced appears to be supported by better reasoning, and is more consistent with sound public policy.” Henderson, 103 Kan. at 424-25.
While we have no quarrel with the decision in Henderson, it is distinguishable from the case at bar in that there was no specified time of performance and, in fact, if the parties or their heirs should not “elect to sell” the property then the triggering event controlling the preemptive right of purchase might never come to pass. In the present case the contract, when construed in its entirety, provides that “when Sellers decide to sell or vacate” the right of preemption is triggered. We are treated in the appellants’ brief with a veritable treatise on the origin of and meaning of the words “when” and “vacate.” Appellants state in their brief:
“The word ‘when’ in its primary, most general and common sense refers to time. For example, as a noun its meaning is essentially: ‘what time,’ ‘which time,’ ‘the time of anything’; ‘The time or moment of an event.’ As a pronoun: ‘what or which time.' As an adverb-, ‘at the time that,’ ‘At what time,’ ‘which time,’ ‘At which time,’ ‘After the time that.’ ” Citing The American College Dictionary (C. L. Barnhart ed. 1968); Webster’s New Collegiate Dictionary (8th ed. 1980); The American Heritage Dictionary of the English Language (1978); Funk & Wag-nails Standard College Dictionary (1968); Oxford American Dictionary (1980); Thorndike Barnhart Comprehensive Desk Dictionary (C. L. Barnhart ed. 1957); A Dictionary of the English Language (Samuel Johnson 1755. Reprinted 1968).
Plaintiff, on the other hand, argued before the trial court and implies here that the word “when” should be read to mean “if’ and therefore the triggering event may not come to pass until after the period proscribed by the rule against perpetuities.
As to the use of and meaning of the word “vacate,” appellants make an exhaustive analysis of the origin and meaning of the word stating:
“Defendants have maintained all along that the word ‘vacate’ in the contract fixes the term of the preemptive right agreement beyond dispute. (B. 98-99) Numerous cases bearing on the subject appear in 91 C.J.S. and 43A W. & P. and they repeatedly establish that ‘when one physically ceases to occupy premises due to death that one has indeed vacated.’ As Words & Phrases clearly states: ‘that is vacant which is without that which is filled or might be expected to fill it, that it has extensive reference to rights or possibilities of occupancy.’ 43A W. & P. 482 citing Standard Dictionary. Appx. B, 12. See ‘Empty.’ Ocean Fifth Realty Corp. v. Stern, 109 N.Y.S.2d 92 (1951).”
Again plaintiff disputes the appellants’ arguments and points out that if the parties had intended to make the preemptive right to purchase vest at their death, it would have been a simple matter to say so in the contract as was done in Smerchek v. Hamilton, 4 Kan. App. 2d 346, 606 P.2d 491 (1980). While the briefs of the parties are scholarly and enlightening we do not deem the interpretation of the contract as being so difficult as to require a determination based upon the technical origin of and application of the words in question. In Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, 519 P.2d 646 (1974), we held:
“In placing a construction on a written instrument, reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all the pertinent provisions and never be determined by critical analysis of a single or isolated provision.” Syl. ¶ 3.
While the present contract may be poorly worded, the intent of the parties appears clear and in accordance with our prior decisions that whenever possible a document should be construed to uphold its validity rather than defeat it, we hold the December 11, 1971, contract under the specific facts of this case does not violate the rule against perpetuities.
Having determined the December 11, 1971, contract to be valid, do the preemptive provisions inure to the benefit of the defendants? We think so. In July, 1975, McGrew desired to sell the 131.23 acres to defendants and as a part of the contract the defendants were to assume the outstanding balance on the Barnhart-McGrew contract. After setting forth the monetary terms, the contract, in a separate paragraph, stated:
“It is understood that Sellers will obtain written consent from Lena Barnhart for the assumption of said contract.”
In compliance with those requirements, McGrew obtained a written consent from Lena Barnhart. The consent letter specifically referred to “your contract purchase of 151 acres” which indicates that all parties to the original December 11, 1971, contract contemplated that the entire acreage would eventually be sold to McGrew, not just 145 acres. In addition, after referring to the money balance due, Mrs. Barnhart stated, “I consent to Henry Lewis McKinney and wife assuming the above contract dated December 11, 1971.” The consent was not limited to an assumption of the monetary terms of the original agreement but appears to apply to the “contract dated December 11,1971” in its entirety.
In June of 1982, when plaintiff decided to sell the 5-acre tract, McGrew Real Estate, Inc., acting through Callicott as her agent, notified defendants “As per your contract with Lena she has instructed me to first offer the property to you . . . .” Plaintiff and McGrew recognized the preemptive right of the defendants to purchase the property. Plaintiff asserts that the July 1, 1975, contract specifically excepted the 5-acre tract from the property to be conveyed by McGrew and therefore did not carry with it the preemptive right to purchase the 5-acre tract. Obviously McGrew could not convey the 5-acre tract at that time as plaintiff had neither decided to sell nor had she vacated the property. However, the agreement between McGrew and defendants did specifically provide for an assumption of the December 11, 1971, contract and when Mrs. Barnhart consented thereto and released McGrew from further liability, all the contractual rights and obligations devolved upon defendants. It is plain to us, when all the documents are construed together, that all parties in 1975 and again in 1982 recognized the preemptive rights of the defendants. Plaintiff s contentions that the December 11, 1971, agreement violates the rule against perpetuities and that the 1975 transaction with the defendants did not include any preemptive rights to the 5 acres are without merit.
While the foregoing disposes of the two principal issues on appeal, the plaintiff has raised two other contentions not determined by the trial court which, in view of the necessity for further proceedings, will be addressed briefly. First, plaintiff contends that the December 11, 1971, contract constitutes an unreasonable restraint on alienation because the $200.00 per acre figure is not realistic in today’s market. While there is authority that a disparity in price due to subsequent inflation or market conditions may create an unreasonable restraint on alienation there is also authority to the contrary. 61 Am. Jur. 2d, Perpetuities § 121. In the instant case, plaintiff herself recognized the validity of the preemptive price, previously agreed upon, when she offered the property to defendants for the sum of $1,000.00 for the 5 acres of land. We find nothing unreasonable about the agreement fairly entered into between plaintiff and McGrew and subsequently adhered to in the sale from McGrew to defendants.
The other issue raised by plaintiff is that the defendants’ claim is barred by the statute of frauds. K.S.A. 33-106 provides in pertinent part:
“No action shall be brought . . . upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them . . . unless the agreement upon which such action shall be brought, or some memoran dum or note thereof, shall be in writing and signed by the party to be charged therewith . . .
In Clark v. Larkin, 172 Kan. 284, 239 P.2d 970 (1952), we held:
“A memorandum, in order to be enforceable under the statute of frauds, may be any document or writing, formal or informal, signed by the party to be charged or by his lawfully authorized agent, which states with reasonable certainty (a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, (b) the land or other subject matter to which the contract relates, and (c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.” Syl. ¶ 2.
The documents in question when construed in their entirety adequately meet the test of Larkin and we find the plaintiff s last two arguments to be without merit.
Finally, defendants ask this court to dismiss plaintiffs second cause of action seeking damages for slander of title. As this matter has never been ruled upon by the trial court, it is not properly before us on this appeal. However, from what has been said herein, it would appear obvious that upon remand the district court should make appropriate disposition of the claim.
The judgment of the trial court is reversed and the case remanded for further proceedings consistent with the views expressed herein. | [
-47,
-18,
-71,
44,
-120,
-32,
42,
-102,
107,
-95,
54,
83,
-49,
-54,
21,
105,
35,
77,
-59,
105,
119,
-78,
87,
-61,
-48,
-77,
-109,
-51,
-71,
95,
-10,
-41,
76,
16,
74,
85,
-62,
-64,
73,
92,
-114,
3,
9,
-44,
-57,
66,
52,
43,
22,
74,
53,
-114,
-13,
44,
29,
-5,
105,
46,
-21,
45,
-119,
-8,
-85,
-105,
95,
22,
-112,
36,
-104,
7,
88,
106,
-112,
53,
8,
-24,
87,
-90,
-106,
116,
9,
-117,
8,
38,
110,
33,
-75,
-17,
-24,
-120,
6,
91,
-115,
-89,
-112,
88,
114,
0,
-66,
-100,
116,
16,
3,
-4,
-25,
5,
29,
124,
6,
-49,
-44,
-109,
15,
122,
-102,
18,
-1,
7,
49,
113,
-49,
-30,
95,
-58,
56,
27,
-114,
-11
] |
Whereas, on the 5th day of April, 1980, Wilbur S. Stakes was indefinitely suspended from the practice of law in the State of Kansas (State v. Stakes, 227 Kan. 711, 608 P.2d 997); and
Whereas, on the 12th day of March, 1984, the respondent pled guilty in the United States District Court for the District of Kansas to one count of wire fraud in violation of 18 U.S.C. § 1343 (1982), which plea was duly accepted by the court and a conviction entered thereon; and
Whereas, on the 22nd day of March, 1984, an order was issued by this court for the respondent to appear, in person or by counsel, before this court on the 27th day of April, 1984, to show cause, if any, why he should not be disbarred from the practice of law in Kansas; and
Whereas, on March 26, 1984, a copy of said order was duly served by United States certified mail upon the respondent, upon his counsel Thomas J. Cox, Kansas City, Missouri, and upon his counsel Robert W. Feiring, Kansas City, Kansas; and
Whereas, no response was made to such order; and
Whereas, this court finds that the respondent should be disbarred from the practice of law in Kansas.
Now, Therefore, It is Ordered that Wilbur S. Stakes be and he is hereby disbarred from the practice of law in the State of Kansas.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
Effective this 3rd day of May, 1984. | [
-76,
-23,
-111,
62,
8,
64,
56,
-66,
27,
-15,
118,
83,
-23,
98,
0,
57,
18,
43,
52,
123,
-60,
-74,
119,
-53,
54,
-77,
-55,
-43,
-69,
95,
-26,
-107,
73,
-80,
74,
-41,
70,
66,
-31,
24,
-114,
4,
-119,
120,
83,
1,
54,
111,
19,
11,
49,
-98,
-5,
42,
31,
-49,
-24,
12,
-53,
73,
73,
-63,
-101,
7,
124,
20,
-94,
-123,
-98,
13,
-16,
-1,
-104,
57,
1,
-40,
115,
-90,
2,
100,
71,
57,
0,
102,
34,
33,
85,
-81,
-92,
-120,
62,
-76,
-99,
-89,
-104,
72,
35,
-114,
-98,
-105,
86,
-112,
13,
-4,
-23,
13,
53,
44,
11,
-54,
-80,
-125,
-49,
118,
-98,
90,
-21,
-73,
-112,
81,
-52,
-26,
78,
78,
48,
-97,
-115,
-11
] |
The opinion of the court was delivered by
Miller, J.:
This is an appeal by the claimant, Ricky Duane Fogle, from a workers’ compensation award. Fogle sustained injury when he fell from a balcony while fighting a fire. He landed on an air bottle that was strapped to his back. His only permanent disability is to his left arm. The claimant, contending that the situs of the injury was to a spinal nerve, sought compensation for permanent partial disability of the body as a whole under K.S.A. 44-510e. The administrative law judge granted an award based upon loss of use of the arm, a “scheduled injury” under K.S.A. 44-510d. The Director of the Division of Workers’ Compensation, the District Court of Sedgwick County, and the Court of Appeals affirmed. We granted review.
The Court of Appeals opinion, reported in 9 Kan. App. 2d 129, 673 P.2d 465 (1983), fully discusses the facts and the applicable law. We have carefully examined the record, the briefs of the parties, the reported cases from Kansas and other jurisdictions, and the commentary on the subject, and we find no reason to disturb the judgment below, which applies the majority view. It is the situs of the resulting disability, not the situs of the trauma, which determines the workers’ compensation benefits available in this state.
We adopt the opinion of the Court of Appeals.
The judgment of the district court is affirmed. | [
-112,
104,
-35,
-98,
24,
97,
42,
74,
97,
-107,
37,
83,
-25,
-39,
-59,
107,
-41,
109,
85,
123,
83,
-77,
19,
-55,
-50,
-69,
-5,
77,
-69,
122,
-12,
-74,
73,
32,
10,
21,
-26,
-64,
69,
20,
-56,
7,
9,
-40,
89,
3,
-72,
46,
-112,
3,
49,
31,
123,
42,
24,
-61,
44,
44,
91,
37,
-47,
-72,
-54,
5,
127,
16,
-93,
4,
-100,
-89,
80,
24,
-102,
49,
1,
-20,
114,
-26,
-122,
-76,
99,
-71,
-123,
103,
98,
35,
29,
-19,
108,
-72,
14,
71,
-99,
-91,
-101,
24,
-8,
11,
-108,
-67,
119,
60,
14,
124,
-9,
69,
79,
108,
-125,
-121,
-76,
-109,
-49,
45,
-106,
-21,
-21,
-123,
-78,
101,
-34,
-94,
92,
70,
114,
-97,
62,
-104
] |
The opinion of the court was delivered by
Herd, J.:
This is an action for recovery on bonds filed to discharge mechanics’ liens on property.
Bob Eldridge Construction Company, Inc., is a general contractor who was engaged in the construction of Peachtree Plaza Tower and Somerset Plaza Tower. These are highrise apartment buildings for the elderly in Haysville and Wichita.
The specifications for Peachtree and Somerset called for the use of one-half inch plain gypsum drywall (also known as “wallboard” or “sheetrock”) in the individual living units and fire-rated gypsum board and water-resistant gypsum board where specifically noted. Eldridge subcontracted its drywall work on Somerset and Peachtree to R & S Construction Company. R & S was responsible for furnishing and installing the gypsum walls at Somerset and Peachtree under its subcontract with Eldridge.
Pioneer Materials, Inc., is the principal supplier of drywall in the Wichita area. Pioneer supplied all of the drywall in the Peachtree and Somerset projects. Pioneer’s agreement with Eldridge was that Eldridge and R & S would call and place orders as needed. Pioneer had no subcontract with Eldridge.
Pioneer’s procedure for delivering materials to the Peachtree and Somerset projects was to give its employees an invoice and a truckload of material. The employee was told to deliver the material and get the delivery ticket signed when the delivery was completed. When the employee returned with the empty truck and handed in the delivery ticket, he was paid for delivering the material.
R & S failed to complete the work under its subcontract. After R & S left the projects, Pioneer supplied drywall and drywall accessories directly to Eldridge. R & S later took bankruptcy.
All of the drywall utilized in the projects was delivered to the job sites by Pioneer. Ron Eldridge, general superintendent for Eldridge Construction Company, saw the sheetrock stored at the job site. The owners of the projects were aware that Pioneer was the drywall supplier.
When Eldridge and R & S requested materials, they would be invoiced on an open account by Pioneer. The terms of the open account were stated on the invoice which the contractor received when he accepted the materials. The invoices charged an interest rate of 1.5% per month on accounts not paid in full on the 10th of the month following the date of purchase.
Payment for materials requested by R & S and supplied by Pioneer was to be made by R & S through its monthly draws from Eldridge. Eldridge received all of the invoices from Pioneer on the projects either as they were submitted directly to Eldridge for payment or from R & S, since the invoices were attached to its monthly draw sheets. Pioneer sold 416,536 square feet of drywall to R & S on its account for use in the Peachtree and Somerset projects and sold 1,728 square feet of drywall directly to Eldridge for use in the projects.
There is no claim that Pioneer overcharged for the drywall or that the materials ordered had not been completely delivered to the projects by Pioneer.
Defects in the drywall were discovered after Pioneer had completed its work on the projects. The defects were caused by the manufacturing process and were, therefore, not the fault of Pioneer, the supplier. The only reason Pioneer was not paid by Eldridge was due to the' defects.
Pioneer filed lien statements against the Peachtree project in the amount of $6,238.84 and against the Somerset project in the amount of $11,439.78 on March 28, 1979, in Sedgwick County. Attached to the lien statements were documents entitled “statement in support of lien” which listed material invoice numbers, the dates of the invoices and the amount charged for each invoice listed. Copies of the invoices themselves were not attached. The lien statements were signed by Gary Hamel in his capacity as president of Pioneer.
On July 30, 1979, Eldridge, as principal, and Fireman’s Fund, as surety, executed and filed bonds to discharge the liens filed by Pioneer. On October 22, 1980, Eldridge filed a petition against Pioneer and United States Gypsum Company for damages resulting from the defective drywall supplied to the Peachtree and Somerset projects.
Pioneer filed an answer, counterclaim and cross-claim on July 30, 1981. The counterclaim was filed against Eldridge and Fireman’s Fund and sought recovery on the bonds which had been filed to discharge the liens against Peachtree and Somerset.
On November 12, 1981, Pioneer filed a new action against Eldridge and Fireman’s Fund stating the same cause of action stated in its counterclaim. The two cases were then consolidated for trial.
Eldridge’s claims against Pioneer and United States Gypsum were tried to the court on April 5, 1982. At the conclusion of Eldridge’s case against Pioneer and United States Gypsum, the proceedings were adjourned until April 21, 1982. When the proceedings resumed the trial court was advised Eldridge had dismissed its action against Pioneer and United States Gypsum as part of a settlement with United States Gypsum.
On January 19, 1983, the trial court entered its memorandum decision in favor of Pioneer on the bonds against Eldridge and Fireman’s Fund in the amount of $6,238.84 on Peachtree and $11,439.78 on Somerset with interest at the rate of 18% per annum from March 28, 1979. Eldridge and Fireman’s Fund instituted this appeal.
The first issue raised by appellant is the trial court erred in ruling it was not necessary for appellee to prove it had perfected its liens against appellant.
The appellee, Pioneer, filed mechanics’ liens against the Somerset and Peachtree projects for materials it supplied for their construction. Shortly after the filing of the liens, the appellants posted bonds pursuant to K.S.A. 60-1110 to discharge the mechanics’ liens. Appellee then brought this action to recover on the bonds.
At trial, the appellant argued the appellee had not perfected its liens by complying with all of the statutory requirements, including proof of a reasonably itemized statement,, an authorized verification, and proof that the material was used or consumed for the improvement of the appellant’s real property. The trial court ruled the perfection of the lien need not be proved since the filing of the bond discharged the lien; therefore, all the proof necessary is that the appellee under agreement supplied material which was used in the construction. Appellant argues this is error since the trial court is then validating the lien without the requisite statutory proof.
The statute involved here, K.S.A. 60-1110 states:
“The contractor or owner may execute a bond to the state of Kansas for the use of all persons in whose favor liens might accrue by virtue of this act, conditioned for the payment of all claims which might be the basis of liens in a sum not less than the contract price, with good and sufficient sureties, to be approved by, and filed with, the clerk of the district court, and when such bond is so approved and filed no lien shall attach under this act, and if when such bond is filed liens have already been filed, such liens are discharged. Suit may be brought on said bond by any person interested.”
This clearly shows the lien need not be perfected in this case, rather, it must merely be shown that it could have been perfected if the bond had not been filed. This interpretation is supported by case law. In Murphree v. Trinity Universal Ins. Co., 176 Kan. 290, 294, 269 P.2d 1025 (1954), we held:
“It is quite true that the statutory lien bond in question is a substitute for liens, is for the use of all persons in whose favor liens might accrue, and when such a bond is filed and approved no lien shall attach (G.S. 1949, 60-1412). In other words, when the bond is filed a claimant is not required to file a lien statement in order to preserve his rights — he may then look to the bond for recovery — but other than this the bond effects no change in the rights and relations of the parties. A claimant can recover on the bond only if in its absence he could have perfected and enforced a lien.”
It has also been stated the bond money “stands in place of the lien, but the payment into court is not an acknowledgement of claimant’s right or a waiver of defenses, and a claimant is not entitled to receive, or share in, the amount deposited until he has established his claim and lien.” 57 C.J.S., Mechanics’ Liens § 233.
The trial court, therefore, did not err in holding the bonds discharged the lien and the appellee was bound only to prove the validity of its claim to the bonds. Thus, the only question is whether the appellee could have perfected the lien, which is the next issue raised by appellant.
Appellant argues the trial court erred in concluding the evidence established that appellee could have perfected and enforced its liens. To establish this appellant cites ten errors in appellee’s liens. Appellee argues these errors were not reserved in the pretrial order as defenses and hence cannot be raised on appeal. The record reveals these defenses were generally articulated in the pretrial order and specifically called to the court’s attention at various times throughout the trial process. They were sufficiently raised at the trial level to pursue on appeal. Appellee’s argument is without merit.
Appellee next argues the ten errors pertain to an action to foreclose the lien and this action was not on the lien but rather on the bonds. While this is correct, as previously shown, the appellee still has the burden to show it could have perfected its liens. The issue before the court is to what extent the appellee must show it could have perfected its liens. We hold the rule is as stated in Murphree that “when the bond is filed a claimant is not required to file a lien statement in order to preserve his rights — he may then look to the bond for recovery . . . .” 176 Kan. at 294. This means when the bond is filed the statutory requirements of the lien, such as the filing of a lien statement, need not be complied with and are waived. The only requirement to recover the bond money is to prove the material or labor was supplied by the claimant and was used in the improvement of the real property which was the subject of the lien. The case then shifts from a showing that each statutory lien element was fulfilled to a showing that the claimant has a right to the bond. See 57 C.J.S., Mechanics’ Liens § 233, p. 806. The posting of a bond also eliminates the need for the strict construction rule we adhered to in mechanics’ lien cases since the lien is thereby eliminated.
Considering appellee’s right to the bond, appellant first argues there is no proof of delivery of the materials. We have held there will be a presumption of use if there is proof of delivery of the materials to the building site. See Geis Irrigation Co. v. Satanta Feed Yards, Inc., 214 Kan. 373, 521 P.2d 272 (1974). In this case the invoices, which showed who had performed the delivery of the materials, were admitted into evidence. The individuals performing the deliveries, however, were not witnesses in the case. Appellant argues this is insufficient proof of delivery. It is not stated what level of proof appellant would deem sufficient. The testimony at trial from both appellant’s and appellee’s witnesses was that all of the materials were delivered as contracted and they were seen on the site. This court in Geis stated:
“The appellants argue with considerable force there was not sufficient proof that the material and supplies furnished found their way into the building. Again, this is a question of fact for the determination of the district court. It found the material and supplies in question were delivered and placed at the building site. There was substantial evidence to support the finding. With respect to the enforcement of a mechanic’s lien, this state follows the rule of presumptive use where material is delivered to the building site.” 214 Kan. at 379.
There is substantial evidence to support the trial court’s finding of fact that delivery occurred in this case.
Appellant also argues the lien statement falsely identified Pioneer as a subcontractor and there was no proof of a contract to supply material to the contractor. Pioneer was allowed to bring the lien as a subcontractor or “other person” under the lien statute. See K.S.A. 60-1103. The false identification as a subcontractor, rather than as an “other person,” on the lien form was not misleading and did not allow Pioneer to recover when it ordinarily would not have been allowed to.
As to the existence of a contract between appellee and appellant there was evidence appellee furnished drywall to both appellant and its subcontractor, R & S, under an open account system of ordering and payment. The general rule is that a claim for materials furnished to a subcontractor is within the coverage of a bond given by a general contractor to secure payment for labor and materials employed or used in the performance of the general contract. See Leidigh & Havens Lumber Co. v. Bollinger, 193 Kan. 600, 603, 396 P.2d 320 (1964). A contract was, therefore, sufficiently proven.
The statute of limitations on foreclosure of a mechanics’ lien is one year from the filing of the lien pursuant to K.S.A. 60-1105. Pioneer’s suit on the bond was not filed until July 30, 1981, over two years from the date of the filing of the lien statements. Appellant argues the action is, therefore, barred as being out of time.
The bond statute involved here, K.S.A. 60-1110, does not provide its own statute of limitations. Thus, the question is whether the lien enforcement statute of limitations of one year given in K.S.A. 60-1105 or the five-year statute of limitations for bonds in K.S.A. 60-511 is to be applied. It is argued K.S.A. 60-511 applies since no statute of limitations is listed in K.S.A. 60-1110. K.S.A. 60-501 states:
“The provisions of this article [Article 5. — Limitations of Actions] govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute.”
K.S.A. 60-511(4) specifically provides a five-year statute of limitation for:
“(4) An action upon the official bond or undertaking of an executor, administrator, conservator, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, arrest, or in any case required by statute.”
Since this is a suit on the bonds given by appellant, and not a mechanics’ lien foreclosure, the five-year statute of limitations pertaining to bonds is the appropriate limitation.
Appellant next argues that while the trial court granted the appellee’s request to amend the pleadings to include a theory of recovery for quantum meruit, an actual amendment was never filed. Pursuant to K.S.A. 60-216, the trial court’s pretrial order amends the pleadings and no other document need be filed. This issue is without merit.
Appellant also argues the amendment to include the quántum meruit theory should have been disallowed since the three-year statute of limitations which governs quantum meruit claims had passed by the time of the pretrial conference. K.S.A. 60-215(c) provides amended pleadings relate back to the original pleadings and are deemed to be timely if they “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . . .” Appellant claims the quantum meruit theory does not apply since it is a completely new cause of action. This issue need not be resolved since the trial court did not grant recovery on the quantum meruit theory. The trial court stated: “Essentially, the question is one of proof and recovery under two open accounts and not under quantum meruit.” Thus, there can be no error or prejudice by allowing the amendment.
Appellant next argues the trial court erred in granting appellee prejudgment interest at the rate of 18% per annum from March 28, 1979, pursuant to K.S.A. 16-205(c). This statute provides:
“When a rate of interest or charges is specified in any contract, that rate shall continue until full payment is made, and any judgment rendered on any such contract shall bear the same rate of interest or charges mentioned in the contract, which rate shall be specified in the judgment; but in no case shall such rate- or charges exceed the maximum rate or amount authorized by law, and any bond, note, bill or other contract for the payment of money, which in effect provides that any interest or charges shall accrue as a penalty for any default, shall be void as to any such provision.”
The trial court held this statute was applicable because the amounts owed were certain and the invoices clearly showed the amount was due on the 10th day of the month following delivery and acceptance. The invoice also provided for interest at the rate of 18% per annum on overdue accounts. The acceptance of the ordered material constituted acceptance of the terms of payment. Ron Eldridge, Eldridge Construction Company’s supervisor, testified the relationship between the parties was for the contractor to request the materials and then be invoiced on an open account. The terms of the open account were the terms on the invoices. The contractor accepts the terms when he accepts the materials. Mr. Eldridge further testified that in the course of dealing with materialmen in general and Pioneer in particular, he knew it was customary for materialmen to charge interest on an invoice in the event payment was not made on time.
Clearly, the parties contemplated the payment of interest by their course of dealing and -their knowledge of trade practices and customs. No evidence was introduced by appellant to show the 18% per annum interest was unreasonable or unacceptable.
The trial court did not err in holding K.S.A. 16-205(a) requires the awarding of interest pursuant to the invoice terms.
The last issue is that the trial court erred in entering judgment against Fireman’s Fund Insurance Company. The trial court in this case denied appellee’s motion to dismiss appellant’s petition for failure to join Fireman’s Fund as a contingently necessary party. The trial court also denied appellee’s motion to join Fireman’s Fund as a contingently necessary party under the counterclaim. At the pretrial conference, the parties agreed to sever appellee’s claims against Fireman’s Fund for trial at a later date. This agreement was memorialized in the pretrial order. Statements were made during the course of the trial by counsel for both parties that the only issue being tried to the court was appellee’s claims against Eldridge. The trial court did not make findings of fact with regard to the liability of Fireman’s Fund under the lien .bonds. The trial court, however, entered judgment against Fireman’s Fund, as well as Eldridge for all amounts claimed by appellee. Appellant claims the trial court’s action denied Fireman’s Fund the right to have its evidence on the matter considered by the court.
In General Motors Acceptance Corporation v. Mogge, 181 Kan. 346, 311 P.2d 339 (1957), we held sureties on a delivery bond were included in the judgment in a former action against the debtor-property owner in the absence of fraud or collusion between the parties. The surety was not permitted to retry the issues resolved in the former action. The surety was also precluded from setting up any defenses which with reasonable diligence could have been raised in the former action.
In the instant case, no issue regarding fraud or collusion was raised by Fireman’s Fund in its pleadings. The defenses and claims were identical to those of Eldridge. The attorneys for Fireman’s Fund are the attorneys for Eldridge. There is no conflict, therefore, between the parties. The trial court erred in allowing judgment against a party when it held that judgment would be preserved for another trial. That error is harmless, however, since the issues in a separate trial against Fireman’s Fund would be identical to those presented here. We have held error which does not prejudice the substantial rights of a party affords no basis for reversal of a judgment and must be disregarded. See Kansas Savings & Loan Ass’n v. Rich Eckel Construction Co., Inc., 223 Kan. 493, Syl. ¶ 1, 576 P.2d 212 (1978). The trial court did not commit reversible error in including Fireman’s Fund in its judgment.
The judgment of the trial court is affirmed. | [
-48,
120,
-36,
-100,
24,
66,
58,
-102,
121,
-92,
33,
95,
-19,
-17,
29,
107,
-89,
125,
-11,
107,
117,
-77,
3,
-1,
-44,
-13,
115,
-27,
-72,
95,
-12,
-108,
12,
20,
-118,
31,
-90,
-62,
-43,
92,
6,
5,
9,
100,
-3,
32,
52,
10,
52,
13,
97,
-108,
-77,
44,
61,
-53,
78,
60,
109,
40,
80,
-7,
-101,
5,
-17,
5,
50,
100,
-112,
3,
-8,
30,
-120,
60,
0,
-23,
114,
-74,
-106,
-28,
91,
-39,
13,
38,
98,
1,
-107,
-91,
-52,
-40,
18,
-2,
-99,
-91,
-125,
57,
51,
110,
-65,
29,
112,
27,
-92,
84,
-22,
-124,
27,
124,
11,
-50,
-12,
-109,
-115,
-16,
-104,
31,
-18,
-62,
49,
101,
-50,
-94,
124,
38,
113,
19,
30,
-85
] |
The opinion of the court was delivered by
Prager, J.:
This is a direct appeal by the defendant, Jerry B. Gray, following his conviction of unlawful restraint (K.S.A. 21-3424) and rape (K.S.A. 1983 Supp. 21-3502). At the trial, the complaining witness, Tracie, testified in substance as follows: She was employed as a waitress at McDonald’s restaurant in Leavenworth. Shortly after midnight on March 4, 1982, she left the restaurant with two coworkers following the closing of the business. It was cold and icy. After helping each other to clean car windows of ice, each employee left in a separate car. Tracie testified that, as she was stopped at a stoplight at an intersection, the defendant suddenly raised up out of the back seat of the vehicle and held a knife at her throat. The defendant forced her to drive to an isolated area near his apartment. He placed her coat over her head and forced her to walk to his apartment where he threatened her, told her to disrobe, and forced her to have sexual intercourse without her consent. Defendant kept her there until 11:30 a.m. the following morning when he took her to a friend’s house. After the defendant had departed, the friend called the victim’s family and the police, and the defendant was thereafter charged.
The defendant’s story was much different. He testified that he talked to Tracie during the course of the evening at McDonald’s and that she later showed up voluntarily at his apartment shortly after midnight. He let her in and they subsequently had consensual sexual intercourse. According to the defendant, the victim voluntarily stayed at his apartment until 11:30 a.m., when she went to the friend’s house. Essentially, it was the defendant’s word against that of the victim, since there were no other witnesses to the occurrence. The jury believed the complaining witness and convicted the defendant. Following his conviction, the defendant appealed.
The defendant’s first point on the appeal is that the trial court erred in allowing the prosecution to introduce testimony as to a prior incident involving the defendant which occurred at 9:30 p.m. on March 2, 1982, approximately 26 hours prior to the commission of the offense in this case. Prior to trial, the State filed a motion requesting the court to determine the admissibility of the evidence under the provisions of K.S.A. 60-455. After considering the State’s motion, the court ruled that the State could introduce the evidence at the trial. Thereafter, at the trial, the State offered the testimony of Mrs. C which was essentially as follows: At about 9:30 p.m. on March 2, 1982, in a parking lot directly across the street from the McDonald’s restaurant involved in this case, Mrs. C and her husband and brother-in-law returned to Mrs. C’s car following a period of shopping in the area. As Mrs. C approached her car, she saw the defendant crouching in the back seat with what appeared to her to be a knife. When the defendant saw that Mrs. C was accompanied by her husband and brother-in-law, he immediately exited the car holding what was later discovered to be a pair of scissors. The defendant did not actually threaten Mrs. C with the scissors, but he told Mrs. C that he was loaded and tired and was in the wrong car. Mrs. C immediately reported the incident to the police. Defendant was then apprehended and identified as the individual that had been in the back seat of the automobile. At the trial, the defendant testified that he had ridden to the shopping center with a friend, and having been separated from his friend, went to what he thought was his friend’s car to await the friend’s return from the shopping center. The State introduced this evidence to corroborate the testimony of the victim on the basis that this evidence showed that 26 hours before the incident involving Tracie, the defendant was crouching in the back seat of an automobile with a sharp instrument in his hand and at a place across the street from where Tracie was assaulted. The court admitted the testimony of Mrs. C on the basis of K.S.A. 60-455 in order to show plan and preparation. It is the defendant’s contention that the trial court erred in admitting the evidence of the prior incident because the resulting prejudice to the defendant far outweighed its probative value. The State contends that the evidence was not only admissible under K.S.A. 60-455 but was also independently admissible as tending to establish the crime with which the defendant was charged.
The trial court, in admitting the testimony, ruled that the evidence was relevant to show the defendant’s preparation and plan for the offense charged and was so probative that its value outweighed any prejudicial effect. In its ruling, the court stated that it would give a proper limiting instruction at the close of the trial restricting consideration of the evidence for the limiting purpose of proving preparation and plan. We have considered the issue and concluded that the evidence was properly admissible independently of K.S.A. 60-455. It has long been the rule in this state that, while evidence of an independent offense may be admissible in a criminal case under the provisions of K.S.A. 60-455 for the limited purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, it may also possess evidential value to show the commission of the offense itself, in which case the evidence is admissible independently of the foregoing statute. Evidence which is otherwise relevant in a criminal action is not rendered inadmissible because it may disclose another or independent offense. State v. Martin, 208 Kan. 950, 495 P.2d 89 (1972).
In State v. Ferris, 222 Kan. 515, 565 P.2d 275 (1977), the rule is recognized that acts done or declarations made before, during, or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence. Evidence that does not constitute a portion of the crimes charged is admissible if there are some natural, necessary, or logical connections between the evidence and the inference or result which it is designed to establish. In Ferris, the court relied on State v. Martin. The rule was also applied in State v. Marks, 226 Kan. 704, 602 P.2d 1344 (1979), and in State v. McDaniel & Owens, 228 Kan. 172, 176, 612 P.2d 1231 (1980). In the present case the prior incident in the parking lot was closely linked in time and place with the crime charged. It possessed evidential value in tending to show the commission of the offense itself. The testimony, which showed prior acts of the defendant in entering without permission the automobile of another, crouching in the back seat, and suddenly rising up with a sharp instrument in hand to accost the owner, which incident took place in a parking lot across the street from the McDonald’s restaurant, clearly corroborated the victim’s testimony and hence was admissible independently of K.S.A. 60-455. We find that the trial court did not err in admitting that testimony.
The defendant’s second point on the appeal is that the trial court erred in failing to give the limiting instruction customarily given where evidence is admitted under K.S.A. 60-455. In view of the fact that we have held under the first point that the evidence complained of was admissible independently of K.S.A. 60-455, we hold that a limiting instruction was not required in this case. It is not error for the trial court to fail to give a limiting instruction on the purpose of evidence of other crimes when the challenged evidence is admissible independently of K.S.A. 60-455. State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976).
On this issue, it should also be pointed out that the record clearly shows that the trial court offered to give a limiting instruction and was willing to do so but did not give such an instruction because defense counsel on the record objected to the limiting instruction. Under the circumstances, the defendant has no right to complain. The rule is well established that a litigant may not invite error and then complain of that error on appeal. State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982). In this regard, we also note State v. Gross, 221 Kan. 98, 100, 558 P.2d 665 (1976). There the defendant was convicted of burglary and misdemeanor theft. On appeal, the defendant contended that the trial court erred in failing to instruct the jury on voluntary intoxication. The record showed that the trial court, during a conference on instructions, announced that an instruction on intoxication would not be given after the defendant objected thereto. The court noted that deletion of the instruction was invited by defendant as part of his trial strategy. Therefore, failure to give the instruction could not form the basis for a valid complaint on appeal. The basis of the court’s ruling was- that a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action. Under the circumstances and in view of the defendant’s objection to the giving of a limiting instruction in this case, we hold that the defendant has no right to complain on appeal that the instruction was not given.
The defendant’s final point is that the defendant did not receive a fair and impartial trial because of the totality of the circumstances as shown by the record. Under this point, the defendant lists a number of claimed errors of the trial court, including the claimed excessiveness of the bail bond, denial of a speedy trial, late endorsement of witnesses, misconduct of the prosecutor in his opening statement, an excessive number of witnesses presented by the State, and prejudicial newspaper publicity. We have considered each one of these points and have concluded that, either independently or collectively, there is no sound basis for a claim by the defendant on this appeal that he was denied a fair trial.
The judgment of the district court is affirmed.
Schroeder, C.J., concurs in the result. | [
-16,
-22,
-7,
-82,
27,
97,
58,
-76,
100,
-121,
-75,
83,
-85,
-48,
12,
123,
83,
93,
84,
97,
-38,
-77,
7,
67,
-14,
-5,
-96,
-36,
-109,
74,
-12,
-12,
76,
-78,
10,
-47,
38,
-54,
-43,
-34,
-114,
-122,
-71,
-16,
-48,
-128,
36,
123,
-30,
15,
49,
29,
-29,
40,
24,
-61,
9,
44,
75,
-83,
120,
113,
-95,
5,
-1,
48,
-77,
20,
-66,
39,
-8,
7,
-99,
-79,
0,
104,
114,
-74,
-126,
116,
111,
-117,
12,
42,
98,
32,
29,
-25,
109,
-103,
78,
119,
-99,
-89,
-40,
24,
8,
97,
-66,
-35,
97,
52,
9,
122,
-2,
95,
57,
-28,
-117,
-33,
-100,
-79,
-51,
117,
50,
-113,
-29,
49,
-128,
113,
-49,
-80,
76,
87,
123,
-37,
-50,
-78
] |
The opinion of the court was delivered by
Cook, District Judge Assigned:
This is an appeal from the judgment of the district court granting a certificate of need to Shawnee Mission Medical Center (Medical Center) after the requested certificate had been denied by the Kansas Department of Health and Environment (KDHE) following an administrative hearing.
The Medical Center is a hospital located in Johnson County and currently has a licensed capacity of 383 acute-care beds. Included in that total is a twenty-two bed inpatient Alcoholism Recovery Unit treatment program; providing acute level alcoholism detoxification and rehabilitation services. On August 9, 1982, the Medical Center filed Certificate of Need (C.O.N.) application #4-JO-062 with KDHE in accordance with K.S.A. 65-4801 et seq. The Medical Center sought approval to construct a “free-standing” Alcoholism Recovery Unit (A.R.U.) in which to relocate and expand the inpatient rehabilitation program by six beds, and to offer, for the first time, an outpatient treatment program. The proposal called for construction of a twenty-eight bed acute-care patient wing to be attached to the existing “Life Dynamics Center.” The project would have encompassed 22,957 square feet of newly constructed and remodeled space at a total cost of $2,002,100.00, or $71,503.00 per bed. The Medical Center included in its application a request for licensure of twenty-two new acute-care beds in the existing patient tower, to replace the twenty-two rehabilitation beds which were moved to the new A.R.U. When this request was combined with the six new beds for the A.R.U., the application represented a net increase of twenty-eight beds, raising the Medical Center’s licensed capacity from 383 to 411.
On September 24,1982, a public hearing was held in Overland Park before KDHE Hearing Officer Scott Buckley. In support of the Medical Center’s application ten witnesses appeared and testified, and two letters were admitted into evidence. Two other witnesses testified in opposition to the request, and three letters were admitted which opposed the certificate of need because of the request for additional beds beyond the Medical Center’s current licensed capacity.
Based on this record, KDHE Secretary Joseph Harkins denied the application on November 22, 1982. Of the six review objectives and criteria adopted by the Kansas Statewide Health Coordinating Council pursuant to K.S.A. 65-4804 (’’community need, quality of care, community support, financing, cost containment, and accessibility”), Harkins found the proposal failed to meet the criteria for community need and cost containment. More specifically, the Secretary stated the project was not needed to improve the availability of acute care services for alcoholism or medical/surgical patients in the applicant’s designated service area, because there was already a surplus there of more than 1,500 acute-care beds and a correspondingly lower-than-recommended occupancy rate.
“The Secretary finds that the local health plan [the 1982-1986 Health Systems Plan by Mid-America Health Systems Agency] has established a desired level of utilization for alcoholism treatment beds, and that these beds in the service area are operating at a level below that recommended. The Secretary further finds that the service area has an excess of all types of acute care beds . . . .”
Finally, regarding the issue of cost containment, the Secretary concluded the proposed project would unnecessarily increase the cost of patient care and health care services in general because of the estimated increase in debt service and depreciation per patient day and due to the absence of a demonstrated need for the additional beds.
On December 6, 1982, counsel for the Medical Center met with Secretary Harkins in Topeka. They spoke of the “over-bedding” condition in Wyandotte and Johnson Counties, and Harkins alluded to that as being at least one of the reasons he denied their application. Upon further probing by counsel, Harkins responded that he would consider deletion of the proposed new beds in a request for reconsideration a “significant change in the application.” Such a change, he said, would clearly remove one of the major reasons for his earlier denial, and would have a very good chance of receiving reconsideration, although he made no promises or guarantees about the ultimate result.
That very day Medical Center Senior Vice President Terry White wrote Secretary Harkins requesting reconsideration of his decision pursuant to K.A.R. 28-42-9(b)(2). In pertinent part, White said:
“It appears that the major rationale behind the denial of our proposal is the fact that it would result in the development of twenty-eight (28) additional acute-care beds. The fact remains, however, that our alcoholism recovery unit cannot continue operating in a cost-efficient manner in its present location regardless of whether or not acute-care beds are added.
“We are therefore requesting a reconsideration of your decision, based on a reduction in size of the free-standing alcoholism recovery unit to 22 beds and no net increase in the licensed acute-care capacity of SMMC. The area on the fifth floor of the patient tower currently occupied by the alcoholism recovery unit would be converted to other acute-care use as originally planned. However, twenty-two acute-care patient rooms would be converted from semiprivate to private occupancy, thus resulting in the maintenance of the medical center’s current licensed bed capacity.”
Secretary Harkins ordered a reconsideration hearing pursuant to K.S.A. 1983 Supp. 65-4808 and K.A.R. 28-42-9, finding White’s request demonstrated “the existence of significant and relevant information not previously considered.” In his order for recon sideration, however, Harkins limited the reconsideration hearing to the following issues:
“1. Revision of the application from a free-standing alcohol recovery unit and the addition of 28 acute care beds to a request for a free-standing alcoholism recovery unit with no increase in the number of beds.
2. A comparison of operating costs for the existing in-hospital alcoholism recovery unit with costs projected for the proposed free-standing unit.
3. The need to convert 22 semi-private rooms to private rooms.”
The reconsideration hearing was held January 6, 1983, in the KDHE Topeka offices with Hearing Officer Scott Buckley again presiding. No witnesses, testimony or evidence were received in opposition to the request; in fact some who previously opposed licensure of the additional beds now wrote supporting the revised proposal for the “free-standing” A.R.U.
Approximately one month later Hearing Officer Buckley filed his report, recommending denial of the application. He first concluded the proposed relocation would not enable the Medical Center to reduce the operating expenses of the A.R.U., projecting instead that those expenses would increase:
“[A]lthough the applicant projects the Alcoholism Recovery Unit to operate profitably by 1986, the excess revenue over expenses results mainly from increased patient charges, rather than the improved cost-effectiveness of the Alcoholism Recovery Unit.”
Although recognizing there could be some advantages flowing from integrated inpatient and outpatient programs, Buckley concluded there was no reason to believe an outpatient program could not operate independently especially since both programs were to be staffed separately anyway. Finally, he found the availability of acute-care beds in other Johnson County hospitals precluded any need for “additional [private] beds” in Shawnee Mission Medical Center.
The new Secretary of the KDHE, Barbara J. Sabol, adopted Buckley’s findings and concluded the modified proposal did not meet the objectives of the community need or cost containment. She denied the C.O.N. application on February 15, 1983. Due to an error in calculations an amended order was entered on March 14, 1983.
The following day the Medical Center appealed her decision to the District Court of Johnson County, pursuant to K.S.A. 1983 Supp. 65-4816. After pretrial conference on June 10, 1983, Judge Janette Howard allowed the Medical Center to conduct limited discovery. Former KDHE Secretary Joseph Harkins was deposed on June 30 and the deposition was made part of the record on September 8 over the agency’s objection.
Oral argument was heard on September 26, 1983, and Judge Howard filed her decision on October 25 reversing the KDHE and granting the certificate of need to the Medical Center. The court found the KDHE decision not supported by the evidence, and arbitrary and capricious:
“It appears from the Court’s examination of the record on appeal and the deposition testimony of Joseph Harkins that the principal reason for the denial of Shawnee Mission Medical Center’s first application was the request for 28 new beds which would have the effect of increasing Shawnee Mission’s licensed capacity from 383 to 411 beds. It further appears to this Court that Secretary Harkins’ denial of this application was founded on adequate and supportable evidence. The denial of the modified application, however, was not only not supported by the evidence, but the rationale for such denial makes no sense to this Court whatsoever. The findings on two occasions made reference to additional beds in the service area of Shawnee Mission Medical Center and lack of utilization thereof. The modified application contains no request for additional beds. The hearing officer’s findings imply that the project identified in the modified application will not be cost effective. However, the agency’s own health plan asserts that the type of facility the hospital desires to construct is the most desirable from a utilization point of view. It appears to this Court, from its review of the record on appeal that the hearing officer’s findings which were adopted by the Secretary do not contain a reasonable basis for denial of plaintiff-appellant’s modified application.”
KDHE appealed the decision of Judge Howard.
The United States Congress, in 1974,' enacted the National Health Planning and Resources Development Act (42 U.S.C. §300k et seq.). The act creates a structure for carrying out health planning and dictates health resources allocation and regulation. Regulations imposed upon the various states are enforced by withholding federal funding from states that do not comply. The Kansas Legislature, in order to comply with the federal regulations and secure federal funding, passed in 1976 comprehensive certificate of need legislation (L. 1976, ch. 280), now codified as K.S.A. 65-4801 et seq. One of the legislative goals is to prevent unnecessary duplication of health resources and facilities, theoretically preventing higher medical costs resulting from duplication. The statutes require any health care facility wishing to undertake expansion, a new construction project, adoption of new major services, or other specified improvements, to obtain a certificate of need by applying to the Secretary of KDHE. The statutes also provide for appeal of the agency’s decision to the district courts. (K.S.A. 1983 Supp. 65-4816). For more detailed discussions of the purposes and goals of this health facility planning legislation, see Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 630 P.2d 1131 (1981); State ex rel. Metzler v. St. Francis Hosp. and Medical Center, 227 Kan. 53, 605 P.2d 100 (1980); Pratt v. Board of Thomas County Comm’rs, 226 Kan. 333, 597 P.2d 664 (1979); Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 597 P.2d 654 (1979); and Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975).
We have often stated the standards governing judicial review of a KDHE administrative denial of a certificate of need. Neither the district court nor an appellate court is permitted to try the' case de novo and substitute its judgment for that of the agency. The district court is restricted to considering whether as a matter of law (1) the agency acted fraudulently, arbitrarily or capriciously, (2) the KDHE order is supported by substantial evidence, and (3) the agency action is within the scope of its authority. In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, 806, 676 P.2d 107 (1984); Kansas Dept. of Health & Environment v. Banks, 230 Kan. at 172; Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546. In making these determinations, a rebuttable presumption of validity rests with actions of the administrative agency; the burden of proof lies with the party challenging those actions. Country Club Home, Inc. v. Harder, 228 Kan. 756, Syl. ¶ 4, 620 P.2d 1140 (1980), modified and reh. denied 228 Kan. 802 (1981). Further in this regard, the legal interpretation of a statute by an administrative agency charged with its enforcement is entitled to a great deal of judicial deference. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, Syl. ¶ 3, 667 P.2d 306 (1983).
The district court may not reweigh the evidence or substitute its judgment for that of the agency. Boswell, Inc. d/b/a Reno County Adult Care Home v. Harkins, 230 Kan. 610, Syl. ¶ 1, 640 P.2d 1202 (1982). Thus, the question to be addressed by a district court is not whether a proposed facility or service is needed, but simply whether the record furnishes a substantial basis of fact which supports the findings of the agency in its denial of the application for a certificate of need. Kansas Dept. of Health & Environment v. Banks, 230 Kan. at 175. In reviewing the district court’s judgment, an appellate court must first determine whether the district court observed the requirements and restrictions placed upon it, and then make the same review of the administrative agency’s action as does the district court. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 451, 436 P.2d 828 (1968).
The Medical Center made no contention below that KDHE’s denial was outside the scope of its authority. After making the necessary inquiries, the district court reversed KDHE, finding (1) there was no substantial evidence to support the agency’s conclusions the proposal failed to meet the criteria of community need and cost containment, and (2) the denial of the application was therefore arbitrary and capricious.
KDHE claims its decision not to issue a certificate of need to the Medical Center, based upon its finding the application did not meet the objectives of community need and cost containment, was supported by substantial evidence and that arbitrary and capricious conduct cannot be found where an order of an administrative tribunal is based upon findings which are substantially supported by the evidence in the record. This is the sole issue in the present appeal.
“Substantial evidence” is defined as evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved, Jibben v. Post & Brown Well Service, 199 Kan. 793, 433 P.2d 467 (1967). Stated another way, substantial evidence is such legal and relevant evidence as a reasonable.person might accept as being sufficient to support a conclusion. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, Syl. ¶ 3.
We will first consider whether there was substantial evidence to support the cost containment finding. The hearing officer found that relocation of the inpatient program (partially sought to avoid the presently burdensome cost-shifting from other departments of the hospital) would not result in alleged reduction of operating expenses for the alcoholism recovery program. Secondly, although recognizing certain advantages in sharing space, staff and supplies resulting from integration of the inpatient and outpatient recovery programs, he found no reason to believe an outpatient program could not operate independently of the inpatient program since both were to be staffed separately and, as the outpatient program grew, less sharing of staff and space would occur. Finally, the hearing officer found that while operating expenses were projected to increase 25.1% over a three-year period; as a result of the proposed construction, patient charges during the same time were estimated to rise 54.6%, a 29.5% excess over expenses. This excess of charges over expenses was later determined to be only 17%, and an amended order reflecting this change was entered by the Secretary.
The Medical Center has asserted throughout these proceedings that the Alcoholism Recovery Unit loses money due to cost-shifting from other departments, especially utility allocations. A chart, entitled “Historical and Projected Revenues and Expenses,” was included with the Medical Center’s original application. The chart projected a substantial reduction in utility expense for the Alcoholism Recovery Unit beginning in 1984, the year the new unit was anticipated to be in operation. The figures showed a reduction from $300,000.00 in 1983 to $109,800.00 in 1984. During the reconsideration hearing a revised chart was received into evidence which, for some unexplained reason, revealed the anticipated utility savings had materially decreased - from a projected cost in 1983 of $258,458.00 to $279,135.00 in 1984. In fact, as reported by the hearing officer, the revised projections showed increased costs in all areas of operation through 1986, the last year covered by the revised chart.
The increased operating expenses projected for the proposed integrated A.R.U. are offset by an anticipated increase in revenues. In fact, the Medical Center indicates an integrated program could become self-supporting by 1986. The increased revenues, however, can be primarily attributed to the substantial increase in patient charges referred to previously, rather than the improved cost-effectiveness of the proposed integrated program.
From the evidence presented before the hearing officer, we can appreciate the desires of the Medical Center for an integrated inpatient/outpatient alcoholism recovery program. It is evident that such a program could utilize at least some sharing of space, staff and supplies, would enable the hospital to better coordinate program planning and supervision, and would enhance the ease of transferring patients between modes of treatment. KDHE and its Secretary were charged, however, with the duty of weighing the desirability and efficiency of an integrated alcoholism recovery program against the increased costs associated with the proposed project. As we noted in Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169:
“The evaluation of any proposed health care project against the review standards requires considerable expertise in the field of health care economics. The state agencies which participate in the process are bound by law to attempt to implement the national planning goals of containing rapidly growing costs and avoiding duplicative services. Each ‘certificate of need’ proceeding is an exercise in the inherently inexact science of determining how society’s scarce health care resources might best be allocated.” 230 Kan. at 171.
We find substantial evidence in the record to support KDHE’s finding that the amended proposal did not satisfy the review criteria of cost containment, as established by the Kansas Certificate of Need Program. The rapidly growing costs of medical services must be curtailed, especially when the same or like services are available in the service area or can be provided at a lesser cost. The Medical Center’s own figures reflect a 42.1% rise in patient charges, over a three-year period, resulting from the project. This, in itself, is a substantial increase in health care costs. In light of the fact it also represents a 17% excess over projected operating expenses, there was more than sufficient evidence from which the KDHE could conclude the Medical Center failed to establish cost containment. In the instant case it appears an outpatient alcoholism recovery program can be developed, even assuming the same is needed in the service area, at the Medical Center without the increased costs associated with a new “free-standing” unit.
In view of our findings on the cost containment criteria, we find it unnecessary to review the community need finding entered by KDHE. Suffice it to say we have found far less substantial evidence to support the agency’s findings on community need. Any application for a certificate of need must, however, meet all six review criteria or standards or it must fail. We, therefore, reverse the district court’s judgment ordering KDHE to issue a certificate of need to the Medical Center.
This case is remanded to the district court with instructions to deny the certificate of need to Shawnee Mission Medical Center.
Holmes, J., not participating. | [
-44,
-17,
-107,
-36,
-118,
-32,
64,
14,
67,
-69,
119,
83,
-19,
-54,
5,
111,
-90,
125,
64,
113,
-29,
-73,
67,
104,
-62,
-5,
-13,
-57,
-15,
111,
-28,
-11,
73,
80,
-69,
-107,
-122,
-54,
-37,
72,
-114,
7,
-119,
-47,
83,
-125,
36,
107,
62,
2,
53,
15,
-45,
44,
26,
-61,
-55,
44,
91,
44,
89,
-16,
-112,
-107,
89,
30,
33,
-128,
28,
-59,
112,
50,
-102,
-79,
80,
-68,
81,
-26,
-126,
52,
71,
-119,
13,
37,
98,
33,
20,
-19,
116,
-68,
31,
24,
61,
-90,
-109,
25,
104,
8,
-106,
61,
84,
30,
9,
124,
-25,
1,
91,
104,
-60,
-34,
-72,
-79,
79,
49,
-120,
27,
-25,
-125,
34,
97,
-59,
-10,
94,
-41,
115,
27,
-66,
-80
] |
Per Curiam:
This is an appeal by two of the defendants, Ernest C. Moden and his wife, Henrietta L. Moden, from the judgment of the Trego District Court in this mortgage foreclosure action. The main issues raised are whether the plaintiff, First Bank of WaKeeney, Kansas, owed Mr. and Mrs. Moden a fiduciary duty, and if so, whether it breached that duty; whether the WaKeeney bank failed to comply with a loan agreement; and whether the WaKeeney bank is estopped from bringing this action.
The Federal Land Bank of Wichita, Wichita, Kansas, is a defendant. It held a first and prior mortgage on the bulk of the Moden land. It filed a counterclaim and sought judgment against Mr. and Mrs. Moden on its note and foreclosure of its mortgage. After trial, the district court granted the Federal Land Bank judgment against Mr. and Mrs. Moden in the sum of $592,612.01, plus interest accruing after date of judgment at the rate of $197.18 per day until paid; and the court ordered the Federal Land Bank’s mortgage foreclosed as a first and prior lien against the land described in that mortgage. No complaint is made in this appeal as to that judgment and order of foreclosure. It is affirmed. We need not discuss it further. When reference is made later in this opinion to “the Bank,” we speak of the plaintiff, First Bank of WaKeeney.
Eric Moden, son of Mr. and Mrs. Ernest Moden, filed a motion and was granted leave to intervene. He then filed a third-party petition stating various theories by which he sought to escape liability upon an unsecured $24,099.45 promissory note which he executed and delivered to the Bank on or about May 10, 1982, and which note had since been renewed several times. The trial court found against Eric Moden and denied him relief. While Eric joined in the notice of appeal, no error in the court’s order denying him relief was claimed in the briefs or oral argument. That portion of the trial court’s judgment is affirmed, and we need not discuss it further. When reference is made later in this opinion to the Modens, we shall be speaking of Ernest C. and Henrietta L. Moden.
The trial judge prepared and filed a lengthy and detailed memorandum in this case. He determined the facts, some upon disputed evidence, and he then discussed and decided the applicability of each of the defenses raised by the Modens. Since the parties to this action are already aware of the judge’s decision, we need not repeat it here. The judge carefully considered each point raised, and upon review we affirm.
We briefly summarize the evidence. The Modens, farmers and ranchers in Trego County, borrowed money from the Bank at least as far back as 1972. Every six months, Mr. Moden would prepare a plan for the operation of his ranch for the next six months and present it to the Bank along with a request that his note be renewed in a larger amount. The notes were secured by perfected security agreements covering livestock, grain, feed and machinery. By January 21, 1982, the indebtedness had grown to $892,389.76. That amount exceeded the Bank’s lending limits, and other banks had participated in the loan. The National Bank of America (NBA), in Salina, announced that before it could participate in an extension or renewal, it required that the Bank secure (1) a second mortgage on the Moden land which was subject to the Federal Land Bank’s first mortgage, and (2) a first mortgage on an undivided and unencumbered one-half interest in a half section owned by Henrietta Moden. Reluctantly, the Modens executed these mortgages, which now form the basis for plaintiff s foreclosure action.
Mr. Moden presented the Bank with a farm plan at the time of the January 1982 note renewal. It was his plan to reduce the indebtedness by selling cattle, wheat, excess equipment, and some real estate. Over the next few months the Modens did sell cattle, grain and some equipment, and paid $478,591.03 to thé Bank on their note.
Also at the time the note was renewed, the Modens, the Bank and NBA entered into a Loan Agreement, which provided for the execution of the mortgages and for the sale of cattle and other collateral. It required the Modens to make application for an FHA loan of $200,000 and an FHA emergency low-interest-rate loan of $40,000. The Loan Agreement also provided that “[i]t is the intention of all parties hereto that the NBA participation be paid in full as soon as possible . . . .”
We turn to the first issue: Was there a fiduciary duty on the part of the Bank? The rules applicable when making that determination are set forth fully in Olson v. Harshman, 233 Kan. 1055, 1057-1059, 668 P.2d 147 (1983). There are two types of fiduciary relationships, those specifically created by contract, and those implied in law due to the factual situation surrounding the transaction and the relationship of the parties. There is no contract here between the parties creating such a relationship; any fiduciary relationship between the Bank and the Modens must be one implied in law. Some of the indicia of a fiduciary relationship include the acting of one person for another; the having and the exercising of influence over one person by another; the reposing of confidence by one person in another; the dominance of one person by another; the inequality of the parties; and the dependence of one person upon another. In addition, courts have considered weakness of age, mental strength, business intelligence, knowledge of the facts involved or other conditions giving to one an advantage over the other. None of these factors is demonstrated by the evidence here. There was no reposing of confidence in the Bank by the Modens, no dominance, no inequality, no dependence, no acting for another, no exercising of influence. We agree with the trial court:
“There is no evidence which would suggest anything other than the ordinary debtor/creditor relationship between the plaintiff Bank and these defendants [the Modens].”
Ordinarily, the relationship between a bank and its customer is that of creditor-debtor and not that of a fiduciary. Denison State Bank v. Madeira, 230 Kan. 684, 695, 640 P.2d 1235 (1982); Dugan v. First Nat’l Bank in Wichita, 221 Kan. 201, 207, 606 P.2d 1009 (1980).
The Modens claim that the bank obtained the mortgages by making misrepresentations. This claim focuses upon the statement made by the bank officer to the Modens to the effect that they had already pledged their interest in real estate to the bank by the Unlimited Guaranties which both Modens had signed. This was neither fraud nor a breach of fiduciary duty. The Salina bank had refused to extend further credit unless the Modens executed mortgages. Had the Modens refused, no renewal note would have been signed, no extension of credit would have occurred, and suit would have been instituted in January 1982. By lis pendens, the Modens’ interest in the real estate would have been encumbered. While the statement of the bank officer may not have been precisely and legally accurate, there is no showing that it was made in bad faith, or that the statement motivated the Modens to execute the mortgages, or that they relied upon the statement to their detriment. There was no fiduciary duty, no breach of fiduciary duty, and no fraud.
The next issues arise from the Loan Agreement. The Modens contend that the Bank breached that agreement when it did not apply all of the payments made by the Modens from the sale of cattle and machinery to the portion of their indebtedness in which NBA participated, that the Modens complied fully with their obligations under the Loan Agreement, and that these facts entitle the Modens to judgment in the full amount remaining unpaid on their note.
The Loan Agreement provided in part that all the proceeds from sale of livestock be applied to the NBA’s portion of the January 21, 1982, note. Some $434,000 of the $478,000 paid by the Modens on their indebtedness came from sale of livestock. The Bank paid NBA about $370,000 and retained the balance to apply upon its portion of the note, explaining at trial that the retention was necessary in order for it to remain in compliance with state law. Assuming that this was a knowing violation of the Loan Agreement by the Bank (and the record does not clearly support such an assumption), we turn to the Modens’ compliance with the terms of that agreement.
The Modens were required to apply for an FHA loan and a smaller FHA emergency low-interest-rate loan. Mr. Moden testified in substance that he discussed a loan with an FHA em ployee and was told that there wasn’t really anything the FHA could do until Moden fulfilled the Loan Agreement, got the NBA paid off, and got the wheat harvested and the cattle sold. Moden never made formal application to the FHA. After the cattle were sold, the wheat harvested, and a sum paid to the Bank which Moden thought would pay off the NBA loan, he did not return to FHA and make the application required of him under the Loan Agreement.
The Bank’s application of Moden’s payments was in no way prejudicial to the Modens. All of the payments were applied against the total indebtedness. At the time suit was filed, the Bank contended that there was at least $100,000 of the remaining loan which was not secured by collateral. Whether the Bank held all of the remaining obligation, or whether it was shared by another bank, is immaterial. In either event, the note remains due and unpaid, and the holder is entitled to bring action upon it. The Modens are not entitled to judgment for the remaining unpaid portion of their note because of the way in which the Bank applied the payments. We find no prejudice and no error.
Finally, the Modens contend that the Bank is estopped to foreclose because (1) the Modens complied with the farm plan and the Loan Agreement, and (2) the Bank had always extended credit in the past and was therefore obligated to do so in the future. We have discussed the Loan Agreement above and need not extend that discussion. As noted above, the Modens did not comply with all of its terms. The farm plan, prepared by Mr. Moden and given to the Bank at the time the January 1982 note was executed, was not contractual and binding upon the Bank. It simply detailed Moden’s proposed farm operations for the coming months. The Bank did not agree to renew the Modens’ loan if the farm plan was successfully carried out. The mere fact that a bank has renewed loans in the past does not require it to do so in the future.
A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show that it rightly relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. Iola State Bank v. Biggs, 233 Kan. 450, Syl. ¶ 4, 662 P.2d 563 (1983). There is no evidence in this case that the Bank, by its actions, induced the Modens to reasonably believe that they would get an extension of their loan, regardless of their ability to pay their obligations, if they complied with the farm plan and the Loan Agreement. As the trial court observed, “Promissory estoppel involves both misrepresentation and detrimental reliance.” Neither is present here.
The judgment is affirmed. | [
-44,
-28,
-15,
110,
74,
-30,
56,
-118,
90,
112,
39,
83,
-21,
-62,
4,
109,
-42,
57,
-95,
105,
-47,
-73,
54,
-54,
-46,
-69,
81,
-35,
-72,
93,
-28,
-41,
73,
48,
-118,
87,
66,
-96,
-59,
28,
14,
-123,
-103,
-11,
-39,
65,
56,
107,
112,
45,
49,
36,
-13,
43,
-67,
106,
72,
46,
-5,
45,
-112,
-72,
-85,
12,
127,
7,
-127,
20,
-104,
69,
-40,
-82,
-112,
49,
0,
-24,
118,
54,
-122,
52,
7,
11,
9,
102,
98,
3,
96,
-21,
-28,
-120,
14,
-35,
-113,
-121,
-109,
24,
3,
38,
62,
-97,
116,
7,
71,
-2,
-18,
-123,
31,
-20,
23,
-54,
-44,
-111,
-113,
120,
-97,
-117,
-1,
3,
-80,
113,
-54,
-94,
93,
-58,
58,
-69,
-98,
-67
] |
Per Curiam:
On or about January 26, 1981, Rita Winter, of Andale, Kansas, complained to Arno Windscheffel, Disciplinary Administrator, that she had been overcharged by William T. Davitt, respondent, a member of the bar of the State of Kansas, for legal services rendered her brother, Bernard Michael Treiber. The complaint was submitted to the review committee of the Kansas Board for Discipline of Attorneys which found probable cause to believe that respondent may have violated the Code of Professional Responsibility. Supreme Court Rule 209, 230 Kan. ciii. Thereupon the Disciplinary Administrator filed a formal complaint against respondent alleging, inter alia, “Respondent entered into an agreement and collected a fee which was clearly excessive.” Respondent filed an extensive answer, out of time, in which he asserted, inter alia, that the total fees collected from Mrs. Winter for various matters involving his representation of her brother, and for other services, did not adequately compensate him for his services and expenses and that he had not overcharged Mrs. Winter. Due to the long and tortured history of this complaint, the facts will be set forth in some detail. At the initial hearing before the disciplinary panel, complainant and respondent were the only witnesses and nineteen exhibits were introduced.
Rita Winter and members of her family had been clients of respondent for approximately twenty years when, in December, 1977, Mrs. Winter contacted respondent about representation for her brother, Bernard Michael Treiber. Mr. Treiber was the putative father of an illegitimate child to be born in January of 1978. The mother desired to place the child for adoption and after it was born an adoption proceeding was filed by the proposed adoptive parents. In addition to opposing the adoption proceeding, Mr. Treiber filed a separate action seeking custody of the child. Shortly after it became apparent that Mr. Treiber would contest any attempt to adopt the child, the adoptive parents dismissed their adoption petition and the child was returned to its natural mother. He did not prevail in the custody action, although visitation and parental rights were established, and he appealed to the Court of Appeals on the question of custody. See Treiber v. Stong, 5 Kan. App. 2d 392, 617 P.2d 114, rev. denied 228 Kan. 807 (1980). Further details surrounding the various district court proceedings will be found in that case and need not be repeated here. Respondent represented Mr. Treiber in the Sedgwick County proceedings, a habeas corpus action filed in the Court of Appeals, and in a unique appeal to this court seeking to bypass and avoid the usual appellate procedure and asking for immediate relief from the trial court decision. Throughout these various proceedings respondent was paid $8,932.50 for fees and expenses with the last payment being made on May 29, 1980.
The testimony before the hearing panel was conflicting in many respects and is set forth from the record in the light supporting the panel’s findings and conclusions. The Court of Appeals opinion affirming the trial court was filed September 26, 1980. Thereafter, Mrs. Winter advised respondent that she and her brother wanted to appeal the decision. Respondent explained that in his opinion it would be necessary to file a motion for rehearing with the Court of Appeals and, if denied, then a petition for review with this court. He stated it would be necessary for Mrs. Winter to pay him $3,000.00 to take the case “through” the Kansas Supreme Court. Mrs. Winter inquired about a refund in the event this court denied the petition for review. She asserts that she was assured by respondent that the Supreme Court would grant review and respondent avoided answering her inquiry. No agreement was reached as to any refund in the event this court did not grant review. Mrs. Winter paid respondent the requested $3,000.00 on or about October 3, 1980, for the specific purpose of the motion for rehearing and review proceedings before this court. Respondent filed a motion for rehearing with the Court of Appeals which was denied October 23, 1980. He then prepared and filed a petition for review with this court which was denied November 6, 1980. On December 16, 1980, and again on January 5, 1981, Mrs. Winter wrote respondent seeking a partial refund of the last $3,000.00 payment. Respondent failed to respond to her letters and allegedly threatened her during her telephone calls and, on January 26, 1981, the Disciplinary Administrator received her letter of complaint setting in motion these disciplinary proceedings.
On January 20, 1982, a panel of the Board for Discipline of Attorneys heard evidence upon the complaint. The State of Kansas was represented by Roger Walter, disciplinary counsel, and Mr. Davitt was represented by his attorney, Michael A. Barbara. (Mr. Barbara represented respondent during the panel hearing only and respondent has proceeded pro se since that time.) Following a complete hearing the panel issued its unanimous report on February 9, 1982. Among others, the panel made the following findings of fact:
“1. That the respondent received from Rita Winter the sum of $11,932.50 from January 3, 1978 to October 3, 1980, upon the request for money by the respondent from the said Rita Winter. That no written statements were made and no accounting of time spent on the case was given to complainant. That the respondent testified that he had spent time that would entitle him to draw the sum of $20,186.50 as attorney fees.
“2. That the sum of $3,000.00 paid on October 3, 1980, was for the purpose of taking the decision of the Court of Appeals in Case No. 51067, Kansas Appeals, Vol. 5, Page 392, Treiber v. Stong, through the Supreme Court. That the respondent filed with the Court of Appeals a motion for rehearing and a petition in the Supreme Court for review of the Court of Appeals’ decision.
“3. That the sum charged for this service was excessive,”
and concluded that respondent had violated the provisions of DR 1-102(A)(6) (230 Kan. cxi) and DR 2-106(A) and (B) (230 Kan. cxvii).
The report and recommendations of the disciplinary panel started a flood of motions, emergency motions and other plead ings prepared and filed by respondent, pro se. He also filed exceptions to the panel report, briefs were filed and the case was argued before this court on September 17, 1982. Prior to our decision, respondent filed an “emergency motion” on September 23, 1982, seeking a stay of proceedings and an opportunity to present new evidence to the panel relative to the credibility of the complainant. On September 24, 1982, we remanded the proceedings to the disciplinary panel with directions that it conduct further proceedings pursuant to respondent’s motion and allegations. Additional motions and pleadings were filed with the Board and the matter was finally heard again by the panel on May 20, 1983. Following a full day’s hearing the panel found nothing to warrant any change in its prior report, conclusions and recommendations. The matter is now before this court, again, for a final determination notwithstanding that numerous additional motions have been filed by the respondent seeking various types of relief. Respondent has had two complete hearings before the disciplinary panel, one argument before this court and careful consideration of all his various motions. The entire record has been reviewed at length by the court.
Respondent’s basic premise in his defense to the allegations of Mrs. Winter and the formal complaint filed against him is that he did far more work for Mrs. Winter and Mr. Treiber than he was paid for and therefore the total services rendered should be considered in determining whether he was overpaid. The argument might have merit if he had reached such an agreement with his clients. The record is clear that respondent kept no time records, has no accounting system, submitted no bills or statements and failed to discuss fees with these clients or reach any clear understanding and agreement with them. Mrs. Winter testified that periodically respondent would advise her that he needed more money and additional sums would be provided.
The record in this case is replete with irrelevant evidence and testimony about various political crusades carried on by complainant and respondent in support of an organization known as “Fathers Demanding Equal Justice,” against the Legal Aid Society in Kansas and elsewhere, and in support of and opposition to various political campaigns in Sedgwick County. Many of the services rendered by respondent appear to be totally divorced from the child custody proceedings involving the child of Mr. Treiber. We concur that the hours expended by respondent for the various causes, lawsuits and other proceedings might justify fees in excess of what was received by respondent. However, that was not the issue before the disciplinary panel and is not the issue before this court. The simple issue is whether a charge of $3,000.00 for the preparation and filing of a motion for rehearing in the case of Treiber v. Stong in the Kansas Court of Appeals and a petition for review of that decision prepared and filed in this court justifies a fee of $3,000.00. The motion for rehearing consists of two and one-half pages and the petition for review contains fourteen pages. Both are merely a rehash of alleged factual disputes and arguments previously presented to the Court of Appeals. No new authorities are cited and no justifiable grounds for relief are asserted.
In State v. Pringle, 233 Kan. 726, 667 P.2d 283 (1983), the court stated:
“The findings of a panel should be accorded some weight, although the panel’s report is advisory and not binding on the court. State v. Freeman, 229 Kan. 639, 644, 629 P.2d 716 (1981). In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), 93 A.L.R.3d 869, the court stated:
‘The State Board of Law Examiners [now Kansas Board for Discipline of Attorneys] was created by rule of this court (K.S.A. 1974 Supp. 7-124, No. 202[a]), as an adjunct of the court to have general supervision over the discipline of attorneys. The role of the Board is similar to that of a commissioner appointed by this court to conduct hearings and to make a report of his findings, conclusions, and recommendations. Although such a report is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. (See 7 C.J.S. Attorney and Client § 37, p. 805.)’ ” p. 732.
In the case at bar there is ample evidence to support the factual findings of the disciplinary panel that the $3,000.00 payment of October 3, 1980, was for the purpose of “taking the decision of the Court of Appeals in . . . Treiber v. Stong through the Supreme Court” and “that the sum charged for this service was excessive.” We concur with the disciplinary panel that respondent has violated DR 1-102(A)(6) and DR 2-106(A) and (B).
A majority of the members of this court are of the opinion that respondent should be disciplined by Public Censure. Rule 203(a)(3) (230 Kan. xcix).
It Is Therefore Ordered and Adjudged that respondent be and he is hereby disciplined by Public Censure, the costs herein are assessed to the respondent, and the Reporter of the Appellate Courts is directed to publish this order in the official Kansas Reports.
Effective this 14th day of November, 1983. | [
-80,
-18,
-119,
109,
10,
-95,
58,
2,
95,
-31,
119,
83,
-21,
-35,
0,
121,
89,
41,
80,
107,
-61,
-74,
127,
64,
-10,
-14,
-80,
-43,
-79,
-49,
-28,
-11,
73,
48,
-54,
-59,
66,
-126,
-107,
-44,
38,
0,
-119,
-32,
91,
-121,
48,
97,
30,
15,
53,
46,
-77,
42,
121,
-23,
44,
14,
-1,
-23,
-128,
-76,
-113,
23,
-37,
23,
-93,
-75,
-102,
7,
-56,
47,
8,
57,
-127,
-24,
115,
-74,
-122,
101,
71,
9,
-123,
98,
-30,
32,
77,
-21,
-68,
-100,
110,
27,
-99,
-90,
-111,
88,
83,
13,
-73,
-76,
117,
16,
47,
-8,
-26,
12,
31,
-32,
12,
-113,
-44,
-111,
-97,
-10,
-52,
3,
-26,
-60,
32,
81,
-125,
68,
95,
71,
58,
19,
-114,
-14
] |
The opinion of the court was delivered by
Holmes, J.:
The defendants appeal from a decision rendered in a trial to the court wherein a constructive trust in favor of the plaintiffs was imposed upon a portion of defendants’ interests in four oil and gas leases. Plaintiffs claimed their interests by virtue of an agreement entered into between plaintiff, I. Wayne Woolsey (hereinafter Woolsey) and defendant David D. Read, Jr. The appeal was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c). We affirm the judgment of the trial court in all respects.
Plaintiff Woolsey, a petroleum geologist, was engaged in 1971 in a joint venture with T. Winston Eason and his wife. Mr. and Mrs. Eason are both deceased and the other plaintiffs, except Joan Woolsey, are successors in interest to the Easons. Plaintiff Joan Woolsey is the ex-wife of I. Wayne Woolsey. Defendant David D. Read, Jr. is a landman in the oil and gas business and is associated, insofar as this case is concerned, with the other defendants who are all connected with the oil and gas business in one way or another.
In 1971, Woolsey had studied an area in Comanche County and assembled a block of oil and gas leases covering the Mule Creek Northeast Prospect. This acreage consisted of 960 acres described as the East half of the East half of Section 7, the West half of Section 8, the West half of Section 17, and the East half of the East half of Section 18, Township 31 South, Range 17 West, Comanche County, Kansas. On October 1, 1971, Woolsey entered into an agreement with Read for development of the acreage. Portions of the agreement pertinent to this appeal provide:
“At the date of this agreement we contemplate the acquisition of additional oil and gas leases on acreage that is contiguous to this block and in the area of mutual interest as described in Exhibit “A”; and if I acquire any oil and gas leases on any of such lands in this area, then you shall have the option of paying all of the bonus consideration for such leases, plus the necessary broker’s commission, and receiving an assignment of an undivided %ths interest in such lease or leases. If you acquire any leases on any of such lands you shall assign to me an undivided !4th interest in such leases free and clear of cost to me.
“As to these leases in which we may own a joint interest, Sidwell Oil &'Gas, Inc. shall be the operator of all jointly owned leases and, at an appropriate time, we will enter into an operating agreement on the form attached hereto as Exhibit ‘B’.
“. . . . Our respective rights and obligations hereunder are those of independent contractors and nothing herein contained shall be deemed to create any relationship of mining or other partnership as between us.”
The “area of mutual interest” consisted of all of Sections 7, 8, 17 and 18, the South half of Section 5, and the South half of Section 6, all in Township 31 South, Range 17 West of the Sixth P.M., Comanche County, Kansas. The following diagram shows the area of mutual interest including the Mule Creek Northeast Prospect, and the location of the Huff, Nielsen, Booth and Fisher
Woolsey and the defendants cooperated in the drilling of the Huff #1 well in the Southeast quarter óf the Southeast quarter of Section 18 which was completed as a commercial producing gas well in late 1971. Prior to that time Woolsey and the defendants acquired the Booth lease covering 37 acres of the Southwest quarter of the Southeast quarter of Section 18. The Booth lease, dated October 5, 1971, had a primary term of five years and was located within the area of mutual interest. During the primary term of the Booth lease Lee Banks, another oil operator, acquired the three Nielsen leases located North and West of the Booth lease and within the area of mutual interest. In 1974, Banks completed a commercial gas well, the Nielsen #1, in the Northwest quarter of the Southeast quarter of Section 18.
Unbeknownst to the plaintiffs, the defendants in April, 1977, obtained a new lease on-the Booth property and shortly thereafter acquired interests in the three Nielsen leases including the Nielsen #1 well. None of these acquisitions were made known to the plaintiffs and defendants did not assign a one-fourth of their working interest in the leases to Woolsey. The trial court found defendants had breached a fiduciary duty owed to plaintiffs under the original Woolsey-Read area of mutual interest agreement and imposed a constructive trust upon defendants’ interests in the Booth and Nielsen leases. Defendants have appealed. Additional facts will be set forth as they become pertinent to the numerous assertions of error.
At the outset defendants contend that the evidence in this case is “largely documentary” and that the testimony on the issues was “largely uncontroverted” and therefore we “have substantially the same power as the trial court to interpret the documents and other evidence.” Our role on appeal, however, does not extend to re-trying the case. Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976); Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan. App. 2d 131, 137, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982). The record in this case discloses one hundred fifty-six exhibits were presented to the trial court and eleven wit nesses, several of them experts, testified during a five-day trial resulting in a transcript of six hundred fifty-nine pages. While it is true that on appeal written instruments may be construed and their legal effect determined by the appellate court (Stanfield v. Osborne Industries, Inc., 232 Kan. 197, Syl. ¶ 1, 654 P.2d 917 [1982]), our freedom in this regard is limited to the documents alone. It is not the function of an appellate court to judge the credibility of the witnesses or to weigh the evidence. The trial court imposed liability on the defendants for two principal reasons: first, the area of mutual interest obligation designated in the original Mule Creek Northeast Prospect agreement was never terminated; and second, in acquiring interests in this area, defendants breached fiduciary duties owed to plaintiffs.
As their first point defendants assert error by the trial court in finding that the area of mutual interest obligation had not terminated. Defendants’ principal argument that the Woolsey-Read agreement had been terminated is based upon a letter written by Woolsey to Read under date of July 9, 1976. That letter, excluding the salutation and closing, provided in its entirety:
“This letter is written to confirm our recent telephone conversation concerning areas of mutual interest established in the Wilmore and Mule Creek NE Prospects in Comanche County, Kansas.
“An area of mutual interest was established in the Mule Creek NE Prospect'by a Letter Agreement dated September 29, 1971, and in the Wilmore Prospect by a Letter Agreement dated September 30, 1971. We subsequently drilled one dry hole and three producers within the prospects and have dropped the remainder of the prospects, releasing some portions of record as early as November, 1972. No time limit was set out for the areas of mutual interest although they should have terminated when we completed our development program and released the non-productive leases in November, 1972. By execution of this letter, each of us hereby terminates all of our rights as to these areas of mutual interest, effective as of December 31, 1972.
“If this meets with your approval, please so indicate in the space provided below and return one copy of this letter to the above address.”
When Read received this letter he indicated his acceptance of the terms thereof “subject to acceptance of all working interest owners in the Huff well.” Acceptance of the other owners was not forthcoming and Woolsey followed up his proposal to terminate the agreement by letters in August and November of 1976. Still no response was received from the defendants. The finding of the trial court that the July 9, 1976, letter was merely an offer which was never accepted by the defendants is adequately supported by the evidence. The other arguments in support of a termination of the agreement have been carefully considered and we find them to be without merit and that the trial court’s findings in respect thereto were correct.
Next the defendants assert the trial court erred in finding a fiduciary relationship was created by the area of mutual interest agreement and in finding defendants had breached that duty. Initially they contend no such duty existed as the agreement had been terminated in 1972. We have already disposed of that argument. Additionally they contend that the language in the agreement to the effect that:
“Our respective rights and obligations hereunder are those of independent contractors and nothing herein contained shall be deemed to create any relationship of mining or other partnership as between us,”
precludes the finding of a joint venture or other relationship which could give rise to a fiduciary obligation between the parties. While the court considered the quoted language it concluded that the agreement when considered in its entirety established the relationship of “joint venturers in respect to the exploration and development of the Mule Creek Prospect and, by reason of their ownership of undivided, fractional working-interest shares in oil and gas leases held for exploration and actual production operations, fiduciary obligations are imposed under the laws of Kansas.” See Foley & Loomis v. Phillips, 211 Kan. 735, 508 P.2d 975 (1973), and cases cited therein. The court also found the fiduciary duty owed by defendants to plaintiffs was breached when defendants acquired interests in the Booth and Nielsen leases without disclosure to the plaintiffs and without complying with the specific terms of the agreement to assign one-fourth of their interests to plaintiffs. Again, the learned trial court’s legal conclusions are correct and its factual findings are adequately supported by the evidence.
“A person may be both an independent contractor and an agent for another.” 41 Am. Jur. 2d, Independent Contractors §2, p. 741.
See also Restatement (Second) of Agency §2(3) (1957). For a recent review on the nature of joint ventures in Kansas, see Hand, The Joint Venture - What it is and How to Recognize its Features, 52 J.K.B.A. 227 (Fall, 1983).
Next defendants assert the trial court erred in impressing a constructive trust upon a producing well as the agreement only contemplated “undeveloped acreage.” Defendants contend that the Nielsen #1 was drilled in 1974 and as they did not acquire their interest in the Nielsen leases until 1977, the agreement could not cover producing properties. It does not appear that this issue was properly raised before the trial court and the court made no findings or rulings based upon such an argument. The issue does not appear as one of the issues in the pretrial order and we have often held that where the parties agree on a pretrial order, which is followed by the trial court and controls the subsequent course of the action, the parties may not enlarge the issues on appeal. Country Club Home, Inc. v. Harder, 228 Kan. 756, Syl. ¶ 1, 620 P.2d 1140 (1980), modified 228 Kan. 802, 623 P.2d 505 (1981). Even if properly before this court, the argument lacks merit. The agreement is clear and unambiguous and makes no limitation that undeveloped acreage is all that is covered in the area of mutual interest agreement. To the contrary the agreement provides: “If you [Read] acquire any leases on any of such lands you shall assign to me [Woolsey] an undivided one-fourth interest in such leases . . . .” The Nielsen leases were within the area of mutual interest and, as the agreement had not been terminated, were included within its provisions regardless of the state of development at the time defendants obtained an interest in the leases.
Next, defendants contend that a provision in the operating agreement covering the Mule Creek Northeast Project precludes the Booth lease from being included in the court’s order. As set forth earlier the Woolsey-Read agreement provided:
“As to these leases in which we may own a joint interest, Sidwell Oil & Gas, Inc. shall be the operator of all jointly owned leases and, at an appropriate time, we will enter into an operating agreement on the form attached hereto as Exhibit ‘B’.”
Attached to the agreement was a form operating agreement to be used in case of production, naming Sidwell Oil and Gas, Inc. as operator. It does not appear that any operating agreement was entered into at the time of the completion of the Huff #1 well in 1971. It was not until July, 1976, that the form agreement was entered into. Paragraph 23 of the operating agreement provided:
“23. Renewal or Extension of Leases
“If any party secures a renewal of any oil and gas lease subject to this contract, each and all of the other parties shall be notified promptly, and shall have, the right to participate in the ownership of the renewal lease by paying to the party who acquired it their several proper proportionate shares of the acquisition cost, which shall be in proportion to the interests held at that time by the parties in the Unit Area.
“If some, but less than all, of the parties elect to participate in the purchase of a renewal lease, it shall be owned by the parties who elect to participate therein, in a ratio based upon the relationship of their respective percentage of participation in the unit area to the aggregate of the percentages of participation in the unit area of all parties participating in the purchase of such renewal lease. Any renewal lease in which less than all the parties elect to participate shall not be subject to this agreement. !
“Each party who participates in the purchase of a renewal lease shall be given an assignment of its proportionate interest therein by the acquiring party.
“The provisions of this section shall apply to renewal leases whether they are for the entire interest covered by the expiring lease or cover only a portion of its area or an interest therein. Any renewal lease taken before the expiration of its predecessor lease, or taken or contracted for within six (6) months after the expiration of the existing lease shall be subject to this provision; but any lease taken or contracted for more than six (6) months after the expiration of an existing lease shall not be deemed a renewal lease and shall not be subject to the provisions of this section.
“The provisions in this section shall apply also and in like manner to extensions of oil and gas leases.” (Emphasis added.)
The original Booth lease expired October 5, 1976, although Woolsey had recommended that defendants attempt to renew it or obtain a new lease. On April 29, 1977, six months and twenty-four days after the expiration of the old lease, the defendants acquired a new lease on the Booth acreage for their own personal accounts and without plaintiffs’ knowledge. Defendants now contend that plaintiffs are barred from asserting any claim to the Booth lease by paragraph 23 of the operating agreement as more than six months had passed when defendants obtained the second Booth lease. Defendants’ contentions fail for several reasons.
The form operating agreement which defendants seek to rely upon is a lengthy twenty-one page document governing operations of leases within the Mule Creek Northeast Prospect. The Booth lease is not included within its terms. Additionally the operating agreement was not entered into until some five years after the initial agreement controlling the obligations of the parties and appears to have been executed as an afterthought to detail the operating conditions for the Huff leases only. It did not refer to and did not include the area of mutual interest lying outside the Huff leases. We also find merit in the trial court’s ruling that defendants were estopped from relying on paragraph 23 because of their breach of fiduciary duty. Having found a fiduciary relationship existed, the scope of the duty owed was stated in Martin v. Hunter, 179 Kan. 578, 297 P.2d 153 (1956), as:
“Under the record in this case it was established that the relationship of joint adventurers existed between plaintiffs and defendant and, as such, they stood in a close relationship of trust and confidence, and were bound by the same standards of good conduct and square dealing as are required by partners. Each of the parties had the right to demand and expect from his associate full, fair, open and honest disclosure of everything affecting the relationship.” p. 585.
Defendants not only failed to disclose to plaintiffs their acquisition of an interest in the Booth lease, they utilized information received from Woolsey in making their decisions. The trial court found that the defendants “made no new or independent geological studies in respect to their decision to acquire the Booth lease or their interest in the Nielsen property, or in respect to the location and drilling of the producing wells thereon” but instead relied solely on the valuable and confidential geological information generated and submitted to them by plaintiff Woolsey. This they could not do. See Pratt v. Shell Petroleum Corporation, 100 F.2d 833 (10th Cir. 1938); Morrison v. Woodbury, 105 Kan. 617, 185 Pac. 735 (1919). The trial court was correct in impressing the Booth lease with the constructive trust.
Defendants next contend that the rights of the Easons were personal in nature, did not survive their deaths and are barred by the rule against perpetuities.
“[T]he rule against perpetuities is that no future interest in property can lawfully be created which does not necessarily vest within twenty-one years after some life or lives presently in being, excluding from such computation of years the incipient life of infants in ventre sa mere.” Commercial National Bank v. Martin, 185 Kan. 116, 120, 340 P.2d 899 (1959).
The rule, along with the rule against restraints on alienation, serves the same fundamental purpose of keeping property freely alienable, although the former is concerned solely with vesting of future interests in property. Harvey v. Harvey, 215 Kan. 472, 524 P.2d 1187 (1974). There are limits on the operation of the rule against perpetuities, however. “A transaction which is exclusively contractual is not subject to the rule against perpetuities”; the rule does not affect merely personal contracts not creating rights of property. Restatement of Property § 401 (1944); Gray, The Rule Against Perpetuities § 329 (4th ed. 1942); Moody v. Bayer Constr. Co., 6 Kan. App. 2d 276, 627 P.2d 1171 (1981). We have previously acknowledged that the recent trend among legal authorities is to relax the harsh and inflexible application of the rule, and instead follow tenable legal theories which will give effect to the intention of the parties. Singer Company v. Makad, Inc., 213 Kan. 725, 729, 518 P.2d 493 (1974). The contract here did not involve the vesting of future interests in real property and did not constitute a restraint upon the alienation of that property. The rule against perpetuities does not apply to the purely contractual obligations involved here. The underlying rationale for the rule was aptly stated in Weber v. Texas Co., 83 F.2d 807 (5th Cir. 1936), where the court stated:
“The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as a public evil.” p. 808.
More directly on point is Courseview, Inc. v. Phillips Petroleum Co., 258 S.W.2d 391 (Tex. Civ. App. 1953). Although not labeled as such, that case concerned an area of mutual interest clause very similar to that before us presently. The court there held the rule against perpetuities inapplicable because the transaction was purely contractual, creating no rights in any real property. Courseview, Inc., 258 S.W.2d at 393.
Next defendants contend that plaintiffs’ claims are barred by the doctrine of equitable estoppel. The trial court in disposing of this argument found:
“The defendants did not act in reliance upon any conduct of the plaintiffs, or any of them, including Woolsey’s proposal to terminate the area of mutual interest obligation, which the defendants failed to accept, in acquiring or drilling the Booth Lease for their own account without the knowledge or consent of the plaintiffs, or in acquiring an interest in the Nielsen property for their own account without the knowledge or consent of the plaintiffs.”
The court’s factual finding is amply supported by the record.
Finally, defendants claim plaintiffs are barred from recovery because Woolsey did not come into court with “clean hands.” In the spring of 1976, Woolsey was advised by one of his other associates in the oil and gas business that an interest in the Fisher lease had been obtained on Woolsey’s behalf. The Fisher lease lies to the North and West of the Nielsen leases within the area of mutual interest. Upon learning of this acquisition Woolsey promptly called Read and advised him that he (Woolsey) had acquired an interest in the Fisher lease. Defendants assert this acquisition by Woolsey was comparable to their secret negotiations and acquisition of the Booth and Nielsen interests. Reference to the terms of the initial 1971 letter agreement reveals that Woolsey fulfilled his obligation to defendants in full by simply disclosing his acquisition of an interest within the Fisher lease. The agreement provided:
“[A]nd if I acquire any oil and gas leases on any of such lands in this area, then you shall have the option of paying all of the bonus consideration for such leases, plus the necessary broker’s commission, and receiving an assignment of an undivided %ths interest in such lease or leases. If you acquire any leases on any of such lands you shall assign to me an undivided %th interest in such leases free and clear of cost to me.”
It is clear from the foregoing that the parties’ obligations regarding the area of mutual interest were not the same. Defendants merely had the option of acquiring, at cost, an interest in any leases Woolsey acquired; thus, after disclosure of these leases by Woolsey, the burden was on defendants to move forward with this information and exercise their option. By contrast, defendants labored under a mandatory duty to disclose to Woolsey any leases they acquired in the area and affirmatively assign him a 25% interest without cost. In their appellate brief, defendants ask:
“[Woolsey] acquired an interest in an oil and gas lease (the Fisher lease) within the area of mutual interest without offering Defendants ... an opportunity to participate in his venture. If Defendants’ conduct in connection with the Booth and Nielsen leases constituted a breach of fiduciary duties, can Woolsey’s conduct in connection with the Fisher lease be any less?”
This statement totally ignores Woolsey’s disclosure to defendants of his acquired interest but, aside from the oversight, the answer to the question posed is in the affirmative. The 1971 agreement bound defendants to a higher degree of duty regarding the area of mutual interest obligation than that assumed by Woolsey. Woolsey fully performed his obligations to defendants by disclosing his leasehold interests while defendants did not even do this much, let alone assign to Woolsey the 25% interest in their leases as they were required to do by the 1971 agreement. Defendants’ last claim is meritless.
This case was painstakingly tried by extremely competent trial counsel for all parties before an experienced and learned trial judge who made detailed findings of fact and conclusions of law. In Martin v. Hunter, 179 Kan. 578, we stated:
“No useful purpose could be gained by narrating all the controversial evidence contained in the record. Suffice it to say that the mentioned facts were sustained by ample, competent evidence, and the court did not err in holding that the Sterling leases were part of the block of acreage obtained in the joint adventure of the parties.
“This is essentially a fact case. Plaintiffs, in effect, ask this court to retry their lawsuit. We cannot do so.
“It has been a well-established rule in this state for more than ninety years that this court accepts as true the trial court’s findings of fact when they are based upon competent evidence; and on appeal it is of no consequence that there may have been much contradictory evidence adduced at the trial, which, if believed by the trial court, would have compelled entirely different findings of fact and an entirely different judgment, and when the error assigned is that the findings and judgment are contrary to the evidence, it is only necessary on appeal to consider whether there is some competent and sufficient evidence upon which the judgment is based; and a consideration or recital of the contradictory evidence cannot aid in correctly determining that question. (Bayer v. Cockerill, 3 Kan. 282; Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)” p. 584.
We think the statements from Martin apply equally here.
The judgment is affirmed. | [
-12,
104,
-3,
61,
8,
-32,
56,
-101,
105,
-29,
118,
83,
-89,
-53,
21,
121,
-29,
13,
69,
107,
-41,
-78,
87,
65,
-78,
-77,
27,
-51,
-8,
95,
-74,
-42,
76,
48,
-54,
21,
-62,
-54,
69,
92,
-114,
5,
-103,
-28,
89,
34,
50,
107,
48,
79,
113,
-98,
-13,
41,
29,
-29,
73,
46,
107,
44,
89,
-16,
-86,
7,
95,
18,
3,
4,
-100,
-57,
-40,
126,
-48,
48,
9,
-24,
-14,
-90,
-44,
-12,
15,
-71,
12,
46,
99,
33,
84,
-17,
108,
-120,
14,
-9,
-115,
-25,
-128,
24,
97,
104,
-106,
28,
124,
22,
7,
-12,
-22,
4,
31,
-4,
-123,
-49,
-42,
-95,
13,
121,
-40,
27,
-29,
-89,
32,
97,
-55,
-94,
76,
71,
56,
31,
-113,
-78
] |
The opinion of the court was delivered by
Holmes, J.:
This is an original action in mandamus filed by The Wesley Medical Center (Wesley) seeking an order to compel the trial judge in a medical malpractice action to deny discovery of medical staff committee meeting minutes and other information in the possession of and belonging to the petitioner, Wesley. It is the position of Wesley that the documents sought are privileged and not subject to discovery. The respondent Dr. Medo Mirza is aligned in interest with and asserts the same position as Wesley. The Kansas Hospital Association has filed a brief amicus curiae supporting the position and arguments asserted by Wesley.
The underlying medical malpractice action was brought by Edward and Tonie LeStage, the parents of Joshua LeStage, deceased, against Dr. Medo Mirza and The Wesley Medical Center. Joshua was born with severe internal birth defects. Shortly after his birth at Wesley, Dr. Mirza attempted to surgically correct Joshua’s problems. During the fourth operation, while attempting to locate and repair an esophageal atresia, Dr. Mirza allegedly severed the baby’s mainstem bronchus. Sometime after the damaged bronchus was repaired and the operation was completed, the baby suffered cardiac arrest but was resuscitated. A second arrest occurred a short time later and this time Joshua failed to respond to resuscitation efforts and died.
The action brought against Dr. Mirza and Wesley alleged their negligence caused the death of Joshua LeStage. In part, the plaintiffs claim Wesley was negligent in allowing Dr. Mirza to have staff and surgical privileges at its facility. Plaintiffs claim the hospital was aware of Dr. Mirza’s incompetence yet negligently allowed him to operate on Joshua. Plaintiffs also alleged other undefined acts of negligence on the part of Wesley.
The plaintiffs filed a motion for production of the following documents:
“1. Any and all reports of the circumstances surrounding the death of Joshua LeStage on January 6, 1980;
2. Any and all reports, records and documents pertaining to investigations of the defendant Medo Mirza;
3. Any and all documents pertaining to restrictions on the practice of the defendant Medo Mirza at Wesley Medical Center, including all records, reports and documents pertaining to the restrictions and limitations of Medo Mirza as a staff member at Wesley Medical Center.”
A hearing was held on the motion and Wesley resisted production on the theory that the documents in toto were privileged. The trial court nevertheless ordered that the hospital produce the documents allowing only the excision of the names and addresses of patients or their representatives other than plaintiffs’ decedent. The trial court subsequently denied the hospi tal’s request for permission to take an interlocutory appeal. This original proceeding in mandamus followed.
Wesley, like other accredited and licensed medical facilities, is required to monitor and evaluate the members of its staff. The Wesley Medical staff is an entity within The Wesley Medical Center, and its membership consists of all doctors and dentists authorized by Wesley to practice in its institution. Dr. Mirza was a member of the Wesley staff. All staff members are subject to periodic review by various peer committees as to their practice and functions. The Joint Commission on Accreditation of Hospitals requires:
“The medical staff shall provide mechanisms for the regular review, evaluation, and monitoring of medical staff practice and functions. Such mechanisms shall be designed to maintain high professional standards of care.”
The mechanisms usually adopted, and those utilized by Wesley, are peer review committees whose members include staff doctors and dentists who evaluate their fellow practitioners. The documents sought to be protected from discovery are the peer review committee records, minutes, etc., which pertain to Dr. Mirza. Committee records are considered confidential by Wesley and the participating members of the committee.
Ordinarily, mandamus is not a proper action to control discovery proceedings in the trial court, which are subject to the broad discretion of the trial court. K.S.A. 60-801; Procter & Gamble Co. v. Howard, 233 Kan. 1025, 666 P.2d 728 (1983). In Berst v. Chipman, 232 Kan. 180, 653 P.2d 107 (1982), this court had occasion to consider the propriety of a mandamus action to correct alleged error in a trial court discovery proceeding. Chief Justice Schroeder, speaking for the majority, said:
“At the outset we note that the trial court is vested with broad discretion in supervising the course and scope of discovery. Vickers v. City of Kansas City, 216 Kan. 84, Syl. ¶ 2, 531 P.2d 113 (1975). Though the trial court’s discretion cannot be controlled by mandamus, where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked. Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972). In addition, where a petition for mandamus presents an issue of great public importance and concern, the court may exercise its original jurisdiction in mandamus and settle the question. See Mobil Oil Corporation v. McHenry, 200 Kan. 211, 239-43, 436 P.2d 982 (1968); A.T. & S.F. Hospital Ass'n v. State Commission of Revenue & Taxation, 173 Kan. 312, 316, 246 P.2d 299 (1952).” p. 183.
The privileged status of hospital committee records is a matter of first impression in Kansas appellate courts. It appears there are different views and conflicting rulings on this question in our own trial courts. Under the circumstances the matter is of sufficient public importance and concern to warrant our considering the question on the merits in this proceeding.
Several arguments are raised by Wesley in support of its contention that the requested documents are not subject to discovery. Initially Wesley asserts that its peer review documents are absolutely privileged as a matter of law and in support thereof relies upon K.S.A. 65-431 and K.A.R. 28-34-6. The statute provides in part:
“The licensing agency [the Department of Health and Environment] shall adopt, amend, promulgate and enforce such rules and regulations and standards with respect to the different types of medical care facilities to be licensed hereunder as may be designed to further the accomplishment of the purposes of this law in promoting safe and adequate treatment of individuals in medical care facilities in the interest of public health, safety and welfare.”
Pursuant to the authority granted in the statute, the Department of Health and Environment promulgated K.A.R. 28-34-6, which Wesley contends creates an absolute privilege from discovery. The regulation states in part:
“Medical Staff, (a) The hospital shall have an organized medical staff, responsible to the governing authority of the hospital for the quality of all medical care provided patients in the hospital and for the ethical and professional practices of its members.
“(b) In any hospital, a group comprised of the medical staff, with the approval of and subject to final action by the governing authority, shall formulate and adopt bylaws, rules, regulations, and policies for the proper conduct of its activities and recommend to the governing authority physicians considered eligible for membership on the medical staff.
“(c) The medical staff shall hold regular meetings for which records of attendance and minutes shall be kept.
“(d) Medical staff committee minutes and information shall not be a part of individual patient records nor subject to review by other than medical staff members.
“(e) The medical staff shall review and analyze at regular intervals the clinical experience of its members in the various departments of the hospital and the medical records of patients on a sampling or other basis. All techniques and procedures involving diagnosis and treatment of patients shall be reviewed periodically and shall be subject to change by the medical staff.” (Emphasis added.)
Wesley contends that subsection (d) of the regulation prohibits discovery of the requested documents and creates an absolute statutory privilege. We do not agree.
The statutory provision under which civil discovery proceedings are conducted reads in pertinent part as follows:
“Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In general: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, 'or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” K.S.A. 60-226(£>).
In Alseike v. Miller, 196 Kan. 547, Syl. ¶ 11, 412 P.2d 1007 (1966), we held:
“Privilege, within the meaning of our statutes governing discovery, is the privilege as it exists in the law of evidence.”
Our evidence code is quite specific as to privileges. K.S.A. 60-407 is a general abolition of privileges. That section states:
“Except as otherwise provided by statute (a) every person is qualified to be a witness, and (b) no person has a privilege to refuse to be a witness, and (c) no person is disqualified to testify to any matter, and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, and (f) all relevant evidence is admissible.” (Emphasis added.)
K.S.A. 60-423 et seq. set forth the specific statutory privileges. Nowhere in the statutes is there a privilege for hospital committee records or staff committee minutes or any other self-evaluation or self-policing information or peer review notes. Because K.A.R. 28-34-6(d) was duly adopted pursuant to statutory authority and has the force and effect of law (see Carpenter v. Johnson, 231 Kan. 783, 789, 649 P.2d 400 [1982]), Wesley contends that a valid statutory privilege from discovery was created. Furthermore, since the legislature did not modify the regulation, as it had authority to do under K.S.A. 1982 Supp. 77-426, the petitioner asserts the legislature has approved and adopted this privilege. The same argument was found to be without merit in Grauer v. Director of Revenue, 193 Kan. 605, 608, 396 P.2d 260 (1964). An administrative agency which has the power to adopt regulations does not have authority to adopt regulations which exceed the statutory authority granted in the first instance. As said in Grauer, “water cannot rise above its source.” 193 Kan. at 608. See also Woods v. Midwest Conveyor Co., 231 Kan. 763, Syl. ¶ 3, 648 P.2d 234 (1982).
Nowhere in the statutes is authority granted to the Department of Health and Environment to expand the scope of evidentiary privileges or limit the scope of discoverable matter. Whatever else K.A.R. 28-34-6(d) might accomplish, it does not rise to the level of a privilege created or “provided by statute.” K.S.A. 60-407; Alseike v. Miller, 196 Kan. 547; McKillop v. Regents of University of California, 386 F. Supp. 1270 (N.D. Cal. 1975). To hold otherwise would permit every administrative agency with authority to adopt regulations to avoid our code of civil procedure and other statutes by the simple procedure of adopting regulations which are not subjected to the legislative scrutiny usually applied to the enactment of statutes.
Petitioners have cited a number of cases from our sister states in support of their position but an examination of the cases indicates that most of those states have enacted statutes specifically addressing the confidentiality of medical staff committee or peer review records and minutes. Kansas, however, has not enacted such a statute. On at least four occasions bills which would limit or prohibit discovery of hospital committee records have been before legislative committees and none has ever been presented to the full legislature for a vote. We find no statutory privilege protecting the requested documents from discovery.
Wesley next asserts that portions of the information sought in the malpractice case relate to medical records of persons other than plaintiffs’ decedent and that such information and documents are subject to the physician-patient privilege under K.S.A. 60-427. Mr. and Mrs. LeStage, as respondents, assert the physician-patient privilege does not apply as Wesley is not the “holder of the privilege” and therefore has no authority to assert it. K.S.A. 60-427(a)(3) provides:
“ ‘[H]older of the privilege’ means the patient while alive and not under guardianship or conservatorship or the guardian or conservator of the patient, or the personal representative of a deceased patient.”
The physician attending the patient is not the holder of the privilege. State v. Humphrey, 217 Kan. 352, 362-363, 537 P.2d 155 (1975). K.S.A. 60-427(b) provides the conditions under which the “holder of the privilege” may assert the privilege or prevent others from revealing the privileged information. While it is true that the physician, or in this case the hospital, is not the “holder of the privilege” that does not mean that a physician, absent statutory authority, may reveal, ex parte, information subject to the privilege without the knowledge and consent of the patient or holder of the privilege. Similar restraints apply to confidential records of hospitals and other treatment facilities unless otherwise provided by statute. Records in the possession of Wesley which are subject to the physician-patient privilege under K.S.A. 60-427(fe) .would not ordinarily be discoverable without notice to and the consent of the holder of the privilege. In any instance where there is a valid question as to whether the privilege applies, the court should hold an in camera inspection to determine if the information sought is actually subject to the privilege and what protective orders should be issued. However, the existence of a valid physician-patient privilege as to some of the documents or proceedings of the peer review committees does not compel or justify a blanket protective order refusing discovery of all records and documents. The determination of the existence of the physician-patient privilege must be determined upon a case-by-case or document-by-document basis after the assertion is made that the requested information is actually subject to the privilege. The use of redaction, as ordered here by the trial court, may or may not afford sufficient protection' and anonymity to make information, which would otherwise be privileged, discoverable.
Wesley next asserts that as a matter of public policy, the information sought is confidential, necessary for the maintenance and improvement of the quality of health care, and therefore is protected regardless of any statutory privilege. It asks that we establish by judicial fiat an absolute privilege preventing discovery of the records. In Berst v. Chipman, 232 Kan. 180, we recognized that in certain situations a qualified privilege against disclosure of confidential matter may exist independent of a specific statutory privilege. Berst was an original proceeding.in mandamus filed in this court seeking an order directing the trial judge to deny discovery of certain alleged confidential information and documents. The documents sought related to confidential investigations conducted by the National Collegiate Athletic Association and the Southeastern Conference of possible infrac tions of NCAA recruiting rules by the University of Alabama. The documents were sought for use in a libel action against the Birmingham Post Company filed by a high school principal and one of the school’s basketball stars. The court recognized that pursuant to K.S.A. 60-226(c), the trial court has the power to limit discovery and to issue such protective orders as may be necessary to protect the conflicting interests of the parties. The court stated:
“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. [Citations omitted.]
“In balancing the interests involved herein it must be recognized the parties involved in the lawsuit have a great interest in the revelation of all pertinent facts. It is an oft-quoted doctrine that the public has a right to every man’s evidence; there is a general duty to give what information one is capable of and any exemptions are exceptional, being in derogation of a positive general rule [citations omitted] ....
“Additional guidelines considered in balancing claims of privilege with the need for disclosure include the degree of harm that would be caused by disclosure and the type of controversy before the court. [Citations omitted.] Also, the public interest may be a reason for not permitting inquiry as to particular matters by discovery.” 232 Kan. at 187-89.
Thus, it is clear that under certain circumstances the trial court, under its general supervisory powers, may limit discovery of material not specifically subject to a statutory privilege.
That the instant case involves a controversial and important area of the law is evidenced by the number of cases cited by the parties on the subject and the number of states having statutes addressing medical peer review records. Petitioner, in its brief to this court states:
“Hospitals are responsible for improving the quality of care in the institution. As previously stated, Federal and Kansas statutes and regulations, JCAH requirements, and the hospital internal rules, require such efforts. As a practical matter only medical staff members can carry out these responsibilities. As a matter of public policy, the deliberations and free discussions of these physician committees should not be subject to discovery or introduction into evidence at trial. The committee deliberations are part of a process required of physicians keeping their professional practice up to acceptable standards. If they are to be effective in this endeavor they cannot and must not have their consideration subject to scrutiny by outsiders. Simply stated, if these minutes in any form are to be subject to discovery or introduction into evidence, there will result total erosion of an efficient system of peer review. Not only will quality of care directly suffer, but medical education will suffer. To permit discovery will defeat attainment of the goals of the committees and will run contrary to legal requirements.”
Perhaps the leading case, relied upon by Wesley, on the subject of confidentiality and privilege for hospital staff reviews is one cited in Berst. In Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd 479 F.2d 920 (D.C. Cir. 1973), it was said:
“This committee work is performed with the understanding that all communications originating therein are to be confidential.
“Confidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients. Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations. Constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor’s suggestion will be used as a denunciation of a colleague’s conduct in a malpractice suit.
“The purpose of these staff meetings is the improvement, through self-analysis, of the efficiency of medical procedures and techniques. They are not a part of current patient care but are in the nature of a retrospective review of the effectiveness of certain medical procedures. The value of these discussions and reviews in the education of the doctors who participate, and the medical students who sit in, is undeniable. This value would be destroyed if the meetings and the names of those participating were to be opened to the discovery process.
“ ‘The public interest may be a reason for not permitting inquiry into particular matters by discovery.’ 4 Moore, Federal Practice ¶ 26.22(2) at 1287 (2d ed. 1969). As doctors have a responsibility for life and death decisions, the most up-to-date information and techniques must be available to them. There is an overwhelming public interest in having those staff meetings held on a confidential basis so that the flow of ideas and advice can continue unimpeded. Absent evidence of extraordinary circumstances, there is no good cause shown requiring disclosure of the minutes of these meetings. Further, ‘what someone * * * at a subsequent date thought of these acts or omissions is not relevant to the case.’ Richards v. Maine Central R., 21 F.R.D. 590 (D.C. Me. 1957). These committee meetings, being retrospective with the purpose of self-improvement, are entitled to a qualified privilege on the basis of this overwhelming public interest.” pp. 250-251.
The District of Columbia court operates under discovery rules similar to those in Kansas and, like Kansas, does not have a statute exempting this material from liberal discovery. The petitioner urges us to follow Bredice. Wesley cites several additional decisions in support of its position but an examination of those cases discloses that most, if not all of them, are based upon various state statutes which establish a privilege or some degree of protection for records similar to those sought in this case. As those decisions are based upon specific statutory authority, we do not deem them persuasive. Indeed, we are advised in the very informative amicus brief of the Kansas Hospital Association that “at least 46 states provide some degree of protection [of peer review committee records] from discovery through statutory law.”
On the other hand, Mr. and Mrs. LeStage assert that absent statutory protection there is no overwhelming public policy that precludes the discovery of the sought-after records so long as they are relevant to the issues before the trial court. In Nazareth Literary & Benevolent Inst. v. Stephenson, 503 S.W.2d 177 (Ky. 1973), the court held that reports of staff doctors concerning the professional activities of a defendant doctor in a malpractice action were discoverable. The hospital in that case was also a defendant and similar arguments to those presented by Wesley, including reliance upon Bredice, were presented to the court. The court, in allowing discovery, stated:
“The second proposition advanced by the hospital is addressed to considerations of public policy. It is argued that this court should engraft an exception to the procedural rules for discovery that such reports as are sought here must remain confidential because their revelation would impede the freedom of communication between physicians and hospital authorities concerning proper methods of treatment and the corrections of mistakes. Although this might be regarded as an initially appealing argument, on reflection, one might well debate wherein the public interest lies. Claims of privilege are carefully scrutinized, and impediments to the discovery of truth are afforded validity in relatively few instances in the common law. In any event, we find no applicable privilege expressed in either the general law of evidence existing in this state or in the statutes of this state expressing any protection of confidentiality in the situation presented.
“Under CR 26.02, as presently formulated, the expressed policy is that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, and this includes the existence, description, nature, custody, condition and location of any documents and the identity and location of persons having knowledge of any discoverable matter. It is unnecessary to consider whether the limiting word ‘relevant’ is used in the sense of the law of evidence or whether it is used in the common dictionary sense. The expression in the rule is ‘relevant to the subject matter involved in the pending action.’ There can be no question in the case before us that the requested material is surely relevant to the subject matter involved in the personal injury suit which asserts liability against the hospital for the alleged incompetent action or omission of the physician who possessed staff privileges.
“The only authority favorable to the hospital’s contention is the two decisions of the Federal District Court for the District of Columbia in Bredice v. Doctors’ Hospital, Inc., 50 F.R.D. 249 (1970), and Bredice v. Doctors’ Hospital, Inc., 51 F.R.D. 187 (1970). We consider that the applicability of those decisions to the situation presented in this case was seriously undermined in Gillman v. United States, 53 F.R.D. 316 (D.C.S.D.N.Y. 1971).
“In Bredice the trial judge judicially created a qualified privilege under the federal rules of procedure as they then existed with respect to staff conferences and reports concerning a patient’s death. In Gillman, however, the trial judge, although paying decent respect to the decision in Bredice, refused to extend it beyond its precise facts and held that although the plaintiff was not entitled to production of reports of a board of inquiry set up by the director of a hospital after a patient’s suicide to determine whether hospital personnel should be disciplined or hospital procedures changed, the plaintiff was, nevertheless, entitled to the testimony of hospital personnel given before the board of inquiry relating to what actually happened on the occasion that was the subject of plaintiff s pending civil action for damages allowable under the Federal Tort Claims Act.
“In our view, the correct disposition is declared in Kenney v. Superior Court, 255 Cal. App. 2d 106, 63 Cal. Rptr. 84 (1967). In the Kenney case, the court considered an application for extraordinary relief in the form of an order of mandamus. The court held that the plaintiff who had sued a physician for medical malpractice was entitled to discovery of any hospital records of the physician’s disciplinary proceedings, status on the hospital staff, and removal therefrom. For a general discussion see Annotation: Discovery — Medical Malpractice Action, 15 ALR 3d 1446.
“It is interesting to note that we are not here dealing with the question of a request for a protective order. The hospital did not seek a protective order for control or limitation or deletion of portions of the written material. It espoused the argument that the written material was simply not discoverable.” pp. 178-179.
Judge Gard, in his informative work, states:
“At common law there was no physician-patient privilege and the physician as well as the client could be compelled to testify as to communications even though they were confidential. The privilege is strictly a creature of statute. For this reason the statute has been strictly construed in Kansas. See Armstrong v. Topeka R. Co., 93 K 493, 144 P 847. Some states do not have such a privilege at all.” 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-427 (1979) pp. 140-141.
The United States Supreme Court in United States v. Nixon, 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090 (1974), was faced with a determination of whether confidential communications between a president of the United States and his closest personal advisors was subject to a nonstatutory privilege and therefore not discoverable as a matter of public policy. In ordering discovery the court stated:
“The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. . . .
. . . “The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man ‘shall be compelled in any criminal case to be a witness against himself.’ And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every mans evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” pp. 708-710. (Emphasis supplied.)
While it may be true that some members of the medical profession might seek to shirk their duties to others in the profession and to the public by refusing to participate in peer review functions or, in doing so, might be less than candid in their comments and evaluations, we do not ascribe such a lack of integrity to the vast majority of the members of the medical profession. The integrity of the medical profession is held in high esteem by the public and by the courts and we are not convinced that the occasional revelation, under appropriate protective and limiting orders of the trial court, of some peer review committee proceedings will result in the drastic collapse of the system as envisioned by Wesley. As indicated, many of the decisions relied upon by Wesley involve statutes which specifically protect hospital peer review records and minutes from discovery. Absent statutory protection it appears that most jurisdictions do not give blanket protection to such proceedings. Numerous cases, pro and con, on the public policy arguments of whether alleged confidential communications are subject to a nonstatutory qualified privilege are cited and discussed in Berst. We see no reason to repeat here what has been said in that opinion. Suffice it to say the court adopted the position that a balancing test is appropriate in determining whether the trial court should assert its supervisory powers to protect confidential information not subject to a statutory privilege from discovery. We deem the instant case to be analogous to Berst and that the procedures set forth therein are equally applicable and appropriate for the control of the discovery of peer review committee proceedings.
While there may be instances where peer review committee minutes and records and other confidential hospital documents should be denied discovery under the broad supervisory powers of the court, we decline to adopt an absolute statement of public policy declaring all such records to be protected in toto. If such a privilege is to be established it should be done by the legislature. In individual cases the balancing test discussed in Berst should be followed. In the instant case, the trial court, in a lengthy and well-reasoned opinion, stated:
“Now to the ‘public policy’ issue. Defendant and the hospital are joined. Good hospital care requires review of medical procedures used by the hospital’s medical staff. It would seem that those best qualified to review medical procedures used by a medical staff would be that body itself. The patient is the ultimate beneficiary of this peer review of diagnostic and treatment procedures. For that rhason the licensing authority has enacted certain rules and regulations requiring that the hospital’s medical staff police itself with the ultimate authority and responsibility coming to the governing authority of the hospital. The regulations require that a record be kept by the medical staff of its actions in this policing of itself through peer review. Staff findings are not part of the patient’s records and they are not open for view other than by medical staff.
“As aforesaid, in carrying out its duty of peer review, the hospital’s medical staff has reviewed the defendant’s methods of diagnosis and treatment through a special investigation which reviewed care and treatment rendered plaintiffs’ decedent and other patients of defendant who were diagnosed and/or treated in the hospital. The hospital is of the position that public policy would dictate that the materials gathered and minutes kept by that investigative body be kept confidential. Discovery ought to be denied, they say.
“Plaintiffs, on the other hand, say that their right to search out the truth through the judicial process is the consideration that weighs most under these facts.
“There is a public interest served by the regulation (supra) that restricts access to minutes of medical staff meetings to medical staff. There is a public interest served by the Kansas Rules of Discovery that allow a party litigant access to relevant material in the control of a party opponent.
“Under the facts here presented, the public interest will be best served by allowing these plaintiffs access to the materials sought under certain guidelines established by the Court to protect all interests involved (Rules of the Supreme Court relating to District Courts . . . 1, 2, 3 and 4 - 230 Kan. Ixvi, Gleichenhaus vs. Carlyle, [226 Kan. 167, 597 P.2d 611 (1979)]).
“This is the Court’s order: the hospital shall on or before fourteen (14) days from the date of this order, produce legible copies of all documents or things in its possess!, n or under its control that:
1. Relate in any way to the circumstances surrounding the January 6, 1980, death of plaintiffs’ decedent, Joshua LeStage,
2. Relate in any way to an investigation or investigations conducted by any person, group or entity under the control of the hospital or its medical staff; into the techniques and procedures involving diagnosis and treatment of patients by defendant Medo Mirza, M.D.
3. Relate in any way to any restrictions or limitations placed by the hospital or recommended by its medical staff upon the activities of defendant Medo Mirza, M.D.
“All names and addresses of patients or representatives thereof, other than plaintiffs’ decedent, shall be removed from all documents or things produced by the hospital.
“The hospital may comply with this order by delivering to its attorney of record three copies of the documents or things herein ordered produced together with a statement for cost of reproduction of each copy. Upon payment of cost, the defendant and plaintiffs shall have their respective copies. The hospital’s attorney shall keep the third.
“Each page or part of each copy ordered produced shall be marked by the hospital in such a way as to identify the particular copy and each page or part of that particular copy. The hospital’s attorney shall inform the Court in writing which party received which copy.
“It is ordered that the documents and things ordered produced here or the contents thereof shall not be disclosed to any other person or entity without prior court approval, nor shall they be used for any purpose other than discovery, preparation for trial and trial of this lawsuit.”
In Berst we said:
“Where the parties have conflicting interests in material sought to be discovered, the protective power of the court may be sought by a party under this provision, 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,” 232 Kan. at 187. (Emphasis added.)
Thus, it is obvious that the trial court recognized its responsibility under Berst and, having weighed the interests of all parties, applied the balancing test of Berst and determined that the sought after documents were discoverable. We find no abuse of discretion in that determination.
The trial court did not conduct an in camera inspection in this case. Wesley had not sought a protective order as to particular documents but merely contended in the trial court, as it does here, that all records and minutes of the peer review committees were privileged and therefore not subject to discovery. In Berst the court considered the advisability of an in camera inspection and stated:
“For this reason the trial court erred in failing to conduct an in camera inspection of the NCAA’s file to determine which documents were not relevant and thus not discoverable. An in camera inspection is an appropriate and useful proceeding to ensure that the balance is properly struck between a petitioner’s claim of irrelevance and privilege, and a plaintiffs need for the documents. [Citations omitted.] 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. [Citations omitted.] We believe when a claim of privilege, confidentiality or irrelevance is raised the court has a duty to conduct an in camera inspection to separate and permit discovery of only the relevant documents, thereby protecting against unnecessary and damaging disclosure of irrelevant confidential material.” pp. 186-187.
Even though the confidential information may be relevant, the trial court is still under a duty, when properly requested, to conduct an in camera inspection and apply the balancing test to determine if the sought-after information is discoverable. If, upon further proceedings, Wesley is of the opinion that certain of the subpoenaed documents are subject to the physician-patient privilege or require protection under K.S.A. 60-226(c) it should seek an in camera inspection and the same should be conducted by the trial court. On the other hand, it may be that the order already issued will be considered adequate protection by all parties.
Finally, Wesley asserts that the documents and information sought are not relevant. The trial court in its memorandum opinion and order specifically found that the sought-after information was relevant to material issues in the case. The trial court is vested with broad discretion in supervising the course and scope of discovery and the trial court’s discretion cannot be controlled by mandamus. Berst v. Chipman, 232 Kan. at 183. The allegation of Wesley that K.S.A. 65-442(b) controls is found to be without merit under the factual allegations of this case.
The petition for a writ of mandamus is denied. | [
-112,
-56,
-23,
61,
26,
-31,
34,
18,
67,
-61,
102,
115,
-83,
-53,
-123,
111,
-122,
61,
81,
115,
-57,
51,
79,
-32,
-46,
-9,
-13,
-43,
-15,
109,
-10,
-35,
77,
104,
-125,
-107,
-62,
11,
-33,
-48,
-126,
1,
-88,
-31,
81,
-128,
-92,
59,
94,
15,
53,
14,
-80,
58,
63,
-57,
-23,
42,
107,
-71,
-43,
-79,
-119,
5,
29,
16,
-96,
36,
-100,
5,
-40,
56,
-102,
-80,
16,
-20,
49,
-74,
-62,
54,
106,
-23,
9,
99,
98,
-95,
-59,
-19,
48,
-100,
47,
-113,
29,
-90,
-101,
72,
-7,
-123,
-105,
-68,
48,
16,
15,
-8,
-26,
21,
62,
108,
5,
-113,
-62,
-109,
-97,
118,
-98,
75,
-25,
83,
32,
85,
-97,
-78,
84,
-57,
59,
19,
-66,
-110
] |
The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff, Robert E. Ullrich, a Thomas County taxpayer, to enjoin the transfer of assets of the Thomas County hospital by the Board of County Commissioners of Thomas County to a private nonprofit corporation, the defendant, Thomas County Hospital Association (TCHA). In a separate action, plaintiff also sued the individual county commissioners to recover the value of all assets previously transferred to the hospital association. The trial court granted summary judgment in favor of the defendants in both cases, and the plaintiff has appealed.
The primary issue in the case is the constitutionality of the Thomas County Hospital Assets Transfer Act (K.S.A. 1982 Supp. 19-18,133 and 19-18,134). The facts are essentially undisputed and are as follows: Since 1976, there has been a dispute among the citizens of Thomas County over whether to build a new hospital. Two earlier cases before this court have addressed other phases of the controversy. In Thomas County Taxpayers Ass'n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978), it was determined that the statute on the authority of which bonds were to be issued to construct a new hospital by the county was not applicable and did not allow for the issuance of the proposed bonds. Later in Pratt v. Board of Thomas County Comm’rs, 226 Kan. 333, 597 P.2d 664 (1979), it was held that the county commissioners had no authority to issue and sell general obligation bonds, because there was no properly issued certificate of need as required by K.S.A. 19-18,128. Being unsuccessful in satisfying the legal requirements for construction of a publicly owned and financed county hospital, a group of citizens formed the Thomas County Hospital Association, a private nonprofit corporation. The objective was to have TCHA construct its own hospital and have the county transfer all of the assets owned by the old county hospital to TCHA.
The defendant county commissioners then sought the aid of the legislature to obtain statutory authority to transfer the hospi tal assets to TCHA. In 1981, the Kansas legislature enacted K.S.A. 19-18,132, which was designed to give the county commissioners authority to transfer the assets of the hospital. K.S.A. 19-18,132 provided as follows:
“(a) Subject to the provisions of subsection (b), in any county having a population of more than 8,000 and less than 9,000 and an assessed tangible valuation of more than $55,000,000 and less than $58,000,000 and in which is located a county hospital which is to close and terminate its operations pursuant to an election held in accordance with the provisions of K.S.A. 19-18,130 and 19-18,131, the board of county commissioners of such county and the board of hospital trustees of such county hospital may transfer and convey to the governing body of the new general hospital located in such county, for the use and benefit of such hospital and for the benefit of the residents of such county, all or part of the assets of the county hospital as the board of county commissioners and the board of hospital trustees may determine. Such transfer and conveyance of assets is in consideration of continuation of medical care services by such new general hospital, and is deemed to be a public purpose. These assets shall include, but not be limited to, unencumbered moneys, certificates of deposit, accounts receivable, reserve or bank accounts, supplies, inventory, equipment, fixtures and real estate used by or owned by the county hospital. Transfers and conveyances under this subsection (a) may be made from time to time as deemed appropriate by such board of county commissioners and such board of hospital trustees.
“(b) No transfer and conveyance of all or part of the assets of the county hospital authorized under subsection (a) shall be made until a special election has been held on the question of such transfer and conveyance and a majority of the votes cast on such question are in favor thereof. The election shall be held on a date set by the board of county commissioners. The question shall appear on the ballot as provided in K.S.A. 25-605 and 25-605a. Notice of such election and conduct thereof shall be in accord with the general bond law except as otherwise provided in this act.
“(c) If a majority of the votes cast on the question submitted under subsection (b) are in favor thereof, the board of county commissioners and the board of hospital trustees of the county hospital shall perform all acts necessary or suitable to carry out the intent of this act.”
It should be noted that the statute was worded in the language of so-called bracket legislation by making the statute applicable to “any county having a population of more than 8,000 and less than 9,000 and an assessed tangible valuation of more than $55,000,000 and less than $58,000,000 and in which is located a county hospital which is to close and terminate its operations pursuant to an election held in accordance with the provisions of K.S.A. 19-18,130 and 19-18,131 . . .” K.S.A. 19-18,132 required an election and prior approval of the transfer by a majority of the voters in the county.
On April 7, 1981, a county election was held in Thomas County, and the transfer of hospital assets was approved by a majority of the voters. Thereafter, the plaintiff reached the conclusion that the assessed tangible valuation of Thomas County was greater than the $58,000,000 limitation provided for in the statute and questioned whether or not the statute could be applicable to Thomas County. Plaintiff then brought the first of these two consolidated lawsuits to challenge the transfer of hospital assets from Thomas County to TCHA. While the action was pending, the 1982 legislature enacted the Thomas County Hospital Assets Transfer Act (K.S.A. 1982 Supp. 19-18,133 and 19-18,134) which provides as follows:
“19-18,133. Transfer of assets of Thomas county hospital to Thomas county hospital association authorized, (a) In order to facilitate the transfer of hospital operations in Thomas county from the Thomas county hospital to the Thomas county hospital association, the board of county commissioners of Thomas county and the board of trustees of the Thomas county hospital are hereby authorized to transfer and convey to the Thomas county hospital association, a private, nonprofit corporation, all or part of the assets of the Thomas county hospital as they may determine appropriate. Such transfer and conveyance of assets are in consideration of continuation of medical care services and assumption of certain liabilities of the Thomas county hospital by the Thomas county hospital association, and are deemed to be for a public purpose. These assets may include, but need not be limited to, unencumbered moneys, certificates of deposit, accounts receivable, reserve or bank accounts, supplies, inventory, equipment, fixtures and real estate used by or owned by the Thomas county hospital. Transfers and conveyances under this subsection (a) may be made from time to time as deemed appropriate by the board of county commissioners of Thomas county, Kansas and the board of trustees of the Thomas county hospital. The authority granted by this section is in addition to any other authority granted by law.
"(b) Conveyances and other instruments appropriate to transfer all or part of the assets used by or owned by the Thomas county hospital to the Thomas county hospital association shall be executed by the chairman of the board of county commissioners of Thomas county.”
“19-18,134. Citation of act. This act shall be known and may be cited as the Thomas county hospital assets transfer act.”
It should be noted that the transfer act abandoned the reference to counties with a certain population and assessed tangible valuation. It specifically named Thomas County as the county to be affected by the legislation.
In order to avoid the dispute over the application of the 1981 statute raised by plaintiff s initial petition, the defendants decided to utilize the 1982 transfer act to effectuate the transfer of assets from Thomas County to TCHA. So that none of the assets already in the hands of TCHA could be challenged as being improperly transferred, those assets previously transferred were transferred back to Thomas County. The county commissioners then made one blanket transfer of all the hospital property back to TCHA. Transfers from the county to TCHA have continued since that time. Thereafter, the plaintiff amended his petition to challenge the 1982 transfer act as being unconstitutional (1) as special legislation in violation of Article 2, Section 17, of the Kansas Constitution and (2) on the basis that the transfer act was unconstitutional because it authorized the transfer of public money and assets to a private corporation. While this action was pending, plaintiff filed the second of these consolidated actions against the individual county commissioners seeking damages for wrongful transfer of county property. The issues in the two cases were identical, and the trial court granted summary judgment in favor of the defendants in both cases. The plaintiff appealed.
The plaintiff s first point on the appeal is that the transfer act (K.S.A. 1982 Supp. 19-18,133 and 19-18,134) is unconstitutional as a violation of Article 2, Section 17, of the Kansas Constitution which since 1974 has provided as follows:
“§ 17. Uniform operation of laws of a general nature. All laws of a general nature shall have a uniform operation throughout the state: Provided, The legislature may designate areas in counties that have become urban in character as ‘urban areas’ and enact special laws giving to any one or more of such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper.”
The present version of Article 2, Section 17, was adopted by the people at the general election in 1974. The 1974 amendment completely eliminated language previously contained in that section providing that “in all cases where a general law can be made applicable, no special law shall be enacted.” This language was in the original version of Article 2, Section 17, as adopted in 1859 and it was retained in subsequent amendments passed in 1906 and 1954.
In the recent case of Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 631 P.2d 222 (1981), the opinion discusses in depth Article 2, Section 17, and its history from its original adoption in 1859 to the present time. In the Stephens opinion (230 Kan. at 127), Article 2, Section 17, is analyzed as follows:
“Article 2, Section 17, in its present form, was revised and adopted by the people at the general election of 1974. It now provides as set forth above at the beginning of the discussion on this point. It is important to note that the 1974 amendment of Article 2, Section 17, has completely eliminated the second sentence which provided that ‘in all cases where a general law can be made applicable, no speciál law shall be enacted.’ It is thus to be emphasized that Article 2, Section 17, of the Kansas Constitution as of 1981, simply requires that all laws of a general nature shall have a uniform operation throughout the state. The effect of this change is that the only prohibition contained in Article 2, Section 17, relates to laws of a general nature which affect the people of the state generally. Such laws must apply uniformly throughout the state and thus be geographically uniform. We, therefore, hold that Article 2, Section 17, of the Kansas Constitution as it exists today is not applicable to constitutional challenges based upon a denial of equal protection of the laws not involving a claim of lack of geographical uniformity.”
It should be noted that in Sossoman v. Board of County Comm’rs, 230 Kan. 210, 630 P.2d 1154 (1981), there is language in the opinion on page 212 which might be interpreted to mean that Article 2, Section 17, in its present form still prohibits special legislation.
We wish to make it clear at this time that since the 1974 revision of Article 2, Section 17, the enactment of special legislation by the Kansas legislature is no longer prohibited by that section, and the Kansas legislature has the authority to enact special legislation applicable to a single county without the legislation being subject to attack under the provisions of Article 2, Section 17, as special legislation. We hold that under Article 2, Section 17, special legislation, as such, is no longer prohibited even when a general law might have achieved the same purpose. As stated in Stephens, the only legislation now prohibited by Article 2, Section 17, is legislation of a general nature which does not operate with geographical uniformity throughout the state.
We do not anticipate that any great problem will arise from this interpretation of Article 2, Section 17. The home rule amendment to the Kansas Constitution, Article 12, Section 5, has given to the cities of Kansas the power to determine their local affairs without requiring action by the legislature. Counties have likewise been granted broader home rule powers by the legislature through the enactment of K.S.A. 1982 Supp. 19-101a. We, therefore, affirm the trial court in its judgment that the Thomas County Hospital Assets Transfer Act (K.S.A. 1982 Supp. 19-18,133 and 19-18,134) is not in violation of Article 2, Section 17, of the Kansas Constitution.
The plaintiff s next point on the appeal is that the Kansas legislature acted beyond its constitutional power in authorizing the transfer of Thomas County assets to a private corporation, the Thomas County Hospital Association. Simply stated, the plaintiff maintains that Section 2 of the Kansas Bill of Rights, which provides that no special privileges or immunities shall ever be granted by the legislature, prohibits the legislature from authorizing the transfer of public property to private corporations and individuals. He contends that the transfer act constitutes a special privilege granted by the legislature to the Thomas County Hospital Association, a private corporation over which Thomas County taxpayers have no control. He argues that there can be no public purpose for a new hospital in a county the size of Thomas County, where there is existing a public hospital which is now providing all of the necessary services.
The defendants, in response, maintain that the law of Kansas has never prohibited the transfer of public funds or property to private individuals or corporations in all cases. Rather, the general proposition of law recognized by our cases is that the transfer of public property cannot be made without compensation when no public benefit would result from the gift. Defendants contend that the transfer of assets to the hospital association in this case was made for a valuable consideration and with a clear public purpose and public benefit in mind. Here the transfer of assets was made for a real and valuable consideration, since the hospital association in the Indemnification and Assumption Agreement assumed any and all liabilities arising out of the operation of the Thomas County hospital including accounts payable, leases, third party adjustments, profit sharing and pension obligations, and any other liabilities or costs incurred. In addition, the hospital association agreed to indemnify the county for losses arising out of the operation of the hospital other than for negligence and malpractice claims. The defendants also contend that the transfer of assets to the hospital association was for a public purpose, since promoting the public health is clearly within the legislative power.
In determining this issue, it would be helpful to consider some of the general principles of law governing the transfer of public property to private individuals and corporations. The generally recognized rule is that a state legislature may appropriate public money or property for private individuals, if thereby the public welfare is promoted. If the purpose of the expenditure of public money is legitimate because for a public purpose, it will not be defeated because the execution of it involves payments to individuals, or private corporations.
What is for the public good or what are public purposes for which appropriations may be made are questions which the legislature must in the first instance decide? In determining those questions, a state legislature is vested with a broad discretion, which cannot be controlled by the courts, except when its action is clearly evasive or violative of a constitutional provision. It has been said that a strict formula to determine public purposes for all times cannot be formulated, since the concept expands with the population, economy, scientific knowledge, and changing conditions. As people are brought closer together in congested areas, the public welfare requires governmental operation of facilities which were once considered exclusively private enterprises, and necessitates the expenditure of tax funds for purposes which were not classified as public. What is a public purpose for which public funds may be expended is not a matter of exact definition, and the line of demarcation is not immutable or incapable of adjustment to changing social and economic conditions that are properly of public and governmental concern. 63 Am. Jur. 2d, Public Funds § 59.
Since almost the beginning of our judicial history, the decisions of this court have upheld a grant of public funds to a private corporation if a public purpose is shown. In Leavenworth Co. v. Miller, 7 Kan. *479 (1871), it is stated in Syllabus ¶ 13 as follows:
“The government may accomplish a public purpose through the means of a private agency, a private individual or individuals, or a private corporation. It is the ultimate object to be obtained which must determine whether a thing is a public or a private purpose. The ultimate object of the government in granting municipal aid to railroads is to increase the facilities for travel and transportation from one part of the country to the other, which object is, in its nature, a public purpose.”
In Central Branch U.P.R. Co. v. Smith, 23 Kan. *745 (1880), it is stated that an attempted grant of public aid to an individual or a private corporation cannot be sustained, unless, upon the face of the law or record, it appears that the grant is to subserve some public purpose. The same rule was recognized in Hicks v. Davis, 97 Kan. 312, 315, 154 Pac. 1030 (1916); State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 296 P.2d 656 (1956); and State, ex rel., v. City of Pittsburg, 188 Kan. 612, 364 P.2d 71 (1961).
The question then is presented whether the transfer of county assets to the Thomas County hospital in this case was for a public purpose. We agree with the trial court that the operation of the hospital by TCHA in this case is for a public purpose. We think it obvious that promoting the public health is within the power of the legislature, and that hospitals promote the public health. If private enterprise can be used to eradicate urban blight or if cities can issue industrial revenue bonds to promote private industry, it should reasonably follow that private enterprise may be used in an attempt to promote the health of the citizens of Thomas County. We, therefore, hold that the trial court was correct in finding that the Kansas legislature, by enacting the transfer act (K.S.A. 1982 Supp. 19-18,133 and 19-18,134), did not violate Section 2 of the Kansas Bill of Rights by authorizing the board of commissioners of Thomas County to transfer county hospital assets to the Thomas County Hospital Association.
The judgment of the district court is affirmed. | [
-48,
108,
-75,
92,
26,
-26,
32,
26,
105,
-78,
-91,
83,
-95,
104,
5,
127,
-50,
53,
65,
121,
-25,
-77,
67,
-15,
-42,
-77,
-1,
-57,
-13,
91,
-26,
-42,
73,
81,
10,
93,
38,
66,
95,
28,
-114,
-114,
-86,
-64,
-47,
-64,
52,
103,
50,
66,
113,
13,
-77,
40,
28,
-29,
72,
44,
91,
-87,
81,
-79,
-88,
-123,
95,
71,
1,
-128,
-104,
103,
-40,
38,
-48,
49,
64,
-120,
83,
-90,
-122,
116,
79,
-103,
12,
98,
98,
35,
28,
-3,
96,
-104,
14,
-41,
-99,
-25,
-110,
88,
-14,
11,
-75,
28,
117,
86,
3,
124,
-18,
20,
95,
124,
-125,
-114,
-38,
-77,
15,
100,
-118,
99,
-9,
11,
-96,
97,
-123,
54,
93,
-41,
50,
27,
62,
-76
] |
The opinion of the court was delivered by
Schroeder, C.J.:
This case comes before the court for review of the decision of the Court of Appeals found at-9 Kan. App. 2d 230,675 P.2d 387 (1984). An interlocutory appeal was brought by the State, pursuant to K.S.A. 22-3603, from an order of the district court suppressing evidence obtained as a result of an arrest it found to be illegal. The Court of Appeals vacated the order, holding the arrest was authorized under K.S.A. 22-240l(fo). We granted review.
The facts are undisputed. During the investigation of a neighborhood disturbance in Lawrence, the defendant, John Flum merfelt, was questioned about his name and address when he was observed by a police officer acting suspiciously while standing in the yard of a residence in the neighborhood. The defendant indicated he lived at that residence. A radio check of the defendant’s name and automobile registration revealed there were no outstanding warrants for the defendant in Douglas County. The defendant was instructed to return to his home and to stop bothering his neighbors. Upon returning to his patrol car the officer was advised there was an outstanding warrant for the defendant in Leavenworth County. The officer requested that the existence of the warrant be confirmed by teletype and remained at the defendant’s home. A teletype communication was received by the Douglas County Sheriff s office confirming that a bench warrant had been issued for the defendant in Leavenworth County for failure to appear on a traffic citation. The warrant number and the amount of the appearance bond were also transmitted. Police officers then knocked on the door of the defendant’s residence and informed the defendant of the outstanding warrant. The defendant told them to leave and attempted to shut the door. The officers forced their way into the house and placed the defendant under arrest. During an inventory search of the defendant’s person at the police station, a bag suspected of containing cocaine was seized. A search warrant for the defendant’s residence was obtained and executed. Other items thought to be illegal drugs and drug paraphernalia were seized. The defendant was subsequently charged with possession with intent to sell cocaine in violation of K.S.A. 65-4127a.
Prior to trial the defendant moved to suppress the evidence seized as a result of his arrest and under the search warrant. The defendant argued that under K.S.A. 22-2401 he could not be arrested on a misdemeanor warrant executed in this state where the warrant was not in the possession of the arresting officer and the defendant did not waive presentment of the warrant. The statute provides:
“A law enforcement officer may arrest a person when:
“(a) He has a warrant commanding that such person be arrested; or
“(b) He has probable cause to believe that a warrant for the person’s arrest has been issued in this state or in another jurisdiction for a felony committed therein; or
“(c) He has probable cause to believe that the person is committing or has committed
“(1) A felony; or
“(2) A misdemeanor, and the law enforcement officer has probable cause to believe that:
“(i) Such person will not be apprehended or evidence of the crime will be irretrievably lost unless such person is immediately arrested; or
“(ii) Such person may cause injury to himself or others or damage to property unless immediately' arrested; or
“(d) Any crime has been or is being committed by such person in his view.”
The trial court sustained the motion to suppress, stating:
“K.S.A. 22-2401 sets out the requirements for arrest by a law enforcement officer. The facts presented to the Court at the hearing on the defendant’s motion indicate: The officer did not have a warrant; the crime for which a warrant may have been issued was a misdemeanor; the officer did not have probable cause to believe that defendant would not be apprehended, that evidence of the crime lost, or that the defendant may cause injury to himself or others, or damage to property; the crime was not committed in his view by defendant.
“The State cites K.S.A. 22-2305(3) as authority for the legality of the arrest. This statute does not modify K.S.A. 22-2401 except to allow in those cases where the officer has a warrant, or in cases of a felony, the warrant need not be in his possession. K.S.A. 22-2818 requires that for arrest on bench warrants for traffic violations, the in hand service of the bench warrant is required unless defendant waives such in hand service. The evidence does not support such waiver.
“The Court therefore concludes that the arrest of the defendant was illegal and that his motion should be sustained.”
On appeal the State stipulates the arrest of the defendant was based upon K.S.A. 22-2401(b), that is, that the arrest was based upon probable cause that a warrant for the defendant’s arrest had been issued in this state. The State contends this section of the statute applies to either misdemeanor or felony warrants issued in this state, but only to felony warrants issued in another jurisdiction. In a brief per curiam opinion the Court of Appeals held the statute was not ambiguous and authorized the arrest of a person when there is probable cause to believe a warrant for the person’s arrest has been issued in this state, whether that warrant is for a felony or misdemeanor. 9 Kan. App. 2d at 231. In support of his Petition for Review the defendant asserts the Court of Appeals disregarded various legal articles discussing the application of 22-2401(h) to misdemeanor warrants, prior cases which hold that under common law a warrantless arrest for a misdemeanor is limited to offenses committed in the officer’s view or presence, and the provisions of K.S.A. 22-2818 which pertain to the service of a bench warrant and the collection of an appearance bond in cases involving traffic offenses.
The issue presented is whether 22-2401(5) authorizes the arrest of a person where there is probable cause to believe a misdemeanor warrant has been issued for that person’s arrest in this state. This is essentially a matter of statutory construction. We are mindful of the fundamental rule of statutory construction, to which all others are subordinate, that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. See Szoboszlay v. Glessner, 233 Kan. 475, 477, 664 P.2d 1327 (1983), and cases cited therein. In construing statutes the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. Wirt v. Esrey, 233 Kan. 300, 313, 662 P.2d 1238 (1983). See also Szoboszlay v. Glessner, 233 Kan. at 478. In addition, penal statutes must be strictly construed in favor of persons subjected to their operations, which simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Zimmerman & Schmidt, 233 Kan. 151, Syl. ¶ 2, 660 P.2d 960 (1983); State v. Dubish, 234 Kan. 708, Syl. ¶ 1, 675 P.2d 877 (1984).
Prior to the adoption of the new Kansas Code of Criminal Procedure in 1970, and with it the enactment of K.S.A. 22-2401, the limits of a law enforcement officer’s power to arrest had not been statutorily defined. Vernon’s Kansas C. Crim. Proc. § 22-2401, p. 176 (1973). The common law authority to arrest for misdemeanors extended only to those cases where the officer had a valid warrant in his possession or where a misdemeanor was committed in the officer’s view or presence. See, e.g., State v. Merrifield, 180 Kan. 267, 270, 303 P.2d 155 (1956); State v. Dietz, 59 Kan. 576, 582, 53 Pac. 870 (1898); In re Kellam, 55 Kan. 700,41 Pac. 960 (1895). The Judicial Council comment following 22-2401 recognizes this authority was expanded by the enactment of the statute:
“This section confers somewhat broader powers than the former law. Under subsection (b) an officer may arrest under the authority of a warrant not in his possession if he has probable cause to believe it has been issued. Also, arrests for misdemeanors maybe made on probable cause in certain emergency situations.”
See also Vernon’s Kansas C. Crim. Proc. § 22-2401 (1973).
The difficulty in determining whether 22-2401'(b) authorizes an arrest upon probable cause to believe a warrant for a misdemeanor has been issued was discussed in Meyer, Arrest Under the New Kansas Criminal Code, 20 Kan. L. Rev. 685, 712 (1972):
“The language of subsection 22-2401(b) presents a statutory construction problem since it is unclear if the legislature intended this subsection to apply only to warrants charging felonies. The statute permits an officer to make an arrest if: ‘He has probable cause to believe that a warrant for the person’s arrest has been issued in this state or in another jurisdiction for a felony committed therein; . . . .’ The ambiguity results from the placement of the prepositional phrase ‘for a felony committed therein’; the question is whether this phrase only applies to out-of-state warrants. Clearly the warrant from another jurisdiction must involve a felony. However, it may be argued that by using the words ‘a warrant . . . issued in this state,’ and ‘a felony committed therein’ the legislature intended to authorize a Kansas officer to make a warrantless arrest of a person who has been named in a Kansas warrant charging either a misdemeanor or a felony. The argument is that ‘a warrant’ can be read to include a misdemeanor warrant and ‘therein’ obviously does not mean ‘herein.’ Two leading Kansas legal scholars apparently believe this was not the intent of the legislature and that the subsection is limited only to felonies irrespective of the jurisdiction issuing the warrant. Restriction of this subsection to felonies would be consistent with this state’s policy of narrowly limiting warrantless arrest for misdemeanors. Prior to July 1, 1970, a warrantless arrest for a misdemeanor committed out of the presence of the arresting officer would have been invalid. However, section 22-2401(c) of the new Code has significantly changed the law of arrest by allowing a misdemeanor arrest in specified ‘emergency’ situations if the arresting officer has probable cause to believe that a misdemeanor is being committed or has been committed. This loosening of previous restrictions on warrantless misdemeanor arrests arguably indicates that the legislature may also have intended to permit a Kansas officer to make a warrantless arrest for either a misdemeanor or a felony when he possesses probable cause to believe that a Kansas warrant has been issued. In any event, the legislature should clarify subsection 22-2401(b). If, in fact, misdemeanors are included, it should consider whether this is consistent with Section 15 of the Kansas Bill of Rights. If the legislature wishes to limit this subsection to felonies, it might redraft the statute in the following manner: ‘He has probable cause to believe that a valid arrest warrant, charging the person to be arrested with a felony, has been issued in this state or in another jurisdiction.’ ”
In Seaton & Wilson, Notes on The Code of Criminal Procedure, 39 J.B.A.K. 97, 99 (1970), the following comment concerning this provision was made:
“In addition to his power to arrest with a warrant, an officer is empowered under the code to arrest for a felony whenever he has probable cause to believe that a warrant for the person’s arrest has been issued either in this state or in another jurisdiction. This provision should eliminate any doubt about the legality of arrests made on the basis of teletype or like messages. Also authorized are the familiar arrests on probable cause for a felony. In addition, the code authorizes arrest by an officer for any crime which has been or is being committed ‘in his view.’
“In the same section with these rather familiar rules however, the code purports to empower an officer to arrest for a misdemeanor on probable cause, if the officer also has probable cause to believe that the person will not be apprehended or evidence will be irretrievably lost unless he is immediately arrested, or probable cause to believe that he may cause injury to himself or others or damage to property unless immediately arrested. This provision is likely to face constitutional challenge based on an old case, In re Kellam, 55 Kan. 700, 41 Pac. 960 (1895) indicating that the rule requiring that a misdemeanor be committed in the officer’s presence has its source in the constitution.”
Recent state revisions of Illinois and Montana rules of criminal procedure were drawn upon in many instances in drafting the Kansas Code of Criminal Procedure. See Kansas Judicial Council ■ Bulletin, October 1969, p. 11. K.S.A. 22-2401(b) appears to be a combined version of the similar provisions in both the Illinois and Montana statutes. The Illinois provision, 111. Ann. Stat. ch. 38, § 107-2(b) (Smith-Hurd 1982 Supp.), provides:
“A peace officer may arrest a person when:
“(b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction.”
The Montana statute, Mont. Code Ann, § 46-6-401 (1983), which was based upon the Illinois statute, reads in pertinent part:
“A peace officer may arrest a person when:
“(2) he believes on reasonable grounds that a warrant for the person’s arrest has been issued in this state;
“(3) he believes on reasonable grounds that a felony warrant for the person’s arrest has been issued in another jurisdiction.”
Other states have provisions similar to either the Illinois or Montana statutes. See, e.g., Or. Rev. Stat. § 133.310(2) (1983); Wis. Stat. § 968.07(l)(b) and (c) (1982).
The committee comments following the Illinois and Montana statutes indicate the provisions are designed to allow officers to make arrests based on warrants which they do not have in their possession. The Montana Commission Comments state:
“The section states the circumstances under which a peace officer may make an arrest for either a felony or a misdemeanor with or without an arrest warrant. Subdivisions [(1) and (2)] relate to arrests for either a felony or misdemeanor based on a warrant of arrest issued in this state. The change suggested by these sections was made to conform with [46-6-203], to allow peace officers to arrest on a warrant which they do not have in their possession. This change was thought to be desirable in light of modern methods of communication. That is, when an officer has been informed that a warrant has been issued for the arrest of a person and he locates the suspect, it would be impractical to require that the officer go to the station and get the warrant and then return to make the arrest.” Mont. Code Ann. § 46-6-401.
See also People v. White, 51 Ill. App. 3d 155, 366 N.E.2d 491 (1977). Mont. Code Ann. § 46-6-203 (1983) is similar to K.S.A. 22-2305(3) which provides:
“The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his possession at the time of the arrest, he shall then inform the defendant of the offense charged and of the fact that a warrant has been issued.”
This statute is similar to Rule 4(d)(3) of the Federal Rules of Criminal Procedure. The Judicial Council Comments state this subsection “clarifies the status of the officer who makes an arrest under the authority of a warrant not in his possession.”
Although the Illinois equivalent of 22-2401(b) permits arrests based upon out-of-state misdemeanor as well as felony warrants, the Montana statute limits arrests on out-of-state warrants to felonies only. The Commission Comments to Mont. Code Ann. 46-6-401 state:
“Subdivision [(3)] relates to arrests based on out-of-state warrants. The commission felt that this provision should be limited to felony warrants only.”
Roth the Illinois and Montana statutes, from which K.S.A. 22-2401(b) was drawn, authorize an arrest based upon probable cause to believe that any warrant for the person’s arrest, whether misdemeanor or felony, has been issued in that state. See, e.g., People v. McNamara, 33 Ill. App. 3d 216, 338 N.E.2d 202 (1975) (traffic warrants). Although the wording of 22-2401(£>) creates an ambiguity concerning its application to misdemeanor warrants issued in this state, there is nothing to indicate the provision*was not intended to have the same effect as the Illinois and Montana statutes, both of which authorize an arrest upon reasonable belief that a misdemeanor warrant has been issued in that state. The defendant argues, however, that the wording of 22-2401(b) indicates a legislative intent to confine the application of this provision to felony warrants only, in essence because the word “misdemeanor” is not specifically used, whereas “felony” is. The only case which relies on this statute, State v. Van Buren, 217 Kan. 182, 535 P.2d 456 (1975), is not helpful here because it involved an arrest based upon a felony warrant issued in another jurisdiction.
We are not persuaded by the defendant’s argument. The drafters of22-2401 apparently sought not only to authorize police officers in this state to make arrests based upon a reasonable belief a' warrant for the person’s arrest had been issued as provided in the Illinois statute, but also to include the limitation on arrests based on out-of-state warrants contained in the Montana statute. The difficulty arose because this limitation was affixed to the end of the sentence in K.S.A. 22-2401(b), rather than placed in a separate sentence or subsection as in the Montana statute. However, the fact the drafters did not foresee the difficulties with the combined version of the two statutes does not alter the legislative intent. Had the legislature intended to limit the application of this provision to felony warrants only in this state, it could have simply phrased the statute in the following manner: “probable cause to believe that a felony warrant for the person’s arrest has been issued.” The fact this was not done and the fact the wording of the statute so closely follows that found in the Illinois and Montana statutes indicates K.S.A. 22-2401(b) was intended to apply to misdemeanor as well as felony warrants issued in this state, in conformity with the stated purpose and effect of the statutes from which it was drawn.
Other statutes cited by the parties must be read in pari materia and insofar as practical interpreted in a harmonious and sensible way. In determining legislative intent, the court may properly look to the purpose to be accomplished, the necessity and effect of the statute, and the effect the statute may have under the various constructions suggested. See In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981); Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. ¶ 1, 610 P.2d 1107 (1980).
K.S.A. 22-2401 defines the authority of an officer to make an arrest. The other statutes cited by the parties describe the man ner in which an arrest or warrant may be executed and the procedure for an appearance before a magistrate. They do not, however, confer any authority to make an arrest and do not vitiate or modify the provisions of 22-2401. Under our interpretation of 22-2401 an officer may make an arrest where he has a warrant or has probable cause to believe any warrant for the person’s arrest has been issued in this state. K.S.A. 22-2305 specifically provides a warrant may be executed at any place within the state and actual possession of the warrant by the arresting officer at the time of the arrest is not necessary. Under K.S.A. 22-2818(a) any officer may serve a bench warrant issued for failure to appear on a traffic citation and may collect the appearance bond. The second sentence of this subsection provides “the officer making the arrest” may collect the appearance bond without actual in-hand service of the bench warrant where the violator waives presentment and the existence of the warrant is verified by telecommunications with the jurisdiction issuing the warrant. The use of the emphasized phrase in this sentence contemplates an arrest has been made by the arresting officer without actual possession of the warrant prior to the waiver of in-hand service and collection of the appearance bond.
This construction of the statute is consistent with the statutory scheme in existence in 1981 when 22-2818 was enacted, and the purpose of the provision. Prior to 1981, under Kansas statutes, an officer was authorized to execute warrants for misdemeanors, including bench warrants anywhere in the state without having actual possession of the warrant. Under K.S.A. 22-2901(6) a person arrested on a bench warrant was to be taken before the magistrate who issued the warrant. It was possible, therefore, for a defendant stopped on his way home from work in a routine traffic stop to be arrested on an outstanding traffic warrant issued in another county, and be transported to that county to appear before the magistrate and pay the appearance bond.
The legislature obviously enacted 22-2818(a) as an alternative procedure to the harsh consequences of 22-2901(6). The purpose of 22-2818(a) was merely to provide a method which allows defendants arrested on bench warrants to pay their appearance bonds at the time and place of the arrest, rather than be transported to a faraway county to pay the appearance bond as provided by 22-2901(6). K.S.A. 22-2818 was not intended to, nor does- it, modify the authority of an officer to make an arrest under 22-2401 or require an officer to have actual possession of the warrant or a waiver of in-hand service by the defendant before a lawful arrest may be made. It merely requires in-hand service of the warrant or waiver of presentment before the appearance bond can be collected by the arresting officer at the time of the arrest. If the arresting officer does not have actual possession of the warrant, and after verification of the warrant by telecommunication the defendant does not waive presentment, then the officer is authorized under 22-2901(6), as was the procedure prior to the enactment of 22-2818, to transport the defendant to the county where the bench warrant was issued. The trial court’s finding that possession of the warrant by the arresting officer at the time of the arrest or waiver of presentment was required for a legal arrest is not consistent with the history or purpose of 22-2818. The trial court’s interpretation would permit a person for whom a bench warrant has been issued to avoid arrest by merely refusing to waive presentment when the warrant is not in possession of the arresting officer. The officer would then be required to obtain the warrant before he could again attempt to locate the defendant, make the arrest, and collect the appearance bond. We do not believe the legislature intended to diminish the prior authority of law enforcement officers to arrest on bench warrants not in their possession by passage of this statute.
The defendant also contends, based upon In re Kellam, 55 Kan. 700, that a statute authorizing a warrantless arrest for a misdemeanor committed outside of the presence of the arresting officer is violative of § 15 of the Kansas Bill of Rights. The effect of this provision is identical to that of the Fourth Amendment to the United States Constitution. State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963); State v. Platten, 225 Kan. 764, 768, 594 P.2d 201 (1979). In Kellam the court struck down a statute which authorized arrests based “upon reasonable suspicion that an offense has been committed.” The court held the constitutional guarantee against unreasonable arrests prohibited a warrantless arrest for a minor offense not committed in the officer’s presence. 55 Kan. at 702. The court reasoned that if warrants cannot issue except upon a showing of probable cause supported by oath or affirmation, “how can an arrest for a petty offense without a warrant upon the mere suspicion of an officer, not resting even on hearsay or belief, be justified?” 55 Kan. at 703-04.
Several authorities have recognized no constitutional standard is violated by state statutes which authorize an arrest upon probable cause for a misdemeanor not committed in the officer’s presence. See J. Cook, Constitutional Rights of the Accused, Pre-Trial Rights, § 14 (1972); 6A C.J.S., Arrest § 20; 1 Wright, Federal Practice & Procedure: Criminal 2d § 77, p. 164-65 (1982). See also Street v. Surdyka, 492 F.2d 368, 372 (4th Cir. 1974); Diamond v. Marland, 395 F. Supp. 432, 438 (S.D. Ga. 1975); Mtr. of Lurie v. District Attorney, 56 Misc. 2d 68, 288 N.Y.S.2d 256 (1968). In addition, it is important to note that although both Kansas commentators heretofore quoted categorize an arrest made pursuant to 22-2401(6) as a “warrantless” arrest, under both Illinois and Montana law an arrest based upon a reasonable belief that a warrant for the person’s arrest has been issued is considered to be an arrest based upon a warrant rather than an arrest based upon mere probable cause. The Commission Comments following the Montana statute read:
“It should be noted that subdivisions [(1), (2) and (3)] all relate to arrests based on arrest warrants.
“Subdivision [(4)] is the sole and exclusive provision for arrests for either a felony or a misdemeanor without an arrest warrant. Under this provision the theory of arrests for a misdemeanor without a warrant would be the same as for a felony without a warrant.” (Emphasis added.) Mont. Code Ann. § 46-6-401.
Subdivision (4) of the Montana statute is similar to K.S.A. 22-2401(c) which authorizes arrests for misdemeanors upon probable cause to believe a person is committing or has committed an offense and exigent circumstances require his immediate arrest.
In People v. Wolgemuth, 69 Ill. 2d 154, 370 N.E.2d 1067 (1977), the Illinois Supreme Court made it clear that an arrest pursuant to the Illinois equivalent of 22-2401 does not constitute a “warrantless” arrest. That case reversed an Illinois Court of Appeals decision which had reversed the trial court’s denial of defendant’s motion for suppression of evidence where Illinois police, acting upon information from Iowa authorities that an Iowa arrest warrant for burglary had been issued against the defendant, arrested the defendant after they were admitted into his apartment by the owner of the building. The Supreme Court stated:
“The decision of the appellate court in this case presupposes that the police made a warrantless arrest. (43 111. App. 3d 335, 338.) Based on this assumption, the appellate court held that the warrantless arrest was a violation of the fourth amendment because no exigent circumstances existed to obviate the requirement of a warrant. . . . ■
“We need not inquire whether exigent circumstances justified the entry, because we are of the opinion that the warrant issued by an Iowa magistrate validated the entry.
“The fact that an arrest warrant had been issued distinguishes this case from that in which police execute a warrantless entry of a suspect’s home. The primary function of the warrant requirement of the fourth amendment is to interpose prior to an arrest a neutral magistrate’s review of the factual justification for the charges. (United States v. Watson (1976), 423 U.S. 411, 417, 46 L.Ed.2d 598, 605, 96 S.Ct. 820, 825.) This serves to relieve police officers, ‘engaged in the often competitive enterprise of ferreting out crime,’ of the responsibility of drawing neutral and sober inferences regarding a suspect’s criminality. (Johnson v. United States (1948), 333 U.S. 10, 14, 92 L.Ed. 436, 440, 68 S.Ct. 367, 369; Gerstein v. Pugh (1975), 420 U.S. 103, 112, 43 L.Ed.2d 54, 64, 95 S.Ct. 854, 862.) Is this division of responsibility which militates against ‘the dangers of unlimited and unreasonable arrests of persons who are not at the moment committing any crime.’ (Trupiano v. United States (1948), 334 U.S. 699, 705, 92 L.Ed. 1663, 1669, 68 S.Ct. 1229, 1232.) The warrant requirement of the fourth amendment is not frustrated in this case by the distinctive fact that the arrest warrant was issued in a State other than that in which it was executed. Whether a valid foreign warrant is effective in Illinois is a matter of State, not constitutional, law. A suspect’s constitutional right to have a neutral magistrate determine whether probable cause exists for his arrest is not undermined by Illinois’ choice to extend comity to the determination of a magistrate from another State. The entry of the police into defendant’s home was, therefore, properly executed pursuant to a valid Iowa warrant for the defendant’s arrest.” 69 111. 2d at 159-61.
See also A.L.I. Model Code of Pre-Arraignment Procedure, Appendix X(b)(ii) (1975) (citing only 22-2401[c] in analyzing statutory provisions for arrest without a warrant in non-felony cases).
K.S.A. 22-2401(b) does not permit an arrest based upon a reasonable belief or mere suspicion that any offense has been committed, as did the statute found to be unconstitutional in Kellam. Under 22-2401(b) an officer may only act where he has reason to believe a warrant has previously been issued for that person’s arrest. In other words, he has received information from law enforcement authorities or, under other circumstances, has probable cause to believe a neutral magistrate has made a prior finding that there is a factual justification for the defendant’s arrest. The primary function of the warrant requirement of the Fourth Amendment, to prevent unreasonable searches and seizures in the absence of probable cause, is therefore satisfied. The defendant’s contention that allowing misdemeanor arrests based upon probable cause to believe a warrant has been issued is violative of the Fourth Amendment of the United States Constitution and § 15 of the Kansas Bill of Rights is not supported by modern authorities and is without merit.
The order of the trial court is vacated and the case is remanded. The decision of the Court of Appeals is affirmed. | [
-15,
-30,
-15,
28,
58,
96,
59,
26,
97,
-73,
100,
83,
-23,
-48,
5,
121,
78,
61,
116,
121,
-55,
-74,
87,
-95,
-10,
-13,
-16,
-43,
-77,
95,
-82,
-44,
93,
48,
-126,
93,
70,
-56,
-121,
92,
-114,
7,
-112,
-47,
83,
10,
-92,
43,
54,
15,
-79,
14,
-13,
104,
24,
-13,
-87,
44,
-53,
-68,
24,
-16,
-85,
21,
-33,
22,
-93,
2,
-100,
5,
-40,
63,
-104,
57,
0,
-24,
-13,
-94,
-126,
116,
71,
-101,
44,
102,
98,
33,
-3,
-18,
-20,
-120,
31,
17,
-113,
39,
-103,
72,
98,
-95,
-106,
-99,
117,
18,
11,
-4,
-29,
4,
31,
-4,
-114,
-49,
-80,
-109,
11,
52,
6,
122,
-49,
-91,
32,
113,
-57,
-30,
92,
-41,
48,
-101,
-18,
-108
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.